These words are quite wide enough to carry _wreck_, although this be not

distinctly stated by name. But Eádweard the Confessor furnishes us with

still further evidence. In a writ addressed by him to Ælfwold bishop of

Sherborne, earl Harold, and Ælfred the sheriff of Dorsetshire, he

says[110]: “Eádweard the king greets well Bishop Ælfwold, earl Harold,

Ælfred the sheriff and all my thanes in Dorsetshire: and I tell you that

Urk my húscarl is to have his strand, over against his own land, freely

and well throughout, up from sea, and out on sea, and whatsoever may be

driven to his strand, by my full command.”

-----

Footnote 110:

Cod. Dipl. No. 871.

-----

In this, as in many other cases, the principle seems to be, that that

which has no ostensible owner is the property of the state, or of the

king as its representative; and hence, in the later construction of the

law of _wreck_, it was necessary that an absolute abandonment should

have taken place, before wreck could be claimed. If there were _life_ on

board, even a dog, cat, or lower animal, there could legally be no

wreck, and this provision of the law has very often led to the

perpetration of the most savage murders, as a precaution lest any living

creature, by reaching the strand, should defeat the avarice of its

barbarous owners. From the little evidence we can now recover, of the

Saxon practice, this limitation does not appear to have existed.

MINT.—The coinage has always in every country been numbered among the

regalia, and this land appears to make no exception. Although the Witena

gemót, in conjunction with the king, exercise a general superintendence

over this most important branch of the public affairs, still certain

details remain which belong to the king exclusively. The number of

moneyers generally in the various localities, the necessity of having

one standard over all the realm, the penalties for unfaithful discharge

of the moneyer’s duty, or for fraudulently imitating the money of the

state, and similar enactments, might be determined by the great council

of the realm; but the coin bore the image and superscription of the

king, he received a description of _seigneuriage_ upon delivery of the

dies, and he changed the coin when it seemed to require renovation or

improvement. Thus we learn that Eádgár called in the old, and issued a

new coinage, in the year 975, because it had become so clipped as to

fall far short of the standard weight[111]: and in the Domesday record,

the dues payable to the king on each change of die are noticed[112]. It

seems clear that this royal right had been assumed by private

individuals, or granted to them, like other royalties, previous to the

time of Æðelrǽd: that prince enacted not only that there should be no

moneyers beside the kings, but also that their number should be

altogether diminished[113]; by which we may suppose that it was his

intention to do away with the mints which the bishops had before

possessed legally[114] in various towns, and which from the passages

cited out of Domesday book, evidently continued to subsist, in spite of

the provisions of the Council of Wantage. But if the coins themselves

are to be trusted, we may conclude that on some occasions this right had

been granted by the crown to others than the clergy. One piece still

bears the name and head of Cyneðrýð, probably Offa’s queen[115]; and

another with the impress of Hereberht, was probably coined by a Kentish

duke. Both these cases, which are in themselves doubtful, are a hundred

years earlier than Æðelrǽd’s law, above quoted.

-----

Footnote 111:

Matt. Westm. an. 975.

Footnote 112:

“Ibi erant duo monetarii; quisque eorum reddebat regi unam marcam

argenti, et viginti solidos, quando moneta vertebatur.” Domesd.

Dorset. “Septem monetarii erant ibi; unus ex his erat monetarius

episcopi. Quando moneta vertebatur, dabat quisque eorum octodecim

solidos pro cuneis recipiendis, et ex eo die quo redibant usque ad

unum mensem, dabat quisque eorum regi viginti solidos, et similiter

habebat episcopus de suo monetario. In civitate Wirecestre habuit rex

Edwardus hanc consuetudinem. Quando moneta vertebatur, quisque

monetarius dabat XX solidos ad Londoniam, pro cuneis monetae

accipiendis.” Domesd. Worcester. See also Domesd. Hereford.

Footnote 113:

Æðelr. iii. § 8; iv. § 9. Thorpe, i. 296, 303.

Footnote 114:

Æðelst. i. § 14. Thorpe, i. 206.

Footnote 115:

Or perhaps his relative, the abbess of Bedford, for it is difficult to

conceive how during coverture, the queen could have coined, and proof

is wanting that she was ever regent of his kingdom.

-----

MINES.—Mines and minerals are also among the regalia of a German king,

and were so in England. The cases which principally come under our

observation in the charters are salt-works and lead-mines; but in a

document of the year 689, which however is not totally free from

suspicion, Osuuini of Kent grants to Rochester a ploughland at Lyminge

in Kent, in which he says there is a mine of iron[116]. In 716, Æðelbald

of Mercia granted certain salt-works near the river Salwarpe at Lootwíc

in Worcestershire, in exchange however for others to the north of the

river[117]. In the same year he granted a hid of land in Saltwych, _vico

emptorio salis_, to Evesham[118]. In 732, Æðelberht of Kent gave abbot

Dun a quarter of a ploughland at Lyminge, where there were salt-works,

that is evaporating pans[119], and added to it a grant of a hundred

loads of wood per annum, necessary to the operation. In 738 Eádberht of

Kent includes salt-works in a grant to Rochester[120], and similarly in

812, 814, Coenuulf, in grants to Canterbury[121]. In 833 Ecgberht gave

salt-works in Kent, and a hundred and twenty loads of wood from the

weald of Andred, to support the fires[122]. Three years later Wigláf of

Mercia confirmed the liberties of Hanbury in Worcestershire, with all

its possessions, including salt-wells and lead-works[123]. In 863,

Æðelberht granted salt-works in Kent to Æðelred, with four waggons going

for six weeks into the royal forest[124]. In 938, Æðelstán gave to

Taunton three híds of land, and salt-pans[125].

-----

Footnote 116:

Cod. Dipl. No. 30. So likewise I imagine the ísengráfas (eisengruben)

of Cod. Dipl. No. 1118 to be iron-mines.

Footnote 117:

Cod. Dipl. No. 67. “Aliquam agelli partem in qua sal confici solet ...

ad construendos tres casulos et sex caminos ... sex alios ... caminos

in duobus casulis, in quibus similiter sal conficitur, vicarios

accipiens.”

Footnote 118:

Cod. Dipl. No. 68.

Footnote 119:

Cod. Dipl. No. 77. “Quarta pars aratri ... sali coquendo accommoda....

Et insuper addidi huic donationi ... in omni anno centum plaustra

onusta de lignis ad coquendum sal.”

Footnote 120:

Cod. Dipl. No. 85.

Footnote 121:

Cod. Dipl. Nos. 199, 201.

Footnote 122:

Cod. Dipl. No. 234. “Et in eodem loco sali coquenda iuxta Limenae, et

in silva ubi dicitur Andred, centum viginti plaustra ad coquendum

sal.”

Footnote 123:

Cod. Dipl. No. 237, “Cum putheis salis et fornacibus plumbis.”

Footnote 124:

Cod. Dipl. No. 288. “Unamque salis coquinariam, hoc est án

sealternsteall, and ðer cota to, in ilia loco ubi nominatur Herewíc,

et quatuor carris transductionem in silba regis sex ebdomades a die

Pentecosten hubi alteri homines silbam cedunt, hoc est in regis

communione.”

Footnote 125:

Cod. Dipl. Nos. 374. (cf. 1002). “Et tres [mansas] in loco qui Cearn

nuncupatur ad coquendam salis copiam.” In 854, Æðelwulf mentions

_salinaria_ in a grant to the same place. Cod. Dipl. No. 1051.

-----

The king in all these cases had possessed a right to levy certain dues

at the pans or the pit’s mouth, upon the waggons as they stood, and upon

the load being placed in them: these dues were respectively called the

wǽnscilling and seámpending, literally _wainshilling_ and _loadpenny_,

and were entirely independent of the rent which might be reserved by the

landlord for the use of the ground, whether he were the king or a

private person. And immunity from these dues might also be granted by

the crown, and was so granted. In 884, Æðelred, duke of Mercia, who

acted as a viceroy in that new portion of Ælfred’s kingdom, and

exercised therein all the royal rights as fully as any king did in his

own territories, gave Æðelwulf five híds at Humbleton, and licence to

have six salt-pans, free from all the dues of king, duke or public

officer, but still reserving the rights of the landlord[126]. But the

same prince, about the same period, when conferring various royalties

upon the cathedral of Worcester, retained the king’s dues at the pans in

Saltwíc[127].

