Such were the different Anglo-Saxon courts. But with respect to those of the tithing and hundred a question naturally occurs, how territorial divisions. founded upon numerical proportions of the inhabitants could be maintained? Constant fluctuations would necessarily take place from the increase of families and the migration of residents; and we should imagine that in the course of a very few years an arrangement previously made on this system would be disturbed, and the names derived from the number of families within a given district rendered inappropriate. This difficulty seems to have been provided for by a periodical adjustment in the following manner. It was the duty of all the freemen of a hundred to meet twice a year and examine into the state of the tithings to see whether they had their full complement of members, and whether there was a deficiency or excess of numbers'. If this happened, we must suppose, although it is not so expressly stated, that a fresh numerical arrangement was made from time to time.

It is, however, important to notice that this provision for the meeting of the hundred twice a year does not occur in any of the Saxon laws now extant.

1

Speciali tamen plenitudine, si opus est, bis in anno conveniant in hundretum suum quicunque liberi, tam hudefest quam folgarii, ad dinoscendum, scilicet, inter cetera, si decanie plene sint, vel qui, quomodo, quâ ratione, recesserint, vel super-accreverint. Leg. Henrici I. c. vi. § 1. The tam hudefest quam folgarii, mean as well householders as mere retainers;' hudefest is a corruption of heorthfest-men who had a dwelling or hearth of their own; folgarii, retainers who lived in the house or on the premises of their lord. See Glossary to Ancient Laws and Inst.

T. J.

F

But we must not conclude that because it is first mentioned in the Leges Henrici Primi, the custom did not prevail before the time of that monarch. These Leges are nothing more than a collection of laws and usages which existed in Anglo-Saxon times; and as the greater part of them continued in force after the Norman invasion, they are spoken of in the present tense as still existing. The compilation seems to have been made by some private person, and must not be regarded as a code of laws published by the authority of the State1.

Although originally, and perhaps always in strict right, the whole of the free male adults of a district might attend and form the monthly or half-yearly court held for that district, yet it is by no means improbable that in practice this became limited to a smaller number. The analogy of what took place in the continental tribunals, is, as we have seen, in favour of this supposition, and Grimm seems to be clearly of opinion that there was such a class of judges amongst the Anglo-Saxons; but he says that it cannot be affirmed with certainty whether they were designated by any particular name?.

There are several passages to be found amongst the

1 See Phillips, Eng. Reichs u. Rechtsgeschichte. 1. 202.

2 His mistake in thinking that the term witnesses' (gecorene tô gewitnesse) was applied to them will be pointed out hereafter. At a later period after the Norman Conquest, we find those who attended the hundred, county, and manorial courts, to try offences and determine disputes there, called secta and sectatores; and the obligation to attend was in the nature of a tenure, for neglect of which they might be distrained to appear. Fleta, 11. c. 53-65.

Anglo-Saxon laws which throw light upon this question. Thus one of the laws of Ethelred provided, 'Let doom stand where thanes are of one voice: if they disagree, let that stand which VIII of them say1; and let those who are there outvoted pay each of them vi half-marks.' And an ordinance respecting the‘Dunsætas,' or dwellers in Wales, ran thus: XII lahmen2 shall administer the law (or, explain it, riht tœcan) to the British and English; vi English and VI British (Wylisce). Let them forfeit all they possess if they administer it wrongly, or let them clear themselves that they know no better.'

Another law of Ethelred3 enacted, that a 'gemot (or meeting) be held in every wapentake; and the XII senior (yldestan) thanes go out and the reeve with them, and swear on the relic that is given to them in hand, that they will accuse no innocent man, nor conceal any crime1.'

1 In the compilation known by the name of Leges Henrici Primi, we find the following law: Vincat sententia meliorum et cui justitia magis acquieverit. Unless we consider meliorum as equivalent to plurimorum, and indicating a majority, this would open a wide door to cavil and dispute. Allen, in his notes to Leg. Hen. I. (Anc. Laws and Inst.), assumes it to mean a majority, and to be a substitution for the two-thirds, or eight, of the law of Ethelred, and he asks whether justitia here means the king's justiciary? This interpretation is at least doubtful.

2 Lah-man means jurisconsultus, judex.

3 Leg. Ethel. III. 3.

4 Nænne sacleasan man forsecgean ne nænne sacne forhelan. Phillips (Gesch. Ang. Rechts) translates forsecgean, condemno.' Mr. Thorpe (Anc. Laws and Inst. 1. 295) renders ne nænne sacne forhelan, nor conceal any guilty one.' But this is incorrect, for sacne means a thing, not a person.

Now this may possibly mean that the thanes here spoken of were to act as the judges of the gemot, or court; and such is the opinion of Dufresne, Brady, and Hickes, who think that they correspond to the scabini of the Franks. In this sense also the passage is taken by Phillips, in his able and accurate work, the Geschichte des Anglesachsischen Rechts. But the more general, and perhaps preferable, view is, that the thanes were in the nature of inquisitors of crimes committed within the district; and accordingly Sir Francis Palgrave', speaking of this law, says, 'If the wapentake, or hundred, impeached the offender, the suitor spake by the twelve chief thanes, who together with the gerefa were sworn that they would not accuse any innocent man, nor conceal any crime... The resemblance of the twelve thanes to a grand jury is sufficiently obvious; and the principal difference between the Anglo-Saxon echevins and the modern inquest of the shire, seems to have consisted in the greater stability of the ancient magistracy, who, judging from the analogies afforded by the burghs, held their offices for a definite period.' I hope, however, to be able to shew in the course of this chapter, that the functions of the twelve thanes, considered in this point of view, did not materially differ from those of the court itself at that time-so that the two theories are hardly at variance with each other.

1 English Commonwealth, 1. 213.

2 Sir F. Palgrave here applies the term echevins to the thanes. It is the French form of scabini, whose office has been previously explained.

So far, therefore, as the extant laws give us any information, it seems not improbable that the usual number of members composing the court was twelve. But we find mention in the old chronicles of causes decided amongst the Anglo-Saxons by twenty-four judges. Thus in the following passage from the Historia Eliensis': Tandem veniens Egelwinus Alderman ad Grantebrucge habuit ibi grande placitum civium et Hundretanorum coram XXIV judicibus.' In this case we may suppose that there was an union. of two hundreds, which probably happened because the suit was one of importance. At the same time I do not think that the right of all the freemen of the district to attend these courts in the capacity of judges was taken away. But it came to be looked upon rather as a burden than a privilege, and as such it is spoken of by Bracton and Fleta, when they discuss the duty of the secta or sectatores to appear in the county and baronial courts.

SECTION V. Examples of Anglo-Saxon Civil Trials.

BEFORE quitting this part of the subject it will be useful to give one or two instances of trials which took place before these primitive tribunals. They will help us to understand the system better than a more lengthened disquisition.

1 I. 34, and see Ib. 13.

2 Thus at the court mentioned in the text, held at Witlesford in Cambridgeshire, we are told that Egelwinus Aldermannus et omnes meliores concionatores de comitatu Grantebrycge were present. Hist. Eliens. 1. 45. 3 Hist. Eliens. 1. 45.