Chapter XII: ARRINGTON. A vill of 4 hides (8)

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 8_s._ 4_d._ 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.'

[Sidenote: 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.

[Sidenote: 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 the Leges 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.

FOOTNOTES:

[934] Adams, The Anglo-Saxon Courts of Law (Essays in Anglo-Saxon
Law, p. 1). Hallam, Middle Ages (ed. 1837), vol. ii. p. 416,
says that of the right of territorial jurisdiction 'we meet
frequent instances in the laws and records of the
Anglo-Saxons, though not in those of early date.' The one
charter older than Edward the Confessor that he cites is one
of the Croyland forgeries. Kemble's opinion seems to have
fluctuated; Saxons, i. 177 note, ii. 397, Cod. Dipl. i.
xliv-xlvii. K. Maurer, Krit. Ueberschau, ii. 57, thinks that
the existence of the private court is proved for Cnut's
reign, but not for any earlier time. Dr Stubbs, Const. Hist.
i. 119, seems to doubt whether it can be traced far beyond
the days of Cnut. Zinkeisen, Die Anfänge der
Lehngerichtsbarkeit in England (1893, a Berlin doctoral
dissertation), criticizes Mr Adams's theory.

[935] Essays, pp. 43-4.

[936] See above, p. 84.

[937] K. 853 (iv. 208); E. 343.

[938] The clearest instance is in the Waltham charter, K. 813 (iv.
154), but some details of this are not beyond suspicion. See
also the writs for Westminster, K. 828 (iv. 191), 857 (iv.
213); Ordn. Facs. vol. ii. pl. 9.

[939] Charter for St. Edmund's, K. 1346 (vi. 205). See the account
of Bury St. Edmunds in D. B. ii. 372: 'et quaudo in hundreto
solvitur ad geltum 1 lib. tunc inde exeunt 60 den. ad victum
monachorum.'

[940] First printed from a copy in the MacDurnan Gospels by J. O.
Westwood in Palaeographia Sacra, with a facsimile, plate 11.
Accepted by Kemble and printed by him in Archaeological
Journal, xiv. 61; Earle, 232; Freeman, Norman Conquest, ii.
52.

[941] See the writ for St. Paul's, K. 1319 (vi. 183). Mr Adams (p.
44) stigmatizes this as an evident forgery; but the reasons
for this severe judgment are not apparent. See also K. 1321
(vi. 190), and the Latin writ of Harthacnut K. 1330 (vi. 192),
which may have a genuine basis.

[942] Cnut, II. 12 (Schmid, p. 276).

[943] Thus if a statute requires written and signed evidence of an
agreement, a letter in which the writer says, 'True, I made
such and such an agreement, but I am not going to keep it,'
may be evidence enough; see _Bailey_ v. _Sweeting_, 9 C. B. N.
S. 843.

[944] Brunner, Carta und Notitia (Commentationes in honorem T.
Mommsen); Brunner, Zur Rechtsgeschichte der Röm. u. Germ.
Urkunde.

[945] Both the Angevin charter and the Angevin letters patent are in
what we call 'writ-form.' The main formal difference is that
the charter professes to be witnessed by a number of the
king's councillors, while _Teste Meipso_ does for letters
patent. This distinction is coming to the front about the year
1200.

[946] K. 731 (iv. 9); T. 308.

[947] K. 642 (iii. 203); compare D. B. i. 41.

