A Commentarie upon Littleton

Sir Edward Coke

Part 1

Chapter 1

Section 3

Of Fee Simple

Littleton (law French): Mes si soit pier & fits, & le pier ad un frere que est uncle a le fits, & le fits purchase terre en fee simpl & mort sans issue divant son pier, l'uncle auera la terre come heire al fits & nemy le pier, uncore le pier est pluis prochein de sank; pur ceo que est un maxime en le ley, que enheritance poet linealment discender mes nemy ascender. Uncore si le fits en tiel case mort sans issue, & son uncle entra en la terre come heire a le fits (si come il devoit per la ley), & apres l'uncle deuia sans issue sans issue, divant le pier, donqes le pier auera la terre come heire al uncle, & nemy come heire a son fits, pur ceo que il veigne al terre per collaterall descent & nemy per lineall ascention.

Littleton: But if there bee father & son, & the father hath a brother that is uncle to the son, & the son purchase land in fee simple, and die without issue, living his father, the uncle shal have the land as heire to the son, & not the father, yet the father is neerer of blood; because it is a maxime in law, that inheritance may lineally discend, but not ascend. Yet if the son in this case die without issue, and his uncle enter into the land as heire to the sonne (as by law hee ought) and after the uncle dieth without issue, living the father, the father shall have the land as heire to the uncle, & not as heire to his son, for that hee commeth to the land by collateral discent & not by lineall ascent.

Coke: ¶Uncore le pier est pluis prochein de sanke. And therefore some doe hold upon these words of Littleton that if a lease for life were made to the sonne the remainder to his next of blood that the father would take the remainder by purchase, and not the uncle, for that Littleton saith the father is next of blood, and yet the uncle is heire. As if a man hath issue two sonnes, and the eldest sonne hath issue a sonne and die, a remainder is limited to the next of his blood, the younger sonne shall take it, yet the other is his heire. ¶(p) Est un Maxime en le Ley que enheritance poet linealment discender mes nemy ascender.

Maxime.i. A sure foundation or ground of art and a conclusion of reason so called (q) quia maxima est eius dignitas & certissima authoritas, atque quod maximè omnibus probetur, so sure and uncontrolable as that they ought not to be questioned. (r) And that which our Author here and in other places calleth a Maxime, hereafter he calleth a principle, and it is all one with a Rule, a common ground, Postulatum or an Axiome, and it were too much curiositie to make nice distinctions between them. And it is well said in our bookes, (s) nest my a disputer l'ancient principles del ley. I never read any opinion in any booke old or new against this Maxime but only in lib. rub. where it is said, (t) `si quis sine liberis discesserit pater aut mater eius in hæreditatum suceedat, vel frater & soror si pater and mater desint, si nec hos habeat, soror patris vel matris & deiceps qui propinuirores in parentela suerint hæreditario succedant, & dum virilis sexus extiterit, & hæreditas abinde sit, fæmina non hæreditat'. But all our ancient Authors and the constant opinion ever since doe affirm the maxime.

By this maxime and the conclusion of his case, only lineall ascention in the right line is prohibited, and not in the collaterall, (u) Quælibet, hæreditas naturaliter quidem ad hæredes hæreditati iter discendit, nunquam quidem naturaliter ascendit, discendit itaque jus quasi ponderosum quod cadens deorsum recta linea vel transversali, & nunquam reascendit ea via qua discendit post mortem antecessorum, à latere tamen ascendit alicui propter defectum hæredum inferius provenientium; so as the lineall ascent is prohibited by law, and not the collaterall. And in prohibiting the lineall ascent, the Common Law is assisted with the law of the 12 tables.

And our Author for the confirmation of his opinion draweth a reason and a proofe (as you have perceived) from one of the maximes of the Common law: now that I may here observe it once for all, his proofes and arguments, in these his three bookes, may be generally divided into two parts, viz, from the Common law and from Statutes., of both which, and their several branches, I shall give the studious reader some few examples and leave the rest to his diligent observation.

From the Common Law his proofes and arguments are drawne from 20 severall fountaines or places.

• (a) first from the Maximes, Principles, Rules, Intendment, and Reason of the Common Law, which indeede is the Rule of the Law as here, and in other places our Author doth use.
• (b) Secondly, from the bookes, records, and other authorities of Law cited by him, Ab authoritatet, & pronunciatis.
• (c) Thirdly, from original writs in the Register, à rescriptis valet argumentum
• (d) Fourthly, from the forms of good pleading
• (e) Fifthly, from the right entry of judgements.
• (f) Sixtly, àpræcedentibus approbatis & usu, from approved precedents and use
• (g) Seventhly, a non usu, from not use
• (h) Eigthly, ab artificialibus argumentis, consequetibus & conclusionibus, artificial arguments and conclusions
• (i) Ninethly, a communi opinione jurisprudentum, from the common opinion of the sages of the Law.
• (k) Tenthly, ad inconvenienti, from that which is inconvenient.
• (l) Eleventhly, a divisione from a division vel ad enumeratione partium, from the enumeration of the parts.
• (m) Twelfthly, a maiore ad minus, from the greater to the lesser, or (n) from the lesser to the greater, (o) a simili, (p) a pari.
• 13. (p) ab impossibili, from that which is impossible.
• 14. (q) a fine, from the end.
• 15. (*) Ab utili vel inutili, from that which is profitable or unprofitable
• 16. (r) Ex absurdo, for that thereupon should follow an absurdity, quasi â surde prolatum, because it is repugnant to understanding and reason
• 17. (s) A natura et ordine naturæ, from nature or the course of nature.
• 18. (t) Ab ordine religionis, from the order of Religion.
• 19. (u) A communi præsumptione, from a common presumption.
• 20. (w) A lectionibus jurisprudentium, from the readings of learned men of Law.
• from Statutes his arguments and proofes are drawne;
• 1. (x) from the rehearsall or preamble of the Statute.
• 2. By the body of the Law diversly interpreted.
• Sometime by other parts of the same Statute, which is benedicta expositio, & ex visceribus causæ
• (y) Sometime by the reason of the Common Law, But ever the generall words are to be intended of a lawfull Act, (z) and such interpretation must ever by made of all Statutes, that the innocent or he in whom there is no default may not be damnified.

