person, namely, the wrong-doer's lord, between the wrong-doer and the
wronged: it is to this lord that the claimant should in the first
instance address himself. The lord who does his duty by the king and the
nation is he who keeps a tight hold on his men, who chooses them
carefully, who dismisses them if they are bad subjects, who 'does
justice' and 'holds full right' if any of them be accused. Then, on the
other hand, he has the right and duty of 'warranting' his men. If, as
will often happen, the bond between a lord and his man is complicated
with the bond between landlord and tenant, then, as in later days, if
the tenant's title be impeached, he will vouch his lord to warranty and
the lord will defend the action. But, besides this, within limits that
are not well defined, the lord is the man's _defensor_ or _tutor_[1004].
It is expected of him by morality, if not by law, that he will take upon
himself the responsibility for his man's acts if they be not open
crimes. He must stand by his men and see them through all trouble[1005].
[The state requires the lord to 'do right.']
For a while the state approves all this. The dangerous person is, not
the lord, whose wide lands are some security for his good behaviour, but
the lordless man of whom no right can be had. Somehow or another theft
must be suppressed. This is the determination of our strongest kings, of
our wisest 'witan.' That they are raising up over against the state
another power, the power of seignorial justice, they do not see. And,
after all, these 'witan' both laymen and clerks are themselves great
lords, and the king is the lordliest of them all. Thus the foundation
for a feudal jurisdiction is laid. Still between the lord's duty of
producing his men and his right to hold a court of and for his men there
is to our eyes a great gulf. We have seen above that this gulf had not
been bridged even in the Confessor's, even in the Conqueror's day[1006].
Nor to our thinking would it have been bridged but for the creation of
'immunities' upon a grand scale. The first origin of the immunity we
have sought in the efforts of the clergy to obtain lands which should be
utterly exempt from 'all earthly burdens,' 'all worldly business.' But
this effort unites with the stream of tendency that we have now been
watching. The state will be grateful to the church if it will 'hold all
the men of God to right' and do judgment between them and upon them.
[Sidenote: The _land-ríca_ as immunist.]
There is also a long series of dooms going back as far as Æthelstan's
reign which give certain fines and forfeitures to one who is described
as the _land-hláford_ or the _land-ríca_. Remarkable they are, for they
seem to assume that wherever a crime is committed there will be
forthcoming some-one who will answer to the title 'the land-lord' or
'the territorial magnate.' In some sense or another they presuppose that
there is _Nulle terre sans seigneur_. But who is this 'landlord'?
According to our thinking, he is the lord of the hundred or else the
lord who has a charter of immunity comprehending the land in question,
and, if there be no person answering to this description, then he is the
king. In the first place, in certain dooms relating to London we are
told that, when a thief is caught and slain, his property is to be
divided into two parts, of which his wife takes one, while the other is
divided between the king and 'the association' (perhaps we may say 'the
gild') which was engaged in the pursuit and capture; 'but if it be
book-land or bishop's-land, the landlord takes half with the association
in common[1007].' This seems to mean that there will be a lord to share
in the proceeds of the forfeiture if, but only if, the scene of the
capture be land that is within an immunity. It is assumed, not without
warrant in the land-books, that the man who has book-land always, or
almost always, enjoys an immunity, while as to the bishop's-land,
whether the bishop be holding it in demesne or have granted it out to
his thegns, that no doubt will be protected by an ample charter. So
again, in another law 'the lord' receives the thief's _wer_ 'if he [the
lord] is worthy of his wite[1008]': that is to say, the lord receives
it if he is in enjoyment of an immunity which confers upon him a right
to 'wites.' Then again, in several cases we find that the land-lord or
_land-ríca_ shares the proceeds of a fine with the hundred or
wapentake[1009]. This, as we think, points to the fact that the hundreds
and wapentakes are passing into private hands. These laws are severe
laws against criminals. They urge all men to the pursuit of the flying
thief and they hold out a reward to those who are active in this duty.
The men of the hundred are to have half the thief's property, while the
lord (who in many cases will be the lord of the hundred) is to have the
other half. He is to have no more, even though his charter may seem to
give him more. So again, in certain cases an accused person must find
security that he will stand a trial, and the gage is to be given 'half
to the _land-ríca_, half to the wapentake[1010].' This _land-ríca_ is
the lord of the wapentake. In another instance the gage must be given
half to the _land-ríca_ and half to the king's port-reeve[1011]. Then
there are cases in which the 'land-lord' is to take possession of cattle
that have been irregularly acquired and are presumably stolen, and is to
preserve them until their true owner shall make his appearance[1012].
