Chapter VII: Preface: v (6)

The law seems as yet, if we may so speak, unconscious of the fact that underneath or beside the hundredal soke a new soke is growing up. It seems to treat _the_ soke over a man or over a piece of land as an indivisible thing that must 'lie' somewhere and can not be in two places at once. It has indeed to admit that while one lord has the soke, the king or another lord may have certain reserved and exalted 'forfeitures,' the three forfeitures or the four or the six, as the case may be[371]; but it has no classification of courts. The lord's court, if it be not the court of an ancient hundred, is conceived as the court of a half-hundred, or of a quarter of a hundred[372], or as the court of a district that has been carved out from a hundred[373]. Thus Stigand had the soke of the half-hundred of Hersham, save Thorpe which belonged to St. Edmund, and Pulham which belonged to St. Etheldreda[374]; thus also the king had the soke of the half-hundred of Diss, except the land of St. Edmund, where he shared the soke with the saint, and except the lands of Wulfgæt and of Stigand[375]. But it is impossible to maintain this theory. The hundred is becoming full of manors, within each of which a lord is exercising or endeavouring to exercise a soke over all, or certain classes, of his men. It is possible that in Lincolnshire we see the beginnings of a differentiating process; we meet with the word _frisoca_, _frigsoca_, _frigesoca_. Whether this stands for 'free soken,' or, as seems more likely, for 'frið soken,' soke in matters relating to the peace, it seems to mark off one kind of soke from other kinds[376]. We have to remember that in later days the relation of the manorial to the hundredal courts is curious. In no accurate sense can we say that the court of the manor is below the court of the hundred. No appeal, no complaint of false judgment, lies from the one to the other; and yet, unless the manor enjoys some exceptional privilege, it is not extra-hundredal and its jurisdiction in personal causes is over-lapped by the jurisdiction of the hundred court: the two courts arise from different principles[377]. In Domesday Book the feudal or tenurial principle seems still struggling for recognition. Already the Norman lords are assuming a soke which their _antecessores_ did not enjoy[378]. As will be seen below, they are enlarging and consolidating their manors and thereby rendering a manorial justice possible and profitable. Whether we ought to hold that the mere shock and jar of conquest and dispossession was sufficient to set up the process which covered our land with small courts, or whether we ought to hold that an element of foreign law worked the change, is a question that will never be answered unless the Norman archives have yet many secrets to tell. The great 'honorial' courts of later days may be French; still it is hardly in this region that we should look for much foreign law. It is in English words that the French baron of the Conqueror's day must speak when he claims justiciary rights. But that the process was far from being complete in 1086 seems evident.

[The seignorial court.]

Many questions about the distribution and the constitution of the courts we must leave unsolved. Not only does our record tell us nothing of courts in unambiguous words, but it hardly has a word that will answer to our 'court.' The term _curia_ is in use, but it seems always to signify a physical object, the lord's house or the court-yard around it, never an institution, a tribunal[379]. Almost all that we are told is conveyed to us under the cover of such words as _sake_, _soke_, _placita_, _forisfacturae_. We know that the Bishop of Winchester has a court at Taunton, for his tenants are bound to come together thrice a year to hold his pleas without being summoned[380]. This phrase--'to hold his pleas'--seems to tell us distinctly enough that the suitors are the doomsmen of the court. Then, again, we have the well-known story of what happened at Orwell in Cambridgeshire. In that village Count Roger had a small estate; he had land for a team and a half. This land had belonged to six sokemen. He had borrowed three of them from Picot the sheriff in order that they might hold his pleas, and having got them he refused to return them[381]. That the court that he wished to hold was a court merely for his land at Orwell is highly improbable, but he had other lands scattered about in the various villages of the Wetherly hundred, though in all his tenants amounted to but 14 villeins, 42 bordiers, 15 cottiers, and 4 serfs. We can not draw the inference that men of the class known as sokemen were necessary for the constitution of a court, for at the date of the survey there was no sokeman left in all Roger's land in Cambridgeshire; the three that he borrowed from Picot had disappeared or were reckoned as villeins or worse. Still he held a court and that court had doomsmen. But we can not argue that every lord who had soke, or sake and soke, had a court of his own. It may be that in some cases he was satisfied with claiming the 'forfeitures' which his men incurred in the hundred courts. This is suggested to us by what we read of the earl's third penny.

[Soke and the earl's third penny.]

