CHAPTER II.

THE REGALIA, OR RIGHTS OF ROYALTY.

In the strict theory of the Anglosaxon constitution the King was only

one of the people[27], dependent upon their election for his royalty,

and upon their support for its maintenance. But he was nevertheless the

noblest of the people, and at the head of the state, as long as his

reign was felt to be for the general good, the keystone and completion

of the social arch. Accordingly he was invested with various dignities

and privileges, enabling him to exercise public functions necessary to

the weal of the whole state, and to fill such a position in society as

belonged to its chief magistrate. Although his life, like that of every

other man, was assessed at a fixed price,—the price of an æðeling or

person of royal blood,—it was further guarded by an equal amount, to be

levied under the name of _cynebót_, the price of his royalty; and the

true character of these distinctions is clear from the fact of the first

sum belonging to the family, the second to the people[28].

-----

Footnote 27:

The names by which the King is commonly known among most of the

Germanic nations are indicative of his position. From Þeód, the

people, he is called þeóden: from his high birth (cyne nobilis, and

cyn genus, i.e. generosus a genere), he is called Cyning: from Dryht,

the troop of comites or household retainers, he is Dryhten: and as

head of the first household in the land, he is emphatically Hláford:

his consort is seó Hlǽfdige, the Lady. His poetical and mythical names

need not be investigated on this occasion.

Footnote 28:

Be Wergyldum, Norðleóda laga, § 1. Myrcna laga, § 1. Thorpe, i. 186,

190: “Se wer gebirað magum ⁊ seó cynebót ðám leódum.”

-----

His personal rights, or royalties, consisted in the possession of large

domains which went with the crown[29], a sort of τεμενος, which were his

own property only while he reigned, and totally distinct from such

private estates as he might purchase for himself; in short his Woods and

Forests, which the Crown held under the guarantee and supervision of the

Witena gemót. Also, in the right to receive _naturalia_, or voluntary

contributions in kind from the free men, which gradually became depraved

into compulsory payments. Of these the earliest mention is by

Tacitus[30], who tells us that it was the custom, voluntarily and

according to the power of the people, to present their princes with

cattle and corn, which was not only a mark of honour but a substantial

means of support; and the annals of the Frankish kings abound with

instances of these presentations, which generally took place at the

great meetings of the people, or Campus Madius[31]. His further

privileges consisted in the right to receive a portion of the fines

payable for various offences, and the confiscation of offenders’ estates

and chattels; in various distinctions of dress, dwelling, and the like;

above all, in the maintenance of a standing army of comrades, called at

a late period Húscarlas or household troops. It was for him to call

together the Witena gemót or great council of the realm, whenever

occasion demanded, and to lay before them propositions touching the

general welfare of the state; in concurrence also with them, to extend

or amend the existing legislation. At the same time I do not find that

he possessed the power of dismissing these counsellors when he thought

he had had enough of their advice, or of preventing them from meeting

without his special summons: in which two rights, when injudiciously

exercised, the historian finds the key to the downfall of so many

monarchies. As general conservator of the public peace, both against

foreign and domestic disturbers, the king could call out the _fyrd_, an

armed levy or militia of the freemen, proclaim his peace upon the

high-roads, and exact the cumulative fines by which the breach of it was

punished. He was also the proper guardian of the coinage; and, in some

respects, the fountain of justice, seeing that he might be resorted to,

if justice could not be obtained elsewhere. We may also look upon him

as, at least to a certain degree, the fountain of honour, since he could

promote his comrades, thanes or ministers to higher rank, or to posts of

dignity and power. All these various rights and privileges he possessed

and exercised, by and with the advice, consent and licence of his Witena

gemót or Parliament. It is desirable to consider the various details

connected with this subject, in succession, and to illustrate them by

examples from Anglosaxon authorities.

-----

Footnote 29:

Æðelred about 980, gives the following reasons for a grant made by him

to Abingdon. During the lifetime of Eádgar, this prince had given to

the monastery certain estates belonging to the appanage of the princes

of the blood, “_terras ad regios pertinentes filios_:” these, on

Eádgar’s death and Eádweard’s accession, the Witena gemót very

properly claimed and obtained, handing them over to Æðelred, then

prince royal: “quae statim terrae iuxta decretum et praeceptionem

cunctorum optimatum de praefato sancto coenobio violenter abstractae,

_meaeqae ditioni, hisdem praecipientibus, sunt subactae_: quam rem si

iuste aut iniuste fecerint, ipsi sciant.” All the crown lands thus

fell to Æðelred, he having no children at his brother Eádweard’s

death: “et _regalium_ simul, et _ad regios filios pertinentium,

terrarum_ suscepi dominium.” Having now scruples of conscience about

interfering with his father’s charitable intentions, he gave the

monastery an equivalent out of his own private property,—“_ex mea

propria haereditate_.” Cod. Dipl. No. 3312.

Footnote 30:

Germ. xv.

Footnote 31:

See Domesday, _passim_. Cnut commanded to put an end to these

compulsory demands: no man was to be compelled to give his reeves

anything towards the king’s feormfultum, against his will, under a

heavy penalty, but the king was to be provided for out of the royal

property. Cnut, § 70. Thorpe, i. 412. If Phillips is right in

supposing the Fóster of Ini’s law (§70. Thorpe, i. 146) to be this

burthen, heavy charges lay upon the land in the eighth century.

Angels. Recht. p. 87. But I doubt the application in this particular

case. See also, Anon. Vita Hludov. Imp. § 7; Pertz, ii. 610, 611;

Annal. Laurish. 753; Ann. Bertin. 837; Pertz, i. 116, 430, and

Hincmar. Inst. Carol. ibid. ii. 214. _Aids_ and _benevolences_ have

acquired a notoriety in English history which will not be forgotten

while England survives: but the prerogative lawyers had ancient

prescription to back them. On the whole subject see Grimm, Rechtsalt.

p. 245. Eichhorn, § 171. vol. i. p. 730 _seq._

-----

Although under a Christian dispensation the king could no longer be

considered as appertaining to a family exclusively divine, yet the old

national tradition still aided in securing to him the highest personal

position in the commonwealth. He had a wergyld indeed, but it far

exceeded that of any other class: nor was it in this alone that his

paramount dignity was recognized, but in the comparative amount of the

fines levied for offences against himself, his dependents or his

property. And as the principle of all Teutonic law is, that the amount

of _bót_ or compensation shall vary directly with the dignity of the

party leased, the high tariff appointed for royalty is evidence that the

king really stood at the summit of the social order, and was the first

in rank and honour, whatever he may have been in power. This is equally

apparent in the earliest law, that of Æðelberht, as in Eádweard the

Confessor’s, the latest. Thus, if he called his Leóde, _fideles_ or

thanes, to him, and they were injured on the way, a compensation double

the ordinary amount could be exacted, and in addition a fine of fifty

shillings to the king[32]. And so likewise, if he honoured a subject by

drinking at his house, all offences, then and there committed, were

punishable by a double fine[33]. Theft from him bore a ninefold, from a

ceorl or freeman only a threefold, compensation[34]. His mundbyrd or

protection was valued at fifty shillings; that of an eorl and ceorl at

twelve and six respectively[35]: this applied to the cases where a man

slew another in the king’s tún, the eorl’s tún, or the ceorl’s edor[36];

and to the dishonour of his maiden-serf, which involved a fine of fifty

shillings, while the eorl’s female cupbearer was protected only to the

amount of twelve, the ceorl’s to that of six shillings[37]. His

messenger or armourer, if by chance they were guilty of manslaughter,

could only be sued for a mitigated wergyld, by which they, though

probably unfree, were placed upon a footing of equality with the

freeman[38]. His word, like that of a bishop, was to be

incontrovertible, that is, no oath could be tendered to rebut it[39]. He

that fought in the king’s hall, if taken in the act, was liable to the

punishment of death, or such doom as the king should decree[40]: the

king’s burhbryce, or violence done to his dwelling, was valued at 120

shillings, an archbishop’s at 90, a bishop’s or ealdorman’s at 60, a

twelfhynde man’s at 30, a syxhynde’s at 15, but a ceorl’s or freeman’s

only at 5; and these sums were to be doubled if the militia was on

foot[41]. His borhbryce, or breach of surety, and his mundbyrd or

protection were raised by Ælfred to five pounds, while the archbishop’s

was valued at three, the bishop’s or ealdorman’s at two pounds[42]. He

could give sanctuary to offenders for nine days[43], and peculiar

privileges of the same kind were extended to those monasteries which

were subject to his farm or _pastus_[44]. His geneát or comrade, if of

the noble class, could swear for sixty hides of land[45]. His

horsewealh, the Briton employed in his stables, was placed on an equal

footing with the freeman, at a wergyld of 200 shillings[46]; and even

his godson had a particular protection[47]. Lastly, high-treason, by

compassing the king’s death, harbouring of exiles, or of the king’s

rebellious dependents, was made liable to the punishment of death[48].

