Chapter VI: Preface: v (5)

Not that he need pay rent, or perform other services in return for the land. The land is his land; he has not obtained it from his lord; on the contrary he has carried it to his lord. Mere commendation is therefore distinguished by a score of entries from a relation that involves the payment of _consuetudines_. Doubtless however the lord obtains 'a valuable consideration' for all that he gives. Part of this will probably lie without the legal sphere. He has a sworn retainer who will fight whenever he is told to fight. But even the law allows the man to go great lengths in his lord's defence[273]. In a rough age happy is the lord who has many sworn to defend him. When at a later time we see that the claimant of land must offer proof 'by the body of a certain free man of his,' we are taught that the lords have relied upon the testimony and the strong right arms of their vassals. That in all cases the lord got more than this we can not say, though perhaps commendation carried with it the right to the heriot, the horse and armour of the dead man[274]. The relation is often put before us as temporary. Numerous are the persons who 'can seek lords where they choose' or who can 'go with their land wherever they please.' How large a liberty these phrases accord to lord and man it were hard to tell. We can not believe that either party to the contract could dissolve it just at the moment when the other had some need to enforce it; but still at other times the man might dissolve it, and we may suppose that the lord could do so too. But the connexion might be of a more permanent kind. Perhaps in most cases in which we are told that a man can not withdraw his land from his lord the bond between them is regarded as something other than commendation--there is commendation and something more. But this is no universal truth. You might be the lord's man 'merely by commendation' and yet be unable to sell your land without the lord's leave[275]. At any rate, in one way and another 'the commendation' is considered as capable of binding the land. The commended man will be spoken of as holding the land under (_sub_) his lord, if not of (_de_) his lord[276]. In many cases if he sells the land 'the commendation will remain to his lord'--by which is meant, not that the vendor will continue to be the man of that lord (for the purposes of the Domesday Inquest this would be a matter of indifference) but that the lord's rights over the land are not destroyed. The purchaser comes to the land and finds the commendation inhering in it[277].

[The seignory over the commended.]

And so, again, the lord's rights under the commendation seem to constitute an alienable and heritable seignory. It is thus that we may best explain the case, very common in East Anglia, in which a man is commended half to one and half to another lord[278]. Thus we read of a case in which a free man was commended, as to one-third to Wulfsige, and as to the residue to Wulfsige's two brothers[279]. In this instance it seems clear that the commendation has descended to three co-heirs. In other cases a lord may have made over his rights to two religious houses; thus we hear of a man who is common to the Abbots of Ely and St. Edmund's[280]. In some cases a man may, in others he may not, be able to prevent himself being transferred from lord to lord, or from ancestor to heir. What passes by alienation or inheritance may be regarded rather as a right to his commendation than as the commendation itself[281]. Of course there is nothing to hinder one from being the man of several different lords. Ælfric Black held lands of the Abbot of Westminster which he could not separate from the church, but for other lands he was the man of Archbishop Stigand[282]. Already a lofty edifice is being constructed; _B_, to whom _C_ is commended, is himself commended to _A_; and in this case a certain relation exists between _C_ and _A_; _C_ is 'sub-commended' to _A_[283].

[Commendation and service.]

In a given case the somewhat vague obligation of the commended man may be rendered definite by a bargain which imposes upon him the payment of rent or the performance of some specified services. When this is so, we shall often find that the land is moving, if we may so speak, not from the man but from the lord. The man is taking land from the lord to hold during good behaviour[284], or for life[285], or for lives. A form of lease or loan (_lǽn_) which gives the land to the lessee and to two or three successive heirs of his, has from of old been commonly used by some of the great churches[286]. Also we see landowners giving up their land to the churches and taking it back again as mere life tenants. During their lives the church is to have some 'service,' or at least some 'recognition' of its lordship, while after their deaths the church will have the land in demesne[287]. This is something different from mere commendation. We see here the _feuda oblata_ or _beneficia oblata_ which foreign jurists have contrasted with _feuda_ or _beneficia data_. The land is brought into the bargain by the man, not by the lord. But often the land comes from the lord, and the tenancy is no merely temporary tenancy; it is heritable. The king has provided his thegns with lands; the earls, the churches have provided their thegns with lands, and these thegns have heritable estates, and already they are conceived as holding them of (_de_) the churches, the earls, the king. But we must not as yet be led away into any discussion about the architecture of the very highest storeys of the feudal or vassalic edifice. It must at present suffice that in humbler quarters there has been much letting and hiring of land. The leases, if we choose to call them so, the gifts, if we choose to call them so, have created heritable rights and perdurable relationships.

[Land-loans and services.]

There is no kind of service that can not be purchased by a grant or lease of land. Godric's wife had land from the king because she fed his dogs[288]. Ælfgyfu the maiden had land from Godric the sheriff that she might teach his daughter orfrey work[289]. The monks of Pershore stipulate that their dominion shall be recognized by 'a day's farm' in every year, that is, that the lessee shall once a year furnish the convent with a day's victual[290]. The king's thegns between the Ribble and the Mersey have 'like villeins' to make lodges for the king, and fisheries and deer-hays, and must send their reapers to cut the king's crops at harvest time[291]. The radmen and radknights of the west must ride on their lord's errands and make themselves generally useful; they plough and harrow and mow, and do whatever is commanded them[292].

[The man's _consuetudines_.]

