^i'JiliioSi ;;: WM Author , ^v *o^ Title r CsMi Intiprint. 10—47372-2 THE "NEWDIGATE FINE" BY W. T. R. MARVIN, L. H. D. ^ ° uu o I a> THE NEWDIGATE FINE BY Wi 't. R. MARVIN, LiTT. D. F 14 GsKI COPYRIGHT, I914 GEO. R. MARVIN BOSTON, MASS. SIXTY COPIES REPRINTED FROM THE PUBLICATIONS OF THE BOSTONIAN SOCIETY ftB 28 19)4 ©CU36 9175 FOREWORD This paper was prepared by Dr. Marvin at a time when he knew that in all probability he would be unable to read it before the Society. It was completed only a few weeks before his death. With no previous experience in such transcription, with failing sight and strength, Dr. Marvin spent hours in patient and painstaking study, and finally arrived at a practically complete and substantially accurate trans- lation. Being obliged to work from a photographic copy of the original which is too cumbersome to handle, and being confined to his home, he was limited in his resources, and therefore there were certain omissions and errors in his translation which he was unable to correct. Through the courtesy of Mr. Frederick L. Gay, of Brookline, a member of the Society, the paper was sent to a professional scrivener in London, who has revised and completed the transcriptions and trans- lation. As the article is now printed it is accordingly the work of Dr. Marvin, checked and corrected by a com- petent authority. The result is an accurate deciphering of one of the most interesting legal documents in the country. • THE NEWDIGATE FINE BY W. T. R. MARVIN. UTT. D. )MONG the collections relating to the history and antiquities of Boston in the possession of our Society, is a curious old document, framed, written on parchment, twenty-seven inches wide and twenty-one deep, to which is attached a large seal, four inches in diameter, with the Royal Arms. In the upper left corner is a portrait of King James the Second, of England, adorned with elaborate pen and scroll-work, his title, in large Old Enghsh letters, running across the top, with a very ornate border of foliage above, animals of wondrous form, etc., conventionally drawn after the fashion of the times, and a much simpler border at the sides. Similar 6 The Newdigate Fine parchment blanks were evidently a part of the usual stock in trade of the law-stationers and scriveners of the period ; they served to furnish a suitable heading or prefatory page for documents deemed of more than ordinary importance. The location of the shop of the stationer from whom this was purchased appears in a line of small script, below a threatening dragon, near the lower part of the border, and reads, " Sold in Clif- fords Inne Lane." The language in which this document is written is the peculiar Latin used in the Courts of the time ; as engrossed, it is full of contractions, — conventional abbreviations, in the custom of the professional scriv- eners (then a body of much importance), and in the style of penmanship which they affected, — many of the letters, especially the capitals, being entirely unlike those in business use. How the ordinary layman, when handed such a document by his counsel, could discover its meaning without an interpreter, is a mystery. It was doubtless the difficulty of deciphering this manu- script, when not only the mode of procedure under which it was drawn, but the language in which it was written, — the old "law-Latin, flavored with Norman French," — had passed almost entirely from use at the bar, that led to the misstatements as to what it really was when it was presented to the Bostonian Society. Perhaps we cannot do better than reprint the description as it appeared in the Society's Catalogue of its possessions. The Newdigate Fine 7 Nathaniel Newdigate's " Fine," or grant of land at Rumney Marsh, June 15 ; recorded Dec. 21, 1687, "for his Majesty, James II's territory and dominion of New England;" given by Governor Andros to replace the deed declared void after the overthrow of the first charter of the Massachusetts Bay Colony ; an original deed, beginning, " Jacobus Secun dus," written in black-letter on a sheet containing the por- trait of the King, printed in scroll-work, and a border of animals, with the written words, " Sold at Clifford's Inn Lane ; " at the