[948] The Conqueror's charter for Exeter reproduced in Ordnance
Facsimiles, vol. ii. is a fine specimen of the solemn charters
referred to above. A considerable number of specimens, genuine
and spurious (for our present purpose a forgery is almost as
valuable as a true charter), will be found in the Monasticon,
e.g. i. 174, Rufus for Rochester; i. 266, Rufus for Bath; ii.
109-111, 126, Henry I. for Abingdon; i. 163, Henry I. for
Rochester; ii. 65-6, Henry I. for Evesham; ii. 267, Henry I.
for Bath; ii. 539, Henry I. for Exeter; iii. 448, Henry I. for
Malvern; vi. (1) 247, Henry I. for Merton; iii. 406, Stephen
for Eye. Nor was this solemn form employed only by kings:--See
Monast. ii. 385-6, Earl Hugh for Chester; iii. 404, Robert
Malet for Eye; v. 121, Hugh de la Val for Pontefract; v. 167,
William of Mortain for Montacute; v. 190, Simon of Senlis for
St. Andrew Northampton; v. 247, Stephen of Boulogne for
Furness; v. 316, Richard Earl of Exeter for Quarr; v. 628,
Ranulf of Chester for Pulton. As to Normandy, see the charters
in the Neustria Pia and the Gallia Christiana. A charter of
Henry II. for Fontenay recites a charter by which the
ancestors of Jordan Tesson founded the abbey with the consent
of Duke William, also a charter of Duke William, 'quae cartae
crucibus sunt signatae secundum antiquam consuetudinem';
Neustria Pia, p. 80; Gallia Christiana, xi. Ap. col. 82. It is
probable that during the Norman reigns the king's cross was
considered more valuable even than the king's seal; Monast.
iv. p. 18, Henry I. says, 'hanc donationem confirmo ego
Henricus rex et astipulatione sanctae crucis et appositione
sigilli mei'; Ibid. ii. 385-6, Earl Hugh confirms a gift 'non
solum sigillo meo sed etiam sigillo Dei omnipotentis, id est,
signo sanctae crucis.' It is not implied in our text that
every specimen of each of the two forms of instrument that we
have mentioned will always display all the characteristics
that have been noticed. There is no reason, for example, why
in a solemn charter the king should not speak in the past
tense of the act of gift, and as a matter of fact he does so
in some of the Anglo-Saxon books, while, on the other hand, an
instrument which begins with a salutation may well have the
words of gift in the present tense (this is by no means
uncommon in Anglo-Norman documents); nor of course is it
necessary that an instrument in writ-form should be
authenticated by a seal instead of a cross. Again, a solemn
charter with crosses and pious recitals may begin with a
salutation. We merely point out that the diplomata of Edward
the Confessor and his Norman successors tend to conform to two
distinct types. As to this matter see the remarks of Hickes,
Dissertatio Epistolaris, p. 77; Hardy, Introduction to Charter
Rolls, xiv., xxxvi.

[949] The curious formula, Schmid, App. XI., already has 'ne sace ne
socne.' This seems to suppose that it is a common thing for a
man to have sake and soke over his land.

[950] R. H. ii. 231.

[951] R. H. ii. 458.

[952] D. B. i. 172 b.

[953] R. H. ii. 283.

[954] Hale, Worcester Register, pp. xxx, 21 b; K. Appendix, 514 (vi.
237); Hickes, Dissertatio Epistolaris, i. 86; at the end of
his dissertation Hickes gives a facsimile of the instrument.

[955] A record of 825 (H. & S. iii. 596-601) mentions a place 'in
provincia Huicciorum' called Oslafeshlau; the editors of the
Councils say 'Oslafeshlau is probably the original name of the
hundred which now, either from some act of St. Oswald or by an
easy corruption, is called Oswaldslaw.' One of Oswald's books
(K. iii. 160) mentions 'Oswald's hlaw' among the boundaries of
Wulfringtune, i.e. Wolverton, a few miles east of Worcester.
It is very likely that the true name of the hundred is
Oswald's hlaw, i.e. Oswald's hill, not Oswald's law, though
the mistake was made at an early time. But the story told by
the charter as to the fusion of three old hundreds is
corroborated by Domesday, and in the thirteenth century one of
the three courts was still held at Wimborntree.

[956] But Dr Stubbs, Const. Hist. i. 118, relies on part of this
charter and it is not like ordinary forger's work. If, as is
highly probable, there has been some 'improvement' of the
charter, such improvement seems to have favoured, not the
church of Worcester as against the king, but the monks as
against the bishop.

[957] 'cum tolle et teame, saca et socne, et infangenetheof, et
proprii iuris debitum transgressionis, et poenam delicti quae
Anglice dicitur ofersæwnesse, et gyltwyte.'

[958] D. B. i. 172 b: 'Ecclesia S. Mariae de Wirecestre habet unum
hundret quod vocatur Oswaldeslau in quo iacent ccc. hidae. De
quibus episcopus ipsius ecclesiae a constitutione antiquorum
temporum habet omnes redditiones socharum et omnes
consuetudines inibi pertinentes ad dominicum victum et regis
servitium et suum, ita ut nullus vicecomes ullam ibi habere
possit querelam, nec in aliquo placito, nec in alia qualibet
causa. Hoc testatur totus comitatus.'

[959] Another example is Edgar's charter for Ely, A.D. 970 K. 563
(iii. 56), which bestows the soke over the two hundreds which
lie within the Isle, five hundreds in Essex, and all other
lands of the monastery. Kemble was inclined to accept the
A.-S. version of the charter. It purports to be obtained by
bishop Æthelwold and, if genuine, is closely connected with
the Oswaldslaw charter; both testify to unusual privileges
obtained by the founders of the new monasticism.

[960] E.g. K. 1298 (vi. 149), 'Dis is seo freolsboc to ðan mynstre
æt Byrtune.'