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  • Feature of the month: No.5 October 2009

Feature of the month: No.5 October 2009

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

Dr John Reuben Davies, PoMS Research-Assistant

Some students of the medieval charter have perceived inconsistencies in the use of the dispositive verbs dare and concedere ('to give' and 'to grant', respectively), both in Scottish and in Anglo-Norman charters. This is especially so in the three types of charter which have traditionally come under the heading of 'Confirmation', namely, (a) the licensing by a lord of a gift of land made by a tenant, (b) the reaffirmation to a tenant of his holding of land as under the lord's predecessor, and thirdly, (c) the gift of succession to land held by the beneficiary's antecessor.

John Hudson was aware of apparently inconsistent usage in Scottish charters, in an essay on 'Legal Aspects of Scottish Charter Diplomatic'. 1 Hudson merely noted a perceived inconsistency in the use of dare in 'confirmations'. Keith Stringer, meanwhile (who has led the way in this issue over the last twenty-five years), had already approached this question in an essay on 'The Charters of David, Earl of Huntingdon'; here he sought to supply an explanation for the apparently inconsistent language of 'giving' and 'granting' in Scottish charters. 2

Stringer took the example of the following charter to make a point about the use of the verb dare, 'to give'. 3

Dauid frater regis Scottorum … Sciant presentes et futuri me dedisse et concessisse et hac carta mea confirmasse Gileberto nepoti episcopi Katenessis Monorgrun … tenendam sibi et heredibus suis de me et heredibus meis in feudo et hereditate …

David, brother of the king of Scots … Those present and those to come should know that I have given and granted, and by this my charter have confirmed, to Gilbert, nephew of the bishop of Caithness, Monorgan, for him and his heirs to hold of me and my heirs in feu and heritage …

He saw the employment of dare in this case as a demonstration of the strength of the lord in his own court. In this particular charter, he interpreted the formula Sciant presentes et futuri me dedisse et concessisse, as Earl David 'graciously granting' Monorgan to Gilbert, whose father had earlier held it. He went on to suggest that this strength of the lord in his own court was also exemplified by the fact that whenever a tenant alienated property, the earl's express approval was required in order to make the gift valid. So, in Earl David's English lands, if earlier grants were to be honoured, the normal contemporary practice was to issue charters of confirmation, but – explained Stringer – the notion of a lord's 'discretionary power' was occasionally emphasised by expediting charters in the form proper to new gifts – in other words, by using the language of 'giving' with the verb dare. 4 Stringer concluded, 5

[Earl David] could demonstrate his authority by 'granting' [i.e. 'giving'] rather than confirming earlier gifts – the use of dedisse indicating a strong control over the drafting and thus the involvement of household clerks.

In this way, Stringer has put the use of dare in 'confirmations' (that is, both the licensing of gifts by tenants, and the renewal of gifts made by his predecessors or the gift of succession to land held by an antecessor) down to 'strong control over the drafting' of such charters. What Stringer seems to have been thinking of is a kind of discretionary assertion of the strength of his lordship on the part of the grantor.

There may, however, be another explanation.

'Giving' and Warranty

In his Maitland Lectures of 1972, S. F. C. Milsom recognised that the verb concedere fails in charters of the thirteenth century to carry warranty. 6 This position is borne out in plea roll cases about dare and concedere cited by Milsom. 7

'Warranty' may be defined as an obligation, owed to the tenant of certain land, to defend him in his possession of that land against all men. This obligation to warrant (or guarantee) was primarily, therefore, an obligation to come into Court, if called upon ('vouched') by the tenant, in order to defend some action brought against him for the possession of that land. 8

Obligation to warrant could be stated explicitly in an express clause of warranty (know as a 'warrandice' clause in the Scottish context), as it usually came to be in English documents of the thirteenth century; or it could come about by implication. Such implicit duty to warrant is the concept which might come to our aid in explaining the perceived inconsistencies in the employment of dispositive verbs in Scottish charters of the twelfth century in particular.