But we would here speak chiefly of the lowly 'free men' and sokemen of the eastern counties. Besides having their commendation and their soke, the lord very often has what is known as their _consuetudo_ or their _consuetudines_. Often they are the lord's men _de omni consuetudine_. In all probability the word when thus employed, when contrasted with commendation on the one hand and with soke on the other, points to payments and renders to be made in money and in kind and to services of an agricultural character. Of such services only one stands out prominently; it is very frequently mentioned in the survey of East Anglia; it is fold-soke, _soca faldae_. The man must not have a fold of his own; his sheep must lie in the lord's fold. It is manure that the lord wants; the demand for manure has played a large part in the history of the human race. Often enough this is the one _consuetudo_, the one definite service, that the lord gets out of his free men[293]. And then a man who is _consuetus ad faldam_, tied to his lord's fold, is hardly to be considered as being in all respects a 'free' man. Those who are not 'fold-worthy' are to be classed with those who are not 'moot-worthy' or 'fyrd-worthy.' We are tempted to say that a man's _caput_ is diminished by his having to seek his lord's fold, just as it would be diminished if he were excluded from the communal courts or the national host[294]. From the nature of this one _consuetudo_ and from the prominence that is given to it, we may guess the character of the other _consuetudines_. Suit to the lord's mill would be analogous to suit to his fold[295]. Of 'mill-soke' we read nothing, but often enough a surprisingly large part of the total value of a manor is ascribed to its mill, and we may argue that the lord has not invested capital in a costly undertaking without making sure of a return. We may well suppose that like the radmen of the west the free men and sokemen of the east give their lord some help in his husbandry at harvest time. From a document which comes to us from the abbey of Ely, and which is slightly older than the Domesday Inquest, we learn that certain of St. Etheldreda's sokemen in Suffolk had nothing to do but to plough and thresh whenever the abbot required this of them; others had to plough and weed and reap, to carry the victual of the monks to the minster and furnish horses whenever called upon to do so[296]. This seems to point rather to 'boon-days' than to continuous 'week-work,' and we observe that the sokemen of the east like the radmen of the west have horses. Occasionally we learn that a sokeman has to pay an annual sum of money to his lord; sometimes this looks like a substantial rent, sometimes like a mere 'recognition'; but the words that most nearly translate our 'rent,' _redditus_, _census_, _gablum_ are seldom used in this context. All is _consuetudo_.

[Nature of _consuetudines_.]

It is an interesting word. We perhaps are eager to urge the dilemma that in these cases the land must have been brought into the bargain either by the lord or by the tenant:--either the lord is conceived as having let land to the tenant, or the theory is that the tenant has commended land to the lord. But the dilemma is not perfect. It may well be that this relationship is thought of as having existed from all time; it may well be that this relationship, though under slowly varying forms, has really existed for several centuries, and has had its beginning in no contract, in no bargain. In origin the rights of the lord may be the rights of kings and ealdormen, rights over subjects rather than rights over tenants. The word _consuetudo_ covers taxes as well as rents, and, if the sokeman has to do work for his lord, very often, especially in Cambridgeshire and Hertfordshire, he has to do work for the king or for the sheriff also. If he has to do carrying service for the lord, he has to do carrying service (_avera_) for the sheriff also or in lieu thereof to pay a small sum of money[297]. And another aspect of this word _consuetudo_ is interesting to us. Land that is burdened with customs is customary land (_terra consuetudinaria_)[298]. As yet this term does not imply that the tenure, though protected by custom, is not protected by law; there is no opposition between law and custom; the customary tenant of Domesday Book is the tenant who renders customs, and the more customs he renders the more customary he is[299].

[Justiciary _consuetudines_.]

This word _consuetudo_ is the widest of words. Perhaps we find the best equivalent for _consuetudines_ in our own vague 'dues[300].' It covers what we should call rents; it covers what we should call rates and taxes; but further it covers what we should call the proceeds and profits of justice. Let us construe a few entries. At Romney there are burgesses who in return for the service that they do on the sea are quit of all customs except three, namely, larceny, peace-breach and ambush[301]. In Berkshire King Edward gave to one of his foresters half a hide of land free from all custom, except the king's forfeiture, such as larceny, homicide, hám-fare and peace-breach[302]. In what sense can a crime be a custom? In a fiscal sense. A crime is a source of revenue. In what sense should we wish to have our land free of crimes, free even, if this be possible, of larceny and homicide? In this sense:--we should wish that no money whatever should go out of our land, neither by way of rent, nor by way of tax, rate, toll, nor yet again by way of _forisfactura_, of payment for crime committed. We should wish also that our land with the tenants on it should be quit or quiet (_quieta_) from the incursions of royal and national officers, whether they be in search of taxes or in search of criminals and the fines due from criminals, and we should also like to put those fines in our own pockets. Justice therefore takes its place among the _consuetudines_: 'larceny' is a source of income. A lord who has 'his customs,' is a lord who has among other sources of revenue, justice or the profits of justice[303]. 'Justice or the profits of justice,' we say, for our record does not care to distinguish between them. It is thinking of money while we are engaged in questioning it about the constitution and competence of tribunals. It gives us but crooked answers. However, we must make the best that can be made of them, and in particular must form some opinion about the _consuetudines_ known as _sake_ and _soke_.

FOOTNOTES:

[238] We shall see hereafter that some of these so-called 'manors'
are but small plots and their holders small folk.

[239] See above p. 24.

[240] D. B. i. 128 b, 129, 129 b.

[241] D. B. i. 34, 35 b.

[242] D. B. i. 13.

