Preface

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Institute of Historical Research

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Author

Francis Collins (editor)

Year published

1887

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3-9

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'Preface', Feet of Fines of the Tudor period [Yorks]: part 1: 1486-1571 (1887), pp. III-IX. URL: http://british-history.ac.uk/report.aspx?compid=49616 Date accessed: 17 April 2014. Add to my bookshelf


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PREFACE.

At a time when the minds of landowners, lawyers, and reformers, both theoretical and practical, are exercised on the subject of Land Transfer; when some enthusiasts argue in support of a system of registration of title, and other persons equally enthusiastic contend for a registration of assurances, and yet a third set of persons content themselves with saying "Let well alone;" it may not be considered inopportune for the Council of the Yorkshire Archæological and Topographical Association to have selected for the second volume of the Record Series the first of a series of three volumes of Yorkshire Fines of the Tudor period. This decision of the Council may be thought none the less appropriate from the fact that Yorkshire is one of the two English counties which at the present time have a Registry of Assurances dating back to the reign of Queen Anne, and that in the case of Yorkshire a new Registry Act has recently been passed admittedly as an experiment, and with some idea of adopting a similar system for the whole of England. Now, whatever may be the advantages or disadvantages of a Register of Assurances in relation to a cheap and expeditious mode of Land Transfer, there is no doubt whatever that such a Register affords a fine field for the genealogist and local historian, and it is to be hoped that the Yorkshire Registers will receive attention in future volumes of the Record Series. But to return to the subject of the present volume, the collection of fines now in the Public Record Office, and extending from the time of Henry II. to the year 1834, is a splendid example of a system of registration of assurances. It dates from a period when the only other common mode of transferring freehold lands was by charter of feoffment, which did not possess the great advantage which a fine had of being a matter of record, and therefore always available as evidence when a feoffment might be lost or destroyed. Fines therefore were very generally used in former days as a means of transferring property, and from the many details which they give, both of genealogy and topography, and from the long period which they cover, they may be well said to be among the most valuable of all the public records.

Fines were abolished by the Statute 3 and 4, Will. IV., c. 74, from the 31st December, 1833, and more simple modes of assurance were substituted. They are therefore now not often met with in the investigation of the titles of freehold estates, and the study of this branch of the law of real property is gradually being abandoned to students of family history and topography. As the origin and nature of fines may possibly be comparatively unknown to some members of the Association, and as other members may be glad to have an opportunity of refreshing their memories on the subject, it has been thought desirable to preface this volume with a short account of the origin and nature of fines, chiefly taken from the valuable treatise on the subject in Cruise's "Digest of the Laws of England," to which those are referred who wish for further information than is here given. A fine then is understood by conveyancers to be a means of transferring property through the agency of an action or suit at law and it is defined by Cruise to be "an amicable agreement or composition of a suit, whether real or fictitious, between the demandant and tenant, with the consent of the judges, and enrolled among the records of the court where the suit is commenced, by which lands and tenements are transferred from one person to another; or any other settlement is made respecting them."

To effect this purpose of transfer the following plan was adopted: a suit was commenced concerning the lands intended to be conveyed, and when the writ was sued out, and the parties appeared in court, a composition of the suit was entered into, with the consent of the judges, whereby the lands in question were declared to be the right of one of the contending parties, and this agreement was enrolled among the records of the court.

Cruise says that it has been a favourite topic with our lawyers, to enlarge on the antiquity of fines. Some have insisted that they were coeval with the first rudiments of the common law. Others have contended that fines were well known in this kingdom before the Norman Conquest. There can, however, scarce remain a doubt but that fines were first introduced into England during the reign of King Stephen, or that of his immediate successor, King Henry II., and that we are indebted to Justinian's Code for this assurance.

A fine consisted of five parts. I. The original writ. II. The licentia concordandi. III. The concord. IV. The note. V. The foot, chirograph, or indenture.

When the parties had agreed to levy a fine, the person to whom the land was to be conveyed commenced a suit at law against the owner or tenant (who was also called the deforciant, as keeping the plaintiff out of possession) by suing out a writ of covenant against him, the foundation of which was a supposed agreement or covenant, that the tenant should convey the land to the plaintiff or demandant, on the breach of which the suit was brought.

