man.1 By the time of Ælfred the right of feud had been so far modified that a man could not fight, except in a certain serious case, until he had first appealed to all the recognized authorities for redress.2 But if the offender failed to make lawful amends after demand upon him, then the injured parties could make war upon him with the aid of the state; whence the Old-English proverb, "Bicge spere of síde óðer bere," buy off the spear or bear it. This primitive system of police, based alone upon the family tie, which originally implied the fact of neighborhood, contained within itself the seeds of its own dissolution. As the force of family association weakened, and as the family itself became dispersed, a time came when neighbors were not necessarily kinsmen. When that point was reached, the deficiencies in the old system had to be supplied by a more definite form of organization, in which the power of the family survived as a potent influence. In the new arrangement neighbors, New police whether related or not, were bound together in tens and hun- system emdreds, a tithing-man for each tithing, a hundred-man for tithings and each hundred. The frithborh 5 (peace-pledge) was the mu- as numeri tual guaranty by which every member of a tithing as well as sions. of a maegth became a pledge or surety (borh) to the other. members, as well as to the state, for the maintenance of the public peace. From the time of Eadgar the maegth, as a police organization, no longer existed. The primitive family system had become merged in an artificial one which was purely political; the police duties which at first devolved upon the kindred passed to the members of the tithings and hundreds. But the most difficult question yet remains : When and in what way did these numerical and personal 1 Essays in A. S. Law, p. 142. 2 Saxons in England, vol. i. p. 271; Essays in A. S. Law, p. 268. 8 This right is thus expressed in a formula contained in the law of Eadward the Confessor: "Emendationem faciat parentibus, aut guerram patiatur, unde Angli proverbium habebant: Bicge spere of side other bere, quod est dicere, lanceam eme de latere aut fer eam." Leg. Eadw. Conf., xii., § 6; Thorpe, vol. i. p. 447. 4 Kemble, Saxons in England, vol. i. pp. 237, 238. 5 Forsyth, Trial by Fury, p. 50. 6 "From the time of Eadgar, the bodied in hundreds cal divi divisions Numerical divisions merge their functions in the already existing terrimerge their torial districts, which have been described as townships and functions in hundreds? That such a merger did take place is clearly intownships and territo- dicated by the later laws. The functions of the tithing sink rial hun dreds. into those of the township; and, except in some of the western counties, even the name of the tithing is lost in that of the township.2 The name of "hundred" may have extended itself, by a perfectly natural process, to the territorial district which the peace association protected. It is more than probable that the development which took place in the police system was but a part of the general process of change through which the primitive constitution passed in the transition from the personal to the territorial system. After the Frithborh Conquest the name frithborh was incorrectly translated by (peace- the Norman lawyers into liberum plegium (frank - pledge) incorrectly instead of pacis plegium. The "view of frank-pledge," the by the right to see that these peace associations were kept in perfect order, ultimately became a part of the petty criminal jurisdiction of the courts leet, where it still survives. pledge) translated Norman lawyers. The shiremoot. In the process of consolidation the ancient shire becomes the modern hundred, and the primitive state becomes the modern shire. The folk-moot, the national assembly of the ancient kingdom, survives as the shire-moot, an institution. distinctly peculiar to England as compared with Germany." In descending to the rank of a shire the primitive state preserves its autonomy to the greatest practicable extent; even as late as the time of Æthelstan a trace of the ancient legislative authority lingers in the proceedings of the shire-moot. The government of the shire is divided between the ealdor ties."-Stubbs, Const. Hist., vol. i. p. 86, note 2. 8 Select Charters, p. 68. 4"An early confusion gave rise to the reading of Freoborh, liberum plegium, free-pledge, frank-pledge, for Friðborh, the pledge or guaranty of peace, pacis plegium. The distinction is essential to the comprehension of this institution."-Saxons in England, vol. i. p. 249, note I; Forsyth, Trial by Fury, p. 50. Essays in A. S. Law, p. 21; Waitz, D. V. G., ii. p. 494; Stubbs, Const. Hist., vol. i. p. 116. • See above, p. 173. divided man and the scir-gerefa or sheriff, - the one the representa- Headship tive of the nation, the other of the king. As the work of of the shire consolidation advances, and as the tribal kings pass away, between their places are filled in the subject kingdoms by ealdormen the ealdoror viceroys, appointed by the king and his witan, by whom man and they are removable, and to whom they are responsible for the exercise of their authority. In some instances the underkings continue to rule as ealdormen by virtue of a delegated authority. "The caldorman is a vice-king, with an independ ent power as opposed to the king. Not the king's pleasure, but a principle of the public constitution, determines the completeness of the ealdorman's authority. Not the king's pleasure, but only a lawful judgment, can strip the ealdorman of his office. The ealdorman excludes the king from the immediate government of the shire. The shire government is not royal but ducal.” 3 The ealdorman was the leader of the military force of the shire, and, as such, he is sometimes called in the charters heretoga. He sat in the shire-moot with the sheriff and the bishop, and received a part of the profits of jurisdiction.5 The direct representative of the the sheriff. king in the government of the shire was the scir-man, scirgerefa, or sheriff, who was the administrator of the royal demesne, the judicial president of the shire-moot, and the executor of the law. The most general name for every fiscal, administrative, and executive officer among the English in early times was gerefa, a term which was usually limited by The term a prefix which indicated in each case the scope of the offi- "gerefa.” cer's jurisdiction; as tun-gerefa, wic-gerefa, port-gerefa, and scir-gerefa. The gerefa or reeve always appears, however, in connection with judicial functions, he is always the holder of a court of justice. The scir-gerefa, who, as a judicial 1 Freeman, Norm. Conq., vol. i. p. 52. 