-----

Footnote 126:

Cod. Dipl. No. 1066. “Ego Æðelred, divina largiente gratia principatu

et dominio gentis Merciorum subfultus, donatione trado Æðelwulfo

terrain quinque manentium in loco qui dicitur Hymeltun ... salisque

coctionibus, id est, sex vascula possint praeparari salva libertate,

sine aliquo tributo dominatoris gentis praedictae, sive ducum,

iudicumve et praesidum, id est statione sive inoneratione plaustrorum,

nisi solo illi qui huic praedictae terrae Hymeltune dominus existat

... ut haec traditio, sive in terra praedicta, sive in vico salis,

absque omni censu atque tributo perpetualiter libera permaneat.”

Footnote 127:

Cod. Dipl. No. 1075. “Bútan ðæt se wægnscilling and se seámpending

gonge tó ðæs cyninges handa, swá he ealning dyde æt Saltwíc:” except

that the wainshilling and loadpenny (“statio et inoneratio

plaustrorum”) shall go to the king’s hand, as they always did, at

Saltwíc.

-----

The peculiar qualities of salt, which make it a necessary of life to

man, have always given a special character to the springs and soils

which contain it. The pagan Germans considered the salt-springs holy,

and waged wars of extermination for their possession[128]; and it is not

improbable that they may generally have belonged to the exclusive

property of the priesthood. If so, we can readily understand how, upon

the introduction of Christianity, they would naturally pass into the

hands of the king: and this seems to throw light upon the origin of this

royalty, which Eichhorn himself looks upon as difficult of

explanation[129]. Many of the royal rights were unquestionably inherited

from the pagan priesthood.

-----

Footnote 128:

Tacit. Ann. xiii. 57. “Eadem aestate inter Hermunduros Cattosque

certatum magno praelio, dum flumen gignendo sale fecundum et

conterminum vi trahunt, super libidinem cuncta armis agendi religione

insita, eos maxime locos propinquare coelo, precesque mortalium a deis

nusquam propius audiri.”

Footnote 129:

Deut. Staatsr. ii. 426. § 297.

-----

MARKET.—The grant of a market, with power to levy tolls and exercise the

police therein, was also a royalty, in the period of the consolidated

monarchy; and to this head may be added the right to keep a private beam

or steelyard, _trutina_ or _tróne_, yard-measure, and bushel. Of these

the charters supply examples. The last-named rights were purchased in

857 by bishop Alhhun of Worcester, from Burgred, who, as king of Mercia,

disposed of them to him, with a small plot of land in London. The price

paid was sixty shillings, or a pound, to Ceólmund, the owner of the

land, a like sum to the king, and an annual rent of twelve shillings to

the latter[130]. Thirty-two years later, Ælfred and Æðelred of Mercia

gave another small plot in the same city to Werfrið, also bishop of

Worcester. He was to have a steelyard, and a measure, both for buying

and selling, or for his own private use. And if any of his people dealt

in the street or on the bank where the sales took place, the king was to

have his toll: but if the bargain was struck within the bishop’s

_curtis_, he was to have the toll[131].

-----

Footnote 130:

Cod. Dipl. No. 280. “Habeat intus liberaliter modium et pondera et

mensura[m], sicut in porto mos est ad fruendum.”

Footnote 131:

Cod. Dipl. No. 316. “Et intro urnam et trutinam ad mensurandum in

emendo sive vendendo ad usum, sive ad necessitatem propriam et liberam

omnimodis habeat.... Si autem foris vel in strata publica seu in ripa

emptorali quislibet suorum mercaverit, iuxta quod rectum sit,

thelonium ad manum regis subeat: quod si intus in curte praedicta

quislibet emerit vel vendiderit, thelonium debitum ad manum episcopi

supramemorati reddatur.”

-----

In 904 Eádweard gave a market in Taunton to the bishop of Winchester,

with the toll therefrom arising, by the name of “ðæs túnes cýping”[132]:

and a few years earlier Æðelred of Mercia granted half the market-dues

and fines at Worcester to the bishop of that city[133]. The Frankish

emperors possessed and exercised the same right[134]. The strict law of

the Anglosaxons, which treated all strangers with harshness, was

unfavourable to the chapmen or pedlars, who in thinly-peopled countries

are relied upon to bring markets home to every one’s door: and it must

be admitted that, where internal communication is yet imperfect,

stringent measures are necessary to guard against the disposal of goods

improperly obtained. The details of these measures belong to another

part of this work, but it is necessary to call attention here to the

endeavour on the part of the authorities, to confine all bargaining as

much as possible to towns and walled places[135]: the small tolls

payable on these occasions to the proper officers were a reasonable

sacrifice for the sake of a certificate of fair dealing, and the assured

warranty of what the Saxon law calls _unlying_ witnesses. The king, as

general conservator of the peace, had this royalty, and, as we have

seen, granted it in various towns to those who would be able and willing

to perform the duties which it implied.

-----

Footnote 132:

Cod. Dipl. No. 1084. “Praedictae etiam villae mercimonium, quod

anglicè ðæs túnes cýping appellatur, censusque omnus civilis sanctae

dei aecclesiae in Wintonia civitate, sine retractionis obstaculo cum

omnibus commodis aeternaliter deserviat.”

Footnote 133:

Cod. Dipl. No. 1075.

Footnote 134:

See Böhmer, Regest. Karol. Nos. 439, 628, 700, 2065, 2078.

Footnote 135:

Eádw. § 1. Æðelst. i. § 10, 12, 13; iii. § 2; v. § 10. Eádm. i. § 5.

Eádg. Sup. § 6. Æðelb. i. § 3. Cnut, ii. § 24. Eádw. Conf. § 38. Wil.

Conq. i. § 45; iii. § 10, 11.

-----

TOLL.—Closely connected with this are tolls, which, here as well as in

Germany, the king claimed in harbours, and upon transport by roads and

by navigable streams[136], and which he either remitted altogether in

favour of certain favoured persons or empowered them to take; thus, in

the first instance, creating for them a commercial monopoly of the

greatest value, by enabling them to enter the market on terms of

advantage. As early as the eighth century we find Æðelbald of Mercia

granting to a monastery in Thanet, exemption from toll throughout his

kingdom for one ship of burthen[137], remitting to Milræd, bishop of

Worcester, the dues upon two ships, payable in the port of London[138],

and to the bishop of Rochester the toll of one ship, whether his own or

another’s, in the same port[139]. And the grant to St. Mildðrýð in

Thanet was confirmed for himself, and increased by Eádberht of Kent in

761, and extended to London, Fordwíc and Seorre[140]; and if the actual

ship to which this privilege was attached should become unseaworthy

through age, or perish by shipwreck, a new one was to receive the same

favour.

-----

Footnote 136:

See Böhmer, Regest. Karol. Nos. 7, 14, 28, 31, 67, 71, 83, 89, 97,

111, 163, 206, 217, 220, 227, 231, 240, 252, 260, 272, 283, 288, 304,

308, 398, 415, 461, 463, 559, 561, 564, 566, 586, 592, 593, 605, 652,

693, 739, 787, 837, 885, 1528, 2067, 2073. These charters contain full

particulars relative to the levy, release and grant of tolls in the

Frankish empire.

Footnote 137:

Cod. Dipl. No. 84. “Navis onustae transvectionis censum qui a

theloneariis nostris tributaria exactione impetitur, perdonans

attribuo; ut ubique in regno nostro libera de omni regali fiscu et

tributo maneat.”