-----

Footnote 32:

Æðelb. i. § 2. This enactment has been supposed to be the foundation

of one of those privileges of Parliament, which we have seen solemnly

discussed on a late occasion.

Footnote 33:

Æðelb. i. § 3.

Footnote 34:

Ibid. § 4, 9.

Footnote 35:

Ibid. § 8, 15.

Footnote 36:

Ibid. § 5, 13.

Footnote 37:

Ibid. § 10, 14, 16.

Footnote 38:

Æðelb. § 7, 21.

Footnote 39:

Wihtr. § 16. The position and privileges of the clergy at this very

early period, and especially in Kent, were very exalted. Æðelberht

places the king only on the footing of a priest, in respect to his

stolen property. Æðelb. § 1. But this grave error was remedied as

society became better consolidated, although to the very last the

clergy were left in possession of far too much secular power.

Footnote 40:

Ini, § 6. Ælf. § 7.

Footnote 41:

Ini, § 45. Ælfr. § 40.

Footnote 42:

Ælfr. § 3. Cnut, ii. § 59.

Footnote 43:

Æðelst. iii. § 6; iv. § 4; v. § 4.

Footnote 44:

Ælfr. § 2.

Footnote 45:

Ini, § 19.

Footnote 46:

Ini, § 33.

Footnote 47:

Ibid. § 76.

Footnote 48:

Ælf. § 4. Cnut, ii. § 58.

-----

The political position of the king, at the head of the state, was

secured by an oath of allegiance taken to him, by all subjects of the

age of twelve years[49], the ealdormen in the shires, the geréfan in the

various districts or towns, summoned his witan and the legal period of

majority among the Germans, for public purposes. In this capacity he

appointed named the members of their body[50]. In this capacity he was

empowered to inflict fines upon the public officers, and even private

individuals, for such neglect of duty as endangered the public

interests: these fines were paid under the title of the king’s

oferhýrnes, literally his _disobedience_: thus, if a man when summoned

refuse to attend the gemót; if a geréfa refuse to do justice, when

called upon, or to put the law in execution against offenders[51], and

in other similar cases where the whole framework of society requires the

existence of a central support, having power to hold its scattered

elements together, and in their places.

-----

Footnote 49:

“Imprimis ut omnes iurent in nomine Domini, pro quo sanctum illud

sanctum est, fidelitatem Eádmundo regi, sicut homo debet esse fidelis

domino suo, sine omni controversia et seditione, in manifesto, in

occulto, in amando quod amabit, nolendo quod nolet.” Eádm. iii. § 1.

Thorpe, i. 252. “And it is our will, that every man above twelve years

of age, make oath that he will neither be a thief, nor cognizant of

theft.” Cnut, ii. § 21. Thorpe, i. 388. “Omnis enim duodecim annos

habens et ultra, in alicuius frithborgo esse debet et in decenna;

sacramentumque regi et hæredibus suis facere fidelitatis, et quod nec

latro erit, nec latrocinio consentiet.” Fleta, lib. i. cap. 27. § 4.

This was the basis upon which the associations of freemen among the

Anglosaxons entered into their alliances, offensive and defensive,

with their kings. Charlemagne caused an oath to be taken to himself as

emperor, by all his subjects above twelve years old. Dönniges, p. 3.

The Hyldáð or oath of fealty is given in the Anc. Laws, i. 178. The

dependent engages to love all the lord loves, and shun all that he

shuns: these are the technical terms throughout Europe. The king

himself took a corresponding oath to his people. We still have the

words of that which was administered by Dúnstán to Æðelred at

Kingston.

“Ðis gewrit is gewriten, stæf be “This writing is copied, letter for

stæfe, be ðám gewrite ðe Dúnstán letter, from the writing which

arcebisceop sealde úrum hláforde æt archbishop Dúnstán delivered to our

Cingestúne á on dæg ðá hine man lord at Kingston on the very day

hálgode tó cinge, and forbeád him when he was consecrated king, and

ælc wedd tó syllanne bútan ðysan he forbad him to give any other

wedde, ðe he úp on Cristes weofod pledge but this pledge, which he

léde, swá se bisceop him dihte. ‘On laid upon Christ’s altar, as the

ðǽre hálgan Þrynnesse naman, Ic bishop instructed him. ‘In the name

þreo þing beháte cristenum folce of the Holy Trinity, three things

and me underþeóddum: án ærest, ðæt do I promise to this Christian

ic Godes cyrice and eall cristen people, my subjects: first, that I

folc mínra gewealda sóðe sibbe will hold God’s church and all the

healde: óðer is, ðæt ic reáflác and Chistian people of my realm in

ealle unrihte þing eallum hádum true peace: second, that I will

forbeóde: þridde, þæt ic beháte and forbid all rapine and injustice to

bebeóde on eallum dómum riht and men of all conditions: third, that

mildheortnisse, ðæt ús eallum I promise and enjoin justice and

ærfaest and mildheort God þurh ðæt mercy in all judgements, whereby

his écean mittse forgife, se lifað the just and merciful God may give

and rixað.’”—Reliq. Ant. ii. 194. us all his eternal favour, who

liveth and reigneth!’”

It is worth while to compare with this the coronation oath of king

Eirek Magnusson, of Norway, which we learn from the following valuable

document of July 25th, 1280.

“Pateat universis tam clericis quam laicis per regnum Norwegie

constitutis presens scriptum visuris vel audituris quod anno domini

m^o. cc^o. lxxx^o. in festo sancti Suithuni Bergio in ecclesia

cathedrali magnificus princeps et nobilis dominus . Eiricus dei gracia

rex Norwegie illustris filius domini Magni quondam regis coram

reverendo patre et venerabili domino Johanne secundo divina

miseracione . Nidrosiensi archiepiscopo qui eum coronando in regem

coronam capiti eius inposuit . ipsiusque suffraganeis et multis

clericis et laicis qui presentes fuerant . tactis ewangeliis

iuramentum prestitit in hunc modum . Profiteor et promitto coram deo

et sanctis eius a modo pacem et iusticiam ecclesie dei . populoque

mihi subiecto observare . pontificibus et clero . prout teneor .

condignum honorem exhibere . secundum discrecionem mihi a deo datam .

atque ea que a regibus ecclesiis collata ac reddita sunt . sicut

compositum est inter ecclesiam et regnum . inviolabiliter conservare .

malasque leges et consuetudines perversas precipue contra

ecclesiasticam libertatem facientes abolere et bonas condere prout de

concilio fidelium nostrorum melius invenire poterimus . þæt jatta ek

gudi ok hans helgum mannum . at ek skal vardvæita frid ok rettyndi

hæilagre kirkiu ok þui folki sem ek er overðugr ivir skipaðr .

Byscopum ok lærdom mannum skal ek væita vidrkvæmelega soemd efter þui

sem ek er skyldugr . ok gud giæfr mer skynsemd til . ok þa luti halda

obrigðilega . sem af konunggum ero kirkiunni gefner . ok aftr fegner

sua sem samþykt er millum kirkiunnar ok rikissens . Rong log ok illar

siðueniur einkanlega þær . sem mote ero hæilagrar kirkiu frælsi af

taka ok betr skipa, eftir þui sem framazt faam ver raad til af varoni

tryggastu mannum . Cum igitur ante coronacionem dicti regis dubitacio

fuerit . de regis iuramento . volens predictus pater ne huiusmodi

dubitacio rediviva foret in posterum precavere. utile quippe etenim

est eam rem cognitam esse que ignorata vel dubia possit occasionem

litigii ministrare . iuramentum seu professionem factam a domino rege

. ad perpetuam memoriam . presentibus literis duxit inserendam . et ad

pleniorem rei evidenciam sigillum suum apposuit una cum sigillis

venerabilium partum . domini Andree Osloensis . Jorundi Holensis .

Erlendi Ferensis . Arnonis Skalotensis . Arnonis Stawangrensis . Nerue

Bergensis . Thorfinni Hamarensis suffraganeorum Nidrosiensis ecclesie

. Actum viii. Kal. Augusti loco et anno supradictis.”—Diplomatarium

Norwegicum, No. 69. p. 62.

