Duke of Norfolk Journal

The Duke of Norfolk's Case
Author(s): Herbert Barry

Source: Virginia Law Review , Mar., 1937, Vol. 23, No. 5 (Mar., 1937), pp. 538-568
Published by: Virginia Law Review
Stable URL: https://www.jstor.org/stable/1067819
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538 VIRGINIA LAW REVIEW
THE DUKE OF NORPOLK'S CASE
Norn ON THI PUBIUSHZD RPPORTS.
The chancery reports in the time of Lord Finch (later created Earl of Not-
tingham) are for the most part little more than brief summaries. The Duke
of Norfolk's Case was the outstanding exception, and although the Lord Chan-
cellor mentions that "What hath been said here at the Bench on both sides has
been taken in shorthand and made public," even here the reporting is lacking
in clearness.
A folio pamphlet printed in London in 1685 (a copy of which is in the li-
brary of the Law School of Harvard University) designates the case by nam-
ing the parties, and presents the two opinions of Lord Nottingham "wherein
the several Wayes and Methods of Limiting the Trust of a Term of Years
are fully debated." This pamphlet appears to be the earliest printed publica-
tion of any report of the case.
Three years later, in 1688, another folio publication appeared; and here the
cause is designated on the title page:
"The Duke of Norfolk's Case, or the Doctrine of

Perpetuities Fully set forth and explain'd * *
The cause here received the title and description by which it has since been
known. In this pamphlet are presented a preliminary statement, the argu-
ments of counsel, the opinions of the judges, and the opinions of the Lord
Chancellor, and some interlocutory matter, also the decretal order of the House
of Lords. The two opinions of the Lord Chancellor follow verbatim those
published in the earlier pamphlet of 1685, and it is suggestive that the matter
preceding these two opinions is numbered consecutively pages 1 to 31, while
the two opinions of the Chancellor, together with certain interlocutory pro-
ceedings, have new paging numbered 1 to 32. The decretal order of the House
of Lords was, apparently, separately printed, and in it the paging of what pre-
cedes is not continued. This early report of the case has a quaintly expressed
preface, of which the beginning and conclusion read as follows:
"To the Reader

Courteous Reader
This Case in all its parts hath been Collected with all the Care imagina-
ble, by several good Hands; and what grand agitation it received, is not
unknown to any that know Westminster Hall.
* * * *
Reader, it will be wholly impertinent to hold thee here; and I should

run, myself upon an absolute necessity (if I should detain thee longer from
the fruition of those delicacies I present thee) of troubling thee with my
impertinent Complements, for presenting thee with a needless and imper-
tinent Epistle; wherefore, enter in, see it thyself, and peruse it for thy
profit and satisfaction.
Farewell."

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THE DUKE OF NORFOLK'S CASE 539
In 1702 this pamphlet of 1688 was republished, but wit

of a larger pamphlet including two other cases and entitled "Select Cases in
the High Court of Chancery," which had favorable mention by Chancellor
Kent. This publication was later embodied with other publications designated
"Cases argued and adjudged in the High Court of Chancery," the volume so
published being commonly labelled "Cases in Chancery." In the English re-
ports Reprint it is found in Vol. 22 at pp. 931-963.
In 2 Reports in Chancery, 119, 121, published in 1736, a brief outline report
of this case is found, but not comparable to that above mentioned (1 Kent
Coom. 492).
In 2 Swanstcn reports, published in 1818, there appears at p. 45 what pur-
ports to be a revision of the first opinion of the Chancellor, preceded by a note
reading as follows: "The following authentic note of Lord Chancellor Not-
tingham's judgment * * * is extracted from his Lordship's Mss." It
does not appear, however, to have been formulated by Nottingham, and may
be the work of some compiler of later date.
Freeman's Reports, 2nd ed., published in 1823, pp. 72-78, 80-82, contain a
brief outline of the facts and of the arguments of counsel, also a summary
of the first opinion of the Chancellor.
In preparing this present paper, the text taken over from the pamphlets of
1685 and 1688 has been accepted and quoted in all instances where not other-
wise stated.
THE DUKE OF NORFOLK'S CASE
T HIS celebrated case is regarded as establishing the basis on

