England. The greatest of the Anglo-Saxon lords had enjoyed wide and high
justiciary rights. Naturally it is of the rights of the churches that we
hear most, for the rights that they had under King Edward they still
claim under King William. Foremost among them we may notice the church
of Canterbury. On the great day at Penenden Heath, Lanfranc proved that
throughout the lands of his church in Kent the king had but three
rights; all other justice was in the hands of the archbishop[333]. In
Warwickshire the Archbishop of York has soke and sake, toll and team,
church-scot and all other 'forfeitures' save those four which the king
has throughout the whole realm[334]. These four forfeitures are probably
the four reserved pleas of the crown that are mentioned in the laws of
Cnut--_mundbryce_, _hámsócn_, _forsteal_ and _fyrdwíte_[335]. But even
these rights though usually reserved to the king may have been made over
to the lord. In Yorkshire neither king nor earl has any 'custom' within
the lands of St. Peter of York, St. John of Beverley, St. Wilfrid of
Ripon, St. Cuthbert of Durham and the Holy Trinity. We are asked
specially to note that in this region there are four royal highways,
three by land and one by water where the king claims all forfeitures
even when they run through the land of the archbishop or of the
earl[336]. Within his immense manor of Taunton the Bishop of Winchester
has pleas of the highest class, and three times a year without any
summons his men must meet to hold them[337]. In Worcestershire seven of
the twelve hundreds into which the county is divided are in the heads of
four great churches; Worcester has three, Westminster two, Evesham one,
Pershore one. Westminster holds its lands as freely as the king held
them in his demesne; Pershore enjoys all the pleas of the free men; no
sheriff can claim anything within the territory of St. Mary of
Worcester, neither in any plea, nor in any other matter[338]. In East
Anglia we frequently hear of the reserved pleas of the crown. In this
Danish district they are accounted to be six in number; probably they
are _griðbrice_, _hámsócn_, _fihtwíte_ and _fyrdwíte_, outlaw's-work
and the receipt of outlaws[339]. Often we read how over the men of some
lord the king and the earl have 'the six forfeitures,' or how 'the soke
of the six forfeitures' lies in some royal manor[340]. But then there is
a large tract in which these six forfeitures belong to St. Edmund; some
other lord may have sake and soke in a given parcel of that tract, but
the six forfeitures belong to St. Edmund; they are indeed 'the six
forfeitures of St. Edmund[341].' Other arrangements were possible. We
hear of men over whom St. Benet had three forfeitures[342]. The lawmen
of Stamford had sake and soke within their houses and over their men,
save geld, heriot, larceny and forfeitures exceeding 40 ores of
silver[343]. Certain burgesses of Romney serve the king on the sea, and
therefore they have their own forfeitures, save larceny, peace-breach
and forsteal, and these belong, not to the king, but to the
archbishop[344]. Sometimes King William will be careful to limit his
confirmation of a lord's sake and soke to the 'emendable forfeitures,'
the offences which can be paid for with money[345].
[Soke as a regality.]
