With our thirteenth century cartularies before us, we might easily underrate the amount of money that was already being paid as the rent of land at the date of the Conquest. In several counties we come across small groups of censarii, censores, gablatores who pay for their land in money, of cervisarii and mellitarii who bring beer and honey. Renders in kind, in herrings, eels, salmon are not uncommon, and sometimes they are 'appreciated,' valued in terms of money. The pannage pig or the grass swine, which the villeins give in return for mast and herbage, is often mentioned. Throughout Sussex it seems to be the custom that the lord should have 'for herbage' one pig from every villein who has seven pigs¹⁹⁴. But money will be taken instead of swine, oxen or fish¹⁹⁵. The gersuma, the tailla, the theoretically free gifts of the tenants, are sums of money. But often enough the villanus is paying a substantial money rent. We have seen how at Leominster villeins plough and sow 140 acres for their lord and pay a rent of more than £11¹⁹⁶. At Lewisham in Kent the Abbot of Gand has a manor valued at £30; of this £2 is due to the profits of the port while two mills with 'the gafol of the rustics' bring in £8. 12s.¹⁹⁷ Such entries as the following are not uncommon—there is one villein rendering 30d.¹⁹⁸—there is one villein rendering 10s.¹⁹⁹—46 cotarii with one hide render 30 shillings a year²⁰⁰—the villeins give 13s. 4d. by way of consuetudo²⁰¹. No doubt it would be somewhat rare to find a villein discharging all his dues in money—this is suggested when we are told how on the land of S^t. Augustin one Wadard holds a large piece 'de terra villanorum' and yet renders no service to the abbot save 30s. a year²⁰². At least in one instance the villeins seem to be holding the manor in farm, that is to say, they are farming the demesne land and paying a rent in money or in provender²⁰³. We dare not represent the stream of economic history as flowing uninterruptedly from a system of labour services to a system of rents. We must remember that in the Conqueror's reign the lord very often had numerous serfs whose whole time was given to the cultivation of his demesne. In the south-western counties he will often have two, three or more serfs for every team that he has on his demesne, and, while this is so, we can not safely say that his husbandry requires that the villeins should be labouring on his land for three or four days in every week.

As a last question we may ask: What was the English for villanus? It is a foreign word, one of those words which came in with the Conqueror. Surely, we may argue, there must have been some English equivalent for it. Yet we have the greatest difficulty in finding the proper term. True that in the Quadripartitus and the Leges villanus generally represents ceorl; ceorl when it is not rendered by villanus is left untranslated in some such form as cyrliscus homo. But then ceorl must be a wider word than the villanus of Domesday Book, for it has to cover all the non-noble free men; it must comprehend the numerous sochemanni and liberi homines of northern and eastern England. This in itself is not a little remarkable; it makes us suspect that some of the lines drawn by Domesday Book are by no means very old; they can not be drawn by any of those terms that have been current in the Anglo-Saxon dooms or which still are current in the text-books that lawyers are compiling. To suppose that villanus is equivalent to gebúr is impossible; we have the best warrant for saying that the Latin for gebúr is not villanus but colibertus²⁰⁴. Nor can we hold that the villanus is a geneat. In the last days of the old English kingdom the geneat, the 'companion,' the 'fellow,' appears as a horseman who rides on his lord's errands; we must seek him among the radmanni and rachenistres and drengi of Domesday Book²⁰⁵. We shall venture the guess that when the Norman clerks wrote down villanus, the English jurors had said túnesman. As a matter of etymology the two words answer to each other well enough; the villa is the tún, and the men of the villa are the men of the tún. In the enlarged Latin version of the laws of Cnut, known as Instituta Cnuti, there is an important remark:—tithes are to be paid both from the lands of the thegn and from the lands of the villeins—'tam de dominio liberalis hominis, id est þegenes, quam de terra villanorum, id est tuumannes (corr. tunmannes)²⁰⁶.' Then in a collection of dooms known as the Northumbrian Priests' Law there is a clause which orders the payment of Peter's pence. If a king's thegn or landlord (landrica) withholds his penny, he must pay ten half-marks, half to Christ, half to the king; but if a túnesman withholds it, then let the landlord pay it and take an ox from the man²⁰⁷. A very valuable passage this is. It shows us how the lord is becoming responsible for the man's taxes: if the tenant will not pay them, the lord must. It is then in connexion with this responsibility of the lord that the term townsman meets us, and, if we mistake not, it is the lord's responsibility for geld that is the chief agent in the definition of the class of villani. The pressure of taxation, civil and ecclesiastical, has been forming new social strata, and a new word, in itself a vague word, is making its way into the vocabulary of the law²⁰⁸.

The class of villeins may well be heterogeneous. It may well contain (so we think) men who, or whose ancestors, have owned the land under a political supremacy, not easily to be distinguished from landlordship, that belongs to the king; and, on the other hand, it may well contain those who have never in themselves or their predecessors been other than the tenants of another man's soil. In some counties on the Welsh march there are groups of hospites who in fact or theory are colonists whom the lord has invited onto his land²⁰⁹; but this word, very common in France, is not common in England. Our record is not concerned to describe the nature or the origin of the villein's tenure; it is in quest of geld and of the persons who ought to be charged with geld, and so it matters not whether the lord has let land to the villein or has acquired rights over land of which the villein was once the owner. Therefore we lay down no broad principle about the rights of the villein, but we have suggested that taken in the mass the villani of the Confessor's reign were far more 'law-worthy' than were the villani of the thirteenth century. We can not treat either the legal or the economic history of our peasantry as a continuous whole; it is divided into two parts by the red thread of the Norman Conquest. That is a catastrophe. William might do his best to make it as little of a catastrophe as was possible, to insist that each French lord should have precisely the same rights that had been enjoyed by his English antecessor; it may even be that he endeavoured to assure to those who were becoming villani the rights that they had enjoyed under King Edward²¹⁰. Such a task, if attempted, was impossible. We hear indeed that the English 'redeemed their lands,' but probably this refers only to those English lords, those thegns or the like, who were fortunate enough to find that a ransom would be accepted²¹¹. We have no warrant for thinking that the peasants, the common 'townsmen,' obtained from the king any covenanted mercies. They were handed over to new lords, who were very free in fact, if not in theory, to get out of them all that could be got without gross cruelty.

We are not left to speculate about this matter. In after days those who were likely to hold a true tradition, the great financier of the twelfth, the great lawyer of the thirteenth century, believed that there had been a catastrophe. As a result of the Conquest, the peasants, at all events some of the peasants, had fallen from their free estate; free men, holding freely, they had been compelled to do unfree services²¹². But if we need not rely upon speculation, neither need we rely upon tradition. Domesday Book is full of evidence that the tillers of the soil are being depressed.

Here we may read of a free man with half a hide who has now been made one of the villeins²¹³, there of the holder of a small manor who now cultivates it as the farmer of a French lord graviter et miserabiliter²¹⁴, and there of a sokeman who has lost his land for not paying geld, though none was due²¹⁵; while the great Richard of Tonbridge has condescended to abstract a virgate from a villein or a villein from a virgate²¹⁶. But, again, it is not on a few cases in which our record states that some man has suffered an injustice that we would rely. Rather we notice what it treats as a quite common event. Free men are being 'added to' manors to which they did not belong. Thus in Suffolk a number of free men have been added to the manor of Montfort; they pay no 'custom' to it before the Conquest, but now they pay £15; Ælfric who was reeve under Roger Bigot set them this custom²¹⁷. Hard by them were men who used to pay 20 shillings, but this same Ælfric raised their rent to 100 shillings²¹⁸. 'A free man held this land and could sell it, but Waleran father of John has added him to this manor²¹⁹':—Entries of this kind are common. The utmost rents are being exacted from the farmers:—this manor was let for three years at a rent of £12 and a yearly gift of an ounce of gold, but all the farmers who took it were ruined²²⁰—that manor was let for £3. 15s. but the men were thereby ruined and now it is valued at only 45s.²²¹ About these matters French and English can not agree:—this manor renders £70 by weight, but the English value it at only £60 by tale²²²—the English fix the value at £80, but the French at £100²²³—Frenchmen and Englishmen agree that it is worth £50, but Richard let it to an Englishman for £60, who thereby lost £10 a year, at the very least²²⁴. 'It can not pay,' 'it can hardly pay,' 'it could not stand' the rent, such are the phrases that we hear. If the lord gets the most out of the farmer to whom he has leased the manor, we may be sure that the farmer is making the most out of the villeins.

But the most convincing proof of the depression of the peasantry comes to us from Cambridgeshire. The rural population of that county as it existed in 1086 has been classified thus²²⁵:—

sochemanni	213
villain	1902
bordarii	1428
cotarii	736
servi	548

But we also learn that the Cambridgeshire of the Confessor's day had contained at the very least 900 instead of 200 sokemen²²⁶. This is an enormous and a significant change. Let us look at a single village. In Meldreth there is a manor; it is now a manor of the most ordinary kind; it is rated at 3 hides and 1 virgate, but contains 5 team-lands; in demesne are half a hide and one team, and 15 bordarii and 3 cotarii have 4 teams, and there is one servus. But before the Conquest this land was held by 15 sokemen; 10 of them were under the soke of the Abbey of Ely and held 2 hides and half a virgate; the other 5 held 1 hide and half a virgate and were the men of Earl Ælfgar²²⁷. What has become of these fifteen sokemen? They are now represented by fifteen bordiers and five cottiers; and the demesne land of the manor is a new thing. The sokemen have fallen, and their fall has brought with it the consolidation of manorial husbandry and seignorial power. At Orwell Earl Roger has now a small estate; a third of it is in demesne, while the residue is held by 2 villeins and 3 bordiers, and there is a serf there. This land had belonged to six sokemen, and those six had been under no less than five different lords; two belonged to Edith the Fair, one to Archbishop Stigand, one to Robert Wimarc's son, one to the king, and one to Earl Ælfgar²²⁸. Displacements such as this we may see in village after village. No one can read the survey of Cambridgeshire without seeing that the freer sorts of the peasantry have been thrust out, or rather thrust down.

