burgenses T. R. E. De his habuit Rex omnem consuetudinem. De
istis hominibus erant 36 ita dominice Regis E. ut non possent
esse homines alicuius sine licentia Regis. Alii omnes poterant
esse homines cuiuslibet set semper tamen consuetudeo Regis
remanebat _preter herigete_.' Compare D. B. i. 336 b,
Stamford: 'In his custodiis sunt 72 mansi sochemanorum, qui
habent terras suas in dominio, et qui petunt dominos ubi
volunt, super quos Rex nichil aliud habet nisi emendationem
forisfacturae eorum et heriete et theloneum.' In this case
commendation would not carry the heriot with it.
[275] D. B. ii. 201: 'Liber homo de 80 acris terrae Almari episcopi
et Alwoldi abbatis commend[atione] tantum, et hic homo erat
ita in monasterio quod non potuit dare terram suam nec
vendere.' See another entry of the same kind on the same page.
[276] D. B. i. 50 b: 'Hic Alwinus tenuit hanc terram T. R. E. sub
Wigoto pro tuitione; modo tenet eam sub Milone.'
[277] For example, D. B. ii. 353 b: 'Hii poterant dare et vendere
terram suam T. R. E. set commend[atio] et soca et saca
remanebat S. Edmundo.'
[278] D. B. ii. 182 b: 'Ulchetel habuit dimidiam commendationem de
illo T. R. E. et de uxore ipsius totam commendationem.' Ibid.
249 b: 'Medietas istius hominis fuit antecessoris Baingnardi
commendatione tantum et alia medietas S. Edmundi cum dimidia
terra.' The contrast between _dimidii homines_ and _integri
homines_ is common enough. See D. B. ii. 309: one man has a
sixth and another five-sixths of a commendation.
[279] D. B. ii. 333 b.
[280] D. B. ii. 125 b.
[281] D. B. i. 58. Tori 'committed himself for defence' to Bp.
Herman; Tori's son has done the same to Osmund, the successor
of Herman.
[282] D. B. i. 133: 'sed pro aliis terris homo archiepiscopi
Stigandi fuit.'
[283] On the whole this seems to be the meaning of
'sub-commendation.' We read a good deal of men who were
sub-commended to the _antecessor_ of Robert Malet. This seems
to be explained by such an entry as the following (ii. 313 b):
'Eadric holds two free men who were commended to Eadric, who
himself was commended to (another) Eadric, the _antecessor_ of
Robert Malet.'
[284] D. B. i. 45 b: 'Quidam frater Edrici tenuit tali conventione,
quod quamdiu bene se haberet erga eum [Edricum] tamdiu terram
de eo teneret, et si vendere vellet, non alicui nisi ei de quo
tenebat vendere vel dare liceret.'
[285] Cases of life tenancies will be found in D. B. i. 47,
Stantune; 67 b, Newetone; 80, Catesclive; 177 b, Witune; ii.
373, 444 b.
[286] D. B. i. 46 b, 66 b, 72, 175. We shall return to this when in
the next essay we speak of _loanland_.
[287] D. B. i. 67 b: 'Hanc terram reddidit sponte sua aecclesiae
Hardingus qui in vita sua per convent[ionem] debebat tenere.'
See also the case in i. 177 b. Again, ii. 431: 'terram quam
cepit cum uxore sua ... misit in ecclesia concedente muliere
tali conventione quod non potuit vendere nec dare de
aecclesia.' For a 'recognitio' see i. 175, Persore.
[288] D. B. i. 57 b.
[289] D. B. i. 149: 'De his tenuit Aluuid puella 2 hidas ... et de
dominica firma Regis Edwardi habuit ipsa dimidiam hidam quam
Godricus vicecomes ei concessit quamdiu vicecomes esset, ut
illa doceret filiam ejus aurifrisium operari.'
[290] D. B. i. 175: 'Hanc emit quidam Godricus teinus regis Edwardi
vita trium haeredum et dabat in anno monachis unam firmam pro
recognitione.'
[291] D. B. i. 269 b.
