§ 3. Sake and Soke.
Reading edition
Importance of seignorial justice.
Of all the phenomena of feudalism none seems more essential than seignorial justice. In times gone by English lawyers and historians have been apt to treat it lightly and to concentrate their attention on military tenure. For them ‘the introduction of the military tenures’ has been ‘the establishment of the feudal system.’ But when compared with seignorial justice, military tenure is a superficial matter, one out of many effects rather than a deep-seated cause. Seignorial justice is a deep-seated cause of many effects, a principle which when once introduced is capable of transfiguring a nation. Of the origin and antiquity of this principle, however, some even of our most illustrious historians have spoken with great hesitation and therefore we shall spend some time in examining the texts which reveal what can be known about it, admitting once for all that they leave much room for differences of opinion.
Theory of the modern origin of seignorial justice.
Since the doctrine to which we have come would trace seignorial justice back to a remote time, we shall do well to state at the outset an extreme version of the opposite doctrine, a version which has been elaborately set forth in a learned and spirited essay[934].—On the eve of the battle of Hastings a seignorial court was still a new thing in England. It was a Norman precursor of the Norman Conquest. England owes it to Edward the Confessor, who was ‘half-Norman by birth and wholly Norman by education and sympathies.’ It came to us with ‘a new theory of constitutional law.’ From the reign of no older king can any evidence be produced of the existence—at any rate of the legalized existence—of private courts. True, there are charters that give to the holders of great estates the profits of jurisdiction; but a grant of the profits of jurisdiction is one thing, jurisdiction itself is another. True, that one man might have soke over another, but this does not mean that he had jurisdiction; at the most it means that he was entitled to the profits of justice, to wites, to fines and amercements. ‘No instance can be found before the Norman times in which sócn means jurisdiction. Sócn had a technical meaning of its own which is always rigorously observed. The idea of jurisdiction, on the other hand, was expressed by an equally technical word, the meaning of which is also rigorously observed. This is sacu, a word which has strangely vanished from our legal vocabulary, but is still preserved, even in its technical sense, by the German sache[935].’
Sake and soke in the Norman age.
Now it will not be disputed that in Domesday Book and the Leges Henrici this distinction is obliterated. Soke means jurisdiction and ‘sake and soke’ is but a pleonastic phrase, which means no more than soke[936]. Nor is it disputable that on the vigil of the Conquest a great deal of jurisdiction was wielded by the lords. Not a few of the ‘hundreds’ were in private hands, and, apart from hundredal jurisdiction, a lord might have and often had sake and soke over his own lands. It is not denied that Edward the Confessor had freely granted to churches and other lords large rights of justice,—not merely rights to the profits of jurisdiction, but jurisdiction itself. The question is whether what he did was new.
The Confessor’s writs.
For one moment longer we may dwell on the indisputable fact that he dealt out jurisdictional rights with a lavish hand. This we gather, not so much from his Latin land-books, as from English writs in which he announces to the bishop, earl, sheriff and great men of a county that he has given land in that county to some church ‘with sake and soke and toll and team’; sometimes he adds ‘with infangennethef, grithbrice, foresteal, hamsocn, flymena-fyrmth,’ and so forth. Sometimes the donees are to have these rights in all their own lands. Sometimes he gives them the hundredal jurisdiction over lands that are not their own. Thus to St. Benet of Ramsey he gives soken over all the men in a hundred and a half—over all the men who are ‘moot-worthy, fyrd-worthy, and fold-worthy,’ whosesoever men they may be: that is to say (as we understand it) he gives a jurisdiction over all the free men of the district, the men who attend the moots, who attend the host and who are not compelled by any soca faldae to send their sheep to a seignorial fold, and this although those men be bound to St. Benet neither by tenure nor by personal commendation[937]. Again, he concedes that the donee’s tenants shall be quit of shires and hundreds[938]. Again, he gives the favoured church taxational power: whenever the king takes a geld, be it army-geld, or ship-geld, the monks may impose a similar tax upon the township and keep the proceeds to their own use[939]. In short, it seems not too much to say that any delegation and appropriation of justice of which our Norman kings were guilty had an ample warrant in the practice of St. Edward.
Cnut’s practice.
Now the theory which would make him an innovator in this matter receives a rude shock from a writ of Cnut[940]. The king announces that the Archbishop of Canterbury is to be worthy throughout his lands of his sake and soke and grithbrice, hamsocn, foresteal, infangennethef and flymena-fyrmth. Until the genuineness of this writ, which does not stand quite alone[941], be disproved, the charge that has been brought against Edward fails. He was but following in the steps of the great Dane, though it may be that he rushed forward where his predecessor had trod cautiously.
Cnut’s law.
Having seen what Cnut could do upon occasion, we turn to the famous passage in his dooms which declares what ‘rights the king has over all men[942].’ In Wessex and Mercia (in the Danelaw the list is somewhat different) he has hamsocn, foresteal, flymena-fyrmth and fyrd-wite ‘unless he will honour a man yet further and grant him this worship.’ Now if we had not before us his writ for the archbishop, we might perhaps argue that this law merely decreed that the profits of certain pleas were not to be covered by the ‘farms’ paid to the king by the sheriffs and other national officers. But in the writ we see that Cnut allows to the archbishop just the excepted rights, just that ‘worship’ which men are not to have as a general rule. Nor surely can we say that what is conceded is, not jurisdiction itself, but merely the profits of jurisdiction. The archbishop is to have sake as well as soke, and those who have contended for the strictest interpretation of royal grants have not contended that the former of these words can mean anything but ‘causes,’ ‘pleas,’ ‘jurisdiction.’ Therefore when it is interpreted by the aid of this writ, Cnut’s law seems to imply that private jurisdiction is a common thing. The king is already compelled to protest that there are certain pleas of the crown that are not covered by vague and general words.
The book and the writ.
Now express grants of sake and soke first become apparent to us in documents of a certain class, a class that we do not get before the last years of the tenth century. It is necessary therefore that we should make a short digression into the region of ‘diplomatics.’ The instruments of the Confessor’s reign, and we may add of the Norman reigns, which we loosely call royal charters or royal land-books divide themselves somewhat easily into two main classes, which we will call respectively (1) charters and (2) writs. These names are not very happy, still they are the best that occur to us. If we have regard to the form of the instrument, the distinction is evident. The charter is with rare exceptions in Latin. It begins with an invocation of the Triune God or perhaps with a sacred monogram. On the other hand, there is no address to mortal men; there is no salutation. There follow a pious arenga setting forth how good a thing it is to make gifts, how desirable it is, since men are very wicked, that transactions should be put into writing. Then the king states that he gives, or has given, or will give—the use of the future tense is not uncommon—certain land to a certain person. Then comes a clause which we shall hereafter call ‘the clause of immunity’:—the land is to be free from certain burdens. Then comes the anathema or damnatory clause, threatening all breakers of the charter with excommunication here and torment hereafter. Then in the charters of the time before the Conquest the boundaries of the land are described in English. Then comes the sign of the cross touched by the king’s hand and the crosses of the witan or nobles who ‘attest’ or ‘attest and consent to’ the grant. In the writ all is otherwise. In the Confessor’s day it is usually, in the Norman reigns it is sometimes, an English document. It begins, not with an invocation, but with a salutation;—the king greets his subjects or some class of his subjects: King Edward greets ‘Herman bishop and Harold earl and all my thegns in Dorset,’ or ‘Leofwin bishop and Edwin earl and all my thegns in Staffordshire’:—and then he tells them something. He tells them that he has granted lands or liberties to a certain person. There follows a command or a threat—‘I command and firmly enjoin that none shall disturb the grantee,’ ‘I will not suffer that any man wrong the grantee.’ The boundaries are not described. There is seldom any curse. The king makes no cross. If any witnesses are mentioned, they are few and they do not make crosses.