Evidence so cogent as this we shall hardly find in any part of the record save that which relates to Cambridgeshire and Bedfordshire. But great movements of the kind that we are examining will hardly confine themselves within the boundaries of a county. A little variation in the formula which tells us who held the land in 1066 may hide from us the true state of the case. We can not expect that men will be very accurate in stating the legal relationships that existed twenty years ago. Since the day when King Edward was alive and dead many things have happened, many new words and new forms of thought have become familiar. But taking the verdicts as we find them, there is still no lack of evidence. In Essex we may see the liberi homines disappearing²²⁹. But we need not look only to the eastern counties. At Bromley, in Surrey, Bishop Odo has a manor of 32 hides, 4 of which had belonged to 'free men' who could go where they pleased, but now there are only villeins, cottiers, and serfs²³⁰. We turn the page and find Odo holding 10 hides which had belonged to 'the alodiaries of the vill²³¹.' In Kent Hugh de Port is holding land that was held by 6 free men who could go whither they would; there are now 6 villeins and 14 bordiers there, with one team between them²³². Students of Domesday were too apt to treat the antecessores of the Norman lords as being in all cases lords of manors. Lords of manors, or rather holders of manors, they often were, but as we shall see more fully hereafter, when we are examining the term manerium, such phrases are likely to deceive us. Often enough they were very small people with very little land. For example these six free men whom Hugh de Port represents had only two and a half team-lands. We pass by a few pages and find Hugh de Montfort with a holding which comprises but one team-land and a half; he has 4 villeins and 2 bordiers there. His antecessores were three free men, who could go whither they would²³³. They had need for but 12 oxen; they had no more land than they could easily till, at all events with the help of two or three cottagers or slaves. To all appearance they were no better than peasants. They or their sons may still be tilling the land as Hugh's villeins. When we look for such instances we very easily find them. The case is not altered by the fact that the term 'manor' is given to the holdings of these antecessores. In Sussex an under-tenant of Earl Roger has an estate with four villeins upon it. His antecessores were two free men who held the land as two manors. And how much land was there to be divided between the two? There was one team-land. Such holders of maneria were tillers of the soil, peasants, at best yeomen²³⁴. If they were of thegnly rank, this again does not alter the case. When in the survey of Dorset we read how four thegns held two team-lands, how six thegns held two team-lands, eight thegns two team-lands, nine thegns four team-lands, eleven thegns four team-lands²³⁵, we can not of course be certain that each of these groups of co-tenants had but one holding; but thegnly rank is inherited, and if a thegn will have nine or ten sons there will soon be tillers of the soil with the wergild of twelve hundred shillings. Now if these things are being done in the middling strata of society, if the sokemen are being suppressed or depressed in Cambridgeshire, the alodiaries in Sussex, what is likely to be the fate of the poor? They will have to till their lord's demesne graviter et miserabiliter. He can afford to dispense with serfs, for he has villeins.

A last argument must be added. What we see in the thirteenth century of the ancient demesne of the crown²³⁶ might lead us to expect that in Domesday Book 'the manors of S^t. Edward' would stand out in bold relief. Instead of a population mainly consisting of villeins shall we not find upon them large numbers of sokemen, the ancestors of the men who in after days will be protected by the little writ of right and the Monstraverunt? Nothing of the kind. The royal manor differs in no such mode as this from any other manor. If it lies in a county in which other manors have sokemen, then it may or may not have sokemen. If it lies in a county in which other manors have no sokemen, it will have none. Cambridgeshire is a county in which there are some, and have been many, sokemen; there is hardly a sokeman upon the ancient demesne. In after days the men of Chesterton, for example, will have all the peculiar rights attributed by lawyers to the sokemen of S^t. Edward. But S^t. Edward, if we trust Domesday Book, had never a sokeman there; he had two villeins and a number of bordiers and cottiers²³⁷. It seems fairly clear that from an early time, if not from the first days of the Conquest onwards, the king was the best of landlords. The tenants of those manors that were conceived as annexed to the crown, those tenants one and all, save the class of slaves which was disappearing, got a better, a more regular justice than that which the villeins of other lords could hope for. It was the king's justice, and therefore—for the king's public and private capacities were hardly to be distinguished—it was public justice, and so became formal justice, defined by writs, administered in the last resort by the highest court, the ablest lawyers. And so sokemen disappear from private manors. Some of them as tenants in free socage may maintain their position; many fall down into the class of tenants in villeinage. On the ancient demesne the sokemen multiply; they appear where Domesday knew them not; for those who are protected by royal justice can hardly (now that villeinage implies a precarious tenure) be called villeins, they must be 'villein sokemen' at the least. Whether or no we trust the tradition which ascribes to the Conqueror a law in favour of the tillers of the soil, we can hardly doubt that the villani and bordarii whom Domesday Book shows us on the royal manors are treated as having legal rights in their holdings. And if this be true of them, it should be true of their peers upon other manors. Yes, it should be true; the manorial courts that are arising should do impartial justice even between lord and villeins; but who is to make it true?

§ 4. The Sokemen.

Now of a large part of England we may say that all the occupiers of land who are not holding 'manors²³⁸' will belong to some of those classes of which we have already spoken. They will be villeins, bordiers, cottiers, 'boors' or serfs. Here and there we may find a few persons who are described as liberi homines. In some of the western counties, Gloucester, Worcester, Hereford, Shropshire, there are rachenistres or radmans; between the Ribble and the Mersey we may find a party of drengs. Still it is generally true that two of those five classes that seem to have been mentioned in King William's writ²³⁹, the sochemanni and the liberi homines, are largely represented only in certain counties. They are to be seen in Essex, yet more thickly in Suffolk and Norfolk. In Lincolnshire nearly half of the rural population consists of sokemen, though there is no class of persons described as liberi homines. There are some sokemen in Yorkshire, but they are not very numerous and there are hardly any liberi homines. We have seen how in Cambridgeshire and Bedfordshire the sokemen have fared ill; but still some are left there. Traces of them may be found in Hertford and Buckingham; they are thick in Leicester, Nottingham and Northampton; there are some in Derbyshire. There have been sokemen in Middlesex²⁴⁰ and in Surrey²⁴¹; but they have been suppressed; a few remain in Kent²⁴²; so we should be rash were we to find anything characteristically Scandinavian in the sokemen. Even in Suffolk they are suffering ill at the hands of their new masters²⁴³, while in Cambridgeshire, Bedfordshire, Hertfordshire they have been suppressed or displaced.

We have now to enter on a difficult task, a discussion of the relation which exists between these sochemanni and liberi homines on the one hand and their lord upon the other. The character of this relation varies from case to case. We may distinguish three different bonds by which a man may be bound to a lord, a personal bond, a tenurial bond, a jurisdictional or justiciary bond. But the language of Domesday Book is not very patient of this analysis. However in the second volume we very frequently come upon two ideas which are sharply contrasted with each other; the one is expressed by the term commendatio, the other by the term soca²⁴⁴. To these we must add the great vague term consuetudo, and we shall also have to consider the phrases which describe the various degrees of that freedom of 'withdrawing himself with his land' that a man may enjoy.

In order that we may become familiar with the use made of these terms and phrases we will transcribe a few typical entries:

Two free men, of whom Ælfwin had not even the commendation²⁴⁵.

Of these men Harold had not even the commendation²⁴⁶.

Thus commendation seems put before us as the slightest bond that there can be between lord and man. Very often we are told that the lord had the commendation and nothing more²⁴⁷. Thus it is contrasted with the soke:—

His predecessor had only the commendation of this, and Harold had the soke²⁴⁸.

Of these six free men St Benet had the soke, and of one of them the commendation²⁴⁹.

And the commendation is contrasted with the 'custom,' the consuetudo, perhaps we might say the 'service':—

Of the said sokeman Ralph Peverel had a custom of 3 shillings a year, but in the Confessor's time his ancestor had only the commendation²⁵⁰.

R. Malet claims 18 free men, 3 of them by commendation, and the rest for all custom²⁵¹.

And the soke is contrasted with the consuetudo:—

To this manor belong 4 men for all custom, and other 4 for soke only²⁵².

In a given case all these bonds may be united:—

There are 7 sokemen who are the Saint's men with sake and soke and all custom²⁵³.

Over this man the Saint has sake and soke and commendation with all custom²⁵⁴.

Then if the man 'withdraws,' or gives or sells his land, we often read of the soke 'remaining'; we sometimes read of the commendation, the custom, the service 'remaining.'

These free men could sell or give their land, but the commendation and the soke and sake would remain to St Edmund²⁵⁵.

These men could sell their land, but the soke would remain to the Saint and the service (servitium), whoever might be the buyer²⁵⁶.

They could give and sell their land, but the soke and the commendation and the service would remain to the Saint²⁵⁷.

But after all, these distinctions are not maintained with rigour, for the soke is sometimes spoken of as though it were a species of consuetudo. We have a tangled skein in our hands.

