The image to the right is part of an exemplification of a common recovery.
Click on the image to read it.

CONTENTS




  • ;
  • ;
  • ;
  • ;

Objectives of the seminar

For reading material, see the consolidated bibliography for Modern Regional Cultures: Palaeography. Use this link to go back.


Courts and legal organisation

Common law Equity Other jurisdictions
King's Bench ('supervisory')Chancery ecclesiastical
Common Pleas Exchequer Assizes ('criminal')
Requests Quarter Sessions
North/MarchesPetty Sessions from 1631
Star Chamber Coroners'

Notes: (i)conflict of jurisdiction between ecclesiastical and common law courts in the sixteenth century, regulated by writs of prohibition(Helmholz, Canon Law in Reformation England; (ii) jurisdictions which were involved in litigation which affected real estate -- common law courts and Chancery; (iii) paradox: trusts in land were effected at common law by specific instruments of conveyancing, but were not protected at common law but at equity (Chancery); (iv) equitable jurisdictions such as Star Chamber were also prerogative courts; characteristically courts such as Requests made judgments according to 'conscience' with a large element of judicial discretion and the emphasis on 'reasonableness' as a jurisprudential criterion; (v) common law was rule-bound, inflexible and procedural, depending on reasoning by analogy from cases; it was unable to recognise some concepts such as uses and trusts which were outside the competence of seisin or possession; equitable jurisdictions such as Chancery were initially flexible and judged according to 'conscience', but later also became procedural and inflexible.


Litigiousness in early modern England

Number of cases
reaching advanced stages: 1

King's Bench Common Pleas Total
1490 500 1600 2100
c.1560 5278
1580 3805 9300 13105
1606 6639 16508 23147
16408109 20625 28734
This table comprises common law courts, excluding equity courts and other jurisdictions, whilst both tables exclude the ecclesiastical forum

Number of cases
reaching advanced stages: 2:
early 17th century

total cases
King's Bench6639
Common Pleas16508
Chancery1600
Star Chamber325
Exchequer (equity side)332
Exchequer (common law side)100-150
Council of the North2000
Council of the Marches1500

























Sources of law in early modern England

Statute: increasingly important -- legal positivism: a system of rules posited by a qualified authority, but with an 'open texture', since statute could not regulate for every circumstance, thus leaving an area for judicial review.

Custom: increasingly becoming less important except at the localised level; at common law, the doctrine evolving that custom is only law when it is 'reinstitutionalised' or accepted by a legal authority (i.e. by a legal ruling by a common law court), but at the local level therefore inducing a conflict between what was conceived as custom and law.

Case: the common law was a system of remedying wrongs (not defining abstract rights); the adjudication of these cases by the judges declared law, but only in the sense of reasoning by analogy; there was only a weak doctrine of precedent; the strong doctrine of precedent was established only in 1898 (that is, a hierarchically-binding system), was abandoned by the House of Lords in 1966, and has now given way to greater judicial discretion.

Reasonableness: judicial discretion to decide cases on the basis of what is reasonable and equitable; historically the area of Chancery.


Early Modern Land Law

Wider paradigms

Social relationships were embedded in land:


From uses to trusts

The development of uses and the subsequent doctrine of trusts encompasses much of the important developments in the 'land law' in the sixteenth through to the nineteenth centuries. The introduction of the use into land tenure in the later middle ages is one explanation for the variety of title deeds or forms of conveyance from the sixteenth century. The evolution of trusts from the late sixteenth century out of the regulation of uses allowed the protection of strict settlement as a means of preserving the integrity of landed estates from the middle of the seventeenth century. The notes follow this sequence: (i) uses and the proliferation of forms of title deed; (ii) trusts and strict settlement.


Uses and forms of action (title deeds)

From the sixteenth century, a bewildering variety of forms of conveyance existed and one of the influences was the concept of uses.

