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.