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originator of Hundreds and Tithings, and shires," he must also have been the creator of the common law itself, which only proceeds in conjunction with these divisions." The fact is, Blackstone and the older writers, Coke, Littleton, Bracton, knew really very little about the origin of English institutions. The whole science of institutional history is one of modern growth and can be pursued only in the light of comparative politics and of comparative jurisprudence, along lines of inquiry opened up by such pioneer investigators as Von Maurer, Hanssen, Nasse, Waitz, Gneist, Stubbs, Freeman, Maine, and specialists in Anglo-Saxon law. The study of Saxon institutions was not possible before the labors of Palgrave, Kemble, Thorpe, and Reinhold Schmid in classifying materials and editing statutes and codices. But with all these modern facilities, it is not easy to trace out to one's entire satisfaction the origin of England's early institutions of law and government.

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We find Tithings mentioned in the law of Canute already cited. We can trace back the institution through several Saxon reigns, but finally we lose all trace of it. Among the laws of Edgar, in the ordinance relating to the Hundred it is ordered that if a thief is to be pursued, the fact is to be made known to the Hundredman and he is to inform the Tithingman, and all are to go forth to where God may direct them," so that they "do justice on the thief, as it was formerly the enactment of Edmund." Here, if we mistake not, we are upon the historic track of the old Saxon Hue and Cry. We note from the laws of Edgar that if the hundred pursue a track into another hundred," warning is to be given to the Hundredman there, so that he may join in the chase. Following a track from one Hundred into another would seem to imply territorial limits. In the laws of Edgar, it is also prescribed that no one shall take possession of unknown cattle "without the testimonies of the men

1 Ancient Laws and Statutes of England, i., 259. 2 Ibid. 261.

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of the Hundred, or of the Tithingman." In the laws of Athelstan, among the so-called Judicia Civitatis Lundoniæ it is ordered that, in tracing or pursuing a criminal, every man shall render aid, so long as the track is known; and after the track has failed him. that one man be found [from one Tithing] where there is a large population, as well as from one Tithing where a less population is, either to ride or to go (unless there be need of more.)" This appears

to imply a territorial seat even for the Tithing, as an integral part of the Hundred, as well as a varying number of inhabitants within the Tithing itself.

Such a

Probably the Saxon Tithing had its origin in the personal association of warriors by tens and hundreds. decimal system of military organization existed among various early Teutonic peoples, if not throughout the whole Aryan family of nations. Even the Jews fought by tens, and fifties, and hundreds. Undoubtedly kinship had originally something to do with the marshalling of hosts. The Homeric warriors fought under patriarchal chiefs. The ancient Germans, according to Tacitus, were arrayed by families and near kinsmen (familiae et propinquitates).3 And it is not at all unlikely that, after the conquest of Britain, the Saxons settled down in Tithings and Hundreds upon somewhat clannish principles. Of course the composition of the host, when levied, would vary from time to time, but a certain idea of territorial permanence would soon attach itself to the local Tithings and Hundreds from the very fact of the allotment of lands.

There seems to be great reluctance on the part of German

1 Ancient Laws and Institutes of England, i., 261.

2 Ibid. 233, cf. ii., 499 and Schmid, Die Gesetze der Angelsachsen, 161. 3 Tacitus, Germania, cap. 7. Prof. W. F. Allen, in a note upon this passage, in his edition of the Germania, calls attention to the parallel passage in Cæsar, de bello Gallico, vi., 22, where it is stated that land was assigned gentibus cognationibusque hominum. "From the two passages, it appears that the divisions of land, and military divisions, were alike founded upon Kinship."

specialists like Gneist and Schmid to admit that the Saxon Tithing ever became territorial before the Norman conquest, after which time Schnid,' at least, concedes the existence of the territorial Tithing, although he, like the rest of the German critics, continues to distinguish very sharply between the local Saxon Tithing and the purely personal Frank-pledge. Stubbs, the best English authority upon the subject of Saxon institutions, says that Tithings of a territorial character exist to this day in the western counties of Somersetshire, Wiltshire, Gloucestershire and Worcestershire, and in all counties south of the Thames, except Cornwall and Kent. Stubbs, who follows Pearson upon this point, says the Tithings of some counties answer to the townships of others. This statement and the researches of Pearson, in the text of his Historical Maps of England during the first thirteen centuries, uncover a secret which none of the German writers appear to have discovered. They deny the existence of a territorial Tithing among the Saxons, because the name does not occur in the Domesday Book. Toulmin Smith read the secret of the Tithing in his researches into the history of the English Parish and it will be as clear as daylight to anyone reflecting upon the natural relation of the personal Tithing to its landed domain. A group of at least ten families, a Tithing of inhabitants, constituted a Saxon Township, which is the secular basis of the ecclesiastical Parish.

