Introduction: Antiquity, subject-matter and parties

INTRODUCTION

In the year 1896, the late reverend W. O. Massingberd, rector of South Ormsby, edited a volume of Abstracts of Final Concords, relating to the county of Lincoln, and covering the period from 5 Richard I (a.d. 1193) to 28 Henry III (a.d. 1244). The deciphering and translating of the original documents was undertaken by Mr. W. K. Boyd. The present work is a continuation of that volume to the end of Henry III's reign (a.d. 1272), with the addition of appendixes containing some earlier concords collected from various sources with a view to supplementing Mr. Massingberd's work. In some other respects also this volume will help the student in his use of Mr. Massingberd's book; and especially it is hoped that the attempt to identify the places mentioned in that volume, and their inclusion in the present index, will be found convenient.

It has been thought well, for the sake of uniformity, to retain the title Final Concords, which Mr. Massingberd adopted, instead of using the commoner name of Feet of Fines. The former title has the additional advantage of seeming a little less enigmatical than the latter to the reader who is inexperienced in legal technicalities, while the name Final Concords is quite unambiguous to the expert.

It may be useful in this introduction to give some account of the origin and nature of final concords, of the procedure which was adopted when they were levied, and of the advantages which they secured. It must be premised, however, that what follows is intended for the reader who, possessing but little knowledge of obsolete legal forms, nevertheless wishes to be in a position to make use of the text for historical or antiquarian purposes. Much will be left unsaid which would necessarily be included in a technical work; many exceptions to general rules will be omitted; and the changes that were made after the time of Henry III in the law relating to final concords will be left for the most part unnoticed. If it be thought that an explanation is needed to account for the more technical character of the section on procedure, it may be said that since the writer failed to find in print a satisfying account of the procedure of the twelfth and thirteenth centuries, it seemed to him that the evidence which he had collected might be useful to others, and might perhaps induce a more competent hand to deal with the matter.

I. FINAL CONCORDS

The late Professor Maitland observed:

There is something of mystic awe in the tone which already in Edward I's time lawyers and legislators assume when they speak of the 'fine,' or, to give it its full name, the final concord levied in the king's court. It is a sacred thing, and its sanctity is to be upheld at all cost. We may describe it briefly and roughly as being in substance a conveyance of land and in form a compromise of an action. Sometimes it puts an end to real litigation; but in the vast majority of cases the litigation has been begun merely in order that the pretended compromise may be made. (fn. 1)

The quotation just given points to the explanation of the name 'Fine.' A 'fine' (Latin finis) or final concord (Latin finalis concordia) was the end or finishing of litigation, real or feigned. It put an end not only to the particular suit which had been begun, but also to all other suits and controversies respecting the same matter. (fn. 2) To quote from the Rolls of Parliament of 19 Edward I:

Nec in regno isto [scil. Angliae] prouideatur, uel sit aliqua securitas maior seu solempnior per quam aliquis uel aliqua statum certiorem habere possit, uel ad statum suum verificand' aliquid solempnius testimonium producere, quam Finem in Cur' Domini Regis levatum; qui quidem Finis sic uocatur, eo quod Finis et Consummatio omnium Placitorum esse debet, et hac de causa prouidebatur. (fn. 3)

Or from a Year Book of 4 Edward II:

Il vous mettent fin en barre, q'est la plus solempne chose en la court le Roi. (fn. 4)

The document in which a final concord was recorded, opened with the words 'Haec est finalis concordia'; and towards its close came the formula 'Et pro hoc fine et concordia, etc.' The word 'feet' in the formula 'feet of fines' will be more conveniently explained a little later. (fn. 5)

The rolls of the Curia Regis of Richard I and the Assize rolls of John shew that, in many instances, a final concord has put an end to real litigation. In the earlier part of Henry III's reign also, such cases were fairly frequent; but by the end of the reign the suits seem to have been collusive in all but a few cases. On the other hand, in some of the earliest concords the litigation seems to be fictitious. The Edlington document, (fn. 6) dated 1176, is an instance in point, since Thomas Bardulf's charter (fn. 7) shews that the parties were in agreement a few months before the suit began.

The question whether final concords originated in fictitious suits or in real litigation is one which does not admit of a confident answer. It is possible only to guess at the steps which led to the institution of the final concord as we first meet with it in the earlier half of the reign of Henry II. When land was to be conveyed the all-important consideration was that the grantee should obtain security of tenure. We therefore find men trying by various means to strengthen the charters which served as evidence of the transfer of possession. They might call in a large number of witnesses, perhaps all the men of their vill, to attest the transaction (fn. 8); or perhaps they might make the charter in the court of the hundred or of the county, and even before the king's justices (fn. 9); or they might obtain a charter of confirmation from the king or other feudal superior; and sometimes the grantor might solemnly pledge the faith which he had received at the font in his baptism, and his hope of salvation, as a guarantee that he would observe the covenants of his grant.