[292] See above p. 56. Their tenure will be discussed hereafter in
connexion with St. Oswald's land-loans.
[293] D. B. ii. 187 b: 'In Carletuna 27 liberi homines et dimidius
sub Olfo commendatione tantum et soca falde ... 15 liberi
homines sub Olfo soca falde et commendatione tantum.'
[294] D. B. ii. 203 b: 'In eadem villa 12 homines 6 quorum erant in
soca falde et alii 6 erant liberi.' Ibid. 361 b: '70 liberi
... super hos homines habet et semper habuit sacam et socam et
omnem consuetudinem et ad faldam pertinent omnes preter 4.'
Ibid. ii. 207: '17 liberi homines consueti ad faldam et
commendati.' The term 'fold-worthy' occurs in a writ of Edward
the Confessor; he gives to St. Benet of Ramsey soke over such
of the men of a certain district as are moot-worthy,
fyrd-worthy, and fold-worthy: Earle, Land Charters, p. 343;
Kemble, iv. p. 208.
[295] In later extents of East Anglian manors the fold-soke plays an
important part. Cart. Rams. iii. 267: 'R. tenuit unam
carucatam terrae cum falda sua pro octo solidis. A. dabat pro
terra sua quadraginta denarios et oves eius erant in falda
Abbatis.... H. triginta acras pro quatuor solidis et oves eius
sunt in manu domini....'
[296] See the document printed by Hamilton at the end of the
Inquisitio Com. Cantabr. p. 192. 'Isti solummodo arabunt et
contererent messes eiusdem loci quotienscunque abbas
preceperit....' 'Ita proprie sunt abbati ut quotienscunque
ipse preceperit in anno arabunt suam terram, purgabunt et
colligent segetes, portabunt victum monachorum ad monasterium,
equos eorum in suis necessitatibus semper habebit.' For more
of this matter see Round, Feudal England, 30.
[297] D. B. i. 141: there are four sokemen who are men of Æthelmær
and who can not sell their land without his consent; but they
are under the king's sake and soke and jointly provide the
sheriff with one _avera_ every year or four pence.
[298] D. B. i. 249: 'Haec terra fuit consuetudinaria solummodo de
theloneo regis sed aliam socam habebat.'
[299] D. B. ii. 273 b: 'In eadem 8 consuetudinarii ad faldam sui
antecessoris.' Ibid. 215: '8 homines consuetudinarios ad hoc
manerium.'
[300] D. B. i. 280: 'Duae partes Regis et tercia comitis de censu et
theloneo et forisfactura et de omni consuetudine.' Ibid. 42:
'Unam aecclesiam et 6 capellas cum omni consuetudine vivorum
et mortuorum.'
[301] D. B. i. 10 b: 'et sunt quieti pro servitio maris ab omni
consuetudine preter tribus, latrocinio, pace infracta, et
forestel.'
[302] D. B. i. 61 b: 'solutam ab omni consuetudine propter forestam
custodiendam excepta forisfactura Regis, sicut est
latrocinium, et homicidium, et heinfara, et fracta pax.'
[303] D. B. i. 52: 'Hi infrascripti habent in Hantone
consuetud[ines] domorum suarum.' Ibid. 249: 'Haec terra fuit
consuetudinaria solummodo de theloneo Regis sed socam aliam
habebat.'
§ 5. _Sake and soke._
[Sake and soke.]
We may best begin our investigation by recalling the law of later times.
In the thirteenth century seignorial justice, that is, justice in
private hands, has two roots. A certain civil jurisdiction belongs to
the lord as such; if he has tenants enough to form a court, he is at
liberty to hold a court of and for his tenants. This kind of seignorial
justice we call specifically feudal justice. But very often a lord has
other and greater powers than the feudal principle would give him; in
particular he has the view of frankpledge and the police justice that
the view of frankpledge implies. All such powers must in theory have
their origin in grants made by the king; they are franchises. With
feudal justice therefore we contrast 'franchisal' justice[304].
[Private jurisdiction in the Leges.]