which was founded the "Rule against Perpetuities". The
case was decided by Lord Chancellor Nottingham in the last year
of his life, when his physical health was failing, but his interest
and mental vigor were unimpaired.
HISTORICAL ANTEC]?DENTS
Perpetuities. as they came to be called, originated in an Act
of Parliament, the statute De Donis Conditionalibus, passed in
the 13th year of Edward I, A. D. 1285. This provided in ef-
fect that estates tail might be created in such form that the en-
tail could not be broken or the rights of the successive owners
impaired; it was highly favored by those of the peerage who had
large estates and wished to preserve them indefinitely in the
family secure from forfeiture for treason or felony, also from
creditors or improvident disposition. In other circles "per-
petuities" were the subject of much criticism." Repeated efforts
' Illustrations are: Corbet's Case, 1 Co. Rep. 83b; Chudleigh's Case, 3-4
Phil. & May; 1 Co. Rep. 120a; Mildmay's Case, 6 Co. Rep. 40a.

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540 VIRGINIA LAW REiVIEiW
to secure a repealing statute were unsuccessful, and the system

flourished for nearly 200 years, until Edward IV became irked
by the restriction on royal privilege, and thereupon the judges
in Taltarum's case 2 ended it by judicial legislation. This took
the form of a decision that by a "common recovery" the estate
tail might be barred; and during the reigns of Henry VII and
Henry VIII statutes were enacted, still further uprooting this
2 The report of this case is found in the Year Book, 12 Edw. IV, M
mas Term, No. 25. The text of the decision is not easy for the average mod-
ern practitioner to translate, and it seems to lack something in clarity even
to such a scholar as Professor Maitland. In 9 L. Q. Rev. 1, Professor Mait-
land also criticizes the spelling of the name. He evidently made an examina-
tion of other papers, for he writes: "I have lately seen the record of that
case. It stands on the De Banco Rolls for Mich. 12 Edw. IV M. 631 ;"
and he says: "The demandant was Thomas Talkarum or Talcarum. His
name is written many times, now with a k, now with a c, never with a t."
A further criticism of the spelling is found in a note by Mr. G. J. Turner,
M.A., published in 12 L. Q. Rtv., at 301. Mr. Turner edited for the Selden
Society, Volumes VI and IX of the Year Book series, with elaborate intro-
ductions, the first of which contained a treatise on the origin, of the Year
Books. He also examined the Rolls, and, speaking of the so-called Taltarum
Case, he says in part: "The true name of this case is 'Talcarne's' or 'Tal-
carn's.' Professor Maitland has already noticed (L. Q. R. 9; 1) that the
fourth letter of the name is a c not a t; so only the seventh and eighth need
comnment. The seventh will read either as an u or as an n; if it be an u, the
horizontal line drawn above it in the Roll will undoubtedly represent an n;
but if it be an n, the horizontal line will either be a flourish or it will repre-
sent a final e."
This is cited by Sir Frederick Pollock in his capacity as editor, attaching
a footnote to the report of Bolton's Estate, L. R. 1903, 2 Ch. D. 103, as fol-
lows: "It seems that the name corrupted in, the printed Year Book was really
Talcarn; L. Q. R. XII 301."
The case, however, is habitually cited under the name Taltarum; and for
the historical facts and for its effect upon the law, the comments in later
decisions and by writers of a later day may reasonably be assumed correct
and are more clear than the language of the report.
Blackstone, referring to the disadvantage to the Crown as a result of the
protection from attainder afforded property entailed, said that Edward IV
"suffered Taltarum's Case to be brought before the court, wherein in conse-
quence of the principles then laid down it was in effect determined that a
common recovery suffered by tenant in tail should be an effectual destruc-
tion thereof." (2 BL. COMM. *117.) Similar comments as to the effect of
the case are found in 4 KENT COMM. 2nd Ed. 13, and other standard works,
as well as in Chudleigh's Case, 1 Co. Rep. 120a, at 131b; Mildmay's Case,
6 Co. Rep. 40a; Mary Portington's Case. 10 Co. Rep. 33b, at 37a; and
other printed decisions.

