Domesday Book and Beyond: Three Essays in the Early History of England

by Frederic William Maitland

The thread that looks as if it would be the easiest to unravel, is that which is styled ‘mere commendation.’ The same idea is expressed by other phrases—‘he committed himself to Bishop Herman for his defence[258]’—‘they submitted themselves with their land to the abbey for defence[259]’—‘he became the man of Goisfrid of his own free will[260]’—‘she put herself with her land in the hand of the queen[261].’ ‘Homage’ is not a common term in Domesday Book, but if, when speaking of the old time, it says, as it constantly does, that one person was the man of another, no doubt it is telling us of a relationship which had its origin in an oath and a symbolic ceremony[262]. ‘She put herself into the hands of the queen’—we should take these words to mean just what they say. An Anglo-Saxon oath of fealty (hyldáð) has been preserved[263]. The swearer promises to be faithful and true to his lord, to love all that his lord loves and eschew all that his lord eschews. He makes no distinct reference to any land, but he refers to some compact which exists between him and his lord:—He will be faithful and true on condition that his lord treats him according to his deserts and according to the covenant that has been established between them.

Commendation and protection.

To all seeming there need not be any land in the case; and, if the man has land, the act of commendation will not give the lord as a matter of course any rights in that land. Certainly Domesday Book seems to assume that in general every owner or holder of land must have had a lord. This assumption is very worthy of notice. A law of Æthelstan[264] had said that lordless men ‘of whom no right could be had’ were to have lords, but this command seems aimed at the landless folk, not at those whose land is a sufficient surety for their good behaviour. The law had not directly commanded the landed men to commend themselves, but it had supplied them with motives for so doing[265]. What did a man gain by this act of submission? Of advantages that might be called ‘extra-legal’ we will say nothing, though in the wild days of Æthelred the Unready, and even during the Confessor’s reign, there was lawlessness enough to make the small proprietor wish that he had a mightier friend than the law could be. But there were distinct legal advantages to be had by commendation. In the first place, the life of the great man’s man was protected not only by a wer-gild, but by a man-bót:—a man-bót due to one who had the power to exact it; and if, as one of our authorities assures us, the amount of the man-bót varied with the rank of the lord[266], this would help to account for a remarkable fact disclosed by Domesday Book, namely, that the chosen lord was usually a person of the very highest rank, an earl, an archbishop, the king. Then, again, if the man got into a scrape, his lord might be of service to him. Suppose the man accused of theft: in certain cases he might escape with a single, instead of a triple ordeal, if he had a lord who would swear to his good character[267]. In yet other cases his lord would come forward as his compurgator; perhaps he was morally bound to do so; and, being a man of high rank, would swear a crushing oath. And within certain limits that we can not well define the lord might warrant the doings of his man, might take upon himself the task of defending an action to which his man was subjected[268]. What the man has sought by his submission is defensio, tuitio; the lord is his defensor, tutor, protector, advocatus, in a word, his warrantor[269].

Commendation and warranty.

Of warranty we are accustomed to think chiefly in connexion with the title to land:—the feoffor warrants the feoffee in his enjoyment of the tenement. But to all appearance in the eleventh century it is rather as lord than as giver, seller or lender, that the vouchee comes to the defence of his man. If the land is conceived as having once been the warrantor’s land, this may be but a fiction:—the man has given up his land and then taken it again merely in order that he may be able to say with some truth that he has it by his lord’s gift. But we can not be sure that as yet any such fiction is necessary. ‘I will defend any action that is brought against you for this land’:—as yet men see no reason why such a promise as this, if made with due ceremony, should not be enforced. A certain amount of ‘maintenance’ is desirable in their eyes and laudable.

Commendation and tenure.

Though we began with the statement that where there is commendation there may yet be no land in the case, we have none the less been already led to the supposition that often enough land does get involved in this nexus between man and lord. No doubt a landless man may commend himself and get no land in return for his homage; but with such an one Domesday Book is not concerned. The cases in which it takes an interest are those in which a landholder has commended himself. Now we dare not say that a landholder can never commend himself without commending his land also[270]. Howbeit, the usual practice certainly is that a man who submits or commits himself for ‘defence’ or ‘protection’ shall take his land with him; he ‘goes with his land’ to a lord. Very curious are some of the instances which show how large a liberty men have enjoyed of taking land wherever they please. ‘Tostig bought this land from the church of Malmesbury for three lives’:—in this there is nothing strange; leases for three lives granted by churches to thegns have been common. But of course we should assume that during the lease the land could have no other lord than the church of Malmesbury. Not so, however, for during his lease Tostig ‘could go with that land to whatever lord he pleased[271].’ In Essex there was before the Conquest a man who held land; that land in some sort belonged to the Abbey of Barking, and could not be separated from the abbey; but the holder of it was the man (‘merely the man’ say the jurors) of one Leofhild the predecessor of Geoffrey de Mandeville[272]. In this last case we may satisfy ourselves by saying that a purely personal relation is distinguished from a tenurial relation; the man of Leofhild is the tenant of the abbey. But what of Tostig’s case? Land that he holds of the church of Malmesbury, and that too by no perpetual tenure, he can commend to another lord. From the man’s point of view, protection, defence, warranty, is the essence of commendation, and the warranty that he chiefly needs is the warranty of his possession, of the title by which he holds his land. It can not but be therefore that the lord to whom he commends himself and his land, should be in some sort his landlord.

The lord’s interest in commendation.

Not that he need pay rent, or perform other services in return for the land. The land is his land; he has not obtained it from his lord; on the contrary he has carried it to his lord. Mere commendation is therefore distinguished by a score of entries from a relation that involves the payment of consuetudines. Doubtless however the lord obtains ‘a valuable consideration’ for all that he gives. Part of this will probably lie without the legal sphere. He has a sworn retainer who will fight whenever he is told to fight. But even the law allows the man to go great lengths in his lord’s defence[273]. In a rough age happy is the lord who has many sworn to defend him. When at a later time we see that the claimant of land must offer proof ‘by the body of a certain free man of his,’ we are taught that the lords have relied upon the testimony and the strong right arms of their vassals. That in all cases the lord got more than this we can not say, though perhaps commendation carried with it the right to the heriot, the horse and armour of the dead man[274]. The relation is often put before us as temporary. Numerous are the persons who ‘can seek lords where they choose’ or who can ‘go with their land wherever they please.’ How large a liberty these phrases accord to lord and man it were hard to tell. We can not believe that either party to the contract could dissolve it just at the moment when the other had some need to enforce it; but still at other times the man might dissolve it, and we may suppose that the lord could do so too. But the connexion might be of a more permanent kind. Perhaps in most cases in which we are told that a man can not withdraw his land from his lord the bond between them is regarded as something other than commendation—there is commendation and something more. But this is no universal truth. You might be the lord’s man ‘merely by commendation’ and yet be unable to sell your land without the lord’s leave[275]. At any rate, in one way and another ‘the commendation’ is considered as capable of binding the land. The commended man will be spoken of as holding the land under (sub) his lord, if not of (de) his lord[276]. In many cases if he sells the land ‘the commendation will remain to his lord’—by which is meant, not that the vendor will continue to be the man of that lord (for the purposes of the Domesday Inquest this would be a matter of indifference) but that the lord’s rights over the land are not destroyed. The purchaser comes to the land and finds the commendation inhering in it[277].

The seignory over the commended.