bottom, the signature of the King and an impression of the Great Seal in wax ; probably the only such original conveyance in America. Given by William W. Greenough. The numerous errors in the foregoing (some of which were pointed out by Judge Mellen Chamberlain in the first volume of his " History of Chelsea ")* cannot justly be attributed to Mr. Greenough, but must have origi- nated in the attempt of some inexperienced person to preserve the traditions concerning this interesting docu- ment, when it was given to the Society. It is correctly called " Nathaniel Newdigate's Fine." The " grant of land " (so-called, but improperly, according to an old * " This document, the text of which is in Latin, and the script old style and very ornate, seems to have been incorrectly labelled and catalogued. The seal attached is neither the private seal of Andros, .... or the seal of New England .... All but the first page is missing ; it appears to be the judgment or fine of the Court of Common Pleas at Westminster, England, in a common recovery to bar the entail." (Vol. I., footnote p. 80). 8 The Newdigate Fine authority), was not "given by Governor Andros to replace the deed declared void, etc.," but came from the Court of King's Bench at Westminster, and has the official signature of the King, probably not an auto- graph, but placed there by the proper Court officer (the official chirographer who also signs), and the special Royal seal set apart to be used for such purposes, which must have been attached in London. The story that it was given by Andros to replace an earlier deed, probably grew out of one of the well- remembered slurs on the early Indian grants to the Colonists. When the haughty Royal Governor declared that those old deeds were worth no more than the scratch of a bear's paw, the alternative to the propri- etors was resistance to Andros, or petitioning for new deeds. " Nathaniel Newgate, owner of the great Newgate farm at Rumney Marsh .... was among the first to perfect his title by petition* .... June i, 1687, an Indenture was signed between Nathaniell Newdigate alias Newgate of London, merchant, and John Shelton and Nicholas Brattle, also of London, according to which Newgate agreed to levy a ' ffine sur Conusans de droit come ceo &c.' during 'this p''sent Trinity Term' in the Court of Common Pleas at Westminster for his lands in Charlestown .... unto said Shelton and Brattle, * Chamberlain, History of Chelsea, I, pp. 79, 167, 168. The Newdigate Fine 9 said fine to enure to the use of said * Nathaniell Newdi- gate alias Newgate his heires and Assignes for ever and to and for none other vse intent or purpose whatsoever.' The first page of the fine levied in pursuance of this agreement hangs on the walls of the Bostonian Society's rooms in the Old State House. " Both the indenture and the fine were recorded ' by John West, D. Secry ' in the ' Secrys Office for his Maties Territory and Dominion of New England att Boston,' December 21, 1687 .... It is known that New- gate was in Boston as early as November 15, 1687, and was desirous of selling the farm. Possibly he hoped that the court's judgment would strengthen his title to resist attack by the Andros government." * A layman, unskilled in the law of England as prac- ticed three centuries ago, might well suppose that this Fine with its ornate heading, its pompous array of royal titles, and its great seal attached at its foot, was the original document complete as we have it ; but an examination shows that it has no signatures of the parties concerned, whereas William Brown, an English authority, whose work on Fines, published in 1725, is mentioned below, says, "The Cognizor must subscribe • " Mass. Archives, cxxix, 54, (autograph petition endorsed ' i6d July 1688 — Pet of Nathll Newgate.') A deed or fine, as it was called, — the only original known to me, — .... Its date is 1687, June 15, and it was recorded .... but not with Suffolk Deeds, — possibly in a sepa- rate volume now lost." (Chamberlain, Footnote, p. 79.) lO The Newdigate Fine his name at the right hand side." From this and the wording of the document it would appear that this manuscript is what is technically known as the Chiro- graph