Footnote 138:

Cod. Dipl. No. 95. “Ðá forgeofende ic him álýfde alle nédbade twégra

sceopa ða ðe ðǽr ábædde beóð fram ðám nédbaderum in Lundentúnes hýðe;

ond næfre ic né míne lastweardas né ða nédbaderas geþristlǽcen ðæt heó

hit onwenden oððe ðon wiðgǽn.” See similar exemptions in Cod. Dipl.

Nos. 97, 98, 112.

Footnote 139:

Cod. Dipl. No. 78. “Indico me dedisse ... unius navis, sive illa

propria ipsius, sive cuiuslibet alterius hominis sit, incessum, id est

vectigal, mihi et antecessoribus meis iure regio in portu Lundoniae

usque hactenus conpetentem.” And this was confirmed a century later by

Berhtwulf of Mercia.

Footnote 140:

Cod. Dipl. No. 106. After mentioning one ship, relieved from toll in

London, he continues: “Alterius vero ... omne tributum atque vectigal

concedimus, quod etiam a thelonariis nostris iuste impetitur publicis

in locis, qui appellantur Forduuíc et Seorre.”

-----

A common privilege in charters of liberties is Tol, but this probably

refers rather to a right of taking it upon sales within the

jurisdiction, than properly to dues levied on transport. Such however

are occasionally mentioned as matter of grant. Eádmund Irensída,

conveying lands which had belonged to Sigeferð (whose widow he had

married), includes toll upon water-carriage among his rights[141]. Cnut

gave the harbour and tolls of Sandwich to Christchurch Canterbury[142],

together with a ferry. This right, under Harald Haranfót, was attempted

to be interfered with by the abbot of St. Augustine’s, who even at last

went so far as to dig a canal in order to divert the channel of trade;

but the monks of Christchurch nevertheless succeeded in retaining their

property[143]. These examples, although not very numerous, are

sufficient to show that the Anglosaxon kings fully possessed the right

of levying and granting toll, as well as exemption from its payment; and

they are sufficiently confirmed by Domesday and the laws of the kings

themselves[144].

Footnote 141:

Cod. Dipl. No. 726. “Ita habeant sicut Siuerthus habuit in vita, in

longitudine et in latitudine, in magnis et in modicis rebus, campis,

pascuis, pratis, silvis, theloneum aquarum, piscationem in paludibus.”

Footnote 142:

Cod. Dipl. No. 737. “Eorum est navicula et transfretatio portus, et

theloneum omnium navium, cuiuscunque sit et undecumque veniat, quae ad

praedictum portum et ad Sanduuíc venerint.”

Footnote 143:

Cod. Dipl. No. 758. The story is altogether so good, and so well told,

that it may be given here entire.

“This writing witnesseth how Harold the king caused Sandwich to be

ridden about to his own hand: and he kept it for himself well nigh a

twelvemonth, and at any rate fully two herring-seasons, all against

God’s will, and against the Saints’ who lie at Christchurch, as it

turned out ill enough for him afterwards. And during this time there

went Ælfstán the abbot of St. Augustine’s, and got, with his lying

flatteries and his gold and silver, all secretly from Steorra who was

the king’s redesman, a right to the third penny of the toll at

Sandwich. Now when archbishop Eádsige and all the brotherhood at

Christchurch learnt this, they took counsel together, that they should

send Ælfgár, the monk of Christchurch, to king Harold. Now the king

lay at Oxford very ill, so that his life was despaired of; and there

were with him Lýfing, bishop of Devonshire, and Tancred the monk. Then

came the messenger from Christchurch to the bishop; and he forth at

once to the king, and with him Ælfgár the monk, Osweard of

Harrietsham, and Tancred; and they told the king that he had deeply

sinned against Christ, in ever daring to take back anything from

Christchurch which his predecessors had given: and then they told him

about Sandwich, how it had been ridden about to his hand. There lay

the king and turned quite black in the face at their tale, and swore

by God Almighty and all his saints to boot, that it never was either

his rede or his deed, that Sandwich should be taken from Christchurch.

So it was plain enough that it was other peoples’ and not king

Harold’s contrivance: and to say the truth, Ælfstán the abbot’s

counsel was with the men who counselled it out of Christchurch. Then

king Harold sent Ælfgár the monk back to archbishop Eádsige and all

the monks at Christchurch, and gave them God’s greeting and his own,

and commanded that they should have Sandwich, into Christchurch, as

fully and wholly as they had ever had it in any king’s day, both in

rent, in stream, on strand, in fines, and in everything which any king

had ever most fully possessed before them. Now when abbot Ælfstán

heard of this, he came to archbishop Eádsige and begged his support

with the brotherhood, about the third penny: and away they both went

to all the brotherhood and begged the Convent that abbot Ælfstán might

be allowed the third penny of the toll, and he to give the Convent ten

pounds. But they refused it altogether throughout, and said it was no

use asking: and withal archbishop Eádsige backed him much more than he

did the Convent. And when he could not get on in this way, he asked

leave to make a wharf over against Mildðrýð’s acre, opposite the ferry

(?) to keep, but all the Convent decidedly refused this: and

archbishop Eádsige left it all to their own decision. Then abbot

Ælfstán set to, with a great help, and let dig a great canal at

Hyppeles fleót, hoping that craft would lie there, just as they did at

Sandwich: however he got no good by it; for he laboureth in vain who

laboureth against Christ’s will. So the abbot left it in this state,

and the Convent took to their own, in God’s witness, and Saint Mary’s,

and all the Saints’ who rest at Christchurch and Saint Augustine’s.

This is all true, believe it who will: abbot Ælfstán never got the

third penny at Sandwich in any other way. God’s blessing be with us

all now and for ever more! Amen.”

Footnote 144:

The following is the tariff of tolls levied at Billingsgate. Æðelr.

iv. § 2. “De telonio dando ad Bylingesgate. Ad Billingesgate, si

advenisset una navicula, unus obolus telonei dabatur: si maior et

haberet siglas, unus denarius. Si adveniat ceól vel hulcus, et ibi

iaceat, quatuor denarios ad teloneum. De navi plena lignorum, unum

lignum ad teloneum. In ebdomada panum telonium tribus diebus, die

dominica, et die Martis et die Jovis. Qui ad pontem venisset cum uno

bato, ubi piscis inesset, ipse mango unum obolum dabat in telonium, et

de una maiori nave, unum denarium. Homines de Rotomago, qui veniebant

cum vino vel craspice, dabant rectitudinem sex solidorum de magna

navi, et vicesimum frustum de ipso craspice. Flandrenses et

Ponteienses et Normannia et Francia, monstrabant res suas et

extolneabant. Hogge et Leodium et Nivella, qui per terras ibant,

ostensionem dabant et teloneum. Et homines Imperatoris, qui veniebant

in navibus suis, bonarum legum digni tenebantur, sicut et nos. Praeter

discarcatam lanum et dissutum unctum et tres porcos vivos licebat eis

emere in naves suas; et non licebat eis aliquod foreceápum facere

burhmannis; et dare telonium suum, et in sancto Natali Domini duos

grisengos pannos, et unum brunum, et decem libras piperis, et

cirotecas quinque hominum, et duos caballinos tonellos aceto plenos,

et totidem in Pascha: de dosseris cum gallinis, una gallina telonei,

et de uno dossero cum ovis, quinque ova telonei, si veniant ad

mercatum. Smeremangestre, quae mangonant in caseo et butiro,

quatuordecim diebus ante Natale Domini, unum denarium, et septem

diebus post Natale, unum alium.”

-----

FOREST.—It may be doubted whether the right of Forest was at any time

carried among the Saxons to the extent which made it so hateful a means

of oppression under the Norman kings; but there can be no question that

it was one of the royalties. In every part of Germany the _bannum

Forestae_ or _Forstbann_ was so[145], and even to this day is as much an

object of popular dislike in some districts as it ever was among our

forefathers. In countries which depend much upon the immediate produce

of the soil for support, hunting is not a mere amusement to be purchased

or rented by the rich as a luxury, but a very necessary means of

increasing the supply of food; and where coal-mines have not been

worked, the forest alone or the turf-heap can furnish the means of

securing warmth, as indispensable a necessary of life as bread or flesh:

we have seen moreover that it was essential to the comfort of a Saxon

family to possess a right of masting cattle in the neighbouring woods.

