FINES AND RECOVERIES

"Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dust? Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?" Thus the Prince of Denmark moralising in the graveyard scene in Hamlet over the skull of a supposed lawyer: with more to the same effect, all showing that Shakespeare had a knowledge of law terms remarkable in a layman, and that he used them with curious precision. In the huge body of Shakespearian literature there are special works (one by Lord Chancellor Campbell) on the fact, which has been used to buttress up the Baconian authorship theory (indeed, it is the only positive fact at all in point). Again, it has been conjectured that the dramatist spent some time in a lawyer's office, and that phrases from the deeds he engrossed stuck in his memory. It is far more likely that, being the man of his age he was, he would read in and round the law as well as much else for its own sake, and that fines and recoveries were so odd in themselves, and so excellently illustrative of English history and procedure, that they fairly took his mighty fancy.

Recoveries were already some two hundred years old in his time, and, to judge from the tone of the passage, people must even then have held them in derision. But they were to last full two hundred years more; for not till 1833 did they vanish from the scene. Recoveries were methods of disentailing an estate by means of a complicated series of fictions. They arose in this way:—Before 1285, when land was given to a man and the heirs of his body, the judges ruled that, the moment a son was born, the father held the estate as a simple freehold, which he could sell or make away with very much as he chose. The great landowners were ill-content at this; they meant their tenants to enjoy their estates only as long as they rendered useful service in return, and if issue failed a man, they thought the land should revert to his lord on his death. Hence in that year an act procured by their influence, called De Donis Conditionalibus, or the Statute of Westminster the Second (13 Ed. I., c. 1), created the Estate Tail (i.e. TaillÉ, or restricted). It provided that land given to a man and his heirs as above, reverted to the original donor on failure of the donee's issue. Blackstone waxes eloquent over the evils that ensued. Children declined obedience to a father who could not disinherit; farmers lost their leases, which had no force against the heir; and creditors were defrauded of their debts, which constituted no charge on the land, nay, treasons were fostered, insomuch as the traitor's interest lapsing at his death, nothing was left for the king to seize. Yet it was not till the reign of Edward IV. that a device was found to evade the Statute. Taltarum's Case was decided in 1472. It is loosely said that this established the validity of recoveries, but they were in use some time before, and Sir Frederick Pollock will have it that it was the oddity of the name which made a landmark of the decision. A Recovery was a sort of friendly or fictitious action, whereby the estate was adjudged to an outsider, whose claim, though baseless—if one did not look beyond the four corners of the action—was acquiesced in by the nominal defendant.

The mediÆval lawyer was usually a priest, and he had found those entails grievous obstacles in the way of the Church's aggrandisement. Perhaps, too, as the country grew in wealth, so rigid a law of settlement bore hard on an ever-waxing commercial class. To repeal the Statute seemed impossible, but the great landowners, while proof against force and impermeable to argument, were not hard to outwit. A legal complication passed their understanding; and this one, however brazen, had the patronage of many powerful interests. Thus, and thus only, may the fact of their acquiescence be explained.

And now let us trace out the steps in a common recovery with "double voucher." The judges had already made one preparatory breach in the law. A tenant in tail could dispose of his estate if he left other lands of the same value; for these his heirs held under the same conditions as the original property. The principle of this decision was ingeniously used as a lever to overthrow the system.

Suppose A, tenant in tail, had contracted to sell his land to B: he began by formally disposing of it to C, usually his attorney, and technically called "Tenant to the prÆcipe," or writ. Then B commenced an action in the Common Pleas against C to recover the estate in question, which, he asserted, had been wrongfully taken from him. C, instead of defending the action, "vouched to warranty" A: that is, he called in A to defend, on the ground that the said A had covenanted to support his title; but A, instead of defending the action, "vouched to warranty" D. This last, called the "common vouchee" (in the form in Blackstone he appears as "Jacob Morland"), was always the "Crier to the Court," and for playing his part received the modest fee of fourpence on each recovery. At first he (Jacob) made a great show at fight; he denied all B's statements, and "put himself upon the country:" i.e. he demanded that the case should go before a jury for trial. B then craved leave "to imparl" (i.e. to have a private conference with Jacob), and the proceedings were solemnly adjourned. When they were resumed Jacob was not to be found: "he hath (it was adjudged) departed in contempt of the Court." Evidently, or so it seemed, he had no answer to make. Then B's claim was allowed; C was to have of the lands of A a quantity equal to what he had nominally lost; whilst A, in his turn, was to have the same remedy against Jacob, who, having no means at all, cheerfully accepted much paper responsibility. Then a writ was issued to the sheriff of the county wherein the lands were situate, directing him to give possession to B, whose title was constituted by a record of all the aforesaid transactions.

As the centuries went by the proceedings became ever less substantial, the action was always commenced by the issue of a writ in the usual way, but most of the other steps were only taken on paper. Sir Frederick Pollock says, that if the disentailer were a peer, a sergeant was actually briefed to move the court in the matter: also, one must note that lands held from the crown were never subject to this process (nor can they now be disentailed without a special act of Parliament). By another barefaced fiction, colonial property might be disentailed in England. The deed roundly asserted that the island of Antigua (or wherenot) lay in the parish of St Mary, Islington—the operation of this geographical miracle giving jurisdiction to the Court of Common Pleas. One would suppose that something simpler might have served; but though laymen jeered, lawyers regarded these quaint formalities with strange reverence. My Lord Coke mentions with solemn reprobation a counsel named Hoord who scoffed thereat in the House of Lords, and whom a judge gravely rebuked as not worthy to be of the profession of the law, for that he "durst speak against common recoveries;" and as late as 1820, Thomas Coventry, Esq., of Lincoln's Inn, concludes his learned treatise on the subject with an eloquent if slightly confused protest against any change, "which could know no end but an apparent confusion, or clearing away a path for the access of some modern Pretender to strip the ivy from the venerable oak of our boasted constitution, the only emblem that remains of its antiquity and endurance."

And now for a word on fines. These were so called for that they made an end of a controversy. They were simpler and even more ancient than recoveries. A fictitious action was begun by the purchaser against the vendor of an estate, wherein the latter soon gave in: the case was compromised, a fine was paid to the Crown, upon the Court giving its consent to this termination of the proceedings, and the record thereof became the purchaser's title. They were likewise used to bar entails, though they were not so effectual as recoveries. One of the first Acts of the Reform Parliament of 1833 was the Statute for the Abolition of Fines and Recoveries. It was a mere question of procedure, for the law itself remained unaltered: but disentailment was effected by the enrolment of a deed in Chancery. And now the dust lies thick on shelves of text-books—a whole system of learning, full of intricate details, the creation of centuries of perverse ingenuity.

And the land-owners? These, too, long since availed themselves of the dark and subtle devices of the conveyancer. Sir Orlando Bridgman, a great lawyer of the Commonwealth, and finally Chief Justice of the Common Pleas under Charles II., invented and perfected the system of family settlements which to-day secures the secular interests of our great historic houses, as well as, if less directly than, any enactment could do.