The thread that looks as if it would be the easiest to unravel, is that which is styled 'mere commendation.' The same idea is expressed by other phrases—'he committed himself to Bishop Herman for his defence²⁵⁸'—'they submitted themselves with their land to the abbey for defence²⁵⁹'—'he became the man of Goisfrid of his own free will²⁶⁰'—'she put herself with her land in the hand of the queen²⁶¹.' 'Homage' is not a common term in Domesday Book, but if, when speaking of the old time, it says, as it constantly does, that one person was the man of another, no doubt it is telling us of a relationship which had its origin in an oath and a symbolic ceremony²⁶². 'She put herself into the hands of the queen'—we should take these words to mean just what they say. An Anglo-Saxon oath of fealty (hyldáð) has been preserved²⁶³. The swearer promises to be faithful and true to his lord, to love all that his lord loves and eschew all that his lord eschews. He makes no distinct reference to any land, but he refers to some compact which exists between him and his lord:—He will be faithful and true on condition that his lord treats him according to his deserts and according to the covenant that has been established between them.

To all seeming there need not be any land in the case; and, if the man has land, the act of commendation will not give the lord as a matter of course any rights in that land. Certainly Domesday Book seems to assume that in general every owner or holder of land must have had a lord. This assumption is very worthy of notice. A law of Æthelstan²⁶⁴ had said that lordless men 'of whom no right could be had' were to have lords, but this command seems aimed at the landless folk, not at those whose land is a sufficient surety for their good behaviour. The law had not directly commanded the landed men to commend themselves, but it had supplied them with motives for so doing²⁶⁵. What did a man gain by this act of submission? Of advantages that might be called 'extra-legal' we will say nothing, though in the wild days of Æthelred the Unready, and even during the Confessor's reign, there was lawlessness enough to make the small proprietor wish that he had a mightier friend than the law could be. But there were distinct legal advantages to be had by commendation. In the first place, the life of the great man's man was protected not only by a wer-gild, but by a man-bót:—a man-bót due to one who had the power to exact it; and if, as one of our authorities assures us, the amount of the man-bót varied with the rank of the lord²⁶⁶, this would help to account for a remarkable fact disclosed by Domesday Book, namely, that the chosen lord was usually a person of the very highest rank, an earl, an archbishop, the king. Then, again, if the man got into a scrape, his lord might be of service to him. Suppose the man accused of theft: in certain cases he might escape with a single, instead of a triple ordeal, if he had a lord who would swear to his good character²⁶⁷. In yet other cases his lord would come forward as his compurgator; perhaps he was morally bound to do so; and, being a man of high rank, would swear a crushing oath. And within certain limits that we can not well define the lord might warrant the doings of his man, might take upon himself the task of defending an action to which his man was subjected²⁶⁸. What the man has sought by his submission is defensio, tuitio; the lord is his defensor, tutor, protector, advocatus, in a word, his warrantor²⁶⁹.

Of warranty we are accustomed to think chiefly in connexion with the title to land:—the feoffor warrants the feoffee in his enjoyment of the tenement. But to all appearance in the eleventh century it is rather as lord than as giver, seller or lender, that the vouchee comes to the defence of his man. If the land is conceived as having once been the warrantor's land, this may be but a fiction:—the man has given up his land and then taken it again merely in order that he may be able to say with some truth that he has it by his lord's gift. But we can not be sure that as yet any such fiction is necessary. 'I will defend any action that is brought against you for this land':—as yet men see no reason why such a promise as this, if made with due ceremony, should not be enforced. A certain amount of 'maintenance' is desirable in their eyes and laudable.

Though we began with the statement that where there is commendation there may yet be no land in the case, we have nonetheless been already led to the supposition that often enough land does get involved in this nexus between man and lord. No doubt a landless man may commend himself and get no land in return for his homage; but with such an one Domesday Book is not concerned. The cases in which it takes an interest are those in which a landholder has commended himself. Now we dare not say that a landholder can never commend himself without commending his land also²⁷⁰. Howbeit, the usual practice certainly is that a man who submits or commits himself for 'defence' or 'protection' shall take his land with him; he 'goes with his land' to a lord. Very curious are some of the instances which show how large a liberty men have enjoyed of taking land wherever they please. 'Tostig bought this land from the church of Malmesbury for three lives':—in this there is nothing strange; leases for three lives granted by churches to thegns have been common. But of course we should assume that during the lease the land could have no other lord than the church of Malmesbury. Not so, however, for during his lease Tostig 'could go with that land, to whatever lord he pleased²⁷¹.' In Essex there was before the Conquest a man who held land; that land in some sort belonged to the Abbey of Barking, and could not be separated from the abbey; but the holder of it was the man ('merely the man' say the jurors) of one Leofhild the predecessor of Geoffrey de Mandeville²⁷². In this last case we may satisfy ourselves by saying that a purely personal relation is distinguished from a tenurial relation; the man of Leofhild is the tenant of the abbey. But what of Tostig's case? Land that he holds of the church of Malmesbury, and that too by no perpetual tenure, he can commend to another lord. From the man's point of view, protection, defence, warranty, is the essence of commendation, and the warranty that he chiefly needs is the warranty of his possession, of the title by which he holds his land. It can not but be therefore that the lord to whom he commends himself and his land, should be in some sort his landlord.

Not that he need pay rent, or perform other services in return for the land. The land is his land; he has not obtained it from his lord; on the contrary he has carried it to his lord. Mere commendation is therefore distinguished by a score of entries from a relation that involves the payment of consuetudines. Doubtless however the lord obtains 'a valuable consideration' for all that he gives. Part of this will probably lie without the legal sphere. He has a sworn retainer who will fight whenever he is told to fight. But even the law allows the man to go great lengths in his lord's defence²⁷³. In a rough age happy is the lord who has many sworn to defend him. When at a later time we see that the claimant of land must offer proof 'by the body of a certain free man of his,' we are taught that the lords have relied upon the testimony and the strong right arms of their vassals. That in all cases the lord got more than this we can not say, though perhaps commendation carried with it the right to the heriot, the horse and armour of the dead man²⁷⁴. The relation is often put before us as temporary. Numerous are the persons who 'can seek lords where they choose' or who can 'go with their land wherever they please.' How large a liberty these phrases accord to lord and man it were hard to tell. We can not believe that either party to the contract could dissolve it just at the moment when the other had some need to enforce it; but still at other times the man might dissolve it, and we may suppose that the lord could do so too. But the connexion might be of a more permanent kind. Perhaps in most cases in which we are told that a man can not withdraw his land from his lord the bond between them is regarded as something other than commendation—there is commendation and something more. But this is no universal truth. You might be the lord's man 'merely by commendation' and yet be unable to sell your land without the lord's leave²⁷⁵. At any rate, in one way and another 'the commendation' is considered as capable of binding the land. The commended man will be spoken of as holding the land under (sub) his lord, if not of (de) his lord²⁷⁶. In many cases if he sells the land 'the commendation will remain to his lord'—by which is meant, not that the vendor will continue to be the man of that lord (for the purposes of the Domesday Inquest this would be a matter of indifference) but that the lord's rights over the land are not destroyed. The purchaser comes to the land and finds the commendation inhering in it²⁷⁷.

And so, again, the lord's rights under the commendation seem to constitute an alienable and heritable seignory. It is thus that we may best explain the case, very common in East Anglia, in which a man is commended half to one and half to another lord²⁷⁸. Thus we read of a case in which a free man was commended, as to one-third to Wulfsige, and as to the residue to Wulfsige's two brothers²⁷⁹. In this instance it seems clear that the commendation has descended to three co-heirs. In other cases a lord may have made over his rights to two religious houses; thus we hear of a man who is common to the Abbots of Ely and S^t. Edmund's²⁸⁰. In some cases a man may, in others he may not, be able to prevent himself being transferred from lord to lord, or from ancestor to heir. What passes by alienation or inheritance may be regarded rather as a right to his commendation than as the commendation itself²⁸¹. Of course there is nothing to hinder one from being the man of several different lords. Ælfric Black held lands of the Abbot of Westminster which he could not separate from the church, but for other lands he was the man of Archbishop Stigand²⁸². Already a lofty edifice is being constructed; B, to whom C is commended, is himself commended to A; and in this case a certain relation exists between C and A; C is 'sub-commended' to A²⁸³.

In a given case the somewhat vague obligation of the commended man may be rendered definite by a bargain which imposes upon him the payment of rent or the performance of some specified services. When this is so, we shall often find that the land is moving, if we may so speak, not from the man but from the lord. The man is taking land from the lord to hold during good behaviour²⁸⁴, or for life²⁸⁵, or for lives. A form of lease or loan (lǽn) which gives the land to the lessee and to two or three successive heirs of his, has from of old been commonly used by some of the great churches²⁸⁶. Also we see landowners giving up their land to the churches and taking it back again as mere life tenants. During their lives the church is to have some 'service,' or at least some 'recognition' of its lordship, while after their deaths the church will have the land in demesne²⁸⁷. This is something different from mere commendation. We see here the feuda oblata or beneficia oblata which foreign jurists have contrasted with feuda or beneficia data. The land is brought into the bargain by the man, not by the lord. But often the land comes from the lord, and the tenancy is no merely temporary tenancy; it is heritable. The king has provided his thegns with lands; the earls, the churches have provided their thegns with lands, and these thegns have heritable estates, and already they are conceived as holding them of (de) the churches, the earls, the king. But we must not as yet be led away into any discussion about the architecture of the very highest storeys of the feudal or vassalic edifice. It must at present suffice that in humbler quarters there has been much letting and hiring of land. The leases, if we choose to call them so, the gifts, if we choose to call them so, have created heritable rights and perdurable relationships.

