Final Concords For Lancashire, Part 1, 1189-1307. Originally published by Record Society of Lancashire and Cheshire, Edinburgh, 1899.
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What is a Final Concord, or Fine? It is a legal instrument, by which lands were conveyed or transferred, in the form of a compromise or agreement made between two parties, who had been litigating their rights in the King's Court. Before the commencement of this class of record, a charter of feoffment was practically the only written instrument by which lands or other hereditable estates were transferred or conveyed. But many inconveniences were found to this method alone, in spite of the publicity given to such instruments by the fact that they were executed at an important gathering of people, such as the County Court, or at the celebration of mass upon an important feast day, and by the attestation of many persons of position and repute, living in the locality of the estate to be conveyed, and in spite of the solemn and public manner in which seisin of the estate was wont to be delivered. The inconveniences arose from forgery, a crime of frequent occurrence in early times, from the loss or destruction of the deed of feoffment, and from the difficulty of proving the genuineness of the instrument, when after lapse of years, the parties to it, and the witnesses were all dead.
Most of the early Fines arose out of litigation in the King's Court. This is clearly proved by the records of suits, found in the Plea Rolls, and in the Rolls of the King's Justices of Assize, from which many extracts have been printed in this Volume. When once a suit had been commenced in the King's Court, no compromise could be entered into, or agreement made, without the sanction of the Court, and the payment of a fine " pro licentia concordandi." But an agreement made in the King's Court, respecting a title which had been questioned by the adverse party, and ratified by the sanction of the King's own Justices, possessed a value which no other process could give. Accordingly the ingenuity of the lawyers soon suggested the institution of fictitious suits in order that any conveyance, or transfer, whether by sale or in trust, or to effect a family settlement, might possess the authenticity and security which ratification before a High Court of Justice gave to it.
Concords or covenants were occasionally made before the King and his Court, very soon after the conquest of England, but it was not until the 28 Henry II. that they took a practical and permanent form, and became habitual. Even then it does not appear that the Court of Exchequer retained copies of the agreement. But in the 6 Richard I., on the 15th July, 1195, an innovation was introduced by Hubert Walter, Archbishop of Canterbury, it is said, by which Fines were made in the form of three chirographs, one of which was given to the plaintiff, another to the defendant, and the third retained by the officers of the Treasury. (Cf. Endorsement on Fine No. 148, 40 Henry III.). All three were written upon one membrane on this wise. A rectangular piece of parchment was divided into three equal compartments, one cross-wise and two length-wise. In the centre of the parchment between the two longitudinal sections, the word chirographum was written in large characters, and upon each side a copy of the Fine was engrossed, as also upon the cross section. The parchment was then cut into three, by a straight cut across the parchment, severing the foot of the Fine, which was to be retained in the Treasury, and by a waving longitudinal cut through the word chirographum, severing the plaintiff's and defendant's respective portions. Thus three copies of the concord or fine were engrossed, and then cut up in such a manner as to minimise the possibilities of forgery or fraudulent imitation.
In addition to the incontestable evidence of the transaction afforded by the levying of a Fine, the safeguards against fraud, and the facility with which the veracity of a Fine could be settled by a search in the Treasury, there were other valuable safeguards to a title which originated with a Fine. If one of the parties to a Fine or his heir afterwards violated the conditions, an action, Quare non tenet ei finem factum, lay against him. (Cf. Fines, temp. Hen. III., Nos. 8, 63, 65, and 129). Further, a Fine set a preclusive term running against those who might wish to assert a right or claim to the estate transferred. This term lasted for a year and a day after the successful demandant had been put in seisin by the Sheriff. No neglect to take action within the specified term could be afterwards remedied unless the claimant lay under one of the recognized disabilities, such as infancy, or being over seas. Objection was frequently made, as is apparent from the endorsement commonly found on the foot of the Fine, "A.B. puts in his claim." (Cf. Fines, temp. Hen. III., No. 5, 50, 160, 176, 178; Edw. I., No. 8.) Again, from about the 10 Edward I., advantage was frequently taken of the simplicity and security offered by a Fine, to effect a family settlement with remainders. (Cf. Nos. 17, 19, 23, etc., etc.)