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doctrine of immutable title. Thus died the original "Per-

petuities."
Nevertheless the land owners in general, and titled families
particularly, still desired to subject titles to complicated con-
ditions and alternatives that would persist through future
generations; and meanwhile defer the vesting and restrict the
power of alienation.
With the introduction of trusts, of springing uses and shif-
ting uses and executory devises, the ingenuity of conveyancers
developed new forms for tying up property. They also de-
veloped the device of creating a long terms of years, in this case
200 years-which was a chattel real and not a freehold-as the
subject matter of the gift in tail with contingent remainders.
The courts had many intricate and puzzling situations to deal
with, and some in which the title was rendered inalienable or the
vesting was deferred beyond a period that the court thought
wholesome and proper. These they sometimes referred to as
tending to a perpetuity and held them invalid. Ultimately the
term "perpetuity," which was originally applied to estates tail
at common law, became chiefly used in connection with spring-
ing uses, shifting uses and executory devises, all of which were
within the cognizance of the Courts of Chancery.
At the time that Lord Nottingham was Chancellor the com-
plexities of real estate conveyancing had risen to flood tide. At
this stage there was no defined rule in equity as to where a sus-
pension of alienation must cease or where vesting of title was
too remote, and the courts dealt with each case as it arose. Each
case might create a precedent, but each case did not establish a
rule. Each reported case might present new ingenious methods
of conveyancing, and the language of the rulings is sometimes
not easy for the present day reader to understand clearly.
In this situation it was only natural that there should be con-
fusion of precedents and dicta, particularly since the adminis-
tration of equity in the High Court of Chancery was for a long
period a matter of mere discretion on the part of the Chancellor
and before the time of Nottingham the principles had not been
32 BL. COMm. *118.

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assembled into any consistent system.4 The background and the

bearing of this case may be better appreciated if the personality
of the Chancellor and the parties to the suit be first briefly
touched on.
LORD NOTINGHAM
Heneage Finch, later Earl of Nottingham, was born in 1621.

He studied for the Bar and was admitted in 1645; on the res-
toration of Charles II he was made Solicitor General; and in
1670 Attorney General. In 1673 he became Lord Keeper of
the Great Seal, carrying with it the functions of Chancellor. In
1674 he was created Baron Finch of Daventry; and in 1675 he
was formally invested with the title or "stile" of Lord Chan-
cellor. On May 12, 1681, he became Earl of Nottingham, and
by this historic name he is generally known and referred to. He
died December 18, 1682.
He inherited considerable wealth and some of his entertain-
ing was on a grand scale. At the Bar he had a reputation for
eloquence and learning; in public office, as Solicitor General,
Attorney General and as Member of Parliament, he was ener-
getic and efficient; in private life he enjoyed "great connubial
happiness", and had fourteen children. It is as a jurist that he
made his fame. While active as a member of the Bar, he pur-
sued the practice of writing extensively on legal subjects, and
that of equity specially attracting his attention, he wrote a book
on this entitled "De Officio Cancelarii." After receiving the
Great Seal, he wrote "two new treatises-one on the practices,
and the other on the principles and doctrines of the Court."5
Story wrote: "he has been emphatically called the Father of
Equity"; 6 and Chancellor Kent commented that Nottingham
"raised the character of the court to high reputation, and estab-
lished both its jurisprudence and its jurisdiction upon wide and
rational foundations * * * "; also that from his time
"equity became a regular and cultivated science." 7
43 B. COMM. *53-55.
5 CAMPBILT, LIves OiP THP LORD CHANCZLLORS (Am. ed.), Vol. IV,
190-237.
6 1 STORY, EQUITY, 14th Ed. p. 56.
' 1 KXNT COM M. 493.

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In the case that we are considering the reported decision

clearly shows that the Lord Chancellor was primarily intent on
correctly deciding the case before him-that particular case-
and not on formulating a rule for the decision of other cases.
In expressing his views as to perpetuities he announced prin-
ciples that apparently he considered already established; and
certainly his decision was a definite and important step toward
embodying those principles in the orderly system of equity juris-
prudence which he was seeking to establish. Furthermore, it
seems clear that the Chancellor recognized the elements of hu-
man interest in the case, and even now these may add a quality of
vitality to its history.
THE PARTIES To THE LiTIGATION
The defendant was Henry Howard, Duke of Norfolk, Earl

