declare that the land is not to be free from them. These burdens, three
in number, are on a few occasions spoken of as the _trinoda necessitas_.
That term has become common in our own day and is useful. The land is
not to be free from the duty of army-service, the duty of repairing
strongholds, the duty of repairing bridges. An express exception of this
_trinoda necessitas_ out of the general words of immunity is extremely
common. Moreover there are charters which speak as though no lands could
ever be free from the triple charge[972], and a critic should look with
some suspicion upon any would-be land-book which expressly purports to
break this broad rule. But besides some books which do expressly purport
to free land from the _trinoda necessitas_[973], we have a considerable
number of others which grant immunity in wide terms and make no
exception of army-service, bridge-bote or burh-bote[974], and we are
hardly entitled to reject them all merely because they do not conform to
the general principle[975]. More to our purpose is it to notice that,
though a grant of jurisdictional powers would be an extremely different
thing from a grant of immunity from army-service, the duty of attending
the national or communal courts is extremely like the duty of attending
the host, and it would not be extravagant to argue that when the king
says 'I free this land from all secular burdens except those of
fyrd-fare, burh-bote and bridge-bote,' he says by implication 'I free
this land from suit to shires and hundreds.'
[The _ángild_.]
But yet more important is it to notice that charters of the ninth
century frequently except out of the words of immunity not three
burdens, but four. In addition to the _trinoda necessitas_, some fourth
matter is mentioned. Its nature is never very fully described, but it is
hinted at by the terms _ángild_, _singulare pretium_, _pretium pro
pretio_. In connexion with these charters we must read others which
exempt the land from 'penal causes,' or _wíte-rǽden_ and others which
expressly grant to the donee the 'wites' or certain 'wites' issuing from
the land; also we shall have to notice that there are dooms which decree
that certain 'wites' are to be paid to the land-lord or _land-ríca_. Now
_ángild_ (_singulare pretium_) is a technical term in common use[976].
When a crime has been committed--theft is the typical crime which the
legislators have ever before their eyes--the _ángild_ is the money
compensation that the person who has been wronged is entitled to
receive, as contrasted with any wite or fine that is payable to the
king. We find, then, a charter saying that certain land--not certain
persons, but certain land--is to be free from all secular burdens save
the _ángild_, and in some cases it will be added that the land is to pay
nothing, not one farthing, by way of wite, or that nothing is 'to go out
to wite[977].' Of the various interpretations that might possibly be put
upon such words one may be at once rejected. It is not the intention of
the king who makes or of the church which receives the grant that crimes
committed on this land shall go unpunished. No lord would wish his
territory to be a place where men might murder and steal with impunity.
We may be certain then that if a crime be committed, there is to be a
wite; but it is not to go outside the land; the lord himself is to have
it. But how is the lord to enforce his right to the wite,--must he sue
for it in the national or communal courts, or has he a court of his own?
[The right to wites and the right to a court.]
This question is difficult. The ancient charters, however nearly they
may go to telling us that the donee will do justice within his
territory, never go quite that length. There is, however, a book granted
by Cenwulf of Mercia in 816 to the church of Worcester which adds to the
clause of immunity these words--'and if a wicked man be three times
captured in open crime, let him be delivered up at the king's tún
(_vicum regalem_)[978].' This seems to tell us that only the worst
offenders will be delivered up to the royal or national officers and to
imply that the bishop may do justice upon all others. Then there are two
books in favour of the church of Abingdon, the one granted by Cenwulf in
821, the other by Egbert in 835, which, though their language is very
obscure, seem to tell us that if one of the 'men of God' (by which
phrase are meant the 'vassals' of the church of Abingdon) be accused of
any crime, the overseer of the church may swear away the charge by his
own oath, and that, if he dare not swear, he may pay the _ángild_ to the
plaintiff and, this done, will have justice over the offender[979].
