View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Apollo The interpretation of deeds and wills at common law, c. 1536–c. 1616 Joanna Hester McCunn Clare College This thesis is submitted for the degree of Doctor of Philosophy April 2019 DECLARATION This thesis is the result of my own work and includes nothing which is the outcome of work done in collaboration except as declared in the Preface and specified in the text. It is not substantially the same as any that I have submitted, or, is being concurrently submitted for a degree or diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text. I further state that no substantial part of my thesis has already been submitted, or, is being concurrently submitted for any such degree, diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text. It does not exceed the prescribed word limit for the relevant Degree Committee i ABSTRACT Name: Joanna Hester McCunn Title: The interpretation of deeds and wills at common law, c. 1536–c. 1616 This thesis explores common law approaches to the interpretation of deeds and wills between approximately 1536 and 1616. It identifies the rules and principles used by lawyers to understand these documents, and explores the wider forces that influenced their development. The methodology of the thesis is primarily doctrinal: it is principally based on an examination of contemporary law reports and legal treatises. The thesis demonstrates that common lawyers in this period took a sophisticated approach to the interpretation of private documents. They sought to strike a balance between interpreting a document according to the apparent meaning of its words, and interpreting it according to the writer’s presumed intentions. They also appealed to reason to guide them to the right meaning of a document. Different kinds of document required different approaches to interpretation, due to differences in the nature and purpose of each. This thesis argues that common lawyers’ attitudes to interpretation underwent a significant shift during the second half of the sixteenth century. Lawyers became less willing to prioritise a writer’s intention over the proper signification of the words he had used. They developed a preference for resolving cases in accordance with rules and maxims, or with the authority of previously-judged cases. They also became more anxious about the possibility of misinterpreting a document. These changes took place in a wider context of concern about legal documents, litigation, and legal uncertainty. The interpretation of private documents was an issue that both lawyers and laymen cared about fiercely in this period. This thesis will improve our understanding of legal interpretation in a foundational period for its development in England. ii ACKNOWLEDGEMENTS Firstly, my thanks go to the Selden Society, who generously funded the research for this thesis through their Studentship in English Legal History. A visit to the Huntington Library to examine Thomas Egerton’s papers was funded by a Huntington Library Francis Bacon Foundation Fellowship in Renaissance England and by the Maitland Fund at the University of Cambridge. The thesis was completed after I took up a lectureship at the University of Bristol, and I am grateful to the Law School for its support during this period. I am also grateful to my supervisor, David Ibbetson, whose boundless wit and wisdom have enriched the writing of this thesis enormously. I am very fortunate to have had Neil Jones, another exceptionally able guide, as my advisor. It would not have been possible to write this thesis without the generosity of many other friends and colleagues. My particular thanks go to Sir John Baker, Jacob Currie, Lorenzo Maniscalco, Jeffrey Thomson and Ian Williams, for their invaluable help with paleography and with Latin and French translations. Lorenzo was also unfailingly patient in responding to my queries about canon law, as was David Foster with questions about the Chancery. I am indebted to Andrew Bell and Andreas Televantos for many helpful discussions, and for plying me with cake at regular intervals. Andrew, Shreya Atrey, Talitha Kearey and Jane Sancinito have been tireless sources of encouragement and inspiration. Finally, but most of all, I am grateful for the love and support of my family. I couldn’t have done any of this without them. iii STYLE Law French has been translated. The original language has not been included, purely for reasons of space. Where they are available, I have generally adopted the standard English translations of case reports, as printed in the English Reports. If I felt that this translation did not accurately reflect the original French text, I provided my own translation and explained this in a footnote. Where Latin is used, both the original language and a translation have been provided. Spelling and capitalisation have been modernised throughout, and punctuation has occasionally been altered to clarify meaning. Where there were multiple contemporary spellings of a name, I have chosen a representative spelling for the avoidance of confusion. This thesis will use male pronouns when referring to parties in general, since, although women were involved in lawsuits on interpretation, the overwhelming majority of parties at the time were male. I have followed the dates given in individual case reports. The year has been taken to start in January. The following abbreviations have been used: D Digest of Justinian I Institutes of Justinian VI Liber sextus BL Add MS British Library Additional Manuscript CUL MS Cambridge University Library Manuscript Hunt MS El Huntington Library Ellesmere Manuscript Hunt RB Huntington Library Rare Book iv TABLE OF CONTENTS 1. Introduction .................................................................. 1 1.1. Legal interpretation in early modern England ................................. 1 1.2. Sources ....................................................................................... 8 1.3. Summary ................................................................................... 16 1.4. Deeds: introductory remarks ....................................................... 20 1.5. Wills: introductory remarks ......................................................... 33 2. The signification of words ............................................... 43 2.1. Introduction .............................................................................. 43 2.2. Grammar and language ............................................................... 44 2.3. Legal and common usage ............................................................ 51 2.4. Conclusions ............................................................................... 55 3. Intentions and words ...................................................... 56 3.1. Introduction .............................................................................. 56 3.2. Deeds ........................................................................................ 56 3.2.1. The writer’s intentions .......................................................... 56 3.2.2. The meaning of the words ..................................................... 69 3.2.3. Conditions ........................................................................... 74 3.2.4. Limitations of estates ............................................................ 78 3.2.5. Limitations of uses ............................................................... 81 3.3. Wills ......................................................................................... 85 3.3.1. The writer’s intentions .......................................................... 85 3.3.2. The meaning of the words ..................................................... 95 3.4. The parol evidence rule ............................................................ 100 3.5. Conclusions ............................................................................. 104 4. The nature of intentions ................................................ 106 4.1. Introduction ............................................................................ 106 4.2. Deeds ...................................................................................... 106 4.2.1. Whose intention? ................................................................ 106 4.2.2. The time of the intention .................................................... 113 4.3. Wills ....................................................................................... 116 4.3.1. Whose intention? ................................................................ 116 4.3.2. The time of the intention .................................................... 117 v 4.4. Conclusions ............................................................................. 121 5. Identifying intentions ................................................... 123 5.1. Introduction ............................................................................ 123 5.2. Deeds ...................................................................................... 123 5.2.1. Intentions and words .......................................................... 123 5.2.2. Intentions and circumstances ............................................... 129 5.2.3. Intentions and reason ........................................................