Part 10

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.]

And so, again, the lord's rights under the commendation seem to constitute an alienable and heritable seignory. It is thus that we may best explain the case, very common in East Anglia, in which a man is commended half to one and half to another lord[278]. Thus we read of a case in which a free man was commended, as to one-third to Wulfsige, and as to the residue to Wulfsige's two brothers[279]. In this instance it seems clear that the commendation has descended to three co-heirs. In other cases a lord may have made over his rights to two religious houses; thus we hear of a man who is common to the Abbots of Ely and St. Edmund's[280]. In some cases a man may, in others he may not, be able to prevent himself being transferred from lord to lord, or from ancestor to heir. What passes by alienation or inheritance may be regarded rather as a right to his commendation than as the commendation itself[281]. Of course there is nothing to hinder one from being the man of several different lords. Ælfric Black held lands of the Abbot of Westminster which he could not separate from the church, but for other lands he was the man of Archbishop Stigand[282]. Already a lofty edifice is being constructed; _B_, to whom _C_ is commended, is himself commended to _A_; and in this case a certain relation exists between _C_ and _A_; _C_ is 'sub-commended' to _A_[283].

[Commendation and service.]

In a given case the somewhat vague obligation of the commended man may be rendered definite by a bargain which imposes upon him the payment of rent or the performance of some specified services. When this is so, we shall often find that the land is moving, if we may so speak, not from the man but from the lord. The man is taking land from the lord to hold during good behaviour[284], or for life[285], or for lives. A form of lease or loan (_lǽn_) which gives the land to the lessee and to two or three successive heirs of his, has from of old been commonly used by some of the great churches[286]. Also we see landowners giving up their land to the churches and taking it back again as mere life tenants. During their lives the church is to have some 'service,' or at least some 'recognition' of its lordship, while after their deaths the church will have the land in demesne[287]. This is something different from mere commendation. We see here the _feuda oblata_ or _beneficia oblata_ which foreign jurists have contrasted with _feuda_ or _beneficia data_. The land is brought into the bargain by the man, not by the lord. But often the land comes from the lord, and the tenancy is no merely temporary tenancy; it is heritable. The king has provided his thegns with lands; the earls, the churches have provided their thegns with lands, and these thegns have heritable estates, and already they are conceived as holding them of (_de_) the churches, the earls, the king. But we must not as yet be led away into any discussion about the architecture of the very highest storeys of the feudal or vassalic edifice. It must at present suffice that in humbler quarters there has been much letting and hiring of land. The leases, if we choose to call them so, the gifts, if we choose to call them so, have created heritable rights and perdurable relationships.

[Land-loans and services.]

There is no kind of service that can not be purchased by a grant or lease of land. Godric's wife had land from the king because she fed his dogs[288]. Ælfgyfu the maiden had land from Godric the sheriff that she might teach his daughter orfrey work[289]. The monks of Pershore stipulate that their dominion shall be recognized by 'a day's farm' in every year, that is, that the lessee shall once a year furnish the convent with a day's victual[290]. The king's thegns between the Ribble and the Mersey have 'like villeins' to make lodges for the king, and fisheries and deer-hays, and must send their reapers to cut the king's crops at harvest time[291]. The radmen and radknights of the west must ride on their lord's errands and make themselves generally useful; they plough and harrow and mow, and do whatever is commanded them[292].

[The man's _consuetudines_.]