-----

Footnote 145:

Eichhorn, Deut. Staatsr. i. 813, § 199.

-----

In the original division of the lands large tracts of forest may have

fallen to the king’s share, which he could dispose of as his private

property. Much of the folcland also may have been covered with wood, and

here and there may have lain sacred groves not included within the

limits of any community[146]. It is not unreasonable to suppose that all

these were gradually brought under the immediate influence and authority

of the king; and that when once the royal power had so far advanced as

to reduce the scír-geréfa to the condition of a crown officer, the

shire-marks or forests would also become subject to the royal

_ban_[147]. That very considerable forest rights still continued to

subsist in the hands of the free men, in their communities, may be

admitted, and is evidence of the firm foundation for popular liberty

which the old Mark-organization laid. But even in these, the possession

was not left totally undisturbed, and the public officers, the king,

ealdorman and geréfa appear to have gradually made various usurpations

valid.

-----

Footnote 146:

“Lucos et nemora consecrant.” Tac. Germ. ix.

Footnote 147:

As early as 825 we find questions of pasture contested by the

swángeréfa as an officer of the ealdorman. Cod. Dipl. No. 219. The

scírholt mentioned in this document would seem to have been the

shire-forest or public wood of the county; hence probably a royal

ban-forest, subject to the royal officer, the ealdorman.

-----

Over his private forests the king naturally exercised all the rights of

absolute ownership; and as his _ban_ ultimately implies this, at least

in theory, it becomes difficult to distinguish those which he dealt with

as _dominus fundi_, from those in which he acted _iure regali_. That he

reserved the vert and venison in some of them, and _preserved_ with a

strictness worthy of more enlightened ages, is clear from the severe

provisions of Cnut’s Constitutiones de Foresta[148]. According to this

important document, the forest law was as follows. In every county there

were to be four thanes, whose business it was, under the title of

Head-foresters, _primarii forestae_, to hold plea of all offences

touching the forest, and having the _ban_ or power of punishing for such

offences. Under them were sixteen lesser thanes, but gentlemen, whose

business it was to look after the vert and venison; and these had

nothing to do with the process in the forest court. To each of the

sixteen were assigned two yeomen, who were to keep watch at night over

the vert and venison, and do the necessary menial services: but they

were freemen, and even employment in the forest gave freedom. All the

expenses of these officers were defrayed by the king, and he further

supplied the outfit of the several classes: to the head-foresters,

yearly, two horses, one saddled, a sword, five lances, a spear, a shield

and two hundred shillings of silver: to the second class, one horse, one

lance, one shield and sixty shillings: to the yeomen, a lance, a

cross-bow and fifteen shillings. All these persons were quit and free of

all summonses, county-courts, and military dues: but the two secondary

classes owed suit and surface to the court of the _primarii_ (Swánmót),

which held plea and gave judgment in their suits: in those of the

_primarii_ themselves, the king was sole judge. The court of the Forest

was to be held four times a year, and was empowered to administer the

triple ordeal, and generally to exercise such a jurisdiction as belonged

only to the higher and royal courts. The persons of the head-foresters

were guarded by severe penalties; violence offered to them was punished

in a free man with loss of liberty, in a serf with loss of the hand; and

a second offence entailed the penalty of death.

-----

Footnote 148:

See these in Thorpe, i. 426.

-----

The offences against the forest-law were various and of very different

degrees: the _ferae forestae_ were not nearly so sacred as the _ferae

regales_, and as for the _vert_, it was of so little regard that the law

hardly contemplated it, always excepting the breaking the king’s chace.

To hunt a beast of the forest (_fera forestae_), either voluntarily or

intentionally, till it panted, was punished in a free man by a fine of

ten shillings: in one of a lower grade[149], by a fine of twenty: in a

serf, by a flogging. But if it were a royal beast (_fera regalis_) which

the English call a stag, the punishments were to be respectively, one

and two years servitude, and for the serf, outlawry. If they killed it,

the free man was to lose _scutum libertatis_[150], the next man his

liberty, and the serf his life. Bishops, abbots and barons were not to

be vexed with prosecutions for hunting, except they killed stags: in

that case they were liable to such penalty as the king willed. Besides

the beasts of the forest, the roebuck, hare and rabbit were protected by

fines. Wolves and foxes were neither beasts of the forest nor chace, and

might be killed with impunity, but not within the bounds of the forest,

as that would be a breaking of the chace; nor was the boar considered a

beast of venery. No one was to cut brushwood without permission of the

_primarius_, under a penalty; and he that felled a tree which supplied

food for the beasts, was to pay a fine of twenty shillings over and

above that for breaking the chace. Every free man might have his own

vert and venison on his own lands, but without a chace; and no man of

the middle class (_mediocris_) was to keep greyhounds. A gentleman

(_liberalis_[151]) might, but he must first have the knee-sinew cut in

presence of the head-forester, if he lived within ten miles of the

forest: if his dogs came within that distance, he was to be fined a

shilling a mile: if the dog entered the precincts of the forest, his

master was to pay ten shillings. Other kinds of dogs, not considered

dangerous, might be kept without mutilation; but if they became mad and

by the negligence of their masters went wandering about, heavy fines

were incurred. If found within the bounds of the forest, the fine was

two hundred shillings: if such a rabid dog bit a beast of the forest,

the fine rose to twelve hundred: but if a royal beast was bitten, the

crime was of the deepest dye.

-----

Footnote 149:

_Illiberalis_; perhaps a freedman, or a free man not a landowner. The

distinctions here are _liber_, _illiberalis_, _servus_.

Footnote 150:

This must denote _gentry_, something more than mere freedom.

Footnote 151:

The _mediocris_ is defined as twýhynde, the _liberalis_ as twelfhynde.

§ 33, 34.

-----

Such is the forest legislation of Cnut, and its severity is of itself

evidence how much the power of the king had become extended at the

commencement of the eleventh century. It is clear that he deals with all

forests as having certain paramount rights therein, and it seems

probable that this organization was intended to be established all over

England. Still it is observable that he gives certain rights of hunting

to all his nobles, reserving only the stags to himself, and that he

allows every freeman to hunt upon his own property, so that he does not

interfere with the royal chaces[152]. We may however infer that at an

earlier period the matter was not regarded so strictly. A passage has

been already cited[153] where Ælfred implies that a dependent living

upon lǽnland could support himself by hunting and fishing, till he got

bócland of his own. The bishops possessed the right in their

forests—whether _proprio iure_ or by royal grant, I will not venture to

decide—as early as the ninth century[154], and still retained it in the

tenth[155]. And while the communities were yet free it is absurd to

suppose that they allowed any one to interfere with this pursuit, so

attractive to every Teuton, so healthy, so calculated to practise his

eye and limbs for the sterner duties of warfare, and so useful to

recruit a larder not over well stored with various or delicate viands.

-----

Footnote 152:

This regulation was very likely forced upon him by his Witan, inasmuch

as it is also recorded in his laws, § 81. “Every one shall be entitled

to his hunting both in wood and field, upon his own property. And let

every one forego my hunting: take notice where I will have it

untrespassed upon, on penalty of the full wíte.”

Footnote 153:

See Vol. I. p. 312.

Footnote 154:

Cod. Dipl. No. 1086. Bishop Denewulf gave Ælfred forty hides at

Alresford, loaded with various conditions: among them, that his men

should be ready “ge tó ripe ge tó hunt[n]oðe,” that is at the bishop’s

harvest and hunting.

Footnote 155:

Cod. Dipl. No. 1287. Oswald bishop of Worcester, stating the terms on

which he let the lands of his see, includes among them the services of

his tenants at his hunting: “Sed et venationis sepem domini episcopi

[clearly _a park_] ultronei ad aedificandum repperiantur, suaque,

quandocumque domino episcopo libuerit, venabula destinent venatum.”

