vill2 [84]
distinction between free and servile holding. As it is, the intricate constitution of the hundred, although largely modified and differentiated by later law, although cut up as it were by the feudal principle of territorial service, looks still in the main as an organisation based on the freedom of the mass of the people.(39*) The free people had to attend virtually, if not actually, and a series of contradictions sprang up from the attempt to apply this principle to a legal state which had almost eliminated the notion of freedom in its treatment of peasantry on villain land. As in these feudal relations all stress lay on tenure and not on status, the manorial documents seem to raise the hundredors almost or quite to the rank of freeholders, although in strict law they may have been villains. The net results seem to be: (1) that the administrative constitution of hundred and county is derived from a social system which did not recognise the feudal opposition between freeholder and villain; (2) that we must look upon feudal villainage as representing to a large extent a population originally free; (3) that this original freedom was not simply one of personal status, but actually influenced the conception of tenure even in later days.(40*) If in manorial documents these 'hundredors' occupy as it were an ambiguous position, the same may be said of another and a very important class -- the socmen. The socage tenure has had a very curious terminological history. Everybody knows that it appears in Domesday as a local peculiarity of Danish districts; in modern law it came to be a general name for any freehold that was neither knight service, frankalmoign, nor grand sergeanty. It became in fact the normal and typical free tenure, and as such it was treated by the Act of Charles II abolishing military tenure. Long before this -- even in the thirteenth century -- 'free socage' was the name of a freehold tenure fully protected by the King's Courts. Very great men occasionally held land in free socage (per liberum socagium); they even held of the King in chief by free socage, and the tenure had many advantages, since it was free from the burdensome incidents of wardship and marriage. But no one would have called these men socmen (sokemanni, socomanni). On the other hand, the socmen, free socmen, were to he found all over England and not in the Danish country only. It is of the tenure of these socmen that we have to speak now. In a trial of Edward the First's time the counsel distinguish three manners of persons -- free men, villains, and socmen. These last are said to occupy an intermediate position, because they are as statu liberi in regard to their lords.(41*) The passage occurs in a case relating to ancient demesne, but the statement is made quite broadly, and the term 'socmen' is used without any qualification. As there were many socmen outside the King's possessions on the land of lay and spiritual lords, such usage may be taken as proof that the position of all these people was more or less identical. And so in our inquiry as to the characteristic traits of socage generally we may start from the ancient demesne. Further, we see that the socman's tenure is distinguished from free tenure, socmen from freeholders. In the law books of the time the free but non-military tenure has to be characterised not merely as socage, but as free socage: this fact will give us a second clue in analysing the condition. There are two leading features in ancient demesne socage: it is certain in tenure and service, and it is held by the custom of the manor and not by feoffment. The certainty of the tenure severs the class of socmen from the villains, and is to be found as well in the case of socmen outside the crown demesne as in the case of socmen on the crown demesne. What is to be said of the second. trait? It seems especially worthy of notice, because it cannot be said to belong to freehold generally. As to its existence on ancient demesne land I have already had occasion to speak, and it can hardly be doubted. I will just recall to the