The burg gemot identical with the hundred court. The Old-English burg or borough was nothing but a township, or a group of townships, in a higher state of organization, and with defences of a more formidable character than those of the ordinary township. "It was not like an ancient Greek or Roman, like a mediæval Italian or Provençal city, the centre of the whole civil life of its district. It was simply one part of the district in which men lived closer together than elsewhere; it was simply several townships packed tightly together, a hundred smaller in extent and thicker in population than other hundreds." 2 The "burg" like the "tun" possessed its common lands, its own court or burggemot, and its head officer or gerefa, who was known as the tun or wic-gerefa, and in commercial places like London, Bath, and Canterbury, as port gerefa: 3 the burg-gerefa does not occur. The early history of the borough constitution is very obscure, but in it was undoubtedly embodied the system originally represented by the free township, which system survived as the basis of municipal authority. As the greater burgs generally represented a group of townships that had coalesced, their organization naturally resembled the constitution of the hundred more closely than that of the township. The burg-gemot, hustings or law court of the Old-English city, was nothing but the hundred court in a slightly different form; its origin was the same and its procedure substantially the same.7 The pagus, or hundred of the continental Teutonic state 1 Stubbs, Const. Hist., vol. i. pp. 92, ties cannot be traced to a Roman source. For authorities upon this sub 4°3' Freeman, Norm. Cong., vol. v. p. ject see above, pp. 124, 125. 312. "The collection of geographically - that noth ing could well be less like a polis."- 8 Kemble, Saxons in England, vol. 4 Schmid, Gesetze, p. 598. 5 It is now perfectly well understood that the origin of English municipali 6 "This name is still preserved in the United States in the Court of Hustings of Richmond, Virginia."— Bige low, Hist. of Procedure in Eng., p. 141, note 2. Essays in A. S. Law, p. 22. "Of the influence of guilds, as a subsidiary part of town organization, there are some traces which at a later period assume great historical importance; but there is nothing to justify the notion that they were the basis on which the corporate constitution of the burh was founded." Stubbs, Const. Hist., vol. i. p. 94. "The various guilds were also without authority as courts of the com. mon law." Essays in A. S. Law, p. 22. the modern and the is reproduced in Britain by a union of townships in the dis- The huntrict originally known as the gá or shire, a term of various dred court. application. This district, which is usually described in the earlier documents as regio, pagus, or provincia, represents, no doubt, either the pagus or district in which the hundred warriors originally grouped themselves, or a union of townships originally isolated and independent. The early gás or shires were not at all uniform in size, their boundaries depending upon the physical conformation of the country in which the settlements were made. By a union of early shires was formed the primitive state, whose national assembly was the folk-moot, the meeting of the whole people in arms.1 In the process of consolidation the primitive state descends in status one degree; it becomes a mere division of the greater whole, that is to say, a scir or shire. And as a Identity of necessary consequence the early shires 2 of which the primi- hundred tive state was composed descend to the status of subdivisions, known in later times as hundreds. In this way the conclusion is attained, which may be accepted as a general law, that "the state of the seventh century became the shire of the tenth, while the shire of the seventh century became the hundred of the tenth."3 The name of hundred, which first occurs The name in Old-English law in a police regulation of Eadgar's, seems first occurs to have been definitely applied, during the ninth or tenth in a law of Eadgar's. century, to the territorial district representing a union of townships, which may have been originally known as a shire. The hundred court of the consolidated kingdom and the hundred court of the Continent were, therefore, identical in fact and in name; they were the ordinary courts of law in which justice was administered in the first instance. The ConstituEnglish hundred-moot consisted of the regular assembly of all tion of the the freemen resident within the district, together with the court. parish priest, the reeve, and four best men, who came as 1 See above, pp. 123, 124. 2 That scir or shire was the term originally employed in Britain to describe the district, which arose out of a union of townships, is maintained by very high authority. See Essays in Á. S. Law, p. 18; Stubbs, Const. Hist., vol. i. pp. 96-101; Select Charters, p. 68. 8 Essays in A. S. Law, p. 19. This statement has been repeated in the Eadgar i. Constitutio de hun- 5 As to the importance of this fact in establishing the historical connection between English and German institutions, see Essays in A. S. Law, pp. 6, 7. early shire. of hundred hundred It met monthly. Head officers of the hundred. Police organization: the frithborh, or peacepledge. Self-help. Right of feud. 2 representatives from every township embraced within the hundred. The judges were the whole body of suitors, who, while on their way to and from the court, were under the special protection of the law. The hundred court, which met every month,3 could declare folk-right in every suit; its jurisdiction was both civil and criminal; it witnessed the transfers of land; and no suit could be carried to a higher court until it had first been heard in the court of the hundred. The headship of the hundred seems to have been divided between two officers, the one the representative of the people, the other of the king. The hundred-man or hundreds-ealdor, who was the elected officer of the freemen of the hundred, convened the hundred court and probably presided over it. This officer survives the Conquest, and in the thirteenth century appears as the elected representative of the hundred in the shire-moot.5 The representative of the king was the gerefa, who becomes after the Conquest the bailiff of the hundred.6 Having now arrived at a definite conclusion as to the origin and structure of the township, the burg, and the hundred, it will be possible to indicate, in general terms, the relation which existed between these territorial districts and the system of police organization with which they became closely interlaced. In the most primitive periods of Teutonic society, the doctrine of self-help, the right of the individual freeman to redress his own wrongs without the aid of the judicial power, was the basis of all archaic procedure. "The German was himself judge and warrior; he levied execution and exacted blood for blood by the sovereign powers vested in himself by that most democratic of all constitutions." 