These provisions, which seem the foundation of the 'franchise of waif
and stray,' suggest that the 'land-lord' is the president of the court
into which the owner must go when he wishes to prove his title; were
this not so, the king's reeve would be the person who would have the
custody of the unclaimed beasts. Certainly our explanation of these
passages assumes that a hundred is often in private hands and it assumes
that, when this is not the case, then the king is regarded as the lord
of the hundred. But in so doing it merely assumes that the state of
things revealed by Domesday Book is about a century old. When in that
record we read that the soke of four and a half hundreds in Oxfordshire
'belongs to' the royal manor of Bensington, that the soke of two
hundreds 'belongs to' the royal manor of Headington, that the soke of
other two hundreds 'belongs to' the royal manor of Bampton, we see that
the king is the lord, the proprietor, of those hundreds which have no
other lord[1013]. From the laws now before us we infer that this is no
very new arrangement. But of course it is possible that those laws have
divers cases in view. It may be that within the hundred there is an
immunity, a privileged township or manor, and that a thief is caught
there. Who is to have the profits which arise from the crime and
condemnation? The answer is: Half shall go to the hundred, half to the
_land-ríca_, that is to say, half goes to the doomsmen, or perhaps to
the lord, of the hundred court, half to the immunist. The lord under the
general words of his charter might perchance claim the whole; but, in
order that all the hundredors may have an interest in the pursuit of
thieves, it is otherwise decreed. But where is justice to be done, in
the hundred court or in the court of the immunist? That is a question of
secondary importance to which our laws do not address themselves. Very
probably justice will be done in the hundred court, or again it is not
impossible that a mixed tribunal consisting partly of the men of 'the
franchise,' partly of the men of 'the geldable' will meet upon the
boundary of the immunist's land[1014]. Our main point must be that the
land-lord or _land-ríca_ of these laws is an immunist, or is the king,
who, where there is no immunity, occupies the position of an immunist.
[The immunist's rights over free men.]
We see too that the immunist's rights extend over free men and over free
landowners. If a man is guilty of heathenry he must, if he be a king's
thegn, pay ten half-marks, half to Christ and half to the king, but if
he be another 'landowning man' then he pays six half-marks, half to
Christ and half to the _land-ríca_[1015]. The landowner normally has a
land-lord above him. We see also that the lord is made liable for the
payment of dues which are ultimately exigible from those who are
dwelling within his territory. 'If a king's thegn or other _land-ríca_
makes default in paying Peter's pence, he must pay ten half-marks, half
to Christ and half to the king; if a "towns-man" makes a similar
default, the _land-ríca_ must pay the penny and take an ox from the
defaulter, and if the _land-ríca_ neglects to do this, then Christ and
the king shall receive the full _bót_ of twelve ores[1016].' Such is the
manner in which the lord's power is consolidated. He begins to stand
between his free men and the state, between his free men and the church.
[Delegation of justiciary rights.]
Another consequence of the argument in which we have been engaged is
that, at least a century before the Conquest, the great immunists were
granting immunities to their dependants. From this consequence we shall
not flinch. Bishop Oswald, for example, was an immunist on a splendid
scale, and when he loaned land to a knight and said that the land was to
be 'free from all secular service' save the _trinoda necessitas_, he
loaned not merely land, but immunity and jurisdiction. On one occasion,
adopting a formula that has lately come before us, he said that nothing
was to go out of the land by way of _wite_[1017]. By this we understand
that he gave to his thegn any wites which might thereafter be incurred
by the inhabitants of the manses which were comprised in the loan, and
further that he gave him the right to hold a court. Domesday Book
requires us to believe that such transactions had not been
uncommon[1018].
[Number of immunists.]