Marshall of England, and Earl of Arundel and Surrey; the
plantiff was Charles Howard, a younger brother; the contro-
versy arose as to which of the two was entitled to certain estates
and lands under a trust created by their father. As Duke of
Norfolk, the defendant Henry was the premier peer of Eng-
land, and he succeeded to the title and estates because he was
next in age to an older brother, Thomas. of whom we know lit-
tle except that he was unmarried, non compos nentis, and at
parently destined for this cause never to marry.8
In earlier days the title was won and held by men of great
ability and achievement.9 It was in abeyance at the time that
Charles II was restored, and "by special grace and favor" of
8 In this matter Henry, the brother, seems to have acted as the agent of
destiny; apparently he escorted Thomas to Padua shortly after the death of
the father (title to the Earldom thereby devolving on Thomas) and left him
there under restraint, described in 1656 by his uncle Lord Stafford as "kept
in cruel slavery in Padua." (DICTIONARY oF NATIONAL BIOGRAPHY, Vol.
XXVIII, p. 81.) The death of Thomas occurred in Padua. (1 COLLINS,
PuERAG. oF ENGLAND, P. 134.)
In the revised form of the opinion reported in 2 Swans. at p. 469, Lord
Nottingham said: "It was nearly certain that whenever Thomas did die he
would die without issue; for it so much concerned the honour of the fam-
ily not to have it propogated by him that care was taken so to keep him that
he might never marry till he was recovered." See also note 17.
9 The biographical data as to the Howard Family are iiR the main drawn

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the light-hearted monarch, an Act of Parliament was secured

restoring the title and estates to the above mentioned Thomas
Howard; the fact that he happened to be mentally sub-normal
did not thwart this kindly effort. It was not by reason of any
achievement or effort of this Thomas Howard that he became
premier peer of England, taking precedence of all non-royal
nobles, save the Archbishop of Canterbury and the Lord High
Chancellor. The petition for this restoration bore the names of
seven members of the family, including Henry, and it also bore
the names of more than ninety other nobles.'0 The achieve-
ment is attributed to Henry;l it was obviously not engineered
by Thomas, whom Henry had apparently put in safe keeping in
from BURKE'S PJTAGE; COLLINS, PERAGE o0 ENG1,AND, and from various

historical works. In some instances specific references are noted.
The earlier history of the family is vivid and picturesque; in importance
and distinction antedating the Norman Conquest; but the first of this fam-
ily to bear the title of Duke of Norfolk received this honor, together with
the title Earl Marshall of England, from Richard III itl 1483, and contem-
poraneously the eldest son was created Earl of Surrey. The Duke died with
his monarch at the battle of Bosworth, two years later, and shortly there-
after both he and his son, were attainted and the titles forfeited. After a
brief period, however, the son was restored to favor by the victorious Henry
VII; and for his victory at Flodden Field in 1514 the title of Earl Marshall
and Duke of Norfolk were restored to him by Henry VIII. Ten years later,
on his death his sonA succeeded to the titles as third Duke of Norfolk, and for
more than twenty years served that monarch with great distinction. During
this time his half brother was attainted and died in the Tower for seeking in
marriage a niece of the King; and his niece Catherine became the fourth bride
of King Henry, anrd followed a predecessor, Anne Boleyn-also a member
of the Howard family-to the block. His eldest son, the poet Earl of Sur-
rey, fell under royal displeasure and was executed in 1547; he was a man of
great attainments, and history registers this execution as one of the dark
stains upon the record of Henry VIII. The Duke himself was at the same
time attainted and sentenced to death; but the death of the monarch on the
following day caused the suspension of his sentence; and in 1553 Queen Mary
reinstated him in the title. On his death in 1554 his son Thomas became the
fourth Duke of Norfolk, and his disastrous matrimonial effort is rioted in the
text of this paper.
10 1 COLLINS, Supra, 133-4.
The project of restoration, although successful, was not received with
unqualified enthusiasm. In Evelyn's Diary, under date of December 7, 1662,
we find stated: "I dined at Arundel House the day when the great contest
in Parliament was concerning the restoring the Duke of Norfolk; however,
it was carried for him."