Another ancient book suggests that the lord of an immunity, when he had
to pay the _ángild_ for one of his men, could not be forced to cross the
boundary of his land. On that boundary some mixed tribunal would meet
consisting partly of his men and partly of outsiders[980]. Then, again,
there are the books which either give the lord the _furis comprehensio_
or else exempt his land from the _furis comprehensio_. Now when a writ
of Cnut or Edward the Confessor tells us that a lord is to have
_infangennethef_ we do not doubt that he is to have the right which bore
that name in later days, the right to hold a court for and to hang
thieves who are caught in seisin of the stolen goods, and to the _furis
comprehensio_ of the older books we can hardly give another meaning. And
the apparent equivalence of the two phrases 'You shall hold this land
with thief-catching' and 'You shall hold this land free of
thief-catching' illustrates our argument that to exempt land from public
or national justice is to create private or seignorial justice[981]. We
may see this in later days; a lord who holds land 'free and quit of
frankpledge' assumes the right to hold a view of frankpledge, and we can
not say that he is wrong in so doing[982].
[The Taunton book.]
Lastly, in a book of fairly good repute we may read of the grand
liberties with which in 904 King Edward endowed the Bishop of
Winchester's large estate at Taunton--that estate which in subsequent
centuries was to become the classical example of colossal manors. 'I
have,' says the king, 'granted to Christ that the men of the bishop,
noble as well as non-noble, living on the said land shall be worthy of
the same right that is enjoyed by those who dwell on the demesnes of the
crown, and that jurisdiction in all secular causes shall be exercised to
the use of the bishops in the same manner as that in which jurisdiction
is exercised in matters pertaining to the king[983].' This is the more
important because it suggests, what like enough is true, that the king
himself is one of the first of all 'immunists'; his own estates, the
ancient demesne of the crown, already stand outside the national system
of finance, justice and police[984].
[The immunist and the wite.]
But so careful must we be in drawing inferences from singular instances,
so wary of forgeries, that in the end we can not dispense with arguments
which rest rather upon probabilities than upon recorded facts. It is
conceded that the 'immunist' (it is convenient to borrow a term that
French writers have coined) is entitled to many of the fines and
forfeitures that arise from offences committed within his territory. Is
it, we must ask, probable that any ealdorman or sheriff will be at pains
to exact and collect these fines and forfeitures for the immunist's
benefit? Now it is true that in later days a few lords enjoyed a
comparatively rare franchise known as _amerciamenta hominum_. When their
men were amerced in the king's court the amercements were paid into the
exchequer, and then the lord would petition to have them paid out to
him[985]. But this was an uncommon and an exalted franchise. As a
general rule, the person in whose name a court is held, be he king or
lord, gets the profits of the court. No one in the middle ages does
justice for nothing, and in the ninth century the days when national
officers would be paid by salary were far distant. When the king
declares that nothing is to 'go out' of the immunist's lands 'by way of
wite,' then to our thinking he declares that, save in exceptional cases,
he and his officers will neither meddle nor make with offences that are
committed within that territory. Again, though we may reject this
charter and that, there can be little doubt that before the end of the
tenth century, the territory held by a church sometimes coincided with a
jurisdictional district, with a hundred or group of hundreds. When this
was so, and the church enjoyed a full immunity, it was almost of
necessity the lord of the court as well as the lord of the land. Why
should the sheriff hold that court, why should he appoint a bailiff for
that hundred, if never thereout could he get one penny for his own or
the king's use?
[Justice and jurisdiction.]
We must once more remember that even in the days of full grown feudalism
the right to hold a court was after all rather a fiscal than a
jurisdictional right. We call it jurisdictional, but still, at least
normally, the lord was, neither in his own person, nor yet in the person
of his steward, the judge of the court[986]. His right was not in
strictness a right _ius dicendi_, for the suitors made the judgments.
When analysed it was a right to preside over a court and to take its
profits. Very easy therefore is the transition from a right to 'wites'
to such 'jurisdiction' as the feudal lord enjoys. When once it is
established that all the fines of a hundred court are to go to a bishop,
that no sheriff or bailiff will get anything by going to hold that
court, then the court already is 'in the bishop's hands.'
[The Frankish immunity.]