In the county court and in every hundred court that has not passed into private hands, the king is entitled to but two-thirds of the proceeds of justice and the earl gets the other third, except perhaps in certain exceptional cases in which the king has the whole profit of some specially royal plea. The soke in the hundred courts belongs to the king and the earl. And just as the king's rights as the lord of a hundredal court become bound up with, and are let to farm with, some royal manor, so the earl's third penny will be annexed to some comital manor. Thus the third penny of Dorsetshire was annexed to Earl Harold's manor of Pireton[382], and the third penny of Warwickshire to Earl Edwin's manor of Cote[383]. Harold had a manor in Herefordshire to which belonged the third penny of three hundreds[384]; Godwin had a manor in Hampshire to which belonged the third penny of six hundreds[385]; the third penny of three Devonian hundreds belonged to the manor of Blackpool[386]. Now, at least in some cases, the king could not by his grants deprive the earl of his right; the grantee of soke had to take it subject to the earl's third penny. Thus for the shires of Derby and Nottingham we have a list of nineteen persons who were entitled to the king's two-pence, but only three of them were entitled to the earl's penny[387]. The monks of Battle declared that throughout many hundreds in Kent they were entitled to 'the king's two-pence'; the earl's third penny belonged to Odo of Bayeux[388]. And so of certain 'free men' in Norfolk it is said that 'their soke is in the hundred for the third penny[389].' A man commits an offence; he incurs a _wíte_; two-thirds of it should go to his lord; one-third to the earl: in what court should he be tried? The answer that Domesday Book suggests by its silence is that this is a matter of indifference; it does not care to distinguish between the right to hold a court and the right to take the profits of justice. Just once the veil is raised for a moment. In Suffolk lies the hundred of Blything; its head is the vill of Blythburgh where there is a royal manor[390]. Within that hundred lies the considerable town of Dunwich, which Edric holds as a manor. Now in Dunwich the king has this custom that two or three men shall go to the hundred court if they be duly summoned, and if they make default they shall pay a fine of two ores, and if a thief be caught there he shall be judged there and corporeal justice shall be done in Blythburgh and the lord of Dunwich shall have the thief's chattels. Apparently in this case the lord of Dunwich will see to the trying but not to the hanging of the thief; but, at any rate, a rare effort is here made to define how justice shall be done[391]. The rarity of such efforts is very significant. Of course Domesday Book is not a treatise on jurisdiction; still if there were other terms in use, we should not be for ever put off with the vague, undifferentiated _soke_. On the whole, we take it that the lord who enjoyed soke had a right to keep a court if he chose to do so, and that generally he did this, though he would be far from keeping a separate court for each of his little manors; but if his possessions were small he may have contented himself with attending the hundred court and claiming the fines incurred by his men. Sometimes a lord seems to have soke only over his own demesne lands[392]; in this case the wites that will come to him will be few. We may in later times see some curious compromises. If a thief is caught on the land of the Prior of Canterbury at Brook in Kent, the borhs-elder and frank-pledges of Brook are to take him to the court of the hundred of Wye, which belongs to the Abbot of Battle. Then, if he is not one of the Prior's men, he will be judged by the hundred. But if he is the Prior's man, then the bailiff of Brook will 'crave the Prior's court.' The Prior's folk will then go apart and judge the accused, a few of the hundredors going with them to act as assessors. If the tribunal thus constituted cannot agree, then once more the accused will be brought back into the hundred and will there be judged by the hundredors in common. In this instance we see that even in Henry II.'s day the Prior has not thoroughly extricated his court from the hundred moot[393].

[Soke and house-peace.]

It seems possible that a further hint as to the history of soke is given us by certain entries relating to the boroughs. It will already have become apparent that if there is soke over men, there is also soke over land: if men 'render soke' so also acres 'render soke.' We can see that a very elaborate web of rules is thus woven. One man strikes another. Before we can tell what the striker ought to pay and to whom he ought to pay it, we ought to know who had soke over the striker, over the stricken, over the spot where the blow was given, over the spot where the offender was attached or arrested or accused. 'The men of Southwark testify that in King Edward's time no one took toll on the strand or in the water-street save the king, and if any one in the act of committing an offence was there challenged, he paid the amends to the king, but if without being challenged he escaped under a man who had sake and soke, that man had the amends[394].' Then we read how at Wallingford certain owners of houses enjoyed 'the gafol of their houses, and blood, if blood was shed there and the man was received inside before he was challenged by the king's reeve, except on Saturday, for then the king had the forfeiture on account of the market; and for adultery and larceny they had the forfeiture in their houses, but the other forfeitures were the king's[395].' We can not hope to recover the intricate rules which governed these affairs, rules which must have been as intricate as those of our 'private international law.' But the description of Wallingford tells us of householders who enjoy the 'forfeitures' which arise from crimes committed in their own houses, and a suspicion may cross our minds that the right to these forfeitures is not in its origin a purely jurisdictional or justiciary right. However, these householders are great people (the Bishop of Salisbury, the Abbot of St Albans are among them), their town houses are considered as appurtenant to their rural manors and the soke over the manor comprehends the town house. And so when we read how the twelve lawmen of Stamford had sake and soke within their houses and over their own men 'save geld, and heriot, and corporeal forfeitures to the amount of 40 ores of silver and larceny' we may be reading of rights which can properly be described as justiciary[396].

[Soke in houses.]

But a much more difficult case comes before us at Warwick[397]. We first hear of the town houses that are held by great men as parts of their manors, and then we hear that 'besides these houses there are in the borough nineteen burgesses who have nineteen houses with sake and soke and all customs.' Now we can not easily believe that the burgess's house is a jurisdictional area, or that in exacting a mulct from one who commits a crime in that house the burgess will be playing the magistrate or exercising a right to do justice or take the profits of justice by virtue of a grant made to him by the king. Rather we are likely to see here a relic of the ancient 'house-peace[398].' If you commit an act of violence in a man's house, whatever you may have to pay to the person whom you strike and to the king, you will also have to make amends to the owner of the house, even though he be but a ceorl or a boor, for you have broken his peace[399]. The right of the burgess to exact a mulct from one who has shed blood or committed adultery within his walls may in truth be a right of this kind, and yet, like other rights to other mulcts, it is now conceived as an emanation of sake and soke. If in the eleventh century we hear but little of this householder's right, may this not be because the householder has surrendered it to his lord, or the lord has usurped it from the householder, and thus it has gone to swell the mass of the lord's jurisdictional rights? At Broughton in Huntingdonshire the Abbot of Ramsey has a manor with some sokemen upon it 'and these sokemen say that they used to have legerwite (fornication-fine), bloodwite and larceny up to fourpence, and above fourpence the Abbot had the forfeiture of larceny[400].' Various interpretations may be set upon this difficult passage. We may fashion for ourselves a village court (though there are but ten sokemen) and suppose that the commune of sokemen enjoyed the smaller fines incurred by any of its members. But we are inclined to connect this entry with those relating to Wallingford and to Warwick and to believe that each sokeman has enjoyed a right to exact a sum of money for the breach of his peace. The law does not clearly mark off the right of the injured housefather from the right of the offended magistrate. How could it do so? If you commit an act of violence you must pay a wite to the king. Why so? Because you have wronged the king by breaking his peace and he requires 'amends' from you. With this thought in our minds we may now approach an obscure problem.

[Vendible soke.]