-----

However this may have been with the game, it is certain that the most

important privileges were those of masting swine, and cutting timber or

brushwood in the forests[156]. Grants to this effect are common, and it

is plain that a considerable quantity of woods were in the hands of

corporations, and even of private individuals, as well as of the Crown.

How they came into private hands is not clear; some perhaps by bargain

and sale, some by inheritance, some by grant, some no doubt by

usurpation. The most powerful markman may at last have contrived to

appropriate to himself the ownership of what woodland remained, though

he was still compelled to permit the hereditary axe to ring in the

forest[157]; and all experience shows that both here and in Germany

monasteries were often founded in the bosom of woods, granted for

religious purposes, out of what perhaps had once endowed an earlier

religion, and which supplied at once building materials, fuel and

support for cattle[158]. But even in these, it seems that the king, the

duke and the geréfa interfered, claiming a right to pasture certain

numbers of their own swine or cattle in them, and to give this privilege

to others.

-----

Footnote 156:

The importance of pannage or masting was such as to cause the

introduction of a clause guarding it, in the Charta de Foresta,—a

document considered by our forefathers as hardly less important than

Magna Charta itself: see § 9. Domesday usually notes the amount of

pannage in an estate, and Fleta (Bk. ii. cap. 80) thinks it necessary

to devote a chapter to the subject.

Footnote 157:

The Oldsaxons in Westphalia called a distinguished class of persons

Erfexe, or Hereditary axes, from their right to hew wood in the Mark.

Möser (Osnab. i. 19) gives an erroneous derivation for this name, but

Grimm corrects him: Deut. Rechtsalt. 504.

Footnote 158:

“Dunhelmum veniens, locum quidem natura munitum, sed non facile

habitabilem invenit, quoniam densissima eum silva totum occupabat,”

etc. Transl. Sci. Cuðb. Bed. Hist. vol. ii. p. 302. The earliest

grants of land on which these establishments were placed, usually

state the land to be _silva_ or _silvatica_.

-----

In 845, Æðelwulf gave pasture to Badonoð for his cattle with the king’s

beasts, apparently in the pastures of the town of Canterbury[159]. In

855, the same king gave his thane Dun a tenement in Rochester, together

with two waggon-loads of wood from the king’s forest, and common in the

marsh[160]. In 839 he licensed for Dudda two waggons to the common wood,

probably Blean[161]; in 772, Offa granted lands to Abbot Æðelnoð, and

added a perpetual right of pasture and masting in the royal wood,

together with licence for one goat to go with the royal flock in the

forest of Sænling[162]. Numerous other examples are supplied by the

charters, which may be classed under the following heads: first, royal

forests, as Sænling, Blean, Andred and the like, called _silvae

regales_, and in which the king granted timber, common of mast and

pasture or estovers: secondly, forest appertaining to cities and

communities (ceasterwara-weald, burhwara-weald, _silva communis_), in

which the king granted commons: thirdly, small woods, appurtenant to and

part of estates, but not named, and the enjoyment of which is conveyed

in the general terms of the grant, as _terram cum communibus

utilitatibus, pascuis, pratis, silvis, piscariis_, etc.: lastly, private

forests or commons of forest specially named as appurtenant to

particular estates, or given by favour of the king to the tenant of

those estates. To all these heads ample references will be found in the

note below[163]. His right to deal at pleasure with the _silvae regales_

requires no particular notice, but the grants of pasture and timber in

the forests of cities and communities[164] can only be explained by the

assumption of a paramount royalty in the Crown. And that this was

exercised in the private forests of monasteries, also appears from

exemptions sometimes purchased by them. In 706, Æðelweard of the Hwiccas

consented to confine his right of pasture to one herd of swine, and that

only in years when mast was abundant, in the forests belonging to

Evesham; and he released them from all claims of princes and officers,

except this one of his own[165]. Similarly, with regard to timber,

Ecgberht in 835 gave an immunity to Abingdon, against the claim of king

or prince, to take large or small wood for his buildings from the

forests of the monastery[166]. This right of the king to timber for

public purposes was maintained and claimed till the time of the

rebellion, and was a fertile source of malversation and extortion[167].

-----

Footnote 159:

Cod. Dipl. No. 259.

Footnote 160:

Cod. Dipl. No. 276. “Et decem carros cum silvo (_sic_) honestos in

monte regis, et communionem marisci quae ad illam villam antiquitus

cum recto pertinebat.”

Footnote 161:

Cod. Dipl. No. 241. “Duobusque carris dabo licentiam silfam ad illas

secundum antiquam consuetudinem et constituidem (_sic_) in aestate

perferendam in commune silfa quod nos saxonicae in geménnisse

dicimus.”

Footnote 162:

Cod. Dipl. No. 119. “Et ad pascendum porcos et pecora, et iumenta in

silva regali aeternaliter perdono; et unius caprae licentiam in silva

quae vocatur Saenling ubi meae vadunt.”

Footnote 163:

Royal forests in which common of pasture, or timber is given by the

king. Cod. Dipl. Nos. 77, 107, 108, 201, 207, 234, 239, etc. Civic and

common forests in which the king makes similar grants. Cod. Dipl. Nos.

96, 160, 179, 190, 198, 216, 219, etc. Private forests, conveyed in

general terms of the grant. Cod. Dipl. Nos. 16, 17, 27, 32, 35, 36,

80, 83, 85, etc. Private forests particularly defined as appurtenant.

Cod. Dipl. Nos. 80, 89, 138, 152, 161, 165, 187, 214, etc.

Footnote 164:

Cod. Dipl. Nos. 47, 86, 96, etc.

Footnote 165:

Cod. Dipl. No. 56. “Excepto eo, ut si quando in insula eidem ruri

pertinente proventus copiosior glandis acciderit, uni solummodo gregi

porcorum saginae pastus regi concederetur; et praeter hoc nulli, neque

principi, neque praefecto, neque tiranno alicui, pascua

constituantur.” This right of the king’s was called _Fearnleswe_: “Et

illam terram ... liberabo a pascua porcorum regis quod nominamus

Fearnleswe.” Cod. Dipl. No. 277.

Footnote 166:

Cod. Dipl. No. 236. “Silva quoque omnis quae illi aecclesiae et

suburbanis eius suppetit, in omnibus causis sit libera, et non secetur

ibi ad regis vel principis aedificia aliqua pars materiae grossi vel

gracilis, sed ab omnibus defensa et libera maneat.” Compare Böhm. Reg.

Karol. Nos. 387, 1157, 1598.

Footnote 167:

From a speech of Lord Bacon’s against the abuses of purveyors, it

appears that those who were to purvey timber for the king, even as

late as the reign of James the First, used to extort money by the

threat of felling ornamental trees in the avenues or grounds of

mansion-houses. Barrington, Anc. Stat. p. 7, note.

-----

STRANGER.—To the king belonged also the protection of all strangers

within his realm, and the consequent claim to a portion of their

wergyld, and their property in case of death, a _droit d’aubaine_. This

was a natural deduction from the principles of a period and a state of

society in which every man’s security was founded upon association

either with relatives or guildsmen: and as no one could have these in a

foreign mark,—the associations being themselves in intimate connection

with the territory,—it is obvious that the public authorities alone

could exercise any functions in behalf of the solitary chapman. As

general conservator of the peace, these necessarily fell to the king;

but the duties and advantages which he thus assumed became in turn

matter of grant, and were conferred by him upon other public persons or

corporations.

