County Court-Burg Mote-Hundred Mote.

58

[*59]

tinctly appear (e). The Ealdorman (f), or lieutenant of *the county (g), or, as he is latterly called, the Eorl (h) or Count, who had supreme military as well as civil authority, sometimes extending over more than one county, together with the bishop or some other ecclesiastical dignitary, presided (i). A court was also held in each hundred once in every month, at which the same (k) or corresponding civil (1) and ecclesiastical (m) dignitaries presided. The hundred court, whatever may have been the purpose of its original institution, was resorted to in civil (n) as well as criminal cases. In thus uniting judicial and military functions in one person, the Anglo-Saxons continued their ancient practice (o), which, indeed, down to the time of Constantine (p), had prevailed with the Romans during the republic and the empire. There is, however, such frequent mention of Duces as distinct from the Eorls or Ealdormen, (though the expression Dux was sometimes synonymous with eorl or ealdorman (q),) that it is probable there were frequently naval and military chiefs distinct from the ordinary lieutenants of the counties. The judicial presidency of the Eorl or Ealdorman produced to him considerable profits, as he shared the fines and fees that were payable in respect of civil and criminal proceedings (r).

The appointment of an ecclesiastic to preside with the civil governor was a matter of necessity with the Anglo-Saxons, where science and literature was confined to that body; the jurisdiction which all these

(e) It is mentioned as to Taunton, that the bishop as lord held the_burgmote “sine ammonitione," Gale, 764. Domesday. "If any one (when summoned) fail to attend the gemote," Ethelst. § 20; Anc. L. 209.

Se

(f) The title of ealdorman does not appear to have designated any particular office; it was applied to all persons in authority, whether governors or presidents of counties or towns, or bailiffs of vills. nior and junior were common forms of expression here and on the Continent, Leg. Alam. tit. 79. l. 5. 6; Palgrave Rise, &c. ii. ecexc. the former is now represented by Seigneur, Sir, &c. They were both apparently of Jewish original, and of ecclesiastical introduction, πpesßʊtepa, 1 Peter, v. 1. TEP, ib. v. 5; Canon. Eadg. § 2; Wilk. p.

cularity by Sir F. Palgrave, p. 98, et seq. and 117, et seq.; and to that work and Heywood on Ranks, p. 145, I would refer those who may desire further details; there is a full account of the proceedings at a county court, temp. Cnut. Hickes, Dissert. p. 3.

(k) Edward, the Elder, § 11. Anc. L. 165; Edgar. Anc. L. ii. 506; Hen. I. c. 7. § 4. p. 514, notes p. 613, many towns were hundreds of themselves.

(1) "Hundrodes ealdre," Edg. Wilk. p. 81; Edw. § 11. Anc. L. p. 165; Hen. I. Wilk. 280, "Aldemannus Hundredi ;" more commonly he is styled "Gerefa;" et v. Palg. Rise, &c. p. 98.

(m) Leg. Æthelst. Bromt. p. 847, four Abbots.

(n) "Et Hoc noverat totum hundretum." Hist. Eliens. c. ix. p. 468, &c.

(0) Tac. de Mor. Ammian frequently applies the term "Judices" to the German chiefs, int. al. lib. xvii. c. 13. p. 139; Ed. Gronov. and the note to Vell. Paterculus, ii. c. 118.

(p) From his time the Præses had judicial authority only, Inquiry, 67-8, with some exceptions, which M. Savigny has noticed.

(q) In Sax. Chron. Ing. 233, they are called "eorls." Eorl had become a title of nobility at this time," Godwine Eorl," same page.

(r) Palg. Rise, &c. p. 594. This was continued after the Conquest, ib. 595.

*60 Presidents of ordinary Courts—King's Gerefa—Sheriff-Dom boc.

*courts appear to have entertained, of deciding on questions of eccle siastical cognizance, was an additional reason for this practice. There was no such necessity under the Roman empire; as there were jurisconsults regularly educated in the study of the law; accordingly bishops had no judicial authority in the Roman empire as to civil rights, though they might act as arbitrators (s).

