Edward’s law speaks as though it were dealing with two different kinds of land. But really it is dealing with two different kinds of title. We, and even our statutes, habitually speak of freehold land, copyhold land, leasehold land, yet we know that the same piece of land may be at one and the same time freehold, copyhold and leasehold. All land is freehold land; every rood has its freeholder. Bracton habitually spoke of land held by frankalmoin, land held by knight’s service, land held in socage, but he knew well enough that a single acre might be held at one and the same time by many different tenures. Just so, we take it, the same land might be both book-land and folk-land, the book-land of the minster, the folk-land of the free men who were holding—not indeed ‘of’—but still ‘under’ the minster. They or their ancestors had held under the king, but the king had booked their land (which also in a certain sense was his land) to a church. The mental effort, the abstraction, that would be required of us were we to speak of various ‘estates, rights and titles,’ we try to avoid by speaking as though the distinction that was to be indicated were a distinction between various material things, and as though a freehold or copyhold quality were, like fertility or sterility, an attribute of the soil. Even so abstract a term as ‘estate’ is soon debased by the vulgar mouth: estates are ploughed; men ‘shoot over’ their estates. ‘Book-land’ is a briefer term than ‘land held by book-right’; ‘folk-land’ is a briefer term than ‘land held by folk-right.’ The same piece of land may be held by book-right and by folk-right; it may be book-land and folk-land too.
And now we must turn to consider another element in the king’s alienable superiority. We must speak of jurisdiction.
§ 3. Sake and Soke.
Importance of seignorial justice.
Of all the phenomena of feudalism none seems more essential than seignorial justice. In times gone by English lawyers and historians have been apt to treat it lightly and to concentrate their attention on military tenure. For them ‘the introduction of the military tenures’ has been ‘the establishment of the feudal system.’ But when compared with seignorial justice, military tenure is a superficial matter, one out of many effects rather than a deep-seated cause. Seignorial justice is a deep-seated cause of many effects, a principle which when once introduced is capable of transfiguring a nation. Of the origin and antiquity of this principle, however, some even of our most illustrious historians have spoken with great hesitation and therefore we shall spend some time in examining the texts which reveal what can be known about it, admitting once for all that they leave much room for differences of opinion.
Theory of the modern origin of seignorial justice.
Since the doctrine to which we have come would trace seignorial justice back to a remote time, we shall do well to state at the outset an extreme version of the opposite doctrine, a version which has been elaborately set forth in a learned and spirited essay[934].—On the eve of the battle of Hastings a seignorial court was still a new thing in England. It was a Norman precursor of the Norman Conquest. England owes it to Edward the Confessor, who was ‘half-Norman by birth and wholly Norman by education and sympathies.’ It came to us with ‘a new theory of constitutional law.’ From the reign of no older king can any evidence be produced of the existence—at any rate of the legalized existence—of private courts. True, there are charters that give to the holders of great estates the profits of jurisdiction; but a grant of the profits of jurisdiction is one thing, jurisdiction itself is another. True, that one man might have soke over another, but this does not mean that he had jurisdiction; at the most it means that he was entitled to the profits of justice, to wites, to fines and amercements. ‘No instance can be found before the Norman times in which sócn means jurisdiction. Sócn had a technical meaning of its own which is always rigorously observed. The idea of jurisdiction, on the other hand, was expressed by an equally technical word, the meaning of which is also rigorously observed. This is sacu, a word which has strangely vanished from our legal vocabulary, but is still preserved, even in its technical sense, by the German sache[935].’
Sake and soke in the Norman age.
Now it will not be disputed that in Domesday Book and the Leges Henrici this distinction is obliterated. Soke means jurisdiction and ‘sake and soke’ is but a pleonastic phrase, which means no more than soke[936]. Nor is it disputable that on the vigil of the Conquest a great deal of jurisdiction was wielded by the lords. Not a few of the ‘hundreds’ were in private hands, and, apart from hundredal jurisdiction, a lord might have and often had sake and soke over his own lands. It is not denied that Edward the Confessor had freely granted to churches and other lords large rights of justice,—not merely rights to the profits of jurisdiction, but jurisdiction itself. The question is whether what he did was new.