Such a concept has, in fact, been recognised by Geoffrey Barrow: 9

It seems to have been uncommon [he has said] for the king to state explicitly that he has granted his warrandice to a beneficiary …

Stringer too has recognized the idea of implicit warranty. 10 But neither Barrow nor Stringer appears to have proposed that there might have been a link between implicit warranty and dispositive verbs.

S. J. Bailey set out a number of cases in which the obligation to warrant could be implied in a charter; 11 but 'the most celebrated instance of warranties thus arising by implication … turns upon the word dedi'. 12 For Glanvill (a twelfth-century commentator on English law) the obligation to warrant fell to the lord if he were the donor. 13 The position was elucidated by 'Bracton' (a thirteenth-century commentator on English law): 14

It is clear that a warranty lies for the tenant with respect to all charters of simple gift, and that donors and their heirs are bound to warrant if they are vouched at a suitable time and in the proper way, with appropriate procedure […] If the charter is one of confirmation no warranty follows thereon, unless it also contains the gift, as where it is said, 'I give and confirm to such a one and his heirs, or to whom he wishes to give, assign, sell or devise it, so much land etc.' Such charter suffices for warranty whether or not there was an earlier charter of gift.

The idea that dare carried implicit warranty, though codified by commentators on the English law in the late twelfth and thirteenth centuries, seems to be borne out by the evidence of usage in Scottish charters, and provides a tidy explanation of the previously perceived inconsistency in the dispositive formulae of Scottish 'charters of confirmation'.

John Hudson saw that in explicit warranty clauses, obligation rested on the grantor and his heirs, but in his study of the legal aspects of Scottish charter diplomatic made no connection between donor (as opposed to grantor) and implicit obligations of warranty. 15 Hudson remarked that in certain Scottish charters, 'the absence of dare is the main evidence that the grants recorded were not new gifts'. 16 He went on to say:

Confirmations, both of predecessors' gifts and of those by other donors, normally used concedere and confirmare. [Here he meant renewals and confirmations.]

He then, however, pointed to some anomalies; the charters that we are now going to look at are those identified by Hudson. 17

The Donor as Warrantor

Lawrie, Early Scottish Charters, no. XXXI

'Confirmation by King Alexander I, to the monks of St Cuthbert, circa A.D. 1118'. (Original)

Sciatis quod ego dono Deo et Sancto Cuthberto domino meo et monachis eius, omnia que habebant tam in terris quam in aquis die qua frater meus Rex Eadgarus vivus et mortuus fuit, ita libera et quieta cum omnibus consuetudinibus sicut monachi predicti illo eodem die melius et quietius habuerunt illam eandem terram et nominatim illam terram que iacet inter Horeuoredane et Cnapedane sicut breve fratris mei Eadgari eis testatur.

Know that I bestow to God, and to Saint Cuthbert my lord, and to his monks, everything they used to have, both in lands and in waters, on the day that my brother King Edgar was alive and dead; as free and quiet, with all customs, as the aforesaid monks the better and more quietly had that same land on that same day; and specifically that land which lies between Horndean and Knapdene, as the charter of my brother bears witness.