An officer appointed by the king, called the king's gerefa, who was independent of the eorl (t), (whose office seems at first to have been confined to matters of police, as to which he had, it seems, a particular jurisdiction (u),) also attended at these courts; his principal duty was to collect the fines, fees, and forfeitures due to the king (x). It is probable that the gerefa often had to act as the deputy of the eorl; ultimately a shyre gerefa or reve was appointed for that purpose (y). After the Conquest the shyre reve almost always officiated in lieu of the eorl or count (z).

These gemotes or assemblies were the ordinary courts for transacting all judicial business, so far as the laity were concerned, both civil and criminal; some matters of ecclesiastical cognizance were also, as before mentioned, disposed of at these several courts (a).

Extraordinary assemblies were convened when occasion required; sometimes the thanes of two or more hundreds were assembled for judicial purposes (b). Sometimes, on application to the king, precepts or writs were sent by him to the president of the county or other court, in reference to particular cases requiring that justice should be done (c). At the period of the Conquest, probably before, precepts were frequently issued appointing some particular person to act as the president or judge for the occasion (d); it had been a common *practice with Charlemagne and his successors to issue such pre[*61] cepts (e). The bishop, and the eorl, the gerefa, or other lay president of these assemblies, were required to have with them the Dom boc (f) or code of written laws, secular and ecclesiastical (g), and from it

(s) Cod. J. i. 4. 7 and 8. Howel Dda, or the good, like the Roman emperors, excluded his bishops from acting as judges, (viz. pronouncing judgment,) though in some cases, by privilege of their land, they might sit with the judges at the trial, Anc. W. L. i. 479.

(t) See Third Report of Lords' Committee on the Dignity of a Peer, p. 61; Turner, iv. p. 291.

(u) See Wilk. p. 149; Hickes, Dissert. p. 60, exercised probably at the folcmote; Anc. Laws, i. p. 614, 615, notes on laws of Hen. I. (x) The bishop had this duty to perform in some cases, Edg. Anc. L. 267.

(y) According to the Saxon Chronicle, A. D. 694, there were then "shire reves," but that passage is supposed to be an interpolation; they are also mentioned in Edgar's Charter, ib. A. D.963, which is also doubted. Gerefa was the name still given to collectors of revenue after the Conquest, Ing. Sax. C. p. 292. Will. I.

(z) Glanville, passim. There was at the

Conquest a tradition that the gerefas had originally been elective, Anc. L. ii. p. 321; and see Blackstone, Comm. i. 409; and Lord Coke, 2 Inst. 558, 9. They were chosen by the people, temp. Car. Mag. in France, Savigny, i. 185.

(a) The language of the Edict of William the First, (issued communi consilio, &c.) by which he separated ecclesiastical from civil proceedings, Spelman, Reliq. 13. 53. 54; 1 Burn. Eccles. L. p. 33, would alone establish this; the subject will again be adverted to under the title Ecclesiastical Synods.

(b) Hist. Eliens, c. xi. p. 469; c. xiv. 473; c. xxvii. p. 475.

(c) Hickes, Dissert. p. 5, 6. (d) V. int. al. Heming, p. 80, 81; Thorpe, Reg. Roffens, 31, et v. inf.

(e) Savigny, tom. i. p. 161, et seq. (f) Corresponding with the "liber legis," Leg. Bavar. ii. 15. 2.

(g) Edw. Procem. Anc. L. 159, 160. 165. Æthelst. ib. 203; Hickes, Dissert. p. 60. So

Thanes, the Judges of Law and Fact-Execution-Corrupt Judgment. 61

to state and expound any law it might contain applicable to the case (h). From the accounts we have of the proceedings at these courts, this duty, as might be expected, was frequently exercised by the bishop (i). If the codes which have been handed down to us are complete, the presidents, assisted by the other members of the courts, would have much. to supply, particularly as regards the numerous customs that prevailed in different parts of the country, as to which the laws are for the most part silent.