[243] D. B. ii. 287. There are free men, apparently 120 in number,
of whom it is written: 'Hii liberi homines qui tempore regis
Eduardi pertinebant in soca de Bercolt, unusquisque gratis
dabat preposito per annum 4 tantum denarios, et reddebat socam
sicut lex ferebat, et quando Rogerius Bigot prius habuit
vicecomitatum statuerunt ministri sui quod redderent 15 libras
per annum, quod non faciebant T. R. E. Et quando Robertus
Malet habuit vicecomitatum sui ministri creverunt illos ad 20
libras. Et quando Rogerius Bigot eos rehabuit dederunt
similiter 20 libras. Et modo tenet eos Aluricus Wanz tali
consuetudine qua erant T. R. E.' This is a rare instance of a
reestablishment of the _status quo ante conquestum_.

[244] Compare Round, Feudal England, 33.

[245] D. B. ii. 187 b: 'Ex his non habuit Ailwinus suus antecessor
etiam commendationem.'

[246] D. B. ii. 287: 'De his hominibus ... non habuit Haroldus etiam
commendationem.'

[247] D. B. ii. 153 b: 'Unde suus antecessor habuit commendationem
tantum.' Ibid. 154: 'Alstan liber homo Edrici commend[atione]
tantum.'

[248] D. B. ii. 161 b.

[249] D. B. ii. 244.

[250] D. B. ii. 6: 'De predicto sochemano habuit Rad. Piperellus
consuetudinem in unoquoque anno per 3 solidos, set in T. R. E.
non habuit eius antecessor nisi tantum modo commendationem.'

[251] D. B. ii. 171 b: 'Calumpniatur R. Malet 18 liberos homines, 3
commendatione et alios de omni consuetudine.'

[252] D. B. ii. 250 b: 'Huic manerio adiacent semper 4 homines de
omni consuetudine et alii 4 ad socham tantum.'

[253] D. B. ii. 356 b.

[254] D. B. ii. 357.

[255] D. B. ii. 353 b.

[256] D. B. ii. 362: 'set soca remaneret sancto et servitium
quicunque terram emeret.'

[257] D. B. ii. 358.

[258] D. B. i. 58: 'Pater Tori tenuit T. R. E. et potuit ire quo
voluit sed pro sua defensione se commisit Hermanno episcopo et
Tori Osmundo episcopo similiter.'

[259] D. B. i. 32 b: 'set pro defensione se cum terra abbatiae
summiserunt.'

[260] D. B. ii. 62 b: 'et T. R. W. effectus est homo Goisfridi
sponte sua.'

[261] D. B. i. 36 b: 'T. R. W. femina quae hanc terram tenebat misit
se cum ea in manu reginae.' Ibid. 36: 'Quidam liber homo hanc
terram tenens et quo vellet abire valens commisit se in
defensione Walterii pro defensione sua.'

[262] D. B. ii. 172: 'Hos calumpniatur Drogo de Befrerere pro
homagio tantum.' This seems equivalent to the common
'commendatione tantum.' D. B. i. 225 b: 'fuerunt homines
Burred et iccirco G. episcopus clamat hominationem eorum.'

[263] Schmid, App. x.

[264] Æthelst. II. 2.

[265] Also it had declared that every man must have a pledge, and
probably the easiest way of fulfilling this command was to
place oneself under a lord who would put one into a tithing.

[266] Leg. Edw. Conf. 12, § 5; but this is contradicted by Leg.
Henr. 87, § 4.

[267] Æthelr. I. 1, § 2; compare Æthelr. III. 3, § 4.

[268] Leg. Hen. 82, § 6; 85, § 2.

[269] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' Ibid.
103: 'vocavit Ilbodonem ad tutorem et postea non adduxit
tutorem.' Ibid. 31 b: 'revocat eam ad defensorem.' D. B. i.
141 b: 142: 'sed Harduinus reclamat Petrum vicecomitem ad
protectorem.' Ibid. 227 b: 'et dicit regem suum advocatum
esse.'

[270] D. B. ii. 71 b: 'Phenge tenet idem Serlo de R[anulfo
Piperello] quod tenuit liber homo ... qui T. R. W. effectus
est homo antecessoris Ranulfi Piperelli, set terram suam sibi
non dedit.' This however is not quite to the point.

[271] D. B. i. 72: 'Toti emit eam T. R. E. de aecclesia
Malmesburiensi ad etatem trium hominum et infra hunc terminum
poterat ire cum ea ad quem vellet dominum.'

[272] D. B. ii. 57 b: 'Et haec terra quam modo tenet G. fuit in
abbatia de Berchingis sicuti hundret testatur; set ille qui
tenuit hanc terram fuit tantum modo homo [Leuild] antecessoris
Goisfridi et non potuit istam terram mittere in aliquo loco
nisi in abbatia.'

[273] Leg. Hen. 82, § 3.

[274] D. B. ii. 118 b: 'In burgo [de Tetfort] autem erant 943
burgenses T. R. E. De his habuit Rex omnem consuetudinem. De
istis hominibus erant 36 ita dominice Regis E. ut non possent
esse homines alicuius sine licentia Regis. Alii omnes poterant
esse homines cuiuslibet set semper tamen consuetudeo Regis
remanebat _preter herigete_.' Compare D. B. i. 336 b,
Stamford: 'In his custodiis sunt 72 mansi sochemanorum, qui
habent terras suas in dominio, et qui petunt dominos ubi
volunt, super quos Rex nichil aliud habet nisi emendationem
forisfacturae eorum et heriete et theloneum.' In this case
commendation would not carry the heriot with it.