But we would here speak chiefly of the lowly 'free men' and sokemen of the eastern counties. Besides having their commendation and their soke, the lord very often has what is known as their _consuetudo_ or their _consuetudines_. Often they are the lord's men _de omni consuetudine_. In all probability the word when thus employed, when contrasted with commendation on the one hand and with soke on the other, points to payments and renders to be made in money and in kind and to services of an agricultural character. Of such services only one stands out prominently; it is very frequently mentioned in the survey of East Anglia; it is fold-soke, _soca faldae_. The man must not have a fold of his own; his sheep must lie in the lord's fold. It is manure that the lord wants; the demand for manure has played a large part in the history of the human race. Often enough this is the one _consuetudo_, the one definite service, that the lord gets out of his free men[293]. And then a man who is _consuetus ad faldam_, tied to his lord's fold, is hardly to be considered as being in all respects a 'free' man. Those who are not 'fold-worthy' are to be classed with those who are not 'moot-worthy' or 'fyrd-worthy.' We are tempted to say that a man's _caput_ is diminished by his having to seek his lord's fold, just as it would be diminished if he were excluded from the communal courts or the national host[294]. From the nature of this one _consuetudo_ and from the prominence that is given to it, we may guess the character of the other _consuetudines_. Suit to the lord's mill would be analogous to suit to his fold[295]. Of 'mill-soke' we read nothing, but often enough a surprisingly large part of the total value of a manor is ascribed to its mill, and we may argue that the lord has not invested capital in a costly undertaking without making sure of a return. We may well suppose that like the radmen of the west the free men and sokemen of the east give their lord some help in his husbandry at harvest time. From a document which comes to us from the abbey of Ely, and which is slightly older than the Domesday Inquest, we learn that certain of St. Etheldreda's sokemen in Suffolk had nothing to do but to plough and thresh whenever the abbot required this of them; others had to plough and weed and reap, to carry the victual of the monks to the minster and furnish horses whenever called upon to do so[296]. This seems to point rather to 'boon-days' than to continuous 'week-work,' and we observe that the sokemen of the east like the radmen of the west have horses. Occasionally we learn that a sokeman has to pay an annual sum of money to his lord; sometimes this looks like a substantial rent, sometimes like a mere 'recognition'; but the words that most nearly translate our 'rent,' _redditus_, _census_, _gablum_ are seldom used in this context. All is _consuetudo_.

[Nature of _consuetudines_.]

It is an interesting word. We perhaps are eager to urge the dilemma that in these cases the land must have been brought into the bargain either by the lord or by the tenant:--either the lord is conceived as having let land to the tenant, or the theory is that the tenant has commended land to the lord. But the dilemma is not perfect. It may well be that this relationship is thought of as having existed from all time; it may well be that this relationship, though under slowly varying forms, has really existed for several centuries, and has had its beginning in no contract, in no bargain. In origin the rights of the lord may be the rights of kings and ealdormen, rights over subjects rather than rights over tenants. The word _consuetudo_ covers taxes as well as rents, and, if the sokeman has to do work for his lord, very often, especially in Cambridgeshire and Hertfordshire, he has to do work for the king or for the sheriff also. If he has to do carrying service for the lord, he has to do carrying service (_avera_) for the sheriff also or in lieu thereof to pay a small sum of money[297]. And another aspect of this word _consuetudo_ is interesting to us. Land that is burdened with customs is customary land (_terra consuetudinaria_)[298]. As yet this term does not imply that the tenure, though protected by custom, is not protected by law; there is no opposition between law and custom; the customary tenant of Domesday Book is the tenant who renders customs, and the more customs he renders the more customary he is[299].

[Justiciary _consuetudines_.]

This word _consuetudo_ is the widest of words. Perhaps we find the best equivalent for _consuetudines_ in our own vague 'dues[300].' It covers what we should call rents; it covers what we should call rates and taxes; but further it covers what we should call the proceeds and profits of justice. Let us construe a few entries. At Romney there are burgesses who in return for the service that they do on the sea are quit of all customs except three, namely, larceny, peace-breach and ambush[301]. In Berkshire King Edward gave to one of his foresters half a hide of land free from all custom, except the king's forfeiture, such as larceny, homicide, hám-fare and peace-breach[302]. In what sense can a crime be a custom? In a fiscal sense. A crime is a source of revenue. In what sense should we wish to have our land free of crimes, free even, if this be possible, of larceny and homicide? In this sense:--we should wish that no money whatever should go out of our land, neither by way of rent, nor by way of tax, rate, toll, nor yet again by way of _forisfactura_, of payment for crime committed. We should wish also that our land with the tenants on it should be quit or quiet (_quieta_) from the incursions of royal and national officers, whether they be in search of taxes or in search of criminals and the fines due from criminals, and we should also like to put those fines in our own pockets. Justice therefore takes its place among the _consuetudines_: 'larceny' is a source of income. A lord who has 'his customs,' is a lord who has among other sources of revenue, justice or the profits of justice[303]. 'Justice or the profits of justice,' we say, for our record does not care to distinguish between them. It is thinking of money while we are engaged in questioning it about the constitution and competence of tribunals. It gives us but crooked answers. However, we must make the best that can be made of them, and in particular must form some opinion about the _consuetudines_ known as _sake_ and _soke_.

