General history: Ancient jurisdiction

ANCIENT JURISDICTION

THOUGH the Saxons had divided England into seven different kingdoms, yet they were all one, in effect, as to their manners, laws, and language, infomuch that the breaking of their government into many kingdoms, or the reuniting of these again into a monarchy, wrought little or no change among them, as to the laws by which they were governed; for though we read of the West Saxon law, the Mercian law, and the Dane law, subsisting, as many contend, in the several parts of Britain at the same time, yet they all held a uniformity of substance, differing rather in the quality of fines and amerciaments than in the course and frame of justice Therefore, when all these kingdoms grew into one monarchy, as under Egbert, Alfred, and his sucessors, it bred no innovation in any of them; the king had no new laws to impose on his new subjects, nor were they unacquainted with his form of government, having always lived according to it; so that when king Edward the Confessor took away the small differences that were between these laws, he did it, even in those fickle and inconstant times, without any tumult, making his alteration, rather by giving a new name to his code than furnishing it with new matter, for abolishing all former names, he ordered it to be called, The Common Law of England; by which from thenceforth the whole kingdom should be governed. (fn. 1)

The temporal government was divided into principalities, or dukedoms, which contained in them divers counties; the county into divers laths, or trithings, every lath, or trithing, into divers hundreds, or wapentakes, every hundred into divers towns, or lordships, shortly after called baronies, and the government of all, these was committed to their several heads, viz. towns, or manors, to the lord thereof, whom the Saxons called theings, or thanes, afterwards barons, hundreds to the Lords of the Hundreds, trithings, or laths, to their trithingreves, counties to their Earls, or Aldermen, and the larger principalities to their Dukes; or chief princes. All of whom had subordinate authority, one under the other, and within the precinct of their own territories, administered justice to their subjects and dependants. For in the Saxon times there were, strictly speaking, only these degrees among the laity; viz. the earl and the husbandman, the thane of the greater sort, called the king's thane, and the thane of the lesser sort, called the theoden, or under thane, as for the bondmen, they were not accounted members of the commonwealth, but parcels of their master's goods and substance. As to lands, there were only two sorts of it among the Saxons; Bockland, which was free and hereditary, and passed by deed with livery and seiziri, which was made and given by taking of a turf from the land, and delivering it with the deed; or passed by will, unless the first purchaser had prohibited it. This sort of land was possessed by the Thanes, or nobler sort. It is the same as allodium in Domesday, and was descendable to all the sons.—Folkland was terra vulgi, land of the folk, or common people, who had no estate therein, but held the same, according to agreement, at the will only of the lord, or thane; therefore it was not put in writing, but accounted prædium rusticum et ignobile. (fn. 2)

The Thane, or Lord, of the town (whom the Normans afterwards called a Baron) had, of old, jurisdiction over them of his own town (being, as it were, his colony) and, as Cornelius Tacitus saith, Agricolis suis jus dicebat; for those, whom we now call tenants, were, in those antient times, but husbandmen dwelling upon the soil of the lord, and manuring the same, on such conditions as the lord assigned; or else such as were his followers in the wars, and had portions of land given to them in respect of that service, which portion was thereupon called a knight's fee, from him, who being a servant in the war, whom the Saxons called a knight, had it allotted to him, as the fee and wages of his service. These fees at first were but at the lord's pleasure, or for a limited time, and, therefore, both military and husbandmen were in that situation, as to the lands they occupied, at the will of their lord, who set them laws and customs, how and in what manner they should possess them, and whenever any controversy arose about them, the lord used to assemble the rest of his followers, and with their assistance and advice judged it. Out of which usage the court barons took their beginning, and the lords of towns and manors gained the privilege of holding plea and jurisdiction within such territories over their tenants and followers, who, from thence, are at this time called sectatores, or suitors of the court, but the Saxons themselves called this jurisdiction sacha and soca, or sac and soc. And in this manner the lords of towns, as from the custom of the realm, came to have jurisdiction over their tenants and followers, and to hold plea of all things touching land, but they did not take cognizance in criminal matters, or otherwise meddle with them, but by the king's charters.