[275] D. B. ii. 201: 'Liber homo de 80 acris terrae Almari episcopi
et Alwoldi abbatis commend[atione] tantum, et hic homo erat
ita in monasterio quod non potuit dare terram suam nec
vendere.' See another entry of the same kind on the same page.

[276] D. B. i. 50 b: 'Hic Alwinus tenuit hanc terram T. R. E. sub
Wigoto pro tuitione; modo tenet eam sub Milone.'

[277] For example, D. B. ii. 353 b: 'Hii poterant dare et vendere
terram suam T. R. E. set commend[atio] et soca et saca
remanebat S. Edmundo.'

[278] D. B. ii. 182 b: 'Ulchetel habuit dimidiam commendationem de
illo T. R. E. et de uxore ipsius totam commendationem.' Ibid.
249 b: 'Medietas istius hominis fuit antecessoris Baingnardi
commendatione tantum et alia medietas S. Edmundi cum dimidia
terra.' The contrast between _dimidii homines_ and _integri
homines_ is common enough. See D. B. ii. 309: one man has a
sixth and another five-sixths of a commendation.

[279] D. B. ii. 333 b.

[280] D. B. ii. 125 b.

[281] D. B. i. 58. Tori 'committed himself for defence' to Bp.
Herman; Tori's son has done the same to Osmund, the successor
of Herman.

[282] D. B. i. 133: 'sed pro aliis terris homo archiepiscopi
Stigandi fuit.'

[283] On the whole this seems to be the meaning of
'sub-commendation.' We read a good deal of men who were
sub-commended to the _antecessor_ of Robert Malet. This seems
to be explained by such an entry as the following (ii. 313 b):
'Eadric holds two free men who were commended to Eadric, who
himself was commended to (another) Eadric, the _antecessor_ of
Robert Malet.'

[284] D. B. i. 45 b: 'Quidam frater Edrici tenuit tali conventione,
quod quamdiu bene se haberet erga eum [Edricum] tamdiu terram
de eo teneret, et si vendere vellet, non alicui nisi ei de quo
tenebat vendere vel dare liceret.'

[285] Cases of life tenancies will be found in D. B. i. 47,
Stantune; 67 b, Newetone; 80, Catesclive; 177 b, Witune; ii.
373, 444 b.

[286] D. B. i. 46 b, 66 b, 72, 175. We shall return to this when in
the next essay we speak of _loanland_.

[287] D. B. i. 67 b: 'Hanc terram reddidit sponte sua aecclesiae
Hardingus qui in vita sua per convent[ionem] debebat tenere.'
See also the case in i. 177 b. Again, ii. 431: 'terram quam
cepit cum uxore sua ... misit in ecclesia concedente muliere
tali conventione quod non potuit vendere nec dare de
aecclesia.' For a 'recognitio' see i. 175, Persore.

[288] D. B. i. 57 b.

[289] D. B. i. 149: 'De his tenuit Aluuid puella 2 hidas ... et de
dominica firma Regis Edwardi habuit ipsa dimidiam hidam quam
Godricus vicecomes ei concessit quamdiu vicecomes esset, ut
illa doceret filiam ejus aurifrisium operari.'

[290] D. B. i. 175: 'Hanc emit quidam Godricus teinus regis Edwardi
vita trium haeredum et dabat in anno monachis unam firmam pro
recognitione.'

[291] D. B. i. 269 b.

[292] See above p. 56. Their tenure will be discussed hereafter in
connexion with St. Oswald's land-loans.

[293] D. B. ii. 187 b: 'In Carletuna 27 liberi homines et dimidius
sub Olfo commendatione tantum et soca falde ... 15 liberi
homines sub Olfo soca falde et commendatione tantum.'

[294] D. B. ii. 203 b: 'In eadem villa 12 homines 6 quorum erant in
soca falde et alii 6 erant liberi.' Ibid. 361 b: '70 liberi
... super hos homines habet et semper habuit sacam et socam et
omnem consuetudinem et ad faldam pertinent omnes preter 4.'
Ibid. ii. 207: '17 liberi homines consueti ad faldam et
commendati.' The term 'fold-worthy' occurs in a writ of Edward
the Confessor; he gives to St. Benet of Ramsey soke over such
of the men of a certain district as are moot-worthy,
fyrd-worthy, and fold-worthy: Earle, Land Charters, p. 343;
Kemble, iv. p. 208.

[295] In later extents of East Anglian manors the fold-soke plays an
important part. Cart. Rams. iii. 267: 'R. tenuit unam
carucatam terrae cum falda sua pro octo solidis. A. dabat pro
terra sua quadraginta denarios et oves eius erant in falda
Abbatis.... H. triginta acras pro quatuor solidis et oves eius
sunt in manu domini....'

[296] See the document printed by Hamilton at the end of the
Inquisitio Com. Cantabr. p. 192. 'Isti solummodo arabunt et
contererent messes eiusdem loci quotienscunque abbas
preceperit....' 'Ita proprie sunt abbati ut quotienscunque
ipse preceperit in anno arabunt suam terram, purgabunt et
colligent segetes, portabunt victum monachorum ad monasterium,
equos eorum in suis necessitatibus semper habebit.' For more
of this matter see Round, Feudal England, 30.

[297] D. B. i. 141: there are four sokemen who are men of Æthelmær
and who can not sell their land without his consent; but they
are under the king's sake and soke and jointly provide the
sheriff with one _avera_ every year or four pence.

