In 845, Æðelwulf gave pasture to Badonoð for his cattle with the king’s beasts, apparently in the pastures of the town of Canterbury[[159]]. In 855, the same king gave his thane Dun a tenement in Rochester, together with two waggon-loads of wood from the king’s forest, and common in the marsh[[160]]. In 839 he licensed for Dudda two waggons to the common wood, probably Blean[[161]]; in 772, Offa granted lands to Abbot Æðelnoð, and added a perpetual right of pasture and masting in the royal wood, together with licence for one goat to go with the royal flock in the forest of Sænling[[162]]. Numerous other examples are supplied by the charters, which may be classed under the following heads: first, royal forests, as Sænling, Blean, Andred and the like, called silvae regales, and in which the king granted timber, common of mast and pasture or estovers: secondly, forest appertaining to cities and communities (ceasterwara-weald, burhwara-weald, silva communis), in which the king granted commons: thirdly, small woods, appurtenant to and part of estates, but not named, and the enjoyment of which is conveyed in the general terms of the grant, as terram cum communibus utilitatibus, pascuis, pratis, silvis, piscariis, etc.: lastly, private forests or commons of forest specially named as appurtenant to particular estates, or given by favour of the king to the tenant of those estates. To all these heads ample references will be found in the note below[[163]]. His right to deal at pleasure with the silvae regales requires no particular notice, but the grants of pasture and timber in the forests of cities and communities[[164]] can only be explained by the assumption of a paramount royalty in the Crown. And that this was exercised in the private forests of monasteries, also appears from exemptions sometimes purchased by them. In 706, Æðelweard of the Hwiccas consented to confine his right of pasture to one herd of swine, and that only in years when mast was abundant, in the forests belonging to Evesham; and he released them from all claims of princes and officers, except this one of his own[[165]]. Similarly, with regard to timber, Ecgberht in 835 gave an immunity to Abingdon, against the claim of king or prince, to take large or small wood for his buildings from the forests of the monastery[[166]]. This right of the king to timber for public purposes was maintained and claimed till the time of the rebellion, and was a fertile source of malversation and extortion[[167]].
STRANGER.—To the king belonged also the protection of all strangers within his realm, and the consequent claim to a portion of their wergyld, and their property in case of death, a droit d’aubaine. This was a natural deduction from the principles of a period and a state of society in which every man’s security was founded upon association either with relatives or guildsmen: and as no one could have these in a foreign mark,—the associations being themselves in intimate connection with the territory,—it is obvious that the public authorities alone could exercise any functions in behalf of the solitary chapman. As general conservator of the peace, these necessarily fell to the king; but the duties and advantages which he thus assumed became in turn matter of grant, and were conferred by him upon other public persons or corporations.
The laws declare the king, earl and bishop to be the relatives and guardians of the stranger[[168]]; and the charters show that the consequent gains were alienated by him at his pleasure. In 835, Ecgberht gave the inheritance of Gauls and Britons, and half their wergyld, to the monastery at Abingdon[[169]]. Among these strangers, the Jews were especially mentioned. Anglosaxon history has not indeed recorded any of those abominable outrages upon this long-suffering people which fill the annals of our own and other countries during the middle ages; but there can be no doubt that a false and fanatical view of religion, if not their way of life and their accumulations, must have ever marked them out for persecution. Eichhorn has justly characterized the feeling which prevailed respecting them in all parts of Europe[[170]], and has remarked to the honour of the Popes that they were the first to preach toleration and command the attempt at conversion. But the utility of the Jewish industry especially in thinly peopled countries, and their importance as gatherers of capital, were ever engaged in a struggle against bigotry; hence the Jews could generally obtain a qualified protection against all but sudden outbreaks of popular fury. As these latter had mostly other deep-seated causes, the ruling classes may sometimes have seen without regret the popular indignation vent itself in a direction which did not immediately endanger themselves: but as a general rule, the Jews enjoyed protection, and were made to pay dearly for it. Both parties were gainers by the arrangement. Among the Saxons this could not be otherwise, for it was impossible for a Jew to be in a hundred or tithing as a freeman; and he would probably have had but little security in the household and following of an ordinary noble. The readiest and most effective plan was to place him, wherever he might be, especially under the king’s mundbyrd. Accordingly the law of Eádweard the Confessor declares the king to be protector of all Jews[[171]], and this right descended to his Norman successors. Similarly as the clergy relinquished their mǽsceaft or bond of kin, on entering into orders, the king became their natural mundbora[[172]].
BRIDGE.—It is probable that no one could build a bridge without the royal licence, though I am not aware of any instance in the Saxon times: but I infer this from grants of the Frankish emperors and kings to that effect[[173]]. It is possible that this may have depended upon the circumstance that toll would be taken by the owner of such a bridge; but we may believe that other reasons concurred with this, and that the bridge originally had something of a holy character, and stood in near relation to the priesthood[[174]].