This, however, can not be treated as a merely English question. Parallel
to the English _fréols-bóc_ runs the Frankish _carta immunitatis_, and,
if the former has given rise to the question whether it conceded
jurisdictional rights, the latter has given rise, not merely to the same
question, but to much learned controversy. Now it is highly probable
that the English 'immunity' is not independent of the Merovingian
'immunity'; still the terms of the former do not seem to have been
copied from those of the latter, and it is a significant fact that two
different formulas should be equally open to the blame of not deciding
just that most important question which according to our ideas they
ought to decide. The Frankish formula is addressed by the king to his
subordinates and declares that no public officer (_nullus iudex
publicus_) is to enter the land of the immunist for the purpose of
hearing causes, levying _freda_ (which answer to our 'wites'), making
distresses or exacting pledges; but, like our English formula, it says
no word of any court to be held or any jurisdiction to be exercised by
the immunist. It would be impertinent to give here any lengthy account
of the various opinions about this matter that have been held by foreign
scholars, still more impertinent to pronounce any judgment upon them,
but even those writers who seem most inclined to minimize the scope of
the immunity are forced to admit that, as a mere matter of fact, the
immunist by virtue of his immunity is enabled to hold a court for his
territory. That seignorial courts were growing up even in the
Merovingian time, that such courts there were even in the sixth century,
there seems little or no doubt, even though it be denied that they were
the creatures of these clauses of immunity. On the whole, to whichever
side of the channel we look, we seem compelled, alike by the words of
the charters and by the controversies which they have occasioned, to
believe that in the eyes of the kings and the immunists seignorial
jurisdiction, that right to hold a court which seems to us so strange a
right, was not a matter of the first importance, not worth conceding,
not worth denying. Who is to have the profits of justice?--that is a
momentous question. But if it be decided that they are to go to the
bishop, then the king will have no further care for them:--the bishop
may and must get them for himself. As to the 'justiciables,' it may well
be that they are very indifferent about the matter, not impossible that
the burden of suit will be alleviated if the lord establishes a court of
his own, or if an old court passes into his hands[987].
[Seignorial and ecclesiastical jurisdiction.]
One other question should be raised, even if we can find for it no
certain answer. Is not seignorial jurisdiction very closely connected at
its root with ecclesiastical jurisdiction? Of course in more recent
times the two are thoroughly distinct from each other. The bishop,
besides being a spiritual judge, will be a feudal lord with many
manorial courts and many chartered franchises; but any court that he
holds as a lord will have nothing to do with the court that he holds as
a bishop. The constitution and procedure of the one will differ at every
point from the constitution and procedure of the other. The one belongs
to the temporal order and is subject to the king's court, the other
belongs to the spiritual order and is in no sense below the royal
tribunal. Thus it is when feudal law and canon law have reached their
full stature. But even from the twelfth century we may get a hint that
the distinction has not always been so sharply marked. We may read how
in Henry I.'s day the Bishop of Bath 'with his friends and barons' heard
a cause in which Modbert claimed lands that were held by the monks of
Bath. The proceedings took place under a royal writ and ought, we should
say, to have been in all respects temporal proceedings; but in framing
the judgment two bishops, three archdeacons and several 'clerks and
chaplains' took the leading part, while the lay tenants of the bishop
stood by as witnesses[988]. In this context we must remember that in the
twelfth century the clergy were contending that land given to a church
in frankalmoin is outside the sphere of secular justice[989], and, while
this contention was being urged, it was easily possible that a bishop
should hold an amphibious court:--Over the claim that Modbert is making
the bishop has jurisdiction, either because the monks are holding the
land of him as his tenants, or because that land has been given to God
and the saints by an ancient book which denounced the anathema against
all who should violate it. Going back yet further, we see, at all events
in France, that the claim of the clergy to hold their lands and
seignories exempt from all temporal jurisdiction has been intimately
connected with the claim of the clergy that they themselves need not
answer before a lay tribunal. A learned man has said that the exemption
of the clergy from the temporal courts was 'the first step towards the
feudalization of justice[990].' If our English documents do not make
this plain, if the relations between church and state were more
harmonious in England than elsewhere (and because more harmonious
therefore more indefinite and to the modern student more perplexing),
still we can see that the main idea of the English _fréols-bóc_ is the
liberation of a tract of ground from all secular troubles, all temporal
burdens, all earthly service. The land is dedicated to God and the
saints, or, if it is not dedicated in the strictest sense, it is given
for God's sake and the welfare of the donor's soul; it is within the ban
of the church. And so the men who sit upon the land of the church of
Abingdon, laymen though they be, are _homines Dei_, the men of God[991].