In suing out the writ there was a fine due to the king, called the primer fine, the reason of which it is not necessary to explain.

The second part of a fine was the licentia concordandi; for as soon as the suit was commenced, the owner or deforciant, knowing himself to be in the wrong, was supposed to make overtures of accommodation to the demandant or plaintiff, who accepted them, but having given pledges to prosecute his suit, applied to the court, upon the return of the writ of covenant, for leave to make the matter up, which was readily granted, on payment of another fine.

This second fine was called the King's Silver, and sometimes the post fine, and was paid on obtaining the licentia concordandi. It was entered on the writ of covenant, and such entry ought to contain: I. The sum given for licence to compound. II. The party who pays it. III. The plea and between whom. IV. The land for which the fine is paid.

The third part of a fine was the concord or agreement entered into openly in the Court of Common Pleas, or before the Chief Justice of that court, or commissioners duly authorised for the purpose; which was the substance of the fine. (fn. 1) It was usually an acknowledgment from the deforciants, or those who kept the others out of possession, that the lands in question were the right of the demandants, otherwise called the plaintiffs, and from the acknowledgment or recognition of right thus made, the party who levied the fine was called the cognizor, and the person to whom it was levied, the cognizee.

The form of the concord was thus: "And the agreement is such, to wit, that the aforesaid A. (the deforciant in the original writ) hath acknowledged the aforesaid manors, lands, tenements, and hereditaments, with the appurtenances, to be the right of him the said B. (the plaintiff or demandant) and those he hath remised and quit claimed from him the said A. and his heirs to the aforesaid B. and his heirs for ever; and moreover the said A. hath granted, for himself and his heirs, that he will warrant to the aforesaid B. and his heirs, the aforesaid manor, &c., against him the said A. and his heirs for ever."

Suitors in the curia regis were at all times allowed to prosecute their causes by attorney, who was called responsalis ad lucrandum vel perdendum. Consequently, until the Statute de modo levandi fines, 18 Ed. I., Stat. 4, which put a stop to the practice, fines were frequently levied by attorney, and in the Formulare Anglicanum there are several records of fines, which appear to have been levied by attorney, the chirograph being worded in this manner:—Hac est finalis concordia facta, &c., inter Thomam de Preston, per Alexandrum Wallensem, positum loco suo ad lucrandum vel perdendum, et Ranulphum, &c.

Originally those persons who were desirous of levying fines acknowledged the concord in person in open court, and this practice was enjoined by the Statute de modo levandi fines above referred to: and until the abolition of fines persons occasionally appeared personally at the bar of the court and acknowledged in the same manner. In course of time, however, owing to the great inconvenience of compelling persons to travel from remote parts of the kingdom to Westminster for the purpose of acknowledgment, provision was made for the issue, in cases of need, of a Commission out of the Court of Chancery, called a writ of dedimus potestatem, directed to a certain number of Commissioners reciting the writ of covenant and authorising the Commissioners to take the acknowledgment of the parties, and directing them to certify the same, under their hands and seals. to the Court of Common Pleas. The judges of assize might, in their circuits, take the acknowledgment of fines, without any writ of dedimus potestatem, on account of the great confidence placed in their judgment and integrity.

The fourth part of a fine was the note, which was an abstract of the writ of covenant and concord, and was only a docquet taken by the chirographer, from which he drew up the indenture.

The fifth and last part of a fine was the foot, chirograph, or indenture, which included the whole matter, stating the parties, day, year, and place, and before whom it was acknowledged or levied. Of this there were indentures made and ingrossed at the chirographer's office, and delivered to the cognizor and cognizee, beginning with these words, "This is the final agreement," &c., and then stating the whole proceeding at length, thus the fine was completely levied.

