Introduction.
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 1202, between 25th October and 7th November, the
Justices being John, Bishop of Norwich, Hugh Bardulf, John de
Gestlings, Master Roger Arundel, and William fitz Richard
(pp. 9–22).
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 1219, between 16th January and 4th February, the
Justices being Philip de Ulcot, Thomas de Multon, Ralph de
Feritate and Lawrence de Wilton, clerk (pp. 40–42).
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).
In 1235, between 13th and 18th May, the Justices being
Roger Bertram, Robert de Roos, William de York, and Richard
de Levington (pp. 59–73).
In 1241, during the fortnight commencing 11th November,
the Justices being Robert de Lexington, Ralph de Sulleg,
William de Coleworth, and Jollan de Nevill (pp. 79—91).
In 1246, during the fortnight commencing 20th October,
the Justices being Roger de Thirkleby, Gilbert de Preston,
Master Simon de Wauton, and John de Cobham (pp. 93—106).
In 1256, during the fortnight commencing 18th June, the
Justices being John, Abbot of Peterbrough, Robert de Thirkleby,
Peter de Percy, Nicholas de Hanlan, and John de Wyvill
(pp. 118—129).
In 1262, during the fortnight commencing 9th February,
the Justices being Walter de Helyon, John de Oketon, Peter
de Chester, and William de Northbury (pp. 133—142).
In 1292, during the fortnight commencing 8th June, the
Justices being Hugh de Cressingham, William de Ormsby,
John Wigan, Master John Lovel, and William de Mortimer
(pp. 166—176).
(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.
W. F.
Marton in Craven,
March, 1899.