Book 2 — CHAPTER II. THE REGALIA, OR RIGHTS OF ROYALTY.

In the strict theory of the Anglosaxon constitution the King was only one of the people^[27], dependent upon their election for his royalty, and upon their support for its maintenance. But he was nevertheless the noblest of the people, and at the head of the state, as long as his reign was felt to be for the general good, the keystone and completion of the social arch. Accordingly he was invested with various dignities and privileges, enabling him to exercise public functions necessary to the weal of the whole state, and to fill such a position in society as belonged to its chief magistrate. Although his life, like that of every other man, was assessed at a fixed price,—the price of an æðeling or person of royal blood,—it was further guarded by an equal amount, to be levied under the name of cynebót, the price of his royalty; and the true character of these distinctions is clear from the fact of the 30first sum belonging to the family, the second to the people^[28].

His personal rights, or royalties, consisted in the possession of large domains which went with the crown^[29], a sort of τεμενος, which were his own property only while he reigned, and totally distinct from such private estates as he might purchase for himself; in short his Woods and Forests, which the Crown held under the guarantee and supervision of the Witena gemót. Also, in the right to receive naturalia, or voluntary contributions in kind from the free men, which gradually became depraved into compulsory payments. Of these the earliest mention is by Tacitus^[30], who tells us that it was the custom, voluntarily and according to the power of the people, to present their princes with cattle and corn, which was not only a mark of honour but a substantial means of support; and the annals of 31the Frankish kings abound with instances of these presentations, which generally took place at the great meetings of the people, or Campus Madius^[31]. His further privileges consisted in the right to receive a portion of the fines payable for various offences, and the confiscation of offenders’ estates and chattels; in various distinctions of dress, dwelling, and the like; above all, in the maintenance of a standing army of comrades, called at a late period Húscarlas or household troops. It was for him to call together the Witena gemót or great council of the realm, whenever occasion demanded, and to lay before them propositions touching the general welfare of the state; in concurrence also with them, to extend or amend the existing legislation. At the same time I do not find that he possessed the power of dismissing these counsellors when he thought he had had enough of their advice, or of preventing them from meeting without his special summons: in which two rights, when 32injudiciously exercised, the historian finds the key to the downfall of so many monarchies. As general conservator of the public peace, both against foreign and domestic disturbers, the king could call out the fyrd, an armed levy or militia of the freemen, proclaim his peace upon the high-roads, and exact the cumulative fines by which the breach of it was punished. He was also the proper guardian of the coinage; and, in some respects, the fountain of justice, seeing that he might be resorted to, if justice could not be obtained elsewhere. We may also look upon him as, at least to a certain degree, the fountain of honour, since he could promote his comrades, thanes or ministers to higher rank, or to posts of dignity and power. All these various rights and privileges he possessed and exercised, by and with the advice, consent and licence of his Witena gemót or Parliament. It is desirable to consider the various details connected with this subject, in succession, and to illustrate them by examples from Anglosaxon authorities.