As to the keeping of the king's peace, every hundred was divided into many freeburgs, or tithings, consisting of ten families, who stood all bound one for another, and among themselves punished small matters in their court, held for that purpose, called the lete; which was, at its first institution, exercised by peculiar officers, but for no long time, being soon, by the king's charter, granted over to the lords of manors. But matters of great account were, notwithstanding, carried from thence into the hundred courts, so that both the streams of civil and criminal justice met there, and were decided by the hundreds, &c. as by superior judges both to the court baron and court lete. (fn. 3)

The lord of the hundred, therefore, had jurisdiction over all the towns of the hundred, as well in criminal matters as in civil, and they that failed of their right in the courts baron, tithings or letes, might prosecute it there, before the lord of the hundred, and his followers, called the suitors of the hundred, who were the lords and owners of lands within that hundred, who were bound to be there at every court, which, as appears by the laws of Henry I. cap. 8. was to be holden twelve times in the year, that is, once every month; but a full appearance was required twice in the year especially; in memory whereof, the suitors are at this day called to it, at the Lady-day and Michaelmas courts, by the steward of the hundred.

King Alfred further decreed, that every freeman should be settled in some hundred, and appointed to some freeborg, or tithing (as did king Canute afterwards) and that the heads of these freeborgs, or tithings (now called capitales plegii) should judge the smaller matters, as in leets, &c. but should reserve the greater for the hundred court, and those of most difficulty to the alderman and sheriff, in the county court, and king Ethelred decreed, that in the hundred court, twelve men of the elder sort, together with the reve of the hundred, should, holding their hands upon some holy thing, take their oath not to condemn any man that was innocent, or acquit him when guilty.

The thrithingreve or leidgreve was an officer who had authority over the third or larger district of the county, or over three or more hundreds, or wapentakes, whose territory was thereupon called a trything; in some counties a leid, or lath, as in the county of Kent; a rape, as in Sussex; and a riding, as in Yorkshire. Those matters, therefore, that could not be determined in the hundred courts, either through difficulty or miscarriage thereof, were from thence brought into the court of the trithing, or lath, where all the principal men of the three or more hundreds being assembled, debated and determined the same, or if they could not, it was then sent up to the county court, to be there decided, as in parliament, by the whole body of the county. And it is probable, that the course we now use for the taking of a jury out of many hundreds in a county, for the trial of a cause arising in one hundred, took its beginning from the trial in the court of the trithing or lath, which latter thereupon grew out of use.

The alderman, or earl of the county, was in parallel equal with the bishop, and as such both their estimations were valued alike, in the laws of Ethelstane, at eight thousand thrymses (a thrymsa was the third part of a shilling). He was to be a man learned in the laws, and had the government of the whole shire, and cognizance over all inferior courts, and persons, both in civil and criminal matters. For which purpose he held his ordinary court, called the county court, by the shreve, once every month; and there resorted as suitors, and bound by duty all the lords of manors and principal men of the county, with the rest of the freeholders, who were not only assistants, but judges with him, of all matters there depending, whether arising originally there, or by appeal from inferior courts. As the bishop had twice a year two general synods, wherein the whole clergy of his diocese were bound to resort for matters concerning the church, so also was there, twice in the year, a general assembly of all the shire, called by the Saxons, the shyre-gemat, or sheriff's tourn, for matters concerning the common-wealth, wherein, without exception, all kinds of estates were required to be present; dukes, earls, barons, and so downwards of the laity, and especially the bishop of the diocese among the clergy; for in those days the temporal lords often sat in synod with the bishops, and the bishops, in like manner, in the courts of the temporality, and were therein not only necessary, but principal judges themselves. The one to teach the laws of God, and the other, the laws of the land. The sheriff's tourn being in a manner the general court leet, as the county court was the general court baron of the whole county.

The county court is at this time constantly held at the county house on Pinenden-heath, by the clerk of the county court, from Wednesday to Wednesday four weeks, for civil actions, when a jury of the neighbouring resiants is impanelled, for the trying of the same, but all matters of any consequence are usually removed from thence to the upper courts, by writs of recordari: The shyre gemot or sheriff's tourn, is grown entirly obso lete, not having been held in the memory of any one now living.

