The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 3

WILLS

The history of the will as an institution of English law is a long and very complicated story.1 A number of different expedients were used at different dates by persons who wished to direct the future enjoyment of their property after their own day: some of them left marks which long survived on the law of wills. It was only very slowly that the characteristic features of the modern will came to be combined in a single document, and those features were difficult to reconcile with the traditional modes of legal thought—indeed, the very nature and purpose of a will were inconsistent with the traditional reverence for the mystery of inheritance, and a will could hardly be carried into effect without defeating the legitimate hopes, perhaps even the legal rights, of the testator’s family. It is not surprising, then, that the history of wills seems tortuous. It might have been much more so, had it not been for the example of Roman law. In Italy and southern France the history of the will was continuous from Roman times, although of course influenced by intervening social and legal changes. In England no such continuity existed. Instead, the English development took place in an atmosphere slowly but increasingly charged with Romanist ideas, which only became dominant, however, when most of the law of wills came under the jurisdiction of the church’s courts.

ANGLO-SAXON WILLS

The Anglo-Saxon charter was normally in Latin, often quite florid Latin; the wills, on the other hand, are almost all in the vernacular, and it has been argued that the few examples which survive in Latin are not originals but translations.1 Naturally, a vernacular document was less formal than the artificial Latin charter. There is little trace of the elaborate “diplomatic” style which to experts reveals so much of the date, provenance and authenticity of the landboc. In fact there is much to indicate that the documents before us were in theory as well as practice merely memoranda of what the author said. They often relate that the author cwaeth his cwide—says his say, and these words still survived into middle English as “quoth”, and into modern English as “bequeath” and “bequest”. This oral element at once distinguishes the Anglo-Saxon will from the charter which is of necessity a boc, a “book” or writing. The structure of the Anglo-Saxon will is therefore variable. Sometimes it is in narrative form relating that “this is the quide that Aelfric bequoth ere he fared over sea . . .” the substance following in the first person. Sometimes the whole document may be in the third person; frequently it is in the form of an address, and sometimes reads almost like a letter.

THE OPERATION OF ANGLO-SAXON WILLS

So informal and untechnical are these documents that it is impossible to draw any certain conclusions as to their mode of operation. Frequently they merely say, “I give” this and that—without further qualification, although it is clear that the donor is not in fact immediately divesting himself of his property. Often a donor will use the expression “I give after my death . . .”; and sometimes he explains that he reserves the gift to himself for his lifetime. Occasionally he undertakes to pay a nominal rent to the grantee in order to make the situation perfectly clear.

Some of the wills contain language which suggests contractual notions, and so assume a promissory character,2 while others (as we have just seen) take the form of a gift becoming effective only at death. Others resemble more a settlement effected inter vivos. Occasionally the document which has come down to us claims to be not merely the saying of the donor, but his last saying—and so we must include the novissima verba as well as the gift post obitum, the settlement, and the promise, among the elements comprising the Anglo-Saxon testamentary devices. To inquire how such varied documents operated would lead us into a region of great obscurity, and lively controversy.

Testators themselves were somewhat apprehensive. They invoke the good offices of a lord or of the king with earnest prayers that the will may be carried out, and conclude with hearty curses against all who obstruct its operation. Not infrequently a testator asks some great man to be his Mund or protector; sometimes this may be merely the guardian of his child, but at other times it clearly implies the duty of carrying out the provisions of the will. Language of that sort seems to indicate that the testator’s wishes are to be carried out by his friends after his death: on the other hand, there are documents which imply that the beneficiaries acquire their rights immediately. This latter type would necessarily be irrevocable, and it seems that the majority of Anglo-Saxon wills were irrevocable whatever their form. Alfred indeed burnt his earlier wills—but he was a king; occasionally a subject expressly reserves the right to vary his will. We must likewise assume that the Anglo-Saxon will was not in its nature ambulatory, and it is very rarely that a testator attempts to make it so.1

In one respect, the Anglo-Saxon will must be placed beside the Anglo-Saxon charter: both were privileges, outside and above the ordinary law. Both enabled the grantor to dispose of his property to an extent which was not permitted under ordinary circumstances. Both, apparently, depended in the end for their efficacy upon the king’s cooperation.

THE ANGLO-SAXON ACHIEVEMENT

Many problems will be raised if we try to assess the Anglo-Saxon achievement in the development of a law of wills. According to the well-known dictum of Tacitus, the testament was unknown to the Germans, and that may be equally true of the Germanic tribes in general. It is thus highly probable that the Anglo-Saxon wills were an innovation derived from abroad, and that they, like the charters, are due ultimately to the church’s influence. In very general terms, this is true; but it is important to remember that this connection must not be exaggerated. The eagerness of converts to endow the clergy of the new religion certainly induced them to seek for testamentary machinery, but it seems quite clear that they did not in fact import that machinery from abroad. They could have done so if they had wished, for the testament in its Roman form was still common down to the ninth century on the continent. Instead, we see the Anglo-Saxons experimenting with institutions already familiar to them, such as the contract, the grant of a reversion, and the post obit gift. Even then, these native forms take a somewhat peculiar twist, for, as we have seen, they insist upon their oral origin; their very name, cwide, is a warning that whatever forms may clothe them, it is an oral institution which lies beneath. Hence there is a great deal to be said for the view that the Anglo-Saxon will was the outcome of the novissima verba, nihsta cwide, the last will or words.

A Germanic origin has been suggested. Even in pagan times it was apparently a custom for a decedent’s widow to take one-third, his children another third, and his soul the remaining third of his goods. The “soul’s part” seems to have been either burnt or buried with him for use in the after-world.1 With the advent of Christianity this practice took a new significance. The old “soul’s part” was already free from family claims and in the absolute disposition of the owner; it was natural that the church should recommend the dying Christian to devote this share to works of piety and charity, and that the church should attach special sanctity to the “last words” in which the dispositions were declared. It has been conjectured that such a gift was in fact complete in many cases—the goods were handed over then and there. From this simple beginning, the Anglo-Saxon will developed, first, by the testator stating while in health what he considered his last words should be, and secondly, by disposing of property which originally was not subject to testamentary disposition, notably land; for this latter purpose the cwide, like the landboc, needed royal approbation.

WILLS IN THE NORMAN PERIOD

It is plausible to suppose that the purely oral novissima verba served the purpose of ordinary folk, while the magnate would seek royal permission to use the written cwide. The effect of the conquest seems to have been the rapid disappearance of the written will. At first sight it would seem that the conquest had produced a drastic legal change, and that in some way the devise of land was abolished. The fact that it also disappeared in Normandy raises the tempting thought that there might be something peculiarly Norman in this rule. In point of fact, however, the indevisability of land was not an established rule in Normandy until some centuries after its establishment in England.2

The English situation is therefore independent of the Norman and must be the outcome of local conditions in England. The principal factors seem to have been these: in the first place, the will of lands was never a matter of common practice under the Anglo-Saxon reigns. It was an exceptional privilege which the crown could grant or withhold; nor need we suppose that it was greatly sought after by the generality of people, for it defeated the expectations of heirs in an age when freedom of alienation was directly contrary to prevailing sentiment. If the Conqueror declined to enforce wills for the future, very few persons would be disappointed, and probably a great many would be thankful. This feeling is clearly apparent in the deep suspicion which the common law felt over the death-bed gift of land. Secondly, the Conqueror himself must have seen the problem from a different angle. The year 1066 was the beginning, not the end, of the conquest; for twenty years the success of the great adventure hung in the balance.1 The main preoccupation of William’s reign was to keep his faithful followers on a war-footing. His concern was knight-service, and the moulding of feudal institutions to suit his purpose. There could never have been any thought of the devisability of military land in his day—indeed, his tenants were none too sure that even their sons would succeed them. A sharp struggle eventually ended by the crown acknowledging the heritability of military fiefs, and much later, their free alienability; but it was too late to entertain thoughts of their devisability, for the memory of the time when they were merely precarious life interests was too recent.2

As for the devisability of non-military land, we have already suggested that few people could ever have aspired to the royal privilege of making a will, and many of the great Saxon houses were ruined by the conquest. When, in the twelfth century, the common law was imposed upon all land of free tenure, the indevisability of military fees was extended to the whole country. After the conquest a feudal lord might occasionally permit his tenant to make a post obit gift (as he might also acquiesce in an alienation inter vivos), and on rare occasions a favoured magnate might make a devise of land in the presence of the king—but even then the devisee had to pay the crown a heavy price to get possession.3 When we get to Glanvill, even such exceptional attempts to grant post obit are now formally invalidated, and it was laid down as a rule of law that land is not devisable.4 In Bracton’s day hope seemed to come from gifts “to A., his heirs, assigns or legatees”, but Bracton’s own words show his doubts whether legatees could ever acquire land by such a gift.5 Glanvill’s discussion6 is directed not against wills of land generally, nor even against post obit gifts, but against death-bed gifts. His argument is that the grantor is not in a condition to deal wisely with his property, and that such a gift cannot stand unless confirmed by the heir. It is soon clear, moreover, that the old post obit gift is no longer effective. The king ceased to lend his authority to the act, and without it there is the insuperable difficulty of seisin: such a gift between subjects cannot take effect (and, particularly, cannot be known to a jury) unless there has been a real change of seisin. Hence the nearest possible equivalent was to enfeoff the beneficiary, who would then give back a life estate—and all that was necessarily a transaction inter vivos far removed from any form of testament.