Although under a Christian dispensation the king could no longer be considered as appertaining to a family exclusively divine, yet the old national tradition still aided in securing to him the highest personal position in the commonwealth. He had a wergyld indeed, but it far exceeded that of any other class: nor was it in this alone that his paramount dignity was recognized, but in the comparative amount of the fines levied for offences against himself, his dependents or his property. And as the principle of all Teutonic law is, that the 33amount of bót or compensation shall vary directly with the dignity of the party leased, the high tariff appointed for royalty is evidence that the king really stood at the summit of the social order, and was the first in rank and honour, whatever he may have been in power. This is equally apparent in the earliest law, that of Æðelberht, as in Eádweard the Confessor’s, the latest. Thus, if he called his Leóde, fideles or thanes, to him, and they were injured on the way, a compensation double the ordinary amount could be exacted, and in addition a fine of fifty shillings to the king^[32]. And so likewise, if he honoured a subject by drinking at his house, all offences, then and there committed, were punishable by a double fine^[33]. Theft from him bore a ninefold, from a ceorl or freeman only a threefold, compensation^[34]. His mundbyrd or protection was valued at fifty shillings; that of an eorl and ceorl at twelve and six respectively^[35]: this applied to the cases where a man slew another in the king’s tún, the eorl’s tún, or the ceorl’s edor^[36]; and to the dishonour of his maiden-serf, which involved a fine of fifty shillings, while the eorl’s female cupbearer was protected only to the amount of twelve, the ceorl’s to that of six shillings^[37]. His messenger or armourer, if by chance they were guilty of manslaughter, could only be sued for a mitigated wergyld, by 34which they, though probably unfree, were placed upon a footing of equality with the freeman^[38]. His word, like that of a bishop, was to be incontrovertible, that is, no oath could be tendered to rebut it^[39]. He that fought in the king’s hall, if taken in the act, was liable to the punishment of death, or such doom as the king should decree^[40]: the king’s burhbryce, or violence done to his dwelling, was valued at 120 shillings, an archbishop’s at 90, a bishop’s or ealdorman’s at 60, a twelfhynde man’s at 30, a syxhynde’s at 15, but a ceorl’s or freeman’s only at 5; and these sums were to be doubled if the militia was on foot^[41]. His borhbryce, or breach of surety, and his mundbyrd or protection were raised by Ælfred to five pounds, while the archbishop’s was valued at three, the bishop’s or ealdorman’s at two pounds^[42]. He could give sanctuary to offenders for nine days^[43], and peculiar privileges of the same kind were extended to those monasteries which were subject to his farm or pastus^[44]. His geneát or comrade, if of the noble class, could swear for sixty hides of land^[45]. His horsewealh, the Briton employed in his stables, was placed on an equal footing with the freeman, at a 35wergyld of 200 shillings^[46]; and even his godson had a particular protection^[47]. Lastly, high-treason, by compassing the king’s death, harbouring of exiles, or of the king’s rebellious dependents, was made liable to the punishment of death^[48].

The political position of the king, at the head of the state, was secured by an oath of allegiance taken to him, by all subjects of the age of twelve years^[49], 36the ealdormen in the shires, the geréfan in the various districts or towns, summoned his witan and 37the legal period of majority among the Germans, for public purposes. In this capacity he appointed 38named the members of their body^[50]. In this capacity he was empowered to inflict fines upon the public officers, and even private individuals, for such neglect of duty as endangered the public interests: these fines were paid under the title of the king’s oferhýrnes, literally his disobedience: thus, if a man when summoned refuse to attend the gemót; if a geréfa refuse to do justice, when called upon, or to put the law in execution against offenders^[51], and in other similar cases where the whole framework of society requires the existence of a central support, having power to hold its scattered elements together, and in their places.

The maintenance of the public peace is the first duty of the king, and he is accordingly empowered to levy fines for all illegal breaches of it, by offences against life, property or honour^[52]: in very grave cases of continued guilt, he is even entrusted 39with the right of banishing and outlawing offenders, whose wealth and family connexions seem to place them beyond the reach of ordinary jurisdictions^[53]. Where the course of private war is to be settled by the legal compensations, it is the king’s peace which is established between the contending parties, the relatives and advocates of the slayer and the slain^[54]. And in accordance with these principles, we find the kings’s peace peculiarly proclaimed upon the great roads which are the highways of commerce and means of internal communication, and the navigable streams by which cities and towns are supplied with the necessary food for their inhabitants^[55]. And hence also he was allowed to proclaim his peace over all the land at certain times and seasons; as, for eight days at his coronation, and the same space of time at Christmas, Easter and Whitsuntide. He might also, either by his hand or writ, give the privileges of his peace to estates which would otherwise not have possessed it, and thus place them upon the same footing of protection as his own private residences^[56]. The great divisions of the country, that is the shires, could only 40be determined by the central power: it is therefore provided that these shall be in the especial right of the king: “Divisiones scirarum regis proprie cum iudicio quatuor chiminorum regalium sunt^[57].” And to the end of maintaining peace, it appears to me that the king must also have been the authority to whom, at least in theory, it was left to settle the boundaries even of private estate; which on the conversion of folcland into bócland, he did, generally by his officers, but sometimes in person^[58].

