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
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
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
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
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.