That in the Confessor's day justiciary rights could only be claimed by
virtue of royal grants, that they did not arise out of the mere relation
between lord and man, lord and tenant, or lord and villein, seems to us
fairly certain. In the first place, as already said, soke is frequently
contrasted with commendation. In the second place, as we turn over the
pages of our record, we shall see it remarked of some man, who held a
manor in the days before the Conquest, that he had it with sake and
soke, and the remark is made in such a context that thereby he is
singled out from among his fellows[346]. Thus it is said of a little
group of villeins and sokemen in Essex that 'their lord had sake and
soke[347].' Not that we can argue that a lord has no soke unless it is
expressly ascribed to him. The surveyors have no great interest in this
matter. Sometimes such a phrase as 'he held it freely' seems to serve as
an equivalent for 'he held it with sake and soke[348].' It is said of
the Countess Judith, a lady of exalted rank, that she had a manse in
Lincoln without sake and soke[348]. Then we are told that throughout the
city of Canterbury the king had sake and soke except in the lands of the
Holy Trinity (Christ Church), St. Augustin, Queen Edith, and three
other lords[350]. We have a list of fifteen persons who had sake and
soke in the two lathes of Sutton and Aylesford[351], a list of
thirty-five persons who had sake and soke, toll and team in Lincolnshire
(it includes the queen, a bishop, three abbots and two earls[352]), and
a list of nineteen persons who had similar rights in the shires of Derby
and Nottingham[353]. Such lists would have been pointless had any
generalization been possible. Then in East Anglia it is common enough to
find that the men who are reckoned to be the _liberi homines_ of some
lord are under the soke of another lord or render their soke to the king
and the earl, that is to say, to the hundred court. Often enough it is
said somewhat pointedly that the men over whom the king and the earl
have soke are _liberi homines_, and this may for a moment suggest that
the lord as a matter of course has soke over such of his men as are not
ranked as 'free men'; possibly it may suggest that freedom in this
context implies subjection to a national as opposed to a seignorial
tribunal[354]. But on the one hand a lord often enough has soke over
those who are distinctively 'free men[355],' while on the other hand, as
will be explained below, he has not the soke over his sokeman[356].
[Soke over villeins.]
But we must go further and say that the lord has not always the soke
over his villeins. This is a matter of much importance. An entry
relating to a manor in Suffolk seems to put it beyond doubt:--In the
hundred and a half of Sanford Auti a thegn held Wenham in King Edward's
time for a manor and three carucates of land; there were then nine
_villani_, four _bordarii_ and one _servus_ and there were two teams on
the demesne; Auti had the soke over his demesne and the soke of the
villeins was in Bercolt[357]. Now Bercolt, the modern Bergholt, was a
royal manor, the seat of a great court, which had soke over many men in
the neighbouring villages. To all seeming it was the court for the
hundred, or 'hundred-and-a-half,' of Sanford[358]. Here then we seem to
have villeins who are not under the soke of their lord but are the
justiciables of the hundred court. In another case, also from Suffolk,
it is said of the lord of a manor that he had soke 'only over the
demesne of his hall,' and this seems to exclude from the scope of his
justiciary rights the land held by thirty-two villeins and eight
bordiers[359]. We may find the line drawn at various places. Not very
unfrequently in East Anglia a lord has the soke over those men who are
bound to his sheep-fold, while those who are 'fold-worthy' attend the
hundred court[360]. In one case a curious and instructive distinction is
taken:--'In Farwell lay in King Edward's day the sake and soke of all
who had less than thirty acres, but of all who had thirty acres the soke
and sake lay in the hundred[361].' In this case the line seems to be
drawn just below the virgater, no matter the legal class to which the
virgater belongs. To our thinking it is plain enough that many a
_manerium_ of the Confessor's day had no court of its own. As we shall
see hereafter, the manors are often far too small to allow of our
endowing each of them with a court. When of a Cheshire manor we hear
that 'this manor has its pleas in its lord's hall' we are being told of
something that is exceptional[362]. In the thirteenth century no one
would have made such a remark. In the eleventh the _halimote_ or
_hall-moot_ looks like a novelty.
[Private soke and hundredal soke.]
