зб BOROUGH AND COURT
the hundred court, which he had recently organized or re-
organized, the “ riding ’’ is now done by men chosen from the
hundred instead of the seniors of the burh, and the hundred
shares with the offender’s landlord (l.-hlaford) the confiscated
goods which at the earlier date had been divided between the
king and the seniors themselves. Now there is strong reason
for believing that the hundred court was a remodelling of
the ancient folkmoot which seems to have been the only
regular local court in the ninth century,1 and can be safely
identified with the court mentioned in the second law of
Edward.2 Both this court and the hundred court met every
four weeks, the same class of cases came before them and the
name folkmoot still clung to its successor. The natural
conclusion is that the gemot of Athelstan’s law, which also
met frequently and did business which was later done by the
hundred court, was, essentially at any rate, the old monthly
folkmoot. If so, we learn from this law that the meeting-
place of the folkmoot was a burh, and as the nature of its busi-
ness limited the area of its jurisdiction, and there must have
been far more folkmoots than boroughs, burh here must have
its old wider sense of “ king’s fortified house,” which might
or might not have become by this date the nucleus of a village
or of a fortified town. This was the interpretation of the
facts before us which approved itself to Liebermann in 1912,3
and though four years later he chose, strangely enough,4
to translate burh by the colourless Gerichtsstatte, he still held
fast to the identification of the gemot in question with the
ancient folkmoot.
The supposed temporary re-division of the shires of the
South, in the first half of the tenth century, into burghal
districts, each with its court in one of the new boroughs, re-
mains an unproven hypothesis, which has gained more colour
of probability than it deserves from the actual existence of
such districts in the unshired Danelaw. The borough “ thing ”
in each of the Five Boroughs at the end of the century, breach
of whose peace involved a penalty six times as high as that of
the wapentake peace, was clearly no mere urban court.5
1 Liebermann, Ges. ii. 451, § 13 et seq. ! c. 8 ; ibid. i. 144.
a Ibid. ii. 450, § 4 g.
4 Since burh could only have got this general sense because the folk-
moots met at such centres and he had no evidence that they had ceased
to do so.
5III Ethelr. ι, 2 ; Liebermann, Ges. i. 228. Cf. ibid. ii. 451, § 12 e,
where Liebermann does not seem to realize that the court was a district
tribunal.
THE PRE-DOMESDAY EVIDENCE
37
Professor Chadwick’s theory and that which I have pre-
ferred to it above have alike to face the re-appearance of the
ambiguous burh in a judicial context as late as the laws of
Cnut, when the burgal district court, according to its advocate,
had long ceased to exist and the old folkmoot, remodelled
as a hundred, had its meeting-place quite exceptionally in any
sort of burh. The passage in Cnufs laws 1 regulates the oath
which an accused man must take with compurgators to clear
himself from the charge. If of hitherto unblemished reputa-
tion, he was allowed to choose his own compurgators in
minimum number (simple oath) within his own hundred.
A man with a bad record had to clear himself by a simple
oath with compurgators chosen for him from three hundreds
or, if strongly accused, by a three-fold oath similarly chosen
“ as widely as belongs to the burh.” Liebermann’s ultimate
explanation of burh here is that it is used in the general sense
of “ meeting-place of a court,” and the court is the hundred
already mentioned.8 This is not only awkward in itself,
but it breaks the widening range of choice for compurgators in
merciful proportion to the badness of the offender’s local re-
putation. If the concession were made in one case, why not in
the other ? The passage is obscure, but it seems possible that
the reference is after all to a borough and that the explanation
lies in some such centralization of the more elaborate part of
judicial procedure as we find in certain quarters after the
Conquest. Failure in making the oath involved resort to the
ordeal, and this required a church, a priest, if not a bishop,
apparatus for the hot iron and hot water tests and a deep
pit (fossa) for that of cold water.3 The hundred centres were
often uninhabited spots convenient as meeting-places, but
not for such procedure as this. There is perhaps actual record
of this centralization in Ethelred’s ordinance that all vouching
to warranty and every ordeal in the district of the Five
Boroughs should take place in “ the king’s borough ” (byrig),i
and in Cnut’s general law that there should be the same system
of purgation in all boroughs,5 though Liebermann preferred
ɪ II Cnut, 22 ; Liebermann, Ges. i. 324. a Ibid. iii. 205.
8 A thirteenth-century custumal of the manor of Wye in Kent, the
caput of the possessions of Battle Abbey in that county, records that
seven hundreds had no fosse of their own and their men had to go to Wye
for the ordeal (Custumals of Battle Abbey (Camden Soc., 1887), p. 126).
The abbey took two-thirds of the perquisιta accruing, the remaining third
going to the king.
* III Ethelr. 6, ɪ ; Liebermann, Ges. i. 230.
8 II Cnut, 34 ; op. cit. i. 336.