of a Fine, that is, an official copy attested by the royal seal, issued in duplicate to the parties to the con- veyance it embodies, and retained by one of them. Judge Chamberlain was therefore partly correct when he said it was only the first page of a conveyance, and the rest lost. The Judge remarks that it is " the only original known to him." We know of no other Chirograph of a Fine in this country, but have been informed that there are fragments of Fines in other Libraries, which have not been translated, so far as we are able to discover. At the time when Fines were in use, the word had various significations, and was not confined to penalty, as one might naturally suppose. In seeking informa- tion concerning the subject, the better to discover what our mysterious document had to reveal, I have con- sulted several ancient legal authorities of the seventeenth and eighteenth centuries who have written on Fines. One of the most enlightening of those I found is in the Library of the Harvard Law School, — a volume which once belonged to William Read, Esq., a prominent Bos- ton attorney in his day. It is entitled, " The Law and Practice of Fines and Recoveries, by R. Manby, late of Lincoln's Inn, Gent. London, 1738." From this au- thority, and one or two smaller works of later date, I „,,„„, SEAL OF THE K.NG.S BENCH, WESTMINSTER Affixed to the •■ Newdigate Fine The Newdigate Fine 1 1 have gleaned the material given below, for which I make this general acknowledgment. Fines were used for numerous purposes at various times, but we must confine ourselves to the particular style and use of the class to which this belongs. At the period when the Newdigate Fine was levied, a Fine was "an instrument of Record (improperly called a deed) of an amicable composition or final agreement made in a formal fictitious suit betwixt parties by their own consent, without real controversy, concerning Lands, Tenements, etc., by the consent or license of the King or his Justices in the Court of Common Pleas It is called a Fine (Latin Fhiis), because it makes a final agreement and end of all controversies," " It supposes a Litigation or Controversy to have been, where, in reality, there has been none, but only invented and made to secure the Title a Man has in his Estate against all Men, or to cut off Entails, etc." Fines were said to have six parts ; the first is the original writ and the precept containing the mandatory words to the Conusees to hold covenant with the Con- usors. The Conusee is the fictitious demandant, or claimant ; the Conusor is the fictitious defendant or " Deforciant," which position he voluntarily assumes. The Conusor levies the Fine. (Manby, p. lo). The " Conusance is an acknowledgment that the lands, etc., contained in the writ belong of right to the demandant, as land which he has of the gift of the Tenant, with a 12 Tke Newdigate Fine general release and warranty to the Conusee and his heirs." The second part is that known as the "King's Silver," the fee paid when the permission to agree {licentia concordant) is granted by the Court. Third, the " Concord " or agreement between the parties. Fourth, the Note of the Fine — an abstract of the original writ, taken out by the chirographer. Fifth, the " Foot of the Fine," wherein are included the parties, the thing granted, the date, year and place, and before whom the " Concord " was made. It is called the Foot of the Fine because it is the last part. The sixth part consists of the "Proclamations," not an essential part, and needs no comment here. It is called a Fine, " finalis Concordia, quia finem litibus imponit" — i. e., because it puts an end to litigation. Before leaving this part of the subject, it will be interesting to note how easily some of these fictitious law-suits were nullified on occasion. Cruse (in Social Law Library), writing much later, says, " In later times the tenant calls on some other person, a fictitious char- acter, nominally supposed to have warranted the title, praying that he may be called in to defend it. This voucher — customarily the Cryer of the Court of Com- mon Pleas, appears in Court and assumes defence. Demandant asks leave of Court to confer in private with the