7 The right of feud, or private war, was a right which every Teu 1 "It was attended by the lords of lands within the hundred, or their stewards representing them, and by the parish priest, the reeve, and four best men of each township." Stubbs, Const. Hist., vol. i. p. 103, and note 1, in which is cited Hen. I., vii. §§ 4, 7; li. § 2. See, also, Select Charters, pp. 104, 105; Bigelow, Hist. of Procedure, p. 141. 2 Stubbs, Const. Hist., vol. i. pp. 103, 104, 114, note 6; Essays in A. S. Law, p. 5. crime. tonic freeman considered inalienable, a right which entered with him into every political or social organization of which he was a part. The first duty then which presented itself to every organized society that aspired to preserve the public peace was, to devise some means through which the right of every man to redress his wrongs, according to his own estimate of his injuries, might be modified and restrained.1 As the family in all branches of the Aryan race represented the Agency of the family strongest form of organization through which the individual in the precould be governed, the state naturally invoked its aid for the vention of maintenance of the peace and for the prevention of crime.2 Tacitus explains the earliest attempt made by the Teutonic states to mitigate the evils of private warfare, through the agency of the family, when he says: "They are bound to take up both the enmities and the friendships of a father or relative. Nor are their enmities implacable; for even homicide is atoned for by a fixed number of flocks or cattle, and the whole house receives satisfaction, a useful thing for the state, for feuds are dangerous in exact proportion to freedom."3 Treason and effeminacy were punished capitally; all other offences (including homicide) could be atoned for by fines. "A portion of the fine went to the king or state, All fines a part to the injured person or his relations." 5 The state thus acted as mediator by guaranteeing to the person in- state and the injured jured, or to his household, satisfaction for the injury received, person or and to the person paying the fine immunity from the conse- tives. quences of the feud. In this way the individual received indemnity, and the state compensation for the breach of the public peace. As the right of feud was too deeply rooted to be eradicated by legislation, the Teutonic nations only 1 "The Teutonic nations set themselves the task of regulating the Right of Feud. They could not entirely abrogate it, . but they defined, and as far as possible limited, its sphere and the extent of its action." Kemble, Saxons in England, vol. i. p. 269. Kemble's tenth chapter, from which this extract is taken, has been criticised by Konrad Maurer, Kritische Ueberschau, iii. pp. 26-62, 1858. For a full and authoritative view of the whole subject, see Wilda's Das Strafrecht der Germanen, 1842. : 2 "Saxon England formed no exception to the rule. The family was not only the most important institution of private law it stood also at the bottom of the whole police and criminal system."- Essay upon "The AngloSaxon Family Law," Essays in A. S. Law, p. 122. Tac., Germ., c. 21; Saxons in Eng., vol. i. p. 271. 4 Tac., Germ., c. 12. 6" Pars multæ regi vel civitati, pars ipsi qui vindicatur vel propinquis ejus exsolvitur."-Ibid., c. 12. divided between the his rela life-price, unit in the system of compensa tion. attempted to modify its exercise by prescribing a graduated system of compensation which embraced nearly every offence that could be committed against a man's person, honor, or Wergild or domestic peace. The unit in this system was the wergild,1 or price set upon the life of every freeman according to his rank, his birth, or his office. Every freeman had his wergild, from the humblest peasant to the king: its varying amount was the principal distinction between the classes; it defined the value of each man's oath, his mund or protection, and the amount of his fines or exactions. And after the principle was settled that the life-price could be fixed at a definite sum, the compensations for all less offences were adjusted in a corresponding ratio. In the earliest forms of Old-English law we find every injury that a man could suffer in his person, his property, or his honor minutely assessed; 2 and we also find the right of feud limited to the single case of guilty homicide. In the event of a man's violent death the obligation devolved upon his kindred to prosecute the blood-feud, The family and his wer, or life-price, was payable to them, his maegth as a police or maegburh. In addition, however, to the prosecution of the blood-feud, a man's maegth were bound to defend their kinsman before the courts, and to become responsible for him to the state.5 In this way the family association or maegth naturally supplied a system of mutual guaranty, which the state was able to employ in early times as a police organization through which it could hold lawless men to right. In the earliest of the Old-English laws this system appears in its purity; in the legislation of Æthelberht, Wihtræd, and Hlothare the maegth is still wholly responsible." But the primitive system becomes greatly weakened, under the later kings, by the increasing force of public law, and by the growth of the quasi feudal relation of lord and or maegth organization; decline of its influ ence. 1 "The wergyld, then, or life-price, was the basis upon which all peaceful settlement of feud was established." Saxons in Eng., vol. i. pp. 276, and 277-288. 2 See the Laws of thelbert and Ælfred, Thorpe's Laws and Institutes. 8 "Unlike some of the continental tribes, the Anglo-Saxons did not permit the exercise of the right of feud for simply corporeal injuries, but limited it i. to the single case of guilty homicide. 4 Schmid, Gesetze, vii. 3, § 4. |