The Parol Evidence Rule, Early History I
Prof. Bill Long 12/21/05
The Countess of Rutland's Case (1604)
For what it's worth, 2004 marked the 400-year anniversary of the first case articulating the celebrated, and much maligned, parol evidence rule ("PER"). This and the next three essays will take you on a historical journey to understand aspects of that case, a case involving intrigue, revolt, some of the leading lawyers in English history and finally a rule which placed the written word on a much higher pedestal than spoken testimony. Let's enter into that world through the actual words of the case, reported by none other than Sir Edward Coke, whose multi-volume Reports provided the basis for his multi-volume exposition of the common law. Coke's reports were the fullest to the time, and a comparison between his 2 1/2 page report (77 Eng. Rep. 89) and George Croke's eight lines summarizing the case (79 Eng. Rep. 23) shows the superiority of the former as a reporter.*
[*Coke's report of the case has been subjected to a thorough review in a recent law review article (Hila Keren, "The Parol Evidence Rule with Gender in Mind," 13 AmUnivJofGenderSocPol&L 251 (2005)). Though she provides a thoroughly delightful and informative "thick description" of the participants in the case, Professor Keren often tries to read between the lines of the report before reading the actual lines. Hence, her article, though strikingly informative, does not establish the proper foundations for me to view sympathetically her conclusions regarding the anti-feminine basis of the PER. Consult her article, however, for the family story behind the case]
I will follow closely Coke's description of the case not because it is a complete description of things, but because he introduces the issue clearly in terms that are daunting to the law student and which need to be read carefully. In his summary, he gives us enough information to understand the origin of the PER. Isabel, the Countess of Rutland and wife of the late Third Earl of Rutland, Edward Manners, brought an action for trespass against Roger, Edward's nephew, who was Fifth Earl of Rutland. Edward was an illustrious lawyer in Elizabethan England, having been appointed to be the Queen's Lord Chancellor at age 38 in 1587. Unfortunately (or was it planned?), he died shortly after attaining that position. As the oldest son of the Second Earl of Rutland, Edward controlled a huge array of land, including the manor of Eykering (County of Nottingham), where his widow, Isabel, lived. Edward's nephew, Roger, was the son of Edward's brother John, and had lived as a wastrel for years, spending whatever fortune he had on lavish living in Paris and elsewhere. Probably because he was running out of money, Roger decided to "break the house and close" of Isabel, i.e., in some manner trespass upon the claim that Isabel had to the manor of Eykerking and allied lands. Now we pick up from there.
"Isabel Countess of Rutland brought an action of trespass against Roger Earl of Rutland for breaking her house and close, called Eykering House, and Lady Park, at Eykering in the county of Nottingham: the defendant pleaded not guilty; and now this term on evidence to a substantial jury at the King's Bench Bar, the case on evidence was such...."
Coke's clipped style forces us to read every word carefully. It is interesting that in 1604 one pleads "not guilty" to a trespass. Was it a crime to which he was pleading? A tort? When did the difference between language of guilt and liability enter into the common law? Keren gives two interesting diagrams of Eykering House and Lady Park in her article (pp. 278-279) and speculates that the "Lady Park" in the text may have been a morning gift (maritagium--a gift by the husband to the wife the morning after the wedding as a sort of "exchange" for her loss of virginity the night before) to an earlier woman in the Manners family. In any case, complexities will arise because, as we see, we have two separate documents and oral testimony regarding the grant of the land.
Edward was "seised in fee" of the manor of Eykering (we would say he owned it in fee simple absolute), and on "10 Martii 21 Eliz" he executed an
"indenture..for the augmentation of the jointure of the said countess...covenanted with Sir Gilbert Gerrard, Knt. and Thomas Holcroft, Esq. his brother, that he before the end of Trinity term then next following, would assure by fine, or other conveyance the said manor to the said Sir Gilbert and Thomas in fee, which fine or other conveyance of the said manor of Eykering should be to the use of the said earl and the said Isabel his wife (for their lives) and the heirs of the said earl..." [they had one daughter only at the time]
Let's walk through the language. Edward, born in 1549, owned Eykering and lots of other land, but on March 10 of 1580 (21st year of Elizabeth's reign), he decided to draw up an indenture, in this case a trust, by which he would dispose of the property. This indenture would increase the "jointure" or the "allowance" of his wife, Isabel. So he set up the indenture with two distinguished men as trustees. But the trust by itself didn't convey property into the trust. Coke goes on to say that "before the end of Trinity term* the next following (i.e, early summer 1581),
[*English school terms are still called "Michaelmas" (late August through December), "Hilary," (January through early April) and "Trinity" (April through early August).]
Edward would "assure" either by "fine or other conveyance" the manor to the trustees. The common fine was a legal fiction whereby the trustees "sued" the owner in fee simple for the land, but before suit was heard, the owner executed the "fine," thus giving legal ownership over the property to the trustees. This was only one form of conveying property, which explains why Coke's could say that Edward would assure "by fine, or other conveyance the said manor."
On March 28, Edward "acknowledged" this indenture before a "Master of the Chancery." I would suppose that was the late 16th century equivalent of recording the existence of the trust. But he still had to put the property in the trust in order for the indenture to be effective.
So far, so good. Let's see how it becomes so far so bad, in the next essay.
Copyright © 2004-2007 William R. Long