We have said that seignorial justice is regarded as having its origin in royal grants, and in the main this seems true. We hardly state an exception to this rule if we say that grantees of justice become in their turn grantors. Not merely could the earl who had soke grant this to one of his thegns, but that thegn would be said to hold the soke 'under' or 'of' the earl. Justice, we may say, was already being subinfeudated[401]. But now and again we meet with much more startling statements. Usually if a man over whom his lord has soke 'withdraws himself with his land,' or 'goes elsewhere with his land,' the lord's soke over that land 'remains': he still has jurisdictional rights over that land though it is commended to a new lord. We may be surprised at being very frequently told that this is the case, for we can hardly imagine a man having power to take his land out of one sphere of justice and to put it into another. But that some men, and they not men of high rank, enjoyed this power seems probable. Of a Hertfordshire manor we read: 'In this manor there were six sokemen, men of Archbishop Stigand, and each had one hide, and they could sell, saving the soke, and one of them could even sell his soke with the land[402].' This case may be exceptional; there may have been a very unusual compact between the archbishop and this egregiously free sokeman; but the frequency with which we are told that on a sale the soke 'remains' does not favour this supposition.

[Soke and mund.]

We seem driven to the conclusion that in some parts of the country the practice of commendation had been allowed to interfere even with jurisdictional relationships: that there were men who could 'go with their land to what lord they chose' and carry with them not merely their homage, but also their suit of court and their 'forfeitures.' This may seem to us intolerable. If it be true, it tells us that the state has been very weak; it tells us that the national scheme of justice has been torn to shreds by free contract, that men have had the utmost difficulty in distinguishing between property and political power, between personal relationships and the magistracy to which land is subject. But unless we are mistaken, the house-peace in its decay has helped to produce this confusion. In a certain sense a mere ceorl has had what is now called a soke,--it used to be called a _mund_ or _grið_--over his house and over his loaf-eaters: that is to say, he has been entitled to have money paid to him if his house-peace were broken or his loaf-eaters beaten. This right he has been able to transfer to a lord. In one way or another it has now come into the lord's hand and become mixed up with other rights. In Henry I.'s day a lawyer will be explaining that if a villein receives money when blood is shed or fornication is committed in his house, this is because he has purchased these forfeitures from his lord[403]. This reverses the order of history.

[Soke and jurisdiction.]

Such is the best explanation that we can give of the men who sell their soke with their land. No doubt we are accusing Domesday Book of being very obscure, of using a single word to express some three or four different ideas. In some degree the obscurity may be due to the fact that French justiciars and French clerks have become the exponents of English law. But we may gravely doubt whether Englishmen would have produced a result more intelligible to us. One cause of difficulty we may perhaps remove. In accordance with common wont we have from time to time spoken of seignorial jurisdiction. But if the word _jurisdiction_ be strictly construed, then in all likelihood there never has been in this country any seignorial jurisdiction. It is not the part of the lord to declare the law (_ius dicere_); 'curia domini debet facere iudicia et non dominus[404].' From first to last this seems to be so, unless we take account of theories that come to us from a time when the lord's court was fast becoming an obsolete institution[405]. So it is in Domesday Book. In the hundred court the sheriff presides; it is he that appoints a day for the litigation, but the men of the hundred, the men who come together 'to give and receive right,' make the judgments[406]. The tenants of the Bishop of Winchester 'hold the bishops' pleas' at Taunton; Earl Roger borrows sokemen 'to hold his pleas[407].' Thus the erection of a new court is no very revolutionary proceeding; it passes unnoticed. If once it be granted that all the justiciary profits arising from a certain group of men or tract of land are to go to a certain lord, it is very much a matter of indifference to kings and sheriffs whether the lord holds a court of his own or exacts this money in the hundred court. Indeed, a sheriff may be inclined to say 'I am not going to do your justice for nothing; do it yourself.' So long as every lord will come to the hundred court himself or send his steward, the sheriff will have no lack of capable doomsmen. Then the men of the lord's precinct may well wish for a court at their doors; they will be spared the long journey to the hundred court; they will settle their own affairs and be a law unto themselves. Thus we ought not to say that the lax use of the word _soke_ covers a confusion between 'jurisdiction' and the profits of 'jurisdiction,' and if we say that the confusion is between justice and the profits of justice, we are pointing to a distinction which the men of the Confessor's time might regard as somewhat shadowy. In any case their lord is to have their wites; in any case they will get the judgment of their peers; what is left to dispute about is mere geography, the number of the courts, the demarcation of justiciary areas. We may say, if we will, that far-sighted men would not have argued in this manner, for seignorial justice was a force mighty for good and for ill; but it has not been proved to our satisfaction that the men who ruled England in the age before the Conquest were far-sighted. Their work ended in a stupendous failure.

[Soke and commendation.]

To the sake and soke of the old English law we shall have to return once more in our next essay. Our discussion of the sake and soke of Domesday Book was induced by a consideration of the various bonds which may bind a man to a lord. And now we ought to understand that in the eastern counties it is extremely common for a man to be bound to one lord by commendation and to another lord by soke. Very often indeed a man is commended to one lord, while the soke over him and over his land 'lies in' some hundred court which belongs to another lord or is still in the hands of the king and the earl. How to draw with any exactness the line between the rights given to the one lord by the commendation and to the other lord by the soke we can not tell. For instance, we find many men who can not sell their land without the consent of a lord. This we may usually regard as the result of some term in the bargain of commendation; but in some cases it may well be the outcome of soke. Thus at Sturston in Norfolk we see a free man of St Etheldreda of Ely; his sake and soke belong to Archbishop Stigand's manor of Earsham (Sturston and Earsham lie some five miles apart); now this man if he wishes to give or sell his land must obtain the licence both of St Etheldreda and of Stigand[408]. And so as regards the forfeiture of land. We are perhaps accustomed to think of the escheat _propter delictum tenentis_ as having its origin in the ideas of homage and tenure rather than in the justiciary rights of the lord. Howbeit there is much to make us think that the right to take the land of one who has forfeited that land by crime was closely connected with the right to other wites or _forisfacturae_. 'Of all the thegns who hold land in the Well wapentake of Lincolnshire, St Mary of Lincoln had two-thirds of every _forisfactura_ and the earl the other third; and so of their heriots; and so if they forfeited their land, two-thirds went to St Mary and the remainder to the earl[409].' St Mary has not enfeoffed these thegns; but by some royal grant she has two-thirds of the soke over them. In Suffolk one Brungar held a small manor with soke. He was a 'free man' commended to Robert Wimarc's son; but the sake and soke over him belonged to St Edmund. Unfortunately for Brungar, stolen horses were found in his house, and we fear that he came to a bad end. At any rate he drops out of the story. Then St Edmund's Abbot, who had the sake and soke, and Robert, who had the commendation, went to law, and right gladly would we have heard the plea; but they came to some compromise and to all seeming Robert got the land[410]. If we are puzzled by this labyrinthine web of legal relationships, we may console ourselves with the reflection that the Normans also were puzzled by it. They seem to have felt the necessity of attributing the lordship of land to one lord and one only (though of course that lord might have another lord above him), of consolidating soke with commendation, homage with justice, and in the end they brought out a simple and symmetrical result, albeit to the last the relation of seignorial to hundredal justice is not to be explained by any elegant theory of feudalism.

