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CHAPTER XXII.

OF THE JURISDICTION OF COURTS LEET.

SECTION I.

Origin and Nature of the Court Leet. Tue Leet, which is a court of record (a), is described as one of the most ancient tribunals noticed by our common law (b), and is accounted the King's Court; for although this franchise is frequently held by the lord of a hundred or manor under a grant from the crown, , or by prescription which presupposes such grant (c), yet the lord is intitled only to the profits of the court (d), and (in legal phraseology) the day is to the king (e).

The court leet is by some writers said to be derived out of the sheriff's tourn (f); but the observation may, the author thinks, be considered as a mere obiter dictum, as far, at least, as it may tend to impugn the opinion of many of our ancient law authorities, that the jurisdiction and privileges of the leet were purchased of the crown by thanes or barons and others of large territorial possessions, in order that the people might have justice rendered to them nearer to their own homes; and whereby the author conceives the power of the sheriff in his tourn was superseded, or at least suspended to the extent of the local confines of each particular grant.

The close resemblance which the leet jurisdiction bears to the Anglo-Saxon institutions, beginning with Ethelbert in 561 (g), would

(a) Br. tit. Leet and Tourn, pl. 39; F. (d) 41 Ed. 3, 26; Br. Leet; 4 Kitch. N. B. 82; 2 Inst. 143; 4 Inst. 263; 82. The lord of a leet cannot claim the Kitch. 82; Hetl. 62; 4 Bl. Com. 272. wastes by prescription, which may belong

(6) 7 Hen. 6, 12; 2 Inst. 70; 3 Burr. to one who has a manor without a leet. 1860. And it is said to have been or- See 9 Hen. 6, 44, cited Br. Leet, 2. dained by King Alfred, Mirr. c. 1, s. 3; (e) 41 Ed. 3, 26; 44 Ed. 3, 19; Br. Bullen v. Godfrey, 1 Roll. Rep. 73. Judge Leet, pl. 4, 5; Kitch. 82; 2 Inst. 140; Jenkins, in his Pacis Consultum, written Co. Litt. 117 b. during the Commonwealth, states (p. 1), ) 4 Inst. 261 ; Cromp. 230 b; Shepp. that the court leet was established long Court Keeper's Guide, 4. before the Conquest. And see Rits. on (8) The author submits that the remeCourts Leet, 34.

dial, if not the alleged legislative character (c) 2 Inst. 72; Finch's Law, 246; F. of the ancient court leet may be traced N. B. 160, 161, and the notes; Co. Cop. even to the continental Saxon institutions. 8. 31, T. 51.

The gaugrave held his gauding or moot seem fully to justify the opinion formed of its great antiquity; but the author does not find that the term leet is mentioned in any historical work illustrative of the Anglo-Saxon jurisprudence.

The generic character of the leet jurisdiction may perhaps be best illustrated by a reference to the territorial divisions, and to the several independent communities established by the Anglo-Saxon kings, and by a brief sketch of the different ranks of people, and the mode of administering justice at that period of our history.

It is supposed that the Anglo-Saxon monarchs divided their territories into shires or counties, and townships, in imitation of their continental subdivisions called by the Romans pagi et vici, as such divisions are frequently mentioned by historians before the end of the heptarchy (h); and it seems equally probable that King Alfred, who has the credit of that great and judicial polity, was not in fact the first to introduce the division of the kingdom into counties; but our historians certainly appear to be agreed that he made a new and more regular division of it, different from that which subsisted under the heptarchy, and probably introduced the subdivisions of shires or counties into trithings, or laths, or rapes (i); and without doubt he has the merit of the still further subdivision of trithings into hundreds, and of each hundred into decenaries, tithings or districts, consisting of about ten families (k).

The lowest orders of the people among the Anglo-Saxons were complete slaves either by birth, or by forfeiture of their freedom by crimes or breach of faith, and were incapable of any office of trust or honour ; but the introduction of Christianity led to frequent manumissions, and established another class of people called frilazin, and

every six weeks, and all the tenants within where (as is observed by Mr. Justice the gau owed suit and service to this court; Blackstone in his Commentaries), by an and presentments were there made by the easy corruption they are denominated burmeysters or bailiffs, similar to those of ridings; the second (i. e. lathes), in the the court leet, of all who neglected to ap- county of Kent; and the latter (i. e. rapes) pear at the court, and of bloodshed, as- in the county of Sussex. saults, and all other crimes punishable by (k) The subdivision of the kingdom by loss of life or limb. Vide Speculum Sar- our Anglo-Saxon ancestors, and the geneonicum; and also an interesting and eru- ral character of English jurisprudence at dite article in the Edinburgh Review of that period, bear a strong affinity to the February, 1822, No. 72, p. 287 et seq. polity and integral communities of the

