A DISCOURSE OF FINES.  
SHOWING By what easy (although corrupt and unlawful) method of practice it may happen, that any person or his Heirs in England, at one time or other, to be legally defrauded and disinherited by abuses in Fines.  
Stabitur presumptioné, donec probatur in contrarium. Quod alias bonum & justum, si per vim vel fraudem petatur, malum & injustum est.  Lit. cap. Remitter. 
By T. L. of Lincolns-Inn Esq   


Fines at the Common Law, and confirmed by divers Statutes.  
THey were anciently levied before the Justices of the Court of Common-Pleas in Court, to the intent the said Justices might be fully satisfied, and judge the Conusors' of such Fines to be the parties themselves, of full age, free from Dures, Ideocy, and Lunacy: And if they doubted whether it was the party, than proof was to be made to them of it: And also if a Feme-covert be one, that she be solely and secretly examined, as to her age, consent, and consideration for her levying such Fine; and be acquainted with the nature of it, lest that her Husband should by any threats or fraud, endeavour the obtaining her Estate by any undue and unlawful practice. And if the Court were unsatisfied as to his or her age, than they to put him or her to their Oath: And if not satisfied therewith, than such parties to make proof thereof by the Church-Book, or otherwise.  
The Common Law, as to the manner of it, is confirmed by the said Statute; the words of which Statute be, that such Fine to be acknowledged by the party himself who ought to be of full age, 
Stat. de Finibus, 18 E 3.  of good memory, out of Prison, etc. And if a Feme-covert be one, she must be examined by four of the said Justices, as to her consent, etc. The reason given by the said Statute, and reason of the Common Law, why there is used such solemnity in levying of Fines, is, a Fine being a Record of a high nature, and will not be presumed to lie, and will admit no Averment against itself. It being taken for granted in every Case, where a Fine is levied, that there hath been the aforementioned care and examination; and that the Court hath been fully satisfied, that such Conusor was the same party, of full age, free from Ideocy, Lunacy and Dures. The Statute, 32 H. 8. maketh exception of Infants, Idiots, etc. levying of Fines, and divers other Statutes; so as 'tis evident, that such persons, neither by the Common or Statute-Laws of the Realm, are intended to make any disposal of their Estates.  
The said Statute reciting, Whereas there were many aged and impotent persons that lived in remote places of this Kingdom, 
Stat de Carlisle, 15 E. 2.  who by no means could come before the Justices in Court to levy Fines, so as to settle their Estates; To prevent which inconvenience, the said Statute doth provide two or one of the Justices, by the assent of the residue of the Bench, to visit the party so diseased: And if one go, he shall take with him an Abbot, or Prior, or Knight of good fame and credit. And hereof the Writ of Dedimus Potestatem had its beginning, and intended to be granted in such cases only where the parties were not able to come to the Court; and accordingly was framed: A praefatus A, adeo impotens existit, quod absque maximo sui corporis periculo usque ad Westm. ad diem in brevi praed. content. ad recognitionem, quod in hac parte requiritur faciend. etc. Which form albeit continueth to this day, yet sometimes the Conusans is taken of them which are in health, and able to travel; and sometimes when the Conusors' are in health and in Town, to the apparent abuses of the power given by the Dedimus, and to the ruin of Families.  
A Dedimus Potestatem is sometimes given to a Sergeant at Law or Knight, with other persons joined with them: Any two of which may return the Caption: All which persons are to inspect the persons, and examine them, and be satisfied that they be the same persons, of full age, not Idiots or Lunatics, and free from Dures. But in case there be no Knight at the Caption, then is one of the Justices of the Court to give an Allocatur or allowance for passing the same.  
The Chief Justice can, ex Officio, take a Fine.  
The common abuses used in levying of Fines are, where one person doth represent another: in Case of Infants: in Case of Non compos mentis: in Case of Dures or compulsion; and in Case where a Feme-covert is cheated in the uses of such Fines, or not examined.  