It is very uncertain at what time the custom of coronation, and

_unction_, by the hands of the clergy, commenced. The usurpation which

Pipin ventured and Pope Zachary lent himself to, which Charlemagne

repeated and Pope Leo confirmed, may have acted as a valuable

precedent, especially as the power of the King was sufficient to

justify the claim of the Pope. Thirty years later (A.D. 787), the

English bishops put forward the somewhat bold claim to be, with the

_seniores_ populi, electors of the king: “Duodecimo sermone sanximus;

Ut in ordinatione regum nullus permittat pravorum praevalere assensum;

sed legitime reges a sacerdotibus et senioribus populi eligantur, et

non de adulterio vel incoestu procreati; quia sicut nostris temporibus

ad sacerdotium, secundum Canones, adulter pervenire non potest, sic

nec Christus domini esse valet, et rex totius regni, et haeres

patriae, qui ex legitimo non fuerit connubio generatus.” Conc.

Calcuth. Legat. Spelm. p. 296. No doubt from their position in the

Witena gemót, and the authority which they derived from their birth as

well as station, they always played an important part in the elections

of kings, but not quite so leading a part in the eighth century as

they here attempt to claim. The Diplomatarium Norwegicum supplies an

interesting illustration of the above-cited canon, in a dispensation

issued by Pope Innocent IV. (A.D. 1246) to Haakon Haakonson, from the

disqualification of illegitimate birth: “Cum itaque clare memorie

Haquinus, Norwegie rex pater tuus, te, prout accepimus, solutus

susceperit de soluta, nos tuam celsitudinem speciali benevolentia

prosequentes, ut huiusmodi non obstante defectu ad regalis solii

dignitatem et omnes actus legitimos admittaris, nec non quod heredes

tui legitimi tibi in dominio et honore succedant, fratrum nostrorum

communicato consilio, tecum auctoritate apostolica dispensamus.” No.

38, p. 30. This was not however considered a valid ground of objection

among the Anglosaxons, if the personal qualities of the prince were

such as to recommend him. From the words used by William of Malmesbury

we might infer that as late as the time of Æðelstán, the functions of

the bishops at the coronation were confined to anathematizing those

who would not be obedient subjects, but that the nobles performed the

actual coronation: he cites the following lines from an earlier

author, and one apparently contemporaneous with Æðelstán himself:—

“Tunc iuvenis nomen regni clamatur in omen,

Ut fausto patrias titulo moderetur habenas:

Conveniunt proceres et componunt diadema,

Pontifices pariter dant infidis anathema.”

De Gest. ii. § 133.

That Harold crowned himself is an old story; but it is very certain

that whatever he did, was done with the full consent of the Witena

gemót.

Footnote 50:

See hereafter the several chapters Ealdorman, Geréfa and Witena gemót.

Footnote 51:

The principal cases will be found in the following passages of the

Laws: Eádw. § 1. Æðelst. i. § 20, 22, 26; iii. § 7; iv. §1, 7; v. §

11. Eádm. iii. § 2, 6, 7. Eádg. i. § 4; ii. § 7, etc.

-----

The maintenance of the public peace is the first duty of the king, and

he is accordingly empowered to levy fines for all illegal breaches of

it, by offences against life, property or honour[52]: in very grave

cases of continued guilt, he is even entrusted with the right of

banishing and outlawing offenders, whose wealth and family connexions

seem to place them beyond the reach of ordinary jurisdictions[53]. Where

the course of private war is to be settled by the legal compensations,

it is the king’s peace which is established between the contending

parties, the relatives and advocates of the slayer and the slain[54].

And in accordance with these principles, we find the kings’s peace

peculiarly proclaimed upon the great roads which are the highways of

commerce and means of internal communication, and the navigable streams

by which cities and towns are supplied with the necessary food for their

inhabitants[55]. And hence also he was allowed to proclaim his peace

over all the land at certain times and seasons; as, for eight days at

his coronation, and the same space of time at Christmas, Easter and

Whitsuntide. He might also, either by his hand or writ, give the

privileges of his peace to estates which would otherwise not have

possessed it, and thus place them upon the same footing of protection as

his own private residences[56]. The great divisions of the country, that

is the shires, could only be determined by the central power: it is

therefore provided that these shall be in the especial right of the

king: “Divisiones scirarum regis proprie cum iudicio quatuor chiminorum

regalium sunt[57].” And to the end of maintaining peace, it appears to

me that the king must also have been the authority to whom, at least in

theory, it was left to settle the boundaries even of private estate;

which on the conversion of folcland into bócland, he did, generally by

his officers, but sometimes in person[58].

Footnote 52:

Hloðh. § 9, 11, 12, 13, 14. Ælf. § 37. Æðelst. i. § 1; iii. § 4; v. §

5.

Footnote 53:

Æðelst. iii. § 3; iv. § 1.

Footnote 54:

Eád. Gúð. § 13. Eádm. ii. § 1, 6, 7.

Footnote 55:

Eád. Conf. § 12. Cross roads and small streams are not in the king’s

peace, but that of the county.

Footnote 56:

This peace was called the King’s Handsell, “cyninges handsealde gríð.”

The extent to which his peace extended around his dwelling, that is,

within the verge of the court, has been noticed in the fourth chapter

of the First Book. The right subsisted throughout the Middle Ages and

yet subsists, though differently motived and measured. The king’s

handsealde gríð was by Æðelred’s law made bótless, that is, had no

settled compensation. Æðelr. iii. § 1.

Footnote 57:

Eádw. Conf. § 13.

Footnote 58:

“Æðelingawudu, Colmanora and Geátescumbe belong to these twenty hides,

which I myself, now rode, now rowed, and widely divided off, for

myself, my predecessors, and those that shall come after me, for an

eternal separation, before God and the world.” Eádred. an. 955. Cod.

Dipl. No. 1171. “Now I greet well my relative Mygod of Wallingford,

and command thee in my stead [on mínre stede] to ride round the land

to the saint’s hand.” Eádw. Conf., Cod. Dipl. No. 862. The force of

the word _berídan_ is very difficult to convey in words, but still

perfectly obvious. Another difficulty arises from the word _stede_,

which is properly masculine, but here given as a feminine. I think it

impossible that it should mean _stéde_, a mare (i. e. on my mare), and

prefer the supposition either that _stede_ had changed its gender, or

that the copy of the charter is an incorrect one.

-----

But the great machinery for keeping peace between man and man, is the

establishment of courts of justice, and a system by which each man can

have law, by the consent and with the co-operation of his neighbours,

without finding it necessary to arm in his own defence. It has been

shown in the First Book, that such means did exist in the Mark and Gá

courts; and that for nearly all the purposes of society, it is

sufficient and advisable that justice should be done within the limits

and by the authority of the freemen. A centralized system however brings

modifications with it, even into the administration of justice. If, as I

believe, the original king was a judge, who superinduced the warlike

upon his peaceful functions, we can easily see how, with the growth of

the monarchy, the judicial authority of the king should become extended.

I cannot doubt that, in the historical times of the Anglosaxons, the

king was the fountain of justice; by which expression I certainly do not

mean that every suit must be commenced in one of the superior courts, or

by an original writ, issuing out of the royal chancery[59], but that the

king was looked upon as the authority by whom the judges were supported

and upheld, who was to be appealed to, if no justice could be got

elsewhere, and who had the power to punish malversation in its

administration by his officers.

-----

Footnote 59:

There are cases nevertheless which seem to favour the supposition that

a similar power was ultimately lodged in the king and, at least

occasionally, exercised.

-----

We may leave the tale of Ælfred’s hanging the unjust judges to the same

veracious chapter of history as records his invention of trial by jury:

but it is obvious, from the words of his biographer, that he assumed

some right to direct them in the exercise of their functions. He there

appears not to have waited until complaints were made of their

maladministration; but to have adopted the Frankish and Roman custom of

dispatching _Missi_ or royal commissioners into the provinces subject to

his rule, in order to keep a proper check upon the proceedings of the

public officers of justice. Asser says,—and I record his words with the

highest respect and admiration of Ælfred’s real and great deserts,—that

“he investigated with great sagacity the judgments given throughout

almost all his region, which had been delivered when he was not present,

as to what had been their character, whether they were just, or unjust.

And if he detected any injustice in such judgments, he, either in

person, or by people in his confidence, mildly enquired why the judges

had given such unjust decisions, whether through ignorance, or through

malversation of another kind, as fear, or favour, or hope of gain. And

then, if the judges admitted that they had so decided, because they knew

no better in the premises, he would gently and moderately correct their

ignorance and folly, and say: ‘I marvel at your insolence, who, by God’s

gift and mine, have taken upon yourselves the ministry and rank of wise

men, but have neglected the study and labour of wisdom. Now it is my

command that ye either give up at once the administration of those

secular powers which ye enjoy, or pay a much more devoted attention to

the studies of wisdom.’”

A certain pedantry is obvious enough in all this story, which, taken

literally, under the circumstances of the time, is merely childish.

