Chapter XI: Book VIII

OF A CONCORD MADE IN COURT; AND OF THE CHIROGRAPHS
CONTAINING THE CONCORD; AND OF THE RECORDS OF THE COURT OR
COURTS, IF EITHER OF THE PARTIES SHOULD BREAK THE CONCORD,
AND FINE, MADE IN COURT.

CHAP. I.

But it often happens, that Pleas moved in the King’s Court are determined by an amicable composition and final Concord, but with the consent and License of the King or his Justices, whatever the Plea may concern, whether Land, or any other thing. Such a Concord is, with the general consent of the persons interested, usually reduced into a writing, common to all the parties,[298] which is recited before the King’s Justices of the Common Pleas,[299] in whose presence each person’s part of the writing, agreeing in all things with the other’s, is delivered to the party. The Concord is in the following form——

[Footnote 298: _In communem scripturam_, a chirograph. (Madox’s Exch. c. 19.)]

[Footnote 299: _Justiciis domini regis in Banco residentibus_—Vide ante page 41. Note 2.]

CHAP. II.

“This is the final Concord, made in the Court of our Lord the King, at Westminster, on the Vigil of the blessed Peter, the Apostle, in the Thirty-third[300] Year of the Reign of King Henry the Second; before Ranulph de Glanville, Justiciary of our Lord the King, and before _H.R.W._ and _T._ and other faithful subjects of our Lord the King, then there present, between the Prior and Brethren of the Hospital of Jerusalem, and _W.T._, the Son of Norman, and Alan his Son, whom he appointed Attorney in the Court of our Lord the King to gain or lose, concerning all such Land and its Appurtenances (except one Oxland[301] and three Tofts[302]) which the said _W._ held: concerning all which Land (except the aforesaid Oxland and three Tofts) there was a Plea between them in the Court of our Lord the King; to wit, that the aforesaid _W._ and Alan concede and attest the Gift which Norman the Father of the said _W._ made to them; and they quit-claim all that Land from them and their Heirs to the Hospital and the aforesaid Prior and Brethren for ever: except the one Oxland aforesaid, and the three Tofts, which remain to the said _W._ and Alan and their Heirs, to be held of the Hospital and the aforesaid Prior and Brethren for ever, by the free service of four pence a year, for all service. And for this concession, and attestation, and quit-claim, the aforesaid Prior and Brethren of the Hospital have given to the said _W._ and Alan one hundred Shillings sterling.” Or in these Terms——

[Footnote 300: This and a similar passage, in the following chapter, afford strong _data_, from whence to ascertain the year, when the present work was written. Admitted as it is, on all hands, that it was composed in the Reign of Henry the Second, and it being a strong presumption from the passages in question, that it could not have been written antecedent to the 33d year of such Reign, it merely remains for us to chuse between the 33d, 34th, and 35th years; for on the latter year the Reign terminated. If we follow Sir Henry Spelman’s plan, and divide the intermediate period, we should infer that the present work was written in the 34th year of Henry the Second, in other words, in 1187. Dr. Robertson, though without alleging any reason, says, it was composed about the year 1181. (Hist. Charles. V. vol. 1. p. 296.) Blair’s chronology uses precisely the same assertion.]

[Footnote 301: It seems by no means to be agreed of what quantity an Oxland consisted. (Co. Litt. 69. a. and Mr. Hargrave’s note.)]

[Footnote 302: Toftis. A Toft is said to be the scite where a House formerly stood; and is a word much used in Fines. (Vide Spelm. Gloss. and Cowell’s Interp. ad voc.)]

CHAP. III.

