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  • Feature of the month: No.4 September 2009

Feature of the month: No.4 September 2009

'Giving', 'Granting', and 'Confirming': The Problem of Dispositive Verbs in Twelfth- and Thirteenth-Century Scottish Charters: Part II

Dr John Reuben Davies, PoMS Research-Assistant

'Confirming' in Scottish charters

We have already seen that it is confusing to call the bestowal of property a 'grant' when the main verb being used is 'to give'. In the same way, it makes no sense to call an actum a 'confirmation' when the process does not employ the verb confirmare, and the principal verb is one of giving.

In most charters, confirmare describes what the physical document does in relation to the transaction (hac presenti carta mea confirmasse, '[I have] confirmed by this my present charter'): the document is the means of confirming, establishing, or underpinning the action in a tangible way. But sometimes, in a few earlier charters, confirmare may be used of a renewal of a right or land already held. The usage settles, however, towards the middle of the twelfth century. Some aspects of the employment of confirmare and traditional scholarly use of 'confirmation' as a type of transaction are set out below.

4. The Charters of King David I, ed. by G. W. S. Barrow (Woodbridge, 1999), no. 24.

David I 'Confirms to St Andrew's Priory, Northampton'. 1124×1131. Original.

Sciatis me concessisse et confirmasse monachis ecclesie sancti Andree de Norh't [ut ubicumque habent decimas] dominii [mei plenarie] eas habeant […] Confirmo etiam eis quicquid habent in uilla de Scaldeford […] Concedo etiam eis ut apud Extonam terram illam que [uocatur Wiliges frangant et seminent et nullus eos inde inquie]tare presumat.

Know that I have granted and confirmed to the monks of Northampton that wherever they have teinds of my demesne they should fully have them … I also confirm to them whatever they have in the villa of Scalford … I also grant to them that at Eaton they may plough and sow the land which is called Wiliges and no one should presume to disturb them thereupon.

This is a grant of something already held; it is not clear that confirmo is being used in a technical sense; it is almost certainly not being used in the sense that it is used later on. The point to be made is where the burden of the meaning falls. The king is granting and confirming something that is already possessed; he then goes on to 'grant' that they may cultivate a particular area of land – he is giving them permission.

5. The Acts of William I, King of Scots, 1165–1214, ed. by G. W. S. Barrow, with W. W. Scott, Regesta Regum Scottorum, ii (Edinburgh, 1971), no. 82

William I 'Confirms to Melrose Abbey the land of Ringwood granted by Osulf son of Uhtred ad his son Uhtred'. Lanark, 1165×23 September, 1168. Original.

Sciant tam posteri quam presentes, me concessisse et hac mea carta confirmasse ecclesie Sancte Marie de Mailros et monachis ibidem Deo seruientibus donationem quam Osulfus filius Uctredi et Uctredus filius eius contulerunt eidem Ecclesie de terra Ringwde […] sicut liberius et quietius cartae eorum eis testantur, et carta regis Malcolmi fratris mei concedit et affirmat.

Both those that are to come and those present should know that I have granted, and by this my charter have confirmed, to the church of St Mary at Melrose and to the monks serving God there the donation which Osulf, Uhtred's son, and Uhtred, his son, conferred to that church, of the land of Ringwood … just as freely and quietly as their charter to them bears witness, and the charter of King Malcolm, my brother, granted and affirms.

Barrow described this document as 'confirming' the land of Ringwood; whereas, in fact, what it does is to 'grant' or 'license' a 'donation' made by one of his men; the donation in question is of the land of Ringwood. The last clause is significant: the charter of King Malcolm 'granted' (perfect tense) and 'affirms' (present tense). This appears to tell us that the charter did the granting (which is interesting in itself), and that it continues to corroborate that action. This tells us more explicitly what the dispositive clause has already said, 'and by this my charter I have confirmed'. The confirming nature of the physical document is emphasised in the next example, which though unusual is nevertheless instructive.

6. Regesta Regum Scottorum, ii, no. 94.

William I 'Grants to May Priory liberty to sell and buy'. Edinburgh. 24 Dec. 1165×1171.