DEVISABLE BURGAGES

There remains the problem of the boroughs where land was devisable by custom. Although this came to be the most striking feature of burgage tenure, its history has never been investigated, and its origin is unknown. Some historians place great emphasis upon Norman influence over English municipal history; but in Normandy burgages were never devisable.1 The much more probable alternative is that borough law was in general a survival of older law which had not been submerged by the common law; but this will not explain the devisable burgage unless we assume that devise of land was common and widespread in the Anglo-Saxon period. Of that there is no evidence. Moreover, even in England devisability was not equally allowed in all boroughs.2 The tentative suggestion may be made that the devisability of burgages was not in fact so very old, and that it may have been due to the late twelfth-century3 revival of the testament (of which we shall speak later). Boroughs were much concerned with mercantile law, which in turn was much influenced by the church and the canonists. In the thirteenth century the common law courts were content to let the boroughs develop all sorts of curious rules about land without any hindrance, and devisability may have been among them.

The church’s growing jurisdiction over testamentary chattels, led some people to describe devisable burgages as “chattels”,4 and in at least one case an attempt was made to enlist the aid of the church in devising land (which apparently was not in truth devisable) by litigating in the church court about a legacy of money which was in reality its market value.5 The general rule of the indevisability of land may well be part of the policy to exclude the church from any sort of jurisdiction whatever over “lay fee”.6

THE RISE OF THE EXECUTOR

The renascence of Roman law studies in the twelfth century brought with it the re-discovery of the Roman testament; this, combined with the institution of the executor, produced the later mediaeval English will.

The early history of the executor passes on the continent, and is of particular interest. It was not a Roman institution, but the product of typically mediaeval conditions which produced similar institutions both in Byzantine and Mohammedan law. The old soul’s part, as we have seen, became the portion which the church encouraged her subjects to bequeath by their novissima verba. Such gifts were generally of a charitable nature, and it was necessary to have an intermediary, partly to choose and supervise the charity, and partly in order to deal legally with the property. These earlier bequests seem to have been given at the very moment when they were made by the testator to a third party, who then carried out the will after the testator’s death. Such a third party is described by many different names, according as one or another aspect of his functions is emphasised. Thus he may be called an “almoner” because it is he who distributes the alms; or a vadiator because he is at first appointed by pledge; the words salman and treuhand take us back to the old three-party contract already mentioned;1tutor seems a rough parallel to our own Anglo-Saxon mund with its connotations of protection and guardianship. Like the much later (and unrelated) feoffee to uses in England, these persons were fiduciaries with moral duties to carry out the deceased’s wishes, but they were also legal owners. Another fact which made the appointment of some sort of executor necessary was the fear of the heir, who, according to common experience, was the person least likely to dissipate the fortune in charity. Failure to appoint an executor might thus mean in practice that the dispositions of the testator would be ineffectual, unless the church was powerful enough to coerce the heir by spiritual censures. The church therefore insisted that failure to appoint an executor who was able and willing to act was almost equivalent to intestacy.

The executor was therefore of the highest importance throughout the middle ages, and his position steadily grew. He became the representative of the deceased, paid his debts and enforced his actions. In England the victory of the executor over the heir proved to be permanent, but on the continent a new wave of Romanism in the sixteenth and following centuries gradually reduced his importance.

This institution was attached to the revived testament. The study of Roman law at last convinced the lawyers of the twelfth and thirteenth centuries that there could be a testament which was merely a unilateral document, neither contract nor grant, which was revocable, and which disposed of property without the necessity of the testator handing it over in his lifetime. The word “heir” had already been appropriated to a very different sense, and so the attributes of the Roman haeres were transferred, as far as they were applicable, to the executor. The executor thus became the channel through which the property devolved.

THE MEDIAEVAL ENGLISH WILL

From the thirteenth century onwards, the history of testation in England is the history of the reception of the new concepts of the will and the executor which reached us no doubt through ecclesiastical channels. The Norman period, as we have seen, made an end of the old written cwide and its protector the mund. There survived, of course, the movissima verba which the priest (prudently accompanied by one or two laymen) received. Just as the end of the twelfth century is the period when we find the revival of the written charter of land, so at the same moment we find once again the written will—not the old cwide, however, but the newly imported testament with its accompanying executors.

The form and contents of the typical mediaeval will in England can be seen from the numerous examples available in print1 which throw light not only on the law but also on the manners, customs, mode of life, literary tastes and many other details of everyday life.

FORMAL REQUIREMENTS

In conformity with the general policy of canon law, the church was loth to insist upon formalities in wills, especially as technical defects would have the effect of producing intestacy. The nuncupative will was recognised, although not common among the upper classes of society. The written will might be in Latin, French or English. The higher clergy often had it drawn in notarial form, or at least attested by a notary, but this seems to have been in no way necessary. Signatures are, of course, very rare in the middle ages, and the usual mode of authentication was by the testator’s seal, sometimes accompanied by the seals of the executors or witnesses. Although there were no necessary formal clauses, most wills run on the same lines—the testator bequeaths his soul to God and the saints, his body to a particular church; there follow details of the funeral arrangements (often very elaborate); in many places custom requires the bequest of the best beast as a mortuary (the mediaeval ghost was frequently seen astride the mortuary2 which was a heavy charge upon small estates); there was often an express direction for the payment of debts, sometimes with provisions as to how this was to be done; long lists of chattels bestowed on friends and relatives, and sometimes attempts to prevent their alienation (Bankes, B., left his year books, acquired from Plessington, C.B., “to be kept for the use of his sons and of the longest living of them, and after their death, if they have no issue who can profit by the books, they are to be sold at the best price obtainable and the proceeds given to the poor”3 ); gifts of the residue of the estate only become frequent in the fifteenth century, when they are commonly made to the executors with vague directions for their charitable disposal.

The Statute of Wills, 1540, merely required that a will of land should be “in writing”;1 the Statute of Frauds, 1677, required as an essential form that a devise of lands be in writing, signed, and witnessed “by three or four credible witnesses”,2 but the requirement of signing and witnessing of wills generally dates from 1837.3 The word “credible” caused much trouble. By taking as a model the common law rules about witnesses, it was at once apparent that a person interested in the subject-matter could not be a witness; from this it followed that if a witness to a will devising land was a beneficiary under it, then he was not a “credible” witness, since he could not give his evidence in a court, with the result that (unless there was a sufficient number of other witnesses who were qualified) the will was void under the Statute of Frauds.4 This disastrous conclusion was remedied in 1752 when it was enacted that a legatee could be a witness, but that the legacy to him should be void.5

PROBATE JURISDICTION

The jurisdiction of the church over testamentary matters was more extensive in England than in other countries, and indeed exceeded the claims made by the church herself. Those claims were naturally to supervise the pious purposes which testators might indicate in their wills, but in the twelfth century the royal courts were still to be reckoned with—both the Anglo-Saxon cwide and the few Anglo-Norman wills looked to the king or a great lord for their enforcement. Thus Glanvill states in one place that there is a writ precipe quod facias stare ordering the sheriff to cause the reasonable division of the testator’s goods to be carried out; but if the will is disputed, then the plea must go to the court christian, for “a testamentary plea ought to be before the ecclesiastical judge”.6 Just half a century after Glanvill, a legatee was told by the king’s court to sue in court christian.7 Quietly and without a struggle, therefore, the common law had abandoned to the church an important part of its jurisdiction over testamentary matters.

This right to decide upon a disputed will if the question was brought before the ecclesiastical court, seems to have given rise to the further right to require the production and proof of the will as a matter of course as soon as the testator dies. This jurisdiction first appears in the early thirteenth century, and its origin is a very obscure problem of continental legal history.

The jurisdiction was pre-eminently that of the bishop of the diocese, as “ordinary”, but during the middle ages many dignitaries acquired “ordinary” jurisdiction besides bishops, and so we find numerous deans, chapters, prebendaries, archdeacons and others who had probate jurisdiction. Quite a number of lords of manors also exercised it, but until the local history of each jurisdiction has been investigated it is impossible to say whether this is a relic of a very old manorial jurisdiction, or merely the result of privileged ecclesiastical estates passing into lay hands (generally at the Reformation).1 The territory even of a bishop was comparatively small, however, and after a long struggle the archbishop of Canterbury established his “prerogative” to grant probate when there were “notable goods” in more than one diocese; the wills of the well-to-do are therefore to be sought in the registers of the prerogative court of Canterbury. Much of the church’s testamentary jurisdiction fell into desuetude at the Reformation, largely as a result of the persistent attacks of the common law courts; probate, however, remained until the erection of the new and lay Court of Probate2 in 1857.

