Chapter II: The Regalia, or Rights of Royalty (1)

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 first sum belonging to the family, the second to the people[28].

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Footnote 27:

The names by which the King is commonly known among most of the
Germanic nations are indicative of his position. From Þeód, the
people, he is called þeóden: from his high birth (cyne nobilis, and
cyn genus, i.e. generosus a genere), he is called Cyning: from Dryht,
the troop of comites or household retainers, he is Dryhten: and as
head of the first household in the land, he is emphatically Hláford:
his consort is seó Hlǽfdige, the Lady. His poetical and mythical names
need not be investigated on this occasion.

Footnote 28:

Be Wergyldum, Norðleóda laga, § 1. Myrcna laga, § 1. Thorpe, i. 186,
190: “Se wer gebirað magum ⁊ seó cynebót ðám leódum.”

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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 the 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 injudiciously 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.

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Footnote 29:

Æðelred about 980, gives the following reasons for a grant made by him
to Abingdon. During the lifetime of Eádgar, this prince had given to
the monastery certain estates belonging to the appanage of the princes
of the blood, “_terras ad regios pertinentes filios_:” these, on
Eádgar’s death and Eádweard’s accession, the Witena gemót very
properly claimed and obtained, handing them over to Æðelred, then
prince royal: “quae statim terrae iuxta decretum et praeceptionem
cunctorum optimatum de praefato sancto coenobio violenter abstractae,
_meaeqae ditioni, hisdem praecipientibus, sunt subactae_: quam rem si
iuste aut iniuste fecerint, ipsi sciant.” All the crown lands thus
fell to Æðelred, he having no children at his brother Eádweard’s
death: “et _regalium_ simul, et _ad regios filios pertinentium,
terrarum_ suscepi dominium.” Having now scruples of conscience about
interfering with his father’s charitable intentions, he gave the
monastery an equivalent out of his own private property,—“_ex mea
propria haereditate_.” Cod. Dipl. No. 3312.

Footnote 30:

Germ. xv.

Footnote 31:

See Domesday, _passim_. Cnut commanded to put an end to these
compulsory demands: no man was to be compelled to give his reeves
anything towards the king’s feormfultum, against his will, under a
heavy penalty, but the king was to be provided for out of the royal
property. Cnut, § 70. Thorpe, i. 412. If Phillips is right in
supposing the Fóster of Ini’s law (§70. Thorpe, i. 146) to be this
burthen, heavy charges lay upon the land in the eighth century.
Angels. Recht. p. 87. But I doubt the application in this particular
case. See also, Anon. Vita Hludov. Imp. § 7; Pertz, ii. 610, 611;
Annal. Laurish. 753; Ann. Bertin. 837; Pertz, i. 116, 430, and
Hincmar. Inst. Carol. ibid. ii. 214. _Aids_ and _benevolences_ have
acquired a notoriety in English history which will not be forgotten
while England survives: but the prerogative lawyers had ancient
prescription to back them. On the whole subject see Grimm, Rechtsalt.
p. 245. Eichhorn, § 171. vol. i. p. 730 _seq._

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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 amount 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 which 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 wergyld 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].

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Footnote 32:

Æðelb. i. § 2. This enactment has been supposed to be the foundation
of one of those privileges of Parliament, which we have seen solemnly
discussed on a late occasion.

Footnote 33:

Æðelb. i. § 3.

Footnote 34:

Ibid. § 4, 9.

Footnote 35:

Ibid. § 8, 15.

Footnote 36:

Ibid. § 5, 13.

Footnote 37:

Ibid. § 10, 14, 16.

Footnote 38:

Æðelb. § 7, 21.

Footnote 39:

Wihtr. § 16. The position and privileges of the clergy at this very
early period, and especially in Kent, were very exalted. Æðelberht
places the king only on the footing of a priest, in respect to his
stolen property. Æðelb. § 1. But this grave error was remedied as
society became better consolidated, although to the very last the
clergy were left in possession of far too much secular power.

Footnote 40:

Ini, § 6. Ælf. § 7.

Footnote 41:

Ini, § 45. Ælfr. § 40.

Footnote 42:

Ælfr. § 3. Cnut, ii. § 59.

Footnote 43:

Æðelst. iii. § 6; iv. § 4; v. § 4.

Footnote 44:

Ælfr. § 2.

Footnote 45:

Ini, § 19.

