Special research has led me to discover that all our historians are in error in their accounts of this institution.

The key to the enquiry will be found in the fact that the term "tertius denarius" had two distinct denotations; that is to say, was used in two different senses. Dr. Stubbs and Mr. Freeman have both failed to grasp this essential fact. The two varieties of the "tertius denarius" were these:—

(1) The "tertius denarius placitorum comitatus." This is the recognized "third penny" of which historians speak. Observe that this was not, as it is sometimes loosely termed, and as, indeed, Gneist describes it, "the customary third of the revenues of the county,"[848] but, as Dr. Stubbs accurately terms it, "the third penny of the pleas."[849] So here the Empress grants to Geoffrey de Mandeville "tertium denarium vicecomitatus de placitis" (cf. p. 239). This distinction is all-important, for "the pleas" only represented a small portion of the total "revenues of the county" as compounded for in the sheriff's firma.

(2) The "tertius denarius redditus burgi." This "third penny," which has been strangely confused with the other, differs from it in these two respects. Firstly, it is that, not of the pleas ("placitorum"), but of the total revenues ("redditus"); secondly, it is that, not of the county ("comitatus"), but of a town alone ("burgi").

This distinction, which is absolutely certain from Domesday and from record evidence, is fortunately shown, with singular clearness, in the charter of the Empress to Miles of Gloucester, creating him Earl of Hereford. In it she grants—

"Tertium denarium redditus burgi Hereford quicquid unquam reddat,[850] et tertium denarium placitorum totius comitatus Hereford."

Nor is it less clear in the charter (1155), by which Henry II. creates Hugh Bigod Earl of Norfolk "scilicet de tercio denario de Norwic et de Norfolca."

Now, let us trace how the "tertius denarius redditus burgi" has been erroneously taken for the "tertius denarius placitorum totius comitatus," the only recognized "third penny."

Dr. Stubbs writes: "The third penny of the county which had been a part of the profits of the English earls is occasionally referred to in Domesday."[851] The passage on which this statement is based is found earlier in the volume. Our great historian there writes:—

"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).

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]

This passage requires to be read as a whole, for the answer might easily be differently understood, as indeed it has been in the Lords' Reports,[866] where it is taken to apply to the earls as well as to "the third penny." The point is of no small importance, for the conclusion drawn is that "both [the dignity and the third penny] were either hereditary or personal, at the pleasure of the Crown." Careful reading, however, will show, I think, that, like the question, the reply deals with "the third penny" alone. The "hæc conferenda decernit" of the latter refers to the "ista" of the former.

Confirmed as they are by the evidence of the Pipe-Rolls, the words of the Dialogus clearly prove that the view I take is right, and that Professor Freeman is certainly wrong in stating that "earldoms," at this stage, "carry with them the third penny."[867] Mr. Hunt, who, here as elsewhere, seems to follow Dr. Stubbs, writes that:—

"The earl still received the third penny of all profits of jurisdiction in his county. With this exception, however, the policy of the Norman kings stripped the earls of their official character."[868]

This view must now be abandoned, and the total absence of any allusion, in Stephen's creation of the earldom of Essex, to "the third penny of the pleas," must be taken to imply that the charter in question did not convey a right to that sum. Thus the charter of the Empress to Geoffrey in 1141 remains the first record in which that perquisite is granted.

We should also note that the Dialogus passage establishes the fact that the only recognized "third penny" of the earl was "the third penny of the pleas," and that the third penny "redditus burgi," which, we saw, had been taken for it, is not alluded to at all.

Before leaving this subject it may be well to record the sums actually received under this heading:—

These figures are sufficient to disprove the view that the third penny actually formed an endowment for the dignity of an earl, but their chief interest is found in the light they throw on the farming of the "pleas," illustrating, as they do, the statement in the Dialogus that the sheriff's firma "ex magna parte de placitis provenit." For multiplying these sums by three we obtain the total for which the pleas were farmed in their respective shires. It will be observed that "the third penny" is stereotyped in amount, but an important passage bearing upon this point is quoted by Madox (Baronia Anglica, p. 139) from the Roll of 27 Hen. II.:—

"Idem Vicecomes redd. comp. de £xxviii de tercio denario Comitatus de Legercestria de vii annis præteritis, quos Comes Leg. accipere noluit, nisi haberet similiter de cremento, sicut prædecessores sui recipere consueverunt tempore Regis Henrici" (sic).

The meaning of this entry is that the earl demanded the "third penny," not only of the old composition for the "pleas," but also of the increased sum now paid for them. The passage, of course, is puzzling in its statement that the earl's predecessors had received "the third penny," for, so far as the printed Rolls take us, they never did so. A similar difficulty is caused, in the case of Oxfordshire, by the charter of Henry II. (see p. 239) granting to Aubrey de Vere its "third penny" "ut sit inde Comes;" for there is no trace in the printed Rolls of such payment being made, and in 7 John the then earl actually owes "cc marcas pro habendo tercio denario Comitatus Oxoniæ de placitis, et ut sit Comes Oxoniæ."[870]

Passing from these perplexing cases, on which we need fuller knowledge, we have a simple example in 12 Hen. III., when, on the death of the Earl of Essex (February 15, 1228), his annual third penny, as £40 10s. 10d., was allowed to count, for his heirs, towards the payment of his debts to the Crown.[871] A much later and most important instance is that of Devon, where Hugh de Courtenay, as the heir of the Earls of Devon, is found receiving their "third penny" in 8 Edw. III., though not an earl, a state of things which provoked a protest, a decision against him, and, eventually, his elevation to comital rank.