THE COMMON LAW AND EXECUTORS

We have already remarked upon the special emphasis placed upon inheritance in the common law system. At first it was only the right to land which passed to the heir, but by Bracton’s day the heir is liable for the ancestor’s debts and can also enforce his credits—the common lawyers seem to have thought of making the heir a personal representative, at least for some purposes. Meanwhile, the church courts were busy equating the executor with the Roman haeres; consequently the heir was representative at common law, and the executors in ecclesiastical law. This confused situation was cleared up under Edward I, when the common law courts allowed executors to sue and be sued, and relieved the heir of the representation unless it was specially cast upon him by his ancestor’s deed.3 Executors did not easily fit in with common law procedure, however. For a generation they took advantage of the common law rule requiring all defendants in an action of debt to be present together, until “fourcher” between executors was abolished;4 for centuries they escaped liability on their testator’s simple contract debts, because they could not wage law in his name.5 Indeed, if they did pay such a debt, it would be considered as a devastaverunt.6 Another statute continued the representation by the executors of a deceased executor.1

The common law courts seem to have borrowed some of their law from the church2 —the right of retainer is an example, apparently accepted as early as 1346, but not settled beyond dispute until the fifteenth century.3 On the other hand, there was much argument whether the debt of an executor to the testator was extinguished;4 this time theory was satisfied by denying that it was actionable, and practical necessity was recognised by regarding such a debt as assets.5 A similar compromise is seen in the form of judgment against executors. Normally it recognised their representative character by going against the goods of the testator, but occasions were multiplied when judgment went against the executors personally on grounds of misconduct or even of fairly slight procedural faults. The result was that the common law placed a heavy burden on executors which nineteenth-century legislation has lightened somewhat.

ECCLESIASTICAL COURTS AND CHANCERY

There remained to the church a large body of law in spite of the encroachments of the common law actions of debt, detinue, account and assumpsit. Besides all the questions of validity of the will, and matters arising out of legacies, the church at one time exercised a strict supervision over executors, calling for accounts, examining them, and directing the work of administration generally. Such a jurisdiction was never popular in the middle ages, and there was some talk of indicting ordinaries for the “extortion” of high fees.6 The common law courts, as a result of attacks by prohibition, soon succeeded in crippling the church’s work, but without providing an equivalent remedy themselves. Early in the fifteenth century, however, chancery already competed with the church courts,7 and as time went on the necessity for chancery’s intervention became abundantly clear. Particularly in the sixteenth and seventeenth centuries, the inadequacy for all practical purposes of the ecclesiastical courts drove litigants into chancery. Thus, an ordinary could only accept an executor’s account as presented, nor could a creditor question the account in a church court. The same seems to have been true of an inventory. The executor’s bond, like the administrator’s, was a nullity since the common lawyers held that by the grant of administration the ordinary lost all his interest in the goods—and the bond was the only practical means of coercion which the church courts could use. It will not be surprising that in the course of the conflict some useful things were lost (progress is not inevitable). A particularly striking example is the fact that in the time of Edward I it was possible to advertise for creditors and to announce that claims not lodged within six weeks would fail, unless good cause for the delay was shown.1

Legacies were slower to appear in chancery litigation. It has been conjectured that the earliest examples were where legatees were compelled to give security to refund if further debts should be discovered,2 and where chancery took steps to protect the legacies of married women from their husbands—sometimes restraining the husband from suing for them in the ecclesiastical courts until he had made a suitable settlement. The church courts had adopted many Roman principles relating to legacies, and chancery in turn developed its law of legacies upon Roman lines, having practically superseded the church’s jurisdiction in the matter by the time of Charles I.3

THE FAMILY RESERVE

In introducing the topic of succession, we observed that one possible approach would be to regard the law as the expression of the family in terms of property. If we adopt that point of view for a moment, we shall be led to some interesting conclusions. Down to the rise of the common law, the ancient custom of the land certainly did reflect the structure of the family: the equal inheritance of sons, the wife’s dower, the husband’s curtesy and the maritagium of daughters all combined to make a secure economic basis for family life. With the opening of the thirteenth century, however, no English family could rely upon the operation of law to secure the equitable treatment of all its members. Primogeniture upset everything. It is true that freedom of alienation accompanied it and gave landowners the power to make their own dispositions, and that most of them no doubt used those powers reasonably; but nevertheless it is obvious that the law henceforth disclaimed any responsibility for seeing that those dispositions were equitable. The rise of the use was certainly prompted in a large measure by the desire of settlors to exercise a wider discretion in making provision for their families than was possible at common law, and since the Statute of Wills, 1540, most landowners had the absolute disposition of their estates in their hands. Henceforth little was left to the operation of law. The general scheme of a seventeenth-century settlement with recurring resettlements as occasion arose left little place for inheritance, dower and all the old machinery of the law. All those safeguards of the family which occur on the continent—the community, the inalienable family reserve, the retrait lignager and similar institutions are conspicuously absent.1 In the boroughs alone do we find devices of this sort.

The law of succession to chattels for a time ran along different lines and retained for a while the ancient tripartite division, the theory being that the testator disposed only of the dead man’s part.2 The scheme must be old, but difficulties arose when it became necessary to determine its place in the new common law. An extraordinary situation arose, for the king’s court would not whole-heartedly accept the principle of “legitim”. Nevertheless, the public seems to have been convinced that it was universal throughout the land. They brought actions alleging “the custom of the realm” and were generally told that there may be local customs, but there is no custom of the realm save common law.3 So it gradually became clear that if a custom is pleaded, it must be a local custom, and cases of detinue de rationabili parte against the executors of a testator who had transgressed the principle of legitim occasionally occur.4 An alternative was to base the action upon the Great Charter,5 but here too there were difficulties of statutory construction.6 These difficulties were purely technical, but they show that the common law courts were not sympathetic to legitim as a principle.7

Eventually, as we have seen, the church assumed control over executors, and so it is likely that claims against them for legitim would have come most frequently before the church courts. A provincial constitution of 1342 certainly condemned testators who made insufficient provision for wife and children,8 which suggests that the rule was weakening. That impression is confirmed by a case of 1366 where the defence to an action of rationabili parte admitted the action but pleaded that the plaintiff had been advanced, the court, however, remarking “how can we give judgment when you have admitted an action which is against the law?” Mowbray, J., even stated that “the lords in parliament will not admit that this action is maintainable by any common custom or by the law of this realm”.1

For practical purposes the preservation of legitim, therefore, rested upon the firmness of the ecclesiastical courts, and at some time before Elizabeth’s reign the provinces of Canterbury and York drifted apart. Legitim was retained throughout the northern province; in the southern it survived only in some local customs. It is very difficult to account for this radical change of law upon so important a subject.2 The survival of restrictions upon testation in the boroughs is natural enough, and the disappearance of them among the landed class is not surprising, for landowners would naturally want to treat their family arrangements as a whole. Neither consideration, however, explains the survival of the restrictions in the province of York.

Soon after the Revolution these remaining survivals were removed by statute. In 1692 the inhabitants of the northern province (except citizens of York and Chester) were given freedom of testation because the widow could claim her reasonable part even although she had a jointure; this necessarily reduced the provision that could be made for children.3 That seems a good reason for excepting the classes who habitually made jointures from the operation of the old rules. Similar reasons were given for abolishing the old rule in Wales, but this time with a saving of the rights of women then married and children then in existence—a considerable delay which was not accorded to the northern province.4 It would seem that the Welsh were not so very eager for the change. The city of York procured legislation giving them immediate freedom of testation (for reasons unstated),5 and later still a repeal of the rule was very curiously interjected into an act regulating elections in London, since persons of ability and substance were discouraged from becoming freemen.6 As far as this legislation is concerned, it seems clear that the objections to the old rule were that it obstructed the making of settlements in the form usually employed by the landed classes: but, as so often happened in our legal history, it was the law of the wealthy which became the common law of the land.

Freedom of testation could work little harm where the bulk of the family’s resources consisted of settled land: in other circumstances it might sometimes produce bizarre results. In the eighteenth century some testators (or their solicitors) seem to have thought that a will making no provision for wife or children was in peril of being upset as a testamentum inofficiosum, and so “cut off with a shilling” the unfortunate relatives they disliked. We seem never to have had any formal doctrine of inofficious wills, and so this “vulgar error”, as Blackstone calls it,1 is all the more curious. Subterfuges there were, for a harsh law always invites evasion by litigants and by sympathetic courts, but theory remained untouched: a testator who is competent to make a will at all, is competent to make it as inofficious as he likes.

That state of affairs was at variance with the legal sense of most countries—even common law countries, and at length the legislature has intervened.2 It did not revive legitim (although the ancient tripartite division does appear in the Act); nor does it introduce the Roman learning of inofficious wills, or the lists of reasons preserved in some continental customs which justify disinheritance (although the court is directed to consider the reasons where the testator has expressed them). Nor in general does the Act authorise more than maintenance grants, and then only in a few carefully restricted cases. Extremely timid as the new Act is, there can be no denial that it reverses the attitude adopted just over two centuries ago, and that once more it recognises the family as being of paramount importance in the law of succession.