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Padua. It was thus, however, that Thomas became, in name at

least, the fifth Duke of Norfolk.'2
This title so revived had not been borne by any of the family
for a number of generations. The last one to hold it was the
fourth Duke, who succeeded to the title in 1554. After three
brief marriages, he sought a royal bride,-Mary, Queen of
Scots,-and his intrigue to attain this objective resulted in his
being attainted and beheaded in 1572; to Elizabeth such intrigue
was a capital crime.'s Following this attainder the title lapsed
for nearly eighty years. The eldest son of the fourth Duke was
also attainted in 1590, and died in the Tower five years later.
Thomas, grandson of the fourth Duke, was a man of great
ability and distinction 14 and rose to high honors, but was never
Duke of Norfolk. He was restored as Earl of Arundel in 1633
and created Earl of Norfolk in 1644; this later honor being
granted when the royal government of Charles I in its last and
rather shadowy form was carried on at Oxford. Nor was the
' It would seem, however, that Henry assumed full control of the prop
erties accompanying the title. It was he who was the host at Arundel House,
and in 1667, at the instance of Evelyn, he invited the Royal Society to hold
its sessions in Arundel House; and, also at Evelyn's instance, he "bestowed
on the Society that noble library which his grandfather especially, and his an-
cestors, had collected. This gentleman had so little inclination to books, that
it was the preservation of them from embezzlement." (Evelyn's Diary, Jan.
9, 1667.) Henry's lack of interest in, books was equalled by his indifference
to art. The famous collection of marbles gathered by his grandfather was
uncared for and deteriorating on the grounds of Arundel House, when Evelyn
induced him to give the collection to the University of Oxford. (Diary, su-
pra, Sept. 19, 1667.) In the following month Evelyn, records official visits
and documents expressing the appreciation of the University, also an intro-
duction by himself of visiting officials to the donor, "Mr. Howard at Arun-
del House."
Pepys described Henry as "being a very proud man, and one that values
himself upon his family, writes his name, as he do every where, Henry How-
ard of Norfolke." (Diary, Nov. 28, 1666.) In D. B. N., supra, Henry is
further described: "Though good-natured, he was a man of small capacity
and rough manners."
1 COLLINS, supra, p. 105.
14 He served in a number of public capacities, and at one period, 1621, was
one of the three Commissioners vested with the custody of the Great Seal.
He was also a patron of literature and of the arts; his collection of classic
sculptures, known as the Arundel Marbles, were later donated to Oxford
University, as above recited, and his library to the Royal Society.

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ducal title conferred on Lord Henry Frederick Howard, the son

and successor of this distinguished Earl of Arundel. This son
and successor upon his father's death in 1646 found himself in
straitened circumstances due to Parliament having taken posses-
sion of his estates, but he effected a composition not long after-
ward. Meanwhile, in 1647, with faith in the future, and far-
sighted wisdom, he made provisions for those of his younger
children who would not later come into the enjoyment of the es-
tates accompanying the title. It was this trust which was the
basis of this famous litigation.
THE CREATION Or THE, TRUSTS

The complicated instruments were drawn up by Orlando
Bridgman, an outstanding member of the bar, who during the
Commonwealth regime did not wish to appear before its courts,
but practised as a conveyancer and chambers counsel.15 Upon
the Restoration he was appointed first as Chief Baron of the
Court of Exchequer; then Chief Justice of the Court of Com-
mon Pleas, and later, Lord Keeper of the Great Seal, thereby
vested with the function of Chancellor.
Two properties, the Grostock barony and the barony of
Burgh, were involved, but the decision dealt with the former.
Without attempting technical accuracy,16 it may be said that
the substance and effect of the transactions, expressed in mod-
"These indentures are both sealed and delivered in the presence of Sir
Orlando Bridgman, Mr. Edward Alehorn and Mr. John Alehorn, both of them
my Lord Keeper Bridgman's clerks; I knew them to be so.
"This attestation of these deeds is a demonstration to me they were drawn
by Sir Orlando Bridgman."
(From Opinion of Lord Chancellor Nottingham, 3 Cas. in Ch. 27.) CAMP-
Be, supra, p. 89.
1 In this paper some of the complexities are passed over, even though they
received considerable attention from the court; thus as matter of fact there
was a bargain and sale of a term of ten morgths and a grant of the reversion
upon uses for the Earl of Arundel and his wife successively, with remainder
to the trustees for 200 years upon certain trusts, and with other remainders
following; also the deed declaring the trust of the term for 200 years recited
that it was intended that the term should attend the inheritance. There was
considerable analysis by counsel and court of the effect of the term attending
the inheritance. This is an illustration, but for the purposes of this paper the
liberty is taken of greatly abbreviating the outline of the issues before the
court.