Seignorial justice is as yet very closely connected with the general
scheme of national justice. Frequently the lord who has justice has a
hundred. We remember how seven of the twelve hundreds of Worcestershire
are in the hands of four great churches[363]. St. Etheldreda of Ely has
the soke of five and a half hundreds in Suffolk[364]. In Essex Swain had
the half-hundred of Clavering, and the pleas thereof brought him in
25_s._ a year[365]. In Nottinghamshire the Bishop of Lincoln had all the
customs of the king and the earl throughout the wapentake of
Newark[366]. The monks of Battle Abbey claimed that the sake and soke of
twenty-two hundreds and a half and all royal 'forfeitures' were annexed
to their manor of Wye[367]. But further--and this deserves
attention--when the hundredal jurisdiction was not in the hands of some
other lord, it was conceived as belonging to the king. The sake and soke
of a hundred or of several hundreds is described as 'lying in,' or being
annexed to, some royal manor and it is farmed by the farmer of that
manor. Oxfordshire gives us the best example of this. The soke of four
and a half hundreds belongs to the royal manor of Bensington, that of
two hundreds to Headington, that of two and a half to Kirtlington, that
of three to Upton, that of three to Shipton, that of two to Bampton,
that of two to Bloxham and Adderbury[368]. What we see here we may see
elsewhere also[369]. If then King William gives the royal manor of Wye
to his newly founded church of St. Martin in the Place of Battle, the
monks will contend that they have obtained as an appurtenance the
hundredal soke over a large part of the county of Kent[370].
[Hundredal and manorial soke.]
The law seems as yet, if we may so speak, unconscious of the fact that
underneath or beside the hundredal soke a new soke is growing up. It
seems to treat _the_ soke over a man or over a piece of land as an
indivisible thing that must 'lie' somewhere and can not be in two places
at once. It has indeed to admit that while one lord has the soke, the
king or another lord may have certain reserved and exalted
'forfeitures,' the three forfeitures or the four or the six, as the case
may be[371]; but it has no classification of courts. The lord's court,
if it be not the court of an ancient hundred, is conceived as the court
of a half-hundred, or of a quarter of a hundred[372], or as the court of
a district that has been carved out from a hundred[373]. Thus Stigand
had the soke of the half-hundred of Hersham, save Thorpe which belonged
to St. Edmund, and Pulham which belonged to St. Etheldreda[374]; thus
also the king had the soke of the half-hundred of Diss, except the land
of St. Edmund, where he shared the soke with the saint, and except the
lands of Wulfgæt and of Stigand[375]. But it is impossible to maintain
this theory. The hundred is becoming full of manors, within each of
which a lord is exercising or endeavouring to exercise a soke over all,
or certain classes, of his men. It is possible that in Lincolnshire we
see the beginnings of a differentiating process; we meet with the word
_frisoca_, _frigsoca_, _frigesoca_. Whether this stands for 'free
soken,' or, as seems more likely, for 'frið soken,' soke in matters
relating to the peace, it seems to mark off one kind of soke from other
kinds[376]. We have to remember that in later days the relation of the
manorial to the hundredal courts is curious. In no accurate sense can we
say that the court of the manor is below the court of the hundred. No
appeal, no complaint of false judgment, lies from the one to the other;
and yet, unless the manor enjoys some exceptional privilege, it is not
extra-hundredal and its jurisdiction in personal causes is over-lapped
by the jurisdiction of the hundred court: the two courts arise from
different principles[377]. In Domesday Book the feudal or tenurial
principle seems still struggling for recognition. Already the Norman
lords are assuming a soke which their _antecessores_ did not enjoy[378].
As will be seen below, they are enlarging and consolidating their manors
and thereby rendering a manorial justice possible and profitable.
Whether we ought to hold that the mere shock and jar of conquest and
dispossession was sufficient to set up the process which covered our
land with small courts, or whether we ought to hold that an element of
foreign law worked the change, is a question that will never be answered
unless the Norman archives have yet many secrets to tell. The great
'honorial' courts of later days may be French; still it is hardly in
this region that we should look for much foreign law. It is in English
words that the French baron of the Conqueror's day must speak when he
claims justiciary rights. But that the process was far from being
complete in 1086 seems evident.
[The seignorial court.]
