This word consuetudo is the widest of words. Perhaps we find the best equivalent for consuetudines in our own vague ‘dues[300].’ It covers what we should call rents; 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 ambush[301]. 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-breach[302]. 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 income. A lord who has ‘his customs,’ is a lord who has among other sources of revenue, justice or the profits of justice[303]. ‘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.
Sake and soke.
We may best begin our investigation by recalling the law of later times. In the thirteenth century seignorial justice, that is, justice in private hands, has two roots. A certain civil jurisdiction belongs to the lord as such; if he has tenants enough to form a court, he is at liberty to hold a court of and for his tenants. This kind of seignorial justice we call specifically feudal justice. But very often a lord has other and greater powers than the feudal principle would give him; in particular he has the view of frankpledge and the police justice that the view of frankpledge implies. All such powers must in theory have their origin in grants made by the king; they are franchises. With feudal justice therefore we contrast ‘franchisal’ justice[304].
Private jurisdiction in the Leges.
Now if we go back to the Norman period we shall begin to doubt whether the feudal principle—the principle which as a matter of course gives the lord justiciary powers over his tenants—is of very ancient origin[305]. The state of things that then existed should be revealed to us by theLeges Henrici; for, if that book has any plan at all, it is a treatise on the law of jurisdiction, a treatise on ‘soke.’ To this topic the writer constantly returns after many digressions, and the leading theme of his work is found in the following sentence:—‘As to the soke of pleas, there is that which belongs properly and exclusively to the royal fiscus; there is that which it participates with others; there is that which belongs to the sheriffs and royal bailiffs as comprised in their ferms; there is that which belongs to the barons who have soke and sake[306].’ But, when all has been said, the picture that is left on our minds is that of a confused conflict between inconsistent and indefinite principles, and very possibly the compiler in giving us such a picture is fulfilling the duty of a faithful portrayer of facts, though he does not satisfy our demand for a rational theory.
Soke in the Leges Henrici.
On the one hand, it seems plain that there is a seignorial justice which is not ‘franchisal.’ Certain persons have a certain ‘soke’ apart from any regalities which may have been expressly conceded to them by the king. But it is not clear that the legal basis of this soke is the simple feudal principle stated above, namely, that jurisdiction springs from the mere fact of tenure. An element of which we hear little in later days, is prominent in the Leges, the element of rank or personal status. ‘The archbishops, bishops, earls and other ‘powers’ (potestates) have sake and soke, toll, team and infangenethef in their own lands[307].’ Here the principle seems to be that men of a certain rank have certain jurisdictional powers, and the vague term potestates may include in this class all the king’s barons. But then the freeholding vavassores have a certain jurisdiction, they have the pleas which concern wer and wíte (that is to say ‘emendable’ pleas) over their own men and their own property, and sometimes over another man’s men who have been arrested or attached in the act of trespass[308]. Whatever else we may think of these vavassores, they are not barons and probably they are not immediate tenants of the king[309]. It is clear, however, that there may be a ‘lord’ with ‘men’ who yet has no sake or soke over them[310]. We are told indeed that every lord may summon his man to stand to right in his court, and that if the man be resident in the remotest manor of the honour of which he holds, he still must go to the plea[311]. Here for a moment we seem to have a fairly clear announcement of what we call the simple feudal principle, unadulterated by any element of personal rank; still our text supposes that the lord in question is a great man, he has no mere manor but an honour or several honours. On the whole, our law seems for the time to be taking the shape that French law took. If we leave out of sight the definitely granted franchisal powers, then we may say that a baron or the holder of a grand fief has ‘high justice,’ or if that term be too technical, a higher justice, while the vavassor has ‘low justice’ or a lower justice. But in this province, as in other provinces, of English law personal rank becomes of less and less importance. The rules which would determine it and its consequences are never allowed to become definite, and in the end a great generalization surmounts all difficulties:—every lord has a certain civil justice over his tenants; whatsoever powers go beyond this, are franchises.
Kinds of soke in the Leges.