Final Concords of the County of Lincoln 1244-1272. Originally published by Lincol Record Society, Horncastle, 1920.
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XII. EXPLANATION OF CERTAIN TERMS
(1) Foreign Service: Utwara.
Few expressions are commoner in final concords than 'foreign (Lat. foris, outside) service.' (fn. 1) The term meant service due to some person other than the tenant's immediate lord. Thus on page 6, no. 17, Richard enfeoffs Roger of land at a rent of a pair of white gloves. But there is service due from the same land to A, the lord who enfeoffed Richard; and, in the concord whereby Richard and Roger make their bargain, this is called foreign service because it is a service which Roger has to render beyond the service which he owes to Richard, his immediate lord. The chief lords, who are so often mentioned, are generally the tenants who hold immediately of the king; but occasionally the term chief lord may mean any lord who is superior to the tenant's immediate lord.
Professor F. M. Stenton has kindly written the following valuable note on foreign service (fn. 2) and utwara for the purpose of this introduction:
The difficult phrase foreign service in its widest application includes any form of service which lies outside the relation created between feoffor and feoffee by the act of subinfeudation. If A grants to B a bovate of land at a rent of a shilling yearly, all service to the king or to other lords incumbent on this tenement while it was in A's hand is foreign from the standpoint of the new relationship established between A and B. Such burdens, therefore, as suit to the court of A's lord, communal burdens like the sheriff's aid or, in the twelfth century, the Danegeld, and service in the feudal host, may all legitimately be included under the foreign title. In the thirteenth century, however, military service, or rather the payments levied in respect of it, being the most important form of foreign service, are commonly intended by the phrase when it is used without qualification. Indeed, there are frequent traces of a usage by which foreign service means scutage, no less and no more. This may well have been inaccurate in strictness of law, but it was convenient. It would be going too far to say that foreign service always or nearly always bears this exclusive sense of scutage in final concords, but one can certainly say that this payment was foremost in the mind of a clerk who wrote forinsecis exceptis, or words to that effect.
Perhaps the best way of regarding the phrase is to consider it as a translation into feudal language of a native word which occurs once only in these concords, the Utwara. (fn. 3) This word, in the combination cyninges utwaru, is recorded already in the tenth century, when it certainly means service due to the king. Fundamentally this service seems at this early date to cover taxes, and this usage persists into the later part of the twelfth century. If any one in the time of Henry II spoke of four bovates ad utwaram he meant that the tenement in question, whatever its areal content, was rated to the Danegeld and cognate burdens at four bovates. Really, it might consist of one bovate or ten bovates or any other number of bovates. On the other hand, in the north of England the king's outward, as people there called it, certainly denoted military service, and this looks like an ancient usage, though there does not seem to be any definite pre-Conquest authority for it. The meaning of the word becomes more evident from the fact that in the twelfth century, as before the Conquest, the utwara was contrasted with the inwara. The inwara meant the service at which a holding was rated for the purposes of the lord of the estate of which it formed a part. If a piece of land was said to consist of 4 bovates ad inwaram, this meant that the tenant of this land would do to the lord such service as was expected according to local custom from a tenement of 4 bovates. If it was said to consist of 4 bovates ad utwaram, this meant that it paid geld according to this amount, and, at least in the north, provided military service such as was demanded, by custom again, from a holding of this size. Here, as in the case of foreign service, the distinctive force of the word is that of a service which goes outside the estate, and it is probable that in Lincolnshire and the northern shires the conception of the utwara was easily replaced by that of foreign service, the feudal service of this region being conditioned as to its incidence by the tenurial arrangements created in the Old English period.
The word foreign is also used in the concords in other connections. The foreign merchants at Barton (fn. 4) and the foreign men (homines forinseci) at Ruskington (fn. 5) are traders who come from outside those places to attend the markets. The foreign beasts (forinseca animalia) at Bucknall and Burreth, (fn. 6) like the averia aliena at Little Hale, (fn. 7) are beasts which belong to persons who are outside, or not parties to, the bargain recorded in the concord.
The word 'forinsec' is sometimes used instead of 'foreign' to translate the Latin forinsecus; but it is doubtful whether forinsec was used in former days except in legal treatises. In common speech men probably used the English word foreign, as it is still used in the District Probate Registry at Lincoln to describe wills of testators who were domiciled outside the county. In the present volume, therefore, it has been thought best to use the word 'foreign' rather than to speak of 'forinsec service', 'forinsec men,' 'forinsec beasts.'