The laws declare the king, earl and bishop to be the relatives and

guardians of the stranger[168]; and the charters show that the

consequent gains were alienated by him at his pleasure. In 835, Ecgberht

gave the inheritance of Gauls and Britons, and half their wergyld, to

the monastery at Abingdon[169]. Among these strangers, the Jews were

especially mentioned. Anglosaxon history has not indeed recorded any of

those abominable outrages upon this long-suffering people which fill the

annals of our own and other countries during the middle ages; but there

can be no doubt that a false and fanatical view of religion, if not

their way of life and their accumulations, must have ever marked them

out for persecution. Eichhorn has justly characterized the feeling which

prevailed respecting them in all parts of Europe[170], and has remarked

to the honour of the Popes that they were the first to preach toleration

and command the attempt at conversion. But the utility of the Jewish

industry especially in thinly peopled countries, and their importance as

gatherers of capital, were ever engaged in a struggle against bigotry;

hence the Jews could generally obtain a qualified protection against all

but sudden outbreaks of popular fury. As these latter had mostly other

deep-seated causes, the ruling classes may sometimes have seen without

regret the popular indignation vent itself in a direction which did not

immediately endanger themselves: but as a general rule, the Jews enjoyed

protection, and were made to pay dearly for it. Both parties were

gainers by the arrangement. Among the Saxons this could not be

otherwise, for it was impossible for a Jew to be in a hundred or tithing

as a freeman; and he would probably have had but little security in the

household and following of an ordinary noble. The readiest and most

effective plan was to place him, wherever he might be, especially under

the king’s mundbyrd. Accordingly the law of Eádweard the Confessor

declares the king to be protector of all Jews[171], and this right

descended to his Norman successors. Similarly as the clergy relinquished

their mǽsceaft or bond of kin, on entering into orders, the king became

their natural mundbora[172].

-----

Footnote 168:

“If any one wrong an ecclesiastic or a foreigner, in anything touching

either his property or his life, then shall the king, or the earl

there in the land [_i. e._ among the Danes] or the bishop of the

people be unto him as a kinsman and protector: and let compensation be

strictly made, according to the deed, both to Christ and the king; or

let the king among the people severely avenge the deed.” Eádw. Guð. §

12. Thorpe, i. 174. See also Ranks. § 8. Æðelr. ix. § 33. Cnut, ii. §

40. Hen. I. x. § 3; lxxv. § 7.

Footnote 169:

Cod. Dipl. No. 236. “Similiter de haereditate peregrinorum, id est

Gallorum et Brittonum et horum similium, aecclesiae reddatur. Praetium

quoque sanguinis peregrinorum, id est _wergyld_, dimidiam partem rex

teneat, dimidiam aecclesiae antedictae reddant.”

Footnote 170:

Deut. Staatsr. i. 422, § 297. He cites an instruction of Margrave

Albrecht of Brandenburg an. 1462, which contains this Christian-like

provision:—“When a Roman emperor and king is crowned, he has a right

to take all they possess throughout his realm, yea and their lives

also, and to slay them, until only a little number of them be left, to

serve as a memorial.” Kings and populations, without being heads of

the holy Roman empire, assumed a similar right only too often.

Footnote 171:

Eádw. Conf. § 25. “Sciendum est quod omnes Judaei, ubicunque regno

sint, sub tutela et defensione regis ligie debent esse. Neque aliquis

eorum potest subdere se alicui diviti sine licentia regis; quia ipsi

Judaei et omnia sua regis sunt. Quod si aliquis detinuerit illos vel

pecuniam eorum, rex requirat tanquam suum proprium, si vult et

potest.”

Footnote 172:

Cnut, ii. § 40. Thorpe, i. 400.

-----

BRIDGE.—It is probable that no one could build a bridge without the

royal licence, though I am not aware of any instance in the Saxon times:

but I infer this from grants of the Frankish emperors and kings to that

effect[173]. It is possible that this may have depended upon the

circumstance that toll would be taken by the owner of such a bridge; but

we may believe that other reasons concurred with this, and that the

bridge originally had something of a holy character, and stood in near

relation to the priesthood[174].

-----

Footnote 173:

Böhm. Reg. Karol. Nos. 88, 680, 1931.

Footnote 174:

It has already been noticed as remarkable that Pontifex, the

bridge-builder, should be the name for the priestly class. There are

many superstitions connected with bridges, and the spirit of the

bridge even to this day, in Germany, demands his victims as inexorably

as the spirit of the river. Deut. Mythol. p. 563. The passage in

Schol. Ælii Aristid. which speaks, according to a modern emendation,

of Palladia in connection with bridges, is hopelessly corrupt. But

Servius, Æneid, ii. 661, says the Athenian Pallas was called γεφυρῖτις

(not γεφυρίστης as the copies have), and this is confirmed by the

Interp. Virgil, published by Mai, where from her position on a bridge

the goddess is called γεφυρῖτις Ἀθηνᾶ. Pherecydes (No. 101) and

Phylarchus (No. 79) both appear to refer to this, if indeed the

proposed readings can be admitted. See Fragm. Hist. Græc. pp. 95, 356.

There was in very early times a _gens_ of γεφυραῖοι at Athens, but I

do not know if they had any priestly functions. They had the worship

of Δημήτηρ Ἄχαια, and were Cadmæans who had immigrated into Attica;

from among them sprung Harmodius and Aristogeiton.

-----

CASTLE.—In like manner we may doubt whether the kings did not gradually

draw into their own hands the right to have fortified houses or castles,

which we find them possessing in the Norman times, and which they

extended to their adherents and favourites by special licence. In

mediæval history, the fortification of their houses by the inhabitants

of a city is the very first result of the establishment of a Communa,

commune or free municipality; and the destruction of such fortifications

the first care of the victorious count, bishop or king upon his triumph

over the _outrecuidance_ of the burghers[175]. The clearest instance of

the royal licence to a subject is a grant of Æðelræd and Æðelflæd to the

bishop of Worcester, about 880, which recites that they built a burh or

fortress for him, in his city, probably to defend his cathedral in those

stormy days of Danish ravage[176]. In very early times there may have

been fortresses belonging to private persons; this may be inferred from

names of places such as Sulmonnes burh, _Sulman’s castle_; and under the

later Anglosaxon kings, various great nobles may have obtained the

privilege of fortifying their own residences, as for example we read of

Pentecost’s castle and Rodberht’s castle under Eádweard the

Confessor[177], an example very likely to have been followed by the

powerful chieftains of Godwine’s, Sigeweard’s and Leófríc’s families;

but the cases were probably few. Of course fortresses built and

garrisoned by the king for the public defence are quite another matter:

these were imperial, and to their construction, maintenance and repair,

every estate throughout the land, whether of folcland or bócland, was

inevitably bound, not even excepting the demesne lands of the king

himself or of the ecclesiastical corporations.

Footnote 175:

Thierry, Lettres sur l’Hist. de France, p. 272. “Ainsi élevés de la

triste condition de sujets taillables d’une abbaye au rang d’alliés

politiques d’un des plus puissants seigneurs, les habitans de Vézelay

cherchèrent à s’entourer des signes extérieurs qui annonçaient ce

changement d’état. Ils élevèrent autour de leurs maisons, chacun selon

sa richesse, des murailles crénelées, ce qui était alors la marque de

la garantie du privilége de liberté. L’un des plus considérables parmi

eux, nommé Simon, jeta les fondements d’une grosse tour carrée, comme

celle dont les restes se voient à Toulouse, à Arles, et dans plusieurs

villes d’Italie. Ces tours, auxquelles la tradition joint encore le

nom de leur premier possesseur, donnent une grande idée de

l’importance individuelle des riches bourgeois du moyen âge,

importance bien autre que la petite considération dont ils jouirent

plus tard sous le régime monarchique. Cet appareil seigneurial n’était

pas, dans les grandes villes de commune, le privilége exclusif d’un

petit nombre d’hommes, seuls puissants au milieu d’une multitude

pauvre: Avignon, au commencement du treizième siècle, ne comptait pas

moins de trois cents maisons garnies de tours.”