Here, King Alexander takes on the relationship and obligation of donor with respect to the brethren of Durham Cathedral Priory, thereby re-affirming the terms of his immediate predecessor's charter, to which this charter makes reference (Lawrie, no. XXII). The specific mention of the land between Horndean and Knapdene (identified by name as Fishwick [Berwickshire] in King Edgar's original charter) may suggest that there has been a break in tenure; but would that explain the more general terms of the first half of the charter? A charter of David I, before his succession (Barrow, Charters of David I, no. 11) shows him exercising jurisdiction in this specific part of Tweeddale during the reign of King Alexander I. There has been a dispute between the monks of Durham and the earl's drengs of Horndean over the land of Horndean; by reference to the charter of King Edgar, which is described as donum, a 'gift', Earl David 'wishes and grants' (uolo et concedo) that the monks 'should have' (habeant) the land. When David had become king, a charter was executed in his name, which includes Fishwick among a list of lands 'granted and given' to God, St Cuthbert, and his monks 'in alms'. Barrow was in two minds whether this actum was authentic; but whatever the case, the language helps us to understand the needs of the beneficiary. 18 In the first of two dispositive clauses, King David is said to have 'granted and given' (concessisse et dedisse) various lands, including Fiswic (Fishwick); having done this, he then, in the indicative present tense, 'gives and grants' (do et concedo) the lands just enumerated 'with sake and soke, toll and team, and infangthief'; the charter then refers to itself (or to the transaction) as 'this donation' (donatio). By the end, we are quite clear that this is a charter of gift, with King David identified as the donor. Some time before 1141 × 1144, Fishwick had passed into the control of Durham's daughter house at Coldingham, and had in turn been conveyed to a priest called Swain; in due course, Swain 'quitclaimed' and 'gave back' (reddidisse) Fishwick to the monks of Coldingham; the details of this last transaction we glean from a charter of Earl Henry, which gives notice that it occurred in his presence (Charters of David I, no. 122). In 1165 × 1174, King William 'granted' (concessisse) Fishwick to Coldingham, which Swain the priest, 'in the presence of Earl Henry', had 'given back to them and quitclaimed' (RRS, ii, no. 73). Here, then, the king has granted, 'and by [his] charter confirmed' (et hac carta mea confirmasse), land which someone else has given (or in this case, given back); in other words, the king has put his authority behind, and provided written confirmation for, a transaction in which someone else has done the giving. By 'granting' the transaction, the king is being looked to for his authority as lord, but he no longer has the role of donor, because the property in question has been definitively alienated to the monks of St Cuthbert. The king's charter is a means of reinforcing the quitclaim and restoration of lands by Swain.

Barrow, Charters of David I, no. 65

'Henry son of the king of Scotland grants to the monks of St Cuthbert Swinton'. 1136×1141. (Original)

Sciatis me dedisse et concessisse monachis sancti Cuthberti Swintun […] sicut carta bone memorie Ædgari regis auunculi mei testatur, et sicut pater meus eis concessit et reddidit […]

Know that I have given and granted to the monks of Saint Cuthbert, Swinton … as the charter of my uncle, King Edgar of good memory, bears witness, and as my father granted and restored to them …

We have the charter which records King Edgar's gift of Swinton to the monks of St Cuthbert, when he offered it as an endowment (obtuli in dotem) on the altar of St Mary's church, Coldingham, and bestowed (donaui) the whole uilla (Lawrie, no. XX). King Alexander I subsequently 'gives and grants' (dono et concedo) Swinton, under the same terms to which the charter of King Edgar bears witness (Lawrie, no. XXVI). David, as earl (and therefore during the reign of Alexander I, probably 1116 × 1118), 'bestows and grants' (dono et concedo) Swinton to the monks of St Cuthbert in the same terms as Edgar's charter, quoting its dispositive language (Charters of David I, no. 10). About twenty years later, David, as king, together with his son, Henry, then 'gave and granted' (dedi et concessi) Swinton to one of his knights, Ernulf of Morwick, to be held by him and his heir in feu, as freely and honourably as any of the king's barons holds, and to hold of St Cuthbert and the king, rendering 40s. to the monks of Durham (Charters of David I, no. 53). Finally, Henry, the king's son, gives and grants Swinton to St Cuthbert (Charters of David I, no. 65). This charter tells us some important information about the previous history of the property; it refers to his father's actum in terms of 'granting' (concessit) and 'restoring'/'giving back' (reddidit); was there an interruption of tenure; is this a reference to Earl David's gift as subsequent to King Alexander's; or is the verb simply to be understood as 'he gave again'? Whatever the case, Henry has 'given and granted', even though his father, still alive, has 'given' the place before. Perhaps Henry 'gives', because for the first time Swinton is to be held in perpetual alms (in perpetuum elemosinam); yet this does not appear to be the case, as the perpetual alms have been 'granted' (concessi) in a separate clause. Rather, what is happening here is that the status and obligations of donor are being taken on by Henry. In future, if the monks of St Cuthbert at Durham need to invoke the warranty of their donor, they are to look to Henry first, rather than to King David.