The common way as these abuses are hatched and framed in deceit of the Law and Court of Common Pleas, are either by Dedimus Potestatem, directed to Mercenary persons, who value not their reputation; or such as connive at, or contrive the doing of it; ignorant persons in such affairs. And in some Cases where such Commissioners and Courts themselves are deceived: of all which I shall give an account, and thew what remedy hath been formerly used to recompense the parties abused by such practices: And what are the remedies at this day: As also, how just the Law is in Cases of the like nature in lesser concerns.  
The Case was, that Hubert being convicted in Star-chamber, by Bill exhibited against him for procuring one Webster to counterfeit himself to be one Gellibrand, 
39 Eliz in the Star chamber, Hubert's case. Croaks Report.  and to acknowledge a Fine in his name before Commissioners procured for that purpose, of Gellibrands land: The sentence in that case was, that he should make Fine to the Queen, and should be imprisoned; and that the Fine should be void, if it could be done, by entering a Vaeate; if it could not, than Hubert, by Fine, or otherways, as the said Gellebrand should devise, should reconvey the Land to him and his Heirs, in the same manner as it was before, at the time of the Fine levied. My Lord Coke in his 12 Rep. in Hu●gates Case, says, that this Fine could not be vacated; so that Gellibrand was otherways relieved.  
The Earl of Exeter bought a Lordship in Lei●●ne●shire, of a Gentleman who had formerly made his Wife a Jointure of it, 
T●●. ●re 〈◊〉 the S●●●●ch 〈◊〉.  who covenanted with his Lordship that he and his Wife would levy a Fine of it; but could not get his Wife thereto: but he and another woman, whom he suborned and hired to come in his Wife's place and name to join with him to levy a Fine, which accordingly passed at the Bar of the Court of Common Pleas; and shortly after the Gentleman dies, and his true Wife entered and claimed her Jointure. The business being brought into the Star-chamber, and there proved, the said Earl was glad to allow her her Jointure, or that which was equivalent; but the said Fine stood good against her. The Statute of 21 Jac. 26. doth provide, that any person acknowledging any matter of Record in another person's name, the said person not being party or privy thereunto, that it shall be Felony in such person. But if (as in the cases beforementioned) one person should acknowledge a Fine in another person's name, and this person as should so acknowledge the same, should be convicted thereof, according to the Statute; yet such Fines shall stand good, because it is a Record of a high nature, and will admit of no Averment against itself.  
Where Lands were demised to one Bushley, in tail remainder over, Bushley proved an Idiot and deformed Creature: 
Tempore Jac. Bushleys' case in Common Pleas.  one Nicols and others doth get him into their custody, and carries him to a place unknown, and there kept him in secret, until he had acknowledged a Fine to one bottom before Justice Southcot, to the use of the said bottom: which business being examined by my Lord Dyer, and the rest of the Justices of the Court of Common Pleas, they declared this Fine to be good, and not reversable, notwithstanding the practices and Ideocy; but declared that the Judge that took the same, was not worthy to sit to take another: which Case was, as I have heard, examined in the Star-chamber, and the parties judged to pay fine to the King, and imprisoned until recompense: But what was done to the Judge I know not; there are several precedents, where Judges, Commissioners, and other Offenders have been fined, where there hath been any apparent neglect or contrivance proved against them.  
Butcher having married a Wife, who had 20 l per annum Inheritance, and an Infant of nineteen years of age, 
Butcher's case, tempore jacobi in Star-chamber.  gets a Dedimus Potestatem directed to two Gentlemen, who examined her, and took her to be of age; so as the Caption was returned, and the Fine become a Fine of Record: his Wife not long after died without inspection; her Heir brings his Bill of Complaint in the Star-chamber against Butcher and his Commissioners, and there proves that Butcher knew her to be an Infant, and did notwithstanding practise the procuring of this Fine in deceit of the Court. The sentence was, That he should make Fine to the King, and recovery by Fine, or otherways, to his Wife's Heir, or pay 400 l which was the value of the Land; but the Fine could not be avoided.  
