"'1 also

accuse no innocent man, nor conceal any guilty one; with the twelve witnesses of the laws of Eadgar "before whom all bargains and sales are to be transacted." Moreover he suggests that they are the prototype of the twelve legal men of the hundred "who are directed in the Assize of Clarendom to act as part of the grand jury before the judges in Eyre, and who play so important a part in the legal reforms of Henry II and his ministers." 3

Without doubt the primitive hundredgemot, like the mallus, was held in the open air, on a hillock, at a ford, under the spreading branches of an oak, or on some other convenient spot chosen especially for the purpose; and it is not improbable that it was presided over by the hundredman nominated by the voice of the freemen. But during historic times it is doubtful whether the hundredman was president of the court. The ancient democratic constitution was already falling into decay. The hundreds were themselves passing into the hands of the great lords, thus becoming the foundation of the later liberties or manors; and it is possible that the lord or his steward may have acted as chairman of the gemot.5

But the hundred was not exclusively a judicial organization. When taxation began under Aethelred, the hundreds, in groups of three, were made the area for levying the shipmoney; and this area, as we have seen, was probably called a wapentake in the Danish shires. Long before this time the sheriff may have accounted to the crown for the profits of the hundred, whatever they might be. Besides it is worthy of

1Stubbs, Const. Hist., I, 103. Cf. Aethelred, III, 3: Schmid, Gesetze, 212; Thorpe, Anc. Laws, I, 294.

2 Eadgar, IV, 3-6: Schmid, Gesetze, 196; Thorpe, Anc. Laws, I, 274. 3 Stubbs, Const. Hist., I, 103. The text of the Assize is contained in his Select Charters, 143.

On the open-air meetings of the hundred and their late survival, see Gomme, Primitive Folk-Moots, 104-12, 214-23; Taylor, Words and Places, 197.

note, that after the Conquest it continued to be employed as a fiscal unit.1

istration.

The hundred was also used as the unit of the police adminThe hundredman was the direct predecessor of the Norman high constable; and to him in connection with the town constable or tithingman the maintenance of the peace was particularly entrusted. The celebrated constitutio de hundredis of Eadgar is largely concerned with the pursuit and punishment of thieves. In case of need, the hundredman is to be informed of the theft, he shall make it known to the tithingmen and all shall go forth where God directs to do justice upon the transgressor.3

(b).—Dissolution of the Organism.

After the Norman Conquest the hundred, like other local bodies, seems to have fallen into decay; but it was restored by Henry I, "as in the time of Edward the Confessor." The

presiding

4

officer henceforth is usually the bailiff, appointed by

This is seen in several ways. 1. Amercements were sometimes made

by hundreds

even when the latter were parts of a barony: Palgrave, Com

monwealth, II, 351; Stubbs, Const. Hist., I, 102, note 2; and see examples in Madox, Hist. of Ex., 374, 393, etc. 2. The boroughs were let at fee-farm, and the larger boroughs were really hundreds or groups of hundreds. 3.

It is

Probable that the sheriff got in the ferm of the shire, at least in part,

by hundreds.

2 Kemble, Saxors, I, 255 ff.

Anc. Laws, I, 259; Select Charters, 68. On the old English see further, Palgrave, Commonwealth, I, Chap. III; Phillips, Ang.

3 Thorpe,

hundred,

Sax. Rechtsgesch., 82, 170; Hallam, Middle Ages, II, 265 ff.; Gneist, Selfgovernment, II, 17 ff.; Const. History, I, 6, 47-50; Creasy, Hist. of England, L, 168-9, 179, 329; Barnes, Origin of Hundred and Tithing: Journal of Brit. Arch. Association, 1872; Freeman, Norman Conquest, I, 66; Taswell-Langmead, Const. Hist., 16-17, 37.

For

an excellent discussion of the question of the constitutional position of the hundred as compared with that of the town, see Prof. Allen's Town, Township and Tithing.

Stubbs, Select Charters, 103-4.

the king or the lord of the franchise: for the hundred rapidly passes into the hands of the territorial magnates.' But the primitive ealdorman still survives, as late at least, as the reign of Edward I; and it is remarkable that he now appears as the elected representative of his district in the shiremoot.2 However the most important officer of the mediaeval hundred is the constable, who is first mentioned by that name in the statute of Winchester, 1285; and who, from the early years of Edward III, is usually styled the "high constable” as distinguished from the "petty constable" of the township. is the peace magistrate of the district chosen by the freemen, and may therefore be regarded as the successor of the elected ealdorman, surviving side by side with the appointed bailiff; just as, in a much earlier period, the sacebaro of the Frankish king sat with the elected centenarius in the mallus, though the English bailiff, unlike the sacebaro, is president of the moot.*

He

From the time of Henry I, the hundred possesses two courts: the lesser or monthly court, in which the bailiff presides and the suitors themselves are judges; and the great court of the hundred, known eventually as the sheriff's tourn and leet.5 The business of the lesser or popular body consists almost wholly of the collection of small debts. On the other hand the tourn is an itinerant branch of the county court, held twice a year by the sheriff in each hundred of the shire. It possesses

1Stubbs, Const. Hist., I, 400. The hundred rolls show, that after the hundreds passed into private hands, the bailiffs often exercised jurisdiction, chiefly as a means of extortion: Stephen, Hist. of Criminal Law, I, 130–2.