Footnote 46:

Ini, § 33.

Footnote 47:

Ibid. § 76.

Footnote 48:

Ælf. § 4. Cnut, ii. § 58.

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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], the ealdormen in the shires, the geréfan in the various districts or towns, summoned his witan and the legal period of majority among the Germans, for public purposes. In this capacity he appointed named 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.

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Footnote 49:

“Imprimis ut omnes iurent in nomine Domini, pro quo sanctum illud
sanctum est, fidelitatem Eádmundo regi, sicut homo debet esse fidelis
domino suo, sine omni controversia et seditione, in manifesto, in
occulto, in amando quod amabit, nolendo quod nolet.” Eádm. iii. § 1.
Thorpe, i. 252. “And it is our will, that every man above twelve years
of age, make oath that he will neither be a thief, nor cognizant of
theft.” Cnut, ii. § 21. Thorpe, i. 388. “Omnis enim duodecim annos
habens et ultra, in alicuius frithborgo esse debet et in decenna;
sacramentumque regi et hæredibus suis facere fidelitatis, et quod nec
latro erit, nec latrocinio consentiet.” Fleta, lib. i. cap. 27. § 4.
This was the basis upon which the associations of freemen among the
Anglosaxons entered into their alliances, offensive and defensive,
with their kings. Charlemagne caused an oath to be taken to himself as
emperor, by all his subjects above twelve years old. Dönniges, p. 3.
The Hyldáð or oath of fealty is given in the Anc. Laws, i. 178. The
dependent engages to love all the lord loves, and shun all that he
shuns: these are the technical terms throughout Europe. The king
himself took a corresponding oath to his people. We still have the
words of that which was administered by Dúnstán to Æðelred at
Kingston.

“Ðis gewrit is gewriten, stæf be “This writing is copied, letter for stæfe, be ðám gewrite ðe Dúnstán letter, from the writing which arcebisceop sealde úrum hláforde æt archbishop Dúnstán delivered to our Cingestúne á on dæg ðá hine man lord at Kingston on the very day hálgode tó cinge, and forbeád him when he was consecrated king, and ælc wedd tó syllanne bútan ðysan he forbad him to give any other wedde, ðe he úp on Cristes weofod pledge but this pledge, which he léde, swá se bisceop him dihte. ‘On laid upon Christ’s altar, as the ðǽre hálgan Þrynnesse naman, Ic bishop instructed him. ‘In the name þreo þing beháte cristenum folce of the Holy Trinity, three things and me underþeóddum: án ærest, ðæt do I promise to this Christian ic Godes cyrice and eall cristen people, my subjects: first, that I folc mínra gewealda sóðe sibbe will hold God’s church and all the healde: óðer is, ðæt ic reáflác and Chistian people of my realm in ealle unrihte þing eallum hádum true peace: second, that I will forbeóde: þridde, þæt ic beháte and forbid all rapine and injustice to bebeóde on eallum dómum riht and men of all conditions: third, that mildheortnisse, ðæt ús eallum I promise and enjoin justice and ærfaest and mildheort God þurh ðæt mercy in all judgements, whereby his écean mittse forgife, se lifað the just and merciful God may give and rixað.’”—Reliq. Ant. ii. 194. us all his eternal favour, who liveth and reigneth!’”

It is worth while to compare with this the coronation oath of king
Eirek Magnusson, of Norway, which we learn from the following valuable
document of July 25th, 1280.