Still, as Asser, though he may not entirely represent the facts of this

period[60] in their true Germanic sense, does very likely represent some

of the king’s private wishes and opinions, this, among other passages,

may serve to show why, in spite of his great merits, Ælfred once in his

life had not a man to trust to in his realm. Let us look at the matter a

little more closely. In the many kingdoms and districts which by

conquest or inheritance came under the Westsaxon rule, various customary

laws had prevailed[61]. It is very natural that judgments given in

accordance with these customs should often appear inconsistent and

discordant to a body of men collected from different parts of the realm.

Asser is therefore very probably in the right, when he says: “The nobles

and non-nobles alike were frequently at variance in the meetings of the

comites and praepositi, [that is, in the Witena gemóts,] so that

scarcely any one would admit the decisions of the comites and praepositi

[that is, in the shire, hundred and burhmót] to be correct.” But it is

also probable that he misstates or overstates the extent of the royal

power, when he continues: “But Ælfred, who for his own part knew that

some injustice arose thereby, was not very willing to meddle with the

decision of this judge or that; although he was compelled thereunto both

by force of law and by stipulation[62].”

-----

Footnote 60:

I may here say once for all, that I see no reason to doubt the

authenticity of Asser’s Annals, or to attribute them to any other

period than the one at which they were professedly composed.

Footnote 61:

Ælfred himself mentions the Kentish, Mercian and Westsaxon laws. The

Danes had another. Peculiarities of the Northangle and Southangle laws

are also noticed.

Footnote 62:

By the contract entered into with his people: but when? when they

first elected him? or when they restored him to his throne?

-----

For in fact the king was the authority to be resorted to in the last

instance; not because he could introduce a system of jurisprudence

founded upon Roman Decretals or Alaric’s Breviary,—which his favourite

advisers would probably have liked much better than his ealdormen,

præfects and people,—but because he could lend the aid of the state to

enforce the judgments of the several courts, or even compel the courts

to give judgment, by reason of the central power which he wielded as

king. As long however as the courts themselves were willing to decide

causes brought before them, which the people assembled in the gemóts

did, under the presidency and direction of the customary officers, the

king had no right to interfere: and even to appeal to the king until

justice had been actually denied in the proper quarter was an offence

under the Saxon law, punishable by fine[63]. In short, under that law,

the people were themselves the judges, and helped the geréfa to find the

judgment, be the court what it might be. The king’s authority could give

no more than power to execute the sentence. It is remarkable enough that

while Asser speaks of the instruction and correction which Ælfred

administered to his judges, he does not even insinuate that their

decisions were reversed,—a fact perfectly intelligible when we bear in

mind that these decisions were not those of judges in our sense of the

word, and as the Mirror plainly understood them, but of the people in

their own courts, finding the judgment according to customary law. It

would have been a very different case had the courts been the king’s

courts; and in those where the class called king’s thanes stood to right

either before the king himself, or the king’s geréfa, it is possible

that Ælfred may have interfered. This he had full right to do, inasmuch

as these thanes were exclusively his own sócmen, and must take such law

as he chose to give them[64]. Indeed the words of Asser seem

reconcileable with the general state of the law in Ælfred’s time only on

the supposition that he refers to these royal courts or þeningmanna

gemót; for the king could never have been expected to be present at

every shire- or hundred-mót, and yet Asser says he diligently

investigated such judgments as were given when he was not present,

almost all over his region. This only becomes probable when confined to

the administration of justice in the several counties in his own royal

courts, and by his own royal reeves, in whose method of proceeding he

was at liberty to introduce much more extensive alterations at pleasure,

than he could have done in the customary law of the shires or other

districts.

-----

Footnote 63:

“And let him that applies to the king before he has prayed for justice

as often as it behoveth him [that is, made the legal number of formal

applications to the shiremoot, etc.] pay the same fine as the other

should had he denied him justice.” Æðelst. i. 1. § 3. Thorpe, i. 200.

Eádgar, ii. § 2. Thorpe, i. 266. “And let no one apply to the king,

unless he cannot get justice within his hundred: but let the

hundred-gemót be duly applied to, according to right, under penalty of

the wíte, or fine.” Cnut, ii. § 17. Thorpe, i. 384 _seq._ Similarly

Will. Conq. i. § 43. Thorpe, i. 485. It is impossible to believe that

Ælfred possessed a right which later and much more powerful kings did

not.

Footnote 64:

“And let no one have sócn over a king’s thane save the king himself.”

Æðelr. iii. § 11. Thorpe, i. 296.

-----

If however justice was entirely denied in the shire or hundred, then,

_iure imperii_, the king had the power of interfering: and as it seems

clear that such a case could only arise from the influence of some great

officer being exerted to prevent the due course of law, it follows that

the only remedy would lie in the king’s power to repress him; either by

removing him from his office, if one derived from the crown, or _iure

belli_, putting him down as a nuisance to the realm[65].

-----

Footnote 65:

If the ealdorman connive at theft, or at the escape of a thief, he is

to forfeit his office. Ini, § 36. Thorpe, i. 124. If a geréfa do so,

he shall forfeit all he hath. Æðelst. i. § 3. If he will not put the

law in execution, he shall lose his office. Æðelst. i. 26; v. § 11.

Eádg. ii. § 3. Thorpe, i. 200, 212, 240, 266.

-----

In the later times of the Anglosaxon monarchy, a more immediate

interference of the king in the administration of justice is

discernible. It consists in what might be called the commendation of

suits to the notice of the proper courts: and this, which was done by

means of a writ or _insigel_, probably at first took place only in the

case where a sócman of the king was impleaded in the shiremoot touching

property subject to its jurisdiction, in fact where one party was a free

landowner, the other in the king’s service or sócn; where of course the

first would not stand to right in the royal courts, but before his peers

in the shire or hundred[66]. There is no mention in the laws of the

Insigel or Breve[67], but the charters give some evidence of what has

been averred. In a very important record of the time of Æðelrǽd

(990-995) these words occur[68]:— “This writing showeth how Wynflǽd led

her witness at Wulfamere before King Æðelrǽd; now that was Sigeríc the

archbishop, and Ordbyrht the bishop, and Ælfríc the ealdorman, and

Ælfðrýð the king’s mother: and they all bore witness that Ælfríc gave

Wynflǽd the land at Hacceburnan, and at Brádan-felda in exchange for the

land at Deccet. Then at once the king sent by the archbishop and them

that bore witness with him, to Leófwine, and informed him of this. But

he would consent to nothing, but that the matter should be brought

before the shiremoot. And this was done. Then the king sent by Ælfhere

the abbot, his _insigel_ to the gemót at Cwichelmeshlǽw, and greeted all

the Witan who were there assembled,—that is, Æðelsige the bishop, and

Æscwig the bishop, and Ælfríc the abbot, and all the shire, and bade

them arbitrate between Leófwine and Wynflǽd, as to them should seem most

just[69].”

-----

Footnote 66:

There is an instance where the parties to a suit were similarly

circumstanced. The matter was brought into the king’s þeningmanna

gemót in London, and there decided in favour of the plaintiff, a

bishop. But the defendant was not satisfied, and carried the cause to

the shire, who at once claimed jurisdiction and exercised it too,

coming to a decision diametrically opposite to that of the þeningmen

or _ministri regii_. It seems to have been a dirty business on the

part of the bishop of Rochester, and the freemen of Kent so treated

it, in defiance of the King’s Court. Cod. Dipl. No. 1258. The document

is so important, that it appears desirable to give it at full length.

“Thus were the lands at Bromley and Fawkham adjudged to king Eádgár in

London, through the charters of Snodland, which the priests stole from

the bishop of Rochester and secretly sold for money to Ælfric the son

of Æscwyn: and the same Æscwyn, Ælfric’s mother, had previously

granted them thither. Now when the bishop found the books were stolen

he made earnest demand for them. Meanwhile Ælfric died, and he (the

bishop) afterwards sued the widow so long that in the king’s

thanes-court the stolen books of Snodland were adjudged to him, and

damages for the theft, thereto; that was in London, and there were

present Eádgár the king, archbishop Dúnstán, bishop Æðelwold, bishop

Ælfstán and the other Ælfstán, Ælfhere the ealdorman and many of the

king’s witan: then they adjudged the books to the bishop for his

cathedral: so all the widow’s property stood in the king’s hand. Then

would Wulfstán the geréfa seize the property to the king’s hand, both

Bromley and Fawkham; but the widow sought the holy place and the

bishop, and surrendered to the king the charter of Bromley and

Fawkham: and the bishop bought the charters and the land of the king

at Godshill, for fifty mancuses of gold, and a hundred and thirty

pounds, through intercession and interest: afterwards the bishop

permitted the widow the usufruct of the land. During this time the

king died; and then Bryhtríc the widow’s relative began, and compelled

her, so that they took violent possession of the land [brúcon ðára

landa on reáfláce]. And they sought Eádwine the ealdorman, who was

God’s adversary, and the folk, and compelled the bishop to restore the

books on peril of all his property: he was not allowed to enjoy his

rights in any one of the three things which had been given him in

pledge by all the _leódscipe_, neither his plea, his succession, nor

his ownership. This is the witness of the purchase: Eádgár the king,

Dunstan the archbishop, Oswald the archbishop, bishop Æðelwold, bishop

Æðelgar, bishop Æscwig, bishop Ælfstán, the other bishop Ælfstán,

bishop Sideman, Ælfðrýð the king’s mother, Osgar the abbot, Ælfhere

the ealdorman, Wulfstan of Delham, Ælfric of Epsom, and the leading

people [dúgúð folces] of West Kent, where the land and lathe lie.”