But the great machinery for keeping peace between man and man, is the establishment of courts of justice, and a system by which each man can have law, by the consent and with the co-operation of his neighbours, without finding it necessary to arm in his own defence. It has been shown in the First Book, that such means did exist in the Mark and Gá courts; and that for nearly all the purposes of society, it is sufficient and advisable that justice should be done within the limits and by the authority 41of the freemen. A centralized system however brings modifications with it, even into the administration of justice. If, as I believe, the original king was a judge, who superinduced the warlike upon his peaceful functions, we can easily see how, with the growth of the monarchy, the judicial authority of the king should become extended. I cannot doubt that, in the historical times of the Anglosaxons, the king was the fountain of justice; by which expression I certainly do not mean that every suit must be commenced in one of the superior courts, or by an original writ, issuing out of the royal chancery^[59], but that the king was looked upon as the authority by whom the judges were supported and upheld, who was to be appealed to, if no justice could be got elsewhere, and who had the power to punish malversation in its administration by his officers.

We may leave the tale of Ælfred’s hanging the unjust judges to the same veracious chapter of history as records his invention of trial by jury: but it is obvious, from the words of his biographer, that he assumed some right to direct them in the exercise of their functions. He there appears not to have waited until complaints were made of their maladministration; but to have adopted the Frankish and Roman custom of dispatching Missi or royal commissioners into the provinces subject to his rule, in order to keep a proper check upon the 42proceedings of the public officers of justice. Asser says,—and I record his words with the highest respect and admiration of Ælfred’s real and great deserts,—that “he investigated with great sagacity the judgments given throughout almost all his region, which had been delivered when he was not present, as to what had been their character, whether they were just, or unjust. And if he detected any injustice in such judgments, he, either in person, or by people in his confidence, mildly enquired why the judges had given such unjust decisions, whether through ignorance, or through malversation of another kind, as fear, or favour, or hope of gain. And then, if the judges admitted that they had so decided, because they knew no better in the premises, he would gently and moderately correct their ignorance and folly, and say: ‘I marvel at your insolence, who, by God’s gift and mine, have taken upon yourselves the ministry and rank of wise men, but have neglected the study and labour of wisdom. Now it is my command that ye either give up at once the administration of those secular powers which ye enjoy, or pay a much more devoted attention to the studies of wisdom.’”

A certain pedantry is obvious enough in all this story, which, taken literally, under the circumstances of the time, is merely childish. Still, as Asser, though he may not entirely represent the facts of this period^[60] in their true Germanic sense, 43does very likely represent some of the king’s private wishes and opinions, this, among other passages, may serve to show why, in spite of his great merits, Ælfred once in his life had not a man to trust to in his realm. Let us look at the matter a little more closely. In the many kingdoms and districts which by conquest or inheritance came under the Westsaxon rule, various customary laws had prevailed^[61]. It is very natural that judgments given in accordance with these customs should often appear inconsistent and discordant to a body of men collected from different parts of the realm. Asser is therefore very probably in the right, when he says: “The nobles and non-nobles alike were frequently at variance in the meetings of the comites and praepositi, [that is, in the Witena gemóts,] so that scarcely any one would admit the decisions of the comites and praepositi [that is, in the shire, hundred and burhmót] to be correct.” But it is also probable that he misstates or overstates the extent of the royal power, when he continues: “But Ælfred, who for his own part knew that some injustice arose thereby, was not very willing to meddle with the decision of this judge or that; although he was compelled thereunto both by force of law and by stipulation^[62].”

