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1. The Language of Making Fine

This month Paul Dryburgh, Research Fellow on the project, attempts to get to grips with the essence of making fine in the early thirteenth century by examining some of the language employed to describe the process by which the king’s favour could be purchased.

⁋1At the most fundamental level and particularly in the formative years of their development – throughout John’s reign and the early years of Henry III’s minority – the fine rolls are overwhelmingly a record of money promised to the king for an enormous variety of concessions and favours to individuals and corporate bodies, both municipal and religious. ¹ Such promises, known as ‘fines’, are usually couched in one of two Latin phrases: either ‘dat/dant domino Regi’ (‘he/she gives to the king’, ‘they give to the king’) ² or ‘finem fecit/fecerunt nobiscum’ (‘he/she has made fine with the king’, ³ ‘they have made fine with the king’). Despite this obvious difference in phraseology and tense – the first is present, the latter perfect – ‘gift’ (or ‘offer’) and ‘fine’ have often been considered by historians to be synonymous and to have been employed interchangeably. Is this view justified? It certainly begs the question why two palpably different terms were used if, indeed, their meaning and the physical act that lurks behind them were identical, and takes us to the heart of obtaining the king’s favour in the early thirteenth century. The aim of this article, therefore, is to examine the language of making fine in more detail and to offer some tentative thoughts on what, if any, the difference might have been in practice.

⁋2It is worth stressing, firstly, that we should not necessarily expect consistency in the language of medieval administration or in the work of the many scribes who put quill to parchment in the service of the monarch. Indeed, we run the risk of seeking consistency where none truly existed. Although, as Ben Wild has shown in the Fine of the Month for April 2007, ‘for almost every sort of legal action, royal command or exchequer account, there was a specific written form that scribes were expected to use’, the period in which the fine rolls originated was one of intense innovation. Nicholas Vincent recently remarked that ‘The chancery … under Henry II and Richard I was a place of frequent novelties’, ⁴ an observation which might equally be applied to the reigns of Henry III and his father. The fine rolls probably emanate from the mid-1170s, although the earliest example survives from 1199, the first year of John’s reign. ⁵ This makes it co-terminus with the first charter roll, a running record of the king’s grants by charter, and it slightly antedates the close and patent rolls, records of outgoing letters from the royal chancery, all of which aimed to rationalise and regularise royal bureaucratic authority in England. This process, however, appears to have been organic rather than systematic; written formulae evolved to meet the changing demands placed upon the chancery, which was ‘at the centre of the king’s personal rule’ ⁶ and subject to the immediate ambitions and needs of the monarch.

⁋3There is a welter of evidence, moreover, which suggests that these formulae for making fine were indeed synonymous. In the earliest surviving rolls for John’s reign dare is used almost exclusively to record promises of money to the king, but the roll headings read ‘oblata recepta’, ‘rotulus oblatorum receptorum’ (roll of offers received), ‘rotulus finium receptorum’ (roll of fines received) and ‘oblata curie’ (offers of the court), signs of evolving administrative processes. ⁷ By 1207-08 and then throughout Henry III’s reign the fine rolls are headed ‘Rotulus finium’ (roll of fines) with no discernable change in their essential function of providing the king with a record of money promised to him. This is highly suggestive that, in fact, dat and finem fecit may have been used fairly indiscriminately. In the fine rolls of Henry III’s reign both terms are used in the same context with no superficial difference in meaning. Take, for example, fines for custody of the lands and heir of a deceased tenant-in-chief or to have seisin of lands. In Henry’s second regnal year there are eleven such fines in which dare is employed ⁸ and seventeen with finem facere. ⁹ In the first of these Everard de la Beuvriere ‘gives the king’ 50 marks for having the custody of the land of John of Burnham with the marriage of his son and heir and his first-born daughter and is recorded as having paid 20 marks of this ‘fine’ to William Marshal. ¹⁰ Later in the reign, as marginal headings develop to give details of the content of entries, we find a similar practice. When, in February 1224, William son of Daniel Butler ‘gives the king’ 15 marks for seisin of mill of Worm Hill, the marginal heading reads ‘The fine of William son of Daniel Butler’, while in the following entry a similar marginal heading points to Osbert Gifford, who ‘has made fine with the king’ for the custody of the land and heir of William of Hastings. ¹¹ Finally, occasional scribal amendments might be taken to demonstrate the interchangeability of the two terms. In 17 John, for example, dat is corrected to finem fecit and vice versa in two fines to have seisin of lands. ¹²

⁋4On the other hand, if these terms are indeed interchangeable why would such corrections be necessary? They are perhaps, rather, indicative of other subtle modifications to the language patterns used in the fine rolls in which, it appears, the usage of dare and finem facere developed nuanced, more distinctive connotations, which may reflect changes to the process of making and taking fine at court. Of the many thousands of fines which were made in the first nine years of John’s reign only about a dozen employed ‘finem facere’ to describe the method by which money was promised to the king. ¹³ However, by 1213–14 – no fine rolls survive for the intervening period – finem facere had begun to supplant dare in certain important contexts, the first entry, indeed, recording that the abbot of Lilleshall ‘has made fine with the king’ for confirmation of the lands which Hillary Trussebut and Simon de Linleg’ gave to his house. ¹⁴ Henceforth, and throughout Henry’s minority at least, although it is difficult to be categorical, it appears that finem facere came principally to be associated with fines to do with land tenure and inheritance while dare generally deals with matters of a legalistic nature.