CASTLE.—In like manner we may doubt whether the kings did not gradually draw into their own hands the right to have fortified houses or castles, which we find them possessing in the Norman times, and which they extended to their adherents and favourites by special licence. In mediæval history, the fortification of their houses by the inhabitants of a city is the very first result of the establishment of a Communa, commune or free municipality; and the destruction of such fortifications the first care of the victorious count, bishop or king upon his triumph over the outrecuidance of the burghers[[175]]. The clearest instance of the royal licence to a subject is a grant of Æðelræd and Æðelflæd to the bishop of Worcester, about 880, which recites that they built a burh or fortress for him, in his city, probably to defend his cathedral in those stormy days of Danish ravage[[176]]. In very early times there may have been fortresses belonging to private persons; this may be inferred from names of places such as Sulmonnes burh, Sulman’s castle; and under the later Anglosaxon kings, various great nobles may have obtained the privilege of fortifying their own residences, as for example we read of Pentecost’s castle and Rodberht’s castle under Eádweard the Confessor[[177]], an example very likely to have been followed by the powerful chieftains of Godwine’s, Sigeweard’s and Leófríc’s families; but the cases were probably few. Of course fortresses built and garrisoned by the king for the public defence are quite another matter: these were imperial, and to their construction, maintenance and repair, every estate throughout the land, whether of folcland or bócland, was inevitably bound, not even excepting the demesne lands of the king himself or of the ecclesiastical corporations.
ROADS and CANALS.—There is no very clear evidence respecting roads and canals, licence to make which was a subject of grant by the Frankish emperors[[178]]. But except as regarded the great roads which were especially the king’s, and the cross roads, which were the county’s, it is probable that there was no interference on the part of the state. Every landowner must have had the privilege of making private paths, large or small at his pleasure, by which access could be given to different parts of his own property. We do occasionally find roads mentioned by the name of the owners, and a common service of the settlers on an estate was the liability to assist in making a new road to the farm or mansion[[179]]. In an instance already cited we have seen an abbot of St. Augustine’s digging a canal with the object of diverting traffic from the haven of Sandwich. It may unhesitatingly be asserted that he claimed this right under his general power as a landlord, and not by any special grant for the purpose: this is evident from the whole tenour of the narrative.
PORTS.—Ports and Havens were, however, essentially royalties, and, as we have seen, could be granted to religious houses. They were naturally in the king’s hand, for this reason: in the early times of which we treat, the stranger is looked upon as an enemy, and every one who does not belong to the association for the maintenance of peace, is primâ facie out of the peace altogether. This applies to sailors, as well as travelling chapmen who wander from mark to mark or county to county; and it applied with peculiar force to England after her coasts became exposed to repeated invasions from the North. Still as England could not subsist without foreign commerce, and early became alive to that great principle of her existence, a system of what we may call navigation laws was established. The bottoms of friendly powers were of course received upon terms of reciprocal favour, but even strange ships had the privilege of safety if they made certain harbours, designated for that purpose. At the treaty of Andover, in 994, Æðelræd and his witan agreed, that every merchant-ship that voluntarily came into port should be in the peace; and even if it were driven into port (whether by force or by stress of weather is not specified), and there were a friðburh, asylum, or building in the peace, in which the men took refuge, they and their ship and cargo should enjoy the peace[[180]]. It is hardly to be doubted that the king had the power of declaring what ports should be gefriðod or in the peace; and as this privilege would necessarily draw many advantages to any harbour that possessed it, we can reasonably conclude that it was made a source of profit, both by the king and those to whom he might think fit to grant it.
WARDSHIP and MARRIAGE.—Wardship and Marriage appear to have been royalties; we must however believe them to have been confined to the children and widows of the thanes or comites, and to be a deduction from the principles of the Comitatus itself.
In the secular law of Cnut there is a series of provisions, extending from the 70th to the 75th clause, which can only be looked upon in the light of alleviations, and which in the 70th clause the king himself declares so to be. From the nature of the relief thus afforded, we may infer that the royal officers had exercised their powers in a manner oppressive to the subject. Accordingly the king and his witan proceed to regulate the voluntary nature of the feormfultum, the legal amount of heriot, the descent of property in the case of intestacy, and the kings’s guardianship of the same; they protect the widow and heirs against vexatious suits, by providing that they shall not be sued, if the lord and father had remained undisturbed, and lastly they regulate what appear to me to be the rights of wardship and marriage.
“And let every widow remain for a twelvemonth without a husband; then let her do her pleasure. But if within the year she choose a husband, let her forfeit the morgengyfu and all the property she had through her first husband, and let her nearest kin take the land and property she had before. And let the husband be liable in his wer to the king, or to whomsoever he may have granted it. And even if she have been taken by force, let her forfeit her possessions, unless she be willing to go home again from the man, and never become his again.... And let no one compel either woman or maiden to him whom she herself mislikes, nor for money sell her, unless the suitor will give something of his own good will[[181]].”