For in fact the king was the authority to be resorted to in the last instance; not because he could 44introduce a system of jurisprudence founded upon Roman Decretals or Alaric’s Breviary,—which his favourite advisers would probably have liked much better than his ealdormen, præfects and people,—but because he could lend the aid of the state to enforce the judgments of the several courts, or even compel the courts to give judgment, by reason of the central power which he wielded as king. As long however as the courts themselves were willing to decide causes brought before them, which the people assembled in the gemóts did, under the presidency and direction of the customary officers, the king had no right to interfere: and even to appeal to the king until justice had been actually denied in the proper quarter was an offence under the Saxon law, punishable by fine^[63]. In short, under that law, the people were themselves the judges, and helped the geréfa to find the judgment, be the court what it might be. The king’s authority could give no more than power to execute the sentence. It is remarkable enough that while Asser speaks of the instruction and correction which Ælfred administered to his judges, he does not even insinuate that their decisions were reversed,—a fact perfectly 45intelligible when we bear in mind that these decisions were not those of judges in our sense of the word, and as the Mirror plainly understood them, but of the people in their own courts, finding the judgment according to customary law. It would have been a very different case had the courts been the king’s courts; and in those where the class called king’s thanes stood to right either before the king himself, or the king’s geréfa, it is possible that Ælfred may have interfered. This he had full right to do, inasmuch as these thanes were exclusively his own sócmen, and must take such law as he chose to give them^[64]. Indeed the words of Asser seem reconcileable with the general state of the law in Ælfred’s time only on the supposition that he refers to these royal courts or þeningmanna gemót; for the king could never have been expected to be present at every shire- or hundred-mót, and yet Asser says he diligently investigated such judgments as were given when he was not present, almost all over his region. This only becomes probable when confined to the administration of justice in the several counties in his own royal courts, and by his own royal reeves, in whose method of proceeding he was at liberty to introduce much more extensive alterations at pleasure, than he could have done in the customary law of the shires or other districts.

If however justice was entirely denied in the shire or hundred, then, iure imperii, the king had 46the power of interfering: and as it seems clear that such a case could only arise from the influence of some great officer being exerted to prevent the due course of law, it follows that the only remedy would lie in the king’s power to repress him; either by removing him from his office, if one derived from the crown, or iure belli, putting him down as a nuisance to the realm^[65].

In the later times of the Anglosaxon monarchy, a more immediate interference of the king in the administration of justice is discernible. It consists in what might be called the commendation of suits to the notice of the proper courts: and this, which was done by means of a writ or insigel, probably at first took place only in the case where a sócman of the king was impleaded in the shiremoot touching property subject to its jurisdiction, in fact where one party was a free landowner, the other in the king’s service or sócn; where of course the first would not stand to right in the royal courts, but before his peers in the shire or hundred^[66]. There is 47no mention in the laws of the Insigel or Breve^[67], but the charters give some evidence of what has 48been averred. In a very important record of the time of ÆðelrǽdÆðelrǽd (990-995) these words occur^[68]:— “This writing showeth how Wynflǽd led her witness at Wulfamere before King Æðelrǽd; now that was Sigeríc the archbishop, and Ordbyrht the bishop, and Ælfríc the ealdorman, and Ælfðrýð the king’s mother: and they all bore witness that Ælfríc gave Wynflǽd the land at Hacceburnan, and at Brádan-felda in exchange for the land at Deccet. Then at once the king sent by the archbishop and them that bore witness with him, to Leófwine, and informed him of this. But he would consent to nothing, but that the matter should be brought before the shiremoot. And this was done. Then 49the king sent by Ælfhere the abbot, his insigel to the gemót at Cwichelmeshlǽw, and greeted all the Witan who were there assembled,—that is, Æðelsige the bishop, and Æscwig the bishop, and Ælfríc the abbot, and all the shire, and bade them arbitrate between Leófwine and Wynflǽd, as to them should seem most just^[69].”

There can be no mistake about the fact; but it does not amount to a proof that the cause could not have been settled without this formality: both parties to it were of the highest rank; but if the king’s arbitration were refused, the title to the land at Bradfield could legally be tried only in the county of Berkshire in which it lay. Something similar may have been intended by the notice which occurs in the record of another shiregemót (held about 1038 at Ægelnóðes stán in Herefordshire) where it is said that Tófig Prúda came thither on the kings errand^[70].

PARDON.—When judgment was pronounced, it appears that in certain cases, at least, the king possessed the power to stay execution and pardon the offender,—an exertion of the royal prerogative which one feels pleasure in thus referring to so 50ancient a period. The necessary evidence is supplied in many passages of the Laws^[71].