[Sokemen and free men.]

Yet another problem shall be stated, though we have little hope of solving it. The writ, or rather one of the writs, which defined the scope of the survey seems to have spoken of _liberi homines_ and _sochemanni_ as of two classes of men that were to be distinguished from each other. In Essex, Suffolk and Norfolk this distinction is often drawn. In one and the same manor we shall find both 'free men' and sokemen[411]; we may even hear of sokemen who formerly were 'free men[412].' But the import of this distinction evades us. Sometimes it is said of sokemen that they 'hold freely[413].' We read that four sokemen held this land of whom three were free, while the fourth had one hide but could not give or sell it[414]. This may suggest that the principle of the division is to be found in the power to alienate the land, to 'withdraw' with the land to another lord[415]. There may be truth in the suggestion, but we can not square it with all our cases[416]. Often enough the 'free man' can not sell without the consent of his lord[417]. We have just met with a 'free man' who had to obtain the consent both of the lord of his commendation and of the lord of his soke[418]. On the other hand, the sokeman who can sell without his lord's leave is no rare being[419], and it was of a sokeman that we read how he could sell, not only his land, but also his soke[420].

[Difference between 'free men' and sokemen.]

Again, we dare not say that while the 'free man' is the justiciable of a national court, the soke over the sokeman belongs to his lord. Neither side of this proposition is true. Very often the soke over the 'free man' belongs to a church or to some other lord[421], who may or may not be his lord by commendation[422]. Very often the lord has not the soke over his sokemen. This may seem a paradox, but it is true. We make it clearer by saying that you may have a man who is your man and who is a sokeman, but yet you have no soke over him; his soke 'lies' or 'is rendered' elsewhere. This is a common enough phenomenon, but it is apt to escape attention. When we are told that a certain English lord had a sokeman at a certain place, we must not jump to the conclusion that he had soke over that man of his. Thus in Hertfordshire Æthelmær held a manor and in it there were four sokemen; they were, we are told, his _homines_: but over two of them the king had sake and soke[423]. Unless we are greatly mistaken, the soke of many of the East Anglian sokemen, no matter whose men they were, lay in the hundred courts. This prevents our saying that a sokeman is one over whom his lord has soke, or one who renders soke to his lord. We may doubt whether the line between the sokemen and the 'free men' is drawn in accordance with any one principle. Not only is freedom a matter of degree, but freedom is measured along several different scales. At one time it is to the power of alienation or 'withdrawal' that attention is attracted, at another to the number or the kind of the services and 'customs' that the man must render to his lord. When we see that in Lincolnshire there is no class of 'free men' but that there are some eleven thousand sokemen, we shall probably be persuaded that the distinction drawn in East Anglia was of no very great importance to the surveyors or the king. It may have been a matter of pure personal rank. These _liberi homines_ may have enjoyed a wergild of more than 200 shillings, for in the Norman age we see traces of a usage which will not allow that any one is 'free' if he is not noble[424]. But perhaps when the Domesday of East Anglia has been fully explored, hundred by hundred and vill by vill, we shall come to the conclusion that the 'free men' of one district would have been called sokemen in another district[425].

[Holdings of the sokemen.]

Some of these sokemen and 'free men' had very small tenements. Let us look at a list of tenants in Norfolk. 'In Carleton were 2 free men with 7 acres. In Kicklington were 2 free men with 2 acres. In Forncett 1 free man with 2 acres. In Tanaton 4 free men with 4 acres. In Wacton 2 free men with 1-1/2 acres. In Stratton 1 free man with 4 acres. In Moulton 3 free men with 5 acres. In Tibenham 2 free men with 7 acres. In Aslacton 1 free man with 1 acre[426].' These eighteen free men had but sixteen oxen among them. We think it highly probable that in the survey of East Anglia one and the same free man is sometimes mentioned several times; he holds a little land under one lord, and a little under another lord; but in all he holds little. Then again, we see that these small freemen often have a few bordiers or even a few free men 'below them[427].' And then we observe that, while some of them are spoken of as having belonged to the manors of their lords, others are reported to have had manors of their own.

FOOTNOTES:

[304] Hist. Eng. Law, i. 558. The terms here used were adopted when
the Introduction to the Selden Society's Select Pleas in
Manorial Courts (1888) was being written. M. Esmein in his
Cours d'histoire du droit français, ed. 2 (1895), p. 259, has
insisted on the same distinction but has used other and
perhaps apter terms. According to him 'la justice rendue par
les seigneurs' (my seignorial justice) is either 'la justice
seigneuriale' (my franchisal justice) or 'la justice féodale'
(my feudal justice).

[305] See Liebermann, Leges Edwardi, p. 88.

[306] Leg. Hen. 9, § 9.

[307] Leg. Henr. 20 § 2.

[308] Leg. Henr. 27.

[309] Hist. Eng. Law, i. 532.

[310] Leg. Henr. 57 § 8. Cf. 59 § 19.

[311] Leg. Henr. 55.

[312] Leg. Henr. 10 § 1.

[313] Leg. Henr. 11 § 1. This explains the 'participatio' of 9 § 9.