Many questions about the distribution and the constitution of the courts
we must leave unsolved. Not only does our record tell us nothing of
courts in unambiguous words, but it hardly has a word that will answer
to our 'court.' The term _curia_ is in use, but it seems always to
signify a physical object, the lord's house or the court-yard around it,
never an institution, a tribunal[379]. Almost all that we are told is
conveyed to us under the cover of such words as _sake_, _soke_,
_placita_, _forisfacturae_. We know that the Bishop of Winchester has a
court at Taunton, for his tenants are bound to come together thrice a
year to hold his pleas without being summoned[380]. This phrase--'to
hold his pleas'--seems to tell us distinctly enough that the suitors are
the doomsmen of the court. Then, again, we have the well-known story of
what happened at Orwell in Cambridgeshire. In that village Count Roger
had a small estate; he had land for a team and a half. This land had
belonged to six sokemen. He had borrowed three of them from Picot the
sheriff in order that they might hold his pleas, and having got them he
refused to return them[381]. That the court that he wished to hold was a
court merely for his land at Orwell is highly improbable, but he had
other lands scattered about in the various villages of the Wetherly
hundred, though in all his tenants amounted to but 14 villeins, 42
bordiers, 15 cottiers, and 4 serfs. We can not draw the inference that
men of the class known as sokemen were necessary for the constitution of
a court, for at the date of the survey there was no sokeman left in all
Roger's land in Cambridgeshire; the three that he borrowed from Picot
had disappeared or were reckoned as villeins or worse. Still he held a
court and that court had doomsmen. But we can not argue that every lord
who had soke, or sake and soke, had a court of his own. It may be that
in some cases he was satisfied with claiming the 'forfeitures' which his
men incurred in the hundred courts. This is suggested to us by what we
read of the earl's third penny.
[Soke and the earl's third penny.]
In the county court and in every hundred court that has not passed into
private hands, the king is entitled to but two-thirds of the proceeds of
justice and the earl gets the other third, except perhaps in certain
exceptional cases in which the king has the whole profit of some
specially royal plea. The soke in the hundred courts belongs to the king
and the earl. And just as the king's rights as the lord of a hundredal
court become bound up with, and are let to farm with, some royal manor,
so the earl's third penny will be annexed to some comital manor. Thus
the third penny of Dorsetshire was annexed to Earl Harold's manor of
Pireton[382], and the third penny of Warwickshire to Earl Edwin's manor
of Cote[383]. Harold had a manor in Herefordshire to which belonged the
third penny of three hundreds[384]; Godwin had a manor in Hampshire to
which belonged the third penny of six hundreds[385]; the third penny of
three Devonian hundreds belonged to the manor of Blackpool[386]. Now, at
least in some cases, the king could not by his grants deprive the earl
of his right; the grantee of soke had to take it subject to the earl's
third penny. Thus for the shires of Derby and Nottingham we have a list
of nineteen persons who were entitled to the king's two-pence, but only
three of them were entitled to the earl's penny[387]. The monks of
Battle declared that throughout many hundreds in Kent they were entitled
to 'the king's two-pence'; the earl's third penny belonged to Odo of
Bayeux[388]. And so of certain 'free men' in Norfolk it is said that
'their soke is in the hundred for the third penny[389].' A man commits
an offence; he incurs a _wíte_; two-thirds of it should go to his lord;
one-third to the earl: in what court should he be tried? The answer that
Domesday Book suggests by its silence is that this is a matter of
indifference; it does not care to distinguish between the right to hold
a court and the right to take the profits of justice. Just once the veil
is raised for a moment. In Suffolk lies the hundred of Blything; its
head is the vill of Blythburgh where there is a royal manor[390]. Within
that hundred lies the considerable town of Dunwich, which Edric holds as
a manor. Now in Dunwich the king has this custom that two or three men
shall go to the hundred court if they be duly summoned, and if they make
default they shall pay a fine of two ores, and if a thief be caught
there he shall be judged there and corporeal justice shall be done in
Blythburgh and the lord of Dunwich shall have the thief's chattels.