ESCHEAT AND FORFEITURE.—As the royal power became consolidated, and the great struggle between centralization and local independence assumed the new form of offences against the state, the nature of punishments became somewhat changed. The old pecuniary fines were found insufficient to repress disorder, and forfeiture to the king was resorted to, as a measure of increased severity. The laws proclaim this in the case of various breaches of the public peace: in treason Ælfred’s witan decreed not only the punishment of death, but also confiscation of all the possessions^[72]: in addition to the capital penalty which was incurred by fighting in the king’s house, forfeiture of all the chattels was decreed by Ini^[73]. If a lord maintained and abetted a notorious thief, he was to forfeit all he had^[74]. And if he neglected the fines provided, and would break the public peace either by thieving or supporting thieves, it was provided that the public authorities should ride to him, that is make war upon him, and despoil him of all he 51had, whereof half was to go to the king, half to the persons who took part in the expedition^[75]. But the charters supply numerous instances of forfeiture in consequence of crime, where the bóclands as well as the chattels are seized into the king’s hand; though in the case of folcland it is possible that the king could not claim the forfeiture without a positive grant of the witan. About 900, Helmstán having been guilty of theft, Eánwulf, the king’s geréfa at Tisbury seized all his chattels to the king’s hand^[76]: he held only lǽnland, and that could not be forfeited by him; but the words made use of show, that had it been his own bócland, it would not have escaped. We have an instance of a thane forfeiting lands to the king for adultery^[77], although he only held them on lease from the bishop of Winchester; and in like manner, a lady was deprived of her estate for incontinence^[78]. In 966 the bishop of Rochester having obtained judgment and damages against a lady, for forcible entry upon his lands (reáflác), the sheriff of Kent seized her manors of 52Fawkham and Bromley; all her possessions being forfeited to the king^[79]: lastly in various instances of theft, treason, and maintenance of ill-doers, we learn that their lands were forfeited to the king^[80].

53In a case of intestacy, where there were no legal heirs, the king was allowed to enter upon the lands of Burghard, probably because he had been a royal geréfa^[81]. And in the ninth century, Wulfhere, an ealdorman, having deserted his duchy, his country and his lord, without license, his lands were adjudged as forfeit to the king^[82]. It would seem however that the mere neglect to cultivate or inhabit the land involved its confiscation to the king’s hand^[83], which may have been confined to folcland.

FINES.—It is hardly necessary to enter into any 54great detail respecting the fines which were imposed for various offences against the state, and which were levied by the public officers to the king’s use. The laws abound with examples: it may in general be concluded that the proceeds were nearly absorbed by the cost of collection, and that little remained to the king when the portions of the ealdorman and geréfa had been deducted. But still these fines require a particular notice, because they are especially enumerated by Cnut among the rights of his crown. He says:—“These are the rights which the king enjoys over all men in Wessex: that is, Mundbryce, and Hámsócne, Foresteal, Flýmena fyrmð, and Fyrdwíte, unless he will more amply honour any one, and concede to him this worship^[84].” In Mercia, he declares himself entitled to the same rights^[85], and also by the Danish law, that is in Northumberland and Eastanglia,—with the addition of Fihtwíte, and the fine for harbouring persons out of the Fríð or public peace^[86]. These evidently belong to him in his character of conservator of that peace: Mundbryce is breach of his own protection: Hámsócn is an aggravated assault upon a private dwelling: Foresteal here, the maintenance of criminals and interference to prevent the course of justice: Flýmena fyrmð, the comforting and supporting of outlaws or fugitives: Fyrdwíte, the penalty for neglecting to attend, or for deserting, the armed levy when 55duly proclaimed: Fihtwíte is the penalty for making private war. These regalia he could grant to a subject if such were his pleasure. But they are far from exhausting the catalogue of his rights: he possessed many others, which were either honourable or profitable, and were by him alienated in favour of his lay or clerical favourites.

TREASURE TROVE.—The first of these is Treasure-trove, which was, in all probability, of considerable importance and value: it is designated in Anglosaxon charters by the words “ealle hordas búfan eorðan and binnan eorðan,” and frequently occurs in the grants to monastic houses. In very early and heathen periods various causes combined to render the burial of treasure common. It was a point of honour to carry as much wealth with one from this world to the next as possible; and it was a recognized duty of the comites and household of a chief to sacrifice at his funeral, whatever valuable chattels they might have gained in his service. We may infer from Beówulf^[87] that a portion at least of the treasure he gained by his fatal combat with the firedrake was to accompany him in the tomb. Some of it was to be burnt with his body, but some, according to the practice of the pagan North, to be buried in the mound raised over his ashes^[88].