[314] Leg. Henr. 19.

[315] Leg. Henr. 20 § 2.

[316] Leg. Henr. 9 § 4; 20 § 2; 57 § 8; 78 § 2.

[317] Hist. Eng. Law, i. 574.

[318] Hist. Eng. Law, i. 571.

[319] See e.g. Geoffrey Clinton for Kenilworth, Monast. vi. 221:
'Concedo ... ut habeant curiam suam ... ita libere ... sicut
ego meam curiam ... ex concessu regis melius et firmius
habeo.' Robert of Ouilly for Osney, ibid. p. 251: 'Volo ...
quod habeant curiam ipsorum liberam de suis hominibus de
omnimodis transgressionibus et defaltis, et quieti sint tam
ipsi quam eorum tenentes de omnimodis curiae meae sectis.'

[320] See Liebermann, Leg. Edw. p. 91.

[321] Thus in D.B. ii. 409 we find two successive entries, the 'in
_saca_ regis et comitis' of the one, being to all seeming an
equivalent for the 'in _soca_ regis et comitis' of the other.
D. B. ii. 416: 'de omnibus habuit antecessor Rannulfi
commendationem et _sacam_ excepto uno qui est in _soca_ S.
Edmundi.' Ibid. ii. 391 b: 'liberi homines Wisgari cum _saca_
... liber homo ... sub Witgaro cum _soca_.' In the Inquisitio
Eliensis (e.g. Hamilton, p. 109) _saca_ is sometimes used
instead of _soca_ in the common formula 'sed soca remansit
abbati.' In D. B. ii. 264 b, a scribe having written 'sed
habet s_a_cam' has afterwards substituted an _o_ for the _a_;
we have noted no other instance of such care.

[322] Hist. Eng. Law, i. 566.

[323] D. B. i. 184, Ewias.

[324] Leg. Henr. 20 § 1. The author of Leg. Edw. Conf., c. 22, also
attempts to connect soke with seeking, but his words are
exceedingly obscure: 'Soche est quod si aliquis quaerit
aliquid in terra sua, etiam furtum, sua est iustitia, si
inventum sit an non.' On the whole we take this nonsense to
mean that my right of soke is my right to do justice in case
any one seeks (by way of legal proceedings) anything in my
land, even though the accusation that he brings be one of
theft, and even though the stolen goods have not been found on
the thief. Already the word is a prey to the etymologist.

[325] D. B. ii. 256.

[326] Heming Cart. i. 75-6: 'quod illae 15 hidae inste pertinent ad
Osuualdeslaue hundredum episcopi et debent cum ipso episcopo
censum regis solvere et omnia alia servitia ad regem
pertinentia et inde idem requirere ad placitandum.' Another
account of the same transaction, ibid. 77, says 'et
[episcopus] deraciocinavit socam et sacam de Hamtona ad suum
hundred Osuualdeslauue quod ibi debent placitare et geldum et
expeditionem et cetera legis servitia de illis 15 hidis secum
debent persolvere.'

[327] Schmid, Glossar. s. v. _sócen_. The word, it would seem, first
makes its way into the vocabulary of the law as describing the
act of seeking a sanctuary and the protection that a criminal
gains by that act. A forged charter of Edgar for Thorney
Abbey, Red Book of Thorney, Camb. Univ. Lib., f. 4, says that
the word is a Danish word--'Regi vero pro consensu et eiusdem
mercimonii licentia ac pro reatus emendatione quam Dani
_socne_ nsitato nominant vocabulo, centum dedit splendidissimi
auri mancusas.'

[328] Leg. Henr. 9 § 4.

[329] Ibid.

[330] Ibid. 22.

[331] Ibid. 20 § 3.

[332] Ibid. 24.

[333] Selden's Eadmer, p. 197; Bigelow, Placita Anglo-Norman. p. 7.

[334] D. B. i. 238 b, Alvestone.

[335] Cnut, II. 12. We may construe these terms by breach of the
king's special peace, attacks on houses, ambush, neglect of
the summons to the host. In Hereford, D. B. i. 179, the king
is accounted to have three pleas, breach of his peace,
hámfare, which is the same as hámsócn, and forsteal; and
besides this he receives the penalty from a man who makes
default in military service.

[336] D. B. i. 298 b.

[337] D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone,
burgheristh, latrones, pacis infractio, hainfare, denarii de
hundret, et denarii S. Petri; ter in anno teneri placita
episcopi sine ammonitione; profectio in exercitum cum
hominibus episcopi.' See also the English document, Kemble,
Cod. Dipl. iv. p. 233. The odd word _burgheristh_ looks like a
corrupt form of _burhgrið_ (the peace of the _burh_), or of
_burhgerihta_ (burh-rights, borough-dues), which word occurs
in the English document.

[338] D. B. i. 172, 175.

[339] Cnut II. 12, 13, 14. Perhaps when in other parts of England
the pleas of the crown are reckoned to be but four, it is
treated as self-evident that the outlaw falls into the king's
hand, as also the man who harbours an outlaw. If _fihtwíte_ is
the right word, we must suppose with Schmid (p. 586) that a
_fihtwíte_ was only paid when there was homicide. A fine for
mere fighting or drawing blood would not have been a reserved
plea.

[340] D. B. ii. 179 b: 'Et iste Withri habebat sacham et socam super
istam terram et rex et comes 6 forisfacturas.' Ibid. 223: 'In
Cheiunchala soca de 6 forisfacturis.'

[341] D. B. ii. 413 b: 'socam et sacam praeter 6 forisfacturas S.
Eadmundi.' Ibid. 373: 'S. Eadmundus 6 forisfacturas.' Ibid.
384 b: 'Tota hec terra iacebat in dominio Abbatiae [de Eli] T.
R. E. cum omni consuetudine praeter sex forisfacturas S.
Eadmundi.'

[342] D. B. ii. 244: 'sex liberi homines ... ex his habet S.
Benedictus socam et de uno commendationem et de 24 tres
forisfacturas.'