Apparently in this case the lord of Dunwich will see to the trying but
not to the hanging of the thief; but, at any rate, a rare effort is here
made to define how justice shall be done[391]. The rarity of such
efforts is very significant. Of course Domesday Book is not a treatise
on jurisdiction; still if there were other terms in use, we should not
be for ever put off with the vague, undifferentiated _soke_. On the
whole, we take it that the lord who enjoyed soke had a right to keep a
court if he chose to do so, and that generally he did this, though he
would be far from keeping a separate court for each of his little
manors; but if his possessions were small he may have contented himself
with attending the hundred court and claiming the fines incurred by his
men. Sometimes a lord seems to have soke only over his own demesne
lands[392]; in this case the wites that will come to him will be few. We
may in later times see some curious compromises. If a thief is caught on
the land of the Prior of Canterbury at Brook in Kent, the borhs-elder
and frank-pledges of Brook are to take him to the court of the hundred
of Wye, which belongs to the Abbot of Battle. Then, if he is not one of
the Prior's men, he will be judged by the hundred. But if he is the
Prior's man, then the bailiff of Brook will 'crave the Prior's court.'
The Prior's folk will then go apart and judge the accused, a few of the
hundredors going with them to act as assessors. If the tribunal thus
constituted cannot agree, then once more the accused will be brought
back into the hundred and will there be judged by the hundredors in
common. In this instance we see that even in Henry II.'s day the Prior
has not thoroughly extricated his court from the hundred moot[393].
[Soke and house-peace.]
It seems possible that a further hint as to the history of soke is given
us by certain entries relating to the boroughs. It will already have
become apparent that if there is soke over men, there is also soke over
land: if men 'render soke' so also acres 'render soke.' We can see that
a very elaborate web of rules is thus woven. One man strikes another.
Before we can tell what the striker ought to pay and to whom he ought
to pay it, we ought to know who had soke over the striker, over the
stricken, over the spot where the blow was given, over the spot where
the offender was attached or arrested or accused. 'The men of Southwark
testify that in King Edward's time no one took toll on the strand or in
the water-street save the king, and if any one in the act of committing
an offence was there challenged, he paid the amends to the king, but if
without being challenged he escaped under a man who had sake and soke,
that man had the amends[394].' Then we read how at Wallingford certain
owners of houses enjoyed 'the gafol of their houses, and blood, if blood
was shed there and the man was received inside before he was challenged
by the king's reeve, except on Saturday, for then the king had the
forfeiture on account of the market; and for adultery and larceny they
had the forfeiture in their houses, but the other forfeitures were the
king's[395].' We can not hope to recover the intricate rules which
governed these affairs, rules which must have been as intricate as those
of our 'private international law.' But the description of Wallingford
tells us of householders who enjoy the 'forfeitures' which arise from
crimes committed in their own houses, and a suspicion may cross our
minds that the right to these forfeitures is not in its origin a purely
jurisdictional or justiciary right. However, these householders are
great people (the Bishop of Salisbury, the Abbot of St Albans are among
them), their town houses are considered as appurtenant to their rural
manors and the soke over the manor comprehends the town house. And so
when we read how the twelve lawmen of Stamford had sake and soke within
their houses and over their own men 'save geld, and heriot, and
corporeal forfeitures to the amount of 40 ores of silver and larceny' we
may be reading of rights which can properly be described as
justiciary[396].
[Soke in houses.]