(2) In service: in demesne. (fn. 8)
The case quoted above (fn. 9) will serve to illustrate the meaning of the terms 'in service,' 'in demesne.' Richard and Roger are both in a sense seised or possessed of the land. Roger's interest is the possession, by himself or his servants, of the actual soil; he occupies the land and sows and reaps it. He is described therefore as being seised in demesne. The interest of Richard is different. He is seised of a seigniory, the rights of a lord, a lordship, a dominium, of rents and services, fealty and homage, which are due from the land. He is said therefore to be seised, not in demesne, but in service. A too is seised in service.
For this term also we may revert to our case. The king has enfeoffed A, A has enfeoffed Richard, and Richard has enfeoffed Roger. A therefore is the chief lord, and Richard the mesne (medius) lord because he is intermediate between A and Roger. In this hierarchy of tenures Richard has a double character: he is A's tenant and Roger's lord. Until the Third Statute of Westminster, Quia Emplores, in 1290, restrained the practice of subinfeudation, there was in theory no limit to the number of mesne lords who might own seigniories of rents or services derived from a particular piece of land.
Actions against mesne lords are very common in the final concords of the thirteenth century. (fn. 10) In the case on page 24, no. 74, Roger the mesne lord has enfeoffed the abbot, and has evidently undertaken to perform the service due to Gilbert the chief lord. Gilbert, however, distrains the abbot, the tenant in demesne. The abbot's remedy is an action against Roger, the mesne lord, to compel him to perform the services which are due to Gilbert.
(4) Frank almoign.
It will be noticed that during the period covered by this volume a great deal of land was passing into the possession of the Church. This land was generally held of the donor by a spiritual service called frank almoign, free alms, libera elemosina. The service was indefinite in amount—a share in the prayers of the donee. When the spiritual service consisted of the performance of certain specific actions, the tenure was usually called, not frank almoign, but tenure by divine service. (fn. 11) This distinction, however, is probably not much older than the reign of Edward I. Thus in the interesting case on pages 145–146, although the service is definite, the land is said to be held in frank almoign.
The formula generally used in grants of land in frank almoign is 'in free, pure, and perpetual alms'; and often there are added the words 'free and quit of all secular service, custom, and exaction.' A gift in frank almoign generally implied that no secular service was due from the donee to the donor. But sometimes such a service was reserved. Something perhaps turned on the omission of the word 'pure'; and the final concords of the thirteenth century, like charters in an earlier age, afford instances of gifts in 'free and perpetual' alms where a temporal service is to be performed to the donor. (fn. 12)
Where a donor was a mesne lord, a grant in frank almoign did not necessarily release the donee from the obligation of performing the foreign service; but when nothing was said about its incidence, it probably fell upon the donor. In the case of scutage payable to the king, it seems to have been the practice not to distrain land in frank almoign, provided that the donor had other lands upon which the tax might be levied. Here again something perhaps turned on the omission of the word 'pure,' for we find gifts in 'free and perpetual alms' where the donee is made responsible for the foreign service. (fn. 13) In one case, (fn. 14) however, where the gift is made 'in pure and perpetual alms,' (fn. 15) a secular rent is reserved to the donor, and the donee is moreover to do the foreign service to the chief lords. (fn. 16)
(5) Frank marriage.
When a daughter married, she might be provided for by a gift of land in frank or free marriage, liberum maritagium. Such land was free from all service to the donor, who moreover did the foreign service, until the land had been thrice inherited by the heirs of the donee's body. When that degree had been passed, the tenant was bound to do homage to the donor's heir, and to do the foreign service. (fn. 17) If the issue of the daughter failed, the land reverted to the donor and his heirs. (fn. 18)
Besides land held by the tenure of frank marriage, final concords afford instances of marriage portions given with daughters. While such a gift might reserve a rent or service to the donor and his heirs, it might on the other hand carry equal or even greater advantages than a gift in frank marriage. (fn. 19)
(6) The Courtesy of England.
