MARKET.—The grant of a market, with power to levy tolls and exercise the police therein, was also a royalty, in the period of the consolidated monarchy; and to this head may be added the right to keep a private beam or steelyard, trutina or tróne, yard-measure, and bushel. Of these the charters supply examples. The last-named rights were purchased in 857 by bishop Alhhun of Worcester, from Burgred, who, as king of Mercia, disposed of them to him, with a small plot of land in London. The price paid was sixty shillings, or a pound, to Ceólmund, the owner of the land, a like sum to the king, and an annual rent of twelve shillings to the latter[[130]]. Thirty-two years later, Ælfred and Æðelred of Mercia gave another small plot in the same city to Werfrið, also bishop of Worcester. He was to have a steelyard, and a measure, both for buying and selling, or for his own private use. And if any of his people dealt in the street or on the bank where the sales took place, the king was to have his toll: but if the bargain was struck within the bishop’s curtis, he was to have the toll[[131]].
In 904 Eádweard gave a market in Taunton to the bishop of Winchester, with the toll therefrom arising, by the name of “ðæs túnes cýping”[[132]]: and a few years earlier Æðelred of Mercia granted half the market-dues and fines at Worcester to the bishop of that city[[133]]. The Frankish emperors possessed and exercised the same right[[134]]. The strict law of the Anglosaxons, which treated all strangers with harshness, was unfavourable to the chapmen or pedlars, who in thinly-peopled countries are relied upon to bring markets home to every one’s door: and it must be admitted that, where internal communication is yet imperfect, stringent measures are necessary to guard against the disposal of goods improperly obtained. The details of these measures belong to another part of this work, but it is necessary to call attention here to the endeavour on the part of the authorities, to confine all bargaining as much as possible to towns and walled places[[135]]: the small tolls payable on these occasions to the proper officers were a reasonable sacrifice for the sake of a certificate of fair dealing, and the assured warranty of what the Saxon law calls unlying witnesses. The king, as general conservator of the peace, had this royalty, and, as we have seen, granted it in various towns to those who would be able and willing to perform the duties which it implied.
TOLL.—Closely connected with this are tolls, which, here as well as in Germany, the king claimed in harbours, and upon transport by roads and by navigable streams[[136]], and which he either remitted altogether in favour of certain favoured persons or empowered them to take; thus, in the first instance, creating for them a commercial monopoly of the greatest value, by enabling them to enter the market on terms of advantage. As early as the eighth century we find Æðelbald of Mercia granting to a monastery in Thanet, exemption from toll throughout his kingdom for one ship of burthen[[137]], remitting to Milræd, bishop of Worcester, the dues upon two ships, payable in the port of London[[138]], and to the bishop of Rochester the toll of one ship, whether his own or another’s, in the same port[[139]]. And the grant to St. Mildðrýð in Thanet was confirmed for himself, and increased by Eádberht of Kent in 761, and extended to London, Fordwíc and Seorre[[140]]; and if the actual ship to which this privilege was attached should become unseaworthy through age, or perish by shipwreck, a new one was to receive the same favour.
A common privilege in charters of liberties is Tol, but this probably refers rather to a right of taking it upon sales within the jurisdiction, than properly to dues levied on transport. Such however are occasionally mentioned as matter of grant. Eádmund Irensída, conveying lands which had belonged to Sigeferð (whose widow he had married), includes toll upon water-carriage among his rights[[141]]. Cnut gave the harbour and tolls of Sandwich to Christchurch Canterbury[[142]], together with a ferry. This right, under Harald Haranfót, was attempted to be interfered with by the abbot of St. Augustine’s, who even at last went so far as to dig a canal in order to divert the channel of trade; but the monks of Christchurch nevertheless succeeded in retaining their property[[143]]. These examples, although not very numerous, are sufficient to show that the Anglosaxon kings fully possessed the right of levying and granting toll, as well as exemption from its payment; and they are sufficiently confirmed by Domesday and the laws of the kings themselves[[144]].
FOREST.—It may be doubted whether the right of Forest was at any time carried among the Saxons to the extent which made it so hateful a means of oppression under the Norman kings; but there can be no question that it was one of the royalties. In every part of Germany the bannum Forestae or Forstbann was so[[145]], and even to this day is as much an object of popular dislike in some districts as it ever was among our forefathers. In countries which depend much upon the immediate produce of the soil for support, hunting is not a mere amusement to be purchased or rented by the rich as a luxury, but a very necessary means of increasing the supply of food; and where coal-mines have not been worked, the forest alone or the turf-heap can furnish the means of securing warmth, as indispensable a necessary of life as bread or flesh: we have seen moreover that it was essential to the comfort of a Saxon family to possess a right of masting cattle in the neighbouring woods.
In the original division of the lands large tracts of forest may have fallen to the king’s share, which he could dispose of as his private property. Much of the folcland also may have been covered with wood, and here and there may have lain sacred groves not included within the limits of any community[[146]]. It is not unreasonable to suppose that all these were gradually brought under the immediate influence and authority of the king; and that when once the royal power had so far advanced as to reduce the scír-geréfa to the condition of a crown officer, the shire-marks or forests would also become subject to the royal ban[[147]]. That very considerable forest rights still continued to subsist in the hands of the free men, in their communities, may be admitted, and is evidence of the firm foundation for popular liberty which the old Mark-organization laid. But even in these, the possession was not left totally undisturbed, and the public officers, the king, ealdorman and geréfa appear to have gradually made various usurpations valid.