But a much more difficult case comes before us at Warwick[397]. We first
hear of the town houses that are held by great men as parts of their
manors, and then we hear that 'besides these houses there are in the
borough nineteen burgesses who have nineteen houses with sake and soke
and all customs.' Now we can not easily believe that the burgess's house
is a jurisdictional area, or that in exacting a mulct from one who
commits a crime in that house the burgess will be playing the magistrate
or exercising a right to do justice or take the profits of justice by
virtue of a grant made to him by the king. Rather we are likely to see
here a relic of the ancient 'house-peace[398].' If you commit an act of
violence in a man's house, whatever you may have to pay to the person
whom you strike and to the king, you will also have to make amends to
the owner of the house, even though he be but a ceorl or a boor, for you
have broken his peace[399]. The right of the burgess to exact a mulct
from one who has shed blood or committed adultery within his walls may
in truth be a right of this kind, and yet, like other rights to other
mulcts, it is now conceived as an emanation of sake and soke. If in the
eleventh century we hear but little of this householder's right, may
this not be because the householder has surrendered it to his lord, or
the lord has usurped it from the householder, and thus it has gone to
swell the mass of the lord's jurisdictional rights? At Broughton in
Huntingdonshire the Abbot of Ramsey has a manor with some sokemen upon
it 'and these sokemen say that they used to have legerwite
(fornication-fine), bloodwite and larceny up to fourpence, and above
fourpence the Abbot had the forfeiture of larceny[400].' Various
interpretations may be set upon this difficult passage. We may fashion
for ourselves a village court (though there are but ten sokemen) and
suppose that the commune of sokemen enjoyed the smaller fines incurred
by any of its members. But we are inclined to connect this entry with
those relating to Wallingford and to Warwick and to believe that each
sokeman has enjoyed a right to exact a sum of money for the breach of
his peace. The law does not clearly mark off the right of the injured
housefather from the right of the offended magistrate. How could it do
so? If you commit an act of violence you must pay a wite to the king.
Why so? Because you have wronged the king by breaking his peace and he
requires 'amends' from you. With this thought in our minds we may now
approach an obscure problem.
[Vendible soke.]
We have said that seignorial justice is regarded as having its origin in
royal grants, and in the main this seems true. We hardly state an
exception to this rule if we say that grantees of justice become in
their turn grantors. Not merely could the earl who had soke grant this
to one of his thegns, but that thegn would be said to hold the soke
'under' or 'of' the earl. Justice, we may say, was already being
subinfeudated[401]. But now and again we meet with much more startling
statements. Usually if a man over whom his lord has soke 'withdraws
himself with his land,' or 'goes elsewhere with his land,' the lord's
soke over that land 'remains': he still has jurisdictional rights over
that land though it is commended to a new lord. We may be surprised at
being very frequently told that this is the case, for we can hardly
imagine a man having power to take his land out of one sphere of justice
and to put it into another. But that some men, and they not men of high
rank, enjoyed this power seems probable. Of a Hertfordshire manor we
read: 'In this manor there were six sokemen, men of Archbishop Stigand,
and each had one hide, and they could sell, saving the soke, and one of
them could even sell his soke with the land[402].' This case may be
exceptional; there may have been a very unusual compact between the
archbishop and this egregiously free sokeman; but the frequency with
which we are told that on a sale the soke 'remains' does not favour this
supposition.
[Soke and mund.]
We seem driven to the conclusion that in some parts of the country the
practice of commendation had been allowed to interfere even with
jurisdictional relationships: that there were men who could 'go with
their land to what lord they chose' and carry with them not merely their
homage, but also their suit of court and their 'forfeitures.' This may
seem to us intolerable. If it be true, it tells us that the state has
been very weak; it tells us that the national scheme of justice has been
torn to shreds by free contract, that men have had the utmost difficulty
in distinguishing between property and political power, between personal
relationships and the magistracy to which land is subject. But unless we
are mistaken, the house-peace in its decay has helped to produce this
confusion. In a certain sense a mere ceorl has had what is now called a
soke,--it used to be called a _mund_ or _grið_--over his house and over
his loaf-eaters: that is to say, he has been entitled to have money paid
to him if his house-peace were broken or his loaf-eaters beaten. This
right he has been able to transfer to a lord. In one way or another it
has now come into the lord's hand and become mixed up with other rights.
In Henry I.'s day a lawyer will be explaining that if a villein receives
money when blood is shed or fornication is committed in his house, this
is because he has purchased these forfeitures from his lord[403]. This
reverses the order of history.
[Soke and jurisdiction.]