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alderman or freeburgh, but more commonly borsholder, or tithingman (a).
An assemblage of the tithing, with this magistrate at their head, constituted a court of justice; and it was the duty of the borsholder or tithingman to convene the members of his tithing, and to put their sentences into execution; and if not submitted to, the cause was referred, by way of appeal, to the next superior court.
Besides the hearing and determination of controversies arising among the decennaries, it was customary at the tithing courts for each member to produce his warlike habiliments to be inspected, and at these courts new members were admitted, and testimonials given to those who had occasion to remove into other tithings (b).
The subdivision of each hundred into tithings or decennaries was admirably adapted for the preservation of the peace and good order of society; for it appears that all the members of each decennary or neighbourship, (as it was sometimes called,) and who were of the same rank (c), were pledges or sureties
Lord Coke says
(a) From the Saxon word borh, a Every city is a burgh, but every surety, and alder, a head or chief. burgh is not a city.” Co. Lit. 109 a. Spelm. Gloss. p. 86.
The office of constable, at the pre“ of burghs some sent day, seems to correspond with be incorporate and some not ; and that of borsholder in the Saxon æra; some be walled and some not. It for the terms tythingman and borswas in former times taken for those holder are frequently used in modern companies of ten families, which
statutes as synonymous with constable were one another's pledge, and there- and head-borough. Sometimes where fore a pledge is in the Saxon tongue two constables are chosen at a court borhoe, whereof some take it that a leet, for a particular township or paburgh came; whereof also commeth rish, another officer is elected for the headborough or borowhead, capitalis same precinct, called a third-borough, plegius, or chiefe pledge, viz. the who acts as an assistant constable. chiefe man of the borhoe whom Brac
(6) 3rd vol. Henry's Hist. of ton calleth frithburgus; and hereof G. B. p. 334-5.
p also commeth burgbote, which as (c) Thanes were not members of Flela saith, signifieth quietantiam re- any tithing, the family of each thane parationis marorum
civitatis aut being considered as a separate tithburgi.”
for the good behaviour and probity of each other; so that if any member committed a crime, the tithing or decennary by which he was pledged, were within one and thirty days to bring him forth, to answer for the offence; and on failure of so doing, they were compelled to pay the mulct prescribed by the law for the crime committed; unless indeed they could prove on oath before a magistrate, that none of the members were accomplices in the crime, and also engaged to bring the offender to justice as soon as they could apprehend him. So again if any member sustained an injury or loss, the rest contributed to redress or repair it; and in case of gross misconduct, the offender was expelled the decennary, and became an outlaw and vagabond (a).
In further support of this admirable system of police, (and upon patriarchal principles,) the head of every family was under a heavy responsibility, and had great authority over all the members of his family; and became also responsible for the good conduct of every stranger staying with him for three days and nights.
During the Anglo-Saxon æra, the sovereignty and the police of the country were still further maintained by an obligation imposed on every person above the age of twelve years, (with, perhaps, all or some of the exceptions I shall presently mention, in tracing the similarity of the leet jurisdiction, and the Anglo-Saxon tourn) to swear allegiance to the King, and submission to the laws, before his countrymen in the hundred court or folc-gemot (), on pain of an imprisonment, after which he became law-worthy, or a legalis homo; and this, as we have already seen, was inquired of in the division of the
ing, and he himself responsible for we also find used by some of our anall the members.
cient law authors. See Mirr. c. 1. s. (a) 3rd vol. Henry's Hist. of 17. Hence, probably, by a misprint G. B. p. 337. The members of a de- or corruption, the terms doziners, and cennary, were sometimes called de
doscin. ciners or deziners. The term dizein (6) 2 Inst. 70.
subordinate shire-gemot or county court, termed the inquest or view of frank-pledge (a).
It may be difficult to determine at what particular period the court leet was established, as an appendant juridical franchise, and whether before or after the discontinuance of the Anglo-Saxon trithing and hundred courts.
And although the appendancy of the court leet to a hundred or manor, may be thought to furnish evidence of its being of feudal origin, yet if it be true that the word leet is of Saxon derivation (b), the affirmance of the existence of the court, as an appendant franchise, even before the conquest (c), is greatly strengthened ; and it may be proper to notice, that the tenure of land in England in the Anglo-Saxon æra, is very far from supplying an argument unfavourable to the supposed appendancy of the franchise to a hundred or manor at that period, as it appears
that the Saxon tenure bore a strong affinity to the free socage tenure existing in England at the present day; for the Saxon lands in general were allodial, but subject to military services; and were not only descendible (d), but alienable at the pleasure of the owner, and devisable.
(a) Sulliv. 269. Ante, p. 809. troduction. It rather appears to me,
(6) Lord Coke informs us that lep, however, to be derived of the Saxon leth or leet is a Saxon word, and word led, to assign, Cor grant,] being cometh of the Verb gelapian or zele- a juridical franchise held by a subject þian (being added euphoniæ gra- under a grant from the crown. tia); i. convenire, to assemble toge- (c) See Ritson on courts leet 4. ther, unde conventus. 4 Inst. 261. Per Lord Mansfield, 3 Burr. 1860. It is also said to be derived from the Ante, p. 803. And we are told that Saxon word læt, signifying censura, the earls of each county, and the lords arbitrium, “ because this court re- of each leet, and likewise representadressed wrongs by way of judgment tives of towns, chosen by the buragainst any person of the frank- gesses of the town were summoned to pledge, who had done any wrong or the Wittena-gemot. See Lamb. Arch. injury to another.” Lex. Man. 131. 239, cited 2 Bac. Abr.