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[4]The documents are printed in Prynne, Animadversions on Coke’s Fourth Institute.

[1]See the examples in Holdsworth, i. 555.

[2]See generally, L. S. Sutherland, [1934] Trans. R. Hist. Soc., 149-176; in detail, Fifoot, Mansfield, 82-117.

[3]For the abolition of this rule in Kent, save merchant towns, in 1259, see the remarkable example of county legislation in E. F. Jacob, Baronial Rebellion, 351, 352, and in Law Quarterly Review, xli. 232.

[1]This was preserved as a formal contract by the Statute of Frauds. The extent of law merchant in London can be seen in A. H. Thomas, Plea and Memoranda Rolls, 1381-1412, Intro.

[2]Goods not up to sample might be forfeit to the crown by law merchant: Gross, Law Merchant (Selden Society), i. 91 (1312).

[3]Case of Market Overt (1596), 5 Rep. 83 b. The privilege was subject to several statutory restrictions in this and the next century. On the continent the privilege was wider. Cf. Holdsworth, ii. 561, iv. 522, v. 104, 110.

[4]On the history of this, see W. H. Hamilton, The Ancient Maxim Caveat Emptor, Yale Law Journal, xl. 1133, and S. J. Stoljar, Specific Performance in Contracts of Sale, Canadian Bar Journal, xxxii. 251 at 273 n. 99.

[5]See, in general, Bailey, Assignment of Debts, Law Quarterly Review, xlvii. 516; Postan, Private Financial Instruments, Vierteljahrsschrift für Sozial- und Wirtschaftsgeschichte, xxiii. 26; Holdsworth, viii. 115 ff.; Sayles, A Dealer in Wardrobe Bills, Economic History Review, iii. 268; Tout, Administrative History, ii. 101 n. 4; Bigwood, Commerce de l’Argent (Académie royale de Belgique, 1921); Esmein, L’Intransmissibilité première des créances et des dettes, Nouvelle Revue historique de droit (1887), 48. For an inter-departmental bill payable to bearer (temp. Edward II), see J. Conway Davies, Edward II, 596 no. 130. For a vivid impression of international trade in the middle ages, see Y. Renouard, Les Hommes d’affaires italiens.

[1]Hence the court might deface a bond: Y.BB. Edward II (Selden Society), xxiv. 86 (1319).

[2]Holdsworth, viii. 122, 123.

[3]See, in general, Holdsworth, viii. 113-176.

[1]The process was still incomplete even in the sixteenth century: Postan, loc. cit., 63. The later bill of exchange also was often accompanied by a “letter of advice”.

[2]See generally R. de Roover, L’Evolution de la lettre de change, 14e à 18e siècles (Paris, 1953).

[1]Whose view is adopted by Holdsworth; cf. p. 666 above.

[2]In 1532 there had been complaints that Flemish bills were not actionable in England: Letters and Papers of Henry VIII, v. no. 843.

[3]See generally, J. Milnes Holden, The History of Negotiable Instruments in English Law (1955).

[4]Martin v. Boure, Cro. Jac. 6.

[5]Oaste v. Taylor, Cro. Jac. 306.

[1]Above, p. 666.

[2]6 Mod. 29 (1704); Pound and Plucknett, Readings, 219-221.

[3]On these matters, see R. D. Richards, Early History of Banking in England, and R. H. Tawney, introduction to Wilson, Discourse on Usury.

[4]3 & 4 Anne, c. 8 (1705).

[1]Holdsworth, viii. 294; Trenerry, Early History of Insurance, including Bottomry.

[2]Holdsworth, viii. 192-222.

[3]Sir Cecil Carr, Select Charters of Trading Companies (Selden Society); W. R. Scott, Joint Stock Companies.

[4]Holdsworth, viii. 222-229; Holmes, Collected Papers, 49-116; H. Würdinger, Geschichte der Stellvertretung in England; Fegan, Undisclosed Principal, University of Pennsylvania Law Review, lxxx. 858; W. Müller-Freienfels, The Undisclosed Principal, Modern Law Review, xvi. 299; T. F. T. Plucknett, The Mediaeval Bailiff, 30.

[1]Beaumanoir (ed. Salmon), ss. 1939 ff.

[2]For the view of Bacon, Aphorism 45, upon the desirability of this, see below, p. 687 n. 2.

[1]Above, p. 179 n. 2.

[2]Above, pp. 178-180.

[3]Above, p. 177.

[4]Above, p. 158.

[5]Above, p. 186.

[6]Above, pp. 187-188.

[7]Above, p. 194.

[1]For the court of equity before the mayor, see 4 Inst. 248, and R. B. Morris, Mayor’s Court of New York City, 35, for much MS. material for London. For the London Inner Chamber, see A. H. Thomas, Pleas and Memoranda, 1381-1412, xix, who notes that equity here means law merchant.

[2]K. M. E. Murray, Cinque Ports, 106.

[3]G. T. Lapsley, Durham, 189.

[4]On these, see R. Somerville, The Duchy of Lancaster Council and Court of Duchy Chamber, Transactions of the Royal Historical Society (1941), 159; Case of the Duchy of Lancaster (1561), Plowden, 212.

[5]Above, p. 184. The statutory Courts of Great Sessions which existed from 1542 to 1830 exercised an equitable jurisdiction, the origin of which is obscure: W. H. D. Winder, in Law Quarterly Review, lv. 106.

[6]Above, pp. 184-185.

[7]Above, p. 642.

[8]Foss, Judges, 159.

[9]Above, p. 173.

[10]Above, pp. 459, 497, 499.

[11]Cases decided by Lord Bacon (ed. Ritchie), 122.

[1]The following remarks are based on his paper, The Early History of English Equity (in Essays in Legal History, ed. Vinogradoff), 261-285, with some additional references. Cf. Holdsworth, ii. 241-249.

[2]Above, p. 576; for an extreme form of this view, see Holmes, Early English Equity, Collected Papers, 1; the common law idea of conditional feoffments certainly permitted some uses to be litigated at common law (Rot. Parl., ii. 79; Y.B. 11 Rich. II (Ames Foundation), 119; above, p. 576, n. 5), and the idea of wardship also looked promising. Bracton’s Note Book, nos. 754, 999, 1683, 1851, are earlier examples of the tendency.

[3]Y.B. 20 Hen. VI, Hil. 2; Ames, Lectures, 118, 238.

[4]It took the form of delay, Glanvill, x. 8; cf. above, p. 604.

[5]Y.BB. Edward II (Selden Society), ii. pp. xiii, 59.

[6]Above, p. 240; see further, p. 605, above.

[7]The case is Folyot v. Walter Langton, recorded in J.I. i. 1344 m. 20, and E13/31 m. 30. I am grateful to Miss Alice Beardwood for these valuable references. Cf. Y.BB. Edward II (Selden Society), xxiv. p. lxxxviii.

[1]Curia Regis Rolls, vii. 136, 179 (1214).

[2]Eyre Rolls (Selden Society, vol. lix), no. 474 (1221); cf. no. 1073.

[3]Ibid., no. 1073 (1221).

[4]No attaint of a jury after nineteen years, ibid., no. 77 (1221), nor an appeal of homicide after nine years, Select Pleas of the Crown, no. 28 (1202).

[5]Select Cases in Exchequer of Pleas, 114-115 (1286); they were rolls of accounts. But account was not described in the middle ages as an equitable action (R. M. Jackson, History of Quasi-Contract, 36); in the Year Book passages there cited “account” means the accounting (which is governed by equity and good faith and not by rigour of law), not the action. Cf. Y.BB. Edward II (Selden Society), xxiv. 147 (1319).

[6]Details in Hazeltine, Early History of Specific Performance, Festgabe für Kohler, 67-87.

[7]Such as the action of mesne, as to which see Westminster II, c. 5 (1285).

[8]Bracton, f. 315 b; Bracton’s Note Book, nos. 27, 56.

[9]2 Inst. 299.

[10]Registers of Writs (Selden Society), 65 no. 107.

[1]Y.BB. Edward II (Selden Society), ii. pp. xiii, 74.

[2]Hazeltine, Early Equity, Essays in Legal History (ed. Vinogradoff), 282. Cf. the examples given by Bordwell, Running of Covenants, Iowa Law Review, xxxvi. 504.

[3]Hazeltine, op. cit., 284; Co. Lit. 100 a (but see Holdsworth, ii. 344 n. 6).

[4]Cases in Law Merchant (ed. Hall, Selden Society), iii. 93.

[5]Hazeltine, op. cit., 285.

[6]Westminster I, c. 17 (1275).

[1]Sayles, King’s Bench (Selden Society), iii. 58 (1298).

[2]Y.B. 13 & 14 Edward III (Rolls Series), 96; 18 & 19 Edward III (ibid.), 58, 60; 27 Edward III, Michs. no. 20; Holdsworth, ii. 344.

[3]Maitland, Introduction to Y.BB. Edward II (Selden Society), i. p. xix, now printed, ibid., xxiv. 84.

[4]Amos, The Legal Mind, Law Quarterly Review, xlix. 27, 39.

