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English Legal History
4/8/2009
Outline
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I. LITTLETON (Sir Thomas Littleton, JCP, died
1481)
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II. FORTESCUE (Sir John Fortescue, CJKB, c. 1385–1477)
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III. ST. GERMAN (Christopher St. German, c.
1460–1540)
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1.
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Littleton’s scheme of tenures and estates:
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a.
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The fee simple
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i.
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“To A and his heirs”
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ii.
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“Propres ne remontent pas”
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iii.
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Blood of the first purchaser
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iv.
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Exclusion of half-bloods
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v.
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—> writ of right
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b.
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Fee tail
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i.
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General, special, male, female
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ii.
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Gifts in frank marriage
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iii.
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No new estates
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c.
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Tenant in tail after possibility of issue extinct
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d.
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Curtesy
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e.
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Dower
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i.
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By common law or custom
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ii.
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Ad ostium
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iii.
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Ex assensu patris
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iv.
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De la plus beale
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f.
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Tenant for life—a freehold
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g.
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Tenant for years—the livery of seisin problem
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h.
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Tenant at will—intentional, remedial
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i.
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Tenant by copy
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2.
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What Littleton misses:
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a.
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Remainders, especially contingent remainders.
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b.
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The whole development of uses, particularly remarkable because he used one
himself as a will-substitute.
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c.
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The development of protection for copyholders.
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d.
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The docking of entails, particularly remarkable because he was on the
court that decided Taltarum’s Case
(1472).
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Sir John Fortescue,
CJKB, in exile with Henry VI and Prince Edward, 1461–1470, returns with the
readeption and dies 1477 or 79. De laudibus legum Anglie, On
the praise of the laws of England. The notion of dominium
politicum et regale.
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1.
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Christopher St. German’s work, Doctor
and Student, like Fortescue’s, is written in dialogue form (1525 and
1530). Sinderesis, the innate
drive in men to do good and avoid evil. Divine law revealed by God and
natural law discovered by reason.
Conscience is the application of moral rules to specific case and in
this definition conscience is hard to distinguish from equity, though the
latter looks more to the judge while conscience looks more to the
individual.
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2.
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“Equity is right wiseness that considereth all the pertinent
circumstances of the deed, the which is also tempered with mercy.” (I.16, p. IX–22).
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a.
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Notion that it is also inherent in the common law (I.17, p. IX–23, the
example derived from Littleton is that an infant is not deprived of a right
of entry by descent cast). Equity of a statute (id., example is the exception read into the waste statute that
it does not cover the infant tenant who suffers waste).
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b.
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Chancery example (p. I.12, pp. IX–19, the classic example of the debt on
an obligation to which no sealed acquittance has been obtained).
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c.
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Limit to Chancery on appeal (I.18, p. IX–25, the statute of 4 H. 4, c.
22, which prohibits examination of a judgment given in the king’s courts in
chancery, parliament or elsewhere).
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d.
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Notion of conscience ordered after law (many examples, e.g., I.20, p.
IX–27 to IX–28, example is common law inheritance, borough English
inheritance, and gavelkind inheritance). What is the principle?
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3.
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Indeed, the most interesting part of the book is where St. German
examines cases where there seems to be a conflict between equity and law.
Let’s take a look at a couple on that is in and one that is not in the
mats:
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a.
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A formal conveyance (fine) in court binds even those who were not
parties to it after 5 years in both law and conscience (I.25, p. IX–33).
But an acquittance not under seal will bind the parties in equity but not
in law. In both cases we look to the
purpose of the law and in both cases we discover that the purpose is to
provide stability to transactions. In one case equity will intervene; in
the other it won’t. Why? The
five-year limitation on fines is made by statute, that requiring a sealed
acquittance is a matter of common law, but St. G. makes nothing of this
distinction.
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b.
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A bequest of English land is void and not binding in conscience (I.20,
p. IX–28). A bequest of a use is equally void at law, but the feofees will
be compelled in equity to execute it (II.22, pp. IX–33 to IX–36). The
testator’s purpose in both cases is the same, and the argument given for
the use, that the law doesn’t prohibit it just makes it void (p. IX–34), is
equally applicable to a straight bequest.
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