Charters of David I, no. 84

'Henry, son of the king of Scotland, confirms to Tynemouth Priory everything it had on the day of King Henry I's death'. 1139 ×1140. St Albans Abbey Cartulary.

Sciatis me dedisse et concessisse deo et Sancte Marie et Sancto Oswino et monachis de Tynemutha tenere libere et quiete et honorifice omnia que tenerunt die qua Henricus rex Angl' fuit uiuus et mortuus …

Know me to have given and granted to God and to Saint Mary and Saint Oswin and to the monks of Tynemouth to hold freely and quietly and honourably everything that they held on the day Henry, king of the English, was alive and dead…

Again, in this case, Earl Henry could be understood to be taking upon himself the obligations of a donor; this perhaps in the context of acquiring the earldom of Northumberland (although he is not designated as such in the charter).

Melrose Liber, i, no. 41 (Original) 19

Gervase Avenel renews the gift of Eskdale made by his father, Robert, to Melrose Abbey. (1185 × 1192)

Sciatis me concessisse et hac mea carta confirmasse deo et ecclesie sancte Marie de Meylros et monachis ibidem deo seruientibus donacionem patris mei scilicet terram de Eschedale quam idem pater meus illis donauit in perpetua elemosinam et carta sua confirmauit, annuente piissimo Rege Melcolmo prius, et propterea illustri Rege Willelmo fratre eius, scilicet Tumloher et Weidkerroc, in liberam et puram et perpetuam elemosinam, pro anima gloriosi regis, Dauid, qui eandem terram donauit eidem patri meo pro seruicio suo, et pro anima comitis Henrici, et predicti Melcolmi regis, et pro anima predicti Willelmi regis Scottorum, domini mei, et omnium successorum meorum. Hanc itaque terram, scilicet Thumloher et Weidkerroc, concessi predictis monachis, et dedi et confirmaui, et hac mea carta incartaui, per has diuisas […] Et siquis forte aliquando hanc predictam terram calumpniari uoluerit, ego et heredes mei omni claumpnianti respondebimus et sufficienter defendemus eam predictis monachis et warantizabimus […]

Know that I have granted and by this my charter have confirmed to God and to the church of Saint Mary at Melrose and to the monks serving God there the donation of my father, to wit, the land of Eskdale, which my same father bestowed to them in perpetual alms and by his charter confirmed, with the assent of the most blessed King Malcolm in the first place, and then of the illustrious King William his brother, to wit, Tumloher and Weidkerroc, in free and pure and perpetual alms, for the soul of the glorious king, David, who bestowed the same land to my same father for his service, and for the soul of Earl Henry, and of the aforesaid King Malcolm, and for the soul of the aforesaid William, king of the Scots, my lord, and of all my successors. This land therefore, to wit, Thumloher and Weidkerroc, I have granted to the aforesaid monks, and have given and confirmed, and by this my charter have embodied in a charter, by these boundaries … and if by chance anyone should wish to claim this aforesaid land, I and my heirs shall respond to every claimant and sufficiently defend and warrant it to the aforesaid monks …

Hudson commented that in this charter, 'usage [of dare] is inconsistent'. 20 What appears to be happening in this text is that the grantor, Gervase Avenel, first announces that he has granted to Melrose his father's donation to them, that is the land of Eskdale, which had been bestowed to them with the agreement of King Malcolm, and later King William. He thereby establishes the history of the conveyance of the property, and grants that it continue to be held by the monks. He then goes on to say that on account of all this (itaque) he has granted the land to the monks, and he has given and confirmed it, as well as embodying it in a charter. Finally there is a warranty clause. The single use of dare establishes Gervase as the donor, and the warranty clause makes explicit his status, and that of his heirs, as warrantors of this donation of land against claimants. The use of dare is therefore quite explicable.