Further, there was much litigation about rights in land, and the king was trying to draw much of this business into his court. It would be felt that no title was more secure than one which had been questioned and had, after litigation, been established by a judgment of the curia regis. Again, it was a well-established practice, when litigants wished to compromise their action, for the court to take the matter into its own hands and confirm the agreement. (fn. 10) Such a 'concord,' to use the technical term, was an official act, and no less a judgement of the court than was a decision pronounced in a case which had been fought to the bitter end.

These considerations—the desire for security of tenure, the advantage of publicity, the security given by a judgement of the king's court, and the practice of compromising actions—seem to have suggested to some ingenious lawyer, one of the king's justices it may be, the idea of obtaining security of tenure by a judgement of the court even when there was no dispute about the title. Why should not a dispute be feigned, a suit originated, the parties ask leave to agree, and the court sanction and confirm the compromise ?

Further, when once it had been allowed that an action might be brought, not for the purpose of settling a dispute, but solely with a view to securing evidence of title, it well might seem desirable that the compromise should be embodied in an official document. And as a matter of fact, shortly after 1160, there appeared such a document which soon came to be known as a chirograph, and which retained its form practically unchanged for nearly seven hundred years.

Again, the third quarter of the twelfth century was one of the great constructive periods in the history of English law. Henry II was instituting his famous assizes with the main object of giving security of possession in land. It was just such an age as would be favourable for taking the final step in the evolution of the final concord, and for providing thereby a form of conveyance which would give an indefeasible title and serve as a bar to further litigation. (fn. 11) At any rate we find a preclusive bar of this nature, probably in the earliest days of final concords, and certainly in the time of Richard I. A question thus settled could not be re-opened, except on a few special grounds, for had it not been determined by a final concord made by a chirograph in the king's court ?

II. ANTIQUITY OF FINAL CONCORDS

The earliest known final concords in England belong to the second decade of Henry II's reign. They were of common occurrence by the time of Henry's death, for the Tractatus de Legibus et Consuetudinibus Anglie, which is generally ascribed to Ranulf Glanvill, who died in 1190, devotes a section to them, (fn. 12) and as early as 1173–4 (fn. 13) there was already a writ de fine tenendo to enforce their observance. There are also references in rolls of the time of Richard I and John (fn. 14) and Henry III (fn. 15) to concords and chirographs in the reign of Henry II. Dr. J. H. Round has collected twelve examples belonging to the years 1175 to 1180, (fn. 16) and one still earlier concord which must, in his opinion, be previous to Henry's departure from England in the spring of 1172, and probably previous even to his departure in June, 1170. (fn. 17) He also refers in Feudal England (fn. 18) to the copy of a final concord which, as he thinks, should be assigned to 1163, or at least to 1163–1166, but which differs very much from the normal fine. Mr. L. F. Salzmann has found in the record of a plea of 1222, a final concord, apparently of the year 1163, which in form adheres very closely to the usual lines; and another example dated 1172 (fn. 19). Neither of these, however, deals with land in Lincolnshire. Three of Dr. Round's early examples relate to the county, and are printed in this volume:

(1) Edlington, 12 March, 1175–6 (p. 311).

(2) Barton, 7 July, 1179 (pp. 311–312).

(3) Branston, 9 December, 1180 (p. 313).

Dr. Round, following Mr. Eyton, points out that the second of these, the Barton concord, must belong to Henry's twenty-fifth year, as is proved by the names of the justices, and not to the twenty-second year, as is stated in the document itself. (fn. 20) The true date will therefore be 7 July, 1179, and not seven days earlier as stated by Dr. Round.

Two more concords prior to the year 1180, which the editor owes to the kindness of Professor F. M. Stenton, m.a., are printed here:

(4) Rowston, 12 November, 1177 (pp. 329–330).

(5) Keelby, 20 July, 1179 (pp. 334–335).

Another concord, undated, has an archaic flavour which suggests a date at least as early as the documents just mentioned—

(6) Kirkstead, [no date] (p. 314).