“This is the final Concord, made in the Court of Galfred, the Son of Peter, and afterwards recorded and inrolled[303] in the Court of our Lord the King, at Westminster, in the Thirty-third Year of the Reign of King Henry the Second, on Tuesday after the feast of the Apostles Simon and Jude, before[304] _E._ Bishop of Ely, and _I._ Bishop of Norwich, and _R._ de Glanville, Justice of our Lord the King, and other faithful and trusty servants of our Lord the King, then there present, between the aforesaid _G._ the Son of Peter and _R._ the son of Reginald, of the Advowson of the Church of All Saints of Shuldham, and common of pasture of Heddon, concerning which there was a dispute between them; to wit, that the aforesaid _R._ has acknowledged to the aforesaid _G._, as his Right, the Advowson of the aforesaid Church, and has quitted-claim to the aforesaid _G._ and his Heirs, from him and his Heirs for ever, if he had any right in the Advowson of the aforesaid Church: also the aforesaid _R._ quit-claims to the aforesaid _G._ the Common of Pasture of Heddon—And all the purprestures[305] which _G._ has made in Shuldham, in the Woodland[306] and Mills and Crofts[307] and Turbaries[308] of Shuldham, of which the said _R._ reserves nothing, unless that which is necessary to burn in his House for him and his Heirs, without making any sale; and all[309] external folds,[310] (except his own) and the bidden days[311] of external ploughs, and the Customs[312] of Hens and Eggs. And for this Concord and quit-claim, the aforesaid _G._ has given to the said _R._ twenty marks of silver.” And observe, that such a Concord is termed final, because it puts an end to the matter,[313] so that neither of the litigating parties can ever after recede from it. For if either of them fail to adhere to it, or to perform his part of it, and the other party complain, the Sheriff shall be directed to put him by safe pledges, that he appear before the King’s Justices to answer, wherefore he has not kept such fine. I mean, if the party complaining, has previously given the Sheriff security, to prosecute his claim. For this purpose, the following writ shall issue——

[Footnote 303: _And inrolled_ omitted by the Bodln. and Dr. Milles’s MSS.]

[Footnote 304: _G. Bishop of Ely, I. Bishop of Norwich, and Ranulph de Glanville, &c. Justices in Eyre, in the year 1179, 25 Hen. 2. &c._ according to Bodl. MS.]

[Footnote 305: Vide Infra, L. 9. c. 11. where our author explains the import of the Term.]

[Footnote 306: _Frusseto_, or, as Lord Coke writes it, _frasseto_, signifies a wood or ground that is woody. (Co. Litt. 4. b.)]

[Footnote 307: _Croftis_. A croft is said to be synonymous with what farmers call a _close_. The term is used by Ingulphus, and derived from the Saxon _croft_ or _cruft_.]

[Footnote 308: _Turbariis_. This word is of Saxon origin, and seems to have been used in two senses; first, for the right of taking turf; secondly, for the ground from which the turf itself was taken or dug. (Spelm. Gloss.) The reader will no doubt admire ecclesiastical ingenuity, when he understands, that turbary was comprised under the term _lignum_, and Tithe consequently claimed in respect of it. (Lyndw. Provinc. p. 100. Annot. ad _turvarum_.)]

[Footnote 309: _Forinseca_—So termed, Bracton tells us, _quia fit et capitur foris, sive extra servitium quod fit domino capitali_. (Bracton fo. 36. a.) This part of the text is rather obscure; and, though I have taken some pains to get at the sense of all the terms Glanville makes use of in this Concord, I cannot flatter myself I have perfectly succeeded.]

[Footnote 310: _Faldas_. Falda is frequently used, as Spelman informs us, _pro libertate faldagii_—_faldagium_ being a privilege, which Lords anciently, not unfrequently, reserved to themselves, of setting up folds for sheep in any fields within their manors, the better to feed their flocks, and this, not merely with their own but their Tenants’ sheep, although, in the latter case, the privilege was more usually called _secta faldæ_.

It should rather seem, that the Tenants sometimes enjoyed such a privilege as against their Lords. _Falda_ i.e. _homines villæ debent ponere oves suas in faldam Domini_, are the words of an ancient MS. relating to the Monastery of St. Edmund. When the term _forinsecas_ is attached to _faldas_, a difficulty occurs, which perhaps may be got over by recurring to the doctrine of subinfeudation, so common when Glanville wrote. The privilege in question might have been _within_ the boundaries of the ancient or original manor, whilst it might have been external or _without_ the circuit of a less manor, forming merely a part of the original manor and created in a course of posterior subinfeudation.—This is submitted merely as a conjecture.]

[Footnote 311: _Precarias._ “Vide Somn. Tract. de Gavelkynd in voc. _Benerth_, p. 18.” (Al. MS.) “_Benerth_,” says Lord Coke, “signifieth the service of the plough and cart.” Co. Litt. 86. a. _Precariæ_ are said to be day-works, which the Tenants of some manors are bound, by reason of their tenures, to do for their Lords in Harvest-time; and they are in some places called _bind-days_ for _bidden-days_, since, as it has been remarked, _bidden_ est _precari_. This custom is said to be plainly set forth in the Great Book of the Customs of the Monastery of Battel tit. Appelderham fo. 60. an extract from which the reader will find in Spelm. Gloss. ad voc. _precariæ_. Somner, indeed, considers it a species of Tillage service, performed _precario_. (Ubi Supra.)]

[Footnote 312: _Consuetudines_, meaning, perhaps, customary renders, or payments, as Rents. It is well known, that a period of our History has existed, when most of the Rents of the kingdom were paid in this manner.]

[Footnote 313: A similar description occurs in the Reg. Maj. (L. 1. c. 27.) and in Bracton. (L. 2. tr. 5. c. 28.) Lord Coke quotes the latter, as well as the passage in the text, as correct. “This,” observes Mr. Hargrave, “though a just description of fines, according to their original and still apparent import, yet gives a very inadequate idea of them in their modern application. In Glanville’s time, they were really amicable compositions of _actual_ Suits. But for several centuries past _fines_ have been only so in _name_.” (Co. Litt. 121. a. and note 1.) “For the antiquity of Fines,” says Lord Coke, “it is certain, they were frequent before the Conquest.” (2 Inst. 511.)]

CHAP. IV.

“The King to the Sheriff, Health. Command _N._, that justly and without delay, he hold the Fine made in my Court, between him and _R._ of one Hyde of Land, in that Vill, concerning which a Suit was between them in my Court; and, unless he do so, and the aforesaid _A._ make you secure of prosecuting his claim, then, put him by Gage and safe Pledges that he be before me or my Justices on such a day, to shew why he has not done it. And have there this Writ. Witness, &c.”

CHAP. V.

Should the party, thus summoned, neither appear, nor essoin himself, on the day appointed, or if, after having cast three Essoins, he neither appear, nor send an Attorney, the course in such case to be pursued has been already pointed out, in that part of this Treatise which applies to Pleas, where the Pledges are to be attached, and in the first Book. Both parties being present in Court, if each of them should acknowledge the writing (containing the Concord made between them) or if the Concord is stated to be such by the King’s Justices before whom it was made, and this be properly testified by their Record, then the Party who has broken the Concord shall be amerced to the King, and shall be safely attached, until he find good security that he will from thenceforth keep the Concord, by adhering to its terms, if possible, or will otherwise make his Adversary a reasonable recompense. For, it is a consequence which naturally results from acknowledging a fact in the King’s Court in the presence of the King or his Justices, or undertaking to do any particular Act, that the Party should be compelled to abide by or perform it. If, however, such a Concord be made in a suit concerning Land, then, the party convicted in Court, or confessing that he had not properly observed the Fine, if a Tenant, shall thereby lose his Land, but, if a Demandant, his Suit. But if the parties, either the one or the other of them, deny the Common Chirograph, then, the same Justices shall be summoned to appear on a day appointed to them in Court, and there record, how the suit came to an end which was before them in the King’s Court, between such and such parties, of so much Land, in that Vill, which the one claimed against the other; and, if the parties, by the license of the Justices and in their presence, came to an agreement, under what form the Concord was made. But here a distinction must be taken, whether such Concord was made in the King’s chief Court, or before the Justices Itinerant.

In the latter case, such Justices must be summoned to appear in Court, with certain discreet Knights, of the County where the Concord in question was made, who were present when it was entered into, and know the truth of the fact; in order that such Justices may make a Record of the Suit, with the assistance of the Knights, who are to be called to Court for that purpose, from the whole body of the County, by the following Writ——

CHAP. VI.

“The King to the Sheriff, Health. Summon, by good Summoners, _N._ and _R._ that they appear before me, or my Justices, such a day, to record, with discreet Knights of that County, how the Plea of one Hyde of Land, which _N._ claimed against _R._, in that Vill, and of which there was a Suit before them, on their Eyre, ceased in my Court.” The Sheriff of the County, in which the Suit was decided before the Justices, shall also be commanded to transmit at the same time a Record of the Suit in question to the King, or his Justices, by the hands of discreet Knights of his County. This shall be done by the following Writ, for presenting such Record in Court——

CHAP. VII.

“The King to the Sheriff, Health. I command you, that you cause to be recorded in your County Court, the plea which is between such and such person, concerning so much Land, in that Vill,” &c. as in the following Chapter but two.

CHAP. VIII.

The Justices being present in Court, and perfectly concurring as to the Record, it necessarily follows, that their Record must be abided by, neither party being allowed to deny it, as we have already observed.

But if the Justices entertain any doubt upon the subject, and it cannot be ascertained, then, the Plea must be again commenced and proceeded on in Court.

CHAP. IX.

It should be understood, that no Court, generally speaking, has a Record, except the King’s Court.[314] For in other Courts, if a Man should say a thing, which he would afterwards retract, he may deny[315] it against the whole Court, by the oath of three witnesses, affirming that he had not said the thing imputed to him, or, indeed, by a greater or less number of witnesses, according to the custom of different Courts. Yet, in some cases, the County and other inferior Courts are by a particular Law of the Realm allowed to have Records; thus, if the Duel has been waged in any inferior Court, and the Suit should be afterwards transferred into the King’s Court; then, as to the claim of the Demandant, the defence of the Tenant, and the words in which such Duel was adjudged and waged, the former Court shall have its Record even in the King’s Court; but, in other respects, such inferior Court has no Record, unless concerning the change of a Champion. For if, after the suit has been transferred into the King’s Court, a different Champion should be produced, than the one who has waged the Duel in the inferior Court, and a dispute arise upon this point, the Record of the inferior Court shall by a Law of the Realm be conclusive upon the subject. It should also be understood, with respect to the Record of an inferior Court, that any one may add, that he had said more than is contained in such Record—and that he did in Court say it, he may prove against the whole Court, by the oaths of two or more lawful Men, according as the custom of different Courts vary; because no Court is bound, either to prove or defend its Record by the Duel. But it is not allowed to any one to take exceptions against one part, and admit the other; and this rule is grounded on a Law of the Realm: since he may from the first deny the whole Record, an oath being taken in the manner before mentioned. But, although a Court is not obliged to defend its Record by the Duel, yet is it bound to defend its Judgment by the Duel.[316] If, therefore, any one should declare against the Court for passing a false Judgment, and, therefore false, because when one party had said thus, and the other answered thus, the Court in question had judged falsely of their allegations by deciding in such words; and that the Court had given such false Judgment by the mouth of _N._; and, if he were disposed to deny the present charge, the other was prepared to prove it against him, chiefly by such proper witness, who was ready to enter upon the proof. Thus may the matter, and that very properly, be decided by the Duel.[317] But, whether such Court is obliged to defend itself by one of its own members, or may have recourse to a stranger, may be questioned?

[Footnote 314: V. LL. Gul. 1. Norman. cap. 28. (Al. MS.) The Law alluded to is in these words. _Qui placitat in Curia cujuscunque Curia sit, excepto ubi persona Regis est et quis eum sistat super eo quod dixerit, rem quam nolit confiteri, si non potest disrationari per intelligentes homines qui interfuerunt placito et videntes quod non dixerit, recuperit juxta verbum suum._ (LL. Anglo-Sax. Ed. Wilkins, p. 224.)]

[Footnote 315: _Recordationem Curiæ Regis nulli negare licet alias licebit per intelligibiles homines Placiti._ (LL. Hen. 1. c. 31. See also LL. Hen. 1. c. 49 and Co. Litt. 117. b.)]

[Footnote 316: “_By the Duel_,” omitted by Harl., Bodl. and Dr. Milles’s MSS. although from the context, it must be understood.]

[Footnote 317: The liberty of falsifying a Judgment was allowed by the Assises of Jerusalem. But the person, availing himself of this dangerous privilege, seems to have been obliged to fight all the persons composing the Court, not merely the Judges, but the Suitors, one after the other. Under these circumstances, the privilege would, probably, not often be claimed. (Assis. de Jerusalem, c. 111.)]

It ought, indeed, to defend itself chiefly by the person who has passed the Judgment[318] and, if the Court should be convicted of the charge, the Lord of the Court shall be amerced to the King, and shall for ever be deprived of his Court. Besides which, the whole Court shall be amerced to the King. But, if the person bringing the charge forward should fail in his proof, he shall thereby lose his principal suit. A Court may also have a Record, by the indulgence of the Prince. Thus, if the King, influenced by some reasonable motive, should cause any Court to be summoned to make a Record in his Court; so that the King chuses, that such Record shall not be contradicted. Courts are frequently summoned to have a Record of some particular suit before the King, or his Justices, although they have not from this circumstance any Record but what may be contradicted; because, by the consent of the parties, the suit may be proceeded in upon that Record.

[Footnote 318: See Mirror, c. 3. s. 23. A Judge, who had given a false Judgment, is heavily fined to the King by the Laws of Edgar, unless he dared confirm upon his oath, that he knew not how to pass a better sentence. (LL. Edg. c. 3.) By the Laws of the Conqueror, such Judge lost his _were_, unless he could excuse himself by the same means. (LL. Gul. Conq. c. 15.) By the Laws of Alfred, he was, after having made satisfaction to those he had injured, to forfeit the remainder of his goods to the King, &c. &c. (Mirror, c. 4. s. 18.)]

If they agree as to the Record, the Summons may be made, by a writ of the following description——

CHAP. X.

“The King to the Sheriff, Health. I command you, that you cause to be recorded in your County Court, the suit which is between such and such persons, of so much Land, in such a Vill; and have the Record of that suit before me, or my Justices, at such a day,[319] by four Lawful Knights, who were present at the making of such Record—And Summon, by good Summoners, the party claiming the Land, that he be then there with his Plea; and the party who holds the Land, that he be then there to hear it.[320] And have, &c.”

[Footnote 319: _Terminum_—Vide ante, p. 22. not. 2.]

[Footnote 320: _The Record_—Bodl. and Dr. Milles’s MSS.]

CHAP. XI.

Inferior Courts have also Records concerning things transacted in them, which are received as such in the King’s Court. This happens when a Lord[321] has a Plea in his Court, concerning which a reasonable difficulty arises, and the Court is incompetent to determine it. On such an occasion, the Lord himself may adjourn his Court[322] into the King’s Court, in order to have the advice and assent of the latter, in determining what is proper to be done. The King, indeed, owes this assistance to his Barons, who may on such an occasion, as a matter of right, adjourn their Courts into the King’s Court, in order to obtain from the skilful men who preside there, that advice they stand in need of. But, when they have been certified in the King’s Court, concerning the doubtful point, they may return with the Suit, resume the consideration of it, and finally determine it in their own Court.[323] The County Court has a Record, as to the giving and receiving pledges there, and of similar matters.

[Footnote 321: _Baro—hoc est robur beli_, says Bracton. The term was formerly used in a variety of senses.—I shall mention some of them—a Man, a hired Soldier, an Officer, a Tenant, a lesser Tenant in chief, a greater Tenant in chief, a Noble, an Ecclesiastical Dignitary, a greater Vassal of an Earl or Prelate, a Knight, a Husband, an Eldest Son, a Burgess, a Citizen, a Robber, &c. (Vide Spelm. Gloss. ad voc. Cowell’s Interp. Craig Jus feud. L. 1. Dieg. 12. s. 15. 16. 2 Inst. 5.—Madox’s Excheq. c. 5. s. 1. Index to Anglo-Sax. LL. Ed. Wilkins, voc. Baro—and authorities referred to by such authors.)]

[Footnote 322: _Suit_, instead of _Court_, according to Harl. and Bodl. MSS.]

[Footnote 323: Lords, at first, had but a domestic Jurisdiction, in order to compel their Tenants’ Services, and to maintain peace and order amongst them. Afterwards, in imitation of the Sovereign’s Court, Lords caused Records to be made before their own officers of the transactions which had taken place in their Courts. But, as these Records derived their chief or rather only strength, from the parties voluntarily submitting to them, the authority of the Lords was gradually weakened; and, as murmurs began to increase against the decisions of their Courts, a reference to the King’s Court became the only resort of the Lords. (Traités sur les Coutumes Anglo-Normandes par M. Houard, p. 507. Tom. 1.)]