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ern terms, were as follows: The property was to be held for

the use of the Earl during his own lifetime, and then for his
widow. Then during the life of the eldest son, Thomas How-
ard, later Duke of Norfolk, and of his issue male, if any ;17 it
was to be in trust for the benefit of the second son, Henry How-
ard, and the heirs male of his body; but with the provision-and
this was the essential feature involved-that in case the eldest
son, Thomas, should die without issue during the life of Henry
and thereby the Earldom with the estates accompanying it should
descend to Henry, then the trust as to this Grostock barony was
to be for the benefit of the brother Charles and the heirs male of
his body 18
The Earl of Arundel, who created these trusts, died in 1652,
and his widow in 1673. The mentally defective son, Thomas,
succeeded his father in 1652 and lived until the year 1677; on
his death the second son, Henry, succeeded to the titles and es-
tates as sixth Duke of Norfolk, and a question then arose as to
whether the barony of Grostock passed under the trust to the
younger brother, Charles Howard, or vested in this older brother
Henry.
Two years earlier, in 1675, by an ingenious device that re-
flected little credit on the participants from an ethical standpoint,
and in which Henry as well as the surviving trustee participated,
the legal title had been ostensibly transferred to Henry. The
procedure was an assignment by the surviving trustee to one
Marriot, and an assignment by Marriot to Henry; also a bar-
gain and sale, followed by what was termed a common recovery.
Through this device Henry, later his Grace the Duke of Nor-
' (See note 8, supra.)

The Lord Chancellor said, "which was consequently only during his own
life, because he was never likely to marry." (3 Cas. Ch., p. 27.)
In Freeman's Reports, p. 82, the condition of Thomas is gently and euphe-
mistically noted as follows: "Note, that one thing that moved him to give this
opinion in this case was because at the time of the making of this settlement
the Lord Maltravers was a very weak man, and so it was no remote expec-
tation that he should die without issue."
18 There were successive contingent remainders to other younger brothers,
and their heirs male, but these were held invalid by the Lord Chancellor as
well as the judges. As to the barony of Burgh, there were provisions for
these younger brothers, but these provisions were not discussed in the re-
ported case.

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folk apparently succeeded in fortifying his claim of equitable

title under the trust by a legal title through this ancient and curi-
ous procedure.
THE TRIAL BEFORE THE LORD CHANCEJLLOR
In this situation the younger brother, Charles, brought his bill

in chancery, to have the trust executed in his favor. On Jan-
uary 24, 1681, the cause came on for decision before the Lord
Chancellor, assisted by three judges of great dignity, to wit,
Lord Chief Justice Pemberton, Lord Chief Justice North, and
Lord Chief Baron Montague. The opinions rendered by these
three judges are stated at length in the report, and they all agreed
that the decree should be in favor of the defendant, Henry, Duke
of Norfolk. The Lord Chancellor, however, reached an exactly
contrary conclusion, which was apparently delivered orally, but
reported in extenso. He concluded by saying :19
"I do suspend the inrolment of any decree in this case as yet,

but I will give myself some time to consider before I take
any final resolution, seeing lords the judges do differ from
me in their opinions."
On June 17, 1682, the Chancellor permitted reargument by

counsel, and a further opinion, also apparently oral, was deliv-
ered, in which he reaffirmed his conclusion, and directed a de-
cree in favor of the younger brother, Charles Howard.
The long period that elapsed between the rendering of the two
opinions by the Lord Chancellor may have been due to the in-
tensity of his preoccupation in other public affairs. Notting-
ham did not live in an atmosphere of judicial detachment; the
duties of his office were not solely judicial, and he necessarily
shared in the events of the political struggle that was raging at
this period.
This cause was heard and decided during one of the stormiest
periods of English history. In the year following Henry How-
ard's accession to the title, England was racked by passions
evoked through the pretended revelations by Titus Oates of a
"Popish Plot"; the strife based on questions of religion contin-
' 3 Cas. in Ch., p. 37.