Differences between book and writ.
Now these formal differences correspond more or less exactly to a substantial difference. As every modern lawyer knows, a written document may stand in one of two relations to a legal transaction. On the one hand it may itself be the transaction: that is to say, the act of signing, or of signing and delivering, the document may be the act by which certain rights are created or transferred. On the other hand, the instrument may be but evidence of the transaction. Perhaps the law may say that of such a transaction it will receive no evidence save a document written and signed; perhaps it may say that the testimony of documents is not to be contradicted by word of mouth; but still the document is only evidence, though it may be incontrovertible evidence, of the transaction; the transaction may have been complete before the document was signed[943]. This material distinction is likely to express itself in points of form; for instance, such a phrase as ‘I hereby give’ is natural in the one case; such a phrase as ‘Know all men by this writing that I have given’ is appropriate in the other. Instruments of both kinds were well enough known in the Frankish kingdom; their history has been traced back into the history of Roman conveyancing[944]. It would be out of place were we here to discuss the question whether the Anglo-Saxon land-book was a dispositive or merely an evidential document; suffice it to say that with rare exceptions the instruments that are of earlier date than the Confessor’s reign are in form charters and not writs. On the other hand, the documents of the Angevin kings which treat of gifts of lands and liberties, though we call them charters, are in form (if we adopt the classification here made) not charters but writs. In form they are evidential rather than dispositive; they are addressed to certain persons—all the king’s lieges or a class of the lieges—bidding them take notice that the king has done something, has given lands, and then adding some command or some threat. This command or threat makes them more than evidential documents; the Sciatis me dedisse is followed by a Quare volo et firmiter praecipio; it is not for no purpose that the king informs his officers or his subjects of his having made a gift; still in form they are letters, open letters, ‘letters patent,’ and the points of difference between the Angevin charter and the Angevin ‘letters patent’ (strictly and properly so called) are few, technical and unimportant when compared with the points of difference which mark off these two classes of documents from the ancient land-book[945]. In short before the end of the twelfth century, the writ-form or letter-form with its salutation, its ‘Know ye,’ its air of conveying information coupled with commands, has entirely supplanted the true charter-form with its dispositive words and its air of not merely witnessing, but actually being, a gift of land.
Anglo-Saxon writs.
But to represent this as a contrast between English instruments and Norman or French instruments would be a mistake. In the first place, we have a few documents in writ-form that are older than the days of the Norman-hearted Edward. As already said, we have a writ from Cnut and it has all those features of Edward’s writs which have been considered distinctively foreign. We have another writ from the same king. The king addresses Archbishop Lyfing, Abbot Ælfmær, Æthelric the shireman ‘and all my thegns twelvehinde and twihinde.’ He tells them that he has confirmed the archbishop’s liberties and threatens with the pains of hell any one who infringes them[946]. We have a writ from Æthelred the Unready, and a remarkable writ it is. He addresses Ælfric the ealdorman, Wulfmær and Æthelweard and all the thegns in Hampshire and tells them how he has confirmed the liberties of bishop Ælfheah and how large tracts of land are to be reckoned as but one hide—an early example of ‘beneficial hidation[947].’ Secondly, the solemn charter with its invocation, its pious harangue, its dispositive words, its religious sanction, its numerous crosses, its crowd of attesting and consenting witnesses, was in use in Normandy before and after the conquest of England. Thirdly, the Norman kings of England used it upon occasion. Much they did by writ. The vast tracts of land that they had at their disposal would naturally favour the conciser form; but some of the religious houses thought it well to obtain genuine land-books of the old English, and (we must add) of the old Frankish type. The king’s seal was not good enough for them; they would have the king’s cross and the crosses of his wife, sons, prelates and barons. The ultimately complete victory of what we have called the writ-form over what we have called the charter-form may perhaps be rightly described as a result of the Conquest, an outcome, that is, of the strong monarchy founded by William of Normandy and consolidated by Henry of Anjou, but it can not be rightly described as the victory of a French form over an English form; and a very similar change was taking place in the chancery of the French kings[948].
Sake and soke appear when writs appear.
We may say then that the appearance of words clearly and indisputably conceding jurisdictional rights is contemporaneous with the appearance of a new class of diplomata, namely royal writs as contrasted with royal charters or land-books. We may add that it is contemporaneous with the appearance of royal diplomata couched in the vernacular language. This may well lead us to two speculations. In the first place, is it not very possible that many ancient writs have been lost? The writ was a far less solemn instrument than the land-book, and it is by no means certain that the writs of the Confessor were intended to serve as title-deeds or to come to the custody of those for whose benefit they were issued. King Edward greets the bishop of London, Earl Harold, the sheriff and all the thegns of Middlesex and tells them how he has given land to St. Peter and the monks of Westminster, and how he wills that they enjoy their sake and soke. The original document is presented to the bishop, the earl, or the sheriff (to all of them perhaps as they sit in their shire moot) and we can not be certain that after this the monks ought to have that document in their possession, that it ought not to be kept by the sheriff, or perhaps returned to the king with an indorsement expressive of obedience. Many hundred writs must King William have issued in favour of his barons—this is plain from Domesday Book—and what would we not give for a dozen of them? Secondly, it is well worth notice that ‘sake and soke’ begin to appear so soon as royal diplomata written in English become common, and when we observe the formulas which enshrine these words we find some difficulty in believing that such formulas are new or foreign. Let us listen to one.
saca and socne toll and team griðbrice and hamsocne and foresteal and alle oðre gerihte inne tid and ut of tide binnan burh and butan burh on stræte and of stræte.
Surely this alliteration and this rude rhythm tell us that the clause has long been fashioning itself in the minds and mouths of the people and is no piece of a new-fangled ‘chancery-style[949].’ And one other remark about language will occur to us. In many respects the law Latin of the middle ages went on becoming a better and better language until, in the thirteenth century, it became a very good, useful and accurate form of speech. But it gained this excellence by frankly renouncing all attempts after classicality, all thought of the golden or the silver age, and by freely borrowing from English whatever words it wanted and making them Latin by a suffix. The Latin of the Anglo-Saxon land-books is for all practical purposes a far worse language, just because it strives to be far better. It wanted to be good Latin, and even at times good Greek. The scribe of the ninth or tenth century would have been shocked by such words as tainus, dreinus, smalemannus, sochemannus which enabled his successors to say precisely what they wanted. He gives us provincia instead of scira, satrapes instead of aldermanni, and we read of tributum and census when we would much rather have read of geldum and gablum. It was out of the question that he should be guilty of such barbarisms as saca et soca. If he is to speak to us of these things, he will do so in some phrase which he thinks would not have disgraced a Roman orator—in a phrase, that is, which will not really fit his thought.
Traditional evidence of sake and soke.