The title and dignity of earl was certainly taken from the antient constitution of the Romans, from whom it was transmitted to the Saxons by the Germans, their ancestors; for when the Roman empire was grown to its full strength (fn. 4), the emperors had a certain privy council, which they consulted as well in the time of war as in peace, called Cæsaris comitatus, and the members thereof had the title of comites; but when Constantine the Great altered the constitution of the empire by new distinctions, and endeavoured to oblige the people to him by large gifts and great honors, he made the title of comes, or count, as the Normans termed it, a title of dignity without any function or government, and annexed to it several privileges about the person himself. At length, he granted to these comites other dignities with authority and government, and such were the Comes Britanniarum, or Count of Britain; and the Comes Littoris Saxonici, or Count of the Saxon Shore, under the government of the Romans in Britain. These comites had fees annexed to them during the emperor's pleasure, which at first were temporary, and afterwards for life, but about the declension of the empire they became hereditary, and when it was rent into many kingdoms, this title still remained. The Saxons named them in their own language, ealdormen, though they still termed them in Latin comites, and consules; and when they divided this land into provinces, called in Saxon shires, and in Latin comitatus, they constituted these comites, or ealdarmen, to govern them, and for the more ready dispatch of justice, king Alfred allowed these counts to make deputies, who were called vice-comites or viscounts, and in their own tongue, sheriffs; i.e. the shyre-reeve, from the Saxon word, gerefa, or gereva, a provost, præfect, or steward, to distribute justice to the people in their provincial, or county courts. This dignity of ealdorman, or count, was generally officiary and temporary, during the pleasure of the prince; for, before the year 900, king Alfred granted and revoked it, as he thought best, so that when he accused several of them of ignorance, with threats to remove them, if they did not learn and improve themselves in the knowledge of matters belonging to their office, they, frightened with these menaces, earnestly applied themselves to this study, that they might discharge the duty of their office, and keep their places. When the Danes prevailed against the Saxons, and obtained the government of this land, they called these caldormen, or counts, eorlas, that is, honourable, from which name, somewhat mollified, sprung that of our modern earl. These earls had, it seems, jurisdiction in their earldoms, or territories, from whence they were denominated, and not, as at present, merely titular, men taking their titles now according to their own fancy, sometimes of places where they have no property, and sometimes of an old extinct family, with whom perhaps they never had any alliance or connection. The earl had sometimes the government of several counties, sometimes only of one, and sometimes of only parcels of counties, which entirely depended upon the king's pleasure. As to the profits accruing to him, if the whole territory was his own, then those of the courts held, and of the jurisdiction, such as the pleas, fines, and foreign emoluments, were to his own use and benefit, but if he did not own the same, but only some particular revenue in it belonging to his dignity, then, it seems, the profits of his jurisdiction and courts (except perhaps in his own possessions) were held by him for the king's use and benefit, in the same manner the sheriffs do at present, and they had the third penny arising therefrom for their fees, and the other two parts were paid into the king's exchequer, according to the laws of king Edward the Confessor.

When William the Norman conquerer had possessed the government of this kingdom, earls began to be feudal, hereditary, and patrimonial, and these, as appears from Domesday, were stiled simply earls, without any addition, as—Earl Hugh, Earl Alan, Earl Roger, &c. Afterwards, as appears by antient records, earls were created with an addition of the name of the place over which they had jurisdiction, or of the principal seat where they resided, and they had, as had been customary, the third penny of the county assigned them for their support. Soon after the conquest they began to be created by charter, but without any further ceremony than the delivery of it. (fn. 5) King John is the first who is mentioned to have used the girding of the sword, when they were said to be invested with this honour, per cincturam, cingulo comitatus; whereupon the sheriff had command to make livery unto them of the tertium denarium de placitis comitatus, ut sit inde comes (as were the usual words of the precept) i.e. the third penny of the pleas of the county, that thereupon he might be Earl thereof, (fn. 6) though Selden intimates, that Richard I. used this ceremony, and that it was then spoken of as a custom of that age, formerly enough known. (fn. 6) After which the earl had a certain sum only allowed him out of the profits of his county, as expressed in the patent, for his better support and dignity, and sometimes great possessions in lands were given to the same purpose.

