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.(1*)
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.(2*) The state of things that then existed should be revealed to us by the Leges Henrici; for, if that 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.(3*) 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.
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.(4*) 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 wite (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.(5*) Whatever else we may think of these vavassores, they are not barons and probably they are not immediate tenants of the king.(6*) It is clear, however, that there may be a 'lord' with 'men' who yet has no sake or soke over them.(7*) 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.(8*) 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.
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.(9*) 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.(10*) 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,(11*) and a great man may by purchase acquire soke (for example, we may suppose the hundredal soke) over lands that are not his own.(12*) 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'(13*) 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;(14*) (3) the obsolescence of the old law of wite and wer the growth of the new law of felony, the emergence in Glanvill's 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,(15*) we may learn (if such a lesson be needed) that new theories could not master all the ancient facts.
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.(16*)
Returning from this brief digression, we must consider sake and soke as they are in Domesday For a moment we will attend to the words themselves.(17*) 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.'(18*) 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.
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.(19*) In Latin therefore sake may be rendered by placitum: -- 'Roger has sake over them' will become 'Rogerius habet placita super eos'.(20*) Roger has the right to hold plea over them. Thus easily enough sake becomes the right to have a court and to do justice.
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, socn 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.(21*) 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 socafaldae 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.'(22*) 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.(23*) 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 socn.(24*) 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 than that between commendatio and soca.
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;(25*) '... 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':(26*)... 'grithbrice or hamsocn or any of those matters which exceed their soke and sake':(27*) 'in capital causes the soke is the king's.'(28*) 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.'(29*) The use that Domesday 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.
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.(30*) 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.(31*) These four forfeitures are probably the four reserved pleas of the crown that are mentioned in the laws of Cnut -- mundbryce, hamsocn, forsteal and fyrdwite.(32*) 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.(33*) Within this 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.(34*) 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.(35*) 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 gribrice, hamsocn, fihtwite and fyrdwite, outlaw's-work and the receipt of outlaws.(36*) 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.(37*) 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.'(38*) Other arrangements were possible. We hear of men over whom St Benet had three forfeitures.(39*) 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.(40*) 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.(41*) 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.(42*)
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.(43*) Thus it is said of a little group of villeins and sokemen in Essex that 'their lord had sake and soke.'(44*) 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.'(45*) It is said of the Countess Judith, a lady of exalted rank, that she had a manse in Lincoln without sake and soke.(46*) 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.(47*) We have a list of fifteen persons who had sake and soke in the two lathes of Sutton and Aylesford,(48*) 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)(49*) and a list of nineteen persons who had similar rights in the shires of Derby and Nottingham.(50*) 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.(51*) But on the one hand a lord often enough has soke over those who are distinctively 'free men,'(52*) while on the other hand, as will be explained below, he has not the soke over his sokeman.(53*)
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.(54*) 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.(55*) 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.(56*) 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 'foldworthy' attend the hundred court.(57*) 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.'(58*) 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.(59*) In the thirteenth century no one would have made such a remark. In the eleventh the halimote or hall-moot looks like a y.
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.(60*) St Etheldreda of Ely has the soke of five and a half hundreds in Suffolk.(61*) In Essex Swain had the half-hundred of Clavering, and the pleas thereof brought him in 25s. a year.(62*) In Nottinghamshire the Bishop of Lincoln had all the customs of the king and the earl throughout the ntake of Newark.(63*) 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.(64*) 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.(65*) What we see here we may see elsewhere also.(66*) 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.(67*)
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 cannot 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;(68*) 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,(69*) or as the court of a district that has been carved out from a hundred.(70*) 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;(71*) 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 Wulfgaet and of Stigand.(72*) 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 'frid soken,' soke in matter relating to the peace, it seems to mark off one kind of soke from other kinds.(73*) 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.(74*) In Domesday the feudal or tenurial principle seems still struggling for recognition. Already the Norman lords are assuming a soke which their antecessores did not enjoy.(75*) 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.
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.(76*) 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.(77*) 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.(78*) 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 all his tenants amounted to but 14 villeins, 42 bordiers, 15 cottiers, and 4 serfs. We cannot 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 cannot 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.
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,(79*) and the third penny of Warwickshire to Earl Edwin's manor of Cote.(80*) Harold had a manor in Herefordshire to which belonged the third penny of three hundreds;(81*) Godwin had a manor in Hampshire to which belonged the third penny of six hundreds;(82*) the third penny of three Devonian hundreds belonged to the manor of Blackpool.(83*) 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.(84*) 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.(85*) And so of certain 'free men' in Norfolk it is said that 'their soke is in the hundred for the third penny.'(86*) A man commits an offence; he incurs a wite; 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 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 vil of Blythburgh where there is a royal manor.(87*) 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.(88*) The rarity of such efforts is very significant. Of course Domesday 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;(89*) 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.(90*)
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.'(91*) 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.'(92*) We cannot 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.(93*)
But a much more difficult case comes before us at Warwick.(94*) 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 cannot 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.'(95*) 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.(96*) 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.'(97*) 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.
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 sub-infeudated.(98*) 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.'(99*) 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.
We seem driven to the conclusion that in some parts of the country the practice of commendation had been allowed to interfere 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 housepeace 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 grid -- 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 loafeaters 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.(100*) This reverses the order of history.
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 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.(101*) 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.(102*) So it is in Domesday 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.(103*) The tenants of the Bishop of Winchester 'hold the bishops' pleas' at Taunton; Earl Roger borrows sokemen 'to hold his pleas.'(104*) 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.
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 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 cannot tell. For instance, we find many men who cannot 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.(105*) 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 ntake 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.(106*) '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.(107*) If we are puzzled by this labyrinthine web of legal relationships, we may console ourselves with the reflection that the Normans were also 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.
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;(108*) we may even hear of sokemen who formerly were 'free men.'(109*) But the import of this distinction evades us. Sometimes it is said of sokemen that they 'hold freely.'(110*) 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.(111*) 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.(112*) There may be truth in the suggestion, but we cannot square it with all our cases.(113*) Often enough the 'free man' cannot sell without the consent of his lord.(114*) 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.(115*) On the other hand, the sokeman who can sell without his lord's leave is no rare being,(116*) and it was of a sokeman that we read how he could sell, not only his land, but also his soke.(117*)
Again, we dare not say that while the 'free man' is the justiciable of a national court, the soke oven the sokeman belongs to his lond. Neither side of this proposition is true. Very often the soke over the 'free man' belongs to a church or to some other lord,(118*) who may or may not be his lord by commendation.(119*) Very often the lord has not the soke over his sokemen. This may seem a paradox, but it is true. We make it cleaner 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 AEthelmaer 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.(120*) Unless we are greatly mistaken, the soke of many of the East Anglian sokemen, no matter whose men they were, lay in the hundred counts. 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.(121*) 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.(122*)
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.'(123*) 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 borders or even a few free men 'below them.'(124*) 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.
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