No doubt it is a sound canon of criticism that, when in a grant precise are followed by vague words, the former should be taken to explain, and, it may be, to restrain the latter. If, for example, land be freed ‘from taxes and all other secular burdens,’ we may well urge that the ‘other secular burdens’ which the writer has in his mind are burdens akin to taxes. And of course it is fair to say that in our days a grant of private justice would be an extremely different thing from a grant of freedom from fiscal dues. But what, we must ask, does this freedom from fiscal dues really mean when it is granted by an Anglo-Saxon land-book? When the monks or canons obtain a charter freeing this territory from all tributum and census, from all pastiones and so forth, is it intended that the occupiers of the soil shall have the benefit of this grant? Not so. The religious have been stipulating for themselves and not for their men. The land has been freed from service to the king in order that it may serve the church[970]; the church will take what the king has hitherto taken or it will take an equivalent. In a writ of Edward the Confessor this appears very plainly. Whenever men pay a geld to the king, be it an army-geld or a ship-geld, the men of St. Edmund are to pay a like geld to the abbot and the monks[971]. Probably this principle has been at work all along. The king has had no mind to free the manentes, casati, tributarii of the church from any tributum or vectigal. What has hitherto been paid to him, or some equivalent for it, will now go to the treasury of the church. Thus, even within the purely fiscal region, we see that the object of the immunity is to give the church a grip on those who dwell upon the land. But we must read the clause to its end.
The trinoda necessitas.
As is well known, it usually proceeds to except certain burdens, to declare that the land is not to be free from them. These burdens, three in number, are on a few occasions spoken of as the trinoda necessitas. That term has become common in our own day and is useful. The land is not to be free from the duty of army-service, the duty of repairing strongholds, the duty of repairing bridges. An express exception of this trinoda necessitas out of the general words of immunity is extremely common. Moreover there are charters which speak as though no lands could ever be free from the triple charge[972], and a critic should look with some suspicion upon any would-be land-book which expressly purports to break this broad rule. But besides some books which do expressly purport to free land from the trinoda necessitas[973], we have a considerable number of others which grant immunity in wide terms and make no exception of army-service, bridge-bote or burh-bote[974], and we are hardly entitled to reject them all merely because they do not conform to the general principle[975]. More to our purpose is it to notice that, though a grant of jurisdictional powers would be an extremely different thing from a grant of immunity from army-service, the duty of attending the national or communal courts is extremely like the duty of attending the host, and it would not be extravagant to argue that when the king says ‘I free this land from all secular burdens except those of fyrd-fare, burh-bote and bridge-bote,’ he says by implication ‘I free this land from suit to shires and hundreds.’
The ángild.
But yet more important is it to notice that charters of the ninth century frequently except out of the words of immunity not three burdens, but four. In addition to the trinoda necessitas, some fourth matter is mentioned. Its nature is never very fully described, but it is hinted at by the terms ángild, singulare pretium, pretium pro pretio. In connexion with these charters we must read others which exempt the land from ‘penal causes,’ or wíte-rǽden and others which expressly grant to the donee the ‘wites’ or certain ‘wites’ issuing from the land; also we shall have to notice that there are dooms which decree that certain ‘wites’ are to be paid to the land-lord or land-ríca. Now ángild (singulare pretium) is a technical term in common use[976]. When a crime has been committed—theft is the typical crime which the legislators have ever before their eyes—the ángild is the money compensation that the person who has been wronged is entitled to receive, as contrasted with any wite or fine that is payable to the king. We find, then, a charter saying that certain land—not certain persons, but certain land—is to be free from all secular burdens save the ángild, and in some cases it will be added that the land is to pay nothing, not one farthing, by way of wite, or that nothing is ‘to go out to wite[977].’ Of the various interpretations that might possibly be put upon such words one may be at once rejected. It is not the intention of the king who makes or of the church which receives the grant that crimes committed on this land shall go unpunished. No lord would wish his territory to be a place where men might murder and steal with impunity. We may be certain then that if a crime be committed, there is to be a wite; but it is not to go outside the land; the lord himself is to have it. But how is the lord to enforce his right to the wite,—must he sue for it in the national or communal courts, or has he a court of his own.
The right to wites and the right to a court.
This question is difficult. The ancient charters, however nearly they may go to telling us that the donee will do justice within his territory, never go quite that length. There is, however, a book granted by Cenwulf of Mercia in 816 to the church of Worcester which adds to the clause of immunity these words—‘and if a wicked man be three times captured in open crime, let him be delivered up at the king’s tún (vicum regalem)[978].’ This seems to tell us that only the worst offenders will be delivered up to the royal or national officers and to imply that the bishop may do justice upon all others. Then there are two books in favour of the church of Abingdon, the one granted by Cenwulf in 821, the other by Egbert in 835, which, though their language is very obscure, seem to tell us that if one of the ‘men of God’ (by which phrase are meant the ‘vassals’ of the church of Abingdon) be accused of any crime, the overseer of the church may swear away the charge by his own oath, and that, if he dare not swear, he may pay the ángild to the plaintiff and, this done, will have justice over the offender[979]. Another ancient book suggests that the lord of an immunity, when he had to pay the ángild for one of his men, could not be forced to cross the boundary of his land. On that boundary some mixed tribunal would meet consisting partly of his men and partly of outsiders[980]. Then, again, there are the books which either give the lord the furis comprehensio or else exempt his land from the furis comprehensio. Now when a writ of Cnut or Edward the Confessor tells us that a lord is to have infangennethef we do not doubt that he is to have the right which bore that name in later days, the right to hold a court for and to hang thieves who are caught in seisin of the stolen goods, and to the furis comprehensio of the older books we can hardly give another meaning. And the apparent equivalence of the two phrases ‘You shall hold this land with thief-catching’ and ‘You shall hold this land free of thief-catching’ illustrates our argument that to exempt land from public or national justice is to create private or seignorial justice[981]. We may see this in later days; a lord who holds land ‘free and quit of frankpledge’ assumes the right to hold a view of frankpledge, and we can not say that he is wrong in so doing[982]
The Taunton book.
Lastly, in a book of fairly good repute we may read of the grand liberties with which in 904 King Edward endowed the Bishop of Winchester’s large estate at Taunton—that estate which in subsequent centuries was to become the classical example of colossal manors. ‘I have,’ says the king, ‘granted to Christ that the men of the bishop, noble as well as non-noble, living on the said land shall be worthy of the same right that is enjoyed by those who dwell on the demesnes of the crown, and that jurisdiction in all secular causes shall be exercised to the use of the bishops in the same manner as that in which jurisdiction is exercised in matters pertaining to the king[983].’ This is the more important because it suggests, what like enough is true, that the king himself is one of the first of all ‘immunists’; his own estates, the ancient demesne of the crown, already stand outside the national system of finance, justice and police[984]
The immunist and the wite.