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?