[343] D. B. i. 336 b: 'praeter geld et heriete et forisfacturam
corporum suorum de 40 oris argenti et praeter latronem.' Such
a phrase as 'geld, heriot and thief' is instructive.

[344] D. B. i. 4 b.

[345] William I. for Ely, Hamilton, Inquisitio, p. xviii.: 'omnes
alias forisfacturas quae emendabiles sunt.'

[346] D. B. ii. 195: 'Super hos habuit T. R. E. Episcopus 6
forisfacturas sed hundret nec vidit breve nec sigillum nec
concessum Regis.'

[347] D. B. ii. 34 b.

[348] See e.g. D. B. i. 220.

[349] D. B. i. 336: 'Rogerius de Busli habet unum mansum Sueni filii
Suaue cum saca et soca. Judita comitissa habet unum mansum
Stori sine saca et soca.'

[350] D. B. i. 2.

[351] D. B. i. 1 b.

[352] D. B. i. 337.

[353] D. B. i. 280 b.

[354] D. B. ii. 185: 'Super omnes liberos istius hundreti [de
Northerpingeham] habet Rex sacam et socam.' Ibid. 188 b: 'Rex
et comes de omnibus istis liberis hominibus socam.' Ibid. 203:
'Et de omnibus his liberis [Episcopi Osberni] soca in
hundreto.'

[355] D. B. ii. 210: 'Super omnes istos liberos homines habuit Rex
Eadwardus socam et sacam, et postea Guert accepit per vim, sed
Rex Willelmus dedit [S. Eadmundo] cum manerio socam et sacam
de omnibus liberis Guert sicut ipse tenebat; hoc reclamant
monachi.'

[356] Below, p. 105.

[357] D. B. ii. 425 b.

[358] D. B. ii. 287, 287 b: 'Sanfort Hund. et dim.... Supradictum
manerium scilicet Bercolt ... cum soca de hundreto et dimidio
reddebat T. R. E. 24 lib.' On subsequent pages it is often
said that the soke of certain persons or lands is in Bergholt.

[359] D. B. ii. 408 b: 'Hagala tenuit Gutmundus sub Rege Edwardo pro
manerio 8 car[ucatarum] terrae cum soca et saca super dominium
hallae tantum. Tunc 32 villani ... 8 bordarii ... 10 servi.
Semper 4 carucae in dominio. Tunc et post 24 carucae
hominum.... Sex sochemanni eiusdem Gutmundi de quibus soca est
in hundreto.'

[360] D. B. ii. 216: 'De Redeham habebat Abbas socam super hos qui
sequebantur faldam, et de aliis soca in hundreto.' Ibid. 129
b: 'Super omnes istos qui faldam Comitis requirebant habebat
Comes socam et sacam, super alios omnes Rex et Comes.' Ibid.
194 b: 'In Begetuna tenuit Episcopus Almarus per emptionem T.
R. E. cum soca et saca de Comite Algaro de bor[dariis] et
sequentibus faldam 3 carucatas terrae.' Ibid. 350 b: 'habebat
socam et sacam super hallam et bordarios.'

[361] D. B. ii. 130 b.

[362] D. B. i. 265 b: 'Hoc manerium habet suum placitum in aula
domini sui.'

[363] Above, p. 88.

[364] D. B. ii. 385 b.

[365] D. B. ii. 46 b.

[366] D. B. i. 283 b.

[367] D. B. i. 11 b.; Chron. de Bello (Anglia Christiana Soc.) p.
28; Battle Custumals (Camd. Soc.), p. 126.

[368] D. B. i. 154 b.

[369] D. B. 39 b, Hants: 'Huic manerio pertinet soca duorum
hundredorum.' Ibid. 64 b, Wilts: 'In hac firma erant placita
hundretorum de Cicementone et Sutelesberg quae regi
pertinebant.' Ibid. ii. 185: 'Super omnes liberos istius
hundreti habet rex sacam et socam.' Ibid. ii. 113 b.: 'Soca et
sacha de Grenehou hundreto pertinet ad Wistune manerium Regis,
quicunque ibi teneat, et habent Rex et Comes.'

[370] See above, note 367.

[371] Above, p. 88.

[372] D. B. ii. 379: 'Super ferting de Almeham habet W. Episcopus
socam et sacam.'

[373] D. B. i. 184: 'Haec terra non pertinet ... ad hundredum. De
hac terra habet Rogerius 15 sextarios mellis et 15 porcos
quando homines sunt ibi et placita super eos.'

[374] D. B. ii. 139 b.

[375] D. B. ii. 114.

[376] D. B. i. 340, 346, 357 b, 366, 368 b (ter). See also on f.
344, 344 b, the symbol fð in the margin. The word friðsócn
occurs in Æthelr. VIII. 1 and Cnut I. 2 § 3, where it seems to
stand for a sanctuary, an asylum.

[377] If one of _A_'s tenants is sued in a personal action in the
hundred court he will have to answer there unless _A_ appears
and 'claims his court.' This comes out plainly in certain
rolls of the court of Wisbeach Hundred, which by the kind
permission of the Bishop of Ely, I have examined. On a roll of
33 Edw. I. we find Stephen Hamond sued for a debt; 'et super
hoc venit Prior Elyensis et petit curiam suam; et Thomas
Doreward petit curiam suam de dicto Stephano residente suo et
tenente suo.' The prior's petition is refused on the ground
that Stephen is not his tenant, and Doreward's petition is
refused on the ground that it is unprecedented.

[378] D. B. ii. 291: 'Et fuit in soca Regis. Postquam Briennus
habuit, nullam consuetudinem reddidit in hundreto.' Ibid. 240:
'Hoc totum tenuit Lisius pro uno manerio; modo tenet Eudo
successor illius et in T. R. E. soca et saca fuit in hundreto;
set modo tenet Eudo.'--Ibid. 240 b: 'Soca istius terre T. R.
E. iacuit in Folsa Regis; modo habet Walterius
[Giffardus].'--Ibid. 285 b: the hundred testified that in
truth the King and Earl had the soke and sake in the
Confessor's day, but the men of the vill say that Burchard
likewise (_similiter_) had the soke of his free men as well as
of his villeins.