Here I take it the þeningmen or _servientes regis_ and the leódscipe

(leudes) are identical and opposed to the _Folc_ who under “God’s

adversary” Eádwine made the bishop disgorge his plunder. We see who

they were; Dunstan and various bishops, ealdorman Ælfhere and several

of the king’s witan. This is the only instance I have been able to

discover of anything approaching to a _curia regis_ apart from the

great Witena gemót. There are, no doubt, several cases where the king

appears to have been applied to in the first instance, by one of the

parties; but in all of them trial subsequently was had before the

shiremoot. It is natural that agreements should have been made by

consent, before the king as arbitrator, and these were probably

frequent among his intimate councillors, friends and relatives: but

they were not trials, nor did they settle the litigation as a

judgement of the courts would have done. Such arbitrements were also

made by the ealdorman, who like the king received presents for his

good offices. The advantage gained was this; both parties were

satisfied, without the danger of trying the suit, which entailed very

heavy penalties on the loser, amounting sometimes to total forfeiture.

The disadvantage was that there was no _ge-endodu spræc_ or finished

plea, and consequently the award was sometimes violated, when either

party thought this could be done with impunity.

Footnote 67:

Excepting a very indefinite expression in the Law of Henry the First,

§ 13.

Footnote 68:

Cod. Dipl. No. 693. Cwichelmeshlǽw, now Cuckamsley or Cuckamslow

Hills, in Berkshire; these run east and west and probably cut off the

north-western portion of the county, forming the watershed from which

the Ock and Lambourn descend on opposite sides. The exact spot of the

gemót was probably near a mound which is now called Scutchamfly

Barrow, and which is very plainly marked in the Ordnance Map, nearly

due north of West Ilsey.

Footnote 69:

The lands are Bradfield, Hagborne and Datchet, in Berks and Bucks.

Wulfamere I am unable to identify. At all events, had the matter been

cognizable in a superior court of the king’s, Leófwine could not have

carried his point of having it brought to trial before the shiremoot

in Berkshire, which he clearly did against the king’s wish.

-----

There can be no mistake about the fact; but it does not amount to a

proof that the cause could not have been settled without this formality:

both parties to it were of the highest rank; but if the king’s

arbitration were refused, the title to the land at Bradfield could

legally be tried only in the county of Berkshire in which it lay.

Something similar may have been intended by the notice which occurs in

the record of another shiregemót (held about 1038 at Ægelnóðes stán in

Herefordshire) where it is said that Tófig Prúda came thither _on the

kings errand_[70].

-----

Footnote 70:

Cod. Dipl. No. 641.

-----

PARDON.—When judgment was pronounced, it appears that in certain cases,

at least, the king possessed the power to stay execution and pardon the

offender,—an exertion of the royal prerogative which one feels pleasure

in thus referring to so ancient a period. The necessary evidence is

supplied in many passages of the Laws[71].

-----

Footnote 71:

“If a man fight or draw weapon in the king’s hall and be taken in the

act, he shall lie at the king’s mercy, to slay or pardon him.” Ælf. §

7. Ini, § 6. Thorpe, i. 66, 106. “The ealdorman who connives at theft

shall forfeit his office, unless the king pardon him.” Ini, § 36.

Thorpe, i. 124. See also Æðelst. v. 1. § 4, 5, Eádm. § 6. Eádg. ii. §

7. Æðelr. iii. § 16; vii. § 9. Thorpe, i. 230, 250, 268, 298, 330.

ESCHEAT AND FORFEITURE.—As the royal power became consolidated, and the

great struggle between centralization and local independence assumed the

new form of offences against the state, the nature of punishments became

somewhat changed. The old pecuniary fines were found insufficient to

repress disorder, and forfeiture to the king was resorted to, as a

measure of increased severity. The laws proclaim this in the case of

various breaches of the public peace: in treason Ælfred’s witan decreed

not only the punishment of death, but also confiscation of all the

possessions[72]: in addition to the capital penalty which was incurred

by fighting in the king’s house, forfeiture of all the chattels was

decreed by Ini[73]. If a lord maintained and abetted a notorious thief,

he was to forfeit all he had[74]. And if he neglected the fines

provided, and would break the public peace either by thieving or

supporting thieves, it was provided that the public authorities should

ride to him, that is make war upon him, and despoil him of all he had,

whereof half was to go to the king, half to the persons who took part in

the expedition[75]. But the charters supply numerous instances of

forfeiture in consequence of crime, where the bóclands as well as the

chattels are seized into the king’s hand; though in the case of folcland

it is possible that the king could not claim the forfeiture without a

positive grant of the witan. About 900, Helmstán having been guilty of

theft, Eánwulf, the king’s geréfa at Tisbury seized all his chattels to

the king’s hand[76]: he held only lǽnland, and that could not be

forfeited by him; but the words made use of show, that had it been his

own bócland, it would not have escaped. We have an instance of a thane

forfeiting lands to the king for adultery[77], although he only held

them on lease from the bishop of Winchester; and in like manner, a lady

was deprived of her estate for incontinence[78]. In 966 the bishop of

Rochester having obtained judgment and damages against a lady, for

forcible entry upon his lands (reáflác), the sheriff of Kent seized her

manors of Fawkham and Bromley; all her possessions being forfeited to

the king[79]: lastly in various instances of theft, treason, and

maintenance of ill-doers, we learn that their lands were forfeited to

the king[80].

-----

In a case of intestacy, where there were no legal heirs, the king was

allowed to enter upon the lands of Burghard, probably because he had

been a royal geréfa[81]. And in the ninth century, Wulfhere, an

ealdorman, having deserted his duchy, his country and his lord, without

license, his lands were adjudged as forfeit to the king[82]. It would

seem however that the mere neglect to cultivate or inhabit the land

involved its confiscation to the king’s hand[83], which may have been

confined to folcland.

-----

Footnote 72:

Ælf. § 4. Thorpe, i. 62.

Footnote 73:

Ini, § 6. Thorpe, i. 106.

Footnote 74:

Æðelst. i. § 3. Thorpe, i. 200.

Footnote 75:

Æðelst. i. § 20. Thorpe, i. 210; see also § 26. Thorpe, i. 214.

Æðelst. iii. § 3. Thorpe, i. 218; iv. § 1; v. § 1, 5. Eádm. ii. § 1,

6. Eádg. Hund. § 2, 3. Eádg. i. § 4. Æðelr. v. § 28, 29; vi. § 35, 37:

vii. § 9; ix. § 42. Cnut, ii. § 13, 58, 67, 78, 84. Thorpe, i. 220,

228, 230, 248, 250, 258, 264, 310, 312, 324, 330, 350, 382, 408, 410,

420, 422.

Footnote 76:

Cod. Dipl. No. 328. “Eánwulf the reeve ... took all he owned at

Tisbury ... and the chattels were adjudged to the king, because he was

the king’s man: and Ordláf took to his own land, because it was his

lǽn that he sat upon: that he could not forfeit.”

Footnote 77:

Cod. Dipl. Nos. 601, 1090.

Footnote 78:

Cod. Dipl. No. 1295. “Quae portio terrae cuiusdam foeminae fornicaria

praevaricatione mihimet vulgari subacta est traditione.” Æðelred, an.

1002.

Footnote 79:

Cod. Dipl. No. 1258. “Ða stód ðáre wydewan áre on ðæs cynges handa: ðá

wolde Wulfstán se geréfa niman ða áre tó ðæs cynges handa, Brómleáh ⁊

Fealcnahám.”