[5]Maitland, loc. cit.

[1]Above, p. 158.

[2]Quoted above, pp. 677-679.

[3]Holdsworth, The Relation of the Equity administered by the Common Law Judges to the Equity administered by the Chancellor, Yale Law Journal, xxvi. 1.

[4]Adams, Continuity of English Equity, Yale Law Journal, xxvi. 550-563 (and in his Council and Courts, 195 ff.).

[1]Vinogradoff, introduction to E. F. Jacob, Baronial Reform, vi; Pollock, Transformation of Equity, Essays in Legal History (ed. Vinogradoff), 291.

[2]Select Bills in Eyre (ed. Bolland, Selden Society). Like the King’s Bench (above, p. 470), the justices in eyre could deal with bills on matters arising within the county in which they happened to be sitting.

[3]Holdsworth, i. 267 (dissenting from Bolland). (But see Putnam, Sir William Shareshull, 131 at n. 350.)

[4]Above, p. 386; for bills in the exchequer, see Hilary Jenkinson, Select Cases in the Exchequer of Pleas (Selden Society), cxxviii ff.

[5]Jenkinson, loc. cit., suggests that most bills were substituted for writs.

[6]Above, p. 370.

[7]Above, p. 371; Adams, Council and Courts, 349.

[1]It must be remembered that most of the business of the eyre was conducted by writ on the usual common law lines.

[2]Above, pp. 177-179.

[3]Close Rolls (1231-1234), 161.

[4]Y.B. 30 & 31 Edward I, 195 (Rolls Series); above, p. 187.

[5]Baldwin, Select Cases in Council (Selden Society), xxxviii. Professor Sayles has shown me a very striking example earlier still on Coram Rege Roll 280, m. 38 (1330).

[6]Magna Carta (1215), c. 14, required that the cause of the summons be expressed in the writ, and it generally was.

[1]Whereupon the following tale was told by Bereford in 1312. The countess of Aumale was summoned as defendant to proceedings in Parliament by a writ which disclosed no reasons, and when she appeared some thirty articles were exhibited against her. She tried to abate the writ, but two judges who were present were ready to rule it good. Hengham, C.J., made some personal remarks (to the effect that one of those judges had hanged the receiver of stolen goods although the thief had been acquitted, and the other had hanged a man outlawed on civil process), and then laid down the principle that “the law willeth that none be taken by surprise in the king’s court”. “Then rose the king, who was very wise, and said, ‘I care nothing for your disputations, but by God’s Blood you shall give me a good writ ere you rise hence’ ” (Y.BB. Edward II (Selden Society), xii. 44). Note, however, the odd custom of one manor “that a party shall never be informed of what he is to answer until he comes into court”: Y.B. 11 & 12 Edward III (Rolls Series), 328 (1337).

[2]E.g. Rot. Parl., iii. 471 no. 69 (1401). Other examples are given at p. 187 above.

[1]Above, p. 279. For an excellent introduction to this work see Vinogradoff, Reason and Conscience in Sixteenth Century Jurisprudence, Law Quarterly Review, xxiv. 373, and Collected Papers, ii. 190.

[2]It is noteworthy that the student converses with a theologian, not a canonist; St Germain’s main interest was theology and his principal source was Gerson, a theologian and not a canonist.

[1]Y.B. 4 Hen. VII, Hil. no. 8.

[2]Several examples are given in Holdsworth, v. 220-222.

[3]Above, p. 189.

[4]Above, p. 676.

[1]Goebel, King’s Law and Loca Custom in Seventeenth Century New England, 31 Columbia Law Review, xxxi. 416.

[2]Wilson, Courts of Chancery in the American Colonies, Select Essays, ii. 779; Fisher, Administration of Equity through Common Law Forms in Pennsylvania, ibid., 810; Woodruff, Chancery in Massachusetts, Law Quarterly Review, v. 370; Z. Chafee, introduction to Colonial Society of Massachusetts, Collections, xxix. pp. l-lvi. There were other reasons, too: their memories of English judicial history may have prejudiced them against equity as being part of the prerogative, and it has been suggested that they restricted the activity of common law judges in view of the oppressive conduct of several of our Restoration judges (Pound, Spirit of the Common Law, 51). Incidentally, the American development was soon to show that there was no basis for Bacon’s view (Aphorism 45, quoted in Holdsworth, v. 486 n. 3) that equity and law ought always to be administered by separate courts.

[3]Roper, Life of More (ed. Hitchcock), 44-45; quoted in R. W. Chambers, Thomas More, 272-273.

[1]They did not object to injunctions after mature deliberation in Chancery, but did protest against their issuing indiscriminately before there had been a real examination of the case; Holdsworth, iv. 39 n. 2. The standard work is Dodds, Pilgrimage of Grace (2 vols., 1915); a full treatment will be found in Pickthorn, Henry VIII, 304-371.

[2]The first lay chancellor was Sir Robert Bourchier in 1340; his immediate successors were both laymen and common lawyers (Parving 1341, Sadington, 1343). The two chief justices (Thorpe, C.P., 1371, Knyvet, K.B., 1372) succeeded one another as chancellors. The best list is in the Handbook of British Chronology, ed. Powicke. The last clerical chancellor was bishop John Williams (1621-1625) who succeeded Lord Bacon.

[3]Above, pp. 191-196.

[1]Examples of these are given in Barbour, Contract in Equity (Oxford Studies, ed. Vinogradoff).

[2]Until the statutes 8 & 9 William III, c. 11, s. 8, and 4 Anne c. 16, ss. 12, 13.

[3]See the passage quoted in Holdsworth, v. 486.

[4]From the time of Wolsey in Henry VIII’s reign the Master of the Rolls acted as an auxiliary judge, without affording any appreciable relief, however. His powers were much contested until a statute settled them in 1730 (3 Geo. II, c. 30). His acts were always subject to an appeal to the Chancellor. Common law judges were frequently given temporary commissions to assist in clearing off Chancery business.

[1]Above, p. 194.

[2]Cases decided by Lord Bacon (ed. Ritchie); see the very useful comments by Sir William Holdsworth, Francis Bacon’s Decisions, Law Quarterly Review, xlix. 61-69.

[3]Hanmer v. Lochard, Tothill, 132; Turner, Equity of Redemption, 26.

[1]Legal historians interested in this matter will find much interesting material collected by writers on the history of the stage; theatre owners were frequently engaged in litigation, and the literary historians have recently printed a good many Chancery proceedings involving them.

[2]Holdsworth, vi. 662; Spence, Equity Jurisdiction, i. 380. A civilian origin is suggested.

[3]Holdsworth, vi. 667.

[1]Burnet, Life of Hale, 176, quoted in Holdsworth, vi. 547.

[2]The Great Seal was sometimes entrusted to a Lord Keeper instead of to a Chancellor; for our purposes the distinction is immaterial, the judicial powers of a Lord Keeper being the same as those of a Chancellor. It was probably economy, for a keeper’s fee was less than a chancellor’s, and the fear of the political power of the Chancellor which led the Crown on many occasions to confer only the less dignified title of Lord Keeper, and sometimes even to appoint only commissioners. Below, p. 697 n. 1.

[3]Fry v. Porter (1670), 1 Mod. 300, at 307.

[4]Cook v. Fountain (1672), 3 Swanst. 585, at 600.

[1]Calendar of Proceedings in Chancery (3 vols., 1827-1832). The calendar deals with Elizabeth, but the introduction has material going back to Richard II.

[2]Select Cases in Chancery, 1364-1471, ed. Baildon (cf. Select Cases before the King’s Council, 1243-1482, ed. Baldwin, and Select Cases in Star Chamber, 1477-1509, ed. Leadham); Acta Cancellaria (1558-1624), ed. Cecil Monro, 1847.

[3]Several local societies have dealt with Chancery and Star Chamber cases concerning particular counties, e.g. Somerset Record Society and the William Salt Society (Staffordshire); cf. the University of Wales: Board of Celtic Studies, for the equity side of the exchequer relating to Wales.

[4]Decree rolls begin in 1534 and order books in 1544.

[5]Above, p. 690 n. 2.

[6]Orders of the Court of Chancery, ed. Sanders (1845). They extend from 1388.

[7]His name is also spelt Carey, or Carew.

[1]Nottingham’s own notes are being published by the Selden Society, and some of his treatises will appear in the Cambridge Studies in Legal History; the editor is Mr. D. E. C, Yale. Roger North, Lives of the Norths (Francis, Lord Guilford who succeeded Nottingham. Sir Dudley North, merchant, and Dr John North, Master of Trinity College, Cambridge) is a contemporary account from a high-Tory standpoint.

[2]The literature has now been described in Holdsworth, xii. 179-193.

[1]Above, pp. 163-165.

[2]The place of the Chancery in the thirteenth century is still the subject of debate among historians; see the various interpretations by Tout, Administrative History, i, and his Edward II, 58; Treharne, Baronial Plan of Reform, 14-21; Wilkinson, Chancery under Edward III.