There is no kind of service that can not be purchased by a grant or lease of land. Godric's wife had land from the king because she fed his dogs²⁸⁸. Ælfgyfu the maiden had land from Godric the sheriff that she might teach his daughter orfrey work²⁸⁹. The monks of Pershore stipulate that their dominion shall be recognized by 'a day's farm' in every year, that is, that the lessee shall once a year furnish the convent with a day's victual²⁹⁰. The king's thegns between the Ribble and the Mersey have 'like villeins' to make lodges for the king, and fisheries and deer-hays, and must send their reapers to cut the king's crops at harvest time²⁹¹. The radmen and radknights of the west must ride on their lord's errands and make themselves generally useful; they plough and harrow and mow, and do whatever is commanded them²⁹².

But we would here speak chiefly of the lowly 'free men' and sokemen of the eastern counties. Besides having their commendation and their soke, the lord very often has what is known as their consuetudo or their consuetudines. Often they are the lord's men de omni consuetudine. In all probability the word when thus employed, when contrasted with commendation on the one hand and with soke on the other, points to payments and renders to be made in money and in kind and to services of an agricultural character. Of such services only one stands out prominently; it is very frequently mentioned in the survey of East Anglia; it is fold-soke, soca faldae. The man must not have a fold of his own; his sheep must lie in the lord's fold. It is manure that the lord wants; the demand for manure has played a large part in the history of the human race. Often enough this is the one consuetudo, the one definite service, that the lord gets out of his free men²⁹³. And then a man who is consuetus ad faldam, tied to his lord's fold, is hardly to be considered as being in all respects a 'free' man. Those who are not 'fold-worthy' are to be classed with those who are not 'moot-worthy' or 'fyrd-worthy.' We are tempted to say that a man's caput is diminished by his having to seek his lord's fold, just as it would be diminished if he were excluded from the communal courts or the national host²⁹⁴. From the nature of this one consuetudo and from the prominence that is given to it, we may guess the character of the other consuetudines. Suit to the lord's mill would be analogous to suit to his fold²⁹⁵. Of 'mill-soke' we read nothing, but often enough a surprisingly large part of the total value of a manor is ascribed to its mill, and we may argue that the lord has not invested capital in a costly undertaking without making sure of a return. We may well suppose that like the radmen of the west the free men and sokemen of the east give their lord some help in his husbandry at harvest time. From a document which comes to us from the abbey of Ely, and which is slightly older than the Domesday Inquest, we learn that certain of S^t. Etheldreda's sokemen in Suffolk had nothing to do but to plough and thresh whenever the abbot required this of them; others had to plough and weed and reap, to carry the victual of the monks to the minster and furnish horses whenever called upon to do so²⁹⁶. This seems to point rather to 'boon-days' than to continuous 'week-work,' and we observe that the sokemen of the east like the radmen of the west have horses. Occasionally we learn that a sokeman has to pay an annual sum of money to his lord; sometimes this looks like a substantial rent, sometimes like a mere 'recognition'; but the words that most nearly translate our 'rent,' redditus, census, gablum are seldom used in this context. All is consuetudo.

It is an interesting word. We perhaps are eager to urge the dilemma that in these cases the land must have been brought into the bargain either by the lord or by the tenant:—either the lord is conceived as having let land to the tenant, or the theory is that the tenant has commended land to the lord. But the dilemma is not perfect. It may well be that this relationship is thought of as having existed from all time; it may well be that this relationship, though under slowly varying forms, has really existed for several centuries, and has had its beginning in no contract, in no bargain. In origin the rights of the lord may be the rights of kings and ealdormen, rights over subjects rather than rights over tenants. The word consuetudo covers taxes as well as rents, and, if the sokeman has to do work for his lord, very often, especially in Cambridgeshire and Hertfordshire, he has to do work for the king or for the sheriff also. If he has to do carrying service for the lord, he has to do carrying service (avera) for the sheriff also or in lieu thereof to pay a small sum of money²⁹⁷. And another aspect of this word consuetudo is interesting to us. Land that is burdened with customs is customary land (terra consuetudinaria)²⁹⁸. As yet this term does not imply that the tenure, though protected by custom, is not protected by law; there is no opposition between law and custom; the customary tenant of Domesday Book is the tenant who renders customs, and the more customs he renders the more customary he is²⁹⁹.

This word consuetudo is the widest of words. Perhaps we find the best equivalent for consuetudines in our own vague 'dues³⁰⁰.' It covers what we should call rates and taxes; but further it covers what we should call the proceeds and profits of justice. Let us construe a few entries. At Romney there are burgesses who in return for the service that they do on the sea are quit of all customs except three, namely, larceny, peace-breach and ambush³⁰¹. In Berkshire King Edward gave to one of his foresters half a hide of land free from all custom, except the king's forfeiture, such as larceny, homicide, hám-fare and peace-breach³⁰². In what sense can a crime be a custom? In a fiscal sense. A crime is a source of revenue. In what sense should we wish to have our land free of crimes, free even, if this be possible, of larceny and homicide? In this sense:—we should wish that no money whatever should go out of our land, neither by way of rent, nor by way of tax, rate, toll, nor yet again by way of forisfactura, of payment for crime committed. We should wish also that our land with the tenants on it should be quit or quiet (quieta) from the incursions of royal and national officers, whether they be in search of taxes or in search of criminals and the fines due from criminals, and we should also like to put those fines in our own pockets. Justice therefore takes its place among the consuetudines: 'larceny' is a source of income³⁰³. A lord who has 'his customs,' is a lord who has among other sources of revenue, justice or the profits of justice³⁰³. 'Justice or the profits of justice,' we say, for our record does not care to distinguish between them. It is thinking of money while we are engaged in questioning it about the constitution and competence of tribunals. It gives us but crooked answers. However, we must make the best that can be made of them, and in particular must form some opinion about the consuetudines known as sake and soke.

§ 5. 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' justice³⁰⁴.

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 origin³⁰⁵. 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 sake³⁰⁶.' 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 seigniorial 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 lands³⁰⁷.' 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 trespass³⁰⁸. Whatever else we may think of these vavassores, they are not barons and probably they are not immediate tenants of the king³⁰⁹. It is clear, however, that there may be a 'lord' with 'men' who yet has no sake or soke over them³¹⁰. 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 plea³¹¹. 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 us³¹². 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 church³¹³. 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 hand³¹⁴, and a great man may by purchase acquire soke (for example, we may suppose, the hundredal soke) over lands that are not his own³¹⁵. 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 'hallmoot³¹⁶' 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 tenants³¹⁷; (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 franchises³¹⁸, 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 this³¹⁹.

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 themselves³²⁰. 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 justice³²¹.' 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 money³²². In Latin therefore sake may be rendered by placitum:—'Roger has sake over them' will become 'Rogerius habet placita super eos³²³'; 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 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 matters³²⁴. 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 soke³²⁵.' 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 implies³²⁶. 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 sócn³²⁷. 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.

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 lords³²⁸'; '...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 causes³²⁹':...'grithbrice or hámsócn or any of those matters which exceed their soke and sake³³⁰': 'in capital causes the soke is the king's³³¹.' 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 peccandi³³².' 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.

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 archbishop³³³. 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 realm³³⁴. These four forfeitures are probably the four reserved pleas of the crown that are mentioned in the laws of Cnut—mundbryce, hámsócn, forsteal and fyrdwíte³³⁵. 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 S^t. Peter of York, S^t. John of Beverley, S^t. Wilfrid of Ripon, S^t. 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 earl³³⁶. 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 them³³⁷. 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 S^t. Mary of Worcester, neither in any plea, nor in any other matter³³⁸. 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 outlaws³³⁹. 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 manor³⁴⁰. But then there is a large tract in which these six forfeitures belong to S^t. Edmund; some other lord may have sake and soke in a given parcel of that tract, but the six forfeitures belong to S^t. Edmund; they are indeed 'the six forfeitures of S^t. Edmund³⁴¹.' Other arrangements were possible. We hear of men over whom S^t. Benet had three forfeitures³⁴². 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 silver³⁴³. Certain burgesses of Romney serve the king on the sea, and therefore they have their own forfeitures, save larceny, peacebreach and forsteal, and these belong, not to the king, but to the archbishop³⁴⁴. 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 money³⁴⁵.

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 fellows³⁴⁶. Thus it is said of a little group of villeins and sokemen in Essex that 'their lord had sake and soke³⁴⁷.' 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 soke³⁴⁸.' It is said of the Countess Judith, a lady of exalted rank, that she had a manse in Lincoln without sake and soke³⁴⁹. 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), S^t. Augustin, Queen Edith, and three other lords³⁵⁰. We have a list of fifteen persons who had sake and soke in the two lathes of Sutton and Aylesford³⁵¹, 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 earls³⁵²), and a list of nineteen persons who had similar rights in the shires of Derby and Nottingham³⁵³. 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 tribunal³⁵⁴. But on the one hand a lord often enough has soke over those who are distinctively 'free men³⁵⁵,' while on the other hand, as will be explained below, he has not the soke over his sokeman³⁵⁶.

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 Bercolt³⁵⁷. 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 Sanford³⁵⁸. 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 bordiers³⁵⁹. 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 court³⁶⁰. 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 hundred³⁶¹.' 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 exceptional³⁶². In the thirteenth century no one would have made such a remark. In the eleventh the halimote or hall-moot looks like a novelty.

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 churches³⁶³. S^t. Etheldreda of Ely has the soke of five and a half hundreds in Suffolk³⁶⁴. In Essex Swain had the half-hundred of Clavering, and the pleas thereof brought him in 25s. a year³⁶⁵. In Nottinghamshire the Bishop of Lincoln had all the customs of the king and the earl throughout the wapentake of Newark³⁶⁶. 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 Wye³⁶⁷. 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 Adderbury³⁶⁸. What we see here we may see elsewhere also³⁶⁹. If then King William gives the royal manor of Wye to his newly founded church of S^t. 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 Kent³⁷⁰.