In order to give persons, whose claims would otherwise be barred by a fine, an opportunity of asserting those claims, it was provided by various statutes, that fines which were to be valid against such persons should be read and proclaimed in open court a certain number of times, and the proclamations were endorsed on the foot of the fine and considered matters of record. As every fine was not proclaimed, it being in the election of the person levying the fine to have it proclaimed or not, fines are distinguished into fines at common law and fines with proclamations.

Fines are again divided into four sorts, the first of which is called a fine sur cognizance de droit come ceo qu' il a de son done. This was the best and surest kind of fine; for the deforciant acknowledged in court a former feoffment or gift in possession to have been made by him to the plaintiff, so that it was rather an acknowledgment of a former conveyance, than a conveyance originally made; for the deforciant acknowledged (cognoscit) the right to be in the plaintiff or cognizee, as that which he had de son done, of the proper gift of himself the cognizor. The form of this fine was—"And the agreement is such, to wit, that the aforesaid A. hath acknowledged the aforesaid manor, &c., to be the right of him, the said B., as that which the said B. hath of the gift of the aforesaid A.; and that he hath remised and quit claimed from him the said A. and his heirs, to the aforesaid B. and his heirs for ever."

The second sort of fine was called a fine sur cognizance de droit tantum, or upon acknowledgment of the right only, without the circumstance of a preceding gift by the cognizor. This species of fine was generally used to pass a reversionary interest, or it might be used by a tenant for life, to surrender his life estate to the person in remainder.

The form of this fine was—"And the agreement is such, to wit, that the aforesaid A. hath acknowledged the aforesaid tenements, &c., to be the right of the said B.; and he hath granted for himself and his heirs, that the aforesaid tenements which W. R. and M. his wife hold for the term of the life of G. of the inheritance of the said A. on the day on which this agreement was made, and which after the decease of him the said G., ought to revert to the said A. and his heirs, shall, after the decease of the said G., entirely remain to the said B. and his heirs for ever."

The third sort of fine was called a fine sur concessit; where the cognizor, in order to make an end of all disputes, though he acknowledged no precedent right or gift, granted to the cognizee an estate de novo, by way of supposed composition; which might be either an estate in fee, in tail, for life, or for years.

The form of this fine is—"And the agreement is such, to wit, that the aforesaid A. hath granted to the aforesaid B. the aforesaid tenements, &c., to hold for 61 years."

The fourth sort of fine was called a fine sur done, grant, and render, which is a double fine, comprehending the fine sur cognizance de droit come ceo, &c., and the fine sur concessit. It was used to create particular limitations of estates; and the cognizee, after the right was acknowledged in him, rendered or granted back to the cognizor some other estate in the lands.

The form of this fine is—" And the agreement is such, to wit, that the aforesaid A. hath acknowledged the aforesaid tenements to be the right of him the said B. as those which the said B. hath of the gift of the aforesaid A. And those he hath remised and quit claimed from himself the said A. and his heirs for ever (warranty from the cognizor); and for this acknowledgment, remise, quit claim, warranty, fine, and agreement, the said B. hath granted to the said A. the aforesaid tenements, &c. And this he hath rendered to him in the same court, to hold the said tenements to the said A. and the heirs of his body."

It seems unnecessary to state here what persons were capable and who were incapable of levying a fine, except that in general, all persons of full age and of sufficient understanding, might levy fines of those lands in which they had any estate or freehold, either by right or by wrong. A fine might be levied of every species of real property.—Cruise's "Digest," Vol. V., chapters 5 and 6.

It only now remains to be said that the Council are indebted to Francis Collins, M.D., for the transcript of the Tudor Fines, and also for the editing and index. All names, both of persons and places, are given verbatim et literatim. It has been thought much better to adopt this course, than to attempt any so called corrections or even suggestions, which at best could only be partial and doubtful.

Footnotes

1 For the courts in which fines could be levied, and as to the Courts of the Counties Palatine of Lancaster, Chester, and Durham, the Isle of Ely, &c., &c., see Cruise's "Digest." Vol. V.. chap. 4. It must be borne in mind that part of Yorkshire was under the jurisdiction of the Bishopric of Durham. As to the Durham Palatine Records. see Thomas's "Handbook to the Public Records," p. 334.