All these six documents appear to be true final concords, although there are some deviations from the almost invariable form which is found established in the last decade of the twelfth century, and which persisted until less than a hundred years ago. (fn. 21) Thus the opening words in no. 1 are, 'Hec est concordia facta'; in no. 3, 'Hic finis est et concordia que facta fuit'; in no. 6, 'Hec est finis et concordia facta.' In nos. 1, 3 and 5 the usual formula, 'in curia domini regis', immediately after the opening words, is omitted; but 'curia regis' occurs later in the phrase, 'unde [uel de qua] placitum fuit [uel erat] inter eos in curia domini regis'. In no. 6 'curia regis' does not occur at all, nor are the justices named, nor are the words unde placitum fuit' to be found there; but the distinctive formula, 'pro hac recognicione, fine, et concordia', is used. Of the later twelfth century concords printed here only one, dated 16 October, 1181, departs from the usual form, beginning with the words, 'Hic est finis et concordia que facta fuit.' (fn. 22)

In all these cases it is wise to hesitate before drawing conclusions, because the documents are at best second-hand evidence, being merely copies of the original chirographs. There is, however, no reason to doubt their genuineness, even though they may possibly in some instances be imperfect copies. If they are later forgeries, the work has been done very cleverly; for the names of the justices are almost always confirmed by the evidence of the Pipe rolls or other documents; and moreover their very departures from the common form tell in favour of their genuineness; for it is scarcely conceivable that a thirteenth century manipulator would have invented such variations.

The document given on pages 309–310 has been printed because it opens with the words, 'Hec est finalis concordia.' It is not, however, a true final concord, but rather a sealed instrument recording the terms of an award, made in pursuance of a promise given in the king's court, to settle a dispute by arbitration. For the same reason the composition between the townships of Cockerington and Somercotes has been included. (fn. 23)

A later document of unusual form, which has been noticed while these pages are passing through the press may be quoted here. It is recorded in the Cartulary of the Vicars Choral of Lincoln Cathedral, and internal evidence points to a date circa 1220. It opens like a final concord, then proceeds to give the substance of the agreement, and finally, as it seems, quotes the charter which led to the final concord. The corresponding foot of fine has not been found:

This is the final concord made in the court of the lord the king at Lincoln, between Alan son of Gilbert, by writ of right, demandant, and Wigot de Cadamo, tenant, of one bovate of land in the fields of Lincoln—Under this form of peace he [? Alan] received a fine, to wit, that the said Alan has for ever remised and abjured and quitclaimed for himself and his heirs that bovate of land to the aforesaid Wigot and his heirs or his assigns. And for this quitclaim the aforesaid Wigot has given and granted and by this present charter has confirmed to the said Alan and his heirs, or to whomsoever or whensoever he may will to assign them, two acres of land in one selion under the cliff in the fields of Lincoln on the north side of the lord the king's dike, which lie in breadth between the land of Walter son of Martin and the land of Ralph Cuning', and in length from the way which is called Stowegate unto Carholme: to hold and to have of me and my heirs to him and his heirs freely and quietly [and] peaceably in fee and inheritance; rendering therefor yearly to the aforesaid Wigot and his heirs for all service and exaction 4d., to wit, 2d. at Easter and 2d. at the feast of St. Michael. And I the aforesaid Wigot and my heirs will warrant the aforesaid two acres of land to the aforesaid Alan and his heirs or his assigns for the aforesaid service against all men for ever. In witness whereof the parties have set their seals to the present writing, made after the manner of a chirograph. Witnesses: John son of Osbert then mayor, Richard Cause and William Champennais then reeves, Peter de Ballio, John de Paris, William his brother, Giles son of Osbert, Robert son of Ywan, Martin his brother, Richard son of Peter, Robert son of Giles, William son of Robert de Gaiton', Robert and Roger sons of Guthred. (fn. 24)

III. THE COURT

The Curia Regis, the King's Court, was the tribunal before which final concords were levied. The court was not tied to one place. It might follow the king from place to place, or it might sit at Westminster, or be held at various places by the justices itinerant. Occasionally a concord was 'levied (fn. 25) ' (as the expression was) before the king himself, coram rege ipso (fn. 26); but generally it was levied before his justices and others of his barons and faithful men. The word barons in this connexion fell into disuse early in the thirteenth century. The names of the justices composing the court are always given in the record, but in the present volume they have been omitted in the case of the thirteenth century concords, since to print them for each county and in each document would involve needless trouble and expense. Lists of justices, largely taken from the final concords, were printed by Dugdale, in 1666, in his Origines Juridiciales. Joseph Hunter, in 1835, drew up a list of the persons before whom fines were levied from 28 Henry 11 to 15 John. (fn. 27) There is room, however, for a modern work of the same kind founded upon the wider evidence that is now available.