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 be³⁷¹; 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 hundred³⁷², or as the court of a district that has been carved out from a hundred³⁷³. Thus Stigand had the soke of the half-hundred of Hersham, save Thorpe which belonged to S^t. Edmund, and Pulham which belonged to S^t. Etheldreda³⁷⁴; thus also the king had the soke of the half-hundred of Diss, except the land of S^t. Edmund, where he shared the soke with the saint, and except the lands of Wulfgæt and of Stigand³⁷⁵. 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 kinds³⁷⁶. 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 principles³⁷⁷. 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 enjoy³⁷⁸. 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 tribunal³⁷⁹. 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 summoned³⁸⁰. 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 them³⁸¹. 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.

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 Pireton³⁸², and the third penny of Warwickshire to Earl Edwin's manor of Cote³⁸³. Harold had a manor in Herefordshire to which belonged the third penny of three hundreds³⁸⁴; Godwin had a manor in Hampshire to which belonged the third penny of six hundreds³⁸⁵; the third penny of three Devonian hundreds belonged to the manor of Blackpool³⁸⁶. 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 penny³⁸⁷. 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 Bayeux³⁸⁸. And so of certain 'free men' in Norfolk it is said that 'their soke is in the hundred for the third penny³⁸⁹.' 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 manor³⁹⁰. 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 done³⁹¹. 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 forever 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 lands³⁹²; 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 moot³⁹³.

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 amends³⁹⁴.' 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's³⁹⁵.' 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 justiciary³⁹⁶.

But a much more difficult case comes before us at Warwick³⁹⁷. 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-peace³⁹⁸.' 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 peace³⁹⁹. 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 larceny⁴⁰⁰.' 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 subinfeudated⁴⁰¹. 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 land⁴⁰².' 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 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 lord⁴⁰³. 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 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 dominus⁴⁰⁴.' 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 institution⁴⁰⁵. 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 judgments⁴⁰⁶. The tenants of the Bishop of Winchester 'hold the bishops' pleas' at Taunton; Earl Roger borrows sokemen 'to hold his pleas⁴⁰⁷.' 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 dooms-men. 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 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 Stigand⁴⁰⁸. 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 earl⁴⁰⁹.' 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 land⁴¹⁰. 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.

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 sokemen⁴¹¹; we may even hear of sokemen who formerly were 'free men⁴¹².' But the import of this distinction evades us. Sometimes it is said of sokemen that they 'hold freely⁴¹³.' 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 it⁴¹⁴. 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 lord⁴¹⁵. There may be truth in the suggestion, but we can not square it with all our cases⁴¹⁶. Often enough the 'free man' can not sell without the consent of his lord⁴¹⁷. 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 soke⁴¹⁸. On the other hand, the sokeman who can sell without his lord's leave is no rare being⁴¹⁹, and it was of a sokeman that we read how he could sell, not only his land, but also his soke⁴²⁰.

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 lord⁴²¹, who may or may not be his lord by commendation⁴²². 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 soke⁴²³. 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 noble⁴²⁴. 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 district⁴²⁵.

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 1½ 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 acre⁴²⁶.' 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 them⁴²⁷.' 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.

§ 6. The Manor.

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

We may be led to this opinion by observing that in the description of certain counties—Middlesex, Buckingham, Bedford, Cambridge, Huntingdon, Derby, Nottingham, Lincoln, York—the symbol M which represents a manor, is often carried out into the margin, and is sometimes contrasted with the S which represents a soke and the B which represents a berewick. This no doubt has been done—though it may not have been very consistently done—for the purpose of guiding the eye of officials who will turn over the pages in search of manors. But much clearer evidence is forthcoming. Throughout the survey of Essex it is common to find entries which take such a form as this: 'Thurkil held it for two hides and for one manor'; 'Brithmær held it for five hides and for one manor'; 'Two free men who were brothers held it for two hides and for two manors'; 'Three free men held it for three manors and for four hides and twenty-seven acres⁴²⁸.' In Sussex again the statement 'X tenuit pro uno manerio⁴²⁹' frequently occurs. Such phrases as 'Four brothers held it for two manors, Hugh received it for one manor⁴³⁰,'—'These four manors are now for one manor⁴³¹,'—'Then there were two halls, now it is in one manor⁴³²,'—'A certain thegn held four hides and it was a manor⁴³³,'—are by no means unusual⁴³⁴. A clerk writes 'Elmer tenuit' and then is at pains to add by way of interlineation 'pro manerio⁴³⁵.' 'Eight thegns held this manor, one of them, Alwin, held two hides for a manor; another, Ulf, two hides for a manor; another, Algar, one hide and a half for a manor; Elsi one hide, Turkill one hide, Lodi one hide, Osulf one hide, Elric a half-hide⁴³⁶'—when we read this we feel sure that the scribe is using his terms carefully and that he is telling us that the holdings of the five thegns last mentioned were not manors. And then Hugh de Port holds Wallop in Hampshire 'for half a manor⁴³⁷.' But let us say at once that at least one rule of law, or of local custom, demands a definition of a manerium. In the shires of Nottingham and Derby a thegn who has more than six manors pays a relief of £8 to the king, but if he has only six manors or less, then a relief of 3 marks to the sheriff⁴³⁸. It seems clear therefore that not only did the Norman rulers treat the term manerium as an accurate term charged with legal meaning, but they thought that it, or rather some English equivalent for it, had been in the Confessor's day an accurate term charged with legal meaning.

The term manerium seems to have come in with the Conqueror⁴³⁹, though other derivatives from the Latin verb manere, in particular mansa, mansio, mansiuncula had been freely employed by the scribes of the land-books. But these had as a rule been used as representatives of the English hide, and just for this reason they were incapable of expressing the notion that the Normans desired to express by the word manerium. In its origin that word is but one more name for a house. Throughout the Exeter Domesday the word mansio is used instead of the manerium of the Exchequer record, and even in the Exchequer record we may find these two terms used interchangeably:—'Three free men belonged to this manerium; one of them had half a hide and could withdraw himself without the licence of the lord of the mansio⁴⁴⁰.' If we look for the vernacular term that was rendered by manerium, we are likely to find it in the English heal. Though this is not connected with the Latin aula, still these two words bearing a similar meaning meet and are fused in the aula, haula, halla of Domesday Book.

Now this term stands in the first instance for a house and can be exchanged with curia. You may say that there is meadow enough for the horses of the curia⁴⁴¹, and that there are three horses in the aula⁴⁴²; you may speak indifferently of a mill that serves the hall⁴⁴³, or of the mill that grinds the corn of the court⁴⁴⁴. But further, you may say that in Stonham there are 50 acres of the demesne land of the hall in Creeting, or that in Thorney there are 24 acres which belong to the hall in Stonham⁴⁴⁵, or that Roger de Rames has lands which once were in the hall of St Edmund⁴⁴⁶, or that in the hall of Grantham there are three carucates of land⁴⁴⁷, or that Guthmund's sake and soke extended only over the demesne of his hall⁴⁴⁸. We feel that to such phrases as these we should do no great violence were we to substitute 'manor' for 'hall.' Other phrases serve to bring these two words very closely together. One and the same page tells us, first, that Hugh de Port holds as one manor what four brothers held as two manors, and then, that on another estate there is one hall though of old there were two halls⁴⁴⁹:—these two stories seem to have the same point. 'Four brothers held this; there was only one hall there⁴⁵⁰.' 'Two brothers held it and each had his hall; now it is as one manor⁴⁵¹.' 'In these two lands there is but one hall⁴⁵².' 'Then there were two halls; now it is in one manor⁴⁵³.' 'Ten manors; ten thegns, each had his hall⁴⁵⁴.' 'Ingelric set these men to his hall……Ingelric added these men to his manor⁴⁵⁵.'

We do not contend that manerium and halla are precisely equivalent. Now and again we shall be told of a manerium sine halla⁴⁵⁶ as of some exceptional phenomenon. The term manerium has contracted a shade of technical meaning; it refers, so we think, to a system of taxation, and thus it is being differentiated from the term hall. Suppose, for example, that a hall or manor has meant a house from which taxes are collected, and that some one removes that house, houses being very portable things⁴⁵⁷: 'by construction of law,' as we now say, there still may be a hall or manor on the old site; or we may take advantage of the new wealth of words and say that, though the hall has gone, the manor remains: to do this is neater than to say that there is a 'constructive' hall where no hall can be seen. Then again, manerium is proving itself to be the more elastic of the two terms. We may indeed speak of a considerable stretch of land as belonging to or even as 'being in' a certain hall, and this stretch may include not only land that the owner of the hall occupies and cultivates by himself or his servants, but also land and houses that are occupied by his villeins⁴⁵⁸: still we could hardly talk of the hall being a league long and a league wide or containing a square league. Of manerium, however, we may use even such phrases as those just mentioned⁴⁵⁹. For all this, we can think of no English word for which manerium can stand, save hall; tún, it is clear enough, was translated by villa, not by manerium.

If now we turn from words to look at the things which those words signify, we shall soon be convinced that to describe a typical manerium is an impossible feat, for on the one hand there are enormous maneria and on the other hand there are many holdings called maneria which are so small that we, with our reminiscences of the law of later days, can hardly bring ourselves to speak of them as manors. If we look in the world of sense for the essence of the manerium we shall find nothing that is common to all maneria save a piece of ground—very large it may be, or very small—held (in some sense or another) by a single person or by a group of co-tenants, for even upon a house we shall not be able to insist very strictly. After weary arithmetical labours we might indeed obtain an average manor; we might come to the conclusion that the average manor contained so many hides or acres, possibly that it included land occupied by so many sokemen, villeins, bordiers, serfs; but an average is not a type, and the uselessness of such calculations will soon become apparent.