Hí on beorg dydon beág ⁊ beorht siglu, . . . . . . . . . . . . forléton eorla gestreón eorðan healdan, gold on greóte, ðǽr hit nú gen lífað eldum swá unnýt swá hit ǽror wæs. They put into the mound rings and bright gems, . . . . . . . . . . . . they let earth hold the gains of noble men, gold in the dust, where it doth yet remain useless to men even as before it was^[89].

56When we consider the truly extraordinary number of mounds or heathen burial-places which are mentioned in the boundaries of Saxon charters, we cannot doubt that large quantities of the precious metals were thus committed to the earth. To this superstitious cause others of a more practical nature were added. In all countries where from want of commerce and convenient internal communication, or from general insecurity, there is no profitable investment for capital, hoarding is largely resorted to by those who may chance to become possessed of articles of value: we need go no further than Ireland or France for an example, where one of the most striking signs of the prevalent barbarism, is the concealment of specie and plate, often underground^[90]. And in cases of sudden invasion, especially by enemies who had not the habit of sparing religious houses, the earth may have been resorted to as the safest depository of treasure 57which it was impossible to transport^[91]. William of Malmesbury attributes to the fears of the Britons the accumulations which he says were frequently discovered in his own day^[92], and there can be little doubt that this even among the Saxons tended to increase the quantity of gold and silver withdrawn from general use. It may have been partly the conviction of the mischief resulting to society from this habit,—by which gold was made “eldum swá unnýt swá hit ǽror wæs,”—that caused the very frequent and strong expression of blame which we find in Anglosaxon works applied to those who bury treasure, and apparently also to treasure-hunters. It may be that it was thought impious to violate even the heathen sanctuary of the dead; at all events, the popular belief was encouraged that buried treasure was guarded by spells, watched by dragons^[93], and loaded with a curse which would cleave for ever to the discoverer: hidden gold is in 58fact always represented as heathen gold, which, we may readily suppose, could only be purified from its mischievous qualities by passing through the hands of the universal purifiers in such cases, the clergy. Strictly however the king was the proper owner of all treasure-trove, and where the lord of a manor obtained the right to appropriate it to himself, it could only be by grant from the representative of the whole state^[94]. Probably the sovereigns were not quite so superstitious as the bulk of their subjects, and certainly they were much better able to defend their own rights than the simple landowners in the rural districts. Still in a very great number of cases they granted away their privilege; probably finding it easier and more profitable to give it up to those who would have used it, without a grant, than to undergo the trouble of detecting and punishing them for taking it unpermitted into their own hands.

PASTUS or CONVIVIUM, Cyninges feorm.—One of the royal duties was to make, in person or by deputy, periodical journeys through the country, progresses, in the course of which the king visited different districts, proclaimed his peace, confirmed 59the rights and privileges of the freemen or free communities, and heard complaints against the officers of the executive, if such had arisen during the exercise of their functions. This, which on its first occurrence immediately after his election was known in Germany by the name of the Einritt ins land, or Landbereisung^[95], was probably connected with the principle of the king’s being the proper guardian of the boundaries: and in the period when the people had lost the power of electing their king at a general meeting, it may have served the purpose of giving them an opportunity of becoming acquainted with the person of their ruler. It is difficult to say when the system of progresses entirely ceased; but there can be no doubt that it subsisted in one form or another till a very late period in England. Under the Anglosaxon law it was by no means a matter of amusement or caprice, but of positive duty, on the part of the king; and Royalty in eyre was a necessary condition of a state of society which would have rejected as a ludicrous tyranny the pretension of any one city to be the central deposit of all the powers and machinery of government. The kings of the Merwingian race in France, who probably retained something of an old priestly character, made these circuits in the celebrated chariot drawn by oxen, which later and ill-informed writers have imagined was a sign of their degradation, instead of their dignity^[96]. Of this particular part of the ceremony no trace remains 60in England, and it is probable that as occasion served, the king either rode on horseback, circumnavigated, or was towed or rowed along the navigable rivers^[97]. On these occasions particularly, he had a right to claim harbour and refection for himself and a certain number of his suite in various places, principally religious houses. These claims, which answer in many respects to the procuratio of the ecclesiastical law, were gradually extended so as to include the royal commissioners or Missi, and in many cases became a fixed charge upon the lands, whether the king actually visited them or not^[98]. 61Very many of the charters granted to monasteries record the exemption from them, purchased at a heavy price by prelates, from his avarice or piety^[99]. And as the king himself gradually ceased to undertake these distant and fatiguing expeditions, and entrusted to his special messengers the task of seeing and hearing for him, so they in time established a claim to harbourage and reception in the same places. This was extended to all public officers going on the king’s affairs, called Angelcynnes men, Fæsting men, Rǽde fasting, and the like: to all messengers dispatched on the public service from one kingdom to another, while there were several kingdoms; and very probably to those who carried communications from the ealdormen to the king, when one rule comprehended all the several districts. And not only for those who travelled on important affairs of state, and who were very often persons of high birth and distinguished station, but even for certain servants of the royal household were these claims enforced. The huntsmen, stable-keepers and falconers of the court could demand bed and board in the monasteries, where they were often unwelcome guests enough: and this royal right, no doubt frequently used by the ealdorman or sheriff as an engine of oppression, was also bought off at very high prices.