The traditions, the legends, current in later times, can not be altogether neglected. The prelates of the thirteenth century often asserted that some of their franchises, and in particular their hundred courts, had been given to their predecessors in an extremely remote age. Thus the bishop of Salisbury claimed the hundred of Ramsbury in Wiltshire by grant of King Offa of Mercia[950]; the Abbot of Ramsey claimed the hundred of Clackclose in Norfolk by grant of King Edgar[951]. On such claims we can lay but very little stress, for if the church had held its ‘liberties’ from before the Conquest, the exact date at which it had acquired them was of little importance and their origin would easily become the sport of guess-work and myth. But occasionally we can say that there must in all probability be some truth in the tale. Such is the case with the famous hundred of Oswaldslaw in Worcestershire. When the Domesday survey was made this hundred belonged to the church of Worcester. Worcestershire was deemed to comprise twelve hundreds and Oswaldslaw counted for three of them[952]. Oswaldslaw contained 300 hides, and to all seeming the whole shire contained 1200 hides or thereabouts. Even in the thirteenth century a certain tripleness seems to be displayed by this hundred; the bishop holds his hundred court in three different places, namely, outside the city of Worcester, at Dryhurst and at Wimborntree[953]. Now the story current in St. Mary’s convent was that this triple hundred of Oswaldslaw received its name from Oswald, the saintly bishop who ruled the church of Worcester from 960 to 992. A charter was produced, perhaps the most celebrated of all land-books, that Altitonantis Dei largiflua clementia, which, after many centuries, was to prove the King of England’s dominion over the narrow seas[954]. According to this charter Edgar, Oswald’s patron, threw together three old hundreds, Cuthbertslaw, Wolfhereslaw, and Wimborntree to form a domain for the bishop and his monks[955]. Could we accept the would-be charter as genuine, could we even accept it as a true copy of a genuine book (and this we can hardly do)[956], there would be an end of all controversy as to the existence of seignorial justice in the year 964, for undoubtedly it contains words which confer jurisdiction[957]. Upon these we will not rely: the fact remains that in Domesday Book there appears this hundred of Oswaldslaw, that it is treated as a triple hundred, as three hundreds, that the bishop has jurisdiction over it, that the sheriff has no rights within it, that it looks like a very artificial aggregate of land, for pieces of it lie intermixed with other hundreds and pieces of it lie surrounded by Gloucestershire. In 1086 the church of Worcester had to all appearance just those rights which the Altitonantis professed to grant to her; already they were associated with the name of Oswald; already they were regarded as ancient privileges. ‘Saint Mary of Worcester has a hundred called Oswaldslaw, in which lie 300 hides, from which the bishop of the said church, by a constitution of ancient times, has the profits of all sokes and all the customs which belong thereto for his own board and for the king’s service and his own, so that no sheriff can make any claim for any plea or for any other cause:—this the whole county witnesses[958].’ Surely the whole county would not have spoken thus of some newfangled device of the half-Norman Edward. Such a case as this, so great a matter as the utter exclusion of the sheriff from one quarter of the shire, we shall hardly attempt to explain by hypothetical usurpations. These liberties were granted by some king or other. If they were granted by the Confessor, why was not a charter of the Confessor produced? Why instead was a charter of Edgar produced, perhaps rewritten and revised, perhaps concocted? The easiest answer to this question seems to be that, whatever may be the truth about this detail or that, the Altitonantis tells a story that in the main is true. The diplomatist’s scepticism should in this and other instances be held in check by the reflexion that kings and sheriffs did not permit themselves to be cheated wholesale out of valuable rights, when the true state of the facts must have been patent to hundreds of men, patent to all the men of Oswaldslaw and to ‘the whole county’ of Worcester[959]
Criticism of the earlier books.
We may now turn to the genuine books of an earlier time and patiently examine their words. It is well known that an Anglo-Saxon land-book proceeding from the king very commonly, though not always, contains a clause of immunity. Sometimes a grant of immunity is the essence of the book; the land in question already belongs to a church, and the bishop or abbot now succeeds in getting it set free from burdens to which it has hitherto been subject. What is now granted to him is ‘freedom,’ ‘liberty,’ ‘freóls’; the book is a freóls-bóc[960]; it may be that he is willing to pay money, to give land, to promise prayers in return for this franchise, this libertas[961]. Thus, for example, King Ceolwulf of Mercia grants a libertas to the Bishop of Worcester, freeing all his land from the burden of feeding the king’s horses, and in consideration of this grant the bishop gives to the king five hides of land for four lives and agrees that prayers shall be said for him every Sunday[962]
The clause of immunity.
Now in an ordinary case the clause of immunity will first contain some general words declaring the land to be free of burdens in general, and then some exceptive words declaring that it is not to be free from certain specified burdens[963]. Both parts of the clause demand our attention. The burdens from which the land is to be free are described by a large phrase. Usually both a substantive and an adjective are employed for the purpose; they are to be freed ab omni terrenae servitutis iugo—saecularibus negotiis—mundiali obstaculo—mundialibus causis—saecularibus curis—mundialibus coangustiis—cunctis laboribus vitae mortalium. The adjectives are remarkable, for they seem to suggest a contrast. The land is freed from all earthly, worldly, secular, temporal services. Does this not mean that it is devoted to services that are heavenly, sacred, spiritual[964]? True, that in course of time we may find this same formula used when the king is giving land, not to a church, but to one of his thegns; but still in its origin the land-book is ecclesiastical; ‘book-right’ is the right of the church, ius ecclesiasticum[965], and we may well believe that the phraseology of the books, which in substance remains unaltered from century to century, was primarily adapted to pious gifts. It is by no means improbable that in the middle of the eighth century Æthelbald of Mercia by a general decree conceded to all the churches of his kingdom just that freedom from all burdens, save the trinoda necessitas, that was usually granted by the clause of immunity contained in the land-books, and we can hardly say with certainty that half a century before this time Wihtræd had not granted to all the churches of Kent a yet larger measure of liberty, a liberty which absolved them even from the trinoda necessitas[966]. Turning from the adjectives to the substantives that are used, we find them to be wide and indefinite words; the lands are to be free from all worldly services, burdens, troubles, annoyances, affairs, business, causes, matters and things. Sometimes a more definite word is added such as tributum, vectigal, census, and clearly one main object of the clause is to declare that the land is to pay nothing to the king or his officers; it is to be free of rent and taxes, scotfree and gafolfree[967]. Occasionally particular mention is made of a duty of entertaining the king, his court, his officers, his huntsmen, dogs and horses, also of a duty of entertaining his messengers and forwarding them on their way[968]. Thus, for example, Taunton, which belonged to the bishop of Winchester, had been bound to provide one night’s entertainment for the king and nine nights’ entertainment for his falconers and to support eight dogs and a dog-ward, to carry with horses and carts to Curry and to Williton whatever the king might need, and to conduct wayfarers to the neighbouring royal vills. To obtain immunity from these burdens the bishop had to give the king sixty hides of land[969]
Discussion of the words of immunity.
No doubt it is a sound canon of criticism that, when in a grant precise are followed by vague words, the former should be taken to explain, and, it may be, to restrain the latter. If, for example, land be freed ‘from taxes and all other secular burdens,’ we may well urge that the ‘other secular burdens’ which the writer has in his mind are burdens akin to taxes. And of course it is fair to say that in our days a grant of private justice would be an extremely different thing from a grant of freedom from fiscal dues. But what, we must ask, does this freedom from fiscal dues really mean when it is granted by an Anglo-Saxon land-book? When the monks or canons obtain a charter freeing this territory from all tributum and census, from all pastiones and so forth, is it intended that the occupiers of the soil shall have the benefit of this grant? Not so. The religious have been stipulating for themselves and not for their men. The land has been freed from service to the king in order that it may serve the church[970]; the church will take what the king has hitherto taken or it will take an equivalent. In a writ of Edward the Confessor this appears very plainly. Whenever men pay a geld to the king, be it an army-geld or a ship-geld, the men of St. Edmund are to pay a like geld to the abbot and the monks[971]. Probably this principle has been at work all along. The king has had no mind to free the manentes, casati, tributarii of the church from any tributum or vectigal. What has hitherto been paid to him, or some equivalent for it, will now go to the treasury of the church. Thus, even within the purely fiscal region, we see that the object of the immunity is to give the church a grip on those who dwell upon the land. But we must read the clause to its end.
