vill2-第38节
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personal representative； the steward； then six men from the township attend in his place。 The question arises naturally； where is one to look for the small freeholders in the enactment？ However much we may restrict their probable number； their existence cannot be simply denied or disregarded。 It does not seem likely that they were treated as landlords （terrarum domini）； and one can hardly escape the inference that they are included in the population of the township； which appears through the medium of the six hundredors： another hint that the class division underlying the whole structure did not coincide with the feudal opposition between freeholder and villain。 Again； in the great hundred for the view of frankpledge； which is distinguished from the ordinary hundred by fuller attendance； and not by any fundamental difference in constitution； all men are to appear who are 'free and worthy of their wer and their wite：'（36*） this expression seems an equivalent to the 'free and lawful' men of other cases； and at the same time it includes distinctly the great bulk of the villain population as personally free。 I have not been able； in the present instance； to keep clear of the evidence belonging to the intermediate period between the Saxon and the feudal arrangements of society； this deviation from the general rule； according to which such evidence is to be discussed separately and in connexion with the Conquest； was unavoidable in our case； because it is only in the light of the laws of Henry I that some important feudal facts can be understood。 in a trial as to suit of court between the Abbot of Glastonbury and two lay lords； the defendants plead that they are bound to appear at the Abbot's hundred court personally or by attorney only on the two law…days； whereas for the judgment of thieves their freemen； their reeves and ministers have to attend in order to take part in the judgment。（37*） It is clearly a case of substitution； like the one mentioned in Leg。 Henrici； c。 7； and the point is； that the representatives of the fee are designated as reeves and freemen。 Altogether the two contradictory aspects in which the hundredors are made to appear can hardly be explained otherwise than on the assumption of a fluctuation between the conception of the hundred as of an assembly of freemen； and its treatment under the influence of feudal notions as to social divisions。 In one sense the hundredors are villains： they come from the vill； represent the bulk of its population； which consists of villains； and are gradually put on a different footing from the greater people present。 In another sense they are free men； and even treated as freeholders； because they form part of a communal institution intended to include the free class and to exclude the servile class。（38*） If society had been arranged consistently on the feudal basis； there would have been no room for the representation of the vill instead of the manor； for the representation of the vill now by the lord and now by a deputation of peasants； for a terminology which appears to confuse or else to neglect the 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 reader's mind the fundamental facts： that the 'little writ of right' was to insure justice according to the custom of the manor； and that our documents distinguish in as many words between the customary admittance of the socman and the feoffment of the freeholder。 This means； that in case of litigation the one had warranty and charter to lean upon； while the other had to appeal to the communal testimony of his fellow…suitors in the court of the manor； and in later days to an entry on the court…roll。 Freehold appeared as chartered land （book…land）； while socage was in truth copyhold secured by communal custom。（42*） The necessary surrender and admittance was performed in open court； and the presence of fellow…tenants was as much a requisite of it as the action of the lord or his steward。 If we look now to the socmen outside the ancient demesne； we shall find their condition so closely similar； that the documents constantly confuse them with the tenants of the ancient demesne。 The free men under soke in the east of England have best kept the tradition； but even their right is often treated as a mere variation of ancient demesne。（43*） For this reason we should be fairly entitled； I think； to extend to them the notion of customary freehold。 There is direct evidence in this respect。 In extents of manors socmen are often distinguished from freeholders。（44*） True； as already said； that in the king's courts 'free socage' came to be regarded as one of the freehold tenures； and as such （when not on the ancient demesne） was protected by the same actions which protected knight…service and frankalmoign； but we have only here another proof of the imperfect harmony between legal theory and manorial administration。 What serves in the manorial documents to distinguish the 'socman' from the 'freeholder' is the fact that the former holds without charter。（45*） We are naturally led to consider him as holding； at least originally； by ancient custom and communal testimony in the same sense as the socmen of ancient demesne。 In most cases only the negative side； namely the absence of a charter； is m