(h) See vol. 3 of Henry's History of Scandinavian nations. The hærad apGreat Britain, p. 311 ; Hallam’s Europe, pears to have been the primary division

of their land, analogous to the Anglo-Saxon (i) Ib. 317; Spelm. Vita Ælfrida, p. hundred; and this district was usually 74; St. Amand, Hist. Essay, p. 68. These subdivided into quarters, and occasionally intermediate divisions between shires and into tithings. See Edinburgh Review of hundreds still subsist in England, the first February, 1822, p. 293; Hallam, pp. 406, (i. e. trithings) in the county of York, 407.

p. 390.

persons so made free were considered to be in a middle state only, between slaves and freemen.

Those who were freemen from their birth were called ceorls, and constituted a middle class between the nobility, and such labourers and mechanics as were slaves or descended from slaves; and being generally devoted to agriculture, a ceorl was the usual name for a husbandman or farmer (1); but the acquisition of five or more hydes of land, the attainment of priest's orders, or making three voyages beyond sea in his own ship and with his own cargo (m), advanced a ceorl to the dignity of a thane; and his degree of nobility was considered to be higher than the next description of thane noticed.

A ceorl who had a propensity to arms often became the attendant of some warlike earl, and was called his huscarle ; and by obtaining a reward from his patron in land or warlike habiliments was likewise considered as a thane, and this was the lowest degree of nobility. The higher class of thanes were denominated kings' thanes, and appear to have been of three different degrees (n).

The thanes were the only nobility among the Anglo-Saxons; but the princes or members of the royal families were of a still superior rank.

With respect to the Anglo-Saxon jurisprudence, it should be premised that the kings were considered as the chief judges in their respective territories, and frequently administered justice in person. Alfred the Great, we are told, sometimes employed both day and night in hearing causes on appeal, with the aid of learned men acting as assessors, and forming a supreme court of justice. But after the establishment of monarchy, it was found to be necessary to appoint a chief justiciary to preside in the king's court in his absence; and the first institution of that office is supposed to have been at the time of the incursion of the Danes.

The supreme tribunal of our Anglo-Saxon ancestors was the WitTENA-GEMOT (o); which was not only a court of civil and criminal jurisdiction, but all the affairs of state, political and ecclesiastical, were there debated and regulated (p).

The ordinary assembly of the members of this court appears to have been at the festivals of Easter, Whitsuntide and Christmas, it

(1) Hallam, pp. 383, 384.

Eliens. c. 10; Henry's History of Great (m) Henry's History of Great Britain, Britain, vol. 3, p. 372; Turn. Hist. of the vol. 3, p. 325 ; St. Amand, p. 73. Anglo-Saxons, pp. 220, 261; Hallam, p. (n) Hallam, p. 413.

388. (0) Wittena-gemot, or assembly of wise (p) Henry's History of Great Britain, men ; Wilk. L. Sax. pp. 14, 72, 76—79, vol. 3, p. 369. 102, &c.; Spelm. Gloss. in voc. Hist.

being the prerogative of the king to appoint the time and place of their meetings; but on very solemn and important occasions all the constituent members were summoned, who being numerous, and the persons interested in their debates being still more so, the wittenagemot was frequently held in the open air on some extensive plain(q), and on the banks of a river near a large town for the benefit of water and provisions (r); and often under a large tree for the convenience of shade and shelter (s).

The next court in point of importance of Anglo-Saxon institution was the SHIRE-GEMOT, which was for the trial of both criminal and civil causes; and here transmissions of real property were recorded, and ecclesiastical affairs transacted (t). The Shire-gemot was held in each county twice in every year, viz. in the spring and autumn; and was attended by the bishop and clergy of the diocese, the alderman (u) of the shire, the shiregerieve (x), law-men, magistrates and thanes (y).

(9) i Tyrr. Hist. Engl. Introd. civ. affinity to the Anglo-Saxon shire-govescv.; Camd. Brit. Isle of Man; Spelm. ment in the constitution of the Norman Gloss. voc. Mallobergium; Eadmer. 9, Isles. See the excellent article in the and Seld. Spicileg. 197 ; Lamb. Preamb. Edinburgh Review of February, 1822, alKent, pp. 441, 443, tit. Eareth. Mr. ready referred to. Vide also Hallam, p. Watkins, in his 2nd vol. on Copyholds, 589, (citing Gardon on Court Baron). p. 10, notices that the Welch and Irish, (u) The earldorman (or alderman), or and other ancient nations held also their as he was called in the Danish times, the courts of justice in the open air, and gene