The son demands from the father, by means of a writ of right, or of covenant, or of warrantia cartæ, the estate intended to be put into settlement. The plea is commenced in the King's Court, and the father as tenant or defendant comes into court, and both parties having obtained licence to concord, the father acknowledges the land to be the right of the son, with remainder to other sons, and remainder over to his own right heirs. Sometimes the son grants a life interest in the land, or a portion of the land to the father. In such a case the father being in seisin before the action commenced, remains in seisin of the whole or part of the estate, thus showing that a Fine does not transfer seisin. Sometimes indeed, at the time a Fine is levied between two parties, a third party may be seised of the estate, and his seisin and rights remain unaffected by the fictitious action and compromise. Seisin was effected by the judgment of the Court through the Sheriff.
In the present series of Fines or Concords, it will be interesting to note (1) where they were levied, (2) the nature of the writ upon which the real or fictitious action was commenced, (3) the estates or hereditable rights other than land dealt with, and (4) to examine the nature of the suit of court, customs, and services to be performed by free tenants, as disclosed in some of these Final Concords.
(1) Only one Fine was made in a Court other than the King's Court, viz., one of the 7 Richard I., made in the Court of Roger de Lacy, at Clitheroe (page 2). One, in the 7 John, was made at the Exchequer in London (No. 40, p. 24). All the rest were made before the Justices of the King's Court, sitting at Westminster, or before the King's Justices in Eyre, at Lancaster, York, Appleby, and other places. From these records we learn that Assizes were held at Lancaster as follows:—
In 1208, during the week commencing 5th October, and that commencing 7th December, the Justices being Adam de Port, Simon de Patshull, Henry fitz Hervey, Robert de Percy, Alexander de Pointon, Henry de Northampton, Ralph Hareng, and Geoffrey de L'Isle (pp. 29–36).
In 1227, during the fortnight commencing 14th January, the Justices being Martin de Patshull, Ranulf, son of Robert, Brian fitz Alan, William de L'Isle, Richard Ducket, and John de Lacy, Constable of Chester (pp. 47–53).
(2). As all actions whether real or fictitious were commenced by writ, it will be interesting to note the various forms of writ which were used. In the reign of King John we find nine actions to obtain recognition of dower (fn. 1): twenty-seven actions commenced by writ of mort d'ancestor; one by an assize of last presentation (assiza de ultima præsentatione), respecting the advowson of the Church of Radcliffe (fn. 2); six by the summoning of a grand assize (fn. 3); and two by writ of warranty of charter (warrantia cartæ) (fn. 4). In the reign of Henry III. we find ten actions to obtain recognition of dower (fn. 5); twenty-five commenced by writ of mort d'ancestor; three by assize of last presentation (fn. 6); thirteen by the summoning of a grand assize; twenty-six by writ of warranty of charter; nine by writ of covenant; four by writ of fine made; two by assize to determine whether land was free alms or lay fee (fn. 7); and six by writ de libertate sua probanda, by which villeins obtained recognition of their liberation from servitude (fn. 8). In the reign of Edward I. the writ of warranty of charter appears to have been much the most popular, although instances of the commencement of actions by other writs are not wanting.
(3). Of estates, or hereditable rights, other than the possession of land, or dower, which were the subjects of litigation and composition by fine, we have instances—of the advowson of churches (fn. 9), of a fishery (fn. 10), of multure, or suit of mill, (fn. 11) of the diversion of a watercourse (fn. 12), of the withdrawal of services and customs (fn. 13), of the withdrawal of suit of court (fn. 14), of common of pasture (fn. 15), of an iron mine (fn. 16), of the enfranchisement of villeins (fn. 17), and of estovers (fn. 18). Litigation respecting all these subjects will be found to have been terminated or composed by the levying of a fine.