The trinoda necessitas.
As is well known, it usually proceeds to except certain burdens, to declare that the land is not to be free from them. These burdens, three in number, are on a few occasions spoken of as the trinoda necessitas. That term has become common in our own day and is useful. The land is not to be free from the duty of army-service, the duty of repairing strongholds, the duty of repairing bridges. An express exception of this trinoda necessitas out of the general words of immunity is extremely common. Moreover there are charters which speak as though no lands could ever be free from the triple charge[972], and a critic should look with some suspicion upon any would-be land-book which expressly purports to break this broad rule. But besides some books which do expressly purport to free land from the trinoda necessitas[973], we have a considerable number of others which grant immunity in wide terms and make no exception of army-service, bridge-bote or burh-bote[974], and we are hardly entitled to reject them all merely because they do not conform to the general principle[975]. More to our purpose is it to notice that, though a grant of jurisdictional powers would be an extremely different thing from a grant of immunity from army-service, the duty of attending the national or communal courts is extremely like the duty of attending the host, and it would not be extravagant to argue that when the king says ‘I free this land from all secular burdens except those of fyrd-fare, burh-bote and bridge-bote,’ he says by implication ‘I free this land from suit to shires and hundreds.’
The ángild.
But yet more important is it to notice that charters of the ninth century frequently except out of the words of immunity not three burdens, but four. In addition to the trinoda necessitas, some fourth matter is mentioned. Its nature is never very fully described, but it is hinted at by the terms ángild, singulare pretium, pretium pro pretio. In connexion with these charters we must read others which exempt the land from ‘penal causes,’ or wíte-rǽden and others which expressly grant to the donee the ‘wites’ or certain ‘wites’ issuing from the land; also we shall have to notice that there are dooms which decree that certain ‘wites’ are to be paid to the land-lord or land-ríca. Now ángild (singulare pretium) is a technical term in common use[976]. When a crime has been committed—theft is the typical crime which the legislators have ever before their eyes—the ángild is the money compensation that the person who has been wronged is entitled to receive, as contrasted with any wite or fine that is payable to the king. We find, then, a charter saying that certain land—not certain persons, but certain land—is to be free from all secular burdens save the ángild, and in some cases it will be added that the land is to pay nothing, not one farthing, by way of wite, or that nothing is ‘to go out to wite[977].’ Of the various interpretations that might possibly be put upon such words one may be at once rejected. It is not the intention of the king who makes or of the church which receives the grant that crimes committed on this land shall go unpunished. No lord would wish his territory to be a place where men might murder and steal with impunity. We may be certain then that if a crime be committed, there is to be a wite; but it is not to go outside the land; the lord himself is to have it. But how is the lord to enforce his right to the wite,—must he sue for it in the national or communal courts, or has he a court of his own.
The right to wites and the right to a court.
This question is difficult. The ancient charters, however nearly they may go to telling us that the donee will do justice within his territory, never go quite that length. There is, however, a book granted by Cenwulf of Mercia in 816 to the church of Worcester which adds to the clause of immunity these words—‘and if a wicked man be three times captured in open crime, let him be delivered up at the king’s tún (vicum regalem)[978].’ This seems to tell us that only the worst offenders will be delivered up to the royal or national officers and to imply that the bishop may do justice upon all others. Then there are two books in favour of the church of Abingdon, the one granted by Cenwulf in 821, the other by Egbert in 835, which, though their language is very obscure, seem to tell us that if one of the ‘men of God’ (by which phrase are meant the ‘vassals’ of the church of Abingdon) be accused of any crime, the overseer of the church may swear away the charge by his own oath, and that, if he dare not swear, he may pay the ángild to the plaintiff and, this done, will have justice over the offender[979]. Another ancient book suggests that the lord of an immunity, when he had to pay the ángild for one of his men, could not be forced to cross the boundary of his land. On that boundary some mixed tribunal would meet consisting partly of his men and partly of outsiders[980]. Then, again, there are the books which either give the lord the furis comprehensio or else exempt his land from the furis comprehensio. Now when a writ of Cnut or Edward the Confessor tells us that a lord is to have infangennethef we do not doubt that he is to have the right which bore that name in later days, the right to hold a court for and to hang thieves who are caught in seisin of the stolen goods, and to the furis comprehensio of the older books we can hardly give another meaning. And the apparent equivalence of the two phrases ‘You shall hold this land with thief-catching’ and ‘You shall hold this land free of thief-catching’ illustrates our argument that to exempt land from public or national justice is to create private or seignorial justice[981]. We may see this in later days; a lord who holds land ‘free and quit of frankpledge’ assumes the right to hold a view of frankpledge, and we can not say that he is wrong in so doing[982]
The Taunton book.
Lastly, in a book of fairly good repute we may read of the grand liberties with which in 904 King Edward endowed the Bishop of Winchester’s large estate at Taunton—that estate which in subsequent centuries was to become the classical example of colossal manors. ‘I have,’ says the king, ‘granted to Christ that the men of the bishop, noble as well as non-noble, living on the said land shall be worthy of the same right that is enjoyed by those who dwell on the demesnes of the crown, and that jurisdiction in all secular causes shall be exercised to the use of the bishops in the same manner as that in which jurisdiction is exercised in matters pertaining to the king[983].’ This is the more important because it suggests, what like enough is true, that the king himself is one of the first of all ‘immunists’; his own estates, the ancient demesne of the crown, already stand outside the national system of finance, justice and police[984]
The immunist and the wite.
But so careful must we be in drawing inferences from singular instances, so wary of forgeries, that in the end we can not dispense with arguments which rest rather upon probabilities than upon recorded facts. It is conceded that the ‘immunist’ (it is convenient to borrow a term that French writers have coined) is entitled to many of the fines and forfeitures that arise from offences committed within his territory. Is it, we must ask, probable that any ealdorman or sheriff will be at pains to exact and collect these fines and forfeitures for the immunist’s benefit? Now it is true that in later days a few lords enjoyed a comparatively rare franchise known as amerciamenta hominum. When their men were amerced in the king’s court the amercements were paid into the exchequer, and then the lord would petition to have them paid out to him[985]. But this was an uncommon and an exalted franchise. As a general rule, the person in whose name a court is held, be he king or lord, gets the profits of the court. No one in the middle ages does justice for nothing, and in the ninth century the days when national officers would be paid by salary were far distant. When the king declares that nothing is to ‘go out’ of the immunist’s lands ‘by way of wite,’ then to our thinking he declares that, save in exceptional cases, he and his officers will neither meddle nor make with offences that are committed within that territory. Again, though we may reject this charter and that, there can be little doubt that before the end of the tenth century, the territory held by a church sometimes coincided with a jurisdictional district, with a hundred or group of hundreds. When this was so, and the church enjoyed a full immunity, it was almost of necessity the lord of the court as well as the lord of the land. Why should the sheriff hold that court, why should he appoint a bailiff for that hundred, if never thereout could he get one penny for his own or the king’s use.