One Carrel marries Johan Heir of Waincomb, an Infant about nineteen, who by Dedimus Potestatem acknowledged a Fine of her Lands, and dies without inspection: 
Waincomb and Carrels' case, tempore Eliz. in Star-chamber, 18 Rep.  The uses of which Fine being to the said Carrel for his life; and after his decease, to her Heirs. Waincomb Heir of Johan, brings his Bill in the Star-chamber; where the business being examined, and it not appearing that Carrel knew his Wife to be an Infant, nor any practice or neglect in him or the Commissioners; and the settlement to be but reasonable, being but for life, which he would have had, in case he had a Child, as Tenant by Courtesy; and the Estate being not fully taken out of her blood, the Court gave no sentence therein.  
Note, That the laudable Custom of Tenancy by the Courtesy, is allowable no where but in England, the next Heir in all other places entering immediately.  
This Parliament hath been pleased to examine the undue procuring a Fine levied by Sir Edward powel Knight and Baronet, and his Wife; the same being procured by fraud on his Wife; which Fine was by them made void, which could not have been otherways done.  
The relief of Heirs and other persons prejudiced by Fines deceitfully levied in the Common Pleas, in the Star-chamber, and their sentences for such misdemeanours, was a terror which prevented many attempts, which possibly would have been practised on Fines and Recoveries, in case that had not been. The want of which Star-chamber to punish and rectify such abuses in Fines, is at this day the daily ruin of many a Family: for how easy is it to get qualified Commissioners in this corrupt age, to return the Caption of Fine of an Infant of five years of age, or of a person they never saw nor examined; by which means they may do and dispose of any Estate as they please? And if such Infant shall die, and not reverse the same, it shall bind him and his Heirs. And how easy is it to get one person to represent another to Commissioners, and they to return the Caption, and this person to go beyond Sea, and 'tis possible may never be discovered? being an easier way to get money then on the Highway (the one way of getting money, being as just and reasonable as the other) And how many persons may by this means get his Wife's Inheritance or Jointure from her? and when she shall examine the business, there must be admitted no averment against a Record.   

How reasonable the Law is in Cases of smaller concerns, where men are not concluded by a presumption of solemnity, so easily avoided by corrupt persons.  
IF any Infant bind himself in any Bond or Deed, or alien any Lands, Goods or Chattels, he may avoid the same at any time whatsoever, 
Coke sur Litt. Sect. 259.  either by Plea or Writ, or his Heir may avoid the same. Infancy being a good Plea in bar to all Actions, except for necessaries, as Diet, Clothes, etc.  
If any Idiot, or Non compos mentis, make any Feoffment, Gift, Lease or Release, etc. it may be avoided during his life, by Office at the King's Suit, which shall have relation from the time of his Nativity, to avoid all acts done by him; and after his death, the King shall deliver his Lands to the right Heirs. Fitz-Herbert in his Natura Brevium says, 
Berverlys' case, 4 Rep.  he may avoid such act done by himself, either by Plea or Writ; and that his Heir may avoid the same by Entry, Plea or Writ, is the opinion of all the Books.  
If one person doth represent another, and borrows money, and giveth Bond, or any other assurance in any others name, he may avoid the same, by pleading Nonest factum, or such like Plea; and so puts the other to prove that he was the person that borrowed the same; or his Heirs, Executors or Administrators may have the same Plea.  
If any person be imprisoned, or forced to enter into Bond, or promise, or any other assurance of the like nature, he hath his Plea per Minas or per Dures, which is a Bar in any such case; But if any of these abuses happen in the levying a Fine, none of these just Pleas can be admitted, for the reason before mentioned, it being a Record of a high nature, and will admit of no Averment against itself; and presumed to be done with such solemnity, as aforesaid: Whereas, persons that practise such deceits, do for the purpose get a Dedimus Potestatem, directed either to such that contrive their designs, or ignorant persons, or such as they are sure will take and pass the same: And this when the Conusor might well come to the Court to acknowledge the same.   