This last fact rests upon the authority of Matthew Paris. On the

defeat of the Commune, the order was given to raze their

fortifications. The king himself, Louis le Jeune (A.D. 1155),

distinctly decreed in the sentence which he pronounced against them,

that within a given time the towers, walls and enclosures with which

they had fortified their houses should be demolished. But the burghers

had no such intention; “ces signes de liberté leur étaient plus chers

que leur argent;” and they continued to resist even after the Pope

himself had written to the king of France to demand the execution of

the decree. At length however the Abbot of Vézelay took the matter

into his own hands. “Il fit venir, des domaines de son église, une

troupe nombreuse de jeunes paysans serfs, qu’il arma aussi bien qu’il

put, et auxquels il donna pour commandants les plus déterminés de ses

moines. Cette troupe marcha droit à la maison de Simon, et ne trouvant

aucune résistance, se mit à démolir la tour et les murailles

crénelées, tandisque le maître de la maison, calme et fier comme un

Romain du temps de la république, était assis au coin du feu avec sa

femme et ses enfants. Ce succès, obtenu sans combat, décida la

victoire en faveur de la puissance seigneuriale, et ceux d’entre les

bourgeois qui avaient des maisons fortifiées donnèrent à l’abbé des

otages, pour garantie de la destruction de tous leur ouvrages de

défense. ‘Alors,’ dit le narrateur ecclésiastique, ‘toute querelle fut

terminée, et l’Abbaye de Vézelay recouvra le libre exercice de son

droit de juridiction sur ses vassaux rebelles.’” Ibid. pp. 291, 292.

Footnote 176:

Cod. Dipl. No. 1075.

Footnote 177:

Chron. Sax. 1052. “Ða geáxode Rotberd arcebisceop ⁊ ða Frencisce ðæt,

genamon heora hors ⁊ gewendon, sume west tó Pentecostes castele, sume

norð tó Rodberhtes castele.” However these were foreigners, a culpable

complaisance towards whom is a grievous stain upon Eádweard’s

otherwise amiable, though weak, character.

-----

ROADS and CANALS.—There is no very clear evidence respecting roads and

canals, licence to make which was a subject of grant by the Frankish

emperors[178]. But except as regarded the great roads which were

especially the king’s, and the cross roads, which were the county’s, it

is probable that there was no interference on the part of the state.

Every landowner must have had the privilege of making private paths,

large or small at his pleasure, by which access could be given to

different parts of his own property. We do occasionally find roads

mentioned by the name of the owners, and a common service of the

settlers on an estate was the liability to assist in making a new road

to the farm or mansion[179]. In an instance already cited we have seen

an abbot of St. Augustine’s digging a canal with the object of diverting

traffic from the haven of Sandwich. It may unhesitatingly be asserted

that he claimed this right under his general power as a landlord, and

not by any special grant for the purpose: this is evident from the whole

tenour of the narrative.

-----

Footnote 178:

Böhm. Deg. Karol. Nos. 248, 316.

Footnote 179:

Rect. Sing. Pers. Thorpe, i. 432.

-----

PORTS.—Ports and Havens were, however, essentially royalties, and, as we

have seen, could be granted to religious houses. They were naturally in

the king’s hand, for this reason: in the early times of which we treat,

the stranger is looked upon as an enemy, and every one who does not

belong to the association for the maintenance of peace, is _primâ facie_

out of the peace altogether. This applies to sailors, as well as

travelling chapmen who wander from mark to mark or county to county; and

it applied with peculiar force to England after her coasts became

exposed to repeated invasions from the North. Still as England could not

subsist without foreign commerce, and early became alive to that great

principle of her existence, a system of what we may call navigation laws

was established. The bottoms of friendly powers were of course received

upon terms of reciprocal favour, but even strange ships had the

privilege of safety if they made certain harbours, designated for that

purpose. At the treaty of Andover, in 994, Æðelræd and his witan agreed,

that every merchant-ship that voluntarily came into port should be in

the peace; and even if it were driven into port (whether by force or by

stress of weather is not specified), and there were a friðburh, asylum,

or building in the peace, in which the men took refuge, they and their

ship and cargo should enjoy the peace[180]. It is hardly to be doubted

that the king had the power of declaring what ports should be gefriðod

or in the peace; and as this privilege would necessarily draw many

advantages to any harbour that possessed it, we can reasonably conclude

that it was made a source of profit, both by the king and those to whom

he might think fit to grant it.

-----

Footnote 180:

Æðelr. ii. § 2. Thorpe, i. 284.

-----

WARDSHIP and MARRIAGE.—Wardship and Marriage appear to have been

royalties; we must however believe them to have been confined to the

children and widows of the thanes or comites, and to be a deduction from

the principles of the Comitatus itself.

In the secular law of Cnut there is a series of provisions, extending

from the 70th to the 75th clause, which can only be looked upon in the

light of alleviations, and which in the 70th clause the king himself

declares so to be. From the nature of the relief thus afforded, we may

infer that the royal officers had exercised their powers in a manner

oppressive to the subject. Accordingly the king and his witan proceed to

regulate the voluntary nature of the _feormfultum_, the legal amount of

heriot, the descent of property in the case of intestacy, and the

kings’s guardianship of the same; they protect the widow and heirs

against vexatious suits, by providing that they shall not be sued, if

the lord and father had remained undisturbed, and lastly they regulate

what appear to me to be the rights of wardship and marriage.

“And let every widow remain for a twelvemonth without a husband; then

let her do her pleasure. But if within the year she choose a husband,

let her forfeit the _morgengyfu_ and all the property she had through

her first husband, and let her nearest kin take the land and property

she had before. And let the husband be liable in his _wer_ to the king,

or to whomsoever he may have granted it. And even if she have been taken

by force, let her forfeit her possessions, unless she be willing to go

home again from the man, and never become his again.... And let no one

compel either woman or maiden to him whom she herself mislikes, nor for

money sell her, unless the suitor will give something of his own good

will[181].”

-----

Footnote 181:

Cnut, ii. § 74, 75.

-----

This of itself does not imply the royal right of marriage; but it

becomes much more significant, when we learn that estates had been given

to influential nobles, for their intercession with the king, on behalf

of profitable alliances: then, the circumstances, combined together,

seem to imply that Cnut desired to reform the miserable condition in

which he found England, in the hope, no doubt, by such reform to

consolidate his own power. The evidence of what may almost be called

purchasing a marriage—though not in the truly gross and vulgar sense of

such purchases among those whom writers of romances represent as the

_chivalrous_ Normans,—is supplied by the monk of Ramsey: the instance

dates from the middle of the tenth century. In mentioning an estate of

five hides at Burwell, the chronicler adds: “This is the estate which—as

we find in the very ancient English charters referring to it—a certain

man named Eádwine, the son of Othulf, had in old times granted to

archbishop Oda, as a reward for his pains and trouble in bringing king

Eádred to consent, that Eádwine might have leave to marry the daughter

of a certain Ulf, whom he desired[182].” This Ulf does not, I believe,

occur among the signitaries to any of the charters, unless the name

represent some one of the many Wulfgárs or Wulfláf’s of the time: but

still we must suppose him to have been a person of consideration, since

a large estate was given for his daughter’s marriage. In the absence of

all details we cannot form any clear decision as to the royal right in

this respect, though the balance of probability seems to me to incline

to the view that the king had some right of wardship and marriage over

the children and widows of his own thanes or sócmen. This seems to lie

in the very nature of their relative position. With the widow or child

of a free man, it is of course not to be imagined that the king could

interfere; but in the time of Eádred there were probably not many free

men whose wealth rendered interference worth the trouble.

-----

Footnote 182:

“Pro mercede solicitudinis et laboris, quo regem Ædredum ad consensum

inflexerat, ut ei liceret filiam cuiusdam viri Ulfi; quam

concupiverat, maritali sibi foedere copulare.” Hist. Rames. cap. 23.

-----

HEREGEATWE. HERIOT.—The general nature of Heriot has been explained in

the First Book: it was there shown that it arose from the theory of the

_comes_ having been originally armed by the king, to whom upon his death

the arms reverted: and in imitation of this, Best-head or Melius

catallum, distinguished in our law as Heriot-custom, was shown to have

arisen. But whatever may have been its origin or early amount,—and its

earliest amount was no doubt unsettled, depending upon the will of the

chief who might take all or some of his thanes’ chattels at his

pleasure,—in process of time it became assessed at a fixed amount,

according to the rank of the person from whose estate it was paid. The

law of Cnut[183] which determined this amount was probably only a

re-enactment, or confirmation of an older custom, and appears to have

been introduced to put an end to disputes upon the subject; it declares

as follows:—

“Let the heriots be as fits the degree. An earl’s as belongs to an

earl’s rank, viz. eight horses, four saddled, four unsaddled, four

helmets, four coats-of-mail, eight spears, eight shields, four swords

and two hundred mancuses of gold. From a king’s thane, of those who are

nearest to him, four horses, two saddled, two unsaddled; two swords,

four spears, four shields, a helmet, a coat-of-mail and fifty mancuses

of gold. From a medial thane, a horse equipped, and his arms; or his

healsfang in Wessex, and in Mercia and Eastanglia two pounds. Among the

Danes, the heriot of a king’s thane who has his sócn[184] is four

pounds: if he stand in nearer relation to the king, two horses, one

equipped, a sword, two spears, two shields and fifty mancuses of gold.

