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BRITAIN DIVIDED ANEW.-HUNDREDS AND TITHINGS. THE EALDORMAN AND COUNTY COURTS.—MUTUAL POLICE, OR FRANK-PLEDGE SYSTEM.—FEUDAL JURISDICTIONS.-A CASE OF CRIMINAL LAW.-NATURE OF THE EVIDENCE REQUIRED IN DOUBTFUL CASES.-TRIAL OF THURKILL AND HIS WIFE.-BINARY JURISDICTION OF STATE AND CHURCH THE STATE ASSESSING DAMAGE, THE CHURCH PUNISHING SIN.
THE Conquest of England by the Saxons was effected, as we have seen, by a series of petty invasions. It is probable that for many years it scarcely affected property in the towns, which often contracted with the invaders; and in which the conquerors did not care to dwell. But in the country the case was far different. The Anglo-Saxon not only required land for his support, but by the ancestral polity of his tribes, civil freedom and nobility depended upon its possession.1 Moreover, the people was sufficiently civilized to have certain principles of division; the allotments of land were probably made on a uniform scale to every freeman; and a portion was held in reserve by the state to be granted away in reward for public services, or to supply the wants of new generations. Probably, as at the Norman conquest, the more eminent of the British landowners were allowed to remain on a portion of their estates as tributaries; while the peasants and prisoners of war were
1 "And if a ceorl thrived, so that he had fully five hides of his own land, church and kitchen, bell-house and burh-gate-seat, and special duty in the king's hall, then was he thenceforth of thane-right worthy."-Ranks: A. S. Laws, vol. i., p. 191. Thus, the abbot of Ely fraudulently conveyed some of the abbey lands to his brother, that he might have the forty hides of land requisite for the highest nobles.-Hist. Eliensis, Gale, vol. iii., p. 113. Contrariwise, the landless man was regarded with suspicion by the law.
2 The hide or allotment contained from thirty to thirty-three acres.-Kemble's Saxons in England, vol. i., chap. 4.
TITHINGS AND HUNDREDS.
enslaved. Numberless differences of condition would arise in the several districts from accident. But generally, there can be little doubt that the ancient landmarks of estates were removed everywhere, and the country divided anew to suit the organization of its conquerors.
To appreciate the Anglo-Saxon settlement, we must bear in mind that the conquering people were in every case a little army, composed of a number of companies, united by blood, by language, and by a common name. Each company, in its turn, was formed, in part at least, of men who bore the name of their chief, his gesith, or battle-brothers, if not actually his kin. Thus Kent was parcelled out among Alings and Banings, Billings and Derings, whose captains we may fairly assume to have had names such as Al and Bana, Bil and Deor.1 But as the family bond was artificial, it was supplemented by a numerical principle of division. Ten families constituted a tithing, the self-governing unit of the state; and ten tithings were a hundred, whose court administered justice among the little communities themselves. As the people settled down, the terms tithing and hundred naturally came to stand for divisions of land, not for any specific number of families. An uncertain and probably fluctuating number of these constituted the shire, whose distinguishing feature seems to have been that its head, the duke or caldorman, was not the elect of the
1 Meaning respectively, Eel, Homicide, Axe, and Deer.
2 Savigny, dissenting from all his predecessors, has surmised that ten families constituted a frith-borh, ten frith-borhs a tithing, and ten tithings a hundred. His reasons are, that the frith-borh is spoken of as a division, and that a magistrate to ten families seems excessive. But there is no need to assume that the frith-borh is anything more than another name for a tithing, especially as the citizen is sometimes called frith-borgus. A magistrate to ten privileged families, having tenants and slaves, and spread over the country, would not be excessive, even while the division was numerical. Athelstane's laws place the matter beyond controversy. "That we count always ten men together; and the chief should direct the nine in each of those duties which we have all ordained, and count afterwards their hyndens together, and one hynden-man."-Judicia Civ. Lond., A. S. Laws, vol. i., p. 233; Savigny's Römische Rechts-Geschichte, band iii., p. 82.
3 "If he be an caldorman, let him forfeit his shire" (in case of compounding a felony).—Ine, 36; A. S. Laws, vol. i., p. 125.
THE COUNTY AND ITS CHIEFS.
people in historical times, but either their hereditary chief, or, as royal families died out, their viceroy. As a consequence of this, the county had from the first all the organization of a state; its gemot included all the different orders of society; it had its local army, and could make war; it was fringed by a march or border of waste land, which no neighbour could violate without risk of war, and on which no squatter could acquire property by residence; which was, in a word, the sacred limit of a dominion.
