The Online Library of Liberty

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• Introduction
• A Historical Sketch of Liberty and Equality As Ideals of English Political Philosophy From the Time of Hobbes to the Time of Coleridge 1 .
• ( a ): Liberty
• ( B ): Equality.
• The Law of Real Property 1
• The Laws of Wales.—the Kindred and the Blood Feud 1 .
• The Criminal Liability of the Hundred 1 .
• Mr Herbert Spencer’s Theory of Society 1 .
• I.: The Ideal State.
• II.: The Law of Equal Liberty.
• The Early History of Malice Aforethought 1
• The Seisin of Chattels 1 .
• The Mystery of Seisin 1 .
• The Deacon and the Jewess; Or, Apostasy At Common Law 1 .
• The Beatitude of Seisin 1
• The Suitors of the County Court 1
• The Shallows and Silences of Real Life 1
• Why the History of English Law Is Not Written 1

THE CRIMINAL LIABILITY OF THE HUNDRED1 .

The practice of making a district answerable for crimes committed by its inhabitants, or of making a group of men answerable for crimes committed by a member of the group was at one time thought to be of vast antiquity. The institution which the Norman lawyers called frank-pledge, and which has lately, perhaps for the last time, found mention in our statute book, was regarded as much older than the Norman Conquest, and indeed as one of those institutions which might safely be ascribed to King Alfred or to primitive man according to the taste of the ascriber. Recent investigations however have thrown doubt, or more than doubt, on its claims to so long a pedigree. Professor Stubbs speaks of it thus2 :—

“This institution, of which there is no definite trace before the Norman Conquest, is based on a principle akin to that of the law which directs every landless man to have a lord who shall answer for his appearance in the courts of law. That measure, which was enacted by Athelstan3 , was enlarged by a law of Edgar4 , who required that every man should have a surety who should be bound to produce him in case of litigation, and answer for him if he were not forth-coming. A law of Canute1 re-enacts this direction, in close juxta-position with another police order; namely, that every man shall be in a hundred and in a tithing; where the reference is probably to the obligation of the hundred and the tithing to pursue and do justice on the thief. The laws of Edward the Confessor, a compilation of supposed Anglo-Saxon customs issued in the twelfth century, contain a clause on which the later practice of frank-pledge is founded, but which seems to originate in the confusion of these two clauses of the law of Canute.”

Having given the substance of this well-known clause, well-known because it is the foundation of all that was written touching frank-pledge from Bracton’s day onwards, Professor Stubbs thus sums up the evidence:—“There is no trace of any similar institution on the Continent, or even in England, earlier than the middle of the twelfth century, although, as has been said, it would not be strange to the legislation of the Conqueror.” Not strange to the legislation of the Conqueror because not unlike the law ascribed to him fining the hundred in which a Frenchman was found murdered.

It would be rash to dispute, nor have I any intention of disputing the sentence thus pronounced, a sentence which bears the authority not only of the great historian from whose book it has been cited, but the authority of almost all those who in these days have been at pains to search out the origin of the curious institution in question. But there is evidence, and that of a very remarkable kind, in favour of the supposition that even before the Conquest the practice of fining a district for the offences of its inhabitants obtained at least in one part of England, and so far as I am aware that evidence has never yet received the notice that it deserves. It does not explain the frank-pledge in its later shape, the shape which it bears in Bracton’s treatise, but unless it be the outcome of some mistake, it does show that the common responsibility of a group of men for the crimes committed by one of their number was an idea familiar in England before William of Normandy landed upon our shore.

In the first place we must refer to Doomsday Book. As is well known there are scattered about in this great rent roll some brief notices of English criminal law. We are told what are the forisfacturœ which the king enjoys in this and that county, in other words, what according to local custom are the pleas of the crown, criminal justice being from the royal point of view a source of income. We know from Canute’s code1 that the number of these pleas which were considered as inalienable rights of the crown was very limited; but still there were certain crimes, which (save where some more than ordinary franchise had been granted) brought profit to the king himself. Among these was breach of the king’s special peace or protection (grith or mund), not a mere breach of the general peace (frith) which existed at all times and in all places, but a breach of the peculiar peace which surrounded the king’s person and dwelling, or had been granted by his letters of safe-conduct, or in some other manner specially proclaimed. Now the brief notices in Doomsday of these placita coronœ are for the more part so thoroughly in harmony with all that we know of the native English law, that they seem trustworthy evidence of that law even when other authority fails us. But concerning breach of the king’s special peace they tell us what is very remarkable, and it may be well to repeat their substance at some length.

Berkshire1 .

Worcestershire3 .