PALFREYS.—Somewhat allied to this was the 62king’s right to claim the service of horses or palfreys, for the carriage of effects from one royal vill to another, or for the furtherance of his messengers or the public servants^[100]. This, which in Hungary still subsists under the name of Vorspann, was a heavy burthen, as it tended to withdraw horses from agricultural labour, at the moment when they were most wanted; and it is to be feared that they were, on this pretext, only too often taken from the harvesting of the bishop or abbot and his tenants, to secure that of the ealdorman. This therefore is frequently compounded for, at a dear rate, under the expression of freedom a parafrithis or paraveredis^[101].

63VIGILIA.—Another right which the king claimed was that of having proper watch set over him when he came into a district. This, called Vigilia and Custodia in the Latin authorities, is the Heáfodweard, or Headward of the Saxons. It extended also to the guard kept for him on his hunting excursions^[102]; and coupled with it was his claim to the assistance of a certain number of men in the hunt itself, either as beaters or managers of the nets in which deer were taken^[103].

Sǽweard or coast-guard was also a royal right, performed by the tenants of those landowners whose estates lay contiguous to the sea. The miserable condition to which England was frequently reduced, by the systematic incursions of Scandinavian invaders, rendered this a very important duty, even in spite of the efforts of successive kings who early comprehended the destinies of this nation, and entrusted her defence to maritime armaments. It seems probable that various ports on the coast of Kent and Norfolk may have been particularly charged with this burthen, and that the butsecarlas or shipmasters were held bound to supply craft on emergencies, or even for a regular system of 64patrolling. In this may have lain the foundation of the privileges enjoyed by the Cinque Ports, and similar coast towns, even before the Norman conquest.

ÆDIFICATIO.—It was further a royal right to claim the aid even of the freemen towards building and fencing the residence or fortress of the king: a certain amount of personal labour was thus demanded of them, in analogy with the trinoda necessitas from which no estate could possibly be relieved. This kind of corvée was no doubt performed by tenants whom the landowners settled on their estates, but really was due from the landowners themselves, except where their estates of bócland had been expressly freed from the royal burthens. Where the royal vill was also a district fortification, not even this general exception relieved the bóclands; fortifications being especially reserved in every charter, as well as building and repair of bridges.