The assembled thanes, as was originally the custom in the Francic. empire (k), or in some cases a certain number of them, selected by the president, either officially or at the desire and by consent of the parties, acted as the judges in each case (l): both the law and the facts were submitted to their determination; they decided on the whole right " plenam rectitudinem" (m). If the thanes disagreed, that doom was to stand, in criminal cases at least, in which eight agreed; those who were outvoted were fined (n), which may account for its having become a maxim that juries shall be unanimous. The eorl, the bishop, or the gerefa both in civil and criminal cases, enforced the execution of the judgment, but they had no control over the judgment itself (o). A term was to be fixed within which the judgment should be complied with (p).

The thane who was convicted of having given a wrong judgment corruptly, forfeited his thaneship, and the amount of his were, or legal *value: error might excuse him (q). It was the same in the [*62] Francic empire (r). This proceeding obtained the name of attaint. In the time of Will. I., the members of the county court were attainted, for a corrupt judgment given for Pickot the sheriff, against Gundulph, Bishop of Rochester. The persons who had given the judgment were convicted; the judgment was reversed, and the bishop obtained the land in dispute (s). To this we may trace the attaint of the recognitors in an assize (t.) Whether there was a right of appeal from the court of the hundred or the burgmote court is a matter of doubt;

the count of the Francs was to expound the law, Capit. A. D. 803, § 15; Baluze, i. p. 400; Savigny, tom. i. 160. 174. There is no trace of Alfred's supposititious Dom boc, mentioned by Sir W. Blackstone and others whom he has followed.

(h) Edg. § 5 Anc. L. 269, repeated Cnut. § 18, p. 387; Cnut. § 38; Anc. L. p. 399.

(i) Int. al. Hickes, Dissert. p. 3, &c. "It is fitting that every legal right (both burh riht and land riht) go by his [the bishop's] counsel, and with his witness," Inst. of Polity. Anc. L. ii. 313.

(k) Savigny, tom. i. 131. 140.

(1) See Turner, iv. p. 327; trial before 24, Hist. Eliens. c. xxxiv. p. 478; and see Heywood, 200, 201, the notes. The permanent selected judges of the Francs, Scabini, Sal. 56, 2; Rip. tit. 32; Baluze, Capit. 809, § 8, tom. i. 467, exercised similar functions in the time of Charlemagne; see Savigny, tom. i. p. 132. 148. p. 174; though all the members of the mallus or county court at times acted as judges, Savigny, tom. i. 132. 165.

(m) See Heming, p. 81; Palgr. Rise, &c. p. 117.

(n) Ethelr. § 13; Anc. L. i. 299.

(0) So amongst the Francs, Savigny, tom. i. 174. It would appear from Asser's life of Alfred, that in his days the duties of the eorls and other presidents were not so confined, and that the king exercised a controlling power over the decisions of the provincial courts; in Alfred's time, owing to the devastations of the Danes, ignorance pervaded the whole body of the people, lay and ecclesiastical.

(p) Edg. Anc. L. i. p. 261.

(9) Edg. Pol. § 3, Anc. L. 267, repeated by Cnut. § 15, p. 385; and as to forfeiture of were by Will. I. § 15.

(r) Savigny, tom. i. p. 174; et v. Leg. Bavar. tit. ii. c. 18, 19; Allen, xxx. xxxi.

(s) Regist. Roffens, p. 31, 32. This was no doubt according to Anglo-Saxon prece

dent.

(1) Glanville, ii. c. 19; Fortescue de Laud.

c. 26.

62 Attaint-Form of Procedure-Oath of Co-jurors-Grand Juries.

there are, however, indications that the decisions of one court were in fact reviewed at another (u). In one instance, namely, in questions as to distress, the right of appeal from the hundred to the county court is recognized in the codes (x).