What acts Feme-Coverts are capable of doing, not being of Record.  
WIthout doubt our Ancestors, if they had thought it reasonable or convenient, that a man having married a Wife, should dispose of her Estate as he pleased, would not have tied him up so strictly as they have by the Statute of 32 H. 8. cap. 28. where they have provided, That no Husband shall make any Lease of his Wife's Inheritance, without her joining in it: And although she do, it must be thus qualified, That the Rent be reserved to the Husband and Wife, and to the Heirs of the Wife: And also must be reserved the Rent it hath yielded within twenty years; and such Lease not to exceed 21 years, or three Lives. It doth also provide (notwithstanding all this regular caution) That the Wife be of full age: And every Lease made by the Husband and Wife that is not thus qualified, is voidable. Before the Statute, no Feme-covert could make a Lease but for her own life.  
The Statute and Common Law, in all Cases, doth give great respect to persons that claim by Inheritance; insomuch, that my Lord Coke says, That if it were possible that two persons could have an equal title to any one Estate, the one claiming by Inheritance, the Law would prefer his title before the other: And nothing is more sacred to any person, than his birthright; nor any thing a greater spur to any persons honest industry, than the thought and moral certainty of his Relations reaping the fruits of it.   

The Star-chamber being put down, there is now left no remedy to any person that is injured by the undue procuring of Fines, but by the Justice of Parliament, which are uncertain as to their sitting, and so the proceeding therein tedious and chargeable, which makes many an injury to the rain of several persons pass unexamined, esteeming the remedy as bad as the disease, if it happen in a small concern.  
The want of relief, and severe punishing of offences of this nature, makes the same seem justifiable. There is hardly any Countrey-Sollicitor or Attorney, but is able to advise how a fine may be levied and procured, in any of the Cases beforementioned, and it being good, being done, they matter not how they get it.  
'Tis certain, there hath been more abuses in Fines, since the putting down the Star-chamber, than ever was before; there being no Case in the Year-books, and other ancient Law-books, where any persons incapacited by Law ever levied any Fines. The solemnity beforementioned being so duly observed by the Court of Common Pleas, as 'twas almost impossible to get any such thing done; which solemnity is at this day observed by the Court; so that every person that acts any such thing, does it by Dedimus Potestatem directed to such Commissioners as are before mentioned.  
In Michaelmas Term 1667, there was examined in the Common Pleas a dangerous precedent, but remarkable Case of an Infants levying a Fine; which was, that a Gentleman within ten miles of London, in Michaelmas Term, 1664, procured marriage with an Heir, who lived about the same distance, against her Mothers and Guardians consent: Her Mother and next Heir apparent, do the same Term repair to the Court of Common Pleas, where her Mother doth make Oath, That her Daughter was an Infant of eighteen, married against her consent, and Heir to Lands of 500 l per annum value. And upon this, prayed the Court to take notice thereof; and that if such persons should attempt to procure any Fine of the Infant's Lands, that they would not permit it. The Court do accordingly take notice thereof; and for further security, do make a positive Rule, prohibiting any Fine to be levied, during the minority of this Infant; and do order the same to be left with the Clerk of the Kingsilver, which was accordingly done: Notwithstanding all which, and her Husband knowing his Wife to be an Infant, and of the Rule of Court prohibiting the same, he doth in Trinity Term following procure a Dedimus Potestatem directed unto two Soldiers (procured for that purpose) who did the same Term in a Councillor's Chamber in the Temple, the Court of Common Pleas sitting at Westminster, take the acknowledgement of a Fine from the Infant (she being in health) never examining her as to her age, pretending themselves ignorant in such affairs, and what they did, was by the advice of the Councillor there present, who knew her to be an Infant; and do there make a Deed, leading the uses of this Fine, settling the Estate to the Husband and his Heirs. Afterwards they came to one of the Justices of the said Court, who not remembering the Rule, doth unawares give an allowance for passing the same; and do not long after, in the Sickness-time, come to the Kingsilver-Office, and do there prevail with a Clerk of that Office to pass the same. The Wife dies in August 1667, without any Issue of her body, Her Heir next Term complains to the Court, and shows these practices; as also that the Wife (notwithstanding her incapacity of Infancy) was manifestly surprised and cheated in the uses of the said Fine, she being informed it was for one use, and it made to another. Notwithstanding all undue procuring of the said Fine in deceit and contempt of the Court, their own Order against it, and the Infancy of the woman confessed on all hands; yet could not the Court vacate the said Fine, and declared that the same could not be vacated, but by Parliament: But because the Husband knew of the Rule of Court, and did practise the procuring the said Fine in contempt and deceit of the Law and Court, the Court committed him to the Fleet, and fined him.  
Note, that almost every Estate in England, either hath, are, or may be enjoyed by Infants, or persons not qualified by the Law to dispose of their Estates; if so, what security hath, or may have any person that shall or may claim any Estate after them? It may be answered, that if any such person make any Deed of Gift, Lease, Release, or such like act, it not being of Record, shall not bind him nor his Heirs. And further, that he cannot dispose of the same by any Act of Record. The Court of Common Pleas taking such care to prevent unqualified persons levying of Fines, as they will not suffer any such Records to pass in their Court, being against the Statute and Common Law.  
But we find by experience, that unqualified persons have disposed of their Estates by tricks devised in deceit of the Court; and that the parties, and their Heirs, are remediless, because the Court cannot help them: And this become a common practice.  
The best way is, if the Heir or other Relation suspect any such trick to be put on the Court, to give notice thereof to the Court, who will take particular care to prevent it. This also may prove as ineffectual, as in the last Case, and as remediless, if once done; for 'tis the act of the Court, and presumed to be done with such solemnity, and the Court fully satisfied the party to be no Idiot, Lunatic, Infant, the same person; and if Feme-covert, to be secretly examined, and informed of the nature and quality of the settlement, to prevent their Husbands overreaching them by any fraud or practice; although it be done by a Commission directed (as it was in a late Case examined in that Court) to Cleavers of Wood, Soldiers, or any other inferior ignorant persons whatsoever, and against the rule of the whole Court.   

The Nature of an Inspection.  
THe formality of which is, that the parties must voluntarily come into Court, that the Court may see them, and take proof of their Infancy (the Court taking themselves to be sole Judges in this point) which they enter on the Record, and the same is avoided by Writ of Error: and this to be done before they come to the age of one and twenty. In several Cases I meet this Maxim, Vbi eadem ratio, ibi eadem lex; which if I fail not, doth not follow in this particular. The intent of an Inspection is only to satisfy the Court as to the party's Infancy, and so to make it void: If the Court can be otherways satisfied as to the Infancy, there is eadem ratio that it should be void, but not eadem Lex, as in the Case last mentioned, where the Court was fully satisfied, both before the Fine levied, and afterwards upon the examination of the practice.   

Deceits which happen by Inspections.  
There is very seldom any of these Inspections, but there is some deceit intended by them, either where an Infant hath levied a Fine, and some one hath upon the reputation thereof lent moneys, and taken the Lands for security, or purchased the same to deceive such person, either of the Land or Money, they then come to be inspected, and so avoids the security or purchase, and gets both the Land and money; as it was in one sherlock's Case, cited in Styles Reports, and divers other Cases of like nature: The Maxim such a Purchasor hath for his Money, is Caveat Emptor.  
The reason why there are so few Inspections, is;  
1. Because such Infants must be inspected before they come to age, so as they often come of age before they understand the nature of it: and when they understand it, they cannot be permitted, it being to be done in the Minority.  
If a Feme-covert-Infant levy a Fine with her Husband, she cannot be admitted to bring a Writ of Error in her own name, but her Husband must join with her; who will not suffer it, unless it be for his benefit: As it was in Trinity Term, 1669, declared in the Court of Common Pleas, when a Husband had unduly procured his Wife an Infant under twenty, to levy a Fine of her Land. The Heir apparent injured by the same, doth the same Term complain to the Court. The Husband and Wife are ordered to come into Court. The Wife informs the Court, that it was her desire what she had done, and that she did freely acknowledge the same. The Court told her that she was incapable of consenting and doing what she desired: And then made an Order, that her Husband and she should join in a Writ of Error to vacate the said Fine. Which Order the Husband disobeying, the Court committed him to the Fleet, but could not by any means vacate the said Fine, or otherwise compel the Husband to join: So that if the Husband die not before she attain her age, although she should never so much desire the reversing of the same; yet this inconsiderate and unlawful act of hers, shall be conclusive to her Heirs and Self.  
3. Because such Infant doth often die under age without inspection, and so cannot be brought to be inspected.  
4. In some Cases where such Infants are deceived in declaring the uses of such Fines, such Fines and Deeds leading the uses thereof being commonly done after a Clandestine manner, without the advice, privity or knowledge of any of the Infant's friends, who should advise them; and they telling them that it is for one use, and they make it o another: of all which abuses there are Cases too plentiful.  
I am incertain whether the Dedimus Potestatem be granted upon a bare suggestion of infumity and inability, or upon an Affidavit. It is all one whether, if it be false: An Oath being only a more solemn manner of lying; and he that will suggest a lie to a Court, will scarce stick to swear one. The Judge who alloweth the Fine, doth give the Commissioner or Solicitor (who are to be present at the acknowledgement) their Oath; who are to satisfy the Judge as to the manner of the acknowledging the same, and that the same was according to Law (which is) that they were not Infants, Idiots, etc. If the Judge be satisfied with such Oath, he allows the Fine. Not withstanding which, persons incapacitated by Law do levy the same; such Practisers procuring a Knight to take the Caption, and so it passes without Oath, or an Affdavit-man for that purpose. Practisers of unlawful things, seldom stumole at a false Oath, if that may effectually forward their practices. From the validity or such practices, there is raised a corrupt Maxim,   

Factum valet quod sieri non debet.  
There is very little difference in honesty and justice, between a Fine obtained by such fraud and practices as aforesaid, and a Deed that is forged, razed or forced. The difference which is, is this, That a man hath liberty to defend himself against the one, but is concluded by the other.  
How unreasonable is it that a Fine being good, being levied upon the presumed solemnity, and care taken before it was levied; which solemnity and care is avoided; so that the solemnity and care in these cases is the equity and reason why such Fines are good; which solemnity and care being wanting, the Law is wanting of its equity and reason; and where that happens to be, it is Summum jus, which is accounted Summa injuria.  
Since it is evident, that it is provided by the Laws of this Realm, that no one person shall represent another to acknowledge, any thing on Record to the prejudice of that other; nor any Madman or Idiot, persons under age, persons forced against their wills, to make any settlement or disposal of their Inheritances, to the prejudice of themselves or Heirs; and that there hath been tricks and devices found in Law, whereby such practices are done in deceit thereof (and against the particular care of the Court, they having notice, and making Orders to prevent such abuses) to the ruin of Families; and if not prevented, will be to the ruin of many more: And that there hath been formerly a remedy, by which many a wronged person by such practices had relief; and that such remedy is taken away, and the abuse become almost remediless: It may well consist with the honour and interest of a Parliament to provide a remedy, whereby such offences should be severely punished; and the persons wronged by such practices, relieved against them, as they formerly were.  
That these abuses by Fines may be remedied, is the wishes of T. L.  
FINIS.