FOOTNOTES:

[238] We shall see hereafter that some of these so-called 'manors' are but small plots and their holders small folk.

[239] See above p. 24.

[240] D. B. i. 128 b, 129, 129 b.

[241] D. B. i. 34, 35 b.

[242] D. B. i. 13.

[243] D. B. ii. 287. There are free men, apparently 120 in number, of whom it is written: 'Hii liberi homines qui tempore regis Eduardi pertinebant in soca de Bercolt, unusquisque gratis dabat preposito per annum 4 tantum denarios, et reddebat socam sicut lex ferebat, et quando Rogerius Bigot prius habuit vicecomitatum statuerunt ministri sui quod redderent 15 libras per annum, quod non faciebant T. R. E. Et quando Robertus Malet habuit vicecomitatum sui ministri creverunt illos ad 20 libras. Et quando Rogerius Bigot eos rehabuit dederunt similiter 20 libras. Et modo tenet eos Aluricus Wanz tali consuetudine qua erant T. R. E.' This is a rare instance of a reestablishment of the _status quo ante conquestum_.

[244] Compare Round, Feudal England, 33.

[245] D. B. ii. 187 b: 'Ex his non habuit Ailwinus suus antecessor etiam commendationem.'

[246] D. B. ii. 287: 'De his hominibus ... non habuit Haroldus etiam commendationem.'

[247] D. B. ii. 153 b: 'Unde suus antecessor habuit commendationem tantum.' Ibid. 154: 'Alstan liber homo Edrici commend[atione] tantum.'

[248] D. B. ii. 161 b.

[249] D. B. ii. 244.

[250] D. B. ii. 6: 'De predicto sochemano habuit Rad. Piperellus consuetudinem in unoquoque anno per 3 solidos, set in T. R. E. non habuit eius antecessor nisi tantum modo commendationem.'

[251] D. B. ii. 171 b: 'Calumpniatur R. Malet 18 liberos homines, 3 commendatione et alios de omni consuetudine.'

[252] D. B. ii. 250 b: 'Huic manerio adiacent semper 4 homines de omni consuetudine et alii 4 ad socham tantum.'

[253] D. B. ii. 356 b.

[254] D. B. ii. 357.

[255] D. B. ii. 353 b.

[256] D. B. ii. 362: 'set soca remaneret sancto et servitium quicunque terram emeret.'

[257] D. B. ii. 358.

[258] D. B. i. 58: 'Pater Tori tenuit T. R. E. et potuit ire quo voluit sed pro sua defensione se commisit Hermanno episcopo et Tori Osmundo episcopo similiter.'

[259] D. B. i. 32 b: 'set pro defensione se cum terra abbatiae summiserunt.'

[260] D. B. ii. 62 b: 'et T. R. W. effectus est homo Goisfridi sponte sua.'

[261] D. B. i. 36 b: 'T. R. W. femina quae hanc terram tenebat misit se cum ea in manu reginae.' Ibid. 36: 'Quidam liber homo hanc terram tenens et quo vellet abire valens commisit se in defensione Walterii pro defensione sua.'

[262] D. B. ii. 172: 'Hos calumpniatur Drogo de Befrerere pro homagio tantum.' This seems equivalent to the common 'commendatione tantum.' D. B. i. 225 b: 'fuerunt homines Burred et iccirco G. episcopus clamat hominationem eorum.'

[263] Schmid, App. x.

[264] Æthelst. II. 2.

[265] Also it had declared that every man must have a pledge, and probably the easiest way of fulfilling this command was to place oneself under a lord who would put one into a tithing.

[266] Leg. Edw. Conf. 12, § 5; but this is contradicted by Leg. Henr. 87, § 4.

[267] Æthelr. I. 1, § 2; compare Æthelr. III. 3, § 4.

[268] Leg. Hen. 82, § 6; 85, § 2.

[269] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' Ibid. 103: 'vocavit Ilbodonem ad tutorem et postea non adduxit tutorem.' Ibid. 31 b: 'revocat eam ad defensorem.' D. B. i. 141 b: 142: 'sed Harduinus reclamat Petrum vicecomitem ad protectorem.' Ibid. 227 b: 'et dicit regem suum advocatum esse.'