We may begin by looking at a somewhat large manor. Let it be that of Staines in Middlesex, which is held by St Peter of Westminster⁴⁶⁰. It is rated at 19 hides but contains land for 24 plough-teams. To the demesne belong 11 hides and there are 13 teams there. The villeins have 11 teams. There are:—

3 villeins with a half-hide apiece.

4 villeins with a hide between them.

8 villeins with a half-virgate apiece.

36 bordiers with 3 hides between them.

1 villein with 1 virgate.

4 bordiers with 40 acres between them.

10 bordiers with 5 acres apiece.

5 cottiers with 4 acres.

8 bordiers with 1 virgate.

3 cottiers with 9 acres.

13 serfs.

46 burgesses paying 40 shillings a year.

There are 6 mills of 64 shillings and one fish-weir of 6s. 8d. and one weir which renders nothing. There is pasture sufficient for the cattle of the vill. There is meadow for the 24 teams, and in addition to this there is meadow worth 20s. a year. There is wood for 30 pigs; there are 2 arpents of vineyard. To this manor belong four berewicks. Altogether it is worth £35 and formerly it was worth £40.—This is a handsome manor.—The next manor that is mentioned would be a fairer specimen. It is Sunbury held by St Peter of Westminster⁴⁶¹. It is rated at 7 hides and there is land for but 6 teams. To the demesne belong 4 hides and there is one team there. The villeins have 4 teams. There are:—

A priest with a half-virgate.

8 villeins with a virgate apiece.

2 villeins with a virgate.

5 bordiers with a virgate.

5 cottiers.

1 serf.

There is meadow for 6 teams and pasture enough for the cattle of the vill. Altogether it is worth £6 and has been worth £7. Within this one county of Middlesex we can see wide variations. There are manors which are worth £50 and there are manors which are not worth as many shillings. The archbishop's grand manor at Harrow has land for 70 teams⁴⁶²; the Westminster manor of Cowley has land for but one team and the only tenants upon it are two villeins⁴⁶³.

But far larger variations than these are to be found. Let us look at a few gigantic manors. Leominster in Herefordshire had been held by Queen Edith together with sixteen members⁴⁶⁴. The names of these members are given and we may find them scattered about over a wide tract of Herefordshire. In this manor with its members there were 80 hides. In the demesne there were 30 teams. There were 8 reeves and 16 beadles and 8 radknights and 238 villeins, 75 bordiers and 82 male and female serfs. These in all had 230 teams; so that with the demesne teams there were no less than 260. Further there were Norman barons paying rents to this manor. Ralph de Mortemer for example paid 15s. and Hugh de Lacy 6s. 8d. It is let to farm at a rent of £60 and besides this has to support a house of nuns; were it freed from this duty, it might, so thinks the county, be let at a rent of £120. It is a most interesting manor, for we see strong traces of a neat symmetrical arrangement:—witness the 16 members, 8 reeves, 8 radknights, 16 beadles; very probably it has a Welsh basis⁴⁶⁵. But we have in this place to note that it is called a manor, and for certain purposes it is treated as a single whole. For what purposes? Well, for one thing, it is let to farm as a single whole. This, however, is of no very great importance, for landlords and farmers may make what bargains they please. But also it is taxed as a single whole. It is rated at the nice round figures of 80 hides.

No less handsome and yet more valuable is Berkeley in Gloucestershire⁴⁶⁶. It brought in a rent of £170 of refined money. It had eighteen members which were dispersed abroad over so wide a field that a straight line of thirty miles would hardly join their uttermost points⁴⁶⁷. 'All the aforesaid members belong to Berkeley.' There were 29 radknights, 162 villeins, 147 bordiers, 22 coliberts, 161 male and female serfs, besides some unenumerated men of the radknights; on the demesne land were 54½ teams; and the tenants had 192. Tewkesbury also is a splendid manor. 'When it was all together in King Edward's time it was worth £100,' though now but £50 at the most can be had from it and in the turmoil of the Conquest its value fell to £12⁴⁶⁸. It was a scattered unit, but still it was a unit for fiscal purposes. It was reckoned to contain 95 hides, but the 45 which were in demesne were quit of geld, and matters had been so arranged that all the geld on the remaining 50 hides had, as between the lord and his various tenants, been thrown on 35 of those hides. The 'head of the manor' was at Tewkesbury; the members were dispersed abroad; but 'they gelded in Tewkesbury⁴⁶⁹.'

No list of great manors would be complete without a notice of Taunton⁴⁷⁰. 'The bishop of Winchester holds Tantone or has a mansion called Tantone. Stigand held it in King Edward's day and it gelded for 54 hides and 2½ virgates. There is land for 100 teams, and besides this the bishop in his demesne has land for 20 teams which never gelded.' 'With all its appendages and customs it is worth £154. 12d.' 'Tantone' then is valued as a whole and it has gelded as a whole. But 'Tantone' in this sense covers far more than the borough which bears that name; it covers many places which have names of their own and had names of their own when the survey was made⁴⁷¹. We might speak of the bishop of Exeter's manor of Crediton in Devon which is worth £75 and in which are 264 villeins and 73 bordiers⁴⁷², or of the bishop of Winchester's manor of Chilcombe in Hampshire where there are nine churches⁴⁷³; but we turn to another part of England.

If we wish to see a midland manor with many members we may look at Rothley in Leicestershire⁴⁷⁴. The vill of Rothley itself is not very large and it is separately valued at but 62s. But 'to this manor belong the following members' and then we read of no less than twenty-one members scattered over a large area and containing 204 sokemen who with 157 villeins and 94 bordiers have 82 teams and who pay in all £31. 8s. 1d. Their rents are thus reckoned as forming a single whole. In Lincolnshire Earl Edwin's manor of Kirton had 25 satellites, Earl Morcar's manor of Caistor 16, the Queen's manor of Horncastle 15⁴⁷⁵. A Northamptonshire manor of 27 hides lay scattered about in six hundreds⁴⁷⁶.

It is common enough to see a town-house annexed to a rural manor. Sometimes a considerable group of houses or 'haws' in the borough is deemed to 'lie in' or form part of a manor remote from its walls. Thus, to give but two examples, twelve houses in London belong to the Bishop of Durham's manor of Waltham in Essex; twenty-eight houses in London to the manor of Barking⁴⁷⁷. Not only these houses but their occupants are deemed to belong to the manor; thus 80 burgesses in Dunwich pertain to one of the Ely manors⁴⁷⁸. The berewick (bereuita)⁴⁷⁹ also frequently meets our eye. Its name seems to signify primarily a wick, or village, in which barley is grown; but, like the barton (bertona) and the grange (grangia) of later days, it seems often to be a detached portion of a manor which is in part dependent on, and yet in part independent of, the main body. Probably at the berewick the lord has some demesne land and some farm buildings, a barn or the like, and the villeins of the berewick are but seldom called upon to leave its limits; but the lord has no hall there, he does not consume its produce upon the spot, and yet for some important purposes the berewick is a part of the manor. The berewick might well be some way off from the hall; a manor in Hampshire had three berewicks on the mainland and two in the Isle of Wight⁴⁸⁰.

Then again in the north and east the manor is often the centre of an extensive but very discrete territory known as its soke. One says that certain lands are 'soke' or are 'the soke,' or are 'in the soke' of such a manor, or that 'their soke belongs' to such a manor. One contrasts the soke of the manor with the 'inland' and with the berewicks⁴⁸¹. The soke in this context seems to be the territory in which the lord's rights are, or have been, of a justiciary rather than of a proprietary kind⁴⁸². The manor of the eastern counties is a discrete, a dissipated thing. Far from lying within a ring fence, it often consists of a small nucleus of demesne land and villein tenements in one village, together with many detached parcels in many other villages, which are held by 'free men' and sokemen. In such a case we may use the term manerium now in a wider, now in a narrower sense. In valuing the manor, we hardly know whether to include or exclude these free men. We say that the manor 'with the free men' is worth so much⁴⁸³, or that the manor 'without the free men' is worth so much⁴⁸⁴, that the manor is worth £10 and that the free men pay 40 shillings⁴⁸⁵, that Thurmot had soke over the manor and over three of the free men while the Abbot of Ely had soke over the other three⁴⁸⁶.

From one extreme we may pass to the other extreme. If there were huge manors, there were also tiny manors. Let us begin in the south-west of England. Quite common is the manor which is said to have land for but one team; common also is the manor which is said to have land for but half a team. This means, as we believe, that the first of these manors has but some 120 acres of arable, while the second has but 60 acres or thereabouts. 'Domesday measures' are, it is well known, the matter of many disputes; therefore we will not wholly rely upon them, but will look at some of these 'half-team' manors and observe how much they are worth, how many tenants and how much stock they have upon them.

(i) A Somersetshire manor⁴⁸⁷. Half the land is in demesne; half is held by 7 bordiers. The only plough beasts are 4 oxen on the demesne; there are 3 beasts that do not plough, 20 sheep, 7 acres of underwood, 20 acres of pasture. It is worth 12s., formerly it was worth 10s.

(ii) A Somersetshire manor⁴⁸⁸. A quarter of the land is in demesne; the rest is held by 2 villeins and 3 bordiers. The men have one team; apparently the demesne has no plough-oxen. No other animals are mentioned. There are 140 acres of wood, 41 acres of moor, 40 acres of pasture. It is worth 12s. 6d. and has been worth 20s.

(iii) A Somersetshire manor⁴⁸⁹. All the land, save 10 acres, is in demesne; 2 bordiers hold the 10 acres. There is a team on the demesne; there are 2 beasts that do not plough, 7 pigs, 16 sheep, 4 acres of meadow, 7 of pasture. Value, 6s.