Justice and jurisdiction.
We must once more remember that even in the days of full grown feudalism the right to hold a court was after all rather a fiscal than a jurisdictional right. We call it jurisdictional, but still, at least normally, the lord was, neither in his own person, nor yet in the person of his steward, the judge of the court[986]. His right was not in strictness a right ius dicendi, for the suitors made the judgments. When analysed it was a right to preside over a court and to take its profits. Very easy therefore is the transition from a right to ‘wites’ to such ‘jurisdiction’ as the feudal lord enjoys. When once it is established that all the fines of a hundred court are to go to a bishop, that no sheriff or bailiff will get anything by going to hold that court, then the court already is ‘in the bishop’s hands.’
The Frankish immunity.
This, however, can not be treated as a merely English question. Parallel to the English fréols-bóc runs the Frankish carta immunitatis, and, if the former has given rise to the question whether it conceded jurisdictional rights, the latter has given rise, not merely to the same question, but to much learned controversy. Now it is highly probable that the English ‘immunity’ is not independent of the Merovingian ‘immunity’; still the terms of the former do not seem to have been copied from those of the latter, and it is a significant fact that two different formulas should be equally open to the blame of not deciding just that most important question which according to our ideas they ought to decide. The Frankish formula is addressed by the king to his subordinates and declares that no public officer (nullus iudex publicus) is to enter the land of the immunist for the purpose of hearing causes, levying freda (which answer to our ‘wites’), making distresses or exacting pledges; but, like our English formula, it says no word of any court to be held or any jurisdiction to be exercised by the immunist. It would be impertinent to give here any lengthy account of the various opinions about this matter that have been held by foreign scholars, still more impertinent to pronounce any judgment upon them, but even those writers who seem most inclined to minimize the scope of the immunity are forced to admit that, as a mere matter of fact, the immunist by virtue of his immunity is enabled to hold a court for his territory. That seignorial courts were growing up even in the Merovingian time, that such courts there were even in the sixth century, there seems little or no doubt, even though it be denied that they were the creatures of these clauses of immunity. On the whole, to whichever side of the channel we look, we seem compelled, alike by the words of the charters and by the controversies which they have occasioned, to believe that in the eyes of the kings and the immunists seignorial jurisdiction, that right to hold a court which seems to us so strange a right, was not a matter of the first importance, not worth conceding, not worth denying. Who is to have the profits of justice?—that is a momentous question. But if it be decided that they are to go to the bishop, then the king will have no further care for them:—the bishop may and must get them for himself. As to the ‘justiciables,’ it may well be that they are very indifferent about the matter, not impossible that the burden of suit will be alleviated if the lord establishes a court of his own, or if an old court passes into his hands[987]
Seignorial and ecclesiastical jurisdiction.
One other question should be raised, even if we can find for it no certain answer. Is not seignorial jurisdiction very closely connected at its root with ecclesiastical jurisdiction? Of course in more recent times the two are thoroughly distinct from each other. The bishop, besides being a spiritual judge, will be a feudal lord with many manorial courts and many chartered franchises; but any court that he holds as a lord will have nothing to do with the court that he holds as a bishop. The constitution and procedure of the one will differ at every point from the constitution and procedure of the other. The one belongs to the temporal order and is subject to the king’s court, the other belongs to the spiritual order and is in no sense below the royal tribunal. Thus it is when feudal law and canon law have reached their full stature. But even from the twelfth century we may get a hint that the distinction has not always been so sharply marked. We may read how in Henry I.’s day the Bishop of Bath ‘with his friends and barons’ heard a cause in which Modbert claimed lands that were held by the monks of Bath. The proceedings took place under a royal writ and ought, we should say, to have been in all respects temporal proceedings; but in framing the judgment two bishops, three archdeacons and several ‘clerks and chaplains’ took the leading part, while the lay tenants of the bishop stood by as witnesses[988]. In this context we must remember that in the twelfth century the clergy were contending that land given to a church in frankalmoin is outside the sphere of secular justice[989], and, while this contention was being urged, it was easily possible that a bishop should hold an amphibious court:—Over the claim that Modbert is making the bishop has jurisdiction, either because the monks are holding the land of him as his tenants, or because that land has been given to God and the saints by an ancient book which denounced the anathema against all who should violate it. Going back yet further, we see, at all events in France, that the claim of the clergy to hold their lands and seignories exempt from all temporal jurisdiction has been intimately connected with the claim of the clergy that they themselves need not answer before a lay tribunal. A learned man has said that the exemption of the clergy from the temporal courts was ‘the first step towards the feudalization of justice[990].’ If our English documents do not make this plain, if the relations between church and state were more harmonious in England than elsewhere (and because more harmonious therefore more indefinite and to the modern student more perplexing), still we can see that the main idea of the English fréols-bóc is the liberation of a tract of ground from all secular troubles, all temporal burdens, all earthly service. The land is dedicated to God and the saints, or, if it is not dedicated in the strictest sense, it is given for God’s sake and the welfare of the donor’s soul; it is within the ban of the church. And so the men who sit upon the land of the church of Abingdon, laymen though they be, are homines Dei, the men of God[991]. As such, should they not be subject to the jurisdiction of the church.
Criminal justice of the Church.
At this point we may profitably remember that the jurisdiction which in later days appears as the ‘criminal jurisdiction’ of ecclesiastical tribunals (the jurisdiction which, for example, those tribunals exercise when they chastise a man for incest, fornication or perjury) was but slowly disengaged from the general mass of penal jurisdiction that was wielded by moots in which the bishop occupied a prominent seat. Moreover, the bishop’s justice did not escape that fiscal taint which pervaded the whole system of criminal law. As in some cases the king is entitled to a wite, so in others the wite falls to the bishop. For instance, we see traces of a rude concordat, which, when incest or adultery is committed, subjects the woman to the bishop, the man to the king[992]; and then from Domesday Book we learn that in the borough of Lewes the upshot of this partition is that the king will get 8s. 4d. from the man while the adulteress pays a like sum to the archbishop of Canterbury[993]. And so ecclesiastical jurisdiction becomes a source of income, a matter to be fought for and bargained for. The monks of Battle will claim that within the banlieu of their abbey all the ‘forfeitures of Christianity’ belong to them and not to the bishop of Chichester[994]. What is more, they will connect their claim to purely temporal justice with their possession of ordeal pits, and here we may see another link between the hundred-moots and the churches[995]. The churches have made money out of the ordeal. Long after the English prelates had been forbidden to hold spiritual pleas in the hundred courts, Alexander III. was compelled to speak sharply to the archbishop of Canterbury touching the conduct of archdeacons who exacted thirty pence from every man or woman who went to the fire or the water for purgation[996].
Antiquity of seignorial courts.