A statute, generally assigned to 18 Edward I (fn. 28) [a.d. 1290], enacts that final concords shall be levied before four justices at the least; and that this was the general practice before that date is proved by the evidence of the final concords of the reigns of Richard I and John, while there seem always to have been at least three justices in the time of Henry II.

There are a few instances of shire or seignorial courts following the example of the curia regis in the granting of final concords. The Pipe Roll of 20 Henry II [a.d. 1173–4] mentions an action in the curia regis to compel the observance of a fine made in the court of the bishop of Salisbury. (fn. 29) Dugdale has printed concords levied in the shire-moot of Nottingham in 1199, and in the court of Roger de Lacy, constable of Chester, in 1201. (fn. 30) A concord was levied in the court of the bishop of Durham in 1242. (fn. 31) Others are mentioned by Maitland. (fn. 32) A concord was levied in 1183, before the soke of Gayton-le-Wold (fn. 33); and another of the late twelfth century in the court of the earl of Chester at Greetham. (fn. 34) In the concord between the abbots of Thornton and Newhouse, (fn. 35) the words 'unde placitum fuit inter eos in curia domini' might seem at first sight to refer to a seignorial court, but Cabourn was a vill that had more than one lord; and it is possible that the word 'regis' may have been accidentally omitted after 'domini,' The document is sealed by the two abbots, and its form suggests that it is a charter embodying and confirming a final concord.

The Greetham and Gayton documents are peculiar in that they have witnesses like a charter of feoffment; and the Greetham document is also sealed. A final concord of 1208 in the muniment room of the Dean and Chapter of Lincoln has been confirmed by the seals of the parties and by the pledging of their faith. (fn. 36) In other respects it follows the normal form, except that it has not the usual indentation at one end as well as along the top edge. Perhaps it is a copy of the final concord, made at the time of the transaction, and sealed by the parties.

In a suit before the justices, in 1225, the defendant produced a certain writing without a seal in these words, 'This is the concord made between A and B touching one knight's fee in S [etc.], and thereupon there was a plea between them in the court of R [the chief lord], to wit [etc.]. And be it known that this concord was granted and assured and recorded at Westminster at the treasury, in such a term, to wit, at that time after Pope Alexander and the Emperor of the Germans (Alemann') were brought into agreement (concordati fuerunt) (fn. 37) before John bishop of Norwich and Richard de Lucy and Richard the treasurer.' (fn. 38)

IV. THE SUBJECT-MATTER OF FINAL CONCORDS

The property that was dealt with in final concords was land, or some right or interest of a transferable nature connected with land. To use a modern expression, it was realty as contrasted with personalty: to adopt the language of an earlier time, it was lands and tenements as contrasted with goods and chattels. The commonest rights that were thus conveyed by early final concords were advowsons, commons, ways, offices, franchises, corrodies, annuities, rents, seigniories, customs, and services. Lawyers call these rights incorporeal things or incorporeal hereditaments: incorporeal because they are things that have no body, that can neither be seen nor handled, though they are connected with and represented by corporeal things, as for instance the incorporeal right of presenting a parson is connected with the visible parish church to which he is presented: hereditaments because, like land, they can be inherited by a man's heir-at-law. To the modern mind the incorporeality of these things or their connexion with land may in some cases seem remote and difficult to explain; and even lawyers, both medieval and modern, are sometimes at a loss as to where the line between corporeal and incorporeal things should be drawn. It must be sufficient, however, to add here that incorporeal things were treated very much as if they were pieces of land; livery of seisin and exploitation of their rights and privileges (fn. 39) were in some form or another generally necessary, as in the case of land, to give full and safe possession; and the actionsat-law which were brought in connexion with them were the same as, or of a like nature to, those relating to land. In the following pages the subject-matter of final concords will, for the sake of brevity, generally be spoken of as land.

V. THE PARTIES

There were two parties to a suit which led to a final concord. The active party brought the action to demand (Latin petere, French demander) or to complain (Latin queri, French se plaindre); and he was called either a demandant or a plaintiff as the case might be. The other party was either a tenant (Latin tenens), holding what the other demanded, or a deforciant (old French deforceant), deforcing him, keeping him out of possession, (fn. 40) or an impedient (Lat. impedire), hindering or obstructing him. Generally speaking, in an action founded upon a writ of right, or in an assize of mort d'ancestor or of juris utrum the parties were demandant (fn. 41) and tenant; in an assize of darrein presentment, or an action of covenant or of customs and services, they were querent or plaintiff and deforciant; in an action of warranty of charter, querent or plaintiff and impedient; and in an action of fine, querent or plaintiff and deforciant or impedient. (fn. 42)