The subject of marriage-gifts leads naturally to a consideration of tenancy by the courtesy of England, (fn. 20) or, as it is otherwise called, tenancy by the law of England. This refers to the practice of English law which gave a husband a life-estate in the lands of his wife from the moment when a child capable of inheriting the land from the wife was born—'born and heard to cry within the four walls.' This life-estate endured even though the child died before the wife, or though the husband married a second time. (fn. 21)
A selion (Lat. selio, Anglo-French seilon, Old French seillon) was a strip of land in the great open fields which prevailed in England before the days of enclosures. Though selions varied in size, the typical selion was a furlong (i.e. a furrowlong) in length and a perch in breadth, measuring about a quarter of an acre. A man's selions lay scattered amongst his neighbour's strips in different parts of the two or three great fields into which the land of the vill was divided. When written in English the usual word for a strip is 'land,' (fn. 22) though 'selion' (fn. 23) is sometimes used, as it is the common word to-day in the Isle of Axholme, where a large part of the land is still unenclosed, and divided into strips. The word 'rigg' (fn. 24) (i.e. ridge) is also occasionally found.
A cultura was a group or parcel of contiguous selions lying side by side, so that the cultura, like the selions, was a furlong in length. The several culturac in a vill of course varied considerably in the quality of the soil; and therefore we find that a man's strips, instead of lying together in a compact block, lay scattered in the several culturae; and it was the general practice to assign the strips in the several culturae to the tenants in the same order. Thus William grants two bovates of land, which consist of selions lying scattered (particulatim) in the open fields of the vill, and they always lie next the land of Geoffrey. (fn. 25)
Cultura is a difficult word to translate. In the text it is generally rendered, though not very happily, 'a parcel of arable land,' the Latin word being generally added in brackets. 'Culture' and 'tillage,' words which were in use as early as the latter part of the sixteenth century, and are sometimes found in modern books, seem hardly satisfactory. The word which was used in Lincolnshire in common speech in the thirteenth century was probably 'wong,' about which Professor Stenton has kindly written the following note:
The word 'wong' is a curious example of a word, current at an early date in both East and West Scandinavia, becoming obsolete in the Scandinavian languages, but persisting in England, to which it must have been brought in the ninth century. It stands for the Old West Norse vangr, and the Old Danish vang, bearing the general sense of 'field.' In Scandinavia it survived in rhythmic formulas, doubtless, like most of their kind. of high antiquity. In England it may always be understood to mean a group of parallel strips in the open fields. There does not seem to be any instance of its employment in this sense in Scandinavia.
The word is still found in the reign of Elizabeth in terriers of glebe land: 'Parsonage wonge,' 'Toft Wood Wonnge.' (fn. 26) Other entries in the terriers give interesting particulars:
One wonge of xxxiiii long landes and iiii shorte landes conteyninge xii acres. In the said Estfeld one wange of xviii landes arrable with ii bauckes the one on the one sid and the other on the other syde perteyninge to the said wange. (fn. 27)
The commonest Elizabethan equivalent for cultura is 'furlong,' 'Short Wronglandes forlonge,' 'Ten Acre forlonge,' 'Miclinge Hedge forlonge. (fn. 28) Neither 'wong' nor 'furlong,' however, seems to be a quite satisfactory translation, since the one is a local word, and the other has been appropriated to another use. Perhaps 'shot' (Anglo-Saxon sceot = a division) is the best equivalent. (fn. 29) At any rate it is unambiguous; but it does not appear ever to have come into common use in Lincolnshire.
The word uilla has been here translated by 'vill,' as being free from ambiguity. 'Town' might have been the best equivalent in former days; but the name has now been appropriated by the larger centres of population. Of the fact that every village was a town we are reminded by the survival in our villages of some ancient names: the 'town-street, the 'town-end,' the 'town-pump,' and the 'town-crier,' the sound of whose voice has but lately died away. 'Village' is a possible translation, but it seems scarcely a suitable term to describe such places as Boston and Spalding. (fn. 30) 'Township' too, which it is the fashion now to use in the sense of a little town, is inadmissible because it is properly the equivalent of uillata, which means the people of the uilla regarded as a collective whole. (fn. 31)
The document printed on pages 334–5, which, however, in spite of the opening formula, 'Hec est finalis concordia,' is not a true final concord, affords an instance of two townships, or communities of townsmen, uillatae, being parties to an agreement: and we see that some of the leading townsmen on behalf of the rest pledged their faith to keep the concord, and affixed their seals to the instrument. The Registrum or cartulary of the Dean and Chapter of Lincoln contains two charters whereby four townsmen and the whole community (communitas) of the vill of Wellow in Nottinghamshire undertake for themselves, their heirs, and successors, who for the time being shall be of the same community, to maintain a chaplain in the chapel of Wellow which belongs to the mother church of Edwinstowe; and they, as a community (communiter), bind themselves by an oath, and affix to the charters the seal of their community (sigillum communitatis nostre). (fn. 32)