No doubt the theory to which we have been led implies that in the eighth or even in the seventh century, there were in England ‘immunists’ who had jurisdiction within their territories, and further it implies that a royal grant of land in the ninth and tenth centuries generally included, and this as a matter of ‘common form,’ a grant of jurisdiction. We cannot see either in the history of England or in the history of the Frankish Empire any reason why we should shrink from these conclusions. Further, it must be admitted that if the clause of immunity conveys, or permits the growth of, seignorial jurisdiction, this jurisdiction is of an exalted kind, for no causes are excepted out of it, unless it be by the words about the ángild, and even those words drop out from the charters in course of time. Those words about the ángild imply, to our thinking, that the immunist will have jurisdiction over any dispute which arises between two men of the enfranchised territory, and also that if an action against one of these men be brought by a ‘foreigner’ in a court outside the precinct, the immunist can obtain ‘cognizance’ of the action by appearing in that court and paying the ángild. When the words about the ángild disappear, this means that the immunist is obtaining a yet further measure of ‘liberty’:—whenever one of his men is sued he can ‘crave his court’ and need not, as a condition for obtaining it, offer to pay what is due to the plaintiff. The highest criminal jurisdiction was probably excepted from the grant. Being a grant of wites, it will not extend to the ‘bootless’ the ‘unemendable’ crimes. But Cnut’s attempt to save for himself certain pleas of the crown looks to us like the effort of a strong king to recover what his predecessors have been losing[997]. And then Cnut himself and the Confessor,—the latter with reckless liberality—expressly grant to the churches just those very reserved pleas of the crown. The result is that the well endowed immunist of St. Edward’s day has jurisdiction as high as that which any palatine earl of after ages enjoyed. No crime, except possibly some direct attack upon the king’s person, property or retainers, was too high for him. It is the reconstruction of criminal justice in Henry II.’s time, the new learning of felonies, the introduction of the novel and royal procedure of indictment, that reduce the immunist’s powers and leave him with nothing better than an unintelligible list of obsolete words[998]. In this matter of seignorial justice England had little to learn from Normandy. On the contrary, the Norman counts and barons were eager to secure the uncouth phrases which gave to the English immunist his justice, ‘haute, moyenne et basse justice.’
Justice, vassalage and tenure.
Our next question must be whether in the days before the Conquest a franchise or immunity was the only root of private jurisdiction: in other words, whether any jurisdiction was implied in the mere relation between lord and man or between lord and tenant. This also is a question which will hardly be finally answered if regard be had only to the English documents. For France it is the question whether the senior, as such, has jurisdiction over his vassus, or again, whether he has jurisdiction over his vassus if, as is usually the case in the Carlovingian age, the vassus holds a beneficium given to him by his senior. The English dooms which deal with what we may call the justiciary relationship between lord and man closely resemble in many respects the Frankish capitularies which touch the same subject; both sets of documents seem to evade the simple question that we put to them. But as regards the continent it may here be enough to say that, though there have been many debates, the current of learning seems to have set decidedly in favour of the doctrine that neither in Merovingian nor yet in Carlovingian times had the senior, unless he was an immunist, a jurisdiction over his men. Such a jurisdiction has not been developed when the midnight hides everything from our view. When the morning comes, feudal justice stands revealed, though nowhere perhaps is it governed by that simple principle that ultimately prevailed in England, namely, that any and every lord, no matter his personal rank or the rank of his tenement, has civil justice over his tenants.
The lord’s duty when his man is accused.
The possibility of debate about this matter is afforded by texts of an earlier age, which at times seem to speak of the lord as ‘doing justice’ when a charge is brought against any of his men[999]. Our English run parallel with the Frankish texts. The state in its organization of justice and police does not treat the contract between man and lord, between senior and vassus, as a matter of indifference, still less as a danger to society. We must not think of feudalism or vassalism as of something which from the very first is anti-national and anarchic. In its earliest stages it is fostered by the state, by the king, by national law. The state demands that the lordless man of whom no right can be had shall have a lord[1000]. It makes the lord responsible for the appearance of his men in court to answer accusations[1001]. It is not unlikely that the whole system of frankpledge grows out of this requirement. In some instances the state may go further; it may treat the lord, not merely as bound to produce his man, but as responsible for his man’s evil deeds. But, at all events, any one who has a charge to make against a lord’s man must in the first instance demand justice of the lord. If without making such a demand, making it repeatedly, he brings the charge before the king, he must pay the same fine that the lord would have paid had he been guilty of a default of justice[1002]. ‘Of a default of justice’ we say and are compelled to say. It is phrases such as this that have occasioned controversy. To an ear attuned to the language of feudalism they seem to imply a seignorial court in which the lord ‘does justice’ or ‘holds full right’ to the demandant. But to all appearance they have gradually changed their meaning. Originally a lord ‘does right’ to the demandant by producing in a public court the man against whom the claim is urged; or he does it by satisfying the claim, and in that case he seems entitled to exact from his man, not merely a sum which will compensate the outlay, but also the ‘wite’ or fine which in another case would have gone to the king or some national officer. He has thus ‘done justice’ and may have the usual profit that comes of doing justice. Probably we ought to distinguish between a laxer and a stricter measure of responsibility, between the lord’s responsibility for his men in general and his responsibility for such of his men as form his familia, in the language of later days his mainpast; but our texts do not lay much stress upon this distinction, and, as a matter of remote history, the relation between lord and man may grow out of the relation between the head of a household and the members of it[1003].
Duty of the lord.
At any rate, in numberless cases the law begins to interpose a third person, namely, the wrong-doer’s lord, between the wrong-doer and the wronged: it is to this lord that the claimant should in the first instance address himself. The lord who does his duty by the king and the nation is he who keeps a tight hold on his men, who chooses them carefully, who dismisses them if they are bad subjects, who ‘does justice’ and ‘holds full right’ if any of them be accused. Then, on the other hand, he has the right and duty of ‘warranting’ his men. If, as will often happen, the bond between a lord and his man is complicated with the bond between landlord and tenant, then, as in later days, if the tenant’s title be impeached, he will vouch his lord to warranty and the lord will defend the action. But, besides this, within limits that are not well defined, the lord is the man’s defensor or tutor[1004]. It is expected of him by morality, if not by law, that he will take upon himself the responsibility for his man’s acts if they be not open crimes. He must stand by his men and see them through all trouble[1005].
The state requires the lord to ‘do right.’
For a while the state approves all this. The dangerous person is, not the lord, whose wide lands are some security for his good behaviour, but the lordless man of whom no right can be had. Somehow or another theft must be suppressed. This is the determination of our strongest kings, of our wisest ‘witan.’ That they are raising up over against the state another power, the power of seignorial justice, they do not see. And, after all, these ‘witan’ both laymen and clerks are themselves great lords, and the king is the lordliest of them all. Thus the foundation for a feudal jurisdiction is laid. Still between the lord’s duty of producing his men and his right to hold a court of and for his men there is to our eyes a great gulf. We have seen above that this gulf had not been bridged even in the Confessor’s, even in the Conqueror’s day[1006]. Nor to our thinking would it have been bridged but for the creation of ‘immunities’ upon a grand scale. The first origin of the immunity we have sought in the efforts of the clergy to obtain lands which should be utterly exempt from ‘all earthly burdens,’ ‘all worldly business.’ But this effort unites with the stream of tendency that we have now been watching. The state will be grateful to the church if it will ‘hold all the men of God to right’ and do judgment between them and upon them.
The land-ríca as immunist.
