Even a more difficult example is contained in the fragment of the Warwickshire Hundred Roll. The oft-mentioned description of Stoneleigh in that document begins of course with the demesne land of the abbot, then mentions two villains and thirty free cotters holding 'ad terminum vitae.' Then follows a list of five more free cotters. On the margin between the two sets we read 'de hundred de Stonle.' To whom does this phrase apply? There is nothing in the tenure which would enable us to make a positive distinction between the two sets, and it would seem that the expression has in view some duties assigned in the roll to the first thirty tenants in conjunction with the villains. It is written immediately in front of the following passage: 'Omnes supradicti cotarii ipsius abbatis debent sectam ad curiam suam bis in anno. Et si contingat quod aliquis captus sit in dicto manerio debet imprisonari apud Stanle et tunc omnes villani et cotarii supradicti ipsum servabunt et in custodia eorum erit dum ibi fuerit sumptibus suis et sumptibus tocius manerii.'
The uncertainty of terminology is not without its meaning: the word 'hundredarius' did not get into general use, but it was used in several places for different purposes. It may apply to a bailiff of the hundred, perhaps to the alderman, to the standing representative of a village at the hundred court, and possibly to all the free men who had to do personal suit to this court. It is not in order to impose a uniform sense upon it, that I have treated of it at this length. But in one of its meanings, in that which is given by the Ely Surveys, we find a convenient starting point for discussing the position of an important and interesting class in which the elements of freedom and servitude appear curiously mixed.
XII.
It did not occur to the men of the thirteenth century that it would be important to distinguish between the different modes by which free tenements had been created. To draw the principal distinction was enough for all practical purposes. Stray notices occur however that give some insight into the matter. Very often we find tenements held per cartam, probably because this kind of title was rather exceptional and seemed to deserve a special mention, while commonly land was held without charter, on the strength of a ceremonial investiture by the lord. This last mode does not find uniform expression in the documents, but the implied opposition to holding by charter is sometimes stated in express terms which bring out one or the other feature of free land holding.
One of the questions addressed to the jurors—from whose verdicts the Hundred Rolls were made, was—Si aliquis liber sokemannus de antiquo dominico alii sokemanno vendiderit vel alio modo alienaverit aliquid tenendum libere per cartam[870]? The free sokeman's tenure is meant, although the inquest is taken on ancient demesne soil, and the point is that none of these persons can alienate by charter, but must use the ceremonial surrender in the court of ancient demesne according to the custom of the manor. I have already drawn attention to the remarkable opposition between free customary tenure and holding by charter. It is chiefly important because it discloses a traditional element in the formation of the socman's tenure.
The same traditional element appears in other cases in which the special position of the socman is not concerned. In Warwickshire a free tenant by sergeanty is said to hold his land without charter by warrant from ancient times, and the peculiar obligations of his sergeanty are described at some length[871]. The charter appears here in contrast with ancient ownership, to the origin of which no date can be assigned. A similar case is that of Over, Cambs.[872] Robert de Aula holds two virgates of the Abbot of Ramsey de antiquo conquestu and seven virgates de antiquo. Further on a certain Robert Mariot is mentioned holding five virgates of Robert de Aula de antiquo feffamento. The weight falls, in all these expressions, on the de antiquo, which may even appear without any further qualification. Of these qualifications one is interesting in itself, I mean 'de conquestu.' In the language of those times it may stand either 1, for conquest in the sense in which that term is now commonly used, or 2, for purchase, or 3, for occupation. The first of these meanings is naturally out of the question in our case. The second does not apply if we take heed how the expressions interchange: it could be replaced by feoffamentum in the third instance, and could not have fallen out after de antiquo in the second. Ancient occupation fits well, and such a construction is supported by other passages. In Ayllington (Elton), Hunts, e.g., we find the chief free tenants all, with one exception, holding de conquestu in contrast with the mesne tenants who are said to hold per cartam. The opposition is again clearly between traditional occupation and new feoffment settled by written instrument. In Sawtrey Beaumeys, on the other hand, the mode of holding de conquestu seems exceptional[873].
Another terminological opposition which finds expression in the surveys is that between men who hold per homagium and those who hold per fidelitatem. It seems to be commonly assumed that free tenements owe homage, but without disputing the point in a general way I shall call attention to the description of Kenilworth in the Warwickshire Roll, in which libere tenentes are said to hold per fidelitatem et nullum faciunt homagium[874]. The deviation must probably be accounted for by the fact that the castle of Kenilworth was Royal demesne and had been given to Edmund, the brother of King Edward I; the peculiar condition described was certainly a species of customary freehold or socman's tenure.
The upshot is, that we find in the Hundred Rolls traces of freeholds possessed by ancient tenure, 'without charter and warrant,' according to customs which came down from the time of the Conquest, or the original occupation of the land, or from a time beyond memory. The examples given are stray instances but important nevertheless, because we may well fancy that in many cases such facts escaped registration. And now how are all these traces of the 'traditional' element to be expressed in legal language? From what source did the right of such people flow? How did they defend it in case it was contested?
The absence of a charter is not by itself a reason to consider this kind of tenure as separated from the usual freehold. A feoffment might well be made without a charter[875]. As long as the form of the investiture by the lord had been kept, it was sufficient to create or to transmit the free tenancy. But the warranty of the lord and the feoffment were necessary as a rule. And here we find cases in which there is no warranty, and the lord is not appealed to as a feoffor. They must be considered as held by surrender and admittance in court and as being in this respect like the tenements of the sokemen. I do not see any other alternative. As to the sokemen we find indeed, that their right is contrasted with feoffment and at the same time considered as a kind of free tenancy, that it is defended by manorial writs, and at the same time well established in custom[876]. But can we say that the warranty of the lord is less prominent in this case than in the liberum tenementum created by the usual feudal investiture? Surrender seems to go even further in the direction of a resumption by the lord of a right which he has conferred on the dependent. If surrender stood alone, one would be unable to see in what way this customary procedure could be taken as an expression of 'communal guarantee.' But the surrender is coupled with admittance. The action of the steward called upon to transmit by his rod the possession of a plot of land is indissolubly connected with the action of the court which has to witness and to approve the transaction. The suitors of the court in their collective capacity come very characteristically to the front in the admittance of the socman, and it is on their communal testimony that the whole transaction has to rest. The Rolls of Stoneleigh and of King's Ripton give many a precious hint on this subject[877].