[379] D. B. i. 35 b: 'Duo fratres tenuerunt T. R. E.; unusquisque
habuit domum suam et tamen manserunt in una curia.' Ibid. 103
b: 'Ibi molendinum serviens curiae.' Ibid. 103: 'arabant et
herciabant ad curiam domini.'

[380] D. B. i. 87 b. Kemble, Cod. Dip., iv. p. 233: 'and þriwa secan
gemot on 12 monðum.'

[381] D. B. i. 193 b; Hamilton, Inquisitio, 77-8.

[382] D. B. i. 75.

[383] D. B. i. 238.

[384] D. B. i. 186.

[385] D. B. i. 38 b.

[386] D. B. i. 101.

[387] D. B. i. 280 b: 'Hic notantur qui habuerunt socam et sacam et
thol et thaim et consuetudinem Regis 2 denariorum.... Horum
omnium nemo habere potuit tercium denarium comitis nisi eius
concessu et hoc quamdiu viveret, preter Archiepiscopum et Ulf
Ferisc et Godeue Comitissam.'

[388] See above, p. 92, note 367.

[389] D. B. ii. 123 b: 'De istis est soca in hundreto ad tercium
denarium.'

[390] D. B. ii. 282.

[391] D. B. ii. 312: 'Rex habet in Duneuuic consuetudinem hanc quod
duo vel tres ibunt ad hundret si recte moniti fuerint, et si
hoc non faciunt, forisfacti sunt de 2 oris, et si latro _ibi_
fuerit captus _ibi_ judicabitur, et corporalis iusticia in
Blieburc capietur, et sua pecunia remanebit dominio de
Duneuuic.' It seems to us that the first _ibi_ must refer to
Dunwich and therefore that the second does so likewise. Still
the passage is ambiguous enough.

[392] See above, p. 91.

[393] Battle Custumals (Camden Soc.) 136. This is an interesting
example, for it suggests an explanation of the common claim to
hold a court 'outside' the hundred court (_petit curiam suam
extra hundredum_). The claimant's men will go apart and hold a
little court by themselves outside 'the four benches' of the
hundred.

[394] D. B. i. 32: 'et si quis forisfaciens ibi calumpniatus
fuisset, Regi emendabat; si vero non calumpniatus abisset sub
eo qui sacam et socam habuisset, ille emendam de reo haberet.'
Compare with this the account of Guildford, Ibid. 30.

[395] D. B. i. 56 b.

[396] D. B. i. 336 b.

[397] D. B. i. 238.

[398] The passages from the dooms are collected by Schmid s. v.
_Hausfriede_, _Feohtan_.

[399] Ine, 6 § 3: 'If he fight in the house of a gavel-payer or
boor, let him give 30 shillings by way of wite and 6 shillings
to the boor.'

[400] D. B. i. 204.

[401] D. B. ii. 419 b: 'Cercesfort tenuit Scapius teinnus
Haroldi.... Scapius habuit socam sub Haroldo.'--Ibid. 313:
'Heroldus socam habuit et Stanuuinus de eo.... Idem Stanuuinus
socam habuit de Heroldo.'

[402] D. B. i. 142 b: 'et vendere potuerunt praeter socam; unus
autem eorum etiam socam suam cum terra vendere poterat.' Comp.
D. B. ii. 230: 'Huic manerio iacent 5 liberi homines ad socam
tantum commend[ati] et 2 de omni consuetudine.'--Ibid. ii. 59:
'In Cingeham tenuit Sauinus presbyter 15 acras ... in eadem
villa tenuit Etsinus 15 acras.... Isti supradicti fuerunt
liberi ita quod ipsi possent vendere terram cum soca et saca
ut hundretus testatur.'--Ibid. ii. 40 b: 'et iste fuit ita
liber quod posset ire quo vellet cum soca et sacha set tantum
fuit homo Wisgari.'

[403] Leg. Henr. 81 § 3: 'Quidam, villani qui sunt, eiusmodi
leierwitam et blodwitam et huiusmodi minora forisfacta emerunt
a dominis suis, vel quomodo meruerunt, de suis et in suos,
quorum flet-gefoth vel overseunessa est 30 den.; cothseti 15
den.; servi 6 (_al._ 5) den.' The _flet-gefoth_ seems to be
the sum due for fighting in a man's _flet_ or house.

[404] Munimenta Gildhallae, i. 66.

[405] Hist. Eng. Law, i. 580-2.

[406] D. B. ii. 424: 'Et dicunt etiam quod istam terram R[anulfus]
calumpniavit supra Radulfum, et vicecomes Rogerius denominavit
illis constitutum tempus m[odo] ut ambo adfuissent; Ranulfo
adveniente defuit Radulfus et iccirco diiudicaverunt homines
hundreti Rannulfum esse saisitum.'--Ibid. i. 165 b: 'Modo
iacet in Bernitone hundredo iudicio hominum eiusdem
hundredi.'--Ibid. i. 58 b: 'unde iudicium non dixerunt, sed
ante Regem ut iudicet dimiserunt.'--Ibid. 182 b: 'In isto
hundredo ad placita conveniunt qui ibi manent ut rectum
faciant et accipiant.'

[407] Above, p. 95.

[408] D. B. ii. 186: 'In Sterestuna tenuit 1 liber homo S. Aldrede
T. R. E. et Stigandi erat soca et saco in Hersam, set nec dare
nec vendere poterat terram suam sine licentia S. Aldrede et
Stigandi.'

[409] D. B. ii. 376.

[410] D. B. ii. 401 b: 'Eodem tempore fuerunt furati equi inventi in
domo istius Brungari, ita quod Abbas cuius fuit soca et saca
et Rodbertus qui habuit commendationem super istum venerunt de
hoc furto ad placitum, et sicut hundret testatur discesserunt
amicabiliter sine iudicio quod vidissed (_sic_) hundret.'

[411] E.g. D. B. ii. 35 b: 'quas tenuerunt 2 sochemanni et 1 liber
homo.'