The feoffment evolved out of the medieval conveyance in fee simple, required a formal livery of seisin (noted on the dorse of the document) and was a public instrument. In contrast, the bargain and sale employed the notion of the use to avoid public livery of seisin and public knowledge and thus became known as the 'secret conveyance'; technically it transferred the use and not seisin, but to all intents and purposes was a sale of the property. The diagnostic words consisted of the two clauses 'bargain and sell ... have bargained and sold' (dispositive words) and 'to the only proper use and behoofe of ...' This clandestine transfer of property was regulated by the Statutes of Uses and Enrolments in 1536, particularly the latter statute which required that bargains and sales be enrolled at Quarter Sessions to make them public documents. Consequently, the lease and release was developed as another strategy to avoid public transfer of seisin, in response to the limitations imposed by the Statute of Enrolments. Since uses had been limited by the Statute of Uses, another instrument had to be found. That instrument was the lease for a year (lease for possession) followed on the following day by a release of the property, thus avoiding livery of seisin. The instrument thus consists of two parts: (i) a lease for one year on one day; (ii) a release on the following day. In the lease for a year, the consideration was nominal (usually 5s.) and the term of the lease one year. The release was executed the day after the lease, releasing the property to the 'lessee' in perpetuity; the full purchase price (consideration) is recited in the release; the release recites the lease of the previous day; the release is executed 'according to the statute for converting uses into possession' (the Statute of Uses). The bargain and sale with feffment was a hybrid form which confused the elements of the bargain and sale and the feoffment during the later sixteenth century as the bargain and sale lost its rationale; the dispositive words contained 'have bargained sold and granted and enfeoffed'; technically, it was a nonsense, since it conflated uses and possession.


So what were uses and how did they arise?

Uses were distinct from possession or seisin; uses provided the benefits of the property, the usufruct, without ownership. In the later middle ages, the concept and device was adopted for a variety of purposes, to avoid knowledge of who was benefitting from the property and to avoid certain obligations.

grantor							grantee (trustee)							beneficiary (cestui que use)
           A --- seisin/possession -----  B    --- to the use of --------- B
           A --- seisin/possession -----  B    --- to the use of --------- C

The original intentions and effects of uses


Protection in Chancery

Since the common law allowed no protection for uses, uses were open to abuse. The common law offered no protection because its emphasis was on possession or seisin; thus the possession had been transferred at common law and the new owner, the trustee, could not be bound to hold a promise. The informal guarantees involved:

Consequently, the Chancellor provided protection as equity jurisidiction of the Chancery evolved. Chancery, in contrast with common law, placed the emphasis on the promise and breach of faith rather than possession; its concern was to hold the trustees to perform the promise. By 1402-9, Chancery was ruling on uses. The most substantial early evidence, however, is from the Burgh case. The widow of John Burgh arraigned her husband's feoffees to uses for fraudulently not adhering to the directions for uses. From this time, Chancery became the protector of the real owner/cestui que use and thus Chancery became the forum for trusts through into modern times.


The Statute of Uses to Statute of Wills

The background to the Statute (1536):

During the late fifteenth and early sixteenth centuries, the Crown's finances were reconstituted and consolidated; feudal incidents remained an obvious lacuna, about which a succession of remedies had been tried:

'Genesis' of the Statute of Uses 1529-36: 1529-32 draft bills to limit uses as Henry VIII was desperate to augment royal finances; an agreement arranged between the Crown and thirty peers for the reform of uses, so that uses would be recorded at common law (in Common Pleas); the quid pro quofor the nobility was the abolition of entails; the Crown reserved the right of wardship in one third of the lands if the heir was a minor (effectively allowing tenants-in-chief to devise by will no more than two-thirds of their lands -- cf. the Statute of Wills 1540); but the bill was rejected by the Commons.

The alternative strategy which led to the Statute of Uses in 1536 was to prosecute a test case and establish a new point of law. The test case was the Dacre case. Thomas Lord Dacre died in 1533 and the Crown used the case to show that all uses were collusive and therefore fraudulent. This end was achieved by putting pressure on the Chancellor, Sir Thomas Audley, to find in favour of the Crown in Chancery. The architect of the scheme was Thoams Cromwell, in his remembrance to the Crown of 1533. The point of law (demurrer): any devise of land by will by a tenant-in-chief who left an heir was fraudulent because it used revenues which were part of the Crown's prerogative (.i.e. a diversion of their use by collusive means). The Commons, which threw out the bill of 1532, was presented with a fait accompli.

The legislation of 1536-40 thus comprised: