LAW TECHNICALITIES.
The two chief divisions into which all law deeds may be roughly
classified are the deed-pole and the indenture. The former is a square
piece of parchment, made by one person, such as a will or a bond, the
indenture being the work of several parties. Of this latter kind are
deeds of trusteeship, marriage settlements, mortgages, and sales or
transfers of land.
The indenture was so called from the fact that its upper edge was
vandyked, or indented--a very secure but primitive method of testing
authenticity; each party had a copy. These duplicates were written on
a single strip of parchment merely cut asunder afterwards, through a
word written between the two copies, such as ‘chirographum,’ so that
when required to be produced as evidence the two divided portions and
words would fit each other exactly--indisputable evidence of their
originality, both simple and ingenious.
A very common form of deed, met with among title-deeds, is the ‘Fine,’
technically so-called from its opening sentence: ‘Hic est finalis
concordia facta in curia Domini Regis’; the Sovereign’s name follows
with the year of accession, after which are the names of the buyer and
seller of the property, a full description of the amount of acreage,
tenements, etc. After warranting the whole for life to its purchaser,
the deed concludes with the sum of money paid for the property; this
is written in words, not figures. These deeds are more puzzling to
amateurs than any other. The ‘Fines’ are narrow strips of parchment,
two in number; they are closely covered with black lettering, making
them at first difficult to decipher.
This transfer of land by ‘fine’ originated at first from an actual suit
at law commenced to recover possession of the lands, and by this means
to establish a clear indisputable title to it; in course of time the
suit was discontinued, but the form of wording was retained by custom.
‘A “fine,”’ says Blackstone, ‘is so called because it puts an end
to the suit (from the Latin word _finis_, an end), which, when
once decided, puts an end not only to that suit, but also to all
other controversies concerning the same matter, for by this means an
absolute sale was effected, and all previous claims upon the property
were made void.’
Sale by fine is of very ancient date. Instances of it are said to be
known prior to the Norman invasion. We may, therefore, conclude that
it was probably an old Saxon custom, or was devised in later times
as a certain means to avoid dispute and disagreement arising from an
imperfect title of possession.
There are several legal varieties of ‘fines,’ but these are of little
consequence to the antiquary, whose interest lies only in the names,
dates, and localities mentioned, and, so long as the land changed
its ownership, cares little about the technical process by which the
transfer was made.
Another way of making a good title so as to legalize and effect a
complete sale of property was that known as ‘Sale by Recovery.’ This
also consisted of a law-suit, at first real, then imaginary.
[Illustration: FORM OF FINE]
The prescribed form was very complicated. Explanations of it are to be
found in most books on law subjects, but the matter lies in a nutshell.
One man desired to sell certain land which another man was anxious to
purchase, whereupon the would-be purchaser issued a writ, in which he
pretended to claim the land. At this stage of the affair a third party,
not really concerned in any way in it, was brought forward to warrant
the title of the real owner, who then came forward bringing a witness
proving ownership to his property; thus an undisputable title to the
land was established. A deed of recovery was then issued rehearsing the
whole transaction, agreeing that a certain sum of money, equivalent to
the value of the land, should be paid by the purchaser; and here the
bargain was concluded, and the curtain fell on the legal farce.
Some of these recovery deeds are quite works of art. They are written
in courthand on large squares of parchment, smooth and white. The
heading and capital letter are ornamented with scroll-work in pen
and ink. Generally an engraved portrait of the reigning Sovereign
was added. Part of this ornamentation was done by hand, and the rest
completed with steel engraving. The most elaborate deeds are those of
the Stuart monarchs, especially towards the end of the seventeenth
century, but after the time of the second George these well-executed
deeds disappear.
The oldest statute relating to Recoveries of which I find any mention
is of the commencement of the reign of Henry VII., but I have not met
with any as early in date as this.
A beginner finds much difficulty in deciding between deeds of sale
or appointment of trustees for the safe custody of land to secure
marriage portions and deeds of mortgage. All these three deeds are, in
point of size and general outline, nearly identical; the experienced
lawyer can detect them at once; he needs only to study what is called
the operative part of the document, avoiding any waste of time which
wading through the technical phrases involves.
One of the commonest forms of deeds met with relative to the sale
of land is that known as ‘Lease and Release,’ a method invented by
Serjeant Moore in the reign of Henry VIII., which, from its simplicity,
speedily became very popular, and superseded the other forms of sale.
The principal deeds referring to a Lease and Release are two in number.
The smaller of these is generally found wrapped up within the larger
parchment, as the two had to be kept together, being in reality part
and parcel of each other. The smaller parchment was the lease drawn up
between the parties; by it a formal lease for a year of the premises
or land was granted by the owner to the purchaser, but no mention of
any rent or sum of money is made in it, and herein is the difference
between the sale-lease and an ordinary lease, for in this latter both
the term of years and the yearly rental are expressly named.
The ‘Release,’ or larger parchment, is dated a day following the
lease which it cancels, hereby gaining its name of ‘release.’ It is in
reality the actual deed of sale, for the price paid for the land will
be found in it, and a full and complete warranty securing it for ever
to the purchaser.
An ordinary lease of premises is worded similarly to the above,
but differs from it in several ways; usually it is a larger sheet
of parchment. The term of years varies from three, five, seven, to
twenty-one, at a fixed rent paid either half-yearly or quarterly at
the four principal feasts, Lady Day, or the Feast of the Annunciation,
the Feast of St. John, or Midsummer, St. Michael and All Angels,
better known as Michaelmas, and the Feast of the Nativity, popularly
called Christmas Day. These deeds commence with the date of the day,
month and year, followed by the names of the persons contracting the
agreement, with those of their co-trustees, or witnesses, usually
selected from among relatives or connections by marriage, or else
immediate neighbours. An exact terrier of the land is given, its
locality, field-names, and acreage. Three parts of the way down the
sheet of parchment will be found the rent and term of years for which
the land is granted, together with stipulations as to repairs, rights
of ingress and egress; any services, customs or heriots, whether due in
kind or by payment; last of all comes the warrant against intruders.
Of course, with deeds of sale there are other legal documentary forms,
with variations of wording, but the two last above described are those
generally met with.
The oldest form of sale is called a ‘feoffment,’ or grant. Externally
it differs little in appearance from a ‘fine,’ at least as regards its
earliest form, both being very small, closely-written deeds; the first
was in the set lawyer type of handwriting, while a ‘fine’ was indited
in courthand.
A ‘feoffment,’ or grant, was the oldest and simplest form of document;
but in later times it was followed by a deed ‘of Uses,’ which required
many other deeds to follow in its wake before a permanent and
satisfactory sale was effected.
It is all these legal formalities which make the reading of old deeds
so unnecessarily confusing; their intricacies can only be mastered
by careful study of books on legal matters, and a comparison of the
several kinds of deeds above enumerated. A mortgage deed differs from
the sales or leases in several particulars: firstly, the term of years
granted is usually absurdly long--nine hundred or a thousand years,
perhaps; while in lieu of money the nominal rent of one peppercorn
yearly, or some equally insignificant equivalent, was demanded. In
place of the rent in an ordinary lease the real reason of the mortgage
is given in full, with the date and appointed place where and when the
borrowed money is to be repaid. Often the vicarage, or the parson’s
house, was chosen--perhaps considered as an additional guard against
fraud, and that the clergyman as a witness, being a disinterested
party, would see justice done on both sides. No mortgage deeds are old;
the older ones, if they existed, were probably destroyed as soon as the
transaction was finished. Most of those found among family papers are
of the eighteenth and nineteenth centuries, and refer to small pieces
of land or cottages, showing that even then the small owners became
involved in debts and difficulties, being obliged to raise money upon
their holdings, until finally the land itself had to be sold to satisfy
the demands of the creditors, the purchaser usually being the nearest
large landed proprietor, who paid a better price for what would join
on to and complete the area of his estate. These small holdings had
probably been accumulated bit by bit out of the waste. First, perhaps,
the settler rigged up a primitive dwelling, or hut, the old tradition
being that if a roofed dwelling with a chimney could be erected in one
night a claim to the land was thereby established. If undisturbed, the
squatter would gradually extend his boundaries; but a small rent was
generally demanded by the lord of the manor as an acknowledgment of the
encroachment; these little holdings are called ‘key-holdings,’ and are
to be found in all parts of England.
At present there is a growing desire to increase the number of small
proprietors; ‘fashion,’ it is said, ‘repeats itself periodically.’
Former experience showed the result of small holders to be a failure;
no land, however small in acreage, can be worked without capital; a
succession of bad seasons causes immediate loss and continuous outlay
without a compensating return; debts once begun are apt to accumulate;
all trades are worked cheaper on a wholesale scale. Bit by bit, as
failure comes, the small pieces of land will roll up into large
properties again, like balls of quicksilver separated only for awhile.
Many of the deeds of mortgage are sad and silent witnesses of the
gradual decay and downfall of old families. The squire raised money to
pay off trusts, legacies, and dowers. He pledged his mansion; and in
the inventory of his household effects we can study many queer facts.
Our ancestors’ homes were scantily furnished; such lists surprise
us, for they show what a very small amount of furniture was formerly
considered necessary to render a house habitable.
Among family papers there is often another class of deeds altogether:
one is a small square piece of parchment, with a huge seal attached;
this is often enclosed in a rough tin case or box. These are advowson
deeds, or presentation of Church preferment. The gifts of many Church
livings are in private hands. It was originally an hereditary property,
and there are cases of it of very great antiquity; but private family
deeds referring to church property are seldom found earlier than the
Jacobean period, and very seldom as old as that.
The earliest presentations or appointments to parochial duty were
no doubt purely ecclesiastical, but with the Norman accession the
secular and ecclesiastical affairs merged into closer proximity; it
was considered a religious privilege to rebuild or erect a church.
This the lord of the manor generally undertook, perhaps originally as
a private chapel or chantry. The appointment of an officiating priest
became an ecclesiastical matter, being often granted to the monasteries
by the patrons. To avoid the encroachment of lay interference,
Thomas à Beckett was the first to order that no clergyman should be
instituted to a living without a bishop’s approval and permission;
but there were often disputes on this subject. Few neighbourhoods
existed without a monastery somewhere in the locality, and from the
nearest religious house a candidate was probably selected; finally, the
right of presentation was claimed by the monastery, with whom it may
have, by custom or by deed of gift, previously rested. Some education
and a knowledge of Latin was essential for a priest, and education
was almost entirely confined to the monks or their pupils. Thomas à
Beckett, as Archbishop, issued his mandate on the subject of parochial
presentations as a means of retaining such institutions in episcopal
hands, and so avoiding any appeals to the Pope which might be made by
his legates or the abbots. With the monasteries the chantries also
passed away, soon being forgotten; numberless small unbeneficed chapels
were then allowed to fall into ruins, the sites even of these now
having been lost.
Deeds recounting the appointment of chantry priests are rare, and
always possess some points of interest; often chantry priests were
appointed by bequest, and sums of money left for their maintenance.
These appear, however, to have been entirely distinct from the parish
priest, although perhaps the office may eventually have merged into one
and the same.
There seems from earliest times to have existed a jealousy between
Cathedral bodies and the monks; but as the monastic orders waxed more
and more wealthy and influential, we lose sight of the contention, and
on all questions of early Church history there yet needs an impartial
writer to decide many matters which at present are still uncertain,
and are viewed by different writers according to their own particular
religious bias, whether Anglican or Roman; hence as history they are
too prejudiced to be entirely relied upon.
[Illustration: SHERIFF’S ROLL (NEVILLE MSS.). (_See page 66._)]
A sheriff formerly was the most important personage in his county,
being the ambassador or representative of the Sovereign. He was
appointed directly by the Crown; even at the present day the names of
three county gentlemen are written down and supposed to be presented
to the King, who pricks the name of the man chosen to be sheriff; but
really the names follow in sequence, each out-going sheriff adding
a fresh name to the list previous to his own being erased as having
served his turn.
The formal deed of appointment as sheriff was a narrow parchment strip,
with a fine seal attached to it; his discharge from office was a very
unimportant-looking document.
The sheriff’s roll was the yearly bill of expenses incurred in the
King’s name by his sheriff or representative; as a rule they are not
very interesting, although here and there the names of men appointed
to local offices may appear, facts which might interest the local
historian; but he would have to wade through the contents of many rolls
before he extracted any information worth his attention, and much
time would have to be expended over such a search. These rolls are
long broad strips of parchment stitched together; the upper edge is
sometimes cut square, and at others cut into a point or peak.
The wording runs as follows:
‘In Magno Rotulo de anno ... Regis ... in Comitatu----’
A list of the sheriffs of England (Henry I. to fourth year of Edward
III.) is to be found in the thirty-first report, page 262, of the
Deputy Keeper of the Public Records. A list of sheriffs is published
(Public Record Office: Lists and Indices, No. IX.). In some counties
sheriff-lists with additional genealogies and notes have been compiled,
giving a very good county history of the oldest families of the shire.
A royal pardon was a deed-poll with a beautiful seal attached to it.
It commenced with the Sovereign’s name. The writing was exact and
well executed. The deed was divided into clauses or sections, the
commencing word of each being written in very clear black letters.
After the word ‘Sciatis’ comes the royal license and the name of its
recipient, who is forgiven ‘all rebellion and insurrection against the
Crown, all homicide, felony, robbery or participation with such,’ and
the pardoned subject is permitted to retain his possessions: the word
‘Perdonamus’ coming about the centre of the document. Unfortunately no
information is given in the charter in any way as to the particular
cause for pardon being granted or the offence committed. This can only
be guessed at by the help of English history, and a probable reason be
assigned from among the many disputed accessions, civil wars, religious
controversies of bygone centuries, all probable sources of high treason
against the Crown.
Few old families were exempt from charges of treason if they chanced
to take any part in public affairs or were known to have been stanch
adherents to prohibited religion.
A bond is a small paper or parchment--on one side written in English,
on the other in Latin--the promise to repay or pay money due; generally
the bond is in Latin, and the conditions of it written in English.
Bonds were made out on the sale of property, or for mortgages or
legacies; they occur in numbers among family papers.
If the deed does not begin with the King’s name in whose reign it
was made, the year of the reign will be found at the end. It must be
remembered that Henry VI. and Charles II. are both puzzling, owing
to civil wars, and both reckoned from the date of the death of the
previous Sovereign. Henry VI. is reckoned from 1422, and includes the
whole period till his death--forty-nine and a half years--of which only
thirty-eight and a half years he actually was King. Charles II. is
reckoned from the year 1649.
These are the principal kinds of deeds met with among family papers,
being the commonest legal forms. If others are found of an unusual
character they should be put aside for closer investigation when
practice has given greater experience, or be submitted to an expert for
examination.
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