And from a thane of the lower order, two pounds.”

-----

Footnote 183:

Cnut, ii. § 72. Thorpe, i. 414.

Footnote 184:

A baronial court.

-----

The following are examples of heriots paid both before and after the

time of Cnut.

The estate of Ðeódrǽd bishop of London and Elmham, about 940, paid, four

horses the best he had, two swords the best he had, four shields, four

spears, two hundred marks of red gold, two silver cups, and his lands at

Anceswyrð, Illingtún and Earmingtún[185].

-----

Footnote 185:

Cod. Dipl. No. 957.

-----

In 946-956, the estate of Æðelwald the ealdorman paid four horses, four

spears, four swords, four shields, two rings each worth one hundred and

twenty mancuses, two rings each worth eighty mancuses (in all four

hundred mancuses) and two silver vessels[186].

-----

Footnote 186:

Ibid. No. 1173.

-----

About 958, Ælfgár gave the king two swords with belts, three steeds,

three shields, three spears, and two rings each worth fifty mancuses of

gold[187].

-----

Footnote 187:

Ibid. No. 1223.

-----

The heriot of Beorhtríc, about 962, was, four horses, two equipped, two

swords and belts, a ring worth eighty mancuses of gold, a sword of the

same value, two falcons, and all his stag-hounds[188].

-----

Footnote 188:

Ibid. No. 492.

-----

The great duke Ælfheáh of Hampshire, 965-971, gave to Eádgár, who had

married his cousin Ælfðrýð, duke Ordgár’s daughter, the following

property: it is hard to say how much of it was heriot: six horses with

their trappings, six swords, six spears, six shields, one sword worth

eighty mancuses of gold, one dish of three pounds, one cup of three

pounds, three hundred mancuses of gold, one hundred and twenty hides of

land at Wyrð, and his estates at Cóchám, Dæchám, Ceóleswyrð,

Incgeneshám, Æglesbyrig and Wendofra[189].

-----

Footnote 189:

Ibid. No. 593.

-----

Æðelríc, in 997, paid two horses, one sword and belt, two shields, two

spears, and sixty marks of gold[190].

-----

Footnote 190:

Cod. Dipl. No. 699. This is very nearly the exact heriot. Æðelríc, who

was no friend to the king, probably meant to give him no doit more

than he could legally claim.

-----

Archbishop Ælfríc, 996-1006, devised to the king, as his heriot, sixty

helmets, sixty coats-of-mail, and his best ship with all her tackle and

stores[191].

-----

Footnote 191:

Cod. Dipl. No. 716.

-----

Ælfhelm paid four horses, two equipped, four shields, four spears, two

swords, and one hundred mancuses of gold[192].

-----

Footnote 192:

Ibid. No. 967.

-----

Wulfsige paid two horses, one helmet, one coat-of-mail, one sword, one

spear twined with gold[193].

-----

Footnote 193:

Ibid. No. 979.

-----

The majority of these cases belong to periods previous to Cnut’s

accession, but they seem to imply an assessment very similar to his own.

And in this view of the case, where the payment had become a settled

amount due from persons of a particular rank, it became possible for

women to be charged with it, which we accordingly find. In 1046 Wulfgýð

commences her will by desiring that her right heriot may be paid to the

king[194]: Æðelgyfu in 945 gave the king thirty mancuses of gold, two

horses and all her dogs[195]: Ælflǽd left him by will her lands at

Lamburnan, Ceólsige and Readingan, four rings worth two hundred mancuses

of gold, four palls, four cups, four drinking-horns and four

horses[196]: and lastly queen Ælfgyfu in 1012 left the king, six horses,

six shields, six spears, one cup, two rings worth one hundred and twenty

mancuses each, and various lands[197]. Taken in connection with the case

of Wulfgýð, these bequests appear very like heriots. The heriots

mentioned in Domesday agree with the details given above, and serve to

show that the right had undergone no material alteration till the time

of the Confessor[198]. That the Best-head or Melius catallum was paid to

the king by his unfree tenants, as well as to other lords, is probable,

but we have no instance of it[199]. By the law of Cnut, the widow was to

have a reasonable time for payment of the heriot, and it was altogether

remitted to the family of him who fell bravely fighting in the field

before the presence of his lord.

-----

Footnote 194:

Ibid. No. 782.

Footnote 195:

Ibid. No. 410.

Footnote 196:

Ibid. No. 685.

Footnote 197:

Cod. Dipl. No. 721.

Footnote 198:

Domesd. Berks. “Tanias vel miles regis dominicus moriens pro

relevamento dimittebat regi omnia arma sua, et equum unum cum sella,

unum sine sella. Quod si essent ei canes vel accipitres,

praesentabantur regi, ut si vellet, acciperet.”

Footnote 199:

Fleta, ii. cap. 57, § 1, 2. “Imprimis autem debet quilibet qui

testaverit dominum suum de meliori re quam habuerit recognoscere, et

postea aecclesiam de alia meliori, et in quibusdam locis habet

aecclesia melius animal de consuetudine, in quibusdam secundum vel

tertium melius, et in quibusdam nihil: et ideo observanda est

consuetudo loci.” § 2. “Item de morte uxoris alicuius viri, dum vir

superstes fuerit, de toto grege communi secundum melius averium, quasi

de parte sua: sed hoc non nisi de permissione et gratia viri.” This

Melius catallum, Bestehaupt or Best-head was in fact a servile due:

but in this sense it was an alleviation; for strictly speaking the

lord could take the whole inheritance of his unfree tenant. In 1252

Margaret Countess of Flanders gave this alleviation to the serfs of

the crown: “Tous les serfs demeurant en Flandre, sous la justice

propre de la comtesse, furent affranchis de servitude en 1252, à

charge de payer par homme trois deniers, et par femme un denier

annuellement; et le droit qu’elle avait à la moitié des meubles en

catteux des serfs morts, fut reduit au meilleur cattel, [melius

catallum] autre que maison ou bête de somme.” Warnkönig. Hist. Fland.

i. 259. On this subject generally see Nelson, Lex Maneriorum, p. 154.

-----

It appears from what has been said in this chapter that the kings were

provided very sufficiently with the means of maintaining their dignity:

the benefactions which they were enabled to make out of the folcland

relieved their private estates from the burthen of supporting the

thanes, clerical and lay, who flocked to their service. Still there must

have been a constant drain upon their possessions; and many of the

regalia became lost to the crown by successive alienations. It is true

that they were generally purchased at a high price, but in this case the

king who sold them was the only gainer: he secured considerable sums for

himself, but he impoverished all his successors to a much greater

amount. The loans for which we occasionally find him indebted to his

prelates, show how completely at times the crown had been pillaged, as

well as who were the principal sharers in the plunder. The attempt to

draw in lands and privileges which had once been alienated, was

questionable in policy and harsh to the innocent holders; but it does

not always seem to have been viewed impartially even by those least

concerned; we may however now express our conviction that in many cases

the alienations themselves had been made improperly and without

sufficient authority; and, that if it was hard upon an abbot or bishop

to lose what his predecessor had gained, it was very hard upon a king to

be without what _his_ predecessor had unjustly and often illegally

squandered.

The Saxons in England, Volume 2 (of 2) A history of the English commonwealth till the period of the Norman conquest · 第 3 / 15 章