exam91a1

MEDIEVAL STUDIES 117:
ENGLISH CONSTITUTIONAL AND LEGAL HSTORY

Professor Donahue, Mr. Berkhofer

May 23, 1996: 2:15 p.m. -- 5:15 p.m.

INSTRUCTIONS

This is an open-book exam. You may bring with you and use any materials that you wish.

This exam has two questions that will be given approximately equal weight. For the first question you are to choose one of the two subparts. For the second question you are to write on the one of the two subparts. If you choose part A of Question I, you should write on part B of Question II. If you choose part B of Question I, you should write on part A of Question II. You have an hour and a half to write each essay. You should not write furiously for the full hour and a half. Rather you should spend some time outlining what you are going to say and revising what you have written. The result should be two coherent essays.

I.

Answer either Question I.A. or Question I.B.

A.

Examine the following case from Materials, p. 435:

Anon.
Y.B. Mich. 11 Hen. 4, f. 33, pl. 60
A.D. 1409

"A writ was brought against a carpenter sur tiel mattere [on such (this) matter], that, whereas he had undertaken make the plaintiff a new house within a certain time, he had not made the house, a tort [wrongfully], etc.

"Tildesley [the serjeant representing the defendant]: Sir, you see well how this matter sounds in a manner of covenant, of which covenant he shows nothing. Now therefore we ask judgment if he shall have an action without a specialty.

"Norton [the serjeant representing the plaintiff]: And we ask judgment, sir; for if he should have made my house badly and should have destroyed my timber, I should have had an action sure enough on my case without a deed.

"THIRNING, C.J. [i.e., chief justice of Common Pleas]: I grant well your case, because he shall answer for the tort he has done, quia negligenter fecit [because he did it negligently]. But if a man makes a covenant and shows nothing done beyond the covenant, how shall you have your action against him without a specialty?

"HILL, J. [another justice of Common Pleas]: He could have had an action on the Statute of Laborers in this case, supposing him to have been retained in his service to make a house, but this action is too feeble. Because, therefore, it seems to the court that this action, which is taken at common law, is founded on a thing which is covenant in itself, of which nothing is shown, the court awards that you take nothing by your writ, but be in mercy."

Write a commentary on this case. Your principal focus should be on the case itself and its meaning. You should, of course, also examine the prior and subsequent history of the institutions to which it refers, but a good essay will probably not reach back much before 1348 nor go much further than 1506.

B.

Examine the following extract from Doctor and Student (Materials, pp. 581-2):

"Doctor: ... I pray thee touch shortly upon some of the causes why there hath been so many persons put in estate of lands to the use of others as there have been, for, as I hear say, few men be sole seised of their land.

"Student: There have been many causes thereof, of the which some be put away by divers statutes, and some remain yet. Wherefore thou shalt understand that some have put their land to feoffment secretly, to the intent that they that have right to the land should not know against whom to bring their action, and that is somewhat remedied by divers statutes that give actions against pernors [roughly "takers"] and takers of profits. ... And sometime they were made to use of mortmain, which might then be made without forfeiture, though it were prohibited that the freehold might not be given in mortmain. But that is put away by the statute of Richard the Second. And sometime they were made to defraud the lords of wards, reliefs, heriots [a payment due a lord upon succession to the land of a villein], and of the lands of their villeins, but those points be put away by divers statutes made in the time of king Henry VII. ... And yet remain feoffments, fines and recoveries [types of conveyance] in use for many other causes, in manner as many as there did before the said statute[s]. And one cause why they be yet thus used is, to put away tenancy by the courtesy and titles of dower. ... And sometimes such uses be made that he to whose use, etc., may declare his will thereon, and sometime for surety of divers covenants in indentures of marriage and other bargains. And these last two articles be the chief and principal cause why so much land is put in use."

Write a commentary on this quotation. You should, of course, examine the prior and subsequent history of the institutions to which it refers, but your principal focus should be on the passage itself and its meaning.

II.

Answer either Question II.A. or Question II.B. If you chose to answer Question I.A., you should answer Question II.B. If you chose to answer Question I.B., you should answer Question II.A.

A.

When we discussed the development of the personal actions in the central royal courts, we said that it was more difficult to fit this development into the overall social and constitutional framework of medieval and early modern English history than it was to fit the development of the land law into the same framework. Write an essay arguing that the development of the personal actions can no more be divorced from the social and constitutional framework within which it occurred than can the development of the land law.

B.