⁋5Certainly, with the exception of a couple of finem fecit entries concerning requests of prisoners accused of homicide to be released on bail, ¹⁵ from Henry’s second regnal year finem facere is rarely, if ever, used to describe a payment made to have one of the rapidly expanding number of writs (of pone, praecipe, pro justiciando and attainder) to process law cases. ¹⁶ When, from around his eighth regnal year, a greater number of writs to have a commission of four knights to take an assize occurs on the fine rolls, again these are all couched using dare. ¹⁷ Conversely, although, as mentioned above, there are eleven ‘gifts’ to have custody or seisin of lands in the roll for Henry’s second regnal year, in the following five years there are none, compared with dozens of finem fecit entries for the same favour. ¹⁸ Furthermore, as the material on the fine rolls expands and evolves this pattern generally holds good. Offers of payment of relief to the king for entry into patrimonial inheritances, payments to hold lands as in John’s reign, payments by widows to have their dower and to stay single or marry as they will, and payments to hold lands by charter are all mainly, but not exclusively, recorded with finem facere. ¹⁹ From around the sixth regnal year, when the business of the exchequer began to be recorded on the fine rolls, many fines to have respite or attermination of debts are also similarly phrased.

⁋6Admittedly, this brief analysis cannot be anything but impressionistic. Nonetheless, it arguably has implications for our knowledge of the process of taking fine and gives us some insight into chancery procedure. Since there is no equivalent to Richard fitz Nigel’s twelfth-century treatise Dialogue of the Exchequer, ²⁰ for the workings of the court and the chancery we have no contemporary description of the process of making fine and the subject has not been tackled in detail by any modern historian. We do not know, for example, where and with whom fines were made. While sheriffs were required to take security from those making fine that they would ultimately pay the sum promised, it is unlikely that when sheriffs came to account they conveyed details of a promise of money to obtain the king’s favour made outside of court (perhaps in the county court) to a clerk of chancery in advance of the preparation of the fine roll. ²¹ More likely, each person requesting a favour from the king either by promising money or, as often happened, a palfrey or hawk made the trek to court or sent an attorney. ²² The preponderance of what might be termed ‘routine’ business on the fine rolls, such as the purchase of writs de cursu; and of the right to hold markets and fairs, both of which are almost exclusively recorded with dare, might suggest that a system was developed in which those people paying for such favours simply made the promise to a royal official at court in the presence of a scribe without any recourse to the king. Such gifts, moreover, were voluntary rather than forced – it is rare, for example, to find a ‘gift’ for relief – and often anticipated an eventual favour; writs could be sought and sued at some indefinite time in the future before whichever court the payee had requested.

⁋7This is, of course, not to say that all business recorded as ‘gifts’ on the fine rolls was routine. Hence the apparent interchangeability of dare with finem facere noted above. But, it does seem clear that the majority of fines which dealt with the seigniorial and tenurial (what might be termed ‘feudal’) rights and privileges of the king were finem fecit entries. The same is the case with his personal will. Numerous fines for John’s grace and benevolence, and for recovery of forfeited lands, were recorded in 1214–15. ²³ The majority of these and of like fines made by numerous rebels who had joined Falkes de Bréauté and had been holed up in Bedford castle in July 1224 are generally finem fecit entries. ²⁴ This, then, is perhaps indicative of the personal involvement of the king in the making of the fine and of an act undertaken by the donor during a visit to court, whether of homage for lands, repentance for past misdemeanours (a kiss of peace perhaps), or the swearing of some kind of oath, be it, amongst other things, to keep royal lands or repay a debt faithfully or of a widow not to marry enemies of the king. ²⁵

⁋8In discussing the enormous fines made during John’s reign, David Carpenter has argued that ‘There can be no doubt that John himself was very personally involved in the processes of bargain and extortion which lay behind these proffers’. ²⁶ It is noticeable, then, that the adoption of the finem fecit formula in the fine roll of his fifteenth regnal year (1213–14) coincides with the extension of his personal authority and the period in which his government attracted greater criticism. As Carpenter has also shown, it further coincides with another change in the compilation of the fine rolls, dates being regularly ascribed to individual entries, and an increase in the volume of material enrolled with direct import to the functioning of the exchequer. ²⁷ It is clear that a change of policy had been made between 1208 and 1213, which perhaps belied a more systematic approach to taking fine, routine material or financially less significant promises being hived off to chancery officials and fines with which the king had a personal interest being made either with the king or in his presence. ²⁸

⁋9Undoubtedly, the process of taking fine in John’s reign had attracted baronial criticism. Clause 55 of Magna Carta demanded that ‘All fines given unjustly against the law of the land, and all fines unjustly exacted, shall be entirely remitted …’ The king’s will to exact fines was subsequently constrained both by the Charter and, after John’s demise, by Henry III’s youth. The early years of his reign witnessed the primacy of, first, the regent, William Marshal, and then a triumvirate of ministers – the justiciar, Hubert de Burgh, Pandulph Masca, papal legate, and the bishop of Winchester, Peter des Roches. ²⁹ If, indeed, finem facere implied the personal involvement of the monarch, during Henry’s minority it appears his chief ministers took over some of these responsibilities. As we have already seen, Everard de la Beuvriere paid William Marshal some of his fine to have the lands of John of Burnham. Robert Mauntel, too, apparently ‘made fine’ with Hubert de Burgh for his relief of half a knight’s fee in London pertaining to the honour of Peverel. ³⁰

⁋10Unfortunately, until a more detailed study is undertaken both of the rolls of the first quarter of the thirteenth century and of later fine rolls, it is difficult to be conclusive about the nature of the terminology involved in making and taking fine. The foregoing analysis is a first attempt at examining the wealth of information to be found in the fine rolls in this regard. The argument is by necessity impressionistic and may indeed be flawed in seeking consistency and deeper meaning where none should be sought. Nonetheless, it is clear that thirteenth-century chancery procedure rapidly developed to meet changing requirements. It could well be that one such change was to the practice of making fine as expressed in the language of the fine.