[412] D. B. ii. 28 b: 'Huic manerio iacent 5 sochemanni quorum 2
occupavit Ingelricus tempore Regis Willelmi qui tune erant
liberi homines.'

[413] D. B. ii. 83: '3 sochemanni tenentes libere.'--Ibid. 88 b:
'tunc fuit 1 sochemannus qui libere tenuit 1 virgatam.'--Ibid.
58: 'in hac terra sunt 13 sochemanni qui libere tenent.'

[414] D. B. i. 212 b, Bedf.: 'Hanc terram tenuerunt 4 sochemanni
quorum 3 liberi fuerunt, quartus vero unam hidam habuit, sed
nec dare nec vendere potuit.'

[415] D. B. i. 35 b, 'Isti liberi homines ita liberi fuerunt quod
poterant ire quo volebant.'--Ibid. ii. 187: '5 homines ... ex
istis erant 4 liberi ut non possent recedere nisi dando 2
solidos.'

[416] Round, Feudal England, 34.

[417] D. B. ii. 59 b, Essex: 'quod tenuerunt 2 liberi homines ...
set non poterant recedere sine licentia illius Algari.'--Ibid.
216 b, Norf.: 'Ibi sunt 5 liberi homines S. Benedicti
commendatione tantum ... et ita est in monasterio quod nec
vendere nec forisfacere pot[uerunt] extra ecclesia set soca
est in hundredo.'--Ibid. i. 137 b, Herts: 'duo teigni ...
vendere non potuerunt.'--Ibid. i. 30 b, Hants: 'Duo liberi
homines tenuerunt de episcopo T. R. E. sed recedere cum terra
non potuerunt.'

[418] Above, p. 103, note 417.

[419] E.g. D. B. i. 129 b: 'In hac terra fuerunt 5 sochemanni de 6
hidis quas potuerunt dare vel vendere sine licentia dominorum
suorum.'

[420] Above, p. 100, note 402.

[421] E.g. D. B. ii. 358: '7 liberos homines ... hi poterant dare
vel vendere terram set saca et soca et commendatio et
servitium remanebant Sancto [Edmundo].'

[422] D. B. ii. 186: 'In Sterestuna tenuit unus liber homo S.
Aldredae T. R. E. et Stigandi erat soca et saco in
Hersam.'--Ibid. 139 b: 'habuit socam et sacam ... de
commendatis suis.'

[423] D. B. i. 141.

[424] Liebermann, Leges Edwardi, p. 72. The most important passage
is Leg. Edw. 12 § 4: 'Manbote in Danelaga de villano et de
socheman 12 oras [= 20 sol.]: de liberis hominibus 3 marcas [=
40 sol.].'

[425] A study of the Hundred Rolls might prepare us for this result.
One jury will call _servi_ those whom another jury would have
called _villani_. See e.g. R. H. ii. 688 ff.

[426] D. B. ii. 189 b, 190.

[427] D. B. ii. 318: 'In Suttona tenet idem W. [de Cadomo] de R.
Malet 2 liberos homines commendatos Edrico 61 acr[arum] et sub
1 ex ipsis 5 liberi [_sic_] homines.'--Ibid. 321 b: 'In
Caldecota 6 liberi homines commendati Leuuino de Bachetuna 74
acr. et 7 liberi homines sub eis commend[ati] de 6 acr. et
dim.'

§ 6. _The Manor._

[What is a manor?]

This brings us face to face with a question that we have hitherto evaded. What is a manor? The word _manerium_ appears on page after page of Domesday Book, but to define its meaning will task our patience. Perhaps we may have to say that sometimes the term is loosely used, that it has now a wider, now a narrower compass, but we can not say that it is not a technical term. Indeed the one statement that we can safely make about it is that, at all events in certain passages and certain contexts, it is a technical term.

['Manor' a technical term.]

We may be led to this opinion by observing that in the description of certain counties--Middlesex, Buckingham, Bedford, Cambridge, Huntingdon, Derby, Nottingham, Lincoln, York--the symbol _M_ which represents a manor, is often carried out into the margin, and is sometimes contrasted with the _S_ which represents a soke and the _B_ which represents a berewick. This no doubt has been done--though it may not have been very consistently done--for the purpose of guiding the eye of officials who will turn over the pages in search of manors. But much clearer evidence is forthcoming. Throughout the survey of Essex it is common to find entries which take such a form as this: 'Thurkil held it for two hides and for one manor'; 'Brithmær held it for five hides and for one manor'; 'Two free men who were brothers held it for two hides and for two manors'; 'Three free men held it for three manors and for four hides and twenty-seven acres[428].' In Sussex again the statement '_X_ tenuit pro uno manerio[429]' frequently occurs. Such phrases as 'Four brothers held it for two manors, Hugh received it for one manor[430],'--'These four manors are now for one manor[431],'--'Then there were two halls, now it is in one manor[432],'--'A certain thegn held four hides and it was a manor[433],'--are by no means unusual[434]. A clerk writes 'Elmer tenuit' and then is at pains to add by way of interlineation 'pro manerio[435].' 'Eight thegns held this manor, one of them, Alwin, held two hides for a manor; another, Ulf, two hides for a manor; another, Algar, one hide and a half for a manor; Elsi one hide, Turkill one hide, Lodi one hide, Osulf one hide, Elric a half-hide[436]'--when we read this we feel sure that the scribe is using his terms carefully and that he is telling us that the holdings of the five thegns last mentioned were not manors. And then Hugh de Port holds Wallop in Hampshire 'for half a manor[437].' But let us say at once that at least one rule of law, or of local custom, demands a definition of a _manerium_. In the shires of Nottingham and Derby a thegn who has more than six manors pays a relief of £8 to the king, but if he has only six manors or less, then a relief of 3 marks to the sheriff[438]. It seems clear therefore that not only did the Norman rulers treat the term _manerium_ as an accurate term charged with legal meaning, but they thought that it, or rather some English equivalent for it, had been in the Confessor's day an accurate term charged with legal meaning.

[The word _manerium_.]