First Part. SELF-GOVERNMENT BEFORE THE MUNICIPAL COR PORATION ACT. CHAPTER I. THE COUNTY AND ITS SUB-DIVISIONS. Counties. Tythings.-Frank-Pledge.-Hundreds.-Alterations in Norman Times. -Parishes.- Police Districts.-Counties-Palatine.-Chester.-Durham.-Lancaster.-Counties-Corporate. THE Counties are divisions dating from Saxon times, their origin being erroneously ascribed to Alfred the Great. They were either kingdoms of the heptarchy, such as Kent, Sussex, and Surrey; or divisions thereof previously existing, corresponding with the diocesan division,* and known by the name of "shires." It seems probable that the realm was originally divided into counties, with a view to the convenient administration of justice, the judicial business of the kingdom having formerly been chiefly dispatched in the local court, held in each different county before the sheriff as its principal officer. Prior to the conquest there were political provincial bodies, holding half-yearly, at Easter and Michaelmas, in each county, an assembly (gemote) of the wise men (wittigsten), the bishop and ealdorman presiding. The shiregereva (sheriff) was merely an assistant, but subsequently became a co-president, and finally the principal officer. The thanes (thegen) or service-men of the sovereign were present at these assemblies; the surrounding townships were represented by their "gereven" and four freeholders. The county assembly determined matters in dispute between the several districts; the shiregereva levied, probably, *Lappenberg, Englische Geschichte, i. 185. with the assent of this assembly, the local rates, and imposed penalties for offences;* appeal lay thence to the sovereign. The counties were, according to some writers, apportioned by Alfred the Great-though, in fact, this occurred much earlier― into hundreds, and these again into tithings, ten families at least of freeholders constituting a tithing, or fribourg. The division was made numerically. Even previously to such division the tithing was a social community, either possessing its political and administrative organization, or comprising a part of the community at large. The individual localities were thus brought into closer connexion with the general body. These divisions gave rise to a system of mutual warranty and obligation to maintain order and security in each district, and to prosecute offenders. Hence the law of "Frank Pledge," the original intent of which was to view the frank pledges, or freemen within the liberty, and its main purpose, to inculcate more fully the principle of reciprocal responsibility on the part of each family, community, and town. Every head of a house was responsible for his family, slaves, and guests. There were two kinds of frank pledge, "manorial" and "collective;" in the former the land-holder was the fixed "borg" (bail) for the appearance of his vassals, or those resident within his jurisdiction, whenever their presence was required. The collective warranty (freho borg) consisted in an association of free peasants, comprising at least ten persons; priests did not belong to such associations, but every layman not possessed of a freehold of a certain extent, was bound to place himself either under the warranty of his lord, or enter into a collective pledge; whoever was not a great thane, and thus exempted from the frank pledge, or whoever did not belong to a tithing was under ban, and might be slain with impunity. The head of a collective pledge was called heofod. The freho borg gave earnest for the payment of "weregild," whenever incurred by any member of the pledge. If there were no family the king might be required to pay the weregild for any co-pledgeor who had been slain. In the promotion of a suit the chief of the tithing§ had to give security for the appearance of the accused, otherwise he was imprisoned; * Lappenberg, i. 585. + Palgrave, Essay on the Authority of the King's Council, 7. Rogge, Ueber das Gerichtswesen der Germanen, p. 60. § Called also tything-man, head-borg, and borse-holder. in case of the flight of the accused, the tithing of the freho borg gave security to clear itself by the assistance of members of other communities, if not otherwise capable of doing so. This collective pledging was the ordinary rule in England. It existed in Shropshire, Northumberland, and certain boroughs of Mercia, in an irregular form. Here it was simply the social community and the borough which afforded the pledge for the inhabitants of the entire district. Every locality which gave shelter to any man not inscribed in the pledge-list, or not otherwise exempted, incurred a penalty.* By a law of Canute, every male on attaining the age of twelve was to be enrolled in a tithing, hundred, or shire.† In Bracton's time freeholders were emancipated from the duty of formal frankpledge and the institution fell wholly into decay towards the close of the Plantagenet sway. On the other hand, the obligations incumbent on every locality for the joint preservation of the peace remained in force. It was still the duty both of the district as well as of individuals to prosecute for common crimes therein committed; this principle has continued in force even to the present day.‡ Canutes' law decreed "that whosoever allowed a thief to escape without raising a cry (hutesium et clamorem, hue and cry), should suffer the punishment of the criminal, unless he cleared himself from the suspicion of having been an accessory of the thief." By the common law every one is punishable who seeing a murder or robbery committed, fails to pursue the criminal, or omits raising the hue and cry. An injured person against whom a felony has been committed, or who has been assaulted, or threatened with robbery, might require the next constable (" tithing-man," 'borse-holder") to raise the hue and cry. The community was bound to pursue the wrong doer. If the constable or the community failed to comply, they were both punishable; the material point in the case of hue and cry, was the pursuit, while the deed was fresh. By statute the duty of raising hue and cry was further extended to other offences.