Will our attempt to explain the land-books create too many holders of
sake and soke? We do not think so, for we do not think that the number
of land-books should be indefinitely multiplied by our imaginations. If
we look in Domesday Book at the counties which lie south of the Thames,
we shall indeed see that the total amount of land of which the churches
are tenants in chief is very large. But the number of these landowning
churches is small. When we have named seven episcopal and a dozen
abbatial minsters we have disposed of by far the greater bulk of the
church lands in this district, and these minsters are as a general rule
just those which have transmitted to us in cartularies and chronicles
the story of their acquisitions. To churches that were destroyed by the
Danes we may allot some charters; but we should have no warrant for the
supposition that royal diplomata have perished by the hundred and left
no trace behind. In the shires of York, Lincoln, Nottingham, Derby we
might allow sake and soke to every English prelate who appears as a
tenant in chief and yet not raise to twelve[1019] the number of the
ecclesiastical immunists who had lands in this wide region. As to the
lay holders of sake and soke, they were not very many though they held
broad lands; also they belonged for the more part to an exalted
class[1020]. However, here as elsewhere we must admit that every
attempted explanation discloses new problems.
NOTE.
_The Ángild Clause._
As we have said above, (p. 274), there are certain charters in
which the clause of immunity makes mention of the _ángild_
(_pretium pro pretio, singulare pretium_). We will here collect the
obscure texts in which this difficult term occurs.
First, however, we will call attention to a passage in Domesday's
account of Worcestershire (D. B. i. 175 b), which throws some light
on the matter. Westminster Abbey holds 200 hides and Pershore Abbey
holds 100 hides. 'The county says that the church of Pershore is
entitled to church-scot from all the 300 hides [its own 100 and
Westminster's 200], to wit, from every hide on which a free man
dwells one load of corn on St. Martin's day, (if he has more hides
than one, they are free), and if that day be infringed [i.e. if
payment be not made thereon], he who has kept back the corn must
pay elevenfold, but first must pay what is due [i.e. he altogether
pays twelve loads--"God's property and the church's twelve-fold"
(Æthelb. 1.)]; and the Abbot of Pershore will have a wite
(_forisfactura_) from his own 100 hides, such as he ought to have
from his own land; but from the other 200 hides he will have the
multifold payment of the corn that is due (_habet summam et
persolutionem_) and the Abbot of Westminster has the wite
(_forisfacturam_).' For _solvere et persolvere_, see Laws of
William (Select Charters) c. 5; for _solta et persolta_, see Dial.
de Scac. ii. 10.
If then, a Westminster tenant fails to pay church-scot to Pershore,
he must make _bót_ (very ample _bót_) to Pershore, but his _wite_
will go to his own lord; nothing is to 'go out to _wite_' from the
Westminster land. We will now turn to the land-books. We take them
to be saying in effect that in such a case as that put by Domesday
the grantee of the immunity is to have his man's wite, though the
restitutory _bót_ will go to another.
(i) A.D. 767. Uhtred of the Hwiccas. K. 117 (i. 144); B. i. 286:
'interdicimus ut si aliquis in hac praenominatam terram aliquid
foras furaverit alicui solvere aliquid nisi specialiter pretium pro
pretio ad terminum ad poenam nihil foras.' We should place a stop
after _terminum_. Then the last clause means 'nothing shall go out
to wite.' The mention of the _terminus_ suggests a payment at the
boundary of the immunist's land.
(ii) [Questionable]. A.D. 799. Cenwulf. K. 176 (i. 213); B. i. 411:
'de partibus vero et de causis singulare solvere pretium et nihil
aliud de hac terra.'
(iii) A.D. 799-802. Pilheard. K. 116 (i. 142); B. i. 284: 'ut ab
omnium fiscalium redituum operum onerumque seu etiam popularium
conciliorum vindictis nisi tantum pretium pro pretio liberae sint
in perpetuum.'
(iv) A.D. 814. Cenwulf of Mercia for the church of Worcester. K.
206 (i. 259); B. i. 489: 'exceptis his, expeditione et pontis
constructione, et singulare pretium foras, nihilque ad poenam
resolvat.'
(v) Cenwulf of Mercia for the church of Worcester. K. 215 (i. 271);
B. i. 507: 'exceptis his, arcis et pontis constructione et
expeditione et singulare pretium foras adversum aliud; ad poenam
vero neque quadrantem minutam foras resolvat.'
(vi) A.D. 822. Ceolwulf of Mercia for Archbishop Wilfred. K. 216
(i. 272); B. i. 508: 'liberata permaneat in aefum nisi is quattuor
causis quae nunc nominabo, expeditione contra paganos ostes, et
pontes constructione sui [=seu] arcis munitione vel destructione in
eodem gente, et singulare pretium foras reddat, secundum ritam
gentes illius, et tamen nullam penam foras alicui persolvat.'