As such, should they not be subject to the jurisdiction of the church?
[Criminal justice of the Church.]
At this point we may profitably remember that the jurisdiction which in
later days appears as the 'criminal jurisdiction' of ecclesiastical
tribunals (the jurisdiction which, for example, those tribunals exercise
when they chastise a man for incest, fornication or perjury) was but
slowly disengaged from the general mass of penal jurisdiction that was
wielded by moots in which the bishop occupied a prominent seat.
Moreover, the bishop's justice did not escape that fiscal taint which
pervaded the whole system of criminal law. As in some cases the king is
entitled to a _wite_, so in others the _wite_ falls to the bishop. For
instance, we see traces of a rude _concordat_, which, when incest or
adultery is committed, subjects the woman to the bishop, the man to the
king[992]; and then from Domesday Book we learn that in the borough of
Lewes the upshot of this partition is that the king will get 8_s._ 4_d._
from the man while the adulteress pays a like sum to the archbishop of
Canterbury[993]. And so ecclesiastical jurisdiction becomes a source of
income, a matter to be fought for and bargained for. The monks of Battle
will claim that within the _banlieu_ of their abbey all the 'forfeitures
of Christianity' belong to them and not to the bishop of
Chichester[994]. What is more, they will connect their claim to purely
temporal justice with their possession of ordeal pits, and here we may
see another link between the hundred-moots and the churches[995]. The
churches have made money out of the ordeal. Long after the English
prelates had been forbidden to hold spiritual pleas in the hundred
courts, Alexander III. was compelled to speak sharply to the archbishop
of Canterbury touching the conduct of archdeacons who exacted thirty
pence from every man or woman who went to the fire or the water for
purgation[996].
[Antiquity of seignorial courts.]
No doubt the theory to which we have been led implies that in the eighth
or even in the seventh century, there were in England 'immunists' who
had jurisdiction within their territories, and further it implies that a
royal grant of land in the ninth and tenth centuries generally included,
and this as a matter of 'common form,' a grant of jurisdiction. We
cannot see either in the history of England or in the history of the
Frankish Empire any reason why we should shrink from these conclusions.
Further, it must be admitted that if the clause of immunity conveys, or
permits the growth of, seignorial jurisdiction, this jurisdiction is of
an exalted kind, for no causes are excepted out of it, unless it be by
the words about the _ángild_, and even those words drop out from the
charters in course of time. Those words about the _ángild_ imply, to our
thinking, that the immunist will have jurisdiction over any dispute
which arises between two men of the enfranchised territory, and also
that if an action against one of these men be brought by a 'foreigner'
in a court outside the precinct, the immunist can obtain 'cognizance' of
the action by appearing in that court and paying the _ángild_. When the
words about the _ángild_ disappear, this means that the immunist is
obtaining a yet further measure of 'liberty':--whenever one of his men
is sued he can 'crave his court' and need not, as a condition for
obtaining it, offer to pay what is due to the plaintiff. The highest
criminal jurisdiction was probably excepted from the grant. Being a
grant of wites, it will not extend to the 'bootless' the 'unemendable'
crimes. But Cnut's attempt to save for himself certain pleas of the
crown looks to us like the effort of a strong king to recover what his
predecessors have been losing[997]. And then Cnut himself and the
Confessor,--the latter with reckless liberality--expressly grant to the
churches just those very reserved pleas of the crown. The result is
that the well endowed immunist of St. Edward's day has jurisdiction as
high as that which any palatine earl of after ages enjoyed. No crime,
except possibly some direct attack upon the king's person, property or
retainers, was too high for him. It is the reconstruction of criminal
justice in Henry II.'s time, the new learning of felonies, the
introduction of the novel and royal procedure of indictment, that reduce
the immunist's powers and leave him with nothing better than an
unintelligible list of obsolete words[998]. In this matter of seignorial
justice England had little to learn from Normandy. On the contrary, the
Norman counts and barons were eager to secure the uncouth phrases which
gave to the English immunist his justice, 'haute, moyenne et basse
justice.'