94. And again it is supposed to be de- (d) The descent of Saxon lands wa rived from the Saxon leod, plebs, and to all the sons equally, as gavelkind to mean the populi curia or folkmote. lands in Kent, which seems to be See Ritson on court leet, in the in- a customary relic of Saxon law,
In taking leave of the judicial polity of our Anglo-Saxon ancestors, and previously to entering on an inquiry into the constitution and authority of the court leet, as it appears to have existed from the period of the Norman conquest, it should be mentioned that the Wittena-gemot court, and those I have noticed of a subordinate jurisdiction, would seem to have been continued for a considerable time after the conquest; but William the Conqueror becoming jealous of the legislative functions of this assembly, established a constant court in his own hall (a), thence called aula regia, or aula regis (6). This court was composed of the officers of the King's palace, of which the justiciar (capitalis justiciarius totius Angliæ] was the president; and who was also the principal minister of state.
The aula regis removed with the King from one part of the kingdom to another; and all matters both civil and criminal, and regarding the revenue, were transacted there (c). and, like gavelkind lands, they were not forfeitable for felony. Sulliv. (6) According to Sullivan, this 278.
court existed even in the Saxon (a) Aula, halla, or haula, a hall or times, under the term curia regis, chief mansion house, was the usual See his Lect. on the Laws of Engappendage of a manor. Domesd. tom. land, p. 271 ; and I apprehend that i. 21 b. Ib. 285 b. Ib. 286 b. Ib. the Wittena-gemot was a branch of 12, 293, 307 b. 308. Ib. 368 b. Ib. this court. 63. Ib. 309. Ib. 29 b. Ib. 32 b. (c) The latter were heard in the So caput manerii, 1 vol. 11, 26, 166. Treasury, called the Exchequer from 2 vol. 227, 293 b. See App. to 2nd the chequered cloth wherewith that Gen. Rep. of the Comm. of Pub. Rec. table was covered; but all criminal P.
441. So the term hall is some- matters were heard only in the hall; times applied to a court baron; and the civil pleas were heard in either hence also the town-hall, shire-hall, court. This was the sovereign court &c. 2 Watk. on Cop. 18. Hence of the kingdom, [Mad. c. 8.,] where too the Hallmote courts in the city justice was administered by the King of London. 4 Inst. 249.
himself and his officers; consisting of In Yardley Hastings in North- the justiciar, the chancellor, [who amptonshire, and many other places, formed all patents, and had the custhe manor court is opened in an an- tody of the seal both for writs and cient hall, and then, from its dilapid- patents,] the treasurer or auditor, ated state, adjourned to some inn, or [who presided in matters relating to other convenient place within the the revenue,] the constable and mar
In some cases of very great importance, as upon the levying of war, or raising an escuage, it was customary to summon to the aula regis those who held of the King in capite, and this is considered to have been the foundation of the English parliament, as far as regards the jurisdiction of the Upper House, but whether the Commons of England made part of that assembly, or at what period the lower house was instituted on its present representative system, does not clearly appear (a); the more general opinion, however, is that barones majores (6), were alone summoned to the curia regis, and that the barones minores first sat by representation, in the reign of Henry the Third (c), the overwhelming influence of the greater barons inducing the institution of this popular assembly (d).
And it is generally supposed that about this period, or as some say about the twenty-third Ed. 1., the crown was induced, as a further check to the power of the barons, to create a cer
shall, [who determined all matters of Camd. Britt. 13. Dugd. Orig. Jur. war and peace, according to the law 18. But see 4 Inst. 2, where Lord of nations and of arms,] the senes- Coke
that lords and commons of chal or steward & marshall, [who de- ancient times sat together, and refers termined all quarrels between the to Rot. Parl. 5 E. 3 nu. 3. King's menial servants, and had the And it is by no means improbable charge of the prisoners, and the con- that after the greater barons were altrol of the King's household,] and lowed to alienate their lands in fee, the chamberlain, (who had the charge those holding of them by subinfeudaof the King's money issued out of the tion, and termed the barones minores, treasury.]
were summoned to convocation for a (a) The Commons of England cer- time, and that these afterwards containly appear to have formed part of stituted the knights of the shire, or the Wittena-gemot courts, or parlia- representatives of counties, in the mentary assemblies, in the Saxon æra. lower house. And it is a natural conclusion that (d) Spelm. Gloss. 69. Seld. tit. the parliament is not a feudal insti- Hon. 692. Selden does not detertution, but has resulted from the mine the point, but [p. 704. ib.] concentration of the remedial and ju- says that it was attempted, 17 John, dicial authorities of the kingdom. to bring in the barones minores, as Ante, p. 814. n. (c). .
appears by the great charter granted (6) Ante, p. 715. n. (a).
by him at Runnymede. (c) Brady's answer to Petit, 133.