earl of a shire or county, was a person of rally on the slope of a hill; and adds, the highest dignity and greatest power “ Indeed, so prevalent was this custom among the Anglo-Saxons, and this magisamong the Britons, that the top of a hill terial office was generally enjoyed by the or eminence became at length significative thanes of the largest estates and most of a court of justice; and the names of ancient families. Henry's Hist. of Great several persons who had jurisdiction Britain, vol. 3, p. 342. were allusive to it;" (cites Owen's Welch (x) The shiregerieve was an officer apDict. voc. Bre, Brezyn, Breyr, Crug, &c). pointed in every shire inferior in dignity “ And vestiges of this custom remain to the alderman, and who acted as his asamong us to this day in the Moot or sessor and chief minister when present, Mute, or Parling Hills, still known in and supplied his place when absent. Henvarious parts of this and the neighbouring ry’s Hist. of Great Britain, vol. 3, p. 344. islands ;" (cites Spelm. Gloss v. Mallo- (y) It seems to have been the royal bergium, and Whit. Manch. b. 1, c. 8). prerogative both before and after the es

(r) 3 Henry's Hist. of Great Britain, tablishment of monarchy to appoint the p. 373. For the names of the places where aldermen, shiregerieves, domesmen, and the Wittena-gemots met, see Hody's Hist. other civil and military officers, but this of Convocations referred to, ib.

power was at length vested in the wit(s) Edda. Fab. viii. North. Antiq. vol. tena-gemot. Henry's History of Great 2, p. 53 n. (A.); 1 Tyrr. Hist. Engl. 160; Britain, vol. 3, p. 361; or in the shireTransl. Mall. vol. 2, p. 56. And see 2 gemot, see ib., p. 343. It has been doubted Watk. on Cop. pp. 9–16; Kennet's whether in the earlier Saxon times the Paroc. Antiq. Glos. v. Franciplegium. alderman was appointed by the king. See

(t) Vide Turner's Hist. of Anglo-Sax., Norton's Historical Account of London, pp. 192, 261. The is a remarkable

pp. 327, 328.

The court, after a discourse from the bishop on their relative duties as Christians, and from the alderman or one of his assessors on the laws of the land and the duties of good subjects and citizens, proceeded to try, first, the causes of the church, next the pleas of the crown, and lastly the controversies of private parties (2). The decision on evidence of facts appears to have been by the votes of the whole assembly collected by the law-men, who, when any question of law arose, answered it by the dome-boc or law-book (a).

The shire-gemot often continued for several days without finishing the whole of its business ; so that another court called a county court was directed to be held by the shiregerieve, from four weeks to four weeks, to determine the causes left undecided at the shire-gemot (b).

It was originally the province of this subordinate or county court to hold also an inquest or view of frank-pledge (c), to see that every person above twelve years of age was in some tything or decennary, and had taken the oath of allegiance, and found security to the king for his good demeanor.

Dr. Sullivan in his Lectures on the Laws of England (d) observes, that “ since the time of King Edgar, at least, this court has been divided into two; the criminal matters, both ecclesiastical and civil, and also the view of frank-pledge, were dispatched in one court called the tourn, that is, the circuit, from the bishop and sheriff's going circuit through the country; and the civil business was dispatched in another, called the county court. The law was, that the sheriff and bishop should twice in the year (e) go their circuit or tourn, namely, in the month following Easter, and the month following Michaelmas, and

p. 348.

(3) 3 Henry's History of Great Britain, and sometimes from three; 3 Gale, 469,

473, cited Turn. Hist. of the Anglo(a) It appears that independent of the Saxons, 262; who also notices that by the wittena-gemot and shire-gemot courts, a laws of Canute it was ordered that there special general placitum or plea of land should be two shiregemots and three was frequently held in different parts of burgh-gemots every year, and that the England, as might best suit the parties in bishop and earldorman should attend then, the cause.

Turner in his History of the for which is cited Wilk. p. 136. Anglo-Saxons (pp. 193, &c. 264), has se- (6) These subordinate county courts lected several cases of the kind from an- appear sometimes to have been called cient documents; one in which a general folckmotes; and the shiregerieve,'the lawplacitum was held first at London, and in men and the parties and their witnesses in a few days after at Northampton, and the causes to be tried were alone obliged subsequently, on the death of one of the to attend them. See further as to folckparties, at Walmesford, in eight hundreds; motes, post, p. 675. and another in which a “great placitum of (c) See further as to this subject, post, the citizens and hundreds " was held at p. 682 et seq.; Hallam, 407. Cambridge.

(d) P. 269. A great gemot or general placitum was (e) See Powell on Courts Leet, p. 13. sometimes convened from eight hundreds, VOL. II.

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