Melrose Liber, i, no. 44 (Original).

Florence, bishop-elect of Glasgow, renews gift made by Bishop Jocelin to Melrose Abbey (1202 × 1207).

Florencius Dei gracia Glasguensis electus … Sciatis nos dedisse et concessisse et hac carta nostra confirmasse Deo et ecclesie sancte Marie de Melros et monachis ibidem Deo seruientibus in liberam et perpetuam elemosinam illud tophtum in burgo de Glasgu, quod Ranulfus de Hadintune edificauit in prima edificacione burgi ad opus domus de Melros, ita plenarie sicut illud edificauit et tenuit, prout etiam prefatum tophtum predictis monachis datum carta predecessoris nostri pie memorie, Iocelini, episcopi Glasguensis testatur.

Florence, by the grace of God, elect of Glasgow … Know that we have given and granted and by this our charter to have confirmed to God and to the church of Saint Mary at Melrose and to the monks serving God there, in free and perpetual alms, that toft in the burgh of Glasgow, which Ranulf of Haddington built at the original construction of the burgh, for the use of the house of Melrose, as fully as it was built and held, just as the charter of our predecessor of blessed memory, Jocelin, bishop of Glasgow, bears witness that the aforesaid toft was given to the aforesaid monks. Wherefore we wish that the abovementioned monks of Melrose should hold and possess the aforesaid toft as freely and quietly as they more freely and more quietly hold and possess any alms.

Melrose Liber, i, no. 45 (Original).

Walter, bishop of Glasgow, renews gift made by Bishop Jocelin to Melrose Abbey (1208 ×1218).

Walterus Dei gracia episcopus Glasguensis … Sciatis nos dedisse et concessisse et hac carta nostra confirmasse Deo et ecclesie sancte Marie de Melross et monachis ibidem Deo seruientibus in liberam et perpetuam elemosinam illud tophtum in burgo de Glasgu, quod Ranulfus de Hadintune edificauit in prima edificacione burgi ad opus domus de Melross, ita plenarie sicut illud edificauit et tenuit, prout etiam prefatum tophtum predictis monachis datum carta predecessoris nostri pie momorie, Iocelini, episcopi Glasguensis testatur.

Walter by the grace of God bishop of Glasgow … Know that we have given and granted and by this charter to have confirmed to God and to the church of Saint Mary at Melrose and to the monks serving God there, in free and perpetual alms, that toft in the burgh of Glasgow, which Ranulf of Haddington built at the original construction of the burgh for the use of the house of Melrose, as fully as it was built and held, just as the charter of our predecessor of blessed memory, Jocelin, bishop of Glasgow, bears witness that the aforesaid toft was given to the aforesaid monks.

In both these foregoing charters, Florence, bishop-elect of Glasgow, and Walter, bishop of Glasgow, have given, granted, and by means of their charter confirmed the same toft that was given to Melrose by their predecessor, Bishop Jocelin. In this way, they not only allow and recognise the continued possession of this toft by Melrose, they also identify themselves as the donors, and thus warrant the monks' possession of the property.

Lawrie, Early Scottish Charters, no. CCLXXI

'Charter by Earl Malcolm, son of Earl Henry, to Brinkburn, a.d. 1153.'