“Pateat universis tam clericis quam laicis per regnum Norwegie
constitutis presens scriptum visuris vel audituris quod anno domini
m^o. cc^o. lxxx^o. in festo sancti Suithuni Bergio in ecclesia
cathedrali magnificus princeps et nobilis dominus . Eiricus dei gracia
rex Norwegie illustris filius domini Magni quondam regis coram
reverendo patre et venerabili domino Johanne secundo divina
miseracione . Nidrosiensi archiepiscopo qui eum coronando in regem
coronam capiti eius inposuit . ipsiusque suffraganeis et multis
clericis et laicis qui presentes fuerant . tactis ewangeliis
iuramentum prestitit in hunc modum . Profiteor et promitto coram deo
et sanctis eius a modo pacem et iusticiam ecclesie dei . populoque
mihi subiecto observare . pontificibus et clero . prout teneor .
condignum honorem exhibere . secundum discrecionem mihi a deo datam .
atque ea que a regibus ecclesiis collata ac reddita sunt . sicut
compositum est inter ecclesiam et regnum . inviolabiliter conservare .
malasque leges et consuetudines perversas precipue contra
ecclesiasticam libertatem facientes abolere et bonas condere prout de
concilio fidelium nostrorum melius invenire poterimus . þæt jatta ek
gudi ok hans helgum mannum . at ek skal vardvæita frid ok rettyndi
hæilagre kirkiu ok þui folki sem ek er overðugr ivir skipaðr .
Byscopum ok lærdom mannum skal ek væita vidrkvæmelega soemd efter þui
sem ek er skyldugr . ok gud giæfr mer skynsemd til . ok þa luti halda
obrigðilega . sem af konunggum ero kirkiunni gefner . ok aftr fegner
sua sem samþykt er millum kirkiunnar ok rikissens . Rong log ok illar
siðueniur einkanlega þær . sem mote ero hæilagrar kirkiu frælsi af
taka ok betr skipa, eftir þui sem framazt faam ver raad til af varoni
tryggastu mannum . Cum igitur ante coronacionem dicti regis dubitacio
fuerit . de regis iuramento . volens predictus pater ne huiusmodi
dubitacio rediviva foret in posterum precavere. utile quippe etenim
est eam rem cognitam esse que ignorata vel dubia possit occasionem
litigii ministrare . iuramentum seu professionem factam a domino rege
. ad perpetuam memoriam . presentibus literis duxit inserendam . et ad
pleniorem rei evidenciam sigillum suum apposuit una cum sigillis
venerabilium partum . domini Andree Osloensis . Jorundi Holensis .
Erlendi Ferensis . Arnonis Skalotensis . Arnonis Stawangrensis . Nerue
Bergensis . Thorfinni Hamarensis suffraganeorum Nidrosiensis ecclesie
. Actum viii. Kal. Augusti loco et anno supradictis.”—Diplomatarium
Norwegicum, No. 69. p. 62.

It is very uncertain at what time the custom of coronation, and
_unction_, by the hands of the clergy, commenced. The usurpation which
Pipin ventured and Pope Zachary lent himself to, which Charlemagne
repeated and Pope Leo confirmed, may have acted as a valuable
precedent, especially as the power of the King was sufficient to
justify the claim of the Pope. Thirty years later (A.D. 787), the
English bishops put forward the somewhat bold claim to be, with the
_seniores_ populi, electors of the king: “Duodecimo sermone sanximus;
Ut in ordinatione regum nullus permittat pravorum praevalere assensum;
sed legitime reges a sacerdotibus et senioribus populi eligantur, et
non de adulterio vel incoestu procreati; quia sicut nostris temporibus
ad sacerdotium, secundum Canones, adulter pervenire non potest, sic
nec Christus domini esse valet, et rex totius regni, et haeres
patriae, qui ex legitimo non fuerit connubio generatus.” Conc.
Calcuth. Legat. Spelm. p. 296. No doubt from their position in the
Witena gemót, and the authority which they derived from their birth as
well as station, they always played an important part in the elections
of kings, but not quite so leading a part in the eighth century as
they here attempt to claim. The Diplomatarium Norwegicum supplies an
interesting illustration of the above-cited canon, in a dispensation
issued by Pope Innocent IV. (A.D. 1246) to Haakon Haakonson, from the
disqualification of illegitimate birth: “Cum itaque clare memorie
Haquinus, Norwegie rex pater tuus, te, prout accepimus, solutus
susceperit de soluta, nos tuam celsitudinem speciali benevolentia
prosequentes, ut huiusmodi non obstante defectu ad regalis solii
dignitatem et omnes actus legitimos admittaris, nec non quod heredes
tui legitimi tibi in dominio et honore succedant, fratrum nostrorum
communicato consilio, tecum auctoritate apostolica dispensamus.” No.
38, p. 30. This was not however considered a valid ground of objection
among the Anglosaxons, if the personal qualities of the prince were
such as to recommend him. From the words used by William of Malmesbury
we might infer that as late as the time of Æðelstán, the functions of
the bishops at the coronation were confined to anathematizing those
who would not be obedient subjects, but that the nobles performed the
actual coronation: he cites the following lines from an earlier
author, and one apparently contemporaneous with Æðelstán himself:—

“Tunc iuvenis nomen regni clamatur in omen,
Ut fausto patrias titulo moderetur habenas:
Conveniunt proceres et componunt diadema,
Pontifices pariter dant infidis anathema.”
De Gest. ii. § 133.

That Harold crowned himself is an old story; but it is very certain
that whatever he did, was done with the full consent of the Witena
gemót.

Footnote 50:

See hereafter the several chapters Ealdorman, Geréfa and Witena gemót.

Footnote 51:

The principal cases will be found in the following passages of the
Laws: Eádw. § 1. Æðelst. i. § 20, 22, 26; iii. § 7; iv. §1, 7; v. §
11. Eádm. iii. § 2, 6, 7. Eádg. i. § 4; ii. § 7, etc.

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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 with 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 be 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].

Footnote 52:

Hloðh. § 9, 11, 12, 13, 14. Ælf. § 37. Æðelst. i. § 1; iii. § 4; v. §
5.

Footnote 53:

Æðelst. iii. § 3; iv. § 1.

Footnote 54:

Eád. Gúð. § 13. Eádm. ii. § 1, 6, 7.

Footnote 55:

Eád. Conf. § 12. Cross roads and small streams are not in the king’s
peace, but that of the county.

Footnote 56:

This peace was called the King’s Handsell, “cyninges handsealde gríð.”
The extent to which his peace extended around his dwelling, that is,
within the verge of the court, has been noticed in the fourth chapter
of the First Book. The right subsisted throughout the Middle Ages and
yet subsists, though differently motived and measured. The king’s
handsealde gríð was by Æðelred’s law made bótless, that is, had no
settled compensation. Æðelr. iii. § 1.

Footnote 57:

Eádw. Conf. § 13.

Footnote 58:

“Æðelingawudu, Colmanora and Geátescumbe belong to these twenty hides,
which I myself, now rode, now rowed, and widely divided off, for
myself, my predecessors, and those that shall come after me, for an
eternal separation, before God and the world.” Eádred. an. 955. Cod.
Dipl. No. 1171. “Now I greet well my relative Mygod of Wallingford,
and command thee in my stead [on mínre stede] to ride round the land
to the saint’s hand.” Eádw. Conf., Cod. Dipl. No. 862. The force of
the word _berídan_ is very difficult to convey in words, but still
perfectly obvious. Another difficulty arises from the word _stede_,
which is properly masculine, but here given as a feminine. I think it
impossible that it should mean _stéde_, a mare (i. e. on my mare), and
prefer the supposition either that _stede_ had changed its gender, or
that the copy of the charter is an incorrect one.

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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 of 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.

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Footnote 59:

There are cases nevertheless which seem to favour the supposition that
a similar power was ultimately lodged in the king and, at least
occasionally, exercised.

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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 proceedings 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, does 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].”

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Footnote 60:

I may here say once for all, that I see no reason to doubt the
authenticity of Asser’s Annals, or to attribute them to any other
period than the one at which they were professedly composed.

Footnote 61:

Ælfred himself mentions the Kentish, Mercian and Westsaxon laws. The
Danes had another. Peculiarities of the Northangle and Southangle laws
are also noticed.

Footnote 62:

By the contract entered into with his people: but when? when they
first elected him? or when they restored him to his throne?

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For in fact the king was the authority to be resorted to in the last instance; not because he could introduce 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 intelligible 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.

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Footnote 63:

“And let him that applies to the king before he has prayed for justice
as often as it behoveth him [that is, made the legal number of formal
applications to the shiremoot, etc.] pay the same fine as the other
should had he denied him justice.” Æðelst. i. 1. § 3. Thorpe, i. 200.
Eádgar, ii. § 2. Thorpe, i. 266. “And let no one apply to the king,
unless he cannot get justice within his hundred: but let the
hundred-gemót be duly applied to, according to right, under penalty of
the wíte, or fine.” Cnut, ii. § 17. Thorpe, i. 384 _seq._ Similarly
Will. Conq. i. § 43. Thorpe, i. 485. It is impossible to believe that
Ælfred possessed a right which later and much more powerful kings did
not.

Footnote 64:

“And let no one have sócn over a king’s thane save the king himself.”
Æðelr. iii. § 11. Thorpe, i. 296.

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If however justice was entirely denied in the shire or hundred, then, _iure imperii_, the king had the 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].