Footnote 80:

Cod. Dipl. Nos. 579, 1112. “Quo mortuo praedicta mulier Ælfgyfu alio

copulata est marito, Wulfgat vocabulo; qui ambo crimine pessimo iuste

ab omni incusati sunt populo, causa suae machinationis propriae, de

qua modo non est dicendum per singula, propter quam vero machinationem

quae iniuste adquisierunt iuste perdiderunt.” Cod. Dipl. No. 1305. The

exile of Wulfgeat is mentioned by the Chronicle and Florence, an.

1006. Again, “Nam quidam minister Wulfget vulgari relatu nomine

praefatam terram aliquando possederat, sed quia inimicis regis se in

insidiis socium applicavit, et in facinore inficiendo etiam legis

satisfactio ei defecit, ideo haereditatis suberam penitus amisit, et

ex ea praedictus episcopus praescriptam villulam, me concedente,

suscepit.” Cod. Dipl. No. 1310. “Has terrarum portiones Ælfríc

cognomento Puer a quadam vidua Eádfléd appellata violenter abstraxit,

ac deinde cum in ducatu suo contra me et contra omnem gentem meam reus

existeret, et hae quas praenominavi portiones et universae quas

possederat terrarum possessiones meae subactae sunt ditioni, quando ad

synodale conciliabulum ad Cyrneceastre universi optimates mei simul in

unum convenerunt, et eundem Ælfricum maiestatis reum de hac patria

profugum expulerunt, et universa ab illo possessa michi iure

possidenda omnes unanimo consensu decreverunt.” Cod. Dipl. No. 1312.

“Emit quoque praedictus vir Æðelmarus a me, cum triginta libris,

duodecim mansiones de villulis quas matrona quaedam nomine Leoflǽd

suis perdidit ineptiis et amisit.” Cod. Dipl. No. 714. “Hoc denique

rus cuiusdam possessoris Leofricus onomate quondam et etiam nostris

diebus paternae haereditatis hire fuerat, sed ipse impie vivendo, hoc

est rebellando meis militibus in mea expeditione, ac rapinis insuetis

et adulteriis multisque aliis nefariis sceleribus semet ipsum condempn

avit simul et possessiones.” Cod. Dipl. No. 1307. “Erat autem eadem

villa cuidam matronae, nomine Æðelflǽde, derelicta a viro suo, obeunte

illo, quae etiam habebat germanum quendam, vocabulo Leófsinum, quem de

satrapis nomine tuli, ad celsioris dignitatis dignum duxi promovere,

ducem constituendo, scilicet, eum, unde humiliari magis debuerat,

sicut dicitur, ‘Principem te constituerunt, noli extolli,’ et caetera.

Sed ipse hoc oblitus, cernens se in culmine maioris status sub rogatu

famulari sibi pestilentes spiritus promisit, superbiae scilicet et

audaciae, quibus nichilominus ipse se dedidit in tantum, ut

floccipenderet quin offensione multimoda me multoties graviter

offenderet; nam praefectum meum Æficum, quem primatem inter primates

meos taxavi, non cunctatus in propria domo eius eo inscio perimere,

quod nefarium et peregrinum opus est apud christianos et gentiles.

Peracto itaque scelere ab eo, inii consilium cum sapientibus regni mei

petens, ut quid fieri placuisset de illo decernerent; placuitque in

commune nobis eum exulare et extorrem a nobis fieri cum complicibus

suis: statuimus etiam inviolatum foedus inter nos, quod qui

praesumpsisset infringere, exhaereditari se sciret omnibus habitis,

hoc est, ut nemo nostrum aliquid humanitatis vel commoditatis ei

sumministraret. Hanc optionis electionem posthabitam nichili habuit

soror eius Æðelflǽd omnia quae possibilitatis eius erant, et

utilitatis fratris omnibus exercitiis studuit explere, et hac de causa

aliarumque quamplurimarum exhaeredem se fecit omnibus.” Cod. Dipl. No.

719.

The murder of Æfic is mentioned in the Chronicle, an. 1002, where he

is called heáhgeréfa.

Footnote 81:

Cod. Dipl. No. 1035. But not if he had legal heirs. See Cnut, ii. §

71. Thorpe, i. 412. In this case the king could claim only the Heriot,

a custom retained even by the Normans. “Item si liber homo intestatus

decesserit, et subito, dominus suus nihil se intromittet de bonis

suis, nisi tantum de hoc quod ad ipsum pertinuerit, scilicet quod

habeat suum Heriettum.” Fleta, ii. cap. 57, § 10.

Footnote 82:

Cod. Dipl. No. 1078.

Footnote 83:

Hist. Eliens. i. 1. “Sicque postea per destitutionem, regiae sorti,

sive fisco, idem locus additus est.” See also vol. i. p. 302, note 2.

-----

FINES.—It is hardly necessary to enter into any great detail respecting

the fines which were imposed for various offences against the state, and

which were levied by the public officers to the king’s use. The laws

abound with examples: it may in general be concluded that the proceeds

were nearly absorbed by the cost of collection, and that little remained

to the king when the portions of the ealdorman and geréfa had been

deducted. But still these fines require a particular notice, because

they are especially enumerated by Cnut among the rights of his crown. He

says:—“These are the rights which the king enjoys over all men in

Wessex: that is, Mundbryce, and Hámsócne, Foresteal, Flýmena fyrmð, and

Fyrdwíte, unless he will more amply honour any one, and concede to him

this worship[84].” In Mercia, he declares himself entitled to the same

rights[85], and also by the Danish law, that is in Northumberland and

Eastanglia,—with the addition of Fihtwíte, and the fine for harbouring

persons out of the Fríð or public peace[86]. These evidently belong to

him in his character of conservator of that peace: Mundbryce is breach

of his own protection: Hámsócn is an aggravated assault upon a private

dwelling: Foresteal here, the maintenance of criminals and interference

to prevent the course of justice: Flýmena fyrmð, the comforting and

supporting of outlaws or fugitives: Fyrdwíte, the penalty for neglecting

to attend, or for deserting, the armed levy when duly proclaimed:

Fihtwíte is the penalty for making private war. These regalia he could

grant to a subject if such were his pleasure. But they are far from

exhausting the catalogue of his rights: he possessed many others, which

were either honourable or profitable, and were by him alienated in

favour of his lay or clerical favourites.

-----

Footnote 84:

Cnut, ii. § 12. Thorpe, i. 382.

Footnote 85:

Cnut, ii. § 14. Thorpe, i. 384.

Footnote 86:

Cnut, ii. § 15. Thorpe, i. 384.

-----

TREASURE TROVE.—The first of these is Treasure-trove, which was, in all

probability, of considerable importance and value: it is designated in

Anglosaxon charters by the words “ealle hordas búfan eorðan and binnan

eorðan,” and frequently occurs in the grants to monastic houses. In very

early and heathen periods various causes combined to render the burial

of treasure common. It was a point of honour to carry as much wealth

with one from this world to the next as possible; and it was a

recognized duty of the comites and household of a chief to sacrifice at

his funeral, whatever valuable chattels they might have gained in his

service. We may infer from Beówulf[87] that a portion at least of the

treasure he gained by his fatal combat with the firedrake was to

accompany him in the tomb. Some of it was to be burnt with his body, but

some, according to the practice of the pagan North, to be buried in the

mound raised over his ashes[88].

Hí on beorg dydon They put into the mound

beág ⁊ beorht siglu, rings and bright gems,

. . . . . . . . . . . . . . . . . . . . . . . .

forléton eorla gestreón they let earth hold

eorðan healdan, the gains of noble men,

gold on greóte, gold in the dust,

ðǽr hit nú gen lífað where it doth yet remain

eldum swá unnýt useless to men

swá hit ǽror wæs. even as before it was[89].

-----

Footnote 87:

Beow. l. 6016 _seq._: compare l. 5583 _seq._

Footnote 88:

Ibid. l. 6320.

Footnote 89:

See the account of the burial of Haraldr Hilditavn in the Fornald.

Savg. i. 387. “Ok áðr enn havgrinn væri aptr lokinn, þá biðr Hríngr

Konúngr til gánga allt stórmenni ok alla Kappa, ok við voru staddir,

at kasta í havginn stórum hríngum ok góðum vápnum, til sæmdr Haraldi

Konúngi Hilditavn; ok eptir þat var aptr byrgði havgrinn vandliga.”

Brynhildr caused the jewels which her father Buðli had given her, to

be burnt with herself and Sigurðr. Sigurd, evid. iii. 65.