(iv) A Somersetshire manor⁴⁹⁰. The whole of the arable is in demesne; the only tenant is a bordier. There are 4 plough-oxen and 11 goats and 7 acres of underwood. Value, 6s.

(v) A Devonshire manor⁴⁹¹. To all seeming all is in demesne and there are no tenants. There are 4 plough-beasts, 15 sheep, 5 goats, 4 acres of meadow. Value, 3s.

(vi) A Devonshire manor⁴⁹². Value, 3s. All seems to be in demesne; we see no tenants and no stock.

We have been at no great pains to select examples, and yet smaller manors may be found, manors which provide arable land for but two oxen. Thus

(vii) A Somersetshire manor⁴⁹³ occupied by one villein. We read nothing of any stock. Value, 15d.

(viii) A Somersetshire manor⁴⁹⁴ with 3 bordiers on it. Value, 4s.

(ix) A Somersetshire manor⁴⁹⁵ with one bordier on it. Value, 30d.

The lowest value of a manor in this part of the world is, so far as we have observed, one shilling; that manor to all appearance was nothing but a piece of pasture land⁴⁹⁶. Yet each of these holdings is a mansio, and the Bishop of Winchester's holding at Taunton is a mansio.

From one side of England we will journey to the other side; from Devon and Somerset to Essex and Suffolk. We soon observe that in describing the holdings of the 'free men' and sokemen of this eastern district as they were in King Edward's day, our record constantly introduces the term manerium. A series of entries telling us how 'a free man held x hides or carucates or acres' will ever and anon be broken by an entry that tells us how 'a free man held x hides or carucates or acres for a manor'⁴⁹⁷. We soon give up counting the cases in which the manor is rated at 60 acres. We begin counting the cases in which it is rated at 30 acres and find them numerous; we see manors rated at 24 acres, at 20, at 15, at 12 acres. But this, it may be said, tells us little, for these manors may be extravagantly underrated⁴⁹⁸. Let us then look at a few of them.

(i) In Espalle Siric held 30 acres for a manor; there were always 3 bordiers and one team and 4 acres of meadow; wood for 60 pigs and 13 beasts. It was then worth 10s.⁴⁹⁹

(ii) In Torentuna Turchetel a free man held 30 acres for a manor; there were always 2 bordiers and one team and a half. It is worth 10s.⁵⁰⁰

(iii) In Bonghea Godric a free man held 30 acres for a manor; there were 1 bordier and 1 team and 2 acres of meadow. It was then worth 8s.⁵⁰¹

(iv) Three free men and their mother held 30 acres for a manor. There was half a team. Value, 5s.⁵⁰²

(v) In Rincham a free man held 30 acres for a manor. There were half a team and one acre of meadow. Value, 5s.⁵⁰³

(vi) In Wenham Ælfgar a free man held 24 acres for a manor. Value, 4s.⁵⁰⁴

(vii) In Torp a free man held 20 acres for a manor. One team; wood for 5 pigs. Value, 40d.⁵⁰⁵

(viii) In Tudenham Ælfric the deacon, a free man, held 12 acres for a manor. One team, 3 bordiers, 2 acres of meadow, 1 rouncey, 2 beasts that do not plough, 11 pigs, 40 sheep. Value, 3s.⁵⁰⁶

We are not speaking of curiosities; the sixty acre manor was very common in Essex, the thirty acre manor was no rarity in Suffolk.

Now it is plain enough that the 'lord' of such a manor,—or rather the holder of such a manor, for there was little lordship in the case,—was often enough a peasant, a tiller of the soil. He was under soke and under commendation; commended it may be to one lord, rendering soke to another. Sometimes he is called a sokeman⁵⁰⁷. But he has a manor. Sometimes he has a full team, sometimes but half a team. Sometimes he has a couple of bordiers seated on his land, who help him in his husbandry. Sometimes there is no trace of tenants, and his holding is by no means too large to permit of his cultivating it by his own labour and that of his sons. No doubt in the west country even before the Conquest these petty mansiones or maneria were being accumulated in the hands of the wealthy. The thegn who was the antecessor of the Norman baron, sometimes held a group, a geographically discontinuous group, of petty manors as well as some more substantial and better consolidated estates. But still each little holding is reckoned a manor, while in the east of England there is nothing to show that the nameless free men who held the manors which are said to consist of 60, 40, 30 acres had usually more than one manor apiece. When therefore we are told that already before the Conquest England was full of manors, we must reply: Yes, but of what manors⁵⁰⁸?

Now were the differences between various manors a mere difference in size and in value, a student of law might pass them by. Our notion of ownership is the same whether it be applied to the largest and most precious, or to the smallest and most worthless of things. But in this case we have not to deal with mere differences in size or value. The examples that we have given will have proved that few, if any, propositions of legal import will hold good of all maneria. We must expressly reject some suggestions that the later history of our law may make to us. 'A manor has a court of its own':—this is plainly untrue. To say nothing of extreme cases, of the smallest of the manors that we have noticed, we can not easily believe that a manor with less than ten tenants has a court of its own, yet the number of such manors is exceedingly large. 'A manor has freehold tenants':—this of course we must deny, unless we hold that the villani are freeholders. 'A manor has villein or customary tenants':—even this proposition, though true of many cases, we can not accept. Not only may we find a manor the only tenants upon which are liberi homines⁵⁰⁹, but we are compelled to protest that a manor need not have any tenants at all. 'A manor must contain demesne land':—this again we can not believe. In one case we read that the whole manor is being farmed by the villeins so that there is nothing in demesne⁵¹⁰, while in other cases we are told that there is nothing in demesne and see no trace of any recent change⁵¹¹. Thus, one after another, all the familiar propositions seem to fail us, and yet we have seen good reason to believe that manerium has some exact meaning. It remains that we should hazard an explanation.

A manor is a house against which geld is charged. To the opinion that in some way or another the definition of a manor is intimately connected with the great tax we shall be brought by phrases such as the following: 'Richard holds Fivehide of the Earl which Brihtmær held in King Edward's time for forty acres and for a manor⁵¹².'—'Two free men who were brothers, Bondi and Ælfric held it for two hides and for two manors⁵¹³.' When we say that a man holds land 'as' or 'for' (pro) forty acres, we mean that his holding, be its real size what it may, is rated to the geld at forty acres. If we add the words 'and as (or for) one manor,' surely we are still speaking of the geld. For one moment the thought may cross our minds that, besides a tax on land, there has been an additional tax on 'halls,' on houses of a certain size or value; but this we soon dismiss as most unlikely. To raise but one out of many objections: had there been such a house-tax, it would have left plain traces of itself in those 'Geld Inquests' of the south-western counties that have come down to us. Rather we regard the matter thus:—The geld is a land-tax, a tax of so much per hide or carucate. In all likelihood it has been assessed according to a method which we might call the method of subpartitioned provincial quotas. The assumption has been made that a shire or other large district contains a certain number of hides; this number has then been apportioned among the hundreds of that shire, and the number allotted to each hundred has been apportioned among the vills of that hundred. The common result is that some neat number of hides, five, ten or the like is attributed to the vill⁵¹⁴. This again has been divided between the holdings in that vill. Ultimately it is settled that for fiscal purposes a given holding contains, or must be deemed to contain, this or that number of hides, virgates, or acres. Thus far the system makes no use of the manerium. But it now has to discover some house against which a demand may be made for every particular penny of geld. Despite the 'realism' of the system, it has to face the fact that, after all, taxes must be paid by men and not by land. Men live in houses. It seeks the tax-payer in his house. Now, were all the occupiers of land absolute owners of the land that they occupied, even were it true that every acre had some one person as its absolute owner, the task would be simple. A schedule of five columns, such we are familiar with, would set forth 'Owner's Name,' 'Place of Residence,' 'Description of Geldable Property,' 'Hidage,' 'Amount due.' But the occupier is not always the owner; what is more, there is no absolute ownership. Two, three, four persons will be interested in the land; the occupier will have a lord and that lord a lord; the occupier may be a serf, a villein, a sokeman; there is commendation to be considered and soke and all the infinite varieties of the power to 'withdraw' the land from the lord. Rude and hard and arbitrary lines must be drawn. Of course the state will endeavour to collect the geld in big sums. It will endeavour to make the great folk answer for the geld which lies on any land that is in any way subject to their power; thus the cost of collecting petty sums will be saved and the tax will be charged on men who are solvent. The central power may even hold out certain advantages to the lord who will become responsible for the geld of his tenants or justiciables or commended men. The hints that we get in diverse counties that the lord's 'inland' has borne no geld seem to point in this direction, though the arrangements about this matter seem to have varied from shire to shire⁵¹⁵. On the pipe rolls of a later day we see that the geld charged against the magnates is often 'pardoned.' For one reason the king can not easily tax the rich; for another he can not easily tax the poor; so he gets at the poor through the rich. The small folk will gladly accept any scheme that will keep the tax-collector from their doors, even though they purchase their relief by onerous promises of rents and services. The great men, again, may find advantage in such bargains; they want periodical rents and services, and in order to obtain them will accept a certain responsibility for occasional taxes. This process had gone very far on the eve of the Conquest. Moreover the great men had enjoyed a large liberty of paying their geld where they pleased, of making special compositions with the king, of turning some wide and discrete territory into a single geld-paying unit, of forming such 'manors' as Taunton or Berkeley or Leominster.

