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.