En la Ley. There be divers Lawes within the Realme of England. As First, (a) Lex Coronæ;, the Law of the Crowne.

2. (b) Lex & consuetudo parliamenti. Ista lex est ab omnibus qu&aerenda, à multis ignorata, à paucis cognita
3. (c) Lex naturæ, the Law of nature
4. (d) Communis lex Angliæ;, the Common Law of England sometime called Lex terræ, intended by our Author in this and like places.
5. (e) Statute Law, Lawes established by authoritie of Parliament.
6. (f) Consuetudines, Customes reasonable
7. (g) Jus belli, The Law of Armes, Warre, and Chivalrie, in republica maximè conseruanda sunt jura belli.
8. (h) Ecclesiasticall or Canon Law in Courts in certaine Cases.
9. (i) Civill Law in centaine cases not only in Courts Ecclesiasticall, but in the Courts of the Constable and Marshall, and of the Admiraltie, in which Court of the Admiralitie is observed the ley Olyron, anno 5. of Richard the first, so called, because it was published in the Isle of Olyron.
10. (k) Lex forestæ, forest Law.
11. (l) The law of Marque, or reprisall.
12. (m) Lex mercatoria, Merchant, &c.
13. (n) The Lawes and Customes of the Isles of Jersey, Gernesey, and Man
14. (o) The Law and priviledge of the Stanneries.
15. (p) The Lawes of the East, West, and middle Marches which are now abrogated

But here of this little taste for our Studient, that he may bee capable of that which hee shall reade concerning these and others in Records, and in our Books, and orderly observe them, shall suffice

¶ Et son uncle enter en la terre. For if the uncle in this case doth not enter into the land, then cannot the father inherite the land, for there is another maxime in law herein implyed. (q) That a man that claymeth as heire in fee simple to any man by discent, must make himselfe heire to him that was last seised of the actuall freehold and inheritance. And if the Uncle is this case doth not enter, then had he but a freehold in Law, and no actual freehold, but the last that was seised of the actuall freehold was the sonne to whom the father cannot make himself heire, And therefore Littleton saith, Et son uncle enter en la terre (sicome devoit per la ley) to make the father to inherit, as heire to the uncle. (r) Note that true it is that the uncle in this case is heire, but not absolutetely heire, for if after the discent to him the father hath issue a sonne or daughter, that issue shal enter upon the uncle. (s) And so it is if a man hath issue a sonne and a haughter, the soone purchasethLand in fee and dieth without issue, the daughter shall inherit the land, but if the father hath afterward issue a sonne, this soone shall enter into the land as heire to his brother, and if he hath issue a daughter and no sonne, she shalbe coperconer with her sister.

Sicome il devoit per la ley. These words as a key doe open the secrets of the Law, for hereupon it is concluded, that where the uncle cannot get an actuall possesion by entrie or otherwise, there the father in this case cannot inherit. And therefore if an Advowson be granted to the sonne and his heires, and the sonne die, and this discend to the uncle, and he die before he doth or can present to the Church, the father shall not inherit, because he should make himself heire to the sonne which he cannot doe. And so of a Rent and the like. But if the uncle had presented to the Church, or had seisin of the rent, there the father should have inherited, for Littleton putteth his case of an entrie into Land but for an example, If the sone make a lease for life, and die without issue, and the reversion discend to the uncle, and he die, the reversion shall not discend to the father, because in that case he must make himselfe heire to the sonne. A. infeoffe the sonne with warrantie to him and his heires, the sonne dies, the uncle enters into the Land and dies, the father if he bee impleaded shall not take advantage of this warrantie, for then he must touch A. as heire to his sonne, which hee cannot doe, for albeit the warrantie discended to the uncle, yet the uncle leaveth it, as hee found it, and then the father by Littletons (devoit) cannot take advantage of it. For Littleton Sectione 602 saith that warranties, shall discend to him that is heire by the Common Law, and Sect. 718 he saith that every warrantie which discends, doth discend to him that is heire to which made the warrantie by the Common Law, which proveth that the father shall not be bound by the warrantie made by the sonne, for that the father cannot bee heire to the sonne, that made the warrantie. And a warrantie shall not goe with tenements, whereunto it is annexed to any speciall heire, but always to the heire at the Common Law. And therefore if the uncle be seised of certaine lands, and is disseised, the sonne release to the disseirsor with warrantie, and die without issue, this shall bind the uncle, but if the uncle die without issue, the father may enter, for the warrantie cannot discend upon him. So if the sonne concludeth himselfe by pleading concerning the tenure and services of certaine lands, this shall bind the uncle, but if the uncle die without issue, this shall not bind the father, because he cannot be heire to the sonne, and consequently not to the estoppell in that case; but if it be such an estoppell as runneth with the land, then it is otherwise.

• Coke upon Littleton, Intro and TOC