[298] D. B. i. 249: 'Haec terra fuit consuetudinaria solummodo de
theloneo regis sed aliam socam habebat.'

[299] D. B. ii. 273 b: 'In eadem 8 consuetudinarii ad faldam sui
antecessoris.' Ibid. 215: '8 homines consuetudinarios ad hoc
manerium.'

[300] D. B. i. 280: 'Duae partes Regis et tercia comitis de censu et
theloneo et forisfactura et de omni consuetudine.' Ibid. 42:
'Unam aecclesiam et 6 capellas cum omni consuetudine vivorum
et mortuorum.'

[301] D. B. i. 10 b: 'et sunt quieti pro servitio maris ab omni
consuetudine preter tribus, latrocinio, pace infracta, et
forestel.'

[302] D. B. i. 61 b: 'solutam ab omni consuetudine propter forestam
custodiendam excepta forisfactura Regis, sicut est
latrocinium, et homicidium, et heinfara, et fracta pax.'

[303] D. B. i. 52: 'Hi infrascripti habent in Hantone
consuetud[ines] domorum suarum.' Ibid. 249: 'Haec terra fuit
consuetudinaria solummodo de theloneo Regis sed socam aliam
habebat.'

§ 5. _Sake and soke._

[Sake and soke.]

We may best begin our investigation by recalling the law of later times. In the thirteenth century seignorial justice, that is, justice in private hands, has two roots. A certain civil jurisdiction belongs to the lord as such; if he has tenants enough to form a court, he is at liberty to hold a court of and for his tenants. This kind of seignorial justice we call specifically feudal justice. But very often a lord has other and greater powers than the feudal principle would give him; in particular he has the view of frankpledge and the police justice that the view of frankpledge implies. All such powers must in theory have their origin in grants made by the king; they are franchises. With feudal justice therefore we contrast 'franchisal' justice[304].

[Private jurisdiction in the Leges.]

Now if we go back to the Norman period we shall begin to doubt whether the feudal principle--the principle which as a matter of course gives the lord justiciary powers over his tenants--is of very ancient origin[305]. The state of things that then existed should be revealed to us by the Leges Henrici; for, if that book has any plan at all, it is a treatise on the law of jurisdiction, a treatise on 'soke.' To this topic the writer constantly returns after many digressions, and the leading theme of his work is found in the following sentence:--'As to the soke of pleas, there is that which belongs properly and exclusively to the royal fiscus; there is that which it participates with others; there is that which belongs to the sheriffs and royal bailiffs as comprised in their ferms; there is that which belongs to the barons who have soke and sake[306].' But, when all has been said, the picture that is left on our minds is that of a confused conflict between inconsistent and indefinite principles, and very possibly the compiler in giving us such a picture is fulfilling the duty of a faithful portrayer of facts, though he does not satisfy our demand for a rational theory.

[Soke in the _Leges Henrici_.]

On the one hand, it seems plain that there is a seignorial justice which is not 'franchisal.' Certain persons have a certain 'soke' apart from any regalities which may have been expressly conceded to them by the king. But it is not clear that the legal basis of this soke is the simple feudal principle stated above, namely, that jurisdiction springs from the mere fact of tenure. An element of which we hear little in later days, is prominent in the Leges, the element of rank or personal status. 'The archbishops, bishops, earls and other 'powers' (_potestates_) have sake and soke, toll, team and infangenethef in their own lands[307].' Here the principle seems to be that men of a certain rank have certain jurisdictional powers, and the vague term _potestates_ may include in this class all the king's barons. But then the freeholding _vavassores_ have a certain jurisdiction, they have the pleas which concern _wer_ and _wíte_ (that is to say 'emendable' pleas) over their own men and their own property, and sometimes over another man's men who have been arrested or attached in the act of trespass[308]. Whatever else we may think of these _vavassores_, they are not barons and probably they are not immediate tenants of the king[309]. It is clear, however, that there may be a 'lord' with 'men' who yet has no sake or soke over them[310]. We are told indeed that every lord may summon his man to stand to right in his court, and that if the man be resident in the remotest manor of the honour of which he holds, he still must go to the plea[311]. Here for a moment we seem to have a fairly clear announcement of what we call the simple feudal principle, unadulterated by any element of personal rank; still our text supposes that the lord in question is a great man, he has no mere manor but an honour or several honours. On the whole, our law seems for the time to be taking the shape that French law took. If we leave out of sight the definitely granted franchisal powers, then we may say that a baron or the holder of a grand fief has 'high justice,' or if that term be too technical, a higher justice, while the vavassor has 'low justice' or a lower justice. But in this province, as in other provinces, of English law personal rank becomes of less and less importance. The rules which would determine it and its consequences are never allowed to become definite, and in the end a great generalization surmounts all difficulties:--every lord has a certain civil justice over his tenants; whatsoever powers go beyond this, are franchises.

[Kinds of soke in the _Leges_.]