|| Hue and cry is, however, now abolished. A district affording one hundred men for the protection and Anstey, Guide to the History of the Laws and Constitution of England, p 120. Hallam, Middle Ages, ii. 291. + Hallam, Ibid. "She had even broken the law, in refusing to prosecute a highwayman who had robbed her."-Fielding, Tom Jones. § Crabb, 41. Coke, Inst., III. c. 2.: "The life of hue and cry is fresh suit." counsel of a hundredor was a "hundred," or an aggregation of ten tythings. A free family affording one man was called "mansio."* In the north, hundreds were called "wapentakes," in several places also "wards," and it appears that these districts, both as regards their extent and the number of the members did not assimilate. The hundred-man (centenarius), later on the "alderman" and, in Norman times, the "bailiff," or constable, held the "court of the hundred," but the shiregereva alone had the right to proclaim the sittings of the court. After the conquest the county organization continued, but instead of the old Saxon communal head-man, a royal officer was substituted as sheriff, under the name of "vicecomes, or bailiff;" (see Chapter II. of this part). He held annually in the county and each hundred a court, at which the crown and feudatory vassals of the sovereign were present, the minor vassals however only in the character of assistants.† The technical expression for this court is "the sheriff's tourn and leet." In these leets of the hundred all those bound by the jurisdiction of the county had to follow the sheriff; in exempt districts, appertaining chiefly to the church, the jurisdiction of the hundred was occasionally farmed out to bailiffs. These county and hundred courts were the courts for all classes of the community. In the times of the Plantagenets from the county and hundred. courts, was built up the institution of jury courts, to which only a section of the hundred was summoned for the settlement of any question of fact. To the non-judicial business of the shire-assembly pertained the taking of the oath of allegiance, the levying of rates, and, subsequently, the election of the knights to represent the county in parliament; this latter function, as well as that of the election of coroner and verderor, or forester, has remained. From the Plantagenet period the jurisdiction of the county assembly and its participation in the administration completely declined; the county from the time of Edward III. was governed in a purely aristocratic manner. The tithings retained their character after the conquest, so far as they constituted parishes, towns, or vills; in each parish there Lappenberg, i. 584. + Regis judices sunt barones comitatûs qui liberas in eis terras habent, Leges Henrici, i. c. 29.) Chronicles of Jocelin of Brackelond, p. 41. was a court leet of the parishioners, which was a criminal court for offences of a minor nature. A law of Henry VIII. enjoined the court leet to prosecute heretics.* Originally these court leets elected the constables; the right of election was subsequently transferred to a section of the parish, viz., the vestry; but Sir Thomas Smith affirmed that the constables were, as a rule, chosen in the court leet every three or four years, at the good pleasure of the parishioners.† Every resident in a parish was bound under penalty to appear at the court leet. These courts were empowered to pass valid bye-laws; where such court leets still exist the positive obligation to appear there is still in force.§ Besides the administration of the highways, the court leet occupied itself with all communal matters. The decay of this institution is intimately connected with the disappearance of the smaller freeholders. On the other hand, the development of vestries of an exclusive and oligarchic type has ruined the communal system; nothing has been substituted for the court leets, and hence parliament in its cumbrous fashion, has to provide by occasional legislation, for the necessary local requirements. There are two classes of counties-the "counties palatine" and towns which comprise special "counties." The counties palatine were formerly three in number-Durham, Chester, and Lancaster ;|| the first two deduced their right from time immemorial. The palatinate of Lancaster was founded by Edward III. All three had this in common; the three counts palatine, the Earl of Chester, the Bishop of Durham, and the Duke of Lancaster, exercised royal authority (regalem potestatem) like the king in his palace. They were empowered also to exercise the right of pardon in cases of murder, treason, and felony. The earldom of Chester was, however, under Henry III., united with the crown, and the palatine jurisdiction of Durham which was vested, until recently, in the Bishop of Durham for the time being, is now taken from him by 6 and 7 Will. IV. c. 19, and vested as a separate franchise and royalty in the crown. A local royal court, "the court of pleas in Durham," still exists, which by an Act of the present reign is assimilated in its procedure with the courts at Westminster. The duchy of Lancaster was the property of Henry Bolingbroke when Toulmin Smith, 615. + Anglia Descriptio, 228. Toulmin Smith, 47, 48. § Toulmin Smith, 216. || Bowyer, 35. |