Malcolm' de Gwarenne comes de Northumbriae, Iustitiariis suis et baronibus uicecomitibus et ministris et omnibus probis hominibus tam laicis quam clericis totius Northumberland salutem. Sciatis me dedisse et concessisse Deo et Sanctae Mariae et ecclesiae Sancti Petri de Brinkeburne et canonicis ibidem Deo seruientibus et seruituris pro anima Henrici comitis dilectissimi patris mei necnon etiam et pro anima mea et animabus antecessorum meorum eandem salinam quam pater meus Henricus comes apud Werkewurthe in tempore uitae sauae eis in perpetuam elemosinam dedit et concessit. Concedo etiam et confirmo praedictis fratribus totam donationem Rogeri Bertram scilicet locum qui dicitur Brinkeburne cum omnibus pertinentiis suis.

Malcolm de Warenne, earl of Northumbria, to his justiciars and barons, sheriffs and officials, and to all worthy men, laymen as well as clergy, of the whole of Northumberland, greeting. Know me to have given and granted to God and to Saint Mary and to the church of Saint Peter at Brinkburn and to the canons serving God there, now and in the future, for the soul of Earl Henry, my beloved father, as well as for my soul and the souls of my ancestors, the same saltpan that my father, Earl Henry, in his lifetime gave and granted to them at Warkworth in perpetual alms. I also grant and confirm to the aforesaid brothers the whole donation of Roger Bertram, to wit, the place called Brinkburn with all its pertinents.

Here, Malcolm, as earl of Northumbria, has given and granted a saltpan that had been given in the past by his father. By giving this saltpan, as well as granting it, he warrants the property to the canons of Brinkburn. He goes on to grant and confirm the donation made by Roger Bertram of Brinkburn itself; he does not 'give' in this instance, he rather 'grants' and 'confirms', allowing the canons to continue in possession of this property, and implicitly acknowledging that he, as Roger's lord, has no claim on the property himself. At the same time, it is Roger Bertram, as donor, upon whom the responsibility for warranting his donation falls.

RRS, ii, no. 91

William I 'Confirms to Newbattle the grant made by his mother the Countess Ada of Bearford' (1165×1174). Newbattle Registrum.

Sciant presentes et futuri me concessisse et hac mea carta confirmasse in liberam et quietam et perpetuam elemosinam Deo et ecclesie Sancte Marie de Neubotle et monachis ibidem Deo seruientibus donaciones quas Ada comitissa mater mea fecit eis de Berefor […] Mater autem mea et heredes sui contra omnes calumpniantes predictis monachis terras illas debent warantizare, sicut carta ipsius matris mee testatur et confirmat

Those present and to come should know me to have granted and by this my charter to have confirmed in free and quiet and perpetual alms to God and to the church of Saint Mary at Newbattle and to the monks serving God there, the donations that my mother, Countess Ada, made to them of Bearford … And my mother and her heirs should warrant to the aforesaid monks those lands against all claimants, just as the charter of my mother herself bears witness and confirms

In this case, King William grants the donations made by his mother, in the usual fashion, but then requires her (and her heirs), as donor, to warrant them. And so, again, we see the obligations of warranty tied to the donor.

Conclusions

In the foregoing examples, the charters where an explicit clause of warranty is present help to inform those where warranty is implicit. The most straightforward explanation for the otherwise apparently random inclusion of dare in charters of confirmation, or its lack of inclusion in apparently original grants, is that the verb, by identifying the subject as donor, carried with it obligations of warranty. 21

In each of these cases we must pay attention to what the charters are telling us in the light of what we might be able to deduce about legal practice. Rather than inferring that, say, Earl David, was demonstrating his authority by 'giving' rather than 'confirming' earlier gifts, we might instead ask what the dispositive verbs are telling us more explicitly about their subject. When one 'gives' (do) or 'bestows' (dono), one is identifying oneself as the Donor of a gift (donum or donatio): this is not the rhetoric of power, but exact legal terminology, stated for the benefit of the beneficiary; it is the donee's right in relation to the donor which is being expressed, not vice-versa. In using the verb, dare, a benefactor identified himself as a Donor, and in this way took upon himself a particular obligation in relation to his beneficiary.

 

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