Mr. Freeman puts the case thus:—
"Earldoms are now in their transitional stage. They have become hereditary; but they carry with them the official perquisite of the ancient official earls, the third penny of the king's revenues in the shire."[861]
Here it may at once be pointed out that the mistake which I referred to at the outset is again made, "the third penny" being described as that not of the pleas, but "of the revenues" of the county. Then there is the question whether this perquisite was indeed the right of "the ancient official earls." Lastly, we must ask whether the earldoms granted in this period did unquestionably "carry with them" this "official perquisite."
To answer this last question, we must turn to our record evidence. Now, the very first charter quoted by Madox himself, in support of his own view, is the creation by Stephen of the earldom of Essex in favour of Geoffrey de Mandeville. The formula there is quite vague. Geoffrey is to hold "bene et in pace et libere et quiete et honorifice sicut alii Comites mei de terrâ meâ melius vel honorificentius tenent Comitatus suos unde Comites sunt." Here there is nothing about the "third penny," and we must therefore ask whether its grant is included in the above formula; that is to say, whether an earl received his "third penny" as a mere matter of course. The contrary is, it would seem, implied by the special way in which the "third penny" is granted him in the charter of the Empress, together with the curious added phrase, "sicut comes habere debet in comitatu suo." This phrase may, of course, be held to imply that an earl had, as earl, a recognized right to the sum, but the fact that in the other charters of the Empress (those of the earldoms of Hereford and Oxford) the "tertius denarius" is made the subject of a special grant, and that in her son's charters it is the same, would suggest that, without such special grant, the right was not conveyed. This is the view taken by Gneist (who founds, in the main, on Madox):—
"It is only a donatio sub modo, the grant of a permanent income 'for the better support of the dignity of an earl;' it consists in a mere order or precept addressed to the sheriff, and is therefore a right of demand, but no feudal right, and is accompanied by no investiture."[862]
That the grant of "the third penny" (of the pleas of the county) was not an innovation introduced in this reign, is proved by the solitary surviving Pipe-Roll of Henry I., in which, however, there is but one mention of this "third penny," namely, in the case of the Earl of Gloucester. Indeed, with the exception of this entry, and of the special arrangement which existed before the Conquest in the Danish districts (ut supra), it may be said that the charters of the Empress, in 1141, represent the first occurrence of this "third penny."
Again, if we turn to the succeeding reign, we find, though the fact appears to have hitherto escaped notice, that, as far as the printed Pipe-Rolls take us—that is, for the first few years—less than half the existing earls were in receipt of the "third penny." Careful examination of the Rolls of 2-7 Hen. II. reveals this fact. The earls to whom was paid "the third penny of the pleas" were these: Essex, Hertford, Norfolk, Gloucester, Wiltshire (Salisbury), Devon, and Sussex. Those who are not entered in the Rolls, and who, therefore, it would seem, cannot have received it, are Warwick, Leicester, Huntingdon, Northampton, Derby (Ferrers), Oxford, Surrey, Chester,[863] Lincoln, and Cornwall. Thus seven received this sum, and ten did not. The inference, of course, from this discovery is that the possession of the dignity of an earl did not per se carry with it "the third penny of the pleas," the right to which could only be conferred by a special grant.[864] This, apparently conclusive, evidence illustrates and confirms the words of the Dialogus:—
"Comes autem est qui tertiam portionem eorum quæ de placitis proveniunt in quolibet comitatu percipit. Summa namque illa quæ nomine firmæ requiritur a vicecomite tota non exsurgit ex fundorum redditibus, sed ex magna parte de placitis provenit; et horum tertiam partem comes percipit, qui ideo sic dici dicitur, quia fisco socius est et comes in percipiendis."
D. "Nunquid ex singulis comitatibus comites ista percipiunt."
M. "Nequaquam: sed hii tantum ista percipiunt, quibus regum munificentia, obsequii præstiti vel eximiæ probitatis intuitu comites sibi creat et ratione dignitatis illius hæc conferenda decernit, quibusdam hæreditarie, quibusdam personaliter."[865]