Chester1 .

—Peace given by the king’s hand or writ, or by his deputy (legatum), if this be broken, the king has 100 shillings, but if the king’s peace be at his command given by the earl, out of the 100 shillings the earl has the third penny. If the same peace be given by the king’s reeve or the bailiff of the earl, breach thereof is paid for with 40 shillings. . . . If a free man in breach of the king’s peace kills another within a house, his lands and goods go to the king, and he is outlaw.

These customs have been cited in order that the reader may contrast them with what he will meet when he quits Mercia and enters the Daneslaw. There seems at first sight some variance of local practice as to whether or not a breach of the king’s peace given by his hand is or is not a crime for which a money composition is accepted. Possibly the passages may be reconciled by supposing that the 100 shillings fine is payable only when the breach of the peace is not aggravated by homicide, but this is not to our point, which is that nothing whatever is said about any fine imposed on any save the criminal. But let us enter the Daneslaw.

Nottinghamshire and Derbyshire2 .

Lincolnshire2

—Peace given by the king’s hand or seal, if this be broken it is paid for by 18 hundreds. Each hundred pays £8; 12 hundreds pay to the king, and 6 to the earl.

Can there be any doubt about the meaning of these passages? “Unumquodque hundredum solvit viii. libras.” The writer must have meant that a fine was laid upon certain districts, called hundreds, that each hundred paid £8, that thus the heavy fine of £144 or £96 was collected,—a very different matter from the fine of 100 shillings which elsewhere paid for a breach of the king’s hand-given peace. Was all this a blunder of Norman scribes? If so it was a wild, stupendous, blunder.

But this is by no means all the evidence concerning these large fines levied in the Daneslaw and only in the Daneslaw. Among the various sets of laws bearing the names of the Confessor and the Conqueror there is a brief code of which we have both a French and a Latin version3 . The origin of both versions is very obscure, and the French version in its completeness is known to us only in the work of the forger who called himself Ingulf. Consequently it is a document under suspicion. It seems to be a work of private enterprise patched together from the laws of Canute and perhaps from some old English documents which have not come down to us. That the Latin version is a translation made from the French, seems to me, after a minute examination of the two texts, indubitable, while I believe it to be the opinion of philologists that the French version, though undoubtedly it has suffered at the hands of copyists, can in substance hardly be of later date than the twelfth century1 . Be that as it may, we are there2 told that if in the Mercian law any one breaks the king’s peace, the fine is 100 shillings, but in the Daneslaw the fine is £144. We are not told who pays this fine, we are only told its amount. That amount is simply enormous if the fine be set on the individual peace breaker, and wholly out of proportion to the general criminal tariff set forth in this very document. It would be easy to change pounds into shillings, but how can we do this with Doomsday before our eyes? The agreement with the great survey is exact, for £144 is just what will be paid if 18 hundreds pay £8 apiece.

Turn we next to the code bearing the Confessor’s name, which professedly states the report of those jurors from whom William demanded a summary of the English laws3 . This is the work which Professor Stubbs in the passage above cited describes as “a compilation of supposed Anglo-Saxon customs issued in the twelfth century,” and the issue of which there is some reason for attributing to Glanvill. It is, at least in its present form, a queer untrustworthy patchwork, but good evidence of what the twelfth century thought about the eleventh. Now this contains much to our purpose. In the first place the writer enumerates the various solemn peaces1 . The peace of the king is manifold. There is the peace given by his hand, the peace of his coronation days, the peace of the great church feasts, the peace of the king’s highways. Then as to the punishment of him who breaks the king’s peace. “Qui scienter fregerit eam, x. et viii. hundreda in Danelaga, et corpus suum in misericordia regis.” This enigmatical sentence would not of itself give us much information. But the writer after an interval returns to this matter2 , again enumerates the great peaces and says that they all have one and the same sanction. “Verbi gratia, in Danelaga per xvii. hundreda, qui numerus complet septies xx. libras et iiii.; forisfacturam enim hundredi Dani et Norwicenses (al. Norguenses)3 vocabant viii. libras.” His meaning is becoming clear. In the Daneslaw the fine of a hundred is £8, and this multiplied by 18, since in some way 18 hundreds are involved, gives £144. He then explains how out of each £8 the king has £5, the earl of the county £2 10s., the tithing-man (decanus) the remainder.