(vii) A.D. 831. Wiglaf of Mercia for the archbishop. K. 227 (i.
294); B. i. 556: 'nisi his tantum causis, expeditione et arcis
munitione pontisque constructione et singulare pretium contra
alium.'
(viii) A.D. 835. Egbert of Wessex for Abingdon. K. 236 (i. 312); B.
i. 577: 'de illa autem tribulatione que witereden nominatur sit
libera, nisi tamen singuli pretium solverit ut talia accipiant.
Fures quoque quos appellant weregeldðeofas si foras rapiautur,
pretium eius dimidium illi aecclesiae, et dimidium regi detur, et
si intus rapitur totum reddatur ad aecclesiam.'
(ix) A.D. 849. Berhtwulf of Mercia for his thegn Egbert. K. 262
(ii. 34); B. ii. 40: 'Liberabo ab omnibus saecularibus servitutibus
... nisi in confinio rationem reddant contra alium.'
(x) A.D. 855. Burhred of Mercia for the church of Worcester. K. 277
(ii. 58); B. ii. 88: 'nisi tantum quattuor causis, pontis et arcis,
et expeditione contra hostes, et singulare pretium contra alium, et
ad poenam nihil foras resolvat.
(xi) A.D. 883. Æthelred of Mercia for Berkeley. K. 313 (ii. 110);
B. ii. 172: 'and þæt ic þæt mynster fram æghwelcum gafolum gefreoge
þe to þiode hlafarde belimpeð, littles oððe micles, cuðes ge
uncuðes, butan angilde wið oþrum and fæsten gewerce and fyrd socne
and brycg geweorce ... æghwelces þinges to freon ge wið cyning, ge
wið ealdorman, ge wið gerefan æghwelces þeodomes, lytles and
micles, butan fyrd socne and fæsten geworce and brycg geworce and
angylde wið oðrum and noht ut to wite.'
(xii) A.D. 888. Æthelred of Mercia for a thegn. K. 1068 (v. 133);
B. ii. 194: 'liberam hanc terram describimus ab omnibus causis nisi
singulare pretium contra aliud ponat et modum ecclesiae.' Is the
_modus_ [or _modius_] of the church the church-scot?
In a few other cases the immunity mentions penal causes,
'witeræden,' and no express exception is made of the _ángild_.
Thus:--
(xiii) A.D. 842. Æthelwulf for a thegn. K. 253 (ii. 16); B. ii. 13:
'ut regalium tributum et principali dominacione et vi coacta
operacione et poenalium condicionum furis comprehensione ... secura
... permaneat.'
(xiv) [Questionable]. A.D. 844. Æthelwulf for Malmesbury; one of
the documents reciting the famous 'donation.' K. 1048 (v. 93); B.
ii. 26; H. & S. iii. 630: 'ut sit tutus et munitus ab omnibus
saecularibus servitutis, fiscis regalibus, tributis maioribus et
minoribus, quod nos dicimus witereden.'
(xv) A.D. 877. Bp. Tunbert. K. 1063 (v. 121); B. ii. 163: 'a
taxationibus quod dicimus wite redenne.'
The most detailed and at the same time the most hopelessly obscure
information that we get is such as can be obtained from two
Abingdon charters.
A.D. 821. Cenwulf. K. 214 (i. 269); B. i. 505; H. & S. iii. 556:
'Si pro aliquo delicto accusatur homo Dei aecclesiae ille custos
solus cum suo iuramento si audeat illum castiget. Sin autem ut
recipiat aliam iusticiam huius vicissitudinis conditionem praefatum
delictum cum simplo praetio componat.'
A.D. 835. Egbert. K. 236 (i. 312); B. i. 577; H. & S. iii. 613. The
same clause, but with _alienam_ instead of _aliam_. Also the
following:--'De illa autem tribulatione que witereden nominatur sit
libera nisi tamen singuli [_corr._ singulare?] pretium solverit ut
talia accipiant [accipiat?].'
