History of the Origin of Representative Government in Europe

by François Guizot

At this period, England was divided into tithings, hundreds, and counties. This division has been attributed to King Alfred: he seems to be the founder of all the legislation of this epoch, because it all issues in a fixed and precise form from his reign; but he found it already in existence, and did nothing more than arrange it in a written code. He did not, then, originate this division of territory, which appears to be based upon the ecclesiastical partition of the country. After their settlement in Great Britain, the Saxons did not divide it into systematically determined portions, but adopted what they found already established. The portions of territory which were under the direction of the decanus, the decanus ruralis, and the bishop, formed respectively the tithing, the hundred, and the county. We must not, however, suppose that these names correspond precisely to realities. The tithings and hundreds were not all equal in extent of soil and number of inhabitants. There were sixty-five hundreds in Sussex, twenty-six in Yorkshire, and six in Lancashire. In the north of England, the hundreds bore another name; they were called Wapentakes. [Footnote 10] Here the ecclesiastical division ceases, and a military circumscription prevailed, which still subsists in some counties. An analogous circumscription has continued to the present day in the Grisons, in Switzerland.

[Footnote 10: From wapen, weapons, and tac, a touch, i. e. a shaking or striking of the arms; or from the same wapen, and tac, a taking or receiving of the vassal's arms by a new lord in token of subjection; or because the people, in confirmation of union, touch the weapon of their lord. See Blackstone, Introd., sec. 4. and Holinshed, vol. v. p. 37.]

These divisions of the soil had a double object. On the one hand, they formed the most certain means of insuring order and discipline; and on the other hand, they supplied the inhabitants with the most convenient method for transacting their public business in common.

By a police regulation which I have already mentioned, every free individual, above twelve years of age, was obliged to enrol himself in a certain association, which he could not abandon without the permission of the chief. A stranger might not remain for more than two days with a friend, unless his host gave surety for him, and at the end of forty days he was compelled to place himself under the surveillance of some association. It is remarkable that the details of these laws of classification and subordination were almost the same in all those parts of the Roman Empire occupied by the barbarians—in Gaul and Spain, as well as in England. When one of the members of a special association had committed a crime, the association was obliged to bring him to trial. This point has given rise to much discussion among learned men.

The County Courts.

Some have maintained that the association was bail for its members, not only for their appearance before the court of justice, but also for the crime which they might have committed. I think that every Anglo-Saxon association was bound only to bring the culprit to trial. If he had made his escape, the association had to prove, sometimes by twelve and sometimes by thirty witnesses, that it knew nothing of his whereabouts; and it was fined only when it could not produce witnesses to prove that it had not abetted his escape. This obligation of every local corporation to pay for its guilty and absent members, existed also in Gaul at this time. The Gallic corporation was moreover answerable for the execution of the sentence: I do not think this was the case in England, where it was bound only to bring the culprit to trial.

The second object of this division of the land was to appoint centres of union, where the inhabitants might discuss matters of common interest. In every county, and in every subdivision of a county, the landowners held meetings, at which they deliberated upon the affairs of the local association to which they belonged. Originally, therefore, there existed not only county-courts, but also courts of hundred and courts of tithing, which frequently met. By degrees, as the circle of the interests of these little associations continually tended to become larger, the courts of tithing fell into desuetude. The courts of hundred survived for a longer period, and even now retain some shadow of existence. The Saxons, however, dispersed over the country, and busied with their warlike and agricultural labours, gradually lost the habit of attending these meetings. Having scarcely any written rights to defend, and being seldom disturbed in their dwellings, they lived without anxiety for a liberty which was never called in question. The principal guarantee of the liberty of individuals at that time was their isolation: the active surveillance which it requires, when government exercises a direct and frequent influence upon the governed, would have been to them a useless and fatiguing burden. It devolved upon the kings to compel them, as it were, to keep up their old institutions. Athelstane ordained that the county-courts should meet once in every three months. Few persons attended them, and it became necessary to grant further indulgence. The county-courts were allowed to assemble only twice a year. All holders of land were entitled to attend their meetings. The matters discussed were the internal administration of the county, the maintenance of roads and bridges, the keeping in repair of the forts which the Romans had constructed to defend the country against the invasions of the Picts and Scots, and which were still used for the same purpose. All public business was transacted in the county-court, under the presidency of the alderman. At its meetings, military forces were levied, justice was administered, and ecclesiastical affairs were treated of. All public acts, sales, manumissions, wills, were conducted before it, and the publicity of the assembly gave an authentic character to these deeds. Every act, however, was authenticated by a certain number of witnesses, and the deeds were afterwards transcribed and intercalated in the parish Bible.

Origin of the Jury.

In these meetings, also, we discern the origin of the Jury. When there was a trial to be decided, the alderman sent a number of freemen belonging to the same class as the contending parties, to the place where the dispute had occurred, in order to learn the facts of the case. These men were called assessors, and when they returned to the county-court, furnished with the necessary information, they naturally became the judges in the case which they had investigated. The contending parties publicly pleaded their own cause, and were obliged to prove their right by witnesses, compurgatores. It has been a question much debated whether the institution of the jury arose from these witnesses, or from the assessors. In my opinion, it was the product of neither exclusively, but of both combined. The establishment of a great institution has nearly always something complex about it. The jury came into existence in some measure spontaneously, from the amalgamation of the different classes of persons who combined to investigate and decide the case. Under the Anglo-Saxon monarchy, it was not a very clearly defined institution. It was not universally in practice, its rules were frequently infringed upon: and Alfred, who was the restorer of the ancient institutions of the country, hanged an alderman who had given judgment without the co-operation of his assessors.