[1]Lord Campbell, Lives of the Chancellors, c. 10, seems the first to realise this; his estimate is confirmed by Tout’s article in the Dictionary of National Biography.

[2]Above, p. 240.

[1]See A. F. Pollard, Wolsey (1929). For Wolsey’s anomalous patent for life, and the distinction between Lord Keepers and Lord Chancellors, see Pollard, Wolsey and the Great Seal, Bulletin of the Institute of Historical Research, vii. 85-97.

[2]Holdsworth, v. 222-223.

[3]Above, p. 687.

[4]Much new material, and a fresh evaluation of Utopia, will be found in R. W. Chambers, Thomas More (1935).

[1]He was at the same time Master of the Rolls from 1594 to 1603.

[2]Monro, Acta Cancellaria, cited in Holdsworth, v. 233.

[3]An able and very interesting essay dating from his student days has now been excellently edited by S. E. Thorne, A Discourse upon Statutes (1942). For his authorship of this tract, see Plucknett, Ellesmere on Statutes, Law Quarterly Review, lx. 242.

[1]He was the son of the Lord Keeper, Sir Nicholas Bacon, mentioned above, p. 697, and his mother was the sister of Lady Burleigh. A grand-daughter of Burleigh was suggested as a possible alliance for Bacon, but she eventually married his rival, Coke.

[1]The standard biography is Spedding, Letters and Life of Bacon (7 vols., 1861-1874), who also edited his Works (14 vols.). A useful estimate of Bacon’s character is Charles Williams, Bacon (1933). To read this after Chambers’ Thomas More, will bring out the contrast between the mediaeval and the renaissance view.

[2]A later chancellor, Lord Macclesfield, was impeached under somewhat similar circumstances. On the regular practice of sending presents to chancellors, cf. Chambers, Thomas More, 267-270. The public long persisted in regarding chancellors not as judges, but as court officials who could only be approached in that way.

[1]His proposals are described in Holdsworth, v. 486 ff.

[2]Noticed above, p. 693.

[1]Holdsworth, v. 254.

[2]Holdsworth, vii. 112.

[3]The settlement involved in the Duke of Norfolk’s Case was drawn by Sir Orlando Bridgman; Holdsworth, vii. 222 nn. 2 and 5.

[4]His cousin was the Speaker, Sir John Finch, who was held in the chair (1629), becoming later C.J., C.P., Baron Finch and Lord Keeper (1640-1641); the Lord Keeper’s father, Sir Henry Finch, was the author of Law: or a Discourse thereof, which was almost the only students’ book of the time. His father was Recorder of London, and his grandfather the Sir Moyle Finch whose case has been mentioned earlier.

[1]Above, p. 55.

[2]For his writings and notes of cases, see above, pp. 693-694.

[3]Above, pp. 597-598.

[4]3 Swanst. 585 (1672).

[5]3 Swanst. 628 (1675).

[6]Holdsworth, vi. 547, 548.

[1]From 1689 to 1693 the Great Seal was in commission.

[2]14 S. T. 1.

[3]26 Geo. II, c. 33.

[1]The hostile treatment accorded him in Lord Campbell’s Lives of the Chancellors prompted a fuller biography by his kinsman, P. C. Yorke (1913).

[2]2 Stra. 788 (1727).

[3]Birkenhead, Fourteen English Judges, 158. Hardwicke’s work has now been fully treated in Holdsworth, xii. 237-297.

[4]Casborne v. Scarfe (1737), 1 Atk. 603.

[5]Stapilton v. Stapilton (1739), 1 Atk. 2.

[1]Le Neve v. Le Neve (1747), 1 Amb. 436.

[2]1 Ves. Sen. 444 (1750).

[3]It is said that he found the first of the professor’s lectures somewhat embarrassing—it concerned the statutory crimes of eloping with heiresses.

[4]1 Bro. C.C. 503.

[1]59 Geo. III, c. 46; E. A. Kendall’s Argument . . . on Trial by Battle had three editions in 1818.

[2]55 Geo. III, c. 42.

[3]9 Geo. IV, c. 17.

[4]10 Geo. IV, c. 7.

[5]2 & 3 Will. IV, c. 45.

[6]See Sir William Holdsworth’s learned and entertaining study, Dickens as a Legal Historian (Yale University Press).

[1]Pollock and Maitland, ii. 363.

[1]It is maintained by Lodge in Essays in Anglo-Saxon Law (1876); cf. Braude, Familiengemeinschaften der Angelsachsen (Leipzig, 1932). Above, p. 522. The same proposition has been applied to French law of this period, but has not been substiantiated (save perhaps for Burgundy); C. Lefebvre, Ancien Droit des successions, i. 17.

[1]Above, p. 13.

[2]For much interesting material on disinheritance as a punishment both in France and England, see Goebel, Felony and Misdemeanour, i. 248-279.

[3]The notion has been discussed above, p. 554, that a tenant in tail had only an interest for his life, together with the principle that successive tenants in tail take as heirs in turn of the donee and not of one another. This important although subtle point seems involved in the case in Dyer, 2 b-3 b which is discussed in the introduction by C. A. F. Meekings to Surrey Feet of Fines, pp. xxxiii ff. It is to be seen whether it finally produced the rule that a traitor’s or felon’s entail is forfeited for his life only, the heir in tail taking after his death. Entails were forfeited absolutely after 26 Hen. VIII, c. 13 (1534). Forfeiture defeated dower in spite of parliamentary protests (Rot. Parl. ii. 8 no. 13) until 1 Edw. VI, c. 2 (1547), preserved dower in all cases; but this was soon repealed as to treason by 5 & 6 Edw. VI, c. 11 (1552). Escheat for felony defeated dower: Bracton’s Note Book, no. 1334 (1217), Eyre Rolls (Selden Society, vol. lix), no. 1023 (1221); so did escheat for lack of issue of a bastard, Y.BB. Edw. II (Selden Series, vol. x), 12 (1311). On the forfeiture of joint-estates, see Rot. Parl., i. 76 b.

[4]Uses were forfeitable by 1 & 2 Philip & Mary, c. 10 (1554).

[5]Above, pp. 523-524. The assize of mort d’ancestor is an important landmark in the conflict between the family and feudalism.

[1]Above, pp. 525-530.

[2]Above, pp. 529, 617.

[3]Above, p. 377.

[4]Blackstone, Law of Descents (1759); Comm. ii. 202-240. Pollock and Maitland, ii. 240-313, will place the subject in the setting of general legal history. The classical work on the subject is H. Brunner, Das anglo-normannische Erbfolge-system, 1869.

[1]Pollock and Maitland, ii. 261; cf. Lefebvre, Ancien Droit des successions, i. 26-33.

[2]Lex Salica, lix. 5.

[3]Ibid., lix. 1.

[4]Libri Feodorum, ii. 50.

[5]Pollock and Maitland, ii. 286-295; Glanvill, ed. Woodbine, vii. 1, and cases on pp. 224-225.

[1]The point is neatly illustrated in Eyre Rolls (Selden Society, vol. lix), no. 560 (1221). Forms of action were a disturbing feature, however, and on a writ of error it was held that the eldest brother would succeed in mort d’ancestor (although he is also lord), but the younger brother would succeed in a writ of right: Bracton’s Note Book, no. 564 (1231).

[2]18 Edw. I (1290).

[3]The argument, summarised above, is put forward by Maitland with the warning that it is largely conjecture. It is an essential part of it that the exclusion of ascendants should have been established before Quia Emptores. Now Britton’s express statement to the contrary raised great difficulties which Maitland explains away with persuasive skill. For a criticism of Brunner’s application of the lord and heir rule to Normandy, see R. Besnier, Représentation successorale, 111.

[4]Bracton, f. 65 b.

[5]Above, p. 547.

[6]But our books do not seem to employ the maxim, paterna pa ernis, materna maternis, which was current on the continent.

[7]Maitland’s rejection of the evidence of Glanvill, Bracton, Fleta and Britton (History of English Law, ii. 301 n. 1) can now be supported by a case in Y.BB. Edward II (Selden Series), x. 276 (1311); cf. the introduction, pp. xlii-xlv. Cf. Clere v. Brook (1573), Plowd. 442. It is curious that, having rejected the evidence of the text-writers on this point, Maitland followed them on the related point of the half-blood: below, p. 721 pp. 6-8; Pollock and Maitland, ii. 304.

[1]MGH., Legum sect. II, Capitularia, i. 15.

[2]Widukind, Res Gestae Saxonicae, in MGH., Scriptores, iii. 440. Arbitration had been proposed, but the king took “the wiser course” of trial by battle.

[3]Besnier, Représentation successorale en droit normand, 118 ff.; later lawyers in France explained it as reposing upon a fiction, Lefebvre, i. 97.

[4]In Poitou there was the curious custom of the fief passing from the eldest son to his brothers successively for life; on the death of the youngest son, it returned to the eldest son’s son: Marcel Garaud, Le Viage ou le retour du vieux “Coustumier de Poictou,” Société des Antiquaires de l’Ouest, Bulletin (1921), 747.

[5]Glanvill, vii. 3 (ed. Woodbine), p. 104.

[6]Lefebvre, Ancient Droit des successions, i. 42, 95, 172, describes letters of rappel à succession.

[7]On the abandonment of representation in Normandy by decision in 1235, see R. Besnier, Représentation successorlae, 122.

[1]Details in Pollock and Maitland, ii. 284 n. 4. For other instances of uncle supplanting nephew, see J. M. Potter, Salic Law, English Historical Review, lii. 239 n. 1.

[2]Select Civil Pleas (Selden Society), no. 194; the facts in this case are exactly the same as those of John’s accession.

[3]Glanvill, vii. 2 (in fine).

[4]A good illustration is Eyre Rolls (Selden Society, vol. lix), no. 232 (1221).

[5]Y.B. 32 & 33 Edward I, 264-271: here a nephew demanded against one claiming through the uncle. There is no decision, but a later Year Book has an undated note to the effect that a descent cast on the uncle’s side will extinguish the nephew’s right—Y.B. 33 & 35 Edward I, 154 (possibly referring to that case). For a slightly different sense of astrier see Y.BB. Edward II, xxi. 79 (1317); the footnote there is erroneous. The astrier appears on several occasions in Bracton’s Note Book: see nos. 230, 892, 951, 982, 988, 1830. Cf. Sayles, King’s Bench, II, clvii (1239).

[6]Pedigree and discussion in Pollock and Maitland, ii. 298. The mauvaise coutume lasted longer in Normandy and caused a great deal of trouble; Besnier, 157 ff.

[1]Bracton, f. 67, proposes to stop at the sixth degree of ascendants, since anything further back would be out of memory.

[2]Bracton’s Note Book, no. 280 (1228).

[3]Statute of Merton, 20 Hen. III, c. 8.

[4]Westminster I, c. 39. It was extended to crown proceedings by a writ of 1293: Placita de Quo Waranto, 352 b. Cf. above, p. 312 n. 2.

[5]In spite of several attempts: J. Conway Davies, Baronial Opposition, 583 (1322); Rot. Parl., ii. 300 no. 16 (1369); ibid., ii. 341 no. 119 (1376).

[6]32 Henry VIII, c. 2.

[1]Maine, Ancient Law (ed. Pollock),16 [Editor: illegible character].

[2]Pollock and Maitland, ii. 302-305.

[3]Bracton’s Note Book, no. 44 (1219).

[4]This distinction becomes clear when the entail is considered. Every heir in tail takes because he is the heir (of the prescribed class) of the donee. Thus, under a gift to A. and the heirs male of his body, an elder son may be succeeded by his half-brother because the latter has become the heir male of the donee’s body, although not heir of the previous tenant. This point is well made in Y.BB. Edward II (Selden Society), vi. 58 (1311). Thus the burden of a bond binding X. and his heirs may not descend to the same person as the lands of X.: see this curious point discussed in Davy v. Pepys (1573), Plowd. 441, and above, p. 552.

[5]The action nuper obiit shared this peculiarity with mort d’ancestor: Y.BB. Edward II (Selden Series), x. 285 (c. 1311).

[6]For an illuminating argument on this point see Y.BB. Edward II (Selden Society) xvii. 215 (1315; other reports ibid., xv. 74, and in the Vulgate at f. 147).

[1]So it was in gavelkind: Placitorum Abbreviatio, 279 a (1286).

[2]As in Y.BB. Edward II (Selden Series), x. 284 (c. 1311).

[3]At least in the opinion of Britton, ii. 73—a view very soon obsolete; cf. Y.BB. Edward II (Selden Series), ii. 153 (1318), and Y.B. 19 Edward II, f. 628 (1325).

[4]Select Civil Pleas (Selden Society), 1.

[5]Bracton, ff. 65-66 b, 279 b-280.

[6]Fleta, 371.

[7]Britton, ii. 319.

[8]Bracton, f. 65 b.

[9]Bracton’s Note Book, no. 1128 (1234-1235).

[10]This remarkable case is in Y.BB. Edward II (Selden Society), x. 286 (c. 1311).

[11]Y.BB. Edward II (Selden Society), xv. 75-76. A manorial court was fined in 1234 for not appreciating this: Bracton’s Note Book, no. 834. It was admitted that they might have been justified if they could have appealed to a local custom, but they failed to do so.

[1]Azo, Summa, col. 721, § 6 (the passage is not in Maitland’s Bracton and Azo).

[2]The point of Bereford’s outburst was an earlier remark by Inge in the same case, to the effect that possessio fratris was “an imperial law on which the law of the land is founded”.

[3]Rot. Parl., ii. 314 no. 42 (1372).

[4]Glanvill, vii. 1.

[5]Above, p. 717. In 1221 a father did the like for his second son: Eyre Rolls (Selden Society, vol. lix), no. 232.

[6]Pollock and Maitland, ii. 254.

[7]Ibid., 328. Cf. F. M. Stenton, English Feudalism, 51-53, 262, for a man who made his brother his heir, to the exclusion of his own son; other examples are Registrum Antiquissimum (ed. C. W. Foster and K. Major, Lincoln Record Society), iv. no. 1299, iv. no. 1439.

[8]An endowment ex assensu patris could be expressed in 1200 as the father constituting his son heir: Se ect Civil Pleas (Selden Society), no. 65. There is an original deed, temp. Edward I, in the Harvard Law Library (Ms. Doc. o. 014), purporting to constitute an heir.

[9]For a “son by purchase” (apparently a bastard acknowledged and adopted by his father), see Eyre Rolls (Selden Society, vol. lix), no. 187 (1221); he did not contest the claim of the legitimate heiress.

[1]See the discussions in Pollock and Maitland, ii. 59-60, and Joüon des Longrais, La Saisine, 71 n. 2. Trespass (which followed the law of novel disseisin very closely) was similarly inadequate for the protection of chattels before the executors had obtained actual possession of them: J. Conway Davies, Baronial Opposition, 583 (1322).

[2]The maxim Le roi est mort: vive le roi is the constitutional aspect of the same principle. The history of le mort saisit le vif is discussed in detail by Lefebvre, L’Ancien Droit des successions, ii. 281-304.

[3]Y.B. 33 & 35 Edward I, 54.

[4]Littleton, Tenures, sec. 448.

[5]Above, p. 377.

[6]St Germain, Doctor and Student, i. 19; cf. Holdsworth, iii. 537, 563 n. 1.

[1]Cf. Maitland’s brilliant invective of 1879 reprinted in Collected Papers, i. 162-201.

[2]They begin as early as 1267, statute of Marlborough, c. 6. Thus, “he cannot purchase his own heritage”—Berewyke, J., in Y.B. 20 & 21 Edward I (Rolls Series), 266 (1292); but contrast ibid., 212, and Y.B. 21 & 22 Edward I (Rolls Series), 446 (1294).

[3]3 & 4 William IV, c. 106; the relation of this act to the older law is set out in Challis (ed. Sweet), 237-250.

[4]Fleta, ii. 62, 10; above, p. 377.

[5]Creditors of a deceased trader could reach his land by Chancery proceedings against his heir, under 47 Geo. III, session 2, c. 74 (1807).

[6]3 & 4 William IV, c. 104.

[7]Land Transfer Act, 1897, 60 & 61 Vict. c. 65.

[8]Administration of Estates Act, 1925.

[1]Pollock and Maitland, ii. 256.

[1]Aethelbert, 78.

[2]Ibid., 80.

[3]Ine, 57.

[4]VI Aethelstan, 1, § 1.

[5]II Canute, 70.

[6]For the heriot, see Pollock and Maitland, i. 312.

[7]For the effect of William the Conqueror’s charter on this, see above, p. 13 n. 5.

[8]Above, pp. 13, 713.

[1]Leis Willelme, 34. It is pointed out in Pollock and Maitland, i. 103 n., that this passage is in Romanesque company, and that “unless enfans means ‘sons’, can hardly be English or Norman law”. This seems questionable. A “heritage” which the decedent omitted to “divide” is more likely to be land than chattels at this date, and so its distribution to “children” is perfectly consonant with the earlier laws already cited.

[2]Henry I, Coronation Charter, c. 7. Cf. Stephen’s Second Charter, c. 4 (1136), on wills of the clergy, and on their intestacies.

[3]Examples will be found in Pollock and Maitland, ii. 357.

[1]Other examples of this sort of competition are treason (the king had to compromise with the lords, above, p. 443); felony (lords got the land, and the king the chattels, holding them free of any liability for the felon’s debts—Baldwin, in English Government at Work (ed. J. F. Willard), 136 n. 2; usury (the king got the chattels—Glanvill, vii. 16); and heresy (inconclusive contest of king and pope—cf. Plucknett, Case of the Miscreant Cardinal, American Historical Review, xxx. 1). See also Gaston Baril, Droit de l’évéque aux meubles des intestats en Normandie, Caen, 1911.

[2]Glanvill, vii. 16.

[3]Articles of the Barons, c. 16.

[4]Magna Carta (1215), c. 27.

[5]Bracton, f. 60 b.

