A little more light is thrown on the matter by the first rude specimens of a clause that is to become common in after times, the clause of immunity. Already in the seventh century Wulfhere of Mercia, having made a gift of five manses, adds: ‘Let this land remain free to all who have it, from all earthly hardships, known or unknown, except fastness and bridge and the common host[882].’ So in 732 a king of Kent says: ‘And no royal due shall be found in it henceforth, saving such as is common to all church lands in this Kent[883].’ Æthelbald of Mercia says: ‘By my royal power I decree that it be free for ever from all tribute of secular payments, labours and burdens, so that the said land may render service to none but Almighty God and the church[884].’ Yet more instructive, if we may rely upon it, is the foundation charter of Evesham Abbey. Æthelweard has given twelve manses: he then says, ‘I decree that for the future this land be free from all public tribute, purveyance, royal works, military service (ab omni publico vectigali, a victu, ab expeditione, ab opere regio) so that all things in that place which are valuable and useful may serve the church of St. Mary, that is to say, the brethren serving [God] there; save this, that if in the island belonging to the said land there shall chance to be an unusual supply of mast, the king may have pasture for fattening one herd of pigs, but beyond this no pasture shall be set out for any prince or potentate[885].’ Now in the first place, these charters speak as though military service is due from land:—I (says the king) declare this land to be free from the ‘fyrd,’ from the expeditio—or—I declare that it is free from all earthly burdens, except military service and the duty of repairing bridge and burh. We are not saying that there is already military tenure, but we do say that already the ‘fyrd’ is conceived as a burden on land, in so much that the phrase ‘This land is—or is not—to be free of military service’ has a meaning. But after all, land never fights: men fight. Of what men then is the king speaking when he says that the land is, or is not, free from the expeditio? Not of the donees themselves, for they are bishops and monks and serve in no army but God’s. Not of the slaves who are on the land, for they are not ‘fyrd-worthy.’ He is speaking of free men who live on the land; he is declaring that when he has, if so modern a term be suffered, ‘attorned’ them to the church, they will still have to serve in warfare, or he is declaring that they will be free even from this duty to the state in order that the land may be the more absolutely at the service of God and His stewards.
The king’s feorm.
Then military service, along with the duty of repairing bridges and fastnesses, belongs to a genus of dues, of which unfortunately we get but a vague description. There are vectigalia publica, opera regia, onera saecularia, there is tributum, there is victus. How much of the information that we get about these matters from later days we may carry back with us to the earliest period it is difficult to say. Apparently the king, the under-king, even the ealdorman, has a certain right of living at the expense of his subjects, of making a progress through the villages and quartering himself, his courtiers, his huntsmen, his dogs and horses upon the folk of the townships, of exacting a ‘one night’s farm’ from this village, a ‘two nights’ farm’ from that. The men who have to bear these exactions may well be free men and free landowners; still over them the king has certain rights and rights that he can give away. According to our interpretation of the charters, it is often enough such rights as these that the king is giving when he says that he is giving terram iuris mei. He declares, it will be observed, that the land is to be free from vectigalia and opera to which it has heretofore been subject. But does he mean by this to benefit the occupiers of the soil? No, he has no care whatever to relieve them. Bent on saving his soul, his care is that the land shall be wholly devoted to the service of God. As we understand the matter, whatever vectigalia and opera the king has hitherto exacted from these men the church will now exact. The king has conveyed what he had to convey, a superiority over free landowners.
Nature of the feorm.