2 "The under-kings of Hwiccia thus continued to act as ealdormen under Mercia for a century," etc. Stubbs, 8 Sohm, Altd. R.- u. G. Verf., i. pp. 25, 26; Essays in A. S. Law, p. 21. Cod. Dipl., ii. 383; iii. pp. 5, 49, 159, 259, 260, 262; Freeman, Norm. Cong., vol. i., Appendix K. 5 Stubbs, Const. Hist., vol. i. p. 113. nominee and steward officer, was the executor of the law and president of the shiremoot, may have been originally its elected chief. But in hisSheriff the torical times he is the nominee and steward of the king.1 As a fiscal officer the scir-gerefa was the administrator of the of the king. royal demesne within his shire, and the collector of all fines that accrued to the king; and, like the ealdorman, he participated in the profits of jurisdiction. While the authority of the ealdorman might extend to several shires, the authority of a sheriff was distinctly limited to a single shire. The shire-moot was simply the ancient folk-moot, the assembly of all the freemen resident within the shire; and, like the hundred-moot, it was attended by all lords of lands (called in this aspect scir-thegns),2 by the parish priest, the reeve, and four selectmen from each township, and by the twelve senior The consti- thegns from each hundred. The shire-moot was, therefore, not only a popular but a representative assembly, each township and each hundred within the shire being present in the persons of its representatives. The presiding officer of the shire-moot was the scir-gerefa, and with him sat the ealdorThe bishop man and the bishop; the one to declare the law temporal, the other the law spiritual.5 The shire-moot could declare folkright in every suit; and as no cause could be carried to the shire until it had first been heard in the hundred, so no cause could be carried to the king until it had first been heard in the shire. It must not be supposed, however, that this arrangement embodied a system of appeal in the modern sense of that term. The decision of each court was final. It was tution of the shiremoot. sat in the shire-moot. Ancient system of appeal. 1 The right of election was asserted, 2 Saxons in England, vol. ii. pp. 234, This fact, "left questionable in the Stubbs, Const. Hist., vol. i. p. 115; citing Henry I., vii. §§ 4,7; li. § 2. See, also, Bigelow, Hist. of Procedure, p. 133. 4 Cod. Dipl., iv. 137; Select Charters, PP. 137, 251. 5 By the laws of Eadgar and Cnut be attended as it was before fixed; and thrice in the year let a burg-gemot be held; and twice, a shire-gemot; and let there be present the bishop of the shire and the ealdorman, and there both expound as well the law of God as the secular law." Eadg., ii. 5; Cnut, ii. 18. "It may, then, be concluded that the presence of the sheriff was necessary in any case, while that of the ealdorman might be dispensed with."-Saxons in England, vol. ii. p. 159; Hallam, Middle Ages, vol. ii. p. 283. "And let no one apply to the king in any suit unless he at home may not be worthy of law, or cannot obtain law."- Eadg. ii. 2; Cnut, ii. 17, 19; Hallam, M. A., vol. ii. p. 269. only in the event that a court failed to decide within the prescribed time that the cause could be taken to a higher tribunal.1 court of justice in both civil and crimi nal causes. In the last resort, the witenagemot acted as a supreme witan a court of justice both in civil and criminal causes.2 Numer-supreme ous illustrations of the exercise of civil jurisdiction upon the part of the witan can be found in the charters contained in the Codex Diplomaticus, in which the proceedings in many important trials are set forth in great detail. From the same kind of evidence it is equally certain that the witan often. adjudged lands of offenders, intestates, and suicides to be forfeit to the king. The criminal jurisdiction of the witan extended to all such grave public offences as were originally punishable in the national assembly of the primitive Teutonic state. This jurisdiction in the time of Eadward the Confessor was substantially what it had been in the days of Tacitus. By a decree of the Northumbrian witan, Wilfred was condemned to imprisonment and exile; 6 by decrees of the witan of the consolidated kingdom Ælfric, Æthelweard, Ælfgar, and Godwine were outlawed. Although in theory the jurisdiction of the king and the witan might be said to extend over all persons and over all causes, yet in practice the tendency was to discourage its exercise, in order to confine litigation as strictly as possible to the local tribunals.8 6. As the judicial powers of the witan were exercised only at long intervals and upon extraordinary occasions, and as the 1 Essays in A. S. Law, pp. 25, 26; Stubbs, Const. Hist., vol. i. p. 115, note 3. 2 "Lastly, the witan acted as a su preme court of justice, both in civil and criminal causes." Saxons in England, vol. ii. p. 229. 8 As illustrations see Cod. Dipl., Nos. 143, 156, 164, 220, 245, 1034, 1258. "The witan possessed the power of adjudging the lands of offenders and intestates to be forfeit to the king." Saxons in England, vol. ii. p. 228. See Cod. Dipl., Nos. 1112, 1295, 374, 1035. Kemble also refers to a case of forfeit ure for suicide, contained in a charter in the archives of Westminster Abbey, and bearing date in the time of Ead- 5 Stubbs, Const. Hist., vol. i. p 6 Eddius, V. Wilfr. 7 Cod. Dipl., No. 1312; E. Chron., 1020, 1051, 1055; Saxons in England, vol. ii. pp. 230-232. 8 "Instead of enlarging their own powers by encouraging suitors to seek justice directly from the crown, the king and the witan frowned upon every symptom of popular discontent with the clumsy justice of popular tribunals, and forced suitors back upon the local courts."-Essays in A. S. Law, p. 25. As to the judicial powers of the witan in the Norman period, see Bigelow's Hist. of Procedure, pp. 20-25. |