[6]Ballard, Borough Charters, 75-76; Ballard and Tait, Borough Charters, 95.

[7]Collected in Bateson, Borough Customs (Selden Society), ii. 75-78, 200-201.

[8]Henry I’s charter only concerned tenants in chief; hence the claim he resigned was feuda rather than royal. The crown was also the feudal lord of many (though not all) boroughs.

[9]Matthew Paris, Chronica Majora (R.S.), iv. 552, 604; above, p. 727 n. 2.

[1]Calendar of Papal Letters, i. 474.

[2]Materials for the history of Thomas Becket (Rolls Series), v. 38.

[3]Westminster II, c. 19. An attempt to base upon this act a claim against the ordinary’s executors apparently failed in (?) 1337: Y.B. 11 & 12 Edward III, 142.

[4]31 Edw. III, st. 1, c. 11.

[5]21 Hen. VIII, c. 5 (1529).

[1]Text in Registrum Palatinum Dunelmense (ed. Hardy, Rolls Series), i. 369; Pollock and Maitland, ii. 362.

[2]Rot. Parl., ii. 142 (49).

[3]For the state of the law before the statute, and its parliamentary history, see Holdsworth, iii. 556-563.

[4]22 & 23 Charles II, c. 10.

[1]See Co. Lit. 176-177.

[2]Jekyll, M.R., chose to regard the statute as the work of a civilian: W. H. D. Winder, Sir Joseph Jekyll, Law Quarterly Review, lvii. 535.

[3]Smith v. Tracy (1677), 1 Mod. 209; 2 Mod. 204.

[4]Brown v. Farndell (1689), Carth. 51.

[5]1 James II, c. 17 (1685).

[1]The earlier period is briefly dealt with in Pollock and Maitland, ii. 314-341, and Hazeltine, introduction to D. Whitelock, Anglo-Saxon Wills. Valuable continental material is to be found in R. Caillemer, Exécution testamen aire.

[1]Most of them are edited and translated by D. Whitelock, Anglo-Saxon Wills, to which Professor Hazeltine has prefixed a valuable introduction.

[2]Hazeltine, loc. cit., stresses this aspect.

[1]Whitelock, 2-3, is an example.

[1]Some historians see in the “soul’s part” the first appearance of strictly individual property. Cf. E. F. Bruck, Kirchlich-sociales Erbrecht in Byzanz, Studi in onore di Salvatore Riccobono, iii. 377 ff.

[2]Génestal, L’Interdiction du legs d’immeuble (Semaine de droit normand, XIV), [1928] Revue historique de droit français.

[1]This point is well made by D. C. Douglas, The Norman Conquest and English Feudalism, Economic History Review, ix. 128.

[2]The charter of Henry I, c. 7, of 1100 accords freedom of testation of chattels only; so it would seem that land was already indevisable by that date.

[3]Eudo the Dapifer is an example, Pollock and Maitland, ii. 327.

[4]A chronicler alleges a decree of about 1189 by Geoffrey Fitz Peter, instigated by the servants of Satan; ibid.

[5]Maitland, Bracton’s Note Book, i. 36. For a case of 1252, showing that the device could have a limited effectiveness, see the Casus et Judicia printed in Casus Placitorum (Selden Society), lxxvii. no. 22. Cf. above, p. 722.

[6]Glanvill, VII, 1.

[1]Tait, The Medieval English Borough, 111.

[2]Newcastle upon Tyne is an example; Sayles, King’s Bench, ii. 52. Here and in some other towns only purchases were devisable. Cf. Hemmeon, Burgage Tenure, 135, and Y.B. 20 & 21 Edward I (Rolls Series), 264 (1292). Bracton is confused on the subject; Pollock and Maitland, ii. 330.

[3]The ambiguous passage in Pollock and Maitland, ii. 330, line 4, must not be read as meaning that Glanvill mentions the devisability of burgages (as Hemmeon, 130).

[4]Eyre Rolls (Selden Society, vol. lix), no. 290 (1221).

[5]Flower, Introduction to Curia Regis Rolls (Selden Society), 110-111.

[6]The question arises not only in testamentary but also in matrimonial causes. Here again the church was excluded, and the common law courts developed their own writ of entry causa matrimonii prelocuti. Even jurisdiction over the maritagium had once been claimed by the church.

[1]Above, pp. 629-630.

[1]Testamenta Eboracensia, and Wills and Inventories from the Registry of Durham (both in the Surtees Society); Fifty English Wills (Early English Text Society); Nicolas, Testamenta Vetusta; Register of Henry Chichele, vol. II (ed. E. F. Jacob), contains a valuable introduction. Cf. the general description of old wills in Pollock and Maitland, ii. 337 ff. There are some typical examples from various dates in Holdsworth, iii. 670

[2]James, Medieval Ghost Stories, English Historical Review, xxxvii. 413. If the lord took the best beast as heriot, the parson would have to be content with the second best as mortuary: Y.B. 21 & 22 Edward I (Rolls Series), 590 (1294).

[3]Chichele’s Register, ii. 68 (1415); cf. Nicolas, Testamenta Vetusta, 553 (1517).

[1]32 Henry VIII, c. 1.

[2]29 Charles II, c. 3.

[3]7 William IV & 1 Victoria, c. 26.

[4]Hilliard v. Jennings (1700) Comyns, 91; 1 Ld. Raym. 505.

[5]25 Geo. II, c. 6.

[6]Glanvill, vii. 6, 7; xii. 17.

[7]Bracton’s Note Book, no. 381 (1230).

[1]Compare Pollock and Maitland, ii. 341, with Holdsworth, i. 625.

[2]20 & 21 Victoria, c. 77.

[3]Above, p. 377.

[4]Above, pp. 647 n. 3, 377 n. 6.

[5]9 Edw. III, stat. 1, c. 3 (1335).

[6]Y.B. 20 Henry VII, Michs. no. 5 (1504). Eventually, however, the exchequer of pleas would compel executors to answer.

[1]25 Edw. III, stat. 5, c. 5 (1352); this had already been established by case law, Y.B. 11 & 12 Edward III, 186 (1337), Y.B. 13 & 14 Edward III, 328 (1340), the object of the statute being merely to remove doubts and to state the position in more general terms.

[2]See Holdsworth, iii. 585 ff.

[3]Y.B. 20 Edward III, ii. 422 (1346); details in Holdsworth, iii. 588. See Woodward v. Lord Darcy (1557), Plowd. 184, where the point was discussed at length.

[4]Y.B. 11 Richard II, 187, Y.B. 12 Richard II, 1 (1388); Holdsworth, iii. 589. For the suggestion that a common law account was sometimes preferable to the canonical remedy, see Y.B. 12 & 13 Edward III (Rolls Series), 82-84.

[5]For the equitable extension of the doctrine in the seventeenth century, see Spence, Equitable Jurisdiction, i. 584.

[6]25 Edw. III, stat. 6, c. 9 (1352).

[7]For an interesting example, see Select Cases in Chancery, no. 140 (1456); the petitioner’s case against a bishop’s executors rested on the common clause in the will directing them to compensate those whom the testator had wronged—seemingly a very “spiritual” matter.

[1]Pollock and Maitland, ii. 343.

[2]Alternatively, “it may be that the cases in which the Chancery first interfered were cases in which the legatee was not a mere legatee but was also a cestui que trust”: Maitland, Equity, 193.

[3]Valuable references to printed and unprinted sources in support of the above summary are collected in Spence, Equitable Jurisdiction, i. 578 ff.

[1]The Norman scheme can be studied in (1923) Travaux de la Semaine d’histoire du droit normand (Astoul, Les Propres de mariage; Bridrey, La Réserve héréditaire; Génestal, Le Retrait lignager).

[2]Glanvill, vii. 5. So too Bracton and Fleta.

[3]3 Y.B. 17 Edward II, f. 536 (1324); Y.B. 40 Edward III, Michs. 12 (1366); the writ on “the custom of the realm” against those in common callings is anomalous.

[4]To the list in Pollock and Maitland, ii. 351 n. 4, may be added Y.B. 13 Richard II (Ames Foundation), 9 (1389).

[5]Great Charter (1225), c. 18.

[6]Bereford, C.J., was firmly for free testation, and restricted the Charter to “propres”: Y.B. 17 Edward II, f. 536 (1324).

[7]The classical Romanists, on the other hand, were sympathetic to rules which they associated with “nature”. Jean de Laplanche, La “Soutenance” on “Pourvéance” dans le droit coutumier français, 5.

[8]Wilkins, Concilia, II, 706.

[1]Y.B. 40 Edward III, Michs. 12.

[2]See the remarks in Holdsworth, iii. 554.

[3]4 William & Mary, c. 2.

[4]7 & 8 William III, c. 38 (1696).

[5]2 & 3 Anne, c. 5 (1704).

[6]11 George I, c. 18 (1724).

[1]2 Blackstone, Comm., 503.

[2]See the comments of J. Unger, The Inheritance Act and the Family, 6 Modern Law Review 215; 1 & 2 Geo. VI, c. 45, Inheritance (Family Provision) Act, 1938.