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Footnote 65:

If the ealdorman connive at theft, or at the escape of a thief, he is
to forfeit his office. Ini, § 36. Thorpe, i. 124. If a geréfa do so,
he shall forfeit all he hath. Æðelst. i. § 3. If he will not put the
law in execution, he shall lose his office. Æðelst. i. 26; v. § 11.
Eádg. ii. § 3. Thorpe, i. 200, 212, 240, 266.

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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 no mention in the laws of the Insigel or Breve[67], but the charters give some evidence of what has been averred. In a very important record of the time of Æðelrǽd (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 the 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].”

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Footnote 66:

There is an instance where the parties to a suit were similarly
circumstanced. The matter was brought into the king’s þeningmanna
gemót in London, and there decided in favour of the plaintiff, a
bishop. But the defendant was not satisfied, and carried the cause to
the shire, who at once claimed jurisdiction and exercised it too,
coming to a decision diametrically opposite to that of the þeningmen
or _ministri regii_. It seems to have been a dirty business on the
part of the bishop of Rochester, and the freemen of Kent so treated
it, in defiance of the King’s Court. Cod. Dipl. No. 1258. The document
is so important, that it appears desirable to give it at full length.
“Thus were the lands at Bromley and Fawkham adjudged to king Eádgár in
London, through the charters of Snodland, which the priests stole from
the bishop of Rochester and secretly sold for money to Ælfric the son
of Æscwyn: and the same Æscwyn, Ælfric’s mother, had previously
granted them thither. Now when the bishop found the books were stolen
he made earnest demand for them. Meanwhile Ælfric died, and he (the
bishop) afterwards sued the widow so long that in the king’s
thanes-court the stolen books of Snodland were adjudged to him, and
damages for the theft, thereto; that was in London, and there were
present Eádgár the king, archbishop Dúnstán, bishop Æðelwold, bishop
Ælfstán and the other Ælfstán, Ælfhere the ealdorman and many of the
king’s witan: then they adjudged the books to the bishop for his
cathedral: so all the widow’s property stood in the king’s hand. Then
would Wulfstán the geréfa seize the property to the king’s hand, both
Bromley and Fawkham; but the widow sought the holy place and the
bishop, and surrendered to the king the charter of Bromley and
Fawkham: and the bishop bought the charters and the land of the king
at Godshill, for fifty mancuses of gold, and a hundred and thirty
pounds, through intercession and interest: afterwards the bishop
permitted the widow the usufruct of the land. During this time the
king died; and then Bryhtríc the widow’s relative began, and compelled
her, so that they took violent possession of the land [brúcon ðára
landa on reáfláce]. And they sought Eádwine the ealdorman, who was
God’s adversary, and the folk, and compelled the bishop to restore the
books on peril of all his property: he was not allowed to enjoy his
rights in any one of the three things which had been given him in
pledge by all the _leódscipe_, neither his plea, his succession, nor
his ownership. This is the witness of the purchase: Eádgár the king,
Dunstan the archbishop, Oswald the archbishop, bishop Æðelwold, bishop
Æðelgar, bishop Æscwig, bishop Ælfstán, the other bishop Ælfstán,
bishop Sideman, Ælfðrýð the king’s mother, Osgar the abbot, Ælfhere
the ealdorman, Wulfstan of Delham, Ælfric of Epsom, and the leading
people [dúgúð folces] of West Kent, where the land and lathe lie.”
Here I take it the þeningmen or _servientes regis_ and the leódscipe
(leudes) are identical and opposed to the _Folc_ who under “God’s
adversary” Eádwine made the bishop disgorge his plunder. We see who
they were; Dunstan and various bishops, ealdorman Ælfhere and several
of the king’s witan. This is the only instance I have been able to
discover of anything approaching to a _curia regis_ apart from the
great Witena gemót. There are, no doubt, several cases where the king
appears to have been applied to in the first instance, by one of the
parties; but in all of them trial subsequently was had before the
shiremoot. It is natural that agreements should have been made by
consent, before the king as arbitrator, and these were probably
frequent among his intimate councillors, friends and relatives: but
they were not trials, nor did they settle the litigation as a
judgement of the courts would have done. Such arbitrements were also
made by the ealdorman, who like the king received presents for his
good offices. The advantage gained was this; both parties were
satisfied, without the danger of trying the suit, which entailed very
heavy penalties on the loser, amounting sometimes to total forfeiture.
The disadvantage was that there was no _ge-endodu spræc_ or finished
plea, and consequently the award was sometimes violated, when either
party thought this could be done with impunity.