Sciatis me dedisse et sigillo meo confirmasse priori de Mai et monachis ibidem seruientibus Deo licenciam et liberam potestatem uendendi et emendi

Know that I have given, and by my seal have confirmed, to the prior of May and the monks serving God there permission and free authority to sell and buy

Here there is a peculiarity in the phrase, et sigillo meo confirmasse, which is to be compared with the usual refrain, et hac mea carta confirmasse. This switching from charter to seal is an important commentary on the verb confirmo in these contexts; for it shows that the confirming in question is being done by the physical object and does not directly relate to the dispositive action. The point of this phrase surely relates to that other formula found in the licensing or re-affirmation of gifts, sicut carta talis testatur, 'just as the charter of so-and-so bears witness'.

By the reign of Alexander III, usage has stabilised.

7. Registrum de Dunfermelyn [ed. by Cosmo Innes], (Edinburgh, 1842), no. 81.

Alexander III to Dunfermline Abbey; general grant of gifts and liberties, 10 Mar. 1277.

et uiginti acras terre et unum toftum in Dunfermelyn quas Walterus dapifer dedit concessione aui mei die sepulture predicti Regis Malcolmi

and 20 acres of land and a toft in Dunfermline, which Walter the Steward gave by the grant of my grandfather [King William] on the day of the burial of King Malcolm.

Here we see the king licensing or granting what has been given by one of his men; we should also note that King William's action is described in the text of the charter as concessio, a 'grant', not a 'confirmation'.

8. Chartulary of the Abbey of Lindores, 1195–1479, ed. by John Dowden (Edinburgh, 1903), no. 121.

Alexander III to Lindores Abbey. (Probably near beginning of reign.)

Sciant nos concessisse et hac carta nostra confirmasse […] concessionem illam quam […] pater noster fecit eisdem, uidelicet, ut habeant et teneant, in liberam, puram et perpetuam elemosinam, omnes terras suas quas habuerant et tenuerant a prima fundacione domus sue de Lundores

Know that we have granted, and by this our charter have confirmed … the grant that … our father made to them, namely, that they should have and hold, in free, pure and perpetual alms, all their lands that they had had and held from the original foundation of their house at Lindores.

Here the king licenses a 'grant' (concessio) made by his father. This is more evidence that what has traditionally been termed a 'confirmation' was thought of by the king's clerks (if not English lawyers) as a 'grant'.

9. Liber Sancte Marie de Melros [ed. by Cosmo Innes], 2 vols (Edinburgh, 1837), i, no. 326.

Alexander III to Melrose Abbey. 14 Apr. 1266.

Sciatis nos concessisse et hac carta nostra confirmasse concessionem et confirmacionem illam quam Alexander Senescallus Scocie fecit Deo et Ecclesie Sancte Marie de Melros […] super donacione illa quam Ricardus le Waleys tenens ipsius Alexandri fecit eisdem monachis

Know that we have granted, and by this our charter have confirmed, the grant and confirmation that Alexander, Steward of Scotland, had made to God and the church of St Mary at Melrose … concerning the donation that Richard le Waleys, tenant of Alexander himself, made to the same monks

This charter contains an exposition of the full hierarchy of lordship and terminology. One might go so far as to say that it is a glimpse of feudalism in action. The king licenses (or 'grants') the grant that Alexander, Steward of Scotland, has made to Melrose Abbey, of the donation that Richard le Waleys, tenant of Alexander (the Steward), made to them of his land of Barmuir (Tarbolton, Ayrshire) and Godenech. The king, as chief lord, has allowed the 'grant' made by Alexander Steward; Alexander Stewart in turn has 'granted' or allowed the donation that has been made by Richard le Waleys, who is explicitly described as Alexander Stewart's tenant. We should notice that the king has granted the 'grant and confirmation' that Alexander Stewart had made: it seems that (as no. 5, above, suggests), Alexander Stewart's 'grant' is the transaction, and that his 'confirmation' is the charter by which he made the grant.

We are now in a position where we can understand more clearly how the Latin terminology of Scottish charters relates to the mechanics of the transactions which they describe. Yet there are still some apparent and perplexing inconsistencies in the use of dispositive verbs in both Scottish and Anglo-Norman charters, especially in relation to Professor Richard Sharpe's three last types of charter, (3) licensing of gift of land by tenant, (4) reaffirmation to tenant of his holding land as under the king's predecessor, (5) gift of succession to land held by antecessor (see Feature of the Month for July 09). These will be considered in the next part of this article.

To be continued.


Feature of the Month