voucher, which is granted. The demandant returns and the voucher disappears or is defaulted, and the demandant recovers." The Newdigate Fine 13 As to the Latinity of this document, it was doubtless quite in accord with the standard practice of the times, but the chirographers and scriveners used so many con- tractions (as was the universal custom), abbreviations and quaint terminals, that only an expert was competent to explain to a layman just what meaning was intended. Of these this Fine seems to have its full share. As good an example of some of the simplest of these con- tractions as the writer can cite, will be found in the fourth and third words from the end of the first manu- script line of our original. The last character of each of the two closely resembles the Roman numeral 3 ; it indicates an e. The words, if written in full, would be literae nostrae, but the chirographer's quill has con- densed the seven letters in each into three characters each. Numerous similar contractions, some much more difficult to explain, occur throughout the document. It is evident that errors in grammar, as well as those growing out of indistinctness, in these contractions could not fail to occur. It was in recognition of this danger that a statute was enacted (as we learn from Cruse), in the reign of Queen Elizabeth (XXIII : c. 3 ; f . 2), which provided that " No Fine shall be reversed for false or incongruous Latin .... interlining .... or want of form in words and not in substance." With such a law on the statutes, no very high standard of accuracy — one might almost say of care — was to be expected. 14 The Newdigate Fine These contractions constitute the chief difficulty in deciphering the document. Fortunately, in a complete copy of an original Fine, printed in Latin, in Manby, and in a Form for Levying a Fine, explaining its parts, etc., in a " Treatise on Fines by William Brown : E. & R. Nutt and R. Gossling, In the Surry, MDCCXXV," I was able to find a number of forms of expression corresponding to doubtful words in Newdigate, which proved very illuminating; indeed, without these, my labor which has occupied the greater part of my leisure for the last year, would have proved fruitless. It has seemed best to give not only the abbreviated form transcribed as nearly as type will follow the original but also the Latin words at length, without the contractions and abbreviations, as less confusing. With this long, but I hope not needless preliminary explanation, I submit my reading to the charitable con- sideration of my fellow-members. The Newdigate Fine 15 CHIROGRAPH OF A FINE The Transcript Transcription of the Latin as Abbreviated in the Original. The Scrivener's Signs of Contraction are Necessarily Omitted. The Ends of the Manu- script Lines are Indicated by Numbers in Paren- theses. Jacobus Secundus Dei gra Angl' Scocie ffranc' & Hibnie Rex fidei defensor &c. omibz ad quos p'sentes Ire nre pven'int Saltm (i) sciat' qd int' Recorda ac pedes finiu' cum pclam' inde fcis scdm formam Statuti in huiusmodi casu nup' edit' & (2) pvis' coram Justic' nris d' Banco apud Westm' d' t'mio See Trinitatis Anno regni nri t'cio continet"" sic : (3) London// Hec est finalis Concordia fca in Cur' Dni Regis apud Westm' a die See Trinitatis in tres septiman' regnoq [interlined] Dni (4) Jacobi scdi dei gra Angl' Scocie ffranc' & Hibnie Regis fidei defens' &c. a conqu' t'cio Coram Edwardo (5) Herbert Thoma Street Edwardo Lutwich & Cristofero 1 6 The Newdigate Fine Milton Justic' & alijs Dni Regis fidelibz tunc ibi' p'sen- tibz (6) int' Johem Shelton & Nichra Brattle quer' et Nathanielem Newdigate alias Newgate deforc' De (7) duobz mesuagijs vno horreo tribz stabulis duobz gardinis duobz pomar' trecentis & quinquaginta acris t're & coia pastur' p omibz av'ijs cum p'tin' in Charles (8) Towne Rumney alias Rumley marsh & hogg Island in New England in America in Civitate London vnde plitm con- vencois sum' fuit (9) int' eos in eadem Cur' Scilt qd p'dcus Nathaniel recogn' p'dca ten' & coiam pastur' cum p'tin' esse ius ipius Johis vt ill' que ijdem (10) Johes & Nichus hent de dono p'dci Nathanielis Et ill' remisit & quietclam' de se & hered' suis p'dcis Johi & Nicho & hered' (11) ipius Johis imppm Et p't'ea idem Nathaniel concessit p se & hered' suis qd ipi warant' p'dcis Johi & Nicho & hered' ipius Johis (12) p'dca ten' & coiam pas- tur' cum p'tin' cont' p'dcm Nathanielem & hered' suos imppm Et p hac recogn' remissione quietclam' warant' fine & (13) Concordia ijdem Johes & Nichus deder' p'dco Nathanieli ducentes libras sterlingor' in cuius rei testi- moniu' Sigillum nrm ad (14) Bria in Banco p'dco Sigil- land' deputaf p'sentibz apponi fecim^ T E. Herbert apud Westm' xv die Junij Anno r' n' supradco. Lane . • . Jrex. The Newdigate Fijie 17 II The Extension Latin Version Without Contractions. The Ends of the Manuscript Lines in the Original are Indicated by Numbers in Parentheses. The Punctuation is partly supplied. Jacobus Secundus Dei gratia Anglie Scocie ffrancie et Hibernie Rex fidei defensor &c. omnibus ad quos presentes littere nostra pervenerint salutem : (i) Scia- tis quod inter Recorda ac pedes finium cum proclama- tionis inde factis secundem formara Statuti in huiusmodi casu nuper editi et (2) provisi coram Justiciarijs nostris de Banco apud Westmonasterium de Termino Sancte Trinitatis Anno regni nostri tertio continetur sic : (3) LONDON// Hec est finalis Concordia facta in Curia Domini Regis apud Westmonasterium a die Sancte Trinitatis in tres septimanas [regnoq interlined in very small letters] Domini (4) Jacobi Secundi dei gratia Anglie Scocie ffrancie et Hibernie Regis fidei defensoris &c. a conquestu tercio : Coram Edwardo Herbert Thoma Street Edwardo (5) Lutwich et Cristofero Milton Jus- ticiarijs et alijs Domini Regis fidelibus tunc ibidem pre- sentibus (6) inter Johannem Shelton et Nicholaum Brattle querentes et Nathanielem Newdigate alias New- 1 8 The Newdigate Fine gate deforciantem De (7) duobus mesuagijs vno horreo tribus stabulis duobus gardinis duobus pomarijs trescen- tis et quinquaginta acris terre et communia pasture pro omnibus averijs cum pertinentibus in Charles (8) Towne Rumney alias Rumley marsh et hogg Island in New England in America in Civitate London : vnde placitum convencionis summonitum fuit (9) inter eos in eadem curia, Scilicet quod predictus Nathaniel recognovit pre- dicta tenementa et communiam pasture cum pertinenti- bus esse jus ipsius Johannis vt ilia que (10) ijdem Johan- nes et Nicholaus habent de dono predicti Nathanielis Et ilia remisit et quietclamavit de se et heredibus suis pre- dictis Johanni et Nicholao et heredibus (11) ipsius Johannis imperpetuum : Et preterea idem Nathaniel con- cessit pro se et heredibus suis quod ipsi warantizabunt predictis Johanni et Nicholao et heredibus ipsius Johan- nis (12) predicta tenementa et communia pasture cum pertinentibus contra predictum Nathanielem et heredes suos imperpetuum : Et pro hac recognicione remissione quietclamacione warantizacione fine et (13) concordia ijdem Johannes et Nicholaus dederunt predicto Nathan- iel! ducentas libras sterlingorum : in cujus rei testimo- nium Sigillum nostrum ad (14) Brevia in Banco predicto sigillandum deputatur presentibus apponi fecimus : Teste E. Herbert apud Westmonasterium xv die Junij Anno regni nostri supradicto. Lane . • . J[acobus] Rex. The Newdigate Fme 19 III The Translation James Second, by the Grace of God King of England, Scotland, France and Ireland, Defender of the Faith, etc., TO ALL to whom [these] our present letters may come, Greeting. Know ye that among the records and Feet of Fines with the proclamations thereof made according to the form of the Statute in that case late enacted and provided, before our Justices in Banc at Westminster for the Term of Holy Trinity in the third year of our reign, it is contained as follows : LONDON// This is the Final Concord made in the court of our Lord the King at Westminster within three weeks from the day of the Holy Trinity, and of the reign [interlined] of our Lord James Second, by the Grace of God King of England, Scotland, France and Ireland, defender of the Faith, etc., the third from the conquest : Before Edward Herbert, Thomas Street, Edward Lutwyche, and Christopher Milton, Justices, and others faithful to our Lord the King then [and] there present, between John Shelton and Nicholas Brattle, plaintiffs, and Nathaniel