In the following age there was an additional ceremony of putting on a cap with a golden circle, now changed into a coronet with rays and pearls, and a robe of estate, which three, namely, the sword and belt, the cap with a coronet, and the robe of estate, are at present carried by three several earls before him who is to be created, and then he is introduced to the king upon his throne, between two earls in their robes of estate, and himself in a surcoat, where kneeling down, the instrument of his creation is read to him: the king then puts on him the robe, hangs a sword at his neck, puts a cap with a coronet upon his head, and delivers into his hand the instrument of his creation. (fn. 7) The government of counties, under the officiary earls, ceased in the reign of king Edward III. since which this dignity has been merely titular, and the sheriff, who was before only a deputy, and subordinate to the earl, as the earl was to the king, is now become the king's immediate officer in his respective county.

The military government of antient Britain, as we learn from Cæsar, was in his time divided into several petty states or governments. In this county, he says, there were four governors or chiefs, namely, Cingetorix, Carvilius, Taximagalus, and Segonax, whom, with his usual pomp, he stiles kings. These, at that time of common danger, were, as well as the rest of the chiefs of the island, under the government and direction of Cassivelaun, king of the Trinobantes, who had been chosen by the Britons their chief, or generalissimo, to conduct their affairs during their war with the Romans, under Cæsar, in his second expedition hither, as has been already mentioned. Whether Kent was equally divided between these four reguli, or in what proportion their shares of it were to each other, is not known. The same kind of government seems to have continued in Britain to the time of the arrival of the Saxons here. Indeed, the monarchs chosen by the several chiefs as their generalissimo from time to time, from the frequency of danger and continuance of the wars, appear to have usurped a much greater power over the rest than in Cæsar's time. When Hengist, with the Saxons, arrived in Britain, in the year 449, Kent was under the government of one Gorongus, who, as well as the rest of the princes, or chiefs of the island, were subordinate to Vortigern, who had been chosen monarch in Britain at a general assembly of them. Hengist the next year, as it is said, obtained from king Vortigern, in recompence for his daughter Rowena, the gift of the county of Kent, which was transacted so privately between them, that Gorongus was dispossessed before he could take any measures to oppose it, It appears that Hengist received the gift of this province from the king, on condition of his holding it subordinate to him as his deputy or chief governor of it, or, as Ethelwerd calls it, primus consul. It was about five years after the first landing of Hengist, that the Britons, provoked at the insolence of the Saxons, whose numbers, by the frequent arrival of large bodies of them from their own country, were greatly increased, began to make head against them, under the command of king Vortimer, whom they had chosen for their monarch, jointly with his father Vortigern. Several bloody battles and skirmishes were fought between them, with various success; in one of them, which was fought in the year 457, at Crayford, in this county, the Britons were overthrown with great slaughter, insomuch, that they were necessitated to abandon this county, and retire to London; upon which Hengist, throwing off all subordination to the British monarch, erected the province of Kent into a sovereignty, this being the first kingdom established by the Saxons in this island.

The history of the several kings, successors of Hengift, who reigned in Kent during the Saxon heptarchy, has been already given. They too, like the Britons, chose a chief or monarch, from among themselves, whom they invested with a general power over the rest, the common welfare of the heptarchy. Among these Ethelbert, who succeeded to the entire possession of the kingdom of Kent in 564, was, on the death of Ceaulin, king of the West Saxons, in 593, chosen, by the rest of the Saxon princes, monarch in his room. In this manner Kent continued as a separate kingdom, under the government and jurisdiction of its own kings, till the general dissolution of the Saxon heptarchy, when the victorious Egbert, king of the West Saxons, having, in the year 823, drove king Baldred out of it, united it to the rest of his dominions, and assumed to himself the title of King of England, being the first sole monarch of it. From this time Kent was governed, under him and the succeeding princes, as to its civil jurisdiction, by the Eolderman, or Earl, as had been mentioned before, who was frequently invested with the military power also. However this be, whoever possessed the chief military dignity of the county was stiled, in Saxon, heretogas, and in Latin, dux, or general; (fn. 8) which accounts for one and the same person being frequently, in our histories, called by both these titles.