Now if we go back to the Norman period we shall begin to doubt whether
the feudal principle--the principle which as a matter of course gives
the lord justiciary powers over his tenants--is of very ancient
origin[305]. The state of things that then existed should be revealed to
us by the Leges Henrici; for, if that book has any plan at all, it is a
treatise on the law of jurisdiction, a treatise on 'soke.' To this topic
the writer constantly returns after many digressions, and the leading
theme of his work is found in the following sentence:--'As to the soke
of pleas, there is that which belongs properly and exclusively to the
royal fiscus; there is that which it participates with others; there is
that which belongs to the sheriffs and royal bailiffs as comprised in
their ferms; there is that which belongs to the barons who have soke and
sake[306].' But, when all has been said, the picture that is left on our
minds is that of a confused conflict between inconsistent and indefinite
principles, and very possibly the compiler in giving us such a picture
is fulfilling the duty of a faithful portrayer of facts, though he does
not satisfy our demand for a rational theory.
[Soke in the _Leges Henrici_.]
On the one hand, it seems plain that there is a seignorial justice which
is not 'franchisal.' Certain persons have a certain 'soke' apart from
any regalities which may have been expressly conceded to them by the
king. But it is not clear that the legal basis of this soke is the
simple feudal principle stated above, namely, that jurisdiction springs
from the mere fact of tenure. An element of which we hear little in
later days, is prominent in the Leges, the element of rank or personal
status. 'The archbishops, bishops, earls and other 'powers'
(_potestates_) have sake and soke, toll, team and infangenethef in their
own lands[307].' Here the principle seems to be that men of a certain
rank have certain jurisdictional powers, and the vague term _potestates_
may include in this class all the king's barons. But then the
freeholding _vavassores_ have a certain jurisdiction, they have the
pleas which concern _wer_ and _wíte_ (that is to say 'emendable' pleas)
over their own men and their own property, and sometimes over another
man's men who have been arrested or attached in the act of
trespass[308]. Whatever else we may think of these _vavassores_, they
are not barons and probably they are not immediate tenants of the
king[309]. It is clear, however, that there may be a 'lord' with 'men'
who yet has no sake or soke over them[310]. We are told indeed that
every lord may summon his man to stand to right in his court, and that
if the man be resident in the remotest manor of the honour of which he
holds, he still must go to the plea[311]. Here for a moment we seem to
have a fairly clear announcement of what we call the simple feudal
principle, unadulterated by any element of personal rank; still our text
supposes that the lord in question is a great man, he has no mere manor
but an honour or several honours. On the whole, our law seems for the
time to be taking the shape that French law took. If we leave out of
sight the definitely granted franchisal powers, then we may say that a
baron or the holder of a grand fief has 'high justice,' or if that term
be too technical, a higher justice, while the vavassor has 'low justice'
or a lower justice. But in this province, as in other provinces, of
English law personal rank becomes of less and less importance. The rules
which would determine it and its consequences are never allowed to
become definite, and in the end a great generalization surmounts all
difficulties:--every lord has a certain civil justice over his tenants;
whatsoever powers go beyond this, are franchises.
[Kinds of soke in the _Leges_.]
As to the sort of jurisdiction that a lord of our Leges has, we can make
no statement in general terms. Such categories as 'civil' and 'criminal'
are too modern for use. We must of course except the pleas of the crown,
of which a long and ungeneralized list is set before us[312]. We must
except the pleas of the church. We must except certain pleas which
belong in part to the king and in part to the church[313]. Then we
observe that the justice of an archbishop, bishop or earl, probably the
justice of a baron also, extends as high as _infangenethef_, while that
of a vavassor goes no higher than such offences as are emendable. The
whole matter however is complicated by royal grants. The king may grant
away a demesne manor and retain not only 'the exclusive soke' (i.e. the
soke over the pleas of the crown), but also 'the common soke' in his
hand[314], and a great man may by purchase acquire soke (for example, we
may suppose, the hundredal soke) over lands that are not his own[315].