Footnote 67:

Excepting a very indefinite expression in the Law of Henry the First,
§ 13.

Footnote 68:

Cod. Dipl. No. 693. Cwichelmeshlǽw, now Cuckamsley or Cuckamslow
Hills, in Berkshire; these run east and west and probably cut off the
north-western portion of the county, forming the watershed from which
the Ock and Lambourn descend on opposite sides. The exact spot of the
gemót was probably near a mound which is now called Scutchamfly
Barrow, and which is very plainly marked in the Ordnance Map, nearly
due north of West Ilsey.

Footnote 69:

The lands are Bradfield, Hagborne and Datchet, in Berks and Bucks.
Wulfamere I am unable to identify. At all events, had the matter been
cognizable in a superior court of the king’s, Leófwine could not have
carried his point of having it brought to trial before the shiremoot
in Berkshire, which he clearly did against the king’s wish.

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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].

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Footnote 70:

Cod. Dipl. No. 641.

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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 ancient a period. The necessary evidence is supplied in many passages of the Laws[71].

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Footnote 71:

“If a man fight or draw weapon in the king’s hall and be taken in the
act, he shall lie at the king’s mercy, to slay or pardon him.” Ælf. §
7. Ini, § 6. Thorpe, i. 66, 106. “The ealdorman who connives at theft
shall forfeit his office, unless the king pardon him.” Ini, § 36.
Thorpe, i. 124. See also Æðelst. v. 1. § 4, 5, Eádm. § 6. Eádg. ii. §
7. Æðelr. iii. § 16; vii. § 9. Thorpe, i. 230, 250, 268, 298, 330.

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 had, 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 Fawkham 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].

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In 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.

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Footnote 72:

Ælf. § 4. Thorpe, i. 62.

Footnote 73:

Ini, § 6. Thorpe, i. 106.

Footnote 74:

Æðelst. i. § 3. Thorpe, i. 200.

Footnote 75:

Æðelst. i. § 20. Thorpe, i. 210; see also § 26. Thorpe, i. 214.
Æðelst. iii. § 3. Thorpe, i. 218; iv. § 1; v. § 1, 5. Eádm. ii. § 1,
6. Eádg. Hund. § 2, 3. Eádg. i. § 4. Æðelr. v. § 28, 29; vi. § 35, 37:
vii. § 9; ix. § 42. Cnut, ii. § 13, 58, 67, 78, 84. Thorpe, i. 220,
228, 230, 248, 250, 258, 264, 310, 312, 324, 330, 350, 382, 408, 410,
420, 422.

Footnote 76:

Cod. Dipl. No. 328. “Eánwulf the reeve ... took all he owned at
Tisbury ... and the chattels were adjudged to the king, because he was
the king’s man: and Ordláf took to his own land, because it was his
lǽn that he sat upon: that he could not forfeit.”

Footnote 77:

Cod. Dipl. Nos. 601, 1090.

Footnote 78:

Cod. Dipl. No. 1295. “Quae portio terrae cuiusdam foeminae fornicaria
praevaricatione mihimet vulgari subacta est traditione.” Æðelred, an.
1002.

Footnote 79:

Cod. Dipl. No. 1258. “Ða stód ðáre wydewan áre on ðæs cynges handa: ðá
wolde Wulfstán se geréfa niman ða áre tó ðæs cynges handa, Brómleáh ⁊
Fealcnahám.”

Footnote 80:

Cod. Dipl. Nos. 579, 1112. “Quo mortuo praedicta mulier Ælfgyfu alio
copulata est marito, Wulfgat vocabulo; qui ambo crimine pessimo iuste
ab omni incusati sunt populo, causa suae machinationis propriae, de
qua modo non est dicendum per singula, propter quam vero machinationem
quae iniuste adquisierunt iuste perdiderunt.” Cod. Dipl. No. 1305. The
exile of Wulfgeat is mentioned by the Chronicle and Florence, an.
1006. Again, “Nam quidam minister Wulfget vulgari relatu nomine
praefatam terram aliquando possederat, sed quia inimicis regis se in
insidiis socium applicavit, et in facinore inficiendo etiam legis
satisfactio ei defecit, ideo haereditatis suberam penitus amisit, et
ex ea praedictus episcopus praescriptam villulam, me concedente,
suscepit.” Cod. Dipl. No. 1310. “Has terrarum portiones Ælfríc
cognomento Puer a quadam vidua Eádfléd appellata violenter abstraxit,
ac deinde cum in ducatu suo contra me et contra omnem gentem meam reus
existeret, et hae quas praenominavi portiones et universae quas
possederat terrarum possessiones meae subactae sunt ditioni, quando ad
synodale conciliabulum ad Cyrneceastre universi optimates mei simul in
unum convenerunt, et eundem Ælfricum maiestatis reum de hac patria
profugum expulerunt, et universa ab illo possessa michi iure
possidenda omnes unanimo consensu decreverunt.” Cod. Dipl. No. 1312.
“Emit quoque praedictus vir Æðelmarus a me, cum triginta libris,
duodecim mansiones de villulis quas matrona quaedam nomine Leoflǽd
suis perdidit ineptiis et amisit.” Cod. Dipl. No. 714. “Hoc denique
rus cuiusdam possessoris Leofricus onomate quondam et etiam nostris
diebus paternae haereditatis hire fuerat, sed ipse impie vivendo, hoc
est rebellando meis militibus in mea expeditione, ac rapinis insuetis
et adulteriis multisque aliis nefariis sceleribus semet ipsum condempn
avit simul et possessiones.” Cod. Dipl. No. 1307. “Erat autem eadem
villa cuidam matronae, nomine Æðelflǽde, derelicta a viro suo, obeunte
illo, quae etiam habebat germanum quendam, vocabulo Leófsinum, quem de
satrapis nomine tuli, ad celsioris dignitatis dignum duxi promovere,
ducem constituendo, scilicet, eum, unde humiliari magis debuerat,
sicut dicitur, ‘Principem te constituerunt, noli extolli,’ et caetera.
Sed ipse hoc oblitus, cernens se in culmine maioris status sub rogatu
famulari sibi pestilentes spiritus promisit, superbiae scilicet et
audaciae, quibus nichilominus ipse se dedidit in tantum, ut
floccipenderet quin offensione multimoda me multoties graviter
offenderet; nam praefectum meum Æficum, quem primatem inter primates
meos taxavi, non cunctatus in propria domo eius eo inscio perimere,
quod nefarium et peregrinum opus est apud christianos et gentiles.
Peracto itaque scelere ab eo, inii consilium cum sapientibus regni mei
petens, ut quid fieri placuisset de illo decernerent; placuitque in
commune nobis eum exulare et extorrem a nobis fieri cum complicibus
suis: statuimus etiam inviolatum foedus inter nos, quod qui
praesumpsisset infringere, exhaereditari se sciret omnibus habitis,
hoc est, ut nemo nostrum aliquid humanitatis vel commoditatis ei
sumministraret. Hanc optionis electionem posthabitam nichili habuit
soror eius Æðelflǽd omnia quae possibilitatis eius erant, et
utilitatis fratris omnibus exercitiis studuit explere, et hac de causa
aliarumque quamplurimarum exhaeredem se fecit omnibus.” Cod. Dipl. No.
719.

The murder of Æfic is mentioned in the Chronicle, an. 1002, where he
is called heáhgeréfa.

Footnote 81:

Cod. Dipl. No. 1035. But not if he had legal heirs. See Cnut, ii. §
71. Thorpe, i. 412. In this case the king could claim only the Heriot,
a custom retained even by the Normans. “Item si liber homo intestatus
decesserit, et subito, dominus suus nihil se intromittet de bonis
suis, nisi tantum de hoc quod ad ipsum pertinuerit, scilicet quod
habeat suum Heriettum.” Fleta, ii. cap. 57, § 10.

Footnote 82:

Cod. Dipl. No. 1078.

Footnote 83:

Hist. Eliens. i. 1. “Sicque postea per destitutionem, regiae sorti,
sive fisco, idem locus additus est.” See also vol. i. p. 302, note 2.

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FINES.—It is hardly necessary to enter into any great 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 duly 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.

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Footnote 84:

Cnut, ii. § 12. Thorpe, i. 382.

Footnote 85:

Cnut, ii. § 14. Thorpe, i. 384.

Footnote 86:

Cnut, ii. § 15. Thorpe, i. 384.

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