The mention of the tithing-man (decanus), who in one version is raised to a deanery1 , sets the writer off on the subject of frank-pledge. But again he returns to his hundreds2 . Yorkshire3 , Lincolnshire, Notting-hamshire, Leicestershire, Northamptonshire and to the Watling Street, and eight miles beyond the Watling Street, are, he says, “sub lege Anglorum,” but doubtless he means “sub lege Danorum,” and what others call a hundred these counties call a wapentake4 . Then follows an etymological excursus, and then5 “Erat eciam lex Danorum, Northfolc, Suthfolc, Cantebrugescire, que habebat in emendationem forisfacturæ ubi supradicti comitatus habebant xviii. hundreda, isti x. et dimidium. Et hoc affinitate Saxonum, quia tunc temporis major emendacio forisfacturæ Saxonum erat quater xx. lib. et iiii.” This seems to mean that while in York, Lincoln, etc., 18 hundreds at £8 make up £144, in Norfolk, Suffolk, and Cambridge, 10 1/2 hundreds make up £84. This difference between the two parts of the Daneslaw is in some way due to the neighbourhood of the three last named counties to the “Saxones” among whom the greater forisfactura is £84.

Before going further it will be well to notice that the Leges Henrici Primi, another twelfth century compilation, though they over and over again make mention of breach of the king’s special peace and its punishment, have nothing whatever to say about those enormously heavy fines. The crime is either one for which no pecuniary composition will be accepted, or is paid for by a fine of 100 shillings. This, taken along with our other evidence, may dispose us to believe that the practice of fining the district did not obtain throughout England, and in this context it is worthy of remark that the writer of the treatise which has gotten the name Leges Henrici ascribed some kind of super-eminence to the laws of Wessex1 . It will have been observed that all our evidence concerning these large fines comes only from the Danized part of England. The exception to this, if exception it be, is the vague and obscure reference in the Leges Edwardi to the “Saxones” who lived near Norfolk and Suffolk.

Now from what has been already said we seem entitled to draw this inference, namely, that the makers of the Doomsday survey believed that it then was, and that the lawyers of the next century believed that it then was, or at least had been, the law of some part of England, that when the king’s hand-given peace was broken, a fine should be imposed upon a large district, consisting of 18, 12, or perhaps 10 1/2 hundreds, each hundred paying £8. What was the origin of this law? That it was enacted by the Conqueror at some time between the conquest and the survey seems incredible. That surely was not the time when a difference between Mercia and the Daneslaw arose, when the custom of Cambridge became other than the custom of Nottingham. Two suppositions are open to us, either that these rules were older than the Conquest, or that they never existed save in the minds of Norman lawyers who mistook a payment of hundreds of coins for a payment by territorial districts called hundreds.

There is, so far as I know, but one passage in any of the old English laws directly bearing on the subject. It is necessary therefore to consider “the laws which King Ethelred and his Witan have decreed at Wantage, as frith-bot1 .” It has generally been considered that despite the fact that the ordinance in question was seemingly made at Wantage in Berkshire, it was nevertheless intended in some special manner for the Danized part of England. In favour of this conclusion are the mention of “the five burghs” (which can hardly be other than the five Danish towns, Derby, Nottingham, Leicester, Stamford, and Lincoln), and the computation of all sums of money Danish fashion in half-marks and ores, instead of English fashion in shillings. Now taking Thorpe’s translation, what we are told is this:—The king’s grith (his special peace) is to stand as it formerly stood. The grith which he gives with his own hand is to be bot-less, that is to say, a breach thereof is a crime not to be atoned for by any money payment. For the grith which the ealdorman and the king’s reeve give in the assembly of the five burghs, bot may be made with twelve hundred (bete man thæt mid xii. hund.). For the grith which is given in a burgh assembly, bot may be made with six hundred. For that which is given in a wapentake, bot may be made with a hundred. For that which is given in an alehouse, bot may be made, for a dead man with 6 half-marks, for a live man with 12 ores.

Now doubtless the natural interpretation, and as I suppose the only interpretation that the Anglo-Saxon text will bear, is that the twelve hundred, six hundred, and hundred here spoken of are coins. It is a little strange that the quality of these coins should not be mentioned, for such an omission is, to say the least, very rare in the Anglo-Saxon laws, but in this very document there is a passage1 in which a person is directed to deposit “a hundred,” the kind of the coins not being stated, and I believe that reckoning by hundreds without naming coins was a common Scandinavian, though not an English practice. Still no one can consider this Wantage ordinance side by side with the customs reported in Doomsday and the Leges Edwardi without believing that there is some connection between them. They are almost exactly in pari materia. It is true that according to Ethelred’s law there seems to be no fine when the peace broken is that given by the king’s own hand, while it is just in this case that according to the later authorities the 18 hundreds are fined. On the other hand, it is far from impossible that between the date of the Wantage assembly and the Norman Conquest the severity of the law had been mitigated, and this bot-less crime had become one for which in some cases a composition might be taken1 . Besides, if we are right in our construction of the customs in Doomsday Book and in the twelfth century compilations, the heavy fines there spoken of have nothing to do with the fate of the criminal. They are not paid by him but by his neighbours. It may be, therefore, that under Ethelred’s law (which expressly declares itself to be merely declaratory), as there was a hundred fine, a six hundred fine, a twelve hundred fine, so also there was an eighteen hundred fine.