There is also a long series of dooms going back as far as Æthelstan’s reign which give certain fines and forfeitures to one who is described as the land-hláford or the land-ríca. Remarkable they are, for they seem to assume that wherever a crime is committed there will be forthcoming some-one who will answer to the title ‘the land-lord’ or ‘the territorial magnate.’ In some sense or another they presuppose that there is Nulle terre sans seigneur. But who is this ‘landlord’? According to our thinking, he is the lord of the hundred or else the lord who has a charter of immunity comprehending the land in question, and, if there be no person answering to this description, then he is the king. In the first place, in certain dooms relating to London we are told that, when a thief is caught and slain, his property is to be divided into two parts, of which his wife takes one, while the other is divided between the king and ‘the association’ (perhaps we may say ‘the gild’) which was engaged in the pursuit and capture; ‘but if it be book-land or bishop’s-land, the landlord takes half with the association in common[1007].’ This seems to mean that there will be a lord to share in the proceeds of the forfeiture if, but only if, the scene of the capture be land that is within an immunity. It is assumed, not without warrant in the land-books, that the man who has book-land always, or almost always, enjoys an immunity, while as to the bishop’s-land, whether the bishop be holding it in demesne or have granted it out to his thegns, that no doubt will be protected by an ample charter. So again, in another law ‘the lord’ receives the thief’s wer ‘if he [the lord] is worthy of his wite[1008]’: that is to say, the lord receives it if he is in enjoyment of an immunity which confers upon him a right to ‘wites.’ Then again, in several cases we find that the land-lord or land-ríca shares the proceeds of a fine with the hundred or wapentake[1009]. This, as we think, points to the fact that the hundreds and wapentakes are passing into private hands. These laws are severe laws against criminals. They urge all men to the pursuit of the flying thief and they hold out a reward to those who are active in this duty. The men of the hundred are to have half the thief’s property, while the lord (who in many cases will be the lord of the hundred) is to have the other half. He is to have no more, even though his charter may seem to give him more. So again, in certain cases an accused person must find security that he will stand a trial, and the gage is to be given ‘half to the land-ríca, half to the wapentake[1010].’ This land-ríca is the lord of the wapentake. In another instance the gage must be given half to the land-ríca and half to the king’s port-reeve[1011]. Then there are cases in which the ‘land-lord’ is to take possession of cattle that have been irregularly acquired and are presumably stolen, and is to preserve them until their true owner shall make his appearance[1012]. These provisions, which seem the foundation of the ‘franchise of waif and stray,’ suggest that the ‘land-lord’ is the president of the court into which the owner must go when he wishes to prove his title; were this not so, the king’s reeve would be the person who would have the custody of the unclaimed beasts. Certainly our explanation of these passages assumes that a hundred is often in private hands and it assumes that, when this is not the case, then the king is regarded as the lord of the hundred. But in so doing it merely assumes that the state of things revealed by Domesday Book is about a century old. When in that record we read that the soke of four and a half hundreds in Oxfordshire ‘belongs to’ the royal manor of Bensington, that the soke of two hundreds ‘belongs to’ the royal manor of Headington, that the soke of other two hundreds ‘belongs to’ the royal manor of Bampton, we see that the king is the lord, the proprietor, of those hundreds which have no other lord[1013]. From the laws now before us we infer that this is no very new arrangement. But of course it is possible that those laws have divers cases in view. It may be that within the hundred there is an immunity, a privileged township or manor, and that a thief is caught there. Who is to have the profits which arise from the crime and condemnation? The answer is: Half shall go to the hundred, half to the land-ríca, that is to say, half goes to the doomsmen, or perhaps to the lord, of the hundred court, half to the immunist. The lord under the general words of his charter might perchance claim the whole; but, in order that all the hundredors may have an interest in the pursuit of thieves, it is otherwise decreed. But where is justice to be done, in the hundred court or in the court of the immunist? That is a question of secondary importance to which our laws do not address themselves. Very probably justice will be done in the hundred court, or again it is not impossible that a mixed tribunal consisting partly of the men of ‘the franchise,’ partly of the men of ‘the geldable’ will meet upon the boundary of the immunist’s land[1014]. Our main point must be that the land-lord or land-ríca of these laws is an immunist, or is the king, who, where there is no immunity, occupies the position of an immunist.
The immunist’s rights over free men.
We see too that the immunist’s rights extend over free men and over free landowners. If a man is guilty of heathenry he must, if he be a king’s thegn, pay ten half-marks, half to Christ and half to the king, but if he be another ‘landowning man’ then he pays six half-marks, half to Christ and half to the land-ríca[1015]. The landowner normally has a land-lord above him. We see also that the lord is made liable for the payment of dues which are ultimately exigible from those who are dwelling within his territory. ‘If a king’s thegn or other land-ríca makes default in paying Peter’s pence, he must pay ten half-marks, half to Christ and half to the king; if a “towns-man” makes a similar default, the land-ríca must pay the penny and take an ox from the defaulter, and if the land-ríca neglects to do this, then Christ and the king shall receive the full bót of twelve ores[1016].’ Such is the manner in which the lord’s power is consolidated. He begins to stand between his free men and the state, between his free men and the church.
Delegation of justiciary rights.
Another consequence of the argument in which we have been engaged is that, at least a century before the Conquest, the great immunists were granting immunities to their dependants. From this consequence we shall not flinch. Bishop Oswald, for example, was an immunist on a splendid scale, and when he loaned land to a knight and said that the land was to be ‘free from all secular service’ save the trinoda necessitas, he loaned not merely land, but immunity and jurisdiction. On one occasion, adopting a formula that has lately come before us, he said that nothing was to go out of the land by way of wite[1017]. By this we understand that he gave to his thegn any wites which might thereafter be incurred by the inhabitants of the manses which were comprised in the loan, and further that he gave him the right to hold a court. Domesday Book requires us to believe that such transactions had not been uncommon[1018].
Number of immunists.
Will our attempt to explain the land-books create too many holders of sake and soke? We do not think so, for we do not think that the number of land-books should be indefinitely multiplied by our imaginations. If we look in Domesday Book at the counties which lie south of the Thames, we shall indeed see that the total amount of land of which the churches are tenants in chief is very large. But the number of these landowning churches is small. When we have named seven episcopal and a dozen abbatial minsters we have disposed of by far the greater bulk of the church lands in this district, and these minsters are as a general rule just those which have transmitted to us in cartularies and chronicles the story of their acquisitions. To churches that were destroyed by the Danes we may allot some charters; but we should have no warrant for the supposition that royal diplomata have perished by the hundred and left no trace behind. In the shires of York, Lincoln, Nottingham, Derby we might allow sake and soke to every English prelate who appears as a tenant in chief and yet not raise to twelve[1019] the number of the ecclesiastical immunists who had lands in this wide region. As to the lay holders of sake and soke, they were not very many though they held broad lands; also they belonged for the more part to an exalted class[1020]. However, here as elsewhere we must admit that every attempted explanation discloses new problems.
NOTE. The Ángild Clause.
As we have said above, (p. 274), there are certain charters in which the clause of immunity makes mention of the ángild (pretium pro pretio, singulare pretium). We will here collect the obscure texts in which this difficult term occurs.
First, however, we will call attention to a passage in Domesday’s account of Worcestershire (D. B. i. 175 b), which throws some light on the matter. Westminster Abbey holds 200 hides and Pershore Abbey holds 100 hides. ‘The county says that the church of Pershore is entitled to church-scot from all the 300 hides [its own 100 and Westminster’s 200], to wit, from every hide on which a free man dwells one load of corn on St. Martin’s day, (if he has more hides than one, they are free), and if that day be infringed [i.e. if payment be not made thereon], he who has kept back the corn must pay elevenfold, but first must pay what is due [i.e. he altogether pays twelve loads—“God’s property and the church’s twelve-fold” (Æthelb. 1.)]; and the Abbot of Pershore will have a wite (forisfactura) from his own 100 hides, such as he ought to have from his own land; but from the other 200 hides he will have the multifold payment of the corn that is due (habet summam et persolutionem) and the Abbot of Westminster has the wite (forisfacturam).’ For solvere et persolvere, see Laws of William (Select Charters) c. 5; for solta et persolta, see Dial. de Scac. ii. 10.
