Part 13

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.