While therefore admitting that the hundreds mentioned in the Wantage ordinance are hundreds of coins, one is still tempted to believe that more is implied in the law than is expressed. The fine for breaking the peace given in a wapentake is a hundred, and what is the wapentake but a hundred or the assembly of a hundred? May it not be that in naming the amount of the fine, we also name the district upon which it is imposed? This ordinance relates, apparently, to the king’s own peace proclaimed in and comprising a local assembly. When the ealdorman and king’s reeve have proclaimed the king’s peace in the assembly of the five burghs, an assembly representing a large district, if that peace be broken the whole district is fined. So with the wapentake, the assembly of a single hundred, if the king’s peace proclaimed therein be broken, the whole hundred is fined; so even with the alehouse, probably the meeting places of township or tithing, for which in later days the vestry was substituted. It may, indeed, be difficult to imagine on what occasions the king’s peace would be proclaimed in so humble an assembly, still there may have been occasions when the king’s reeve had to transact business with the township.

Some such explanation as this is made the more probable when we attempt to determine what were the coins of which the “hundred” or several “hundreds’ consisted. A breach of the peace proclaimed in the alehouse, or assembly of the tithing, is paid for by 12 ores. If, however, a man has been slain, the fine is doubled, and becomes 6 half-marks. Now if the fine for a wapentake’s peace be a hundred ores this will fall in with the theory that the wapentake consists of ten tithings, for it is by no means improbable that the hundred here mentioned is the so-called “long hundred” of 1201 . At any rate, there is no other coin so probable as the ore. The wapentake’s peace is thus reckoned at “one hundred” ores, the peace of a burgh assembly at “six hundred” ores, the peace of the assembly of the five burghs at “twelve hundred” ores. For peace given by the king’s own hand no composition is provided; but, as already said, the supposition that for the breach of this also a fine is required from the district is not excluded by the declaration that the crime is (for the criminal) bot-less. Might we suppose that this fine was 18 “hundreds,” that is 18×120 ores, we should neatly arrive at our sum of £144, for though the better opinion seems to be that the Danish ore was usually deemed equal to but fifteen pence, yet there is direct authority in Ethelred’s laws for reckoning it at sixteen pence1 . This result is arrived at by a perilous series of suppositions, nor is any stress laid upon the exact correspondence of figures. It is, however, necessary to notice that the largest fine mentioned in the Wantage ordinance is, if the hundreds be hundreds of ores (and that they must be so seems clear from the relation of the fine in the case of the wapentake to the fine in the case of the alehouse), a fine not merely great but enormous. At the very least twelve hundred ores are £75 and they may be £96. I believe that no other law contained in the Anglo-Saxon collection or in the Norman compilations exacts a fine to the king amounting to one-tenth part of this sum. The heaviest of such fines or mulcts is I believe £5, and the difference between £5, and £75 is (the word must be repeated) enormous. What has just been said should be qualified by the statement that the murder fine was 46 marks, but the murder fine was a fine laid on a district not on an individual, and even this did not amount to one-half of £75. Now considering the comparatively small fines which were exacted even in the very worst cases, the conclusion seems inevitable that if the twelve hundred of Ethelred’s law mean twelve hundred ores, the fine is imposed not on the criminal but on the district, and that district a large one. If they be not ores what are they? Twelve ores (sometimes 24) are demanded when the peace given in an alehouse is broken, and from this we clearly have an ascending scale, one hundred, six hundred, twelve hundred.

Probably therefore the Doomsday surveyors were not in the wrong when they said that in the Danized counties a breach of the king’s peace was paid for by a number of hundreds, each paying £8. Mistakes about numbers they may have made, but there was some substantial truth at the bottom of their statements. It may seem very strange to us that so large a territory as 12 or 18 hundreds should be fined for a crime, but the Leges Henrici speak of the impleading of a whole county, or of several hundreds1 . There is, too, a series of entries in the Pipe Roll of the 31st of Henry I2 which seems to tell of a very large fine “propace fracta” imposed on a part of Cambridgeshire. The fine is paid in part by the great landowners, in part by the sheriff on behalf of the men of this, that, and the other township, and though we cannot say with certainty that all these entries were occasioned by one and the same crime, still they follow each other in immediate succession.