Sometimes the parties were represented by attorneys who were specially appointed or 'attorned' to the business in hand. The attorney stood in the place of his principal for good or for ill, to win or lose: 'positum [uel attornatum (fn. 43) ] in loco suo ad lucrandum uel perdendum.' The litigant was obliged to appear before the court in his own person if he wished to put another in his place. Otherwise he could only appoint an attorney if he had obtained a writ of the king for the purpose; and for that writ he had to shew some good reason, such as sickness or infirmity, or that he was engaged in the king's business. A woman frequently appointed her husband to be her attorney; a bishop commonly appointed one of his clerks, and an abbot one of his monks to act for him. (fn. 44) When the court had granted a concord the parties frequently appointed attorneys to attend for the purpose of receiving the chirograph. (fn. 45)

VI. SEISIN

There were few matters in early English law of greater importance than seisin. (fn. 46) Seisin means possession. The two words were equivalent and interchangeable in the time of Henry III, though they had become sharply distinguished by the end of the fifteenth century. A man in the earlier period might be seised of lands and tenements or of goods and chattels, of a carucate of land or of a plough. The man who was seised was the man in actual, physical, corporeal possession and enjoyment, he who, in the case of land, was set or sitting upon it. (fn. 47) We still speak of the sitting tenant. It was necessary moreover that he should be exploiting and enjoying it, taking the esplees (as the phrase was), reaping and gathering its crops.

There was a very clear distinction between possession or seisin on the one hand and ius or proprietary right on the other. The man who was seised was not necessarily the man who had the best right to be seised. He might be a usurper, an unjust possessor, with a thoroughly bad title. But if he was dispossessed 'unjustly and without a judgement,' iniuste et sine iudicio, that is without the authority of the court, he could recover possession, even against the rightful owner, by the assize of novel disseisin which Henry II instituted for the protection of possession. (fn. 48) The question as to which of the two had the greater right to the land was outside the scope of that assize. That question, if it was raised at all, could only be settled by the more expensive and less expeditious procedure of an action originated by writ of right. (fn. 49) The bias of early English law, it will be seen, was clearly and, at that time it would seem necessarily, on the side of the person in possession; indeed so pronounced was the bias that men came to think of possession as eleven points of the law.

A final concord, like an ancient charter of feoffment or a medieval will, but unlike a modern deed of conveyance or will, did not, at the time which we are considering, give seisin or possession; it did not actually convey land; it was not a dispositive instrument. No written document, no judgement of the king's court, however solemn, could transfer the possession of land from one person to another. It was necessary that there should be livery of seisin, that is delivery of possession, an actual ceremony performed on the land or within view of it, by which the grantor quitted, and the grantee took, possession. If it was a house that was to be conveyed, the grantor would perhaps put the hasp or the ring of the door into the grantee's hand; or, if it was land, he might deliver into his hand a sod or turf or a rod. Sometimes livery of seisin included a formal perambulation of the land, or even of the several pieces of which it consisted, made in the presence of witnesses, who could afterwards be called upon to testify to the fact of the transfer. The sod or turf, lifted up and solemnly delivered, was the land in miniature; and the rod was a very ancient symbol. They were sacramental signs, signa efficacia, which actually conveyed the land of which they were symbols. Already in the eighth century land was conveyed symbolically by turves in the south of England. It seems probable that on the continent, even before the Norman conquest, land could be conveyed by a written charter, which was lifted up from the earth in order that it might be solemnly delivered instead of a sod or other symbol. This process was called the lifting of the charter, leuatio cartae, and possibly the term to 'levy' (levare) a fine or final concord may be derived from that custom. It will be remembered that at the present day, when land may be conveyed by a deed, the deed is not only signed and sealed, but also 'delivered'.

Livery of seisin may be illustrated by the ceremony of induction to an ecclesiastical benefice. The bishop, after he has instituted a clergyman, by his mandate directs the archdeacon or other person to induct him. The inductor thereupon goes to the church and, taking the clergyman's hand, lays it upon the key or the ring of the church-door, and afterwards opens the door and puts the clergyman into the church, thus inducting him 'into the real, actual, and corporal possession of the church of A with all the rights, profits, and appurtenances thereto belonging'. The effect of induction is that the clergyman becomes fully seised of the temporalities of the church.

It was necessary that one of the two parties to a final concord should be seised of the land which was to be transferred; for how could A deliver possession to B unless he was himself in possession? and how could B receive possession if A had it not to give?