No writ or precept from the king was required to give the court jurisdiction. The party commenced his suit as and when he pleased; he himself, without the interference of any magistrate, summoned his adversary to appear and answer the claim to be advanced against him (y). He stated his ground of complaint in his own way, without being tied to forms (2). Where the mode of proof was not provided for by law (a), and the truth was unknown to the assembled judges, or incapable of direct proof (b), the parties were put to their oaths, and the corroborating oaths to their credit of co-jurors. The value of the oath of the co-juror was estimated by his rank (c). This mode of deciding controversies, if not introduced by the clergy, would naturally be supported by their powerful influence, as they would recognize in it considerable resemblance to the mode of terminating controversies by the decisory oath; indeed, oaths were much resorted to by the Romans in civil proceedings (d). We have very satisfactory testimony from Norman [*63] authority that the system of procedure in civil cases as above described prevailed down to the Conquest, and for some time afterwards (e).

A custom peculiar to criminal proceedings was introduced or established in the reign of Ethelred II., to which probably the institution of GRAND JURIES is to be referred; it was this:-It was ordained that in each assembly of the hundred or wapentake, the gerefa should go apart with twelve of the thanes of the highest rank, "yldistan," and present,

(u) Hoc idem iterum alia vice statutum erat apud Grante bricge, Hist. Eliens. c. xliv. p. 484.

(x) Cnut. § 19, Anc. L. 387.

(y) V. Palg. Rise, &c. 181; Hist. Eliens. p. 478; but the king might possibly be applied to to compel appearance in this as in other courts, when a party was contuma

cious.

(z) V. Hickes, Dissert. 2. 8. 48; Allen, p. 97; Reeves, Hist. C. L. i. p 13; Palg. 181. These courts were continued without any perceptible alteration at the Conquest, so that the assertion to be met with in the works of many of our most celebrated writers, legal and constitutional; Sir M. Hale, Jurisdiction of Parliament; Mad. Hist. Excheq. i. p. 86, 7; and Bracton, 107, 8, &c., that all jurisdiction is derived originally from the king is not historically correct as regards the county and hundred courts, though strictly correct as regards the king's court, which, as after mentioned, absorbed almost every matter of judicial cognizance.

(a) V. sup. p. 20.

(b) Circumstantial evidence was never resorted to, Palg. Rise, &c. p. 12, 13; Leg. Eadg. Wilk. p. 80. ad. ped. pag. et v. Leg. Bavar. i. 16. 2.

(c) See Hist. Eliens. c. xxxv. p. 479;

Turner, Anglo-Saxon Laws, 243. 325. 337;
Leg. Eadw. Wilk. p. 48; Auc. L. i. 159;
Palg. Rise, &c. 12, 13.

(d) Maximum remedium expediendarum litium in usum venit jusjurandi religio, qua ex pactione ipsorum litigatorum, vel ex auctoritate judicis deciduntur controversiæ, Gaius, Dig. xii. 2. 1; et v. ib. xii. 2. 38; Cod. Just. iv. tit. 1. Putting the parties to their oaths was resorted to in all actions bonæ fidei, as on loans, and the like, in the absence of direct proof, ib. 1. 3. Imp. Dioclet. and, in all cases relating to fidei commissa or trusts, ib. 1. 5. 1. 13. The decisory oath is still to be found in the Code Napoleon, § 1358, et seq.

(e) See an account of a trial before the county court of Kent, a. n. 1176, Hen. II., Thorn, p. 1827; three trials, temp. Will. I., Heming, p. 80, 81: Thorpe, Reg. Roff. 27, 28; ib. p. 31, 32, temp. Hen. I.; and Palgr. 183. clxxviii. clxxx. In all these cases, however, the matter was sent to the county court, or to a court consisting of the freeholders of a certain number of hundreds, by the king's writ, and some one was specially appointed to preside. The continuance of the practice of the same persons acting as jurors and judges, is also obseryable, in Ailwyn's Assize, Palg. p. clxxiv.

Manor Courts—Origin of peculiar Jurisdiction of Lords of Manors. 63

on oath, all such persons as they should find to have committed any crime, and each person whom the jury of twelve presented, was bound to clear himself by ordeal (f).