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ued for years. Incident to this, by requiring of all Members of

Parliament a declaration against transubstantiation, the Roman
Catholic lords were excluded from their seats.20 William How-
ard, Viscount Stafford, an uncle of the Duke of Norfolk, was
imprisoned in the Tower on charges of high treason, and in De-
cember, 1680, after trial, with Lord Nottingham as Lord High
Steward presiding, Stafford was condemned and executed.2'
In the following month we find the Lord Chancellor and the
three associate judges rendering their opinions in the case which
we are here considering. Closely following the rendering of his
first decision came the assembling at Oxford of the Parliament
that was fated to be the last during the reign of Charles II; Not-
tingham as Lord Chancellor presiding in the House of Lords.
There was bitter feeling between the contending parties and each
was attended by armed forces. "The slightest provocation
might under such circumstances have produced a civil war; but
neither side dared to strike the first blow." 22
Up to this time Charles II had been desperately in need of
money and had tried to placate the Parliament in the effort to get
relief. Now, after long efforts, he had the definite assurance of
large sums from Louis XIV; and he felt free to act. He did not
now need the aid of Parliament; he resented its attitude; and he
had the power to end it.
The Commons again passed the Exclusion Act and confidently
believed it was destined to pass in the Lords and be signed by
the King. They were wholly wrong. The King proceeded un-
ostentatiously to the chamber where the Lords were sitting, and
having put on the royal robes and crown, seated himself on the
throne. The Commons were then summoned, and upon their
arrival the King spoke with brevity but finality. "My Lords and
Gentlemen: All the world may see we are not like to have a
20 1 Macaulay, HISTORY OF ENGLAND (Am. ed.), p. 219.

21 The Viscount Stafford was a brother of the Earl who created the trust,
being a son of Thomas, Earl of Arundel and Surrey. Four other Roman
Catholic peers were imprisoned in the Tower, one of them the Lord Arugdel
of Wardour, but Stafford was the only one brought to trial. In Evelyn's
Diary he describes the trial at some length, and comments: "All relations
of his name and family condemned him except his nephew, the Earl of Arun-
del, son of the Duke of Norfolk."
22 I MACAULAY, supra, p. 241.

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good end when the divisions at the beginning are such. There-
fore, my Lord Chancellor, do as I have commanded you."
The Lord Chancellor (Lord Nottingham) then, with like
brevity, said: "My Lords and Gentlemen: His Majesty has
commanded me to say that it is his royal will and pleasure that
this Parliament be dissolved; and this Parliament is accordingly
dissolved." 23
The Earl of Shaftesbury was the leader and front of the op-
position to the Crown, and the royal party, after his discomfi-
ture at Oxford, followed up with charges of high treason, on
which he was sent to the Tower early in July; the charges, how-
ever, were not presented to the Grand Jury until November 24,
1681, and that body then refused to indict. Shaftesbury's power
was broken, however, and he later fled the country. Contempo-
raneously with the proceedings against him, and also after they
failed, divers measures were undertaken to strengthen the power
of the King and his control of the government, although these
involved undermining constitutional safeguards.24 In these
Nottingham was a leading participant. His political activities
in these matters have been severely censured 25; but their only
relevancy to our subject is that they may well have caused the
delay in disposing of the Chancery case in which Charles How-
ard sought relief.
TH:E, OPINIONS AND DEciutE OF THE LORD CHANLIOR

In reading the two opinions of the Lord Chancellor, it is evi-
dent that he was very much alive to the equities involved; and
that where he deemed it appropriate, he criticized without hesi-
tation or reserve,- even the premier peer of England.
He swept aside the contention that the ingenious transactions
of 1675, by which the trustee Marriot assigned to Henry How-
ard, precluded the court from construing and giving effect to the
trust, saying in part :28
"* * * nothing in the world can excuse Marriot from

being guilty of a most wilful and palpable breach of trust,
Z3 4 CAMPBMW, supra, p. 172.