Then again, we may suspect that what is said of 'soke' in general does
not apply to any jurisdiction that a lord may exercise over his _servi_
and _villani_. As to the _servi_, very possibly the lord's right over
them is still conceived as proprietary rather than jurisdictional, while
for his _villani_ (_serf_ and _villein_ are not yet convertible terms)
the lord, whatever his rank may be, will probably hold a 'hallmoot[316]'
and exercise that 'common soke' which does not infringe the royal
preserves. On the whole, the law of the thirteenth century seems to
evolve itself somewhat easily out of the law of these Leges, the process
of development being threefold: (1) the lord's rank as bishop, abbot,
earl, baron, becomes unimportant; (2) the element of tenure becomes
all-important; the mere fact that the man holds land of the lord makes
him the lord's justiciable; thus a generalization becomes possible which
permits even so lowly a person as a burgess of Dunstable to hold a court
for his tenants[317]; (3) the obsolescence of the old law of _wíte_ and
_wer_, the growth of the new law of felony, the emergence in Glanvill's
book of the distinction between criminal and civil pleas as a grand
primary distinction, the introduction of the specially royal processes
of presentment and inquest, bring about a new apportionment of the field
of justice and a rational demarcation of feudal from franchisal powers.
Still when we see the lords, especially the prelates of the church,
relying upon prescription for their choicest franchises[318], we may
learn (if such a lesson be needed) that new theories could not master
all the ancient facts.
[The Norman kings and private jurisdiction.]
Whether the Conqueror or either of his sons would have admitted that any
justice could be done in England that was not his justice, we may fairly
doubt. They issued numerous charters which had no other object than that
of giving or confirming to the donees 'their sake and soke,' and, so far
as we can see, there is no jurisdiction, at least none over free men,
that is not accounted to be 'sake and soke.' Occasionally it is said
that the donees are to have 'their court.' However far the feudalization
of justice had gone either in Normandy or in England before the
Conquest, the Conquest itself was likely to conceal from view the
question whether or no all seignorial jurisdiction is delegated from
above; for thenceforward every lay tenant in chief, as no mere matter of
theory, but as a plain matter of fact, held his land by a title derived
newly and immediately from the king. Thus it would be easy for the king
to maintain that, if the lords exercised jurisdictional powers, they did
so by virtue of his grant, an expressed grant or an implied grant.
Gradually the process of subinfeudation would make the theoretical
question prominent and pressing, for certainly the Norman nobles
conceived that, even if their justice was delegated to them by the king,
no rule of law prevented them from appointing sub-delegates. If they
claimed to give away land, they claimed also to give away justice, and
no earnest effort can have been made to prevent their doing this[319].
[Sake and soke in Domesday Book.]
Returning from this brief digression, we must consider _sake_ and _soke_
as they are in Domesday Book. For a moment we will attend to the words
themselves[320]. Of the two _soke_ is by far the commoner; indeed we
hardly ever find _sake_ except in connexion with _soke_, and when we do,
it seems just an equivalent for _soke_. We have but an alliterative
jingle like 'judgment and justice[321].' Apparently it matters little or
nothing whether we say of a lord that he has _soke_, or that he has
_sake_, or that he has _soke_ and _sake_. But not only is _soke_ the
commoner, it is also the wider word; we can not substitute _sake_ for it
in all contexts. Thus, for example, we say that a man renders _soke_ to
his lord or to his lord's manor; also we say that a piece of land is a
_soke_ of such and such a manor; no similar use is made of _sake_.
[Meaning of _sake_.]
Now as a matter of etymology _sake_ seems the easier of the two words.
It is the Anglo-Saxon _sacu_, the German _Sache_, a thing, a matter, and
hence a 'matter' or 'cause' in the lawyer's sense of these terms, a
'matter' in dispute between litigants, a 'cause' before the court. It is
still in use among us, for though we do not speak of a sake between two
persons, we do speak of a man acting for another's sake, or for God's
sake, or for the sake of money[322]. In Latin therefore _sake_ may be
rendered by _placitum_:--'Roger has sake over them' will become
'Rogerius habet placita super eos[323]'; Roger has the right to hold
plea over them. Thus easily enough _sake_ becomes the right to have a
court and to do justice.