Over his private forests the king naturally exercised all the rights of absolute ownership; and as his ban ultimately implies this, at least in theory, it becomes difficult to distinguish those which he dealt with as dominus fundi, from those in which he acted iure regali. That he reserved the vert and venison in some of them, and preserved with a strictness worthy of more enlightened ages, is clear from the severe provisions of Cnut’s Constitutiones de Foresta[[148]]. According to this important document, the forest law was as follows. In every county there were to be four thanes, whose business it was, under the title of Head-foresters, primarii forestae, to hold plea of all offences touching the forest, and having the ban or power of punishing for such offences. Under them were sixteen lesser thanes, but gentlemen, whose business it was to look after the vert and venison; and these had nothing to do with the process in the forest court. To each of the sixteen were assigned two yeomen, who were to keep watch at night over the vert and venison, and do the necessary menial services: but they were freemen, and even employment in the forest gave freedom. All the expenses of these officers were defrayed by the king, and he further supplied the outfit of the several classes: to the head-foresters, yearly, two horses, one saddled, a sword, five lances, a spear, a shield and two hundred shillings of silver: to the second class, one horse, one lance, one shield and sixty shillings: to the yeomen, a lance, a cross-bow and fifteen shillings. All these persons were quit and free of all summonses, county-courts, and military dues: but the two secondary classes owed suit and surface to the court of the primarii (Swánmót), which held plea and gave judgment in their suits: in those of the primarii themselves, the king was sole judge. The court of the Forest was to be held four times a year, and was empowered to administer the triple ordeal, and generally to exercise such a jurisdiction as belonged only to the higher and royal courts. The persons of the head-foresters were guarded by severe penalties; violence offered to them was punished in a free man with loss of liberty, in a serf with loss of the hand; and a second offence entailed the penalty of death.
The offences against the forest-law were various and of very different degrees: the ferae forestae were not nearly so sacred as the ferae regales, and as for the vert, it was of so little regard that the law hardly contemplated it, always excepting the breaking the king’s chace. To hunt a beast of the forest (fera forestae), either voluntarily or intentionally, till it panted, was punished in a free man by a fine of ten shillings: in one of a lower grade[[149]], by a fine of twenty: in a serf, by a flogging. But if it were a royal beast (fera regalis) which the English call a stag, the punishments were to be respectively, one and two years servitude, and for the serf, outlawry. If they killed it, the free man was to lose scutum libertatis[[150]], the next man his liberty, and the serf his life. Bishops, abbots and barons were not to be vexed with prosecutions for hunting, except they killed stags: in that case they were liable to such penalty as the king willed. Besides the beasts of the forest, the roebuck, hare and rabbit were protected by fines. Wolves and foxes were neither beasts of the forest nor chace, and might be killed with impunity, but not within the bounds of the forest, as that would be a breaking of the chace; nor was the boar considered a beast of venery. No one was to cut brushwood without permission of the primarius, under a penalty; and he that felled a tree which supplied food for the beasts, was to pay a fine of twenty shillings over and above that for breaking the chace. Every free man might have his own vert and venison on his own lands, but without a chace; and no man of the middle class (mediocris) was to keep greyhounds. A gentleman (liberalis[[151]]) might, but he must first have the knee-sinew cut in presence of the head-forester, if he lived within ten miles of the forest: if his dogs came within that distance, he was to be fined a shilling a mile: if the dog entered the precincts of the forest, his master was to pay ten shillings. Other kinds of dogs, not considered dangerous, might be kept without mutilation; but if they became mad and by the negligence of their masters went wandering about, heavy fines were incurred. If found within the bounds of the forest, the fine was two hundred shillings: if such a rabid dog bit a beast of the forest, the fine rose to twelve hundred: but if a royal beast was bitten, the crime was of the deepest dye.
Such is the forest legislation of Cnut, and its severity is of itself evidence how much the power of the king had become extended at the commencement of the eleventh century. It is clear that he deals with all forests as having certain paramount rights therein, and it seems probable that this organization was intended to be established all over England. Still it is observable that he gives certain rights of hunting to all his nobles, reserving only the stags to himself, and that he allows every freeman to hunt upon his own property, so that he does not interfere with the royal chaces[[152]]. We may however infer that at an earlier period the matter was not regarded so strictly. A passage has been already cited[[153]] where Ælfred implies that a dependent living upon lǽnland could support himself by hunting and fishing, till he got bócland of his own. The bishops possessed the right in their forests—whether proprio iure or by royal grant, I will not venture to decide—as early as the ninth century[[154]], and still retained it in the tenth[[155]]. And while the communities were yet free it is absurd to suppose that they allowed any one to interfere with this pursuit, so attractive to every Teuton, so healthy, so calculated to practise his eye and limbs for the sterner duties of warfare, and so useful to recruit a larder not over well stored with various or delicate viands.
However this may have been with the game, it is certain that the most important privileges were those of masting swine, and cutting timber or brushwood in the forests[[156]]. Grants to this effect are common, and it is plain that a considerable quantity of woods were in the hands of corporations, and even of private individuals, as well as of the Crown. How they came into private hands is not clear; some perhaps by bargain and sale, some by inheritance, some by grant, some no doubt by usurpation. The most powerful markman may at last have contrived to appropriate to himself the ownership of what woodland remained, though he was still compelled to permit the hereditary axe to ring in the forest[[157]]; and all experience shows that both here and in Germany monasteries were often founded in the bosom of woods, granted for religious purposes, out of what perhaps had once endowed an earlier religion, and which supplied at once building materials, fuel and support for cattle[[158]]. But even in these, it seems that the king, the duke and the geréfa interfered, claiming a right to pasture certain numbers of their own swine or cattle in them, and to give this privilege to others.