Bacon's Maximes II, ca. 1600
Bill Long 11/28/05
Maxim # 23: Latent and Patent Ambiguity
It will take me two essays to try to unpack the problem of latent and patent ambiguity, which this maxim probes. While it may have originated in a context of interpreting a will, the distinction has had a subsequent history in contracts and real estate law, among other places. The weight of legal opinion now believes that application of the terms took a judicial wrong-turn in the 19th century, which led to a formalistic reading of wills/contracts in such a way that legitimate and probably crucial evidence was often eliminated from consdieration in many cases. Let's begin with the maxim, its subsequent history and then try to understand what it might originally have been intended to cover.
The Latin is as follows: "Ambiguitas verborum latens verificatione suppletur, nam quod ex facto oritur ambiguum verificatione facti tollitur." How to translate? Well, let's try. "A latent ambiguity of words (or in a document) may be supplemented by evidence (or proof); for that kind of ambiguity arising out of facts can be taken away (or removed) by the proof (or evidence) of the facts." So, for Bacon, there was some kind of ambiguity known as a latent one, which can be removed by extrinsic evidence. His explanation following the maxim is the place where he makes the crucial distinction. He says:
"There be two sorts of ambiguities of words: the one is 'ambiguitas patens' and the other is 'ambiguitas latens.' 'Patens' is that which appears to be ambiguous upon the deed or instrument; 'latens' is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity."
"Patent ambiguity" is "never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow and subject to averments, and so, in effect, that to pass without deed, which the law appointeth sahll not pass but by deed."
In trying to get a handle on what he just said, it might be helpful to give the example he provides of patent ambiguity. "Therefore if a man give land to 'I.D. et I.S. hoeredibus' ('to I.D. and I.S. heirs') and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited." The example he cites is from a case from the early 1590s (The Lord Cheyney's Case) which I will describe below. Suffice it to say here that what Bacon means is that since the words bolded above are susceptible of more than one interpretation (is the gift to I.D.s heirs or I.Ss heirs or both?), the ambiguity is in the text itself, and for this reason, cannot be clarified by external evidence. Why? Because "that were to make all deeds hollow and subject to averments..." In other words, by taking extrinsic evidence/testimony you would then be opening yourself to challenges in every case where parties who want to cash in on a will (or deed or contract) will muck up the judicial machinery by trying to make their case. Better just to exclude the evidence or testimony (or pleading, in this case) and make a decision on what is meant by the bolded phrase.
Lord Cheyney's Case
The difference between Bacon's patent and latent ambiguity can be illustrated by Coke's words describing the Lord Cheyney's Case (1591).
"[a] devise to his son H. and the heirs of his body, and then to T.C. and the heirs male of his body, on condition 'that he or they or any of them' shall not alienate; proof by witnesses that it was 'the intent and menaing of the testator' to include under 'he or they' his son H., as well as T.C., was excluded."
This would be consistent with Bacon's words above that such an "ambiguity" is not "holpen" by "averment" (extrinsic evidence). Thus we can see that Bacon's maxim is probably derived from this famous case just a few years before he articulated it. But what of "latent ambiguity?" Coke's report of the Cheney case also gives an example of that:
"but if a man has two sons, both baptized by the name of John, and conceiving that the elder, who had been long absent, is dead, devises his land by his will in writing to his son John generally, and in truth the elder is living,---in this case the younger son may in pleading or in evidence allege the devise to him, and if it be denied, he may produce witnesses to prove his father's intent..." (5 Co. Rep 68a, 68b).
Back to Bacon
Bacon then concludes his maxim by giving two of his own examples of 'ambiguitas latens.' First, if a person was to grant his manor of "S" to "I.F. and his heirs," and if the person has manors of both South S and North S but that this isn't evident in the grant, "therefore it shall be holpen by averment, whether of them it was that the parties intended should pass." Another sort of 'ambiguitas latens' is correlative of this. Suppose a person gives lands to "Christ Church in Oxford," even though the official name of the corporation is "Ecclesia Christi in Universitate Oxford," this shall be "holpen by averment, because there appers no ambiguity in the words: for the vaiance is matter in fact."
But what about mistakes in a grant or misidentifying people? Are these also "holpen by averment?" The next essay shows how this doctrine developed and became so confusing that by the end of the 19th century the great legal historian, James Bradley Thayer, could call the distinction "unprofitable subtlety."
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