[Meaning of _soke_.]
As to _soke_, this has a very similar signification, but the route by
which it attains that signification is somewhat doubtful. We must start
with this that _soke_, _socna_, _soca_, is the Anglo-Saxon _sócn_ and
has for its primary meaning a _seeking_. It may become connected with
justice or jurisdiction by one or by both of two ways. One of these is
explained by a passage in the Leges Henrici which says that the king
has certain causes or pleas 'in socna i.e. quaestione sua.' The king has
certain pleas within his investigation, or his right to investigate. A
later phrase may help us:--the king is entitled to 'inquire of, hear and
determine' these matters[324]. But the word might journey along another
path which would lead to much the same end. It means seeking, following,
suing, making suit, _sequi_, _sectam facere_. The duty known as _soca
faldae_ is the duty of seeking the lord's fold. Thus _soca_ may be the
duty of seeking or suing at the lord's court and the correlative right
of the lord to keep a court and exact suit. Without denying that the
word has traversed the first of the two routes, the route by way of
'investigation'--in the face of the Leges Henrici we can hardly deny
this--we may confidently assert that it has traversed the second, the
route by way of 'suit.' There are several passages which assure us that
_soke_ is a genus of which _fold-soke_ is a species. Thus:--'Of these
men Peter's predecessor had fold-soke and commendation and Stigand had
the other soke[325].' In a document which is very closely connected with
the great survey we find what seems to be a Latin translation of our
word. The churches of Worcester and Evesham were quarrelling about
certain lands at Hamton. Under the eye of the king's commissioners they
came to a compromise, which declared that the fifteen hides at Hamton
belonged to the bishop of Worcester's hundred of Oswaldslaw and ought to
pay the king's geld and perform the king's services along with the
bishop and ought 'to seek the said hundred for pleading':--_requirere ad
placitandum_, this is the main kind of 'seeking' that _soke_
implies[326]. If we look back far enough in the Anglo-Saxon dooms,
there is indeed much to make us think that the act of seeking a lord and
placing oneself under his protection, and the consequences of that act,
the relation between man and lord, the fealty promised by the one, the
warranty due from the other, have been known as _sócn_[327]. If so, then
there may have been a time when commendation and soke were all one. But
this time must be already ancient, for although we do not know what
English word was represented by _commendatio_, still there is no
distinction more emphatically drawn by Domesday Book than that between
_commendatio_ and _soca_.
[Soke as jurisdiction.]
Now when we meet with _soca_ in the Leges Henrici we naturally construe
it by some such terms as 'jurisdiction,' 'justice,' 'the right to hold a
court.' We have seen that the author of that treatise renders it by the
Latin _quaestio_. We also meet the following phrases which seem clear
enough:--'Every cause shall be determined in the hundred, or in the
county, or in the hallmoot of those who have soke, or in the courts of
the lords[328]'; '... according to the soke of pleas, which some have in
their own land over their own men, some over their own men and
strangers, either in all causes or in some causes[329]': ... 'grithbrice
or hámsócn or any of those matters which exceed their soke and
sake[330]': 'in capital causes the soke is the king's[331].' So again
our author explains that though a baron has soke this will not give him
a right to justice over himself; no one, he says, can have his own
forfeiture; no one has a soke of impunity:--'nullus enim socnam habet
impune peccandi[332].' The use that Domesday Book makes of the word may
not be quite so clear. Sometimes we are inclined to render it by _suit_,
in particular when fold-soke is contrasted with 'other soke.' But very
generally we must construe it by _justice_ or by _justiciary rights_,
though we must be careful not to introduce the seignorial court where it
does not exist, and to remember that a lord may be entitled to receive
the wites or fines incurred by his criminous men without holding a court
for them. Those men may be tried and condemned in a hundred court, but
the wite will be paid to their lord. Then the word is applied to tracts
of land. A tract over which a lord has justiciary power, or a
wite-exacting power, is his _soke_, and very often his _soke_ is
contrasted with those other lands over which he has rights of a more
definitely proprietary kind. But we must turn from words to law.
[Seignorial justice before the Conquest.]