In King Edward's day, the occupiers of the soil might, so it seems to us, be divided by the financier into three main classes. In the first class we place the man who has a manor. He has, that is, a house at which he is charged with geld. He may be a great man or a small, an earl or a peasant; he may be charged at that house with the geld of a hundred hides or with the geld of fifteen acres. In the second class we place the villeins, bordiers, cottiers. The geld apportioned to the land that they occupy is demanded from their lord at his manor, or one of his manors. How he recoups himself for having to make this payment, that is his concern; but he is responsible for it to the king, not as guarantor but as principal debtor. But then, at least in the east and north there are many men who fall into neither of these classes. They are not villeins, they are sokemen or 'free men'; but their own tenements are not manors; they belong to or 'lie in' some manor of their lord. These men, we think, can be personally charged with the geld; but they pay their geld at their lord's hall and he is in some measure bound to exact the payment.

Any thing that could be called a strict proof of this theory we can not offer; but it has been suggested by many facts and phrases which we can not otherwise explain. In the first place, our record seems to assume that every holding either is a manor or forms part of a manor⁵¹⁶. Then we are told how lands 'geld' at or in some manor or at the caput manerii. Thus lands which lie many miles away from Tewkesbury, but which belong to the manor of Tewkesbury,' geld in Tewkesbury⁵¹⁷.' Sometimes the same information is conveyed to us by a phrase that deserves notice. A piece of land is said to 'defend itself' in or at some manor, or, which is the same thing, to have its wara or render its wara, that is to say, its defence, its answer to the demand for geld, there⁵¹⁸. 'In Middleton two sokemen had 16 acres of land and they rendered their wara in the said Middleton, but they could give and sell their land to whom they pleased⁵¹⁹.' When we are told that certain lands are in warnode Drogonis or in warnode Archiepiscopi, it is meant that the lands belong to Drogo or the Archbishop for the purpose of 'defence' against the geld⁵²⁰. It is not sufficient that land should be taxed, it must be taxed 'in' some place, which may be remote from that in which, as a matter of physical fact, it lies⁵²¹. One clear case of a free tenant paying his geld to his lord is put before us:—'Leofwin had half a hide and could withdraw with his land and he paid geld to his lord and his lord paid nothing⁵²².' Besides this we have cases in which the lord enjoys the special privilege of collecting the geld from his tenants and keeping it for his own use⁵²³. A remarkable Kentish entry tells us that at Peckham the archbishop had an estate which had been rated at six sullungs, and then that 'of the land of this manor a certain man of the archbishop held a half-sullung which in King Edward's day gelded with these six sullungs, although being free land it did not belong to the manor save for the purpose of the scot⁵²⁴.' Here we have land so free that the one connexion between it and the manor to which it is attributed consists in the payment of geld—it gelds along with the other lands of the manor. In the great lawsuit between the churches of Worcester and Evesham about the lands at Hamton, the former contended that these lands should pay their geld along with the other estates of the bishop⁵²⁵.

Let us observe the first question that the commissioners are to ask of the jurors. What is the name of the mansio? Every piece of geldable land is connected with some mansio, at which it gelds. Let us observe how the commissioners and the jurors proceed in a district where the villae and the mansiones or maneria are but rarely coincident. The jurors of the Armingford hundred of Cambridgeshire are speaking of their country vill by vill. They come to the vill of Abington⁵²⁶. Abington, they say, was rated at five hides. Of these five hides the king has a half-hide; this lies in Litlington. Earl Roger has one virgate; this lies in his manor of Shingay. Picot the sheriff has a half-virgate; this lies and has always lain in Morden. In what sense important to the commissioners or their master can a bundle of strips scattered about in the fields of Abington be said to lie in Litlington, in Shingay, or in Morden? We answer that it gelds there.

Hence the importance of the hall. It is the place where geld is demanded and paid. A manor without a hall is a thing to be carefully noted, otherwise some geld may be lost⁵²⁷. A man's land has descended to his three sons: if 'there is only one hall,' but one demand for geld need be made; if 'each has his hall,' there must be three separate demands. When we are told that two brothers held land and that each had his house (domus) though they dwelt in one court (curia), a nice problem is being put before us:—Two halls, or one hall—Two manors or one manor⁵²⁸?

The petty maneria of Suffolk, what can they be but holdings which geld by themselves? The holders of them are not great men, they have no tenants or just two or three bordiers; sometimes they can not 'withdraw' their lands from their lords. But still they pay their own taxes at their own houses.

In supposing that forces have been at work which tend to make the lord responsible for the taxes of his men, we are not without a warrant in the ancient dooms. 'If a king's thegn or a lord of land (landrica) neglects to pay the Rome penny, let him forfeit ten half-marks, half to Christ, half to the king. If a "townsman" withholds the penny, let the lord of the land pay the penny and take an ox from the man, and if the lord neglects to do this, then let Christ and the king receive the full bót of 12 ores⁵²⁹.' The right of doing justice is also the duty of doing justice. It is natural that the lord with soke should become a tax-gatherer, and he will gladly guarantee the taxes if thereby he can prevent the king's officers from entering his precinct and meddling with his justiciables. At no time has the state found it easy to collect taxes from the poor; over and over again it has been glad to avail itself of the landlord's intermediation⁵³⁰.

Our theory that while the lord is directly and primarily responsible for the geld of his villeins, he is but subsidiarily responsible for the geld of those of his sokemen or 'free men' who are deemed to belong to his manor, is founded in part on what we take to have been the wording of King William's writ⁵³¹, in part on the form taken by the returns made thereto. The writ draws a marked line between the villein and the sokeman. The king wishes to know how much land each sokeman, each liber homo, holds; he does not care that any distinction should be drawn between the lord's demesne lands and the lands of the villeins. And, on the whole, his commands are obeyed. A typical entry in the survey of East Anglia will first describe in one mass the land held by the lord and his villeins, will tell us how many carucates this land is rated at, how many teams there are on the demesne, and how many the men have, then it will enumerate sheep and pigs and goats, and then, as it were in an appendix, it will add that so many sokemen belong to this manor and that between them they hold so many carucates or acres⁵³². In Suffolk even the names of these humble tenants are sometimes recorded⁵³³. And then, we have seen⁵³⁴ that there is some doubt as to whether or no these men are or are not to be reckoned as part of the manor for all purposes. We have to say that the manor 'with the free men,' or 'without the free men' is worth so much.

After all, we are only supposing that the fashion in which the danegeld was put in charge resembled in some of its main outlines the fashion in which a very similar tax was put in charge under Richard I. In 1194 the land-tax that was levied for the payment of the king's ransom seems to have been assessed according to the hidage stated in Domesday Book⁵³⁵. Then in 1198 a new assessment was made. We are told that the king ordained that every baron should with the sheriff's aid distrain his men to pay the tax cast upon them, and that if, owing to the baron's default, distresses were not made, then the amount due from the baron's men should be seized from the baron's own demesne and he should be left to recoup himself as best he could⁵³⁶. Now it is a liability of this sort that we are venturing to carry back into the Confessor's day. The lord is responsible to the state as principal, and indeed as sole, debtor for so much of the geld as is due from his demesne land and from the land of his villani, while as regards any lands of 'free men' or sokemen which are attached to his manor, his liability is not primary nor absolute; he is bound to take measures to make these men pay their taxes; if he fails in this duty, then their taxes will become due from his demesne⁵³⁷.

When we read that in Nottinghamshire the relief of the thegn who had six manors or less was three marks, while his who had more than six manors was eight pounds⁵³⁸, this may seem to hint that some inferior limit was set to the size of the manor. If so, it was drawn at a very low point in the scale of tenements. Possibly some general rule had compelled all men who held less than a bovate or half-virgate to 'add' themselves to the manor of some lord. But the Nottinghamshire rule is rude and arbitrary. He who has seven houses against which geld is charged is a big man. On the other hand, it is probable that the Norman lords brought with them some notion, and not a very modest notion, of what a reasonably sufficient manerium should be. The king has in some cases rewarded them by a promise of ten or twenty manors without specifying very carefully what those manors are to be like. He has promised Count Eustace a hundred manors⁵³⁹. Thus we would explain a not uncommon class of entries:—'fourteen free men commended to Wulfsige were delivered to Rainald to make up (ad perficiendum) this manor of Carlington⁵⁴⁰.'—in Berningham a free man held 20 acres of land and this was delivered to Walter Giffard to make up Letheringsett⁵⁴¹.'—'Peter claims the land which belonged to seventeen free men as having been delivered to him to make up this manor⁵⁴².'—'This land was delivered to Peter to make up some, but his men do not know what, manor⁵⁴³.' The small 'free men' of the east have been 'added to' manors to which they did not belong in King Edward's day. A few of the free men of Suffolk still 'remain in the king's hand' ready to be delivered out to complete the manors of their conquerors⁵⁴⁴. Here too we may perhaps find the explanation of the entry which says that Hugh de Port held Wallop 'for half a manor⁵⁴⁵.' The king has promised him a dozen or score of manors; and this estate at Wallop worth but fifteen shillings a year, really no gentleman would take it for a manor.

Such then is the best explanation that we can offer of the manerium of Domesday Book. About details we may be wrong, but that this term has a technical meaning which is connected with the levy of the danegeld we can not doubt. It loses that meaning in course of time because the danegeld gives way before newer forms of taxation. It never again acquires a technical meaning until the late days when retrospective lawyers find the essence of a manor in its court⁵⁴⁶.

§ 7. Manor and Vill.

After what has now been said, it is needless to repeat that in Domesday Book the manerium and the villa are utterly different things⁵⁴⁷. In a given case the two may coincide, and throughout a great tract of England such cases were common and we may even say that they were normal. But in the east this was not so. We may easily find a village which taken as a whole has been utterly free from seignorial domination. Orwell in Cambridgeshire will be a good example⁵⁴⁸.

In King Edward's day this vill of Orwell was rated at 4 hides: probably it was somewhat underrated for at the date of the survey it was deemed capable of finding land for nearly 6 teams. The following table will show who held the four hides before the Conquest:—