We cannot enter in this connection upon the subject of

Schmid, Die Gesetze der Angelsachsen, 648.

2 Mr. Edward A. Freeman says he lives in the Tithing of Burcott, Somerleaze, Wells, County of Somerset, which Tithing, before the recent Highway Act of the Poor Law, used to meet and tax itself for local purposes. Notices of the meeting of the Tithing used to be posted, like the notices of a New England Town Meeting.

3 Pearson Historical Maps, 50-52.

Gneist. Das Englische Verwaltungsrecht, i., 51. In den unendlichen Einzelheiten, welche das normannische Domesdaybook giebt, kommen die Worte decania, decenna, teôthing, tything auch nicht ein einziges Mal vor.

the transformations of Tithing, Township, and Parish, but shall one day do so more fully in papers upon the Origin of Northern Towns and Southern Boroughs. We call attention, however, to a few important and fundamental facts.

1. Many modern places in England, that are recognized as Tithings, end in the Saxon word Ton, meaning Town, e. g., the Tithing of Alkington, in Berkeley Parish.

2. Many Tithings are geographically identical with Parishes, although many Parishes often include several Tithings.

3. Many names of English Parishes end in the Saxon Ton and correspond territorially with old Saxon Towns.

4. In the later part of the Middle Ages, taxation in England was levied upon Tithings, Towns, and Parishes; the existence of ten householders in a township or parish was the criterion of local liability to taxation.

5. The Tithingman, and his historic kinsmen, the Town Reeve, and the Parish Constable, assessed and collected taxes.

6. The Saxon Tithingman became the Norman Petty Constable. It is a principle of the common law that wherever there is a Petty Constable, there is a Parish.

The following extract from the Laws of Edward the Confessor (Thorpe I., 454), throws considerable light upon the functions of the English Tithingman in the Middle Ages: Cum autem viderunt quod aliqui stulti libenter forisfaciebant erga vicinos suos, sapientiores ceperunt consilium inter se, quomodo eos reprimerent, et sic imposuerunt justiciarios super quosque x. frithborgos, quos decanos possumus dicere, Anglice autem tyenthe-heved vocati sunt, hoc est caput x. Isti autem inter villas, inter vicinos tractabant causas, et secundum quod forisfacturæ erant, emendationes et ordinationes faciebant, videlicet de pascuis, de pratis, de messibus, de certationibus inter vicinos, et de multis hujusmodi que frequenter insurgunt. Compare

Kemble, Saxons in England, I., 253.

Spelman (Works divided into many

II., 51) says, "every hundred was Freeborgs or Tithings consisting of ten men, which stood all bound one to the other, and did amongst themselves punish small matters in their court for that purpose, called the Leet, which was sometimes granted over to the Lord of Manours, and sometimes exercised by peculiar officers. But the greater things were also carried from thence into the Hundred Courts; so that both the streams of Civil justice and of Criminal did there meet, and were decided by the Hundreds—as by superior judges both to the Court Baron and Court Leet also." Then commenting on the

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above law, Spelman continues, Edward the Confessor (LI., cap. 32) saith, that there were justices over every ten Freeborgs, called Deans, or Tienheovod (that is, head of ten) which among their neighbours in Towns compounded matters of trespasses done in pastures, meadows, corn, and other strife, rising among them. But the greater matters, saith he, were referred to superior justices appointed over every ten of them, whom we call Centurions, Centenaries, or Hundredors, because they judged over an hundred Freeborgs."

man.

In the face of this testimony, it is difficult to understand how German critics and even Hallam (Middle Ages, ch. VIII., part 1) and Stubbs (Const. Hist. I., 90) can doubt that the Tithingman settled small causes between man and The Selectmen of early New England Towns and the Parish Officers of Maryland had similar judicial functions. Upon the question of village-judgeship, Stubbs makes a very prudent modification of his first statement : "The Tithingman is of course an elective officer. The idea that he was a sort of village-magistrate is without basis; although in a simple community of peasants the office of Constable, for such seems to have been the position of the Tithingman, was held in more honour than it is now." Pearson, in his History of England (I., 252) says, "The only

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