Besides the courts of ordinary jurisdiction above described, in the time of Edward the Confessor, the bishops, abbots, eorls, and king's thanes, were possessed of estates then well known by the name of manors, in which they, by their bailiffs, exercised a jurisdiction similar to that at the county and hundred courts. The judges were the free tenants of lands within the manor, and those who held lands of the manor, or who, as vassals of the lord, were bound to attend his court. Innumerable instances of persons enjoying these manor courts, with civil and criminal jurisdiction, under the name of sac and soc, and infangthef and ulfangthef, and other expressions, are to be met with in Domesday, and other documents (g) of the Anglo-Saxon times, and in early Norman documents (h).

The jurisdiction of these courts was not confined to the lands actually held of the lord, or even those held of the manor. In some instances, bishops and other dignitaries appear to have had the sac and *soc [*64] of lands in respect of which they had no other right, or title (i). Those who were only vassals by commendation, and therefore could choose whom they would for their lord, sometimes by royal grant had the sac and soc of their own lands (k).

It is not easy to trace the formation of these peculiar jurisdictions (l). In the early grants to the Church and to king's thanes the lands granted are generally exempted from all secular services (m), excepting the trinoda necessitas; and there is usually a denunciation against all kings, bishops, duces, comites, or vice-comites, who should attempt in any way to impair the privileges conferred (n), but there is no specific notice of

(f) Leg. Ethelred. Wilkins, p. 114; Anc. L. 295. Matthew Paris, A. D. 1164, p. 84, notices this ancient custom having been then (at the council or parliament of Clarendon) certified and recorded, et v. Bracton, 143 a.

(g) In Hist. Rames. c. vii. there is the form of a grant of these liberties.

(h) Anglo-Saxons-v. int. alia, the extracts from Domesday as to the possessions of the church of Worcester, Heming, 72. 80, 81. Si Tainus habens socam et sacam," &c. Domesday, Nottingham, Gale, p. 774; Domesd. Yorkshire, p. 298 b, and the authorities in the subsequent notes.-Anglo-Normans, int. al. grant by Rich I. to the Bishop of Durham of the manor of Cadberge, &c. "cum socco et saca," &c. Hoveden, p. 658, similar grant, ib. p. 667.

Domesday, Heming, 500. et v. ib. 140. 310, 311; Heywood on Ranks, 148. 209, and the references.

(k) Domesday, Worcestersh. Gale, 767. (1) Fulbeck, Dial. iv. p. 18 a, has given an account of the origin of manors, which has been generally adopted, but it is not founded on any authorities.

(m) Sup. p. 27 and 43. See the charters from A. D. 675 downwards; Malmesbury de Gest. Pontif. Gale, 343, et seq.; Kemble, i. 35, ▲. n. 691; ib. i. 142, a. d. 799; Egbert, A. D. 828; ib. i. 287, "cum furis comprehensione intus et foris" (infangthef et utfangthef). Grants in similar terms were made to king's vassals, Bertwlf R. Merc. Heming. p. 9; Edgar, p. 372, ▲. D. 867.

(n) Heming, 97. 320; Offa, A. D. 780. "Soluta ab omni vi regum et principum et (i) "De ipso manerio tenet Ordric iii. subditorum ipsorum," &c. Heming, p. 115; hidas, &c. Hæc terra fuit et est de domi- Offa, et Adredus subregulus Huicc. ib. nio manerii capitalis," Domesday. Terra 223, A. D. 845. Bertwif R. Merc. "nec ecclesiæ de Wirecestre, Heming, p. 496. Princeps nec graphio," &c; Ecgberth, a. D. Hæc hida temp. Reg. Edw. reddebat in pre- 835; Kemble, i. 312. The right to take dicto manerio sacam et socam et omne re- some particular fines and forfeitures are ingis servitium, ibid. Heming, 499. De cluded in this grant, and in another, ib. p. eodem manerio tenet Hugo Grentesmainil 287, A. n. 828. The emperors held jurisdimid hydam ad Lappeworth et Baldwinus diction by an officer of the palace (Comes de eo; et fuit et est, de soca Episcopi, Domorum) over all the cultivators of the