"The elective ealdorman existed in Essex and probably elsewhere: Palgrave, Commonwealth, I, 635; II, 351. Cf. Leges Hen. I, c. VIII, 1: Schmid, Gesetze, 440; also extracts from hundred rolls in Stubbs, Const. Hist., I, 102, note 2.

3 Later the high constable was usually appointed by the quarter sessions. There were often two for each hundred: Gneist, Selfgovernment (1871), 441. On the high constable see Lambard, Duties of Constables, 5 ff.; Gneist, Selfgovernment, II, 50; edition of 1871, 441 ff.

4

5 Leges Hen. I, c. VII, 4; VIII, 1: Schmid, Gesetze, 440-1.

"Stubbs, Const. Hist., I, 398 ff.

an important criminal jurisdiction, and is especially entrusted with the view of frank pledge and the general maintenance of the peace.1

For sometime, therefore, subsequent to the reign of Henry I, the hundred courts retained their ancient character as folkmoots; but, after the beginning of the thirteenth century, they fell rapidly into decay. The sheriff lost his criminal jurisdiction in the tourn, and the oversight of the peace administration passed into the hands of the justices. Suitors refused to attend the sessions; and various classes of persons were excused from attendance by statute.2 Several efforts were made to reinvigorate the decaying organization, for example, under Henry III and Edward III; and, even as late as Edward VI, it was enacted that the 'county courts'-as the hundred courts are here called-should be held monthly and not every six weeks, as it seems had been the practice.*

3

But every attempt to stay the dissolution of the hundred

failed

and the institution has now but a nominal existence.

Until 1844 the high constable continued to collect the county

rate;

but in 1869 the office was permissively abolished; and

so the only surviving importance of the hundred is its liability, under the act of 1827 and various subsequent statutes, "to

make

compensation for damage done by rioters within its

limits." And even this requirement is practically a dead

letter.

6

1Gneist, Selfgov., II, 28 ff.; Stephen, Hist. of Crim. Law, I, 65.

The statute of Merton, 1236, allowed freemen to appear by attorney in and by the Statute of Marlborough, 1267, all above the rank were excused from attendance on the tourn: Stubbs, Const. Hist.,

local

of knights

courts;

II, 205-6.

3 See extracts from the statutes in Toulmin Smith, Local Government, 219-20. Stubbs, Const. Hist., II,

4

382.

Toulmin Smith, Local Govt., 221.

The quarter sessions may discontinue the office of high constable in any hundred of the county when they think proper: P. V. Smith, Hist. of Eng. Inst., 107; Chalmers, Local Govt., 40; Gneist, Selfgov. (1871), 442 ff.

Chalmers, Local Govt., 18; Gneist, Selfgov. (1871), 346, note. See the table of hundreds as arranged in shires, 1851: Ib., 82-3.

IV.-RISE AND DECAY OF THE HUNDRED IN THE AMERICAN COLONIES.

(a).-The Name Hundred in Maine and Virginia.

When English colonization of America began in the seventeenth century, the hundred constitution was already far advanced in process of dissolution. In New England the town struck vigorous root; and this form of local government, in co-operation with the shire for certain purposes, seemed adequate to the political requirements of the new settlements. The history of the hundred in the northern colonies is little more than the history of a name. The Council for New England, as we have seen,' contemplated the division of their domain into baronies, counties, hundreds, and manors; but the scheme was never carried out. Sir Ferdinando Gorges seems to tell us that he actually divided his jurisdiction in Maine into eight counties or bailiwicks, and these again into "sixteen several hundreds." These hundreds stood in a definite relation to the parishes and tithings which were instituted

as the population did increase and the provinces were inhabited." Thus each hundred was to have two head constables assigned, and every parish one constable and four tithingmen. The tithingmen were to account to the parish constable for the demeanor of the householders within their respective tithings, and the parish constable, in turn, was expected to make a similar report to the head constables of the hundred, "who shall present the same to the lieutenant and justices at their next sitting or before if cause require." Here we have an ideal system of frankpledge or gesammtbürgschaft which probably never existed in such symmetry anywhere. And it is not unlikely that Sir Ferdinando means simply to say, that he has drafted a "paper

1Chap. III, v.