WRECK.—Doubts have been started upon the subject of wreck, which do not appear well founded: it is true that circumstances of suspicion attach to the documents upon which the arguments pro and con were based in the time of Selden; but we are now in possession of further evidence, of a nature to remove all difficulty. I have no hesitation in including Wreck, both jetsam and flotsam, among the Regalia, which were granted not only to ecclesiastical corporations, but even to private landowners. 65The History of Ramsey^[104] states that Eádweard the Confessor, whereby he might show a profitable love to the place, bestowed upon it Ringstede^[105] with the adjacent liberty, and all that the sea cast up, which is called Wreck. We have yet the charter by which this grant is supposed to have been made^[106], and it is very explicit upon the subject. After conveying lands and other possessions in Huntingdonshire, he proceeds to give several places, tenements or rents, on the coast of Norfolk and the Wash, at Wells, and Branchester, etc. In the last-named place, he adds, “cum omni maris proiectu, quod nos anglicè shipwrec appellamus.” He further adds, “de meo iure quod mihi soli competebat, absque ullius reclamatione vel contradictione ista addidi: inprimis Ringested, cum omnibus ad se pertinentibus, et cum omni maris eiectu, quod shipwrec appellamus,” etc. Now, although the authenticity of this charter, in its present form may be open to question, this fact does not of itself justify us in at once concluding against the privilege claimed under it. On the other hand the recognized right of the king throughout the Norman times, and the total absence of any opposition to its exercise, are primâ facie evidence of its having resided in the crown before the Conquest^[107]. 66Naufragium and Algarum maris are distinctly stated to be rights of the crown, in the laws of Henry the First^[108], and we can give examples from other Saxon charters whose genuineness is beyond dispute. The Saxon Chronicle under the date 1029 records a grant made by Cnut to Christchurch, Canterbury, of the haven of Sandwich. The passage is defective, but enough of it remains to prove that it refers to an original document, of which very early copies are still in our possession^[109]. In this he says:—

“Concedo eidem aecclesiae ad victum monachorum portum de Sanduuíc et omnes exitus eiusdem aquae, ab utraque parte fluminis cuiuscumque terra sit, a Pipernæsse usque ad Mearcesfleóte, ita ut natante nave in flumine, cum plenum fuerit, quam longius de navi potest securis parvula quam Angli vocant Tapereax super terram proici, ministri aecclesiae Christi rectitudines accipiant, ... Si quid autem in magno mari extra portum, quantum mare plus se retraxerit, et adhuc statura unius hominis tenentis lignum quod Angli nominant spreot, et tendentis ante se quantum potest, monachorum est. Quicquid etiam ex hac parte medietatis maris inventum et delatum ad Sanduuíc fuerit, sive sit vestimentum, sive rete, arma, ferrum, aurum, argentum, medietas monachorum erit, alia pars remanebit inventoribus.”

These words are quite wide enough to carry wreck, although this be not distinctly stated by name. But Eádweard the Confessor furnishes us 67with 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.”

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 68Witena 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 69should 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.

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 70of 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 71granted 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].

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 72same 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].

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.

73MARKET.—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].

In 904 Eádweard gave a market in Taunton to the bishop of Winchester, with the toll therefrom 74arising, 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 75be able and willing to perform the duties which it implied.

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 76grant 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.

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 77retaining their property^[143]. These examples, although not very numerous, are sufficient to show that the 78Anglosaxon 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].

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 79was 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.

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 80officer, 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.

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 81look 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.

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 82as 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 83of 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.

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 84however 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.

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 85common, 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.

In 845, Æðelwulf gave pasture to Badonoð for his cattle with the king’s beasts, apparently in the 86pastures 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 87appurtenant 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 88the 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].

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 89the 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 90to 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].

91BRIDGE.—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].

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 92mediæval 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 93the 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 94bound, not even excepting the demesne lands of the king himself or of the ecclesiastical corporations.

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.

PORTS.—Ports and Havens were, however, essentially royalties, and, as we have seen, could be granted to religious houses. They were naturally in 95the 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 96by the king and those to whom he might think fit to grant it.

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. 97And 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].”

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 98Eádwine 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.

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 99was 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.”

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

The estate of Ðeódrǽd bishop of London and 100Elmham, 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].

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].

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].

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].

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].

101Æðelríc, in 997, paid two horses, one sword and belt, two shields, two spears, and sixty marks of gold^[190].

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].

Ælfhelm paid four horses, two equipped, four shields, four spears, two swords, and one hundred mancuses of gold^[192].

Wulfsige paid two horses, one helmet, one coat-of-mail, one sword, one spear twined with gold^[193].

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 102left 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 103bravely fighting in the field before the presence of his lord.

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.

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