-----

When we consider the truly extraordinary number of mounds or _heathen

burial-places_ which are mentioned in the boundaries of Saxon charters,

we cannot doubt that large quantities of the precious metals were thus

committed to the earth. To this superstitious cause others of a more

practical nature were added. In all countries where from want of

commerce and convenient internal communication, or from general

insecurity, there is no profitable investment for capital, hoarding is

largely resorted to by those who may chance to become possessed of

articles of value: we need go no further than Ireland or France for an

example, where one of the most striking signs of the prevalent

barbarism, is the concealment of specie and plate, often

underground[90]. And in cases of sudden invasion, especially by enemies

who had not the habit of sparing religious houses, the earth may have

been resorted to as the safest depository of treasure which it was

impossible to transport[91]. William of Malmesbury attributes to the

fears of the Britons the accumulations which he says were frequently

discovered in his own day[92], and there can be little doubt that this

even among the Saxons tended to increase the quantity of gold and silver

withdrawn from general use. It may have been partly the conviction of

the mischief resulting to society from this habit,—by which gold was

made “eldum swá unnýt swá hit ǽror wæs,”—that caused the very frequent

and strong expression of blame which we find in Anglosaxon works applied

to those who bury treasure, and apparently also to treasure-hunters. It

may be that it was thought impious to violate even the heathen sanctuary

of the dead; at all events, the popular belief was encouraged that

buried treasure was guarded by spells, watched by dragons[93], and

loaded with a curse which would cleave for ever to the discoverer:

hidden gold is in fact always represented as _heathen_ gold, which, we

may readily suppose, could only be purified from its mischievous

qualities by passing through the hands of the universal purifiers in

such cases, the clergy. Strictly however the king was the proper owner

of all treasure-trove, and where the lord of a manor obtained the right

to appropriate it to himself, it could only be by grant from the

representative of the whole state[94]. Probably the sovereigns were not

quite so superstitious as the bulk of their subjects, and certainly they

were much better able to defend their own rights than the simple

landowners in the rural districts. Still in a very great number of cases

they granted away their privilege; probably finding it easier and more

profitable to give it up to those who would have used it, without a

grant, than to undergo the trouble of detecting and punishing them for

taking it unpermitted into their own hands.

-----

Footnote 90:

In Ireland this is so common as to have caused the existence of what

we may call a professional class of treasure-seekers, whose idle,

gambling pursuit is in admirable harmony with the Keltic hatred for

honest, steady labour.

Footnote 91:

To this cause may be attributed the hoards discovered within a few

years at Cuerdale, Hexham, and other places on the borders; and some

perhaps of the numerous _finds_ at Wisby and in Gothland.

Footnote 92:

“Partim sepultis thesauris, quorum plerique in hac aetate defodiuntur,

Romam ad petendas suppetias ire intendunt.” Gest. Reg. i. § 3. It is

well worth the consideration of our antiquarians who have devoted

pains and money to the opening of barrows, how far the notorious

searches which have been made for treasure in these repositories, by

successive generations of Saxons, Danes and Normans, may have

interfered with the _original_ disposition of sepulchral mounds,

cairns and cromlechs. The legend of Gúðlác supplies a Saxon instance

of the highest antiquity. “Wæs ðǽr on ðám ealande sum hláw mycel ofer

eorðan geworht, ðone ylcan men iúgeara for feos wilnunga gedulfon and

brǽcon: ðá was ðǽr on óðre sídan ðæs hláwes gedolfen swylíc mycel

wæterseáð wǽre.” Cap. 4. Godw. Ed. p. 26.

Footnote 93:

Beów. l. 6100. In the North it is difficult to find a hoard without a

dragon, or a dragon without a hoard.

Footnote 94:

Concealment of treasure-trove is a grave offence, inasmuch as it

immediately touches the person and dignity of the king: “De

inventoribus thesauri occultati inventi, haec quidem graviora sunt et

maiora, eo quod personam regis tangunt principaliter. Sunt etiam

crimina aliquantulum minora ... sicut haec; de homicidiis causalibus

et voluntariis,” _seq._ Fleta, lib. 1. cap. 20. § 1, 2, 3 _seq._,

where this offence is assimilated to high-treason, and classed above

all offences against individuals, including murder, rape, arson and

burglary.

-----

PASTUS or CONVIVIUM, _Cyninges feorm_.—One of the royal duties was to

make, in person or by deputy, periodical journeys through the country,

progresses, in the course of which the king visited different districts,

proclaimed his peace, confirmed the rights and privileges of the freemen

or free communities, and heard complaints against the officers of the

executive, if such had arisen during the exercise of their functions.

This, which on its first occurrence immediately after his election was

known in Germany by the name of the _Einritt ins land_, or

_Landbereisung_[95], was probably connected with the principle of the

king’s being the proper guardian of the boundaries: and in the period

when the people had lost the power of electing their king at a general

meeting, it may have served the purpose of giving them an opportunity of

becoming acquainted with the person of their ruler. It is difficult to

say when the system of progresses entirely ceased; but there can be no

doubt that it subsisted in one form or another till a very late period

in England. Under the Anglosaxon law it was by no means a matter of

amusement or caprice, but of positive duty, on the part of the king; and

Royalty _in eyre_ was a necessary condition of a state of society which

would have rejected as a ludicrous tyranny the pretension of any one

city to be the central deposit of all the powers and machinery of

government. The kings of the Merwingian race in France, who probably

retained something of an old priestly character, made these circuits in

the celebrated chariot drawn by oxen, which later and ill-informed

writers have imagined was a sign of their degradation, instead of their

dignity[96]. Of this particular part of the ceremony no trace remains in

England, and it is probable that as occasion served, the king either

rode on horseback, circumnavigated, or was towed or rowed along the

navigable rivers[97]. On these occasions particularly, he had a right to

claim harbour and refection for himself and a certain number of his

suite in various places, principally religious houses. These claims,

which answer in many respects to the _procuratio_ of the ecclesiastical

law, were gradually extended so as to include the royal commissioners or

_Missi_, and in many cases became a fixed charge upon the lands, whether

the king actually visited them or not[98]. Very many of the charters

granted to monasteries record the exemption from them, purchased at a

heavy price by prelates, from his avarice or piety[99]. And as the king

himself gradually ceased to undertake these distant and fatiguing

expeditions, and entrusted to his special messengers the task of seeing

and hearing for him, so they in time established a claim to harbourage

and reception in the same places. This was extended to all public

officers going on the king’s affairs, called Angelcynnes men, Fæsting

men, Rǽde fasting, and the like: to all messengers dispatched on the

public service from one kingdom to another, while there were several

kingdoms; and very probably to those who carried communications from the

ealdormen to the king, when one rule comprehended all the several

districts. And not only for those who travelled on important affairs of

state, and who were very often persons of high birth and distinguished

station, but even for certain servants of the royal household were these

claims enforced. The huntsmen, stable-keepers and falconers of the court

could demand bed and board in the monasteries, where they were often

unwelcome guests enough: and this royal right, no doubt frequently used

by the ealdorman or sheriff as an engine of oppression, was also bought

off at very high prices.

-----

Footnote 95:

For a full account of this see Grimm, Rechtsalt. p. 237.

Footnote 96:

See Grimm, Rechtsalt. p. 262.

Footnote 97:

I have little doubt that, when Beda speaks of the pomp with which

Eádwini of Northumberland was accustomed to ride, he refers to this

ceremony. Hist. Eccl. ii. 16. The well-known tales of Eádgár, rowed by

six kings on the Dee, and Cnut at Ely, will at once occur to the

reader: but has it never occurred to him to ask what Eádgár could

possibly be doing at the one place, or Cnut at the other? See Will.

Malm. Gest. Reg. ii. § 148. The same author tells us of Eádgár: “Omni

aestate, emensa statim Paschali festivitate, naves per omnia littora

coadunari praecipiebat; ad occidentalem insulae partem cum orientali

classe, et illa remensa cum occidentali ad borealem, inde cum boreali

ad orientalem remigare consuetus; pius scilicet explorator, ne quid

piratae turbarent. Hyeme et vere, per omnes provincias equitando,

iudicia potentiorum exquirebat, violati iuris severus ultor; in hoc

iustitiae, in illo fortitudini studens; in utroque reipublicae

utilitatibus consulens.” Gest. Reg. ii. § 156. Flor. Wig. an. 975.

“Cum _more assueto_ rex Cnuto regni fines peragrarat.” Hist. Rames.

Eccl. (Gale, iii. 441.)

Footnote 98:

Cod. Dipl. No. 143. “Necnon et trium annorum ad se pertinentes

pastiones, id est sex convivia, libenter concedendo largitus est.”

Probably they were in arrear, and Offa excused them: but they could

not have been in arrear unless they were payable any under

circumstances; that is, whether the king visited the monastery or not.

I take this to be a standing tax, known under the name of Cyninges

feorm, the king’s farm: it was probably commuted for money, and after

a time rendered certain as to amount. In 814 Cénwulf released the

Bishop of Worcester from a _pastus_ of twelve men which he was bound

to find at his different monasteries, and the exemption was worth an

estate of thirteen hides. Cod. Dipl. No. 203.