The importance of the evidence to which attention has been asked is not small, and I hope that it may come into the hands of explorers more competent than myself. Its importance is not small, because even if this fine for breach of the king’s peace stood quite by itself it would be a very noticeable fact in the history of our criminal law. But it does not stand by itself, for if once established, it might be brought into connection with those two most remarkable institutions, the frank-pledge and the murder fine. As regards the former, it certainly throws no light on the much debated relation of the territorial tithing to the personal frank-pledge, or group of ten or a dozen sureties, but it may suggest that the tithing which was fined if the peace proclaimed in its alehouse was broken, may have been a responsible unit in the police system for other purposes also. As to the murder fine it may suggest that neither of the two rival stories about its origin contains the whole truth, neither the story now generally accepted that William introduced it as a protection for his French followers, nor the story which Blackstone took from Bracton and Bracton from the Leges Edwardi that the English Witan introduced it at Canute’s request as a protection for his Danes. If in the Daneslaw it was the practice to fine a hundred or several hundreds for breach of the king’s peace, it may also have been the practice to fine the hundred within whose bounds was found the body of a murdered foreigner, a foreigner to whom the king was “a protector and a kinsman1 .” Lastly, it may suggest that the twelfth century writers who spoke of England as divided between three laws, Danish, Mercian, WestSaxon, had more reason for insisting on this theory than they get credit for with most of their readers, and that there really were very great and very important diversities of local custom of which they tell us nothing expressly.

[1]Law Magazine and Review, 1881–2.

[2]Const. Hist., § 41.

[3]Athelstan, II. 2.

[4]Edgar, III. 6; IV. 3.

[1]Canute, II. 20.

[1]Canute, II. 12–15.

[1]I. 56 b. It is much to be regretted that concerning a large and important part of England (Sussex, Surrey, Hants, etc.), no information is given us.

[2]I. 154 b.

[3]I. 172.

[4]I. 179.

[1]I. 262 b. See also Shropshire, I. 252.

[2]I. 280 b.

[1]I. 298 b.

[2]I. 336 b.

[3]Will. Conq. I.

[1]Littré, in his Dictionary, on many occasions adduces it as eleventh century work. As to the originality of the French version, c. 45 seems to me conclusive, when it is compared with the code of Canute from which it is taken—Canute, II. 24. The Latin writer thinks that voest comes from voir (videre) and makes nonsense of the passage. It really means vouch and has more to do with vocare than videre. See too the absurd Latin rendering of c. 31.

[2]C. 12.

[3]Leges Edwardi Confessoris.

[1]C. 12.

[2]C. 27 (25).

[3]Stubbs, Preface to Hoveden’s Chronicle (Rolls Series), vol. II., p. xlvii. The writer, who has theories of nationality, means men of Norway, not men of Norwich.

[1]Decanus episcopi: the whole document seems full of the interpolations of would-be expositors.

[2]C. 30 (27).

[3]A better reading than Warwickshire.

[4]I think that every one who has said anything of this passage has pointed out that “Anglorum” should be “Danorum,” and this is made still plainer by the MS. spoken of by Stubbs, Preface to Hoveden (loc. cit.), where the following clause runs “and what the English (Angli for alii) call a hundred, these counties call a wapen take.” In the Law Magazine and Review (No. CCXLI. p. 348), I have suggested that the eight miles beyond Watling Street was meant to include the hundred “Dacorum” in Hertfordshire.

[5]C. 33 (30).

[1]He more than once says that Wessex is “caput regni et regum” (70, § 1; 87, § 5), a phrase which is applied to London in one version of the Confessor’s Laws.

[1]Ethelred, III.

[1]C. 7.

[1]Under Ethelred and Canute a reaction seems to have set in against the severe penal laws of their predecessors: Ethelred, v. 3; VI. 10; Canute, II. 2.

[1]“If, as is generally believed, the Anglo-Saxon hundred was the long one of six-score, the tithing ought to have contained twelve, and Fleta speaks of the frank-pledges as dozeins.”—(Stubbs, Const. Hist.,§ 41, note, p. 86.)

[1]Schmid, Gesetze, Glossar. v. Geld-Rechnung.

[1]Leg. Hen. Prim. 48, § 2 “Si totus comitatus, vel vii. hundreta super aliquibus implacitentur.”

[2]p. 45.

[1]Ethelred, VIII. 33; Canute, II. 40; Leg. Hen. Prim. 75, § 6,7.