It is permissible to doubt whether modern historians have fully realized the extent of the rights which the king had over the land of free landowners. In the middle of Ine’s laws, which follow each other in no rational order, we suddenly come upon an isolated text, which says this: ‘For 10 hides “to foster” 10 vessels of honey, 300 loaves, 12 ambers of Welsh ale, 30 of clear [ale], 2 old [i.e. full grown] oxen or 10 wethers, 10 geese, 20 hens, 10 cheeses, an amber full of butter, 5 salmon, 20 poundsweight of fodder and a hundred eels[886].’ The context throws no light upon the sentence; but in truth no sentence in Ine’s laws has a context. What is its meaning? We can not but think that this foster is the king’s victus[887]. Once a year from every ten hides he is entitled to this feorm. Perhaps it is a ‘one night’s feorm’; for it may be enough to support a king of the seventh century and a modest retinue during twenty-four hours. Still it will be no trifling burden upon the land, even if we suppose the hide to have 120 arable acres or thereabouts. Suppose that the king transfers his right over a single hide to some bishop or abbot, the donee will be entitled to receive from that hide a rent which can not be called insignificant. We dare not argue that this law is a general law for the whole of Wessex. It may refer only to some newly settled and allotted districts. There are other hints in these laws of Ine of some large land-settlement, an allotment of land among great men who have become bound to bring under cultivation a district theretofore waste[888]. But it is difficult to dissociate the foster of these laws from the victus of the charters, and, quite apart from this disputable passage, we have plenty of proof that the king’s victus was an incumbrance which pressed heavily upon the lands of free landowners[889]. If in England the duty of feeding the king as he journeys through the country developed into a regular tax or rent this would not stand alone. That duty plays a considerable part in the Scandinavian law-books, and in the Denmark of the thirteenth century we may find arrangements which are very like that set forth in Ine’s law. Every hundred (herad), taken as a whole, has to contribute something towards the king’s support. Often it is a round sum of money; but often it will consist of provisions necessary to maintain the king’s household during a night or two or three nights (servicium unius noctis, servicium duarum noctium). Then the ‘service of two nights’ is accurately defined. It consists of, among other things, 26 salted pigs, 14 live pigs, 16 salted oxen, 16 salted sheep, 360 fowls, 180 geese, 360 cheeses, corn, malt, fodder, butter, herrings, stock-fish, pepper and salt. This revenue stands apart from the revenue derived from the crown lands; it is regarded as a tax rather than a rent; but it is to this extent rooted in the soil, that the amount due from each hundred (herad) is fixed[890]. There is a great deal to make us think that at a quite early time in England such arrangements as this had been made. If we look at the charters we find that the king is always giving away manses in fives and tens, fifteens and twenties. This symmetry, this prevalence of a decimal system, we take to be artificial; already the manse, or hide, is a fiscal unit, a fraction of a district which has to supply the king with food or with money in lieu of food[891]
Tribute and rent.
Whatever be the origin of the king’s feorm—and if we find it in the voluntary gifts which yet barbarous Germans make to their kings, we may none the less have to admit that it has been touched by the influence of the Roman tributum—it becomes either a rent or a tax. We may call it the one, or we may call it the other, for so long as the recipient of it is the king, the law of the seventh and eighth centuries will hardly be able to tell which it is[892]. The king begins to give it away: in the hands of his donees, in the hands of the churches, it becomes a rent. This is not all, however, that the king has to give, or that the king does give, when he says that he is giving land. That he may be giving away the profits of justice, that he may be giving jurisdiction itself, we shall argue hereafter. But probably he has even in early days yet other things to give, and at any rate in course of time he discovers that such is the case. He can give the right to take toll, he can give market rights[893]. It is by no means impossible that he has forest rights, some general claim to place uncultivated land under his ban, if he would hunt therein, and some general claim to the nobler kinds of fish[894]. Then again, in the eleventh century we find men owing services to the king which he still receives rather as king than as landlord, and the sporadic distribution of these services seems to show that they are not of modern origin. Such are, for example, the ‘inwards’ and the ‘averages’ which are done by the free men of Cambridgeshire[895]. We are told in a general way that the thegn owes fyrdfare, burh-bót and lang="ang" xml:lang="ang">brycg-bót, but that from many lands—the lands comprised within no privilege, no franchise—‘a greater land-right arises at the king’s ban’; for there is the king’s deer-hedge to be made, there are warships to be provided, there are sea-ward and head-ward[896]. Every increase in the needs of the state, in the power of the state, gives the king new rights in the land, consolidates his seignory over the land. If a fleet be formed to resist the Danes, the king has something to dispose of, a new immunity for sale. If a geld be levied to buy off the Danes, the king can sell a freedom from this tax, or he can tell the monks of St. Edmundsbury that they may levy the tax from their men and keep it for their own use[897]. This, we argue, is not a new abuse, a phenomenon which first appears in the evil feudal time when men began to confuse imperium with dominium, kingship with landlordship, office with property, tax with rent. On the contrary, we must begin with confusion. In some of the very earliest land-books that have come down to us what the king really gives, when he says that he is giving land, is far rather his kingly superiority over land and landowners than anything that we dare call ownership[898]
Mixture of ownership and superiority.
Not that this is always the case. Very possible is it that from the first the king had villages which were peopled mainly by his theows and læts, and intertribal warfare may have increased their number. But the charters, for all their apparent precision, will not enable us to distinguish between these cases and others in which the villages are full of free landowners and their slaves. The charters are not engendered by the English facts; they are foreign, ecclesiastical, Roman. By such documents, to our thinking, the king gives what he has to give. In one case it may be a full ownership of a village or of some scattered steads; in another it may be a superiority, which when analyzed will turn out to be a right of exacting supplies of provender from the men of the village; in a third, and perhaps a common case, the same village will contain the mansi serviles of the king’s slaves and the mansi ingenuiles of free landowners. He no more thinks of distinguishing by the words of his charter his governmental power over free men and their land from his ownership of his slaves and the land that they are tilling, than his successor of the eleventh or twelfth century will think of making similar distinctions when he bestows a ‘manor’ or an ‘honour.’
The king’s superiority.