"Each shire was under an ealdorman, who sat with the sheriff and bishop in the folkmoot, and received a third part of the profits of jurisdiction. (The third penny of the county appears from Domesday [i. 1. 26, 203, 246, 252, 280, 298, 336] to have been paid to the earl in the time of Edward the Confessor.—Ellis, Introduction to Domesday, i. 167)."[852]
The argument that the ealdorman, or earl, of the days before the Conquest, received "a third part of the profits of jurisdiction" in the county, rests here, it will be seen, wholly on the evidence of Domesday. But in six of the eight passages on which Dr. Stubbs relies we are distinctly dealing, not with the county ("comitatus"), but with a single town ("burgus"). These are Dover, Lewes, Huntingdon, Stafford, Shrewsbury, and Lincoln. In these, therefore, the third penny could only be that of the redditus burgi, not of the placita comitatus.[853] Huntingdon is specially a case in point, for there the earl received a third of each of the items out of which the render ("redditus") of the town was composed. The only cases of those mentioned which could possibly concern the third penny "placitorum comitatus" are those of Yorkshire (298), Lincolnshire (336), and Nottinghamshire with Derbyshire (280). Even in these, however, "the third penny of the pleas" is only vaguely implied, the passages referring to a peculiar system which has, I believe, never obtained the attentive study it deserves. This system was confined to the Danish district, to which these counties all belonged.
The main point, however, which we have to keep in view is that "the third penny" of the revenues of the town has nothing to do with "the third penny" of the pleas of the county, and that the passages in Domesday concerning the former must not be quoted as evidence for the latter. I do not find that Ellis (Introduction, i. 167, 168) is responsible for so taking them, but Dr. Stubbs, as we have seen, clearly confused the two kinds of tertius denarius, and we find that Mr. Freeman does the same when he tells us that at Exeter "six pounds—that is, the earl's third penny—went to the Sheriff Baldwin."[854]
We are reminded by this last instance that not only the earl, but the sheriff, was concerned with "the third penny" of the revenues of the town. This—which (I would here again repeat) is not the earl's "third penny" to which historians allude—sometimes, as for instance at Shrewsbury and Exeter, fell to the sheriff's share. Dr. Stubbs mentions the case of Shrewsbury only, and takes it as evidence that "the sheriff as well as the ealdorman was entitled to a share of the profits of administration."[855]
This third penny "redditus burgi" is in Domesday absolutely erratic. In the Wiltshire and Somersetshire towns, it seems to have been held by the king himself, though at Cricklade both he and Westminster Abbey are credited with it (64 b, 67). At Leicester it was held by Hugh de Grantmesnil, but we are not told by what right (i. 230). At Stafford it had been held by the English earl, and had fallen with his estates to the Crown. The Conqueror kept it, but, halving his own two-thirds share, made a fresh "third," which he granted to Robert de Stafford.[856] At Ipswich it had, with the "tertius denarius [i.e. placitorum] de duobus hundret," been annexed to an estate held by the local earl. The whole of this was granted by the Conqueror to his follower, Earl Alan.[857] At Worcester, by a curious arrangement, the total render had been divided, in unequal portions, between the king and the earl, while a third of the whole was received by the bishop. At Fordwich "the third penny" fell to Bishop Odo, and was bestowed by him, with the king's consent, on St. Augustine's, Canterbury, to which the other two-thirds had been given already by the Confessor. The case of Bristol has led Mr. Freeman into a characteristic error. We read in Domesday:—
"Burgenses dicunt quod episcopus G. habet xxxiii marcas argenti et unam marcam auri p[re]ter firmam regis" (i. 163).
Mr. Freeman, who is never weary of insisting on the value of Domesday, is clearly not so familiar as one could wish with its normal contractions, for he renders the closing words "propter firmam regis." On this he observes: "This looks like the earl's third penny; but Geoffrey certainly had no formal earldom in Gloucestershire."[858] When we substitute for the meaningless "propter" the right reading "preter" ("in addition to"), we see at once that the figures given no longer suggest a "third penny."
Leaving now the third penny of the revenues of the country town, let us turn our attention to that of the pleas of the whole county. Independent of the system in the Danelaw to which I have referred above, we have two references in Domesday to this "third penny." Firstly, the "tercius denarius de totâ scirâ Dorsete" (i. 75); secondly (in the case of Warwickshire) "tercio denario placitorum siræ" (i. 278), yet neither of these is among the cases appealed to by Dr. Stubbs. Now, the curious point about them is that in neither instance was the right annexed to the dignity of earl, but to a certain manor, which manor was held by the earl. That is to say, he was entitled to this "third penny of the pleas" not quâ earl, but quâ lord of that estate. The distinction is vital. Whether "the third penny of the pleas" be that of the whole shire or only of a single hundred, it is always attached, under the Confessor, to the possession of some manor. We find the "tercius denarius" of one, of two, of three, of even six hundreds so annexed.[859] This peculiarity would seem to have been an essential feature of the system, and I need scarcely point out how opposed it is to the alleged tenure ex officio in days before the Conquest, or to that granted to the earl quâ earl under the Norman and Angevin kings. Let us seek to learn when the latter institution, the recognized "tertius denarius," became first annexed to the dignity of earl.
The prevailing view would seem to be that it was so annexed from the first; that its possession, in fact, was part of, or rather was connoted by, the dignity of an earl. Madox held that the oldest mode of conferring the dignity of earl, a mode "coeval to the Norman Conquest," was by charter; and he further held that "By the charter the king granted to the earl the tertius denarius comitatus."[860] Dr. Stubbs writes, of the investiture of earls in the Norman period:—
"The idea of official position is not lost sight of, although the third penny of the pleas and the sword of the shire alone attest its original character" (Const. Hist., i. 363).