As to the sort of jurisdiction that a lord of our Leges has, we can make no statement in general terms. Such categories as 'civil' and 'criminal' are too modern for use. We must of course except the pleas of the crown, of which a long and ungeneralized list is set before us[312]. We must except the pleas of the church. We must except certain pleas which belong in part to the king and in part to the church[313]. Then we observe that the justice of an archbishop, bishop or earl, probably the justice of a baron also, extends as high as _infangenethef_, while that of a vavassor goes no higher than such offences as are emendable. The whole matter however is complicated by royal grants. The king may grant away a demesne manor and retain not only 'the exclusive soke' (i.e. the soke over the pleas of the crown), but also 'the common soke' in his hand[314], and a great man may by purchase acquire soke (for example, we may suppose, the hundredal soke) over lands that are not his own[315]. Then again, we may suspect that what is said of 'soke' in general does not apply to any jurisdiction that a lord may exercise over his _servi_ and _villani_. As to the _servi_, very possibly the lord's right over them is still conceived as proprietary rather than jurisdictional, while for his _villani_ (_serf_ and _villein_ are not yet convertible terms) the lord, whatever his rank may be, will probably hold a 'hallmoot[316]' and exercise that 'common soke' which does not infringe the royal preserves. On the whole, the law of the thirteenth century seems to evolve itself somewhat easily out of the law of these Leges, the process of development being threefold: (1) the lord's rank as bishop, abbot, earl, baron, becomes unimportant; (2) the element of tenure becomes all-important; the mere fact that the man holds land of the lord makes him the lord's justiciable; thus a generalization becomes possible which permits even so lowly a person as a burgess of Dunstable to hold a court for his tenants[317]; (3) the obsolescence of the old law of _wíte_ and _wer_, the growth of the new law of felony, the emergence in Glanvill's book of the distinction between criminal and civil pleas as a grand primary distinction, the introduction of the specially royal processes of presentment and inquest, bring about a new apportionment of the field of justice and a rational demarcation of feudal from franchisal powers. Still when we see the lords, especially the prelates of the church, relying upon prescription for their choicest franchises[318], we may learn (if such a lesson be needed) that new theories could not master all the ancient facts.

[The Norman kings and private jurisdiction.]

Whether the Conqueror or either of his sons would have admitted that any justice could be done in England that was not his justice, we may fairly doubt. They issued numerous charters which had no other object than that of giving or confirming to the donees 'their sake and soke,' and, so far as we can see, there is no jurisdiction, at least none over free men, that is not accounted to be 'sake and soke.' Occasionally it is said that the donees are to have 'their court.' However far the feudalization of justice had gone either in Normandy or in England before the Conquest, the Conquest itself was likely to conceal from view the question whether or no all seignorial jurisdiction is delegated from above; for thenceforward every lay tenant in chief, as no mere matter of theory, but as a plain matter of fact, held his land by a title derived newly and immediately from the king. Thus it would be easy for the king to maintain that, if the lords exercised jurisdictional powers, they did so by virtue of his grant, an expressed grant or an implied grant. Gradually the process of subinfeudation would make the theoretical question prominent and pressing, for certainly the Norman nobles conceived that, even if their justice was delegated to them by the king, no rule of law prevented them from appointing sub-delegates. If they claimed to give away land, they claimed also to give away justice, and no earnest effort can have been made to prevent their doing this[319].

[Sake and soke in Domesday Book.]

Returning from this brief digression, we must consider _sake_ and _soke_ as they are in Domesday Book. For a moment we will attend to the words themselves[320]. Of the two _soke_ is by far the commoner; indeed we hardly ever find _sake_ except in connexion with _soke_, and when we do, it seems just an equivalent for _soke_. We have but an alliterative jingle like 'judgment and justice[321].' Apparently it matters little or nothing whether we say of a lord that he has _soke_, or that he has _sake_, or that he has _soke_ and _sake_. But not only is _soke_ the commoner, it is also the wider word; we can not substitute _sake_ for it in all contexts. Thus, for example, we say that a man renders _soke_ to his lord or to his lord's manor; also we say that a piece of land is a _soke_ of such and such a manor; no similar use is made of _sake_.

[Meaning of _sake_.]

Now as a matter of etymology _sake_ seems the easier of the two words. It is the Anglo-Saxon _sacu_, the German _Sache_, a thing, a matter, and hence a 'matter' or 'cause' in the lawyer's sense of these terms, a 'matter' in dispute between litigants, a 'cause' before the court. It is still in use among us, for though we do not speak of a sake between two persons, we do speak of a man acting for another's sake, or for God's sake, or for the sake of money[322]. In Latin therefore _sake_ may be rendered by _placitum_:--'Roger has sake over them' will become 'Rogerius habet placita super eos[323]'; Roger has the right to hold plea over them. Thus easily enough _sake_ becomes the right to have a court and to do justice.

[Meaning of _soke_.]

As to _soke_, this has a very similar signification, but the route by which it attains that signification is somewhat doubtful. We must start with this that _soke_, _socna_, _soca_, is the Anglo-Saxon _sócn_ and has for its primary meaning a _seeking_. It may become connected with justice or jurisdiction by one or by both of two ways. One of these is explained by a passage in the Leges Henrici which says that the king has certain causes or pleas 'in socna i.e. quaestione sua.' The king has certain pleas within his investigation, or his right to investigate. A later phrase may help us:--the king is entitled to 'inquire of, hear and determine' these matters[324]. But the word might journey along another path which would lead to much the same end. It means seeking, following, suing, making suit, _sequi_, _sectam facere_. The duty known as _soca faldae_ is the duty of seeking the lord's fold. Thus _soca_ may be the duty of seeking or suing at the lord's court and the correlative right of the lord to keep a court and exact suit. Without denying that the word has traversed the first of the two routes, the route by way of 'investigation'--in the face of the Leges Henrici we can hardly deny this--we may confidently assert that it has traversed the second, the route by way of 'suit.' There are several passages which assure us that _soke_ is a genus of which _fold-soke_ is a species. Thus:--'Of these men Peter's predecessor had fold-soke and commendation and Stigand had the other soke[325].' In a document which is very closely connected with the great survey we find what seems to be a Latin translation of our word. The churches of Worcester and Evesham were quarrelling about certain lands at Hamton. Under the eye of the king's commissioners they came to a compromise, which declared that the fifteen hides at Hamton belonged to the bishop of Worcester's hundred of Oswaldslaw and ought to pay the king's geld and perform the king's services along with the bishop and ought 'to seek the said hundred for pleading':--_requirere ad placitandum_, this is the main kind of 'seeking' that _soke_ implies[326]. If we look back far enough in the Anglo-Saxon dooms, there is indeed much to make us think that the act of seeking a lord and placing oneself under his protection, and the consequences of that act, the relation between man and lord, the fealty promised by the one, the warranty due from the other, have been known as _sócn_[327]. If so, then there may have been a time when commendation and soke were all one. But this time must be already ancient, for although we do not know what English word was represented by _commendatio_, still there is no distinction more emphatically drawn by Domesday Book than that between _commendatio_ and _soca_.