The text of the Statute of Uses (27 Hen. VIII, c. 10 (1536)) follows:

"Where, by the common laws of this realm, lands, tenements, and hereditaments be not devisable by testament, nor ought to be transferred from one to another but by solemn livery and seisin ...; yet nevertheless divers and sundry imaginations, subtle inventions, and practices have been used whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents, and trusts, and also by wills and testaments sometime made by ... words, sometime by signs and tokens, and sometime by writing, and for the most part made by such persons as be visited with sickness, in their extreme agonies and pains, or at such time as they have scantly had any good memory or remembrance; at which times they being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inheritances; by reason whereof, and by occasion of which fraudulent feoffments, fines, recoveries, and other like assurances to uses, confidences and trusts, divers and many heirs have been unjustly at sundry times disherited, the lords have lost their wards, marriages, reliefs, herriots, escheats, aids for making their sons knights and to marry their daughters, and scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or executions for their rights, titles and duties; also men married have lost their tenancies by the curtesy, women their dowers, manifest perjuries by trial of such secret will and uses have been committed; the king's highness hath lost the profits and advantages of the lands of persons attainted, and of the lands craftily put in feoffments to the uses of aliens born, and also the profits of waste for a year and a day of felons attainted, and lords their escheats thereof; and many other inconveniences have happened, and daily do increase among the king's subjects, to their great trouble and inquietness, and to the utter subversion of the ancient common laws of this realm; for the extirpating and extinguishment of all such ... feoffments, fines, recoveries, abuses and errors ... and to the intent that the king's highness or any other his subjects of this realm shall not in any wise hereafter by any means of inventions be deceived, damaged or hurt by reason of such trusts, uses, or confidences; it may please the king's most royal majesty that it may be enacted by his highness, by the assent of the lords spiritual and temporal and the commons in this present parliament assembled, and by authority of the same in manner and form following ...:

"§1. Where any person or persons stand or be seised or at any time thereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise ..., in every such case all and every such person and persons and bodies politic that have or hereafter shall have any such use, confidence or trust in fee simple, fee-tail, for term or life or for years, or otherwise, or any use confidence or trust in remainder or reverter, shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors, lands, tenements, rents, services, reversions, remainders and hereditaments, with their appurtenances, to all intents, constructions, and purposes in the law of and in such like estates as they had or shall have in use, trust or confidence or in the same; and that the estate, right, title, and possession that was in such person or persons that were or shall he hereafter seised of any lands, tenements, or hereditaments to the use, confidence, or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence, or trust, after such quality, manner form and condition as they had before, in or to the use, confidence or trust that was in them.

[Other sections make specific application of this principle and establish a number of exceptions. The act closes with three sections adequately summarized in their titles:]

"§ 12. Wills made before 1 May 1536 shall be effectual as before the statute.

"§ 13. No fines for alienation, reliefs or herriots payable to the king till after 1 May 1536 under the statute.

"§ 14. No fines, reliefs or herriots to private persons on the executing of any estate under this act before 1 May 1536."

Write a general essay on the place of the statute of Uses showing not only the role that it played in the overall development of the land law but also how it fits into the constitutional and social history of medieval and early modern England.

