[301] D. B. i. 10 b: 'et sunt quieti pro servitio maris ab omni consuetudine preter tribus, latrocinio, pace infracta, et forestel.'
[302] D. B. i. 61 b: 'solutam ab omni consuetudine propter forestam custodiendam excepta forisfactura Regis, sicut est latrocinium, et homicidium, et heinfara, et fracta pax.'
[303] D. B. i. 52: 'Hi infrascripti habent in Hantone consuetud[ines] domorum suarum.' Ibid. 249: 'Haec terra fuit consuetudinaria solummodo de theloneo Regis sed socam aliam habebat.'
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].
Now if we go back to the Norman period we shall begin to doubt whether the feudal principle--the principle which as a matter of course gives the lord justiciary powers over his tenants--is of very ancient origin[305]. The state of things that then existed should be revealed to us by the Leges Henrici; for, if that book has any plan at all, it is a treatise on the law of jurisdiction, a treatise on 'soke.' To this topic the writer constantly returns after many digressions, and the leading theme of his work is found in the following sentence:--'As to the soke of pleas, there is that which belongs properly and exclusively to the royal fiscus; there is that which it participates with others; there is that which belongs to the sheriffs and royal bailiffs as comprised in their ferms; there is that which belongs to the barons who have soke and sake[306].' But, when all has been said, the picture that is left on our minds is that of a confused conflict between inconsistent and indefinite principles, and very possibly the compiler in giving us such a picture is fulfilling the duty of a faithful portrayer of facts, though he does not satisfy our demand for a rational theory.