If we take modern names, perhaps none will so well express the position of a county duke, as our title of lord-lieutenant. A degraded king, as it were, he sometimes styled himself, "by the grace of God; " but by the conditions of Saxon royalty, his title was never indefeasible, however circumstances and prestige might tend to perpetuate it in a single family. Probably in most shires there were several families of ealdormanic rank, from whom the holder of office was selected by the king, with advice and consent of his witan. Wielding an imperium in imperio, like the governor of an American state, the duke was chiefly important as military chief of his province, and as declaring to the county court the laws which the witan or court of the nation had passed. But his functions as supreme judge in the district, could be exercised in his absence by the scir-gerefa, or sheriff, who held his court twice a year, assisted by the bishop, as the duke's deputy, and who seems practically to have controlled the police of the county. The importance of these functions in days when the royal perogative included a part of the fines of justice, purveyance, and heriot, will be easily understood; the scir-gerefa came more and more to be regarded as a royal officer, especially since the imposition of oaths fell under his province; the king might depose him if he were negligent, and the analogy of Norman custom seems to show that the king appointed him. The only popular magistrates in the country were therefore the tithing and hundred reeves; the former of whom were always, the latter mostly,
Cod. Dip., 256, where the shire is spoken of as "sua propria hereditas."
ORIGIN OF THE FRANK-PLEDGE SYSTEM
elected by their respective communes. The smaller questions of debt and police were probably decided by these men in their respective courts; the freemen of the tithing would meet as occasion required; the hundred court was summoned once a month. But besides this, the tithing and hundred reeves headed delegacies from their districts to sit in the higher courts, on questions for which their own powers were inadequate. This was probably an innovation on the old principle, which required the attendance of all freemen. The increase of
population, and the demands of labour on a people who had ceased to be soldiers receiving rent from their tenantry, will sufficiently explain why the right of attending the scir-gemot became an irksome duty, and fell gradually into disuse.
It is clear that the functions of police must precede the administration of justice. The earliest practice no doubt committed to the individual the charge of providing for his life and property; the earliest legislation consisted in drawing up a tariff to assess the compensation incurred for crime; the only recognition of a commonwealth in the whole theory was in the assignment of a certain proportion of the penalty to the state. This wiht-gild, or crime-money, as it came to be called in distinction from the were-gild, or life-money, was no return for a service rendered by the community, but value for a loss which it had sustained; the criminal had subtracted so much labour or life from the common stock, and was bound to indemnify his fellow-citizens. The only duty of the royal officers was to watch the contract between the aggrieved party and the offender, and see that a due proportion of the fine found its way to the treasury. In default of a national police, the tithings and hundreds formed unions for public safety among themselves. The ties of family which at first united their members, and a common religion, had given rise to periodical feasts; it was natural that clansmen, neighbours, and friends should unite to pursue a thief or a murderer, or even to wage war against an oppressive noble or public officer. It was
1 Wilda's Gilden-Wesen, Erster Abschnitt.
equally natural that the people of a district, being thus regarded as an association, should in turn be called upon by their neighbours to give up a criminal, and in default of this, to purge themselves legally of all complicity, or else to take the consequences of his offence upon themselves. Immemorial custom passed easily into law; and the English kings consolidated the frith-borh or frank-pledge system, by codifying its regulations and obliging all their subjects, if they were not vassals of some lord,' to be sworn members of some association. Private feud was thus prevented, and although crime could not be put down, it was certain that the sum of compensation would always be equal to the sum of injury.
The mention of vassals and lords obliges me to digress to a new feature of Anglo-Saxon polity. The unit of the tithing and of the state was the head of the family, who governed his wife under contract, his children, saving life and freedom, till they became of age, and his slave to all time unconditionally, except as regarded life and limb. A control of this sort in itself implies responsibility, and the Anglo-Saxon was bound to pay the fines of his children and of his slave. By a natural analogy, it became customary for the English noble to pledge himself for his dependants; and these had a natural tendency to increase. The gesith, or military retainer, had been with him from the first; conquest had assigned him the tenant and the slave; and now, when every man required a pledge to the laws for his good conduct, the landless men, who wanted the condition of freedom, and whose birth was yet not servile, were forced to attach themselves to some lord. Their service was half voluntary, for if they disliked it, they might change their lord by appeal to the duke; they might even obtain a guarantee from their kinsmen who owned
1 Ethelred, i.; A. S. Laws, vol. i., p. 281. "That every freeman have a true borh," and "let every lord have his household in his own borh."
2 Alfred, 37; A. S. Laws, vol. i., p. 87. It was the duty of the kinsmen to find a lord in the folk-mote for the lordless men.-Athelstane, 2; A. S. Laws, vol. i., p. 201. This duty they would be careful to perform, as otherwise they were responsible for part of the were.