If then, a Westminster tenant fails to pay church-scot to Pershore, he must make bót (very ample bót) to Pershore, but his wite will go to his own lord; nothing is to ‘go out to wite’ from the Westminster land. We will now turn to the land-books. We take them to be saying in effect that in such a case as that put by Domesday the grantee of the immunity is to have his man’s wite, though the restitutory bót will go to another.
(i) A.D. 767. Uhtred of the Hwiccas. K. 117 (i. 144); B. i. 286: ‘interdicimus ut si aliquis in hac praenominatam terram aliquid foras furaverit alicui solvere aliquid nisi specialiter pretium pro pretio ad terminum ad poenam nihil foras.’ We should place a stop after terminum. Then the last clause means ‘nothing shall go out to wite.’ The mention of the terminus suggests a payment at the boundary of the immunist’s land.
(ii) [Questionable]. A.D. 799. Cenwulf. K. 176 (i. 213); B. i. 411: ‘de partibus vero et de causis singulare solvere pretium et nihil aliud de hac terra.’
(iii) A.D. 799–802. Pilheard. K. 116 (i. 142); B. i. 284: ‘ut ab omnium fiscalium redituum operum onerumque seu etiam popularium conciliorum vindictis nisi tantum pretium pro pretio liberae sint in perpetuum.’
(iv) A.D. 814. Cenwulf of Mercia for the church of Worcester. K. 206 (i. 259); B. i. 489: ‘exceptis his, expeditione et pontis constructione, et singulare pretium foras, nihilque ad poenam resolvat.’
(v) Cenwulf of Mercia for the church of Worcester. K. 215 (i. 271); B. i. 507: ‘exceptis his, arcis et pontis constructione et expeditione et singulare pretium foras adversum aliud; ad poenam vero neque quadrantem minutam foras resolvat.’
(vi) A.D. 822. Ceolwulf of Mercia for Archbishop Wilfred. K. 216 (i. 272); B. i. 508: ‘liberata permaneat in aefum nisi is quattuor causis quae nunc nominabo, expeditione contra paganos ostes, et pontes constructione sui [=seu] arcis munitione vel destructione in eodem gente, et singulare pretium foras reddat, secundum ritam gentes illius, et tamen nullam penam foras alicui persolvat.’
(vii) A.D. 831. Wiglaf of Mercia for the archbishop. K. 227 (i. 294); B. i. 556: ‘nisi his tantum causis, expeditione et arcis munitione pontisque constructione et singulare pretium contra alium.’
(viii) A.D. 835. Egbert of Wessex for Abingdon. K. 236 (i. 312); B. i. 577: ‘de illa autem tribulatione que witereden nominatur sit libera, nisi tamen singuli pretium solverit ut talia accipiant. Fures quoque quos appellant weregeldðeofas si foras rapiautur, pretium eius dimidium illi aecclesiae, et dimidium regi detur, et si intus rapitur totum reddatur ad aecclesiam.’
(ix) A.D. 849. Berhtwulf of Mercia for his thegn Egbert. K. 262 (ii. 34); B. ii. 40: ‘Liberabo ab omnibus saecularibus servitutibus ... nisi in confinio rationem reddant contra alium.’
(x) A.D. 855. Burhred of Mercia for the church of Worcester. K. 277 (ii. 58); B. ii. 88: ‘nisi tantum quattuor causis, pontis et arcis, et expeditione contra hostes, et singulare pretium contra alium, et ad poenam nihil foras resolvat.’
(xi) A.D. 883. Æthelred of Mercia for Berkeley. K. 313 (ii. 110); B. ii. 172: ‘and þæt ic þæt mynster fram æghwelcum gafolum gefreoge þe to þiode hlafarde belimpeð, littles oððe micles, cuðes ge uncuðes, butan angilde wið oþrum and fæsten gewerce and fyrd socne and brycg geweorce ... æghwelces þinges to freon ge wið cyning, ge wið ealdorman, ge wið gerefan æghwelces þeodomes, lytles and micles, butan fyrd socne and fæsten geworce and brycg geworce and angylde wið oðrum and noht ut to wite.’
(xii) A.D. 888. Æthelred of Mercia for a thegn. K. 1068 (v. 133); B. ii. 194: ‘liberam hanc terram describimus ab omnibus causis nisi singulare pretium contra aliud ponat et modum ecclesiae.’ Is the modus [or modius] of the church the church-scot?
In a few other cases the immunity mentions penal causes, ‘witeræden,’ and no express exception is made of the ángild. Thus:—
(xiii) A.D. 842. Æthelwulf for a thegn. K. 253 (ii. 16); B. ii. 13: ‘ut regalium tributum et principali dominacione et vi coacta operacione et poenalium condicionum furis comprehensione ... secura ... permaneat.’
(xiv) [Questionable]. A.D. 844. Æthelwulf for Malmesbury; one of the documents reciting the famous ‘donation.’ K. 1048 (v. 93); B. ii. 26; H. & S. iii. 630: ‘ut sit tutus et munitus ab omnibus saecularibus servitutis, fiscis regalibus, tributis maioribus et minoribus, quod nos dicimus witereden.’
(xv) A.D. 877. Bp. Tunbert. K. 1063 (v. 121); B. ii. 163: ‘a taxationibus quod dicimus wite redenne.’
The most detailed and at the same time the most hopelessly obscure information that we get is such as can be obtained from two Abingdon charters.
A.D. 821. Cenwulf. K. 214 (i. 269); B. i. 505; H. & S. iii. 556: ‘Si pro aliquo delicto accusatur homo Dei aecclesiae ille custos solus cum suo iuramento si audeat illum castiget. Sin autem ut recipiat aliam iusticiam huius vicissitudinis conditionem praefatum delictum cum simplo praetio componat.’
A.D. 835. Egbert. K. 236 (i. 312); B. i. 577; H. & S. iii. 613. The same clause, but with alienam instead of aliam. Also the following:—‘De illa autem tribulatione que witereden nominatur sit libera nisi tamen singuli [corr. singulare?] pretium solverit ut talia accipiant [accipiat?].’
This is very dark. Our best guess as to its meaning is this:—If a man of God, that is, a tenant of the church, is accused of crime, the custos of the church (this may mean the abbot, but more probably points to his reeve) may by his single oath purge the accused. But if he dare not do this, then he (the abbot or reeve) may pay the bót that is claimed, and by performing this condition he may obtain a transfer (vicissitudo) of the cause and do what other justice remains to be done, i.e. he may exact the wite. So in the second charter the abbot may pay the bót, the singulare pretium, and so obtain a right to exact the wite:—he makes the payment ut talia [i.e. witereden] accipiat. In guessing that vicissitudo points to a transfer of a suit, we have in mind the manner in which theLeges Henrici, 9 § 4, speak of the ‘transition’ of causes from court to court. The case that is being dealt with by these charters we take to be one in which an outsider in a ‘foreign’ court sues one of the abbot’s tenants. The abbot can swear away the charge, or if he dares not do this, can obtain cognizance of the cause (in the language of a later day potest petere curiam suam) and therewith the right to the wite, but must in this case pay the restitutory bót, or rather, perhaps, find security that this shall be paid to the plaintiff in case he is successful. The clause may also imply that a multiple bót can not be exacted from the immunist’s men, e.g. such a bót as we saw the Abbot of Pershore exacting from the Westminster men; but this is a minor question.