[Sidenote: Justice, vassalage and tenure.]
Our next question must be whether in the days before the Conquest a
franchise or immunity was the only root of private jurisdiction: in
other words, whether any jurisdiction was implied in the mere relation
between lord and man or between lord and tenant. This also is a question
which will hardly be finally answered if regard be had only to the
English documents. For France it is the question whether the _senior_,
as such, has jurisdiction over his _vassus_, or again, whether he has
jurisdiction over his _vassus_ if, as is usually the case in the
Carlovingian age, the _vassus_ holds a _beneficium_ given to him by his
_senior_. The English dooms which deal with what we may call the
justiciary relationship between lord and man closely resemble in many
respects the Frankish capitularies which touch the same subject; both
sets of documents seem to evade the simple question that we put to them.
But as regards the continent it may here be enough to say that, though
there have been many debates, the current of learning seems to have set
decidedly in favour of the doctrine that neither in Merovingian nor yet
in Carlovingian times had the _senior_, unless he was an immunist, a
jurisdiction over his men. Such a jurisdiction has not been developed
when the midnight hides everything from our view. When the morning
comes, feudal justice stands revealed, though nowhere perhaps is it
governed by that simple principle that ultimately prevailed in England,
namely, that any and every lord, no matter his personal rank or the rank
of his tenement, has civil justice over his tenants.
[The lord's duty when his man is accused.]
The possibility of debate about this matter is afforded by texts of an
earlier age, which at times seem to speak of the lord as 'doing justice'
when a charge is brought against any of his men[999]. Our English run
parallel with the Frankish texts. The state in its organization of
justice and police does not treat the contract between man and lord,
between _senior_ and _vassus_, as a matter of indifference, still less
as a danger to society. We must not think of feudalism or vassalism as
of something which from the very first is anti-national and anarchic. In
its earliest stages it is fostered by the state, by the king, by
national law. The state demands that the lordless man of whom no right
can be had shall have a lord[1000]. It makes the lord responsible for
the appearance of his men in court to answer accusations[1001]. It is
not unlikely that the whole system of frankpledge grows out of this
requirement. In some instances the state may go further; it may treat
the lord, not merely as bound to produce his man, but as responsible for
his man's evil deeds. But, at all events, any one who has a charge to
make against a lord's man must in the first instance demand justice of
the lord. If without making such a demand, making it repeatedly, he
brings the charge before the king, he must pay the same fine that the
lord would have paid had he been guilty of a default of justice[1002].
'Of a default of justice' we say and are compelled to say. It is phrases
such as this that have occasioned controversy. To an ear attuned to the
language of feudalism they seem to imply a seignorial court in which the
lord 'does justice' or 'holds full right' to the demandant. But to all
appearance they have gradually changed their meaning. Originally a lord
'does right' to the demandant by producing in a public court the man
against whom the claim is urged; or he does it by satisfying the claim,
and in that case he seems entitled to exact from his man, not merely a
sum which will compensate the outlay, but also the 'wite' or fine which
in another case would have gone to the king or some national officer. He
has thus 'done justice' and may have the usual profit that comes of
doing justice. Probably we ought to distinguish between a laxer and a
stricter measure of responsibility, between the lord's responsibility
for his men in general and his responsibility for such of his men as
form his _familia_, in the language of later days his _mainpast_; but
our texts do not lay much stress upon this distinction, and, as a matter
of remote history, the relation between lord and man may grow out of the
relation between the head of a household and the members of it[1003].
[Duty of the lord.]