Newdigate alias New- gate, deforciant, Concerning two messuages, one barn, three stables, two gardens, two orchards, three hundred 20 The Newdigaie Fine and fifty acres of land and commonage of pasture for all animals with appurtenances [interlined] in Charles Town, Rumney alias Rumley Marsh and Hogg Island in New England in America, in the City of London. Whereof a plea of covenant was summoned between them in the same Court, Namely that the said Nathaniel admits the aforesaid tenements and commonage of pas- ture with their appurtenances to be the lawful estate of John himself, as those which they the said John and Nicholas hold by gift of the aforesaid Nathaniel, and which he has remised and quitclaimed from himself and his heirs to the aforesaid John and Nicholas and to the heirs of him the said John forever. And afterwards the said Nathaniel granted for himself and his heirs that they will warrant unto the aforesaid John and Nicholas and the heirs of him the said John, the aforesaid tene- ments and commonage of pasture, with their appurte- nances against the aforesaid Nathaniel and his heirs forever. And for this acknowledgement, remise, quit- claim, warranty, fine and concord, they the said John and Nicholas have given to the aforesaid Nathaniel two hundred pounds sterling. In witness whereof we have caused our Seal appointed for the ensealing of writs in the said Bench to be attached to these presents. Attest E. Herbert, at Westminster the XV day of June in the year of our reign abovesaid. Lane . • . J[ames], King. NOTES. Copies of Fines were required to be deposited at Westminster. " In America, in the City of London," represents a legal fiction without which the premises in question could not be dealt with in an English court of law. For the purpose of transfer by Fine all colonial property was supposed to be within the bounds of the City of London, just as, by a similar legal fiction, all sailors, and all children born of British parents at sea, are supposed to be natives of the parish of Stepney. The use of the assumption here is believed to be one of the earliest instances of its employ- ment known. The Christopher Milton who appears as one of the Justices was brother to John Milton, the poet. John Shelton was a citizen of London, and a saddler ; he seems to have been occasionally employed by Newgate as his attorney. Of Brattle, I have found no mention. Judge Cham- berlain gives an outline map of the property in his History of Chelsea, and a history of the family of Newgate, and its land- grants. The meaning of the words " From the Conquest " is obscure since James 11 acceded to the throne of England peacefully. 22 Tlie Newdigate Fine Attached to the " fine " is the following genealogical note in the handwriting of Mr. William W. Greenough, " Nathaniel Newgate or Newdigate, who is the subject of this document, was grandson of the emigrant John Newgate, in 1632 of Boston, born in Southwark, near London Bridge, in 1580, and died in Boston in 1665. John, son of Nathaniel, was born in England, came to Boston, was member of the Artillery Company in 1645 ; was of London 1663. This son Nathaniel described himself 'as of the City of London at present (28th of November, 1688) sojourning in Boston.' At this time he conveyed his farm as Newgate's Farm, Rumney Marsh, to Col. Samuel Shrimpton, who also pur- chased Noddles Island (East Boston). His son, Samuel Shrimp- ton, Jr., married Elizabeth Richardson, whose only child married John Yeamans, whose family name exists in the third genera- tion. " After the death of her husband, Mrs. Elizabeth Shrimpton married David Stoddard of Boston, 27th of December, 17 13, and had by him, three daughters, Mary who married Rev. Dr. Charles Chauncy, Sarah who married Deacon Thomas Greenough, and Mehitable who married William Hyslop. " On the death of Shute Shrimpton Yeamans, these ladies inherited the property in Chelsea and East Boston, of which subsequently Rev. William Greenough of Newton became the principal owner of the Chelsea farm, and David L Greenough of Jamaica Plain, of East Boston. Full details of this family history may be found in Gen. William H. Sumner's History of East Boston." LIbHAH, Uh LuNLlNti:}?