This is very dark. Our best guess as to its meaning is this:--If a
man of God, that is, a tenant of the church, is accused of crime,
the _custos_ of the church (this may mean the abbot, but more
probably points to his reeve) may by his single oath purge the
accused. But if he dare not do this, then he (the abbot or reeve)
may pay the _bót_ that is claimed, and by performing this condition
he may obtain a transfer (_vicissitudo_) of the cause and do what
other justice remains to be done, i.e. he may exact the _wite_. So
in the second charter the abbot may pay the _bót_, the _singulare
pretium_, and so obtain a right to exact the wite:--he makes the
payment _ut talia_ [i.e. _witereden_] _accipiat_. In guessing that
_vicissitudo_ points to a transfer of a suit, we have in mind the
manner in which the Leges Henrici, 9 § 4, speak of the 'transition'
of causes from court to court. The case that is being dealt with by
these charters we take to be one in which an outsider in a
'foreign' court sues one of the abbot's tenants. The abbot can
swear away the charge, or if he dares not do this, can obtain
cognizance of the cause (in the language of a later day _potest
petere curiam suam_) and therewith the right to the _wite_, but
must in this case pay the restitutory _bót_, or rather, perhaps,
find security that this shall be paid to the plaintiff in case he
is successful. The clause may also imply that a multiple _bót_ can
not be exacted from the immunist's men, e.g. such a _bót_ as we saw
the Abbot of Pershore exacting from the Westminster men; but this
is a minor question.
FOOTNOTES:
[934] Adams, The Anglo-Saxon Courts of Law (Essays in Anglo-Saxon
Law, p. 1). Hallam, Middle Ages (ed. 1837), vol. ii. p. 416,
says that of the right of territorial jurisdiction 'we meet
frequent instances in the laws and records of the
Anglo-Saxons, though not in those of early date.' The one
charter older than Edward the Confessor that he cites is one
of the Croyland forgeries. Kemble's opinion seems to have
fluctuated; Saxons, i. 177 note, ii. 397, Cod. Dipl. i.
xliv-xlvii. K. Maurer, Krit. Ueberschau, ii. 57, thinks that
the existence of the private court is proved for Cnut's
reign, but not for any earlier time. Dr Stubbs, Const. Hist.
i. 119, seems to doubt whether it can be traced far beyond
the days of Cnut. Zinkeisen, Die Anfänge der
Lehngerichtsbarkeit in England (1893, a Berlin doctoral
dissertation), criticizes Mr Adams's theory.
[935] Essays, pp. 43-4.
[936] See above, p. 84.
[937] K. 853 (iv. 208); E. 343.
[938] The clearest instance is in the Waltham charter, K. 813 (iv.
154), but some details of this are not beyond suspicion. See
also the writs for Westminster, K. 828 (iv. 191), 857 (iv.
213); Ordn. Facs. vol. ii. pl. 9.
[939] Charter for St. Edmund's, K. 1346 (vi. 205). See the account
of Bury St. Edmunds in D. B. ii. 372: 'et quaudo in hundreto
solvitur ad geltum 1 lib. tunc inde exeunt 60 den. ad victum
monachorum.'
[940] First printed from a copy in the MacDurnan Gospels by J. O.
Westwood in Palaeographia Sacra, with a facsimile, plate 11.
Accepted by Kemble and printed by him in Archaeological
Journal, xiv. 61; Earle, 232; Freeman, Norman Conquest, ii.
52.
[941] See the writ for St. Paul's, K. 1319 (vi. 183). Mr Adams (p.
44) stigmatizes this as an evident forgery; but the reasons
for this severe judgment are not apparent. See also K. 1321
(vi. 190), and the Latin writ of Harthacnut K. 1330 (vi. 192),
which may have a genuine basis.
[942] Cnut, II. 12 (Schmid, p. 276).
[943] Thus if a statute requires written and signed evidence of an
agreement, a letter in which the writer says, 'True, I made
such and such an agreement, but I am not going to keep it,'
may be evidence enough; see _Bailey_ v. _Sweeting_, 9 C. B. N.
S. 843.
[944] Brunner, Carta und Notitia (Commentationes in honorem T.
Mommsen); Brunner, Zur Rechtsgeschichte der Röm. u. Germ.
Urkunde.
[945] Both the Angevin charter and the Angevin letters patent are in
what we call 'writ-form.' The main formal difference is that
the charter professes to be witnessed by a number of the
king's councillors, while _Teste Meipso_ does for letters
patent. This distinction is coming to the front about the year
1200.
[946] K. 731 (iv. 9); T. 308.
[947] K. 642 (iii. 203); compare D. B. i. 41.