[Soke as jurisdiction.]

Now when we meet with _soca_ in the Leges Henrici we naturally construe it by some such terms as 'jurisdiction,' 'justice,' 'the right to hold a court.' We have seen that the author of that treatise renders it by the Latin _quaestio_. We also meet the following phrases which seem clear enough:--'Every cause shall be determined in the hundred, or in the county, or in the hallmoot of those who have soke, or in the courts of the lords[328]'; '... according to the soke of pleas, which some have in their own land over their own men, some over their own men and strangers, either in all causes or in some causes[329]': ... 'grithbrice or hámsócn or any of those matters which exceed their soke and sake[330]': 'in capital causes the soke is the king's[331].' So again our author explains that though a baron has soke this will not give him a right to justice over himself; no one, he says, can have his own forfeiture; no one has a soke of impunity:--'nullus enim socnam habet impune peccandi[332].' The use that Domesday Book makes of the word may not be quite so clear. Sometimes we are inclined to render it by _suit_, in particular when fold-soke is contrasted with 'other soke.' But very generally we must construe it by _justice_ or by _justiciary rights_, though we must be careful not to introduce the seignorial court where it does not exist, and to remember that a lord may be entitled to receive the wites or fines incurred by his criminous men without holding a court for them. Those men may be tried and condemned in a hundred court, but the wite will be paid to their lord. Then the word is applied to tracts of land. A tract over which a lord has justiciary power, or a wite-exacting power, is his _soke_, and very often his _soke_ is contrasted with those other lands over which he has rights of a more definitely proprietary kind. But we must turn from words to law.

[Seignorial justice before the Conquest.]

Already before the Conquest there was plenty of seignorial justice in England. The greatest of the Anglo-Saxon lords had enjoyed wide and high justiciary rights. Naturally it is of the rights of the churches that we hear most, for the rights that they had under King Edward they still claim under King William. Foremost among them we may notice the church of Canterbury. On the great day at Penenden Heath, Lanfranc proved that throughout the lands of his church in Kent the king had but three rights; all other justice was in the hands of the archbishop[333]. In Warwickshire the Archbishop of York has soke and sake, toll and team, church-scot and all other 'forfeitures' save those four which the king has throughout the whole realm[334]. These four forfeitures are probably the four reserved pleas of the crown that are mentioned in the laws of Cnut--_mundbryce_, _hámsócn_, _forsteal_ and _fyrdwíte_[335]. But even these rights though usually reserved to the king may have been made over to the lord. In Yorkshire neither king nor earl has any 'custom' within the lands of St. Peter of York, St. John of Beverley, St. Wilfrid of Ripon, St. Cuthbert of Durham and the Holy Trinity. We are asked specially to note that in this region there are four royal highways, three by land and one by water where the king claims all forfeitures even when they run through the land of the archbishop or of the earl[336]. Within his immense manor of Taunton the Bishop of Winchester has pleas of the highest class, and three times a year without any summons his men must meet to hold them[337]. In Worcestershire seven of the twelve hundreds into which the county is divided are in the heads of four great churches; Worcester has three, Westminster two, Evesham one, Pershore one. Westminster holds its lands as freely as the king held them in his demesne; Pershore enjoys all the pleas of the free men; no sheriff can claim anything within the territory of St. Mary of Worcester, neither in any plea, nor in any other matter[338]. In East Anglia we frequently hear of the reserved pleas of the crown. In this Danish district they are accounted to be six in number; probably they are _griðbrice_, _hámsócn_, _fihtwíte_ and _fyrdwíte_, outlaw's-work and the receipt of outlaws[339]. Often we read how over the men of some lord the king and the earl have 'the six forfeitures,' or how 'the soke of the six forfeitures' lies in some royal manor[340]. But then there is a large tract in which these six forfeitures belong to St. Edmund; some other lord may have sake and soke in a given parcel of that tract, but the six forfeitures belong to St. Edmund; they are indeed 'the six forfeitures of St. Edmund[341].' Other arrangements were possible. We hear of men over whom St. Benet had three forfeitures[342]. The lawmen of Stamford had sake and soke within their houses and over their men, save geld, heriot, larceny and forfeitures exceeding 40 ores of silver[343]. Certain burgesses of Romney serve the king on the sea, and therefore they have their own forfeitures, save larceny, peace-breach and forsteal, and these belong, not to the king, but to the archbishop[344]. Sometimes King William will be careful to limit his confirmation of a lord's sake and soke to the 'emendable forfeitures,' the offences which can be paid for with money[345].