(4). In Saxon times the Lancashire thanes were required to do "Bode and Witness" whenever the Reeve summoned them. In other words, it was one of the conditions of their tenure that they should carry messages, or summonses, or attend at the Court to give evidence, when required. After the Conquest, the chief military tenants obtained great franchises, and judicial privileges, under which arose such Courts as those held from three weeks to three weeks at Manchester, Warrington, Widnes, Newton, Penwortham, Clitheroe, Rochdale and elsewhere. At these courts the free tenants, whether holding by military service, thanage, or other tenure, owed suit, i.e., it was required of them, as one of the conditions of their tenure, that they should attend the Court of the lordship of which they held their lands, to perform the duties of Doomsmen, or Judges, as they were variously styled. They were in fact jurymen, who being sworn, heard evidence, and gave judgments, dooms or awards. As each Court required only a specific number of judges, certain manors or estates were charged with the duty of providing these officers. When a plea was summoned in any of these Courts by the King's writ, it was obligatory upon the judges to appear fortnightly, instead of every three weeks. This obligation of doing "Bode and Witness" continued after the conquest, but instead of being incidental to specific estates, it was obligatory upon all free tenants. Each of the Courts had a staff of serjeants or bedels, who rode or went on foot through the lordship, to deliver the summonses of the Court, make attachments, levy distress, and so forth. When they came within any manor or township in the exercise of their office they took from the tenants meat and drink, and forage for their horses. This exaction was known as "puture of the serjeants." In the case of the Hundred, there was a master serjeant, with other serjeants under him, known as grith-serjeants, i.e., preservers of the peace (A.S. grið—peace, the King's peace). The master serjeant generally possessed an estate by virtue of his office, which was hereditary. He and two of his subordinates had horses provided, to assist them in the execution of their duties, which might require them to go into any part of the Hundred. It was a curious and interesting feature of this office that the free tenants of the Hundred "had the liberty that they were accustomed, and ought duly to elect and constitute, by the advice and consent of the Sheriff, grith-serjeants, who should duly preserve the King's peace, and answer for such free tenants, if the King's peace was not well kept." (Pleas before the King's Council, Hilary Term, 38 Henry III., Abbrevatio Placitorum, Record Com., p. 142). They also performed other duties, similar to those described above, as incidental to the bedels of the baronial courts; and they also exacted puture when travelling in the execution of their duties.
A perusal of this volume will prove the value, from a historical point of view, of this somewhat neglected class of our Public Records. But the ability of the Record Society to print the complete series relating to Lancashire to the end of the reign of Elizabeth, and to publish other equally interesting abstracts from the Public Records, depends upon the amount of support accorded to the Society by the educated classes. At present that support is withheld, by many who could well afford to help, and the work of the Society is accordingly crippled. It is not creditable to the educated and literary section of the community, that a Society instituted for the publication of historical materials relating to one of the most interesting counties of the kingdom, of which the thorough history has yet to be written, should be gradually verging towards dissolution from lack of public support.
Besides appealing for greater support to the objects of the Society, the Editor respectfully urges that the owners of ancient documents relating to the County should kindly permit some member of the Council of the Society to inspect and transcribe any such records of historical interest, other than those which are of a private character, as would assist in the compilation of a History of the County. Though there is a large amount of material available in the MSS. of Christopher Towneley, R. Dodsworth, Dr. Kuerden, and in the various collection of MSS. preserved in the Public Libraries in the County, much yet remains unutilized in muniment rooms and deed chests, which is liable at any time to destruction by fire, damp, vermin, or ignorance.
The Editor desires to acknowledge the assistance in the interpretation of Final Concords, which he has derived from that storehouse of historical learning, The History of English Law, by Professor Maitland, and the late Sir Frederick Pollock, Bart. He also desires to acknowledge the help rendered by Mr. Thomas Price, in copying many of the original chirographs, and in making the Index to this Volume.