Footnote 99:

See Vol. I. p. 294, _seq._ Examples may be found in almost every other

page of the Codex Diplomaticus. See also Hist. Rames. Eccl. 85.

-----

PALFREYS.—Somewhat allied to this was the king’s right to claim the

service of horses or palfreys, for the carriage of effects from one

royal vill to another, or for the furtherance of his messengers or the

public servants[100]. This, which in Hungary still subsists under the

name of Vorspann, was a heavy burthen, as it tended to withdraw horses

from agricultural labour, at the moment when they were most wanted; and

it is to be feared that they were, on this pretext, only too often taken

from the harvesting of the bishop or abbot and his tenants, to secure

that of the ealdorman. This therefore is frequently compounded for, at a

dear rate, under the expression of freedom _a parafrithis_ or

_paraveredis_[101].

-----

Footnote 100:

“Faciebant servitium regis cum equis vel per aquam usque ad

Blidbeream, Reddinges, Sudtone, Besentone: et hoc facientibus dabat

praepositus mercedem non de censu regis, sed de suo.” Domesd. Berks.

Many of these burthens are summed up in a charter of liberties granted

by Eédweard of Wessex at Taunton, to Winchester: “Erat namque antea in

illo supradicto monasterio pastus unius noctis regi, et octo canum, et

unius caniculari pastus, et pastus novem noctium accipitrariis regis,

et quidquid rex vellet inde ducere usque ad Curig vel Willettun [Curry

and Wilton in Somerset] cum plaustris et equis, et si advenae de aliis

regionibus advenirent, debebant ducatum habere ad aliam regalem villam

quae proxima fuisset in illorum via.” Cod. Dipl. No. 1084. The

Vorspann in Hungary, which is a right to a peasant’s horses on the

production of an order from the county authorities, is generally a

convenience to himself as well as the traveller, who does not object

to pay for much better accommodation than he could obtain from the

ordinary posting establishment. But it is nevertheless a remnant of

barbarism which we may now hope to see vanish, together with every

other obstacle to free communication, under the management of that

most patriotic and enlightened gentleman Count Stephen Szechenji.

Footnote 101:

On the complaint of the clergy of the diocese of Cremona, the emperor

Lothaire decided that _they_ were not bound to supply waggons and

horses for his service. Böhm. Reg. Karol. No. 544.

-----

VIGILIA.—Another right which the king claimed was that of having proper

watch set over him when he came into a district. This, called Vigilia

and Custodia in the Latin authorities, is the Heáfodweard, or _Headward_

of the Saxons. It extended also to the guard kept for him on his hunting

excursions[102]; and coupled with it was his claim to the assistance of

a certain number of men in the hunt itself, either as beaters or

managers of the nets in which deer were taken[103].

-----

Footnote 102:

“Homines de his terris custodiebant regem apud Cantuariam vel apud

Sandwic per tres dies, si rex illuc venisset.” Domesd. Kent. “Quando

rex iacebat in hac civitate, servabant eum vigilantes duodecim homines

de melioribus civitatis. Et cum ibi venationem exerceret, similiter

custodiebant eum cum armis meliores burgenses cabalos habentes.”

Domesd. Shropsh. “Isti debent vigilare in curia domini, cum praesens

fuerit.” Chartul. Evesh. f. 24.

Footnote 103:

“Qui monitus ad stabilitionem venationis non ibat quinquaginta solidos

regi emendabat.” Domesd. Berks.

-----

Sǽweard or coast-guard was also a royal right, performed by the tenants

of those landowners whose estates lay contiguous to the sea. The

miserable condition to which England was frequently reduced, by the

systematic incursions of Scandinavian invaders, rendered this a very

important duty, even in spite of the efforts of successive kings who

early comprehended the destinies of this nation, and entrusted her

defence to maritime armaments. It seems probable that various ports on

the coast of Kent and Norfolk may have been particularly charged with

this burthen, and that the _butsecarlas_ or shipmasters were held bound

to supply craft on emergencies, or even for a regular system of

patrolling. In this may have lain the foundation of the privileges

enjoyed by the Cinque Ports, and similar coast towns, even before the

Norman conquest.

ÆDIFICATIO.—It was further a royal right to claim the aid even of the

freemen towards building and fencing the residence or fortress of the

king: a certain amount of personal labour was thus demanded of them, in

analogy with the _trinoda necessitas_ from which no estate could

possibly be relieved. This kind of _corvée_ was no doubt performed by

tenants whom the landowners settled on their estates, but really was due

from the landowners themselves, except where their estates of bócland

had been expressly freed from the royal burthens. Where the royal vill

was also a district fortification, not even this general exception

relieved the bóclands; fortifications being especially reserved in every

charter, as well as building and repair of bridges.

WRECK.—Doubts have been started upon the subject of wreck, which do not

appear well founded: it is true that circumstances of suspicion attach

to the documents upon which the arguments pro and con were based in the

time of Selden; but we are now in possession of further evidence, of a

nature to remove all difficulty. I have no hesitation in including

Wreck, both jetsam and flotsam, among the Regalia, which were granted

not only to ecclesiastical corporations, but even to private landowners.

The History of Ramsey[104] states that Eádweard the Confessor, whereby

he might show a profitable love to the place, bestowed upon it

Ringstede[105] with the adjacent liberty, and all that the sea cast up,

which is called _Wreck_. We have yet the charter by which this grant is

supposed to have been made[106], and it is very explicit upon the

subject. After conveying lands and other possessions in Huntingdonshire,

he proceeds to give several places, tenements or rents, on the coast of

Norfolk and the Wash, at Wells, and Branchester, etc. In the last-named

place, he adds, “cum omni maris proiectu, quod nos anglicè shipwrec

appellamus.” He further adds, “de meo iure quod mihi soli competebat,

absque ullius reclamatione vel contradictione ista addidi: inprimis

Ringested, cum omnibus ad se pertinentibus, et cum omni maris eiectu,

quod shipwrec appellamus,” etc. Now, although the authenticity of this

charter, in its present form may be open to question, this fact does not

of itself justify us in at once concluding against the privilege claimed

under it. On the other hand the recognized right of the king throughout

the Norman times, and the total absence of any opposition to its

exercise, are _primâ facie_ evidence of its having resided in the crown

before the Conquest[107]. Naufragium and Algarum maris are distinctly

stated to be rights of the crown, in the laws of Henry the First[108],

and we can give examples from other Saxon charters whose genuineness is

beyond dispute. The Saxon Chronicle under the date 1029 records a grant

made by Cnut to Christchurch, Canterbury, of the haven of Sandwich. The

passage is defective, but enough of it remains to prove that it refers

to an original document, of which very early copies are still in our

possession[109]. In this he says:—

“Concedo eidem aecclesiae ad victum monachorum portum de Sanduuíc et

omnes exitus eiusdem aquae, ab utraque parte fluminis cuiuscumque terra

sit, a Pipernæsse usque ad Mearcesfleóte, ita ut natante nave in

flumine, cum plenum fuerit, quam longius de navi potest securis parvula

quam Angli vocant _Tapereax_ super terram proici, ministri aecclesiae

Christi rectitudines accipiant, ... Si quid autem in magno mari extra

portum, quantum mare plus se retraxerit, et adhuc statura unius hominis

tenentis lignum quod Angli nominant _spreot_, et tendentis ante se

quantum potest, monachorum est. Quicquid etiam ex hac parte medietatis

maris inventum et delatum ad Sanduuíc fuerit, sive sit vestimentum, sive

rete, arma, ferrum, aurum, argentum, medietas monachorum erit, alia pars

remanebit inventoribus.”

-----

Footnote 104:

Hist. Rams. 106.

Footnote 105:

There are two places of this name on the coast of the Wash near

Burnham Market in Norfolk. The one intended is most probably Ringstead

St. Andrew’s.

Footnote 106:

Cod. Dipl. No. 809.

Footnote 107:

See Bracton, ii. 5. § 7. Westm. i. cap. 4. Stat. Praerog. Reg. cap.

11. Also 17. Edw. II. cap. 11. Rot. Chart. 20. Hen. III. m. 3. and 14.

Edw. III. m. 6. Pat. 42. Hen. III. m. 1. dorso. See also Sir W.

Stamford, Expos. King’s Prerog. fol 37, b.

Footnote 108:

Leg. Hen. I. 10. § 1. Ducange reads _laganum_ for _algarum_.

Footnote 109:

Cod. Dipl. No. 737, where it is printed both in Latin and Saxon.

-----

The Saxons in England, Volume 2 (of 2) A history of the English commonwealth till the period of the Norman conquest · 第 2 / 15 章