[Soke as a regality.]

That in the Confessor's day justiciary rights could only be claimed by virtue of royal grants, that they did not arise out of the mere relation between lord and man, lord and tenant, or lord and villein, seems to us fairly certain. In the first place, as already said, soke is frequently contrasted with commendation. In the second place, as we turn over the pages of our record, we shall see it remarked of some man, who held a manor in the days before the Conquest, that he had it with sake and soke, and the remark is made in such a context that thereby he is singled out from among his fellows[346]. Thus it is said of a little group of villeins and sokemen in Essex that 'their lord had sake and soke[347].' Not that we can argue that a lord has no soke unless it is expressly ascribed to him. The surveyors have no great interest in this matter. Sometimes such a phrase as 'he held it freely' seems to serve as an equivalent for 'he held it with sake and soke[348].' It is said of the Countess Judith, a lady of exalted rank, that she had a manse in Lincoln without sake and soke[348]. Then we are told that throughout the city of Canterbury the king had sake and soke except in the lands of the Holy Trinity (Christ Church), St. Augustin, Queen Edith, and three other lords[350]. We have a list of fifteen persons who had sake and soke in the two lathes of Sutton and Aylesford[351], a list of thirty-five persons who had sake and soke, toll and team in Lincolnshire (it includes the queen, a bishop, three abbots and two earls[352]), and a list of nineteen persons who had similar rights in the shires of Derby and Nottingham[353]. Such lists would have been pointless had any generalization been possible. Then in East Anglia it is common enough to find that the men who are reckoned to be the _liberi homines_ of some lord are under the soke of another lord or render their soke to the king and the earl, that is to say, to the hundred court. Often enough it is said somewhat pointedly that the men over whom the king and the earl have soke are _liberi homines_, and this may for a moment suggest that the lord as a matter of course has soke over such of his men as are not ranked as 'free men'; possibly it may suggest that freedom in this context implies subjection to a national as opposed to a seignorial tribunal[354]. But on the one hand a lord often enough has soke over those who are distinctively 'free men[355],' while on the other hand, as will be explained below, he has not the soke over his sokeman[356].

[Soke over villeins.]

But we must go further and say that the lord has not always the soke over his villeins. This is a matter of much importance. An entry relating to a manor in Suffolk seems to put it beyond doubt:--In the hundred and a half of Sanford Auti a thegn held Wenham in King Edward's time for a manor and three carucates of land; there were then nine _villani_, four _bordarii_ and one _servus_ and there were two teams on the demesne; Auti had the soke over his demesne and the soke of the villeins was in Bercolt[357]. Now Bercolt, the modern Bergholt, was a royal manor, the seat of a great court, which had soke over many men in the neighbouring villages. To all seeming it was the court for the hundred, or 'hundred-and-a-half,' of Sanford[358]. Here then we seem to have villeins who are not under the soke of their lord but are the justiciables of the hundred court. In another case, also from Suffolk, it is said of the lord of a manor that he had soke 'only over the demesne of his hall,' and this seems to exclude from the scope of his justiciary rights the land held by thirty-two villeins and eight bordiers[359]. We may find the line drawn at various places. Not very unfrequently in East Anglia a lord has the soke over those men who are bound to his sheep-fold, while those who are 'fold-worthy' attend the hundred court[360]. In one case a curious and instructive distinction is taken:--'In Farwell lay in King Edward's day the sake and soke of all who had less than thirty acres, but of all who had thirty acres the soke and sake lay in the hundred[361].' In this case the line seems to be drawn just below the virgater, no matter the legal class to which the virgater belongs. To our thinking it is plain enough that many a _manerium_ of the Confessor's day had no court of its own. As we shall see hereafter, the manors are often far too small to allow of our endowing each of them with a court. When of a Cheshire manor we hear that 'this manor has its pleas in its lord's hall' we are being told of something that is exceptional[362]. In the thirteenth century no one would have made such a remark. In the eleventh the _halimote_ or _hall-moot_ looks like a novelty.

[Private soke and hundredal soke.]

Seignorial justice is as yet very closely connected with the general scheme of national justice. Frequently the lord who has justice has a hundred. We remember how seven of the twelve hundreds of Worcestershire are in the hands of four great churches[363]. St. Etheldreda of Ely has the soke of five and a half hundreds in Suffolk[364]. In Essex Swain had the half-hundred of Clavering, and the pleas thereof brought him in 25_s._ a year[365]. In Nottinghamshire the Bishop of Lincoln had all the customs of the king and the earl throughout the wapentake of Newark[366]. The monks of Battle Abbey claimed that the sake and soke of twenty-two hundreds and a half and all royal 'forfeitures' were annexed to their manor of Wye[367]. But further--and this deserves attention--when the hundredal jurisdiction was not in the hands of some other lord, it was conceived as belonging to the king. The sake and soke of a hundred or of several hundreds is described as 'lying in,' or being annexed to, some royal manor and it is farmed by the farmer of that manor. Oxfordshire gives us the best example of this. The soke of four and a half hundreds belongs to the royal manor of Bensington, that of two hundreds to Headington, that of two and a half to Kirtlington, that of three to Upton, that of three to Shipton, that of two to Bampton, that of two to Bloxham and Adderbury[368]. What we see here we may see elsewhere also[369]. If then King William gives the royal manor of Wye to his newly founded church of St. Martin in the Place of Battle, the monks will contend that they have obtained as an appurtenance the hundredal soke over a large part of the county of Kent[370].

[Hundredal and manorial soke.]