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last modified: 12/13/08

	MEDIEVAL STUDIES 117: ENGLISH CONSTITUTIONAL AND LEGAL HSTORY Professor Donahue, Mr. Berkhofer May 23, 1996: 2:15 p.m. -- 5:15 p.m.
	INSTRUCTIONS
	This is an open-book exam. You may bring with you and use any materials that you wish. This exam has two questions that will be given approximately equal weight. For the first question you are to choose one of the two subparts. For the second question you are to write on the one of the two subparts. If you choose part A of Question I, you should write on part B of Question II. If you choose part B of Question I, you should write on part A of Question II. You have an hour and a half to write each essay. You should not write furiously for the full hour and a half. Rather you should spend some time outlining what you are going to say and revising what you have written. The result should be two coherent essays.
	I.
	Answer either Question I.A. or Question I.B.
	A.
	Examine the following case from Materials, p. 435:
	Anon. Y.B. Mich. 11 Hen. 4, f. 33, pl. 60 A.D. 1409
	"A writ was brought against a carpenter sur tiel mattere [on such (this) matter], that, whereas he had undertaken make the plaintiff a new house within a certain time, he had not made the house, a tort [wrongfully], etc. "Tildesley [the serjeant representing the defendant]: Sir, you see well how this matter sounds in a manner of covenant, of which covenant he shows nothing. Now therefore we ask judgment if he shall have an action without a specialty. "Norton [the serjeant representing the plaintiff]: And we ask judgment, sir; for if he should have made my house badly and should have destroyed my timber, I should have had an action sure enough on my case without a deed. "THIRNING, C.J. [i.e., chief justice of Common Pleas]: I grant well your case, because he shall answer for the tort he has done, quia negligenter fecit [because he did it negligently]. But if a man makes a covenant and shows nothing done beyond the covenant, how shall you have your action against him without a specialty? "HILL, J. [another justice of Common Pleas]: He could have had an action on the Statute of Laborers in this case, supposing him to have been retained in his service to make a house, but this action is too feeble. Because, therefore, it seems to the court that this action, which is taken at common law, is founded on a thing which is covenant in itself, of which nothing is shown, the court awards that you take nothing by your writ, but be in mercy." Write a commentary on this case. Your principal focus should be on the case itself and its meaning. You should, of course, also examine the prior and subsequent history of the institutions to which it refers, but a good essay will probably not reach back much before 1348 nor go much further than 1506.
	B.
	Examine the following extract from Doctor and Student (Materials, pp. 581-2):
	"Doctor: ... I pray thee touch shortly upon some of the causes why there hath been so many persons put in estate of lands to the use of others as there have been, for, as I hear say, few men be sole seised of their land. "Student: There have been many causes thereof, of the which some be put away by divers statutes, and some remain yet. Wherefore thou shalt understand that some have put their land to feoffment secretly, to the intent that they that have right to the land should not know against whom to bring their action, and that is somewhat remedied by divers statutes that give actions against pernors [roughly "takers"] and takers of profits. ... And sometime they were made to use of mortmain, which might then be made without forfeiture, though it were prohibited that the freehold might not be given in mortmain. But that is put away by the statute of Richard the Second. And sometime they were made to defraud the lords of wards, reliefs, heriots [a payment due a lord upon succession to the land of a villein], and of the lands of their villeins, but those points be put away by divers statutes made in the time of king Henry VII. ... And yet remain feoffments, fines and recoveries [types of conveyance] in use for many other causes, in manner as many as there did before the said statute[s]. And one cause why they be yet thus used is, to put away tenancy by the courtesy and titles of dower. ... And sometimes such uses be made that he to whose use, etc., may declare his will thereon, and sometime for surety of divers covenants in indentures of marriage and other bargains. And these last two articles be the chief and principal cause why so much land is put in use." Write a commentary on this quotation. You should, of course, examine the prior and subsequent history of the institutions to which it refers, but your principal focus should be on the passage itself and its meaning.
	II.
	Answer either Question II.A. or Question II.B. If you chose to answer Question I.A., you should answer Question II.B. If you chose to answer Question I.B., you should answer Question II.A.
	A.
	When we discussed the development of the personal actions in the central royal courts, we said that it was more difficult to fit this development into the overall social and constitutional framework of medieval and early modern English history than it was to fit the development of the land law into the same framework. Write an essay arguing that the development of the personal actions can no more be divorced from the social and constitutional framework within which it occurred than can the development of the land law.
	B.
	The text of the Statute of Uses (27 Hen. VIII, c. 10 (1536)) follows: "Where, by the common laws of this realm, lands, tenements, and hereditaments be not devisable by testament, nor ought to be transferred from one to another but by solemn livery and seisin ...; yet nevertheless divers and sundry imaginations, subtle inventions, and practices have been used whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents, and trusts, and also by wills and testaments sometime made by ... words, sometime by signs and tokens, and sometime by writing, and for the most part made by such persons as be visited with sickness, in their extreme agonies and pains, or at such time as they have scantly had any good memory or remembrance; at which times they being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inheritances; by reason whereof, and by occasion of which fraudulent feoffments, fines, recoveries, and other like assurances to uses, confidences and trusts, divers and many heirs have been unjustly at sundry times disherited, the lords have lost their wards, marriages, reliefs, herriots, escheats, aids for making their sons knights and to marry their daughters, and scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or executions for their rights, titles and duties; also men married have lost their tenancies by the curtesy, women their dowers, manifest perjuries by trial of such secret will and uses have been committed; the king's highness hath lost the profits and advantages of the lands of persons attainted, and of the lands craftily put in feoffments to the uses of aliens born, and also the profits of waste for a year and a day of felons attainted, and lords their escheats thereof; and many other inconveniences have happened, and daily do increase among the king's subjects, to their great trouble and inquietness, and to the utter subversion of the ancient common laws of this realm; for the extirpating and extinguishment of all such ... feoffments, fines, recoveries, abuses and errors ... and to the intent that the king's highness or any other his subjects of this realm shall not in any wise hereafter by any means of inventions be deceived, damaged or hurt by reason of such trusts, uses, or confidences; it may please the king's most royal majesty that it may be enacted by his highness, by the assent of the lords spiritual and temporal and the commons in this present parliament assembled, and by authority of the same in manner and form following ...: "§1. Where any person or persons stand or be seised or at any time thereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise ..., in every such case all and every such person and persons and bodies politic that have or hereafter shall have any such use, confidence or trust in fee simple, fee-tail, for term or life or for years, or otherwise, or any use confidence or trust in remainder or reverter, shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors, lands, tenements, rents, services, reversions, remainders and hereditaments, with their appurtenances, to all intents, constructions, and purposes in the law of and in such like estates as they had or shall have in use, trust or confidence or in the same; and that the estate, right, title, and possession that was in such person or persons that were or shall he hereafter seised of any lands, tenements, or hereditaments to the use, confidence, or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence, or trust, after such quality, manner form and condition as they had before, in or to the use, confidence or trust that was in them. [Other sections make specific application of this principle and establish a number of exceptions. The act closes with three sections adequately summarized in their titles:] "§ 12. Wills made before 1 May 1536 shall be effectual as before the statute. "§ 13. No fines for alienation, reliefs or herriots payable to the king till after 1 May 1536 under the statute. "§ 14. No fines, reliefs or herriots to private persons on the executing of any estate under this act before 1 May 1536." Write a general essay on the place of the statute of Uses showing not only the role that it played in the overall development of the land law but also how it fits into the constitutional and social history of medieval and early modern England.