24 TRZVPLYAN, supra, p. 463.
25 4 CAMP S supra, pp. 222-3.
2 3 Cas. in Ch., p. 27.

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if Charles have any right to this term. * * * If the

estate be originally void, which is limited to Charles, there
is no harm done; but. if it only be avoided by the assignment
of Marriot,. with the concurrence of the Duke of Norfolk,
he having notice of the trusts, then, most certainly they
must make it good to Charles in equity, for a palpable
breach of trust, of which they had notice."
And in this feature of the case all the judges were in accord with
the view of the Lord Chancellor.
In considering the equities of the case the Lord Chancellor
said, in part :27
"Now, if Charles Howard's estate be good in law, it is ten

times better in equity. For it is worth the considering that
this limitation upon this contingency happening (as it hath,
God be thanked) was the considerate desire of the family,
the circumstances whereof required consideration, and this
settlement was the result of it, made with the best advice
they could procure, and is as prudent a provision as could
be made."
Elsewhere, in dealing with the same subject, the Chancellor

said :28
"It is a very hard thing for a son to tell his father that the
provision he has made for his younger brothers is void in
law, but it is much harder for him to tell him so in Chan-
cery. And if such a provision be void, it had need be void
with a vengeance; it had need be so clearly void that it
ought to be a prodigy if it be not submitted to."
Apart from touches of human interest, this noted case affords

a glimpse of the complicated system of conveyancing that had
developed; and the opinions contain discussions not easy to fol-
low as to abstruse features of real estate law, particularly of
what had come to be called perpetuities.
For many years prior to this case, the Bench and Bar had been
disturbed by the subject of Perpetuities. The judges were in
accord that a perpetuity was a baneful thing and that it should
be trampled down wherever it reared its ugly head.29 They were
27 Ibid., p. 51.
28 Ibid., pp. 36, 37.
29 The language of the Lord Keeper (1 Vern. 163) hereinbelow cited (note
44), illustrates the prevailing view.

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not, however, wholly in accord as to just what was a Perpetuity.

Consequently, no one, not even a judge, could always be sure
when he met something resembling the outlawed perpetuity
whether it was really such or merely a harmless arrangement for
transferring future interests. Recorded arguments of eminent
counsel in this case, and decisions antedating it, seem to justify
the comment.30 The fact is also emphasized in the conflict of
views between the advisory judges and the Lord Chancellor in
this particular case.
The documents in this case are complex, but the purpose of
the Earl of Arundel was simple and laudable. His eldest son,
Thomas, who as such would inherit the titles and the estates, was
mentally defective; he would inevitably inherit if he outlived his
father, but he would leave no descendants. The second son,
Henry. if he survived this older brother, would succeed to the
inheritance, but until that event he might be in straitened cir-
cumstances. The father desired to make a provision that cer-
tain property should be enjoyed by the second son, Henry, until
he succeeded to the inheritance, and then that it should pass to
the younger son, Charles. He employed as conveyancer an emi-
nent lawyer to prepare the appropriate documents, and obviously
this lawyer endeavored to so draft them that there would be no
legal flaw; he would seek to avoid the prohibited perpetuity, and
it was fair to assume that he considered the provisions he drafted
were free from criticism. This was not without effect on Not-
tingham.31
In Washborn v. Downes, 1 Cas. in Ch. 213, decided by Nottingham's

predecessor, the court says: "In the debate of this case it was said that a
perpetuity is, where if all that have interest join, and yet cannot bar or pass
the estate. But if by the concurrence of all having the estate tail may be
barred, it is no perpetuity."
Corbet's Case (1599), 1 Co. Rep. 83b, is referred to as the case of perpetui-
ties, but there is only scant reference to the views of the judges; see also
Chudleigh's Case, 1 Co. Rep. 120a; Mildmay's Case, 6 Co. Rep. 40a; Lam-
pet's Case (1612), 10 Co. Rep. 466; Child v. Baylie (1618-1623), Cro. Jac.
459, 461; Pells v. Brown (1620), Cro. Jac. 590, 593; Apprico v. Flower (1661),
1 Ch. Rep. 175; Pollexf. 27; Pearse v. Reeve (1661), Pollexf. 29; Goring v.
Bickerstaffe (1662), 1 Cas. in Ch. 4; Pollexf. 31; Snow v. Cutler (1664),
1 Lev. 185; 1 Keb. 752.
31 This is quite definitely expressed by Lord Nottingham, 3 Cas. in Chi 36,
and at pp. 35, 36, 51, he cites and relies upon the decision of Bridgman in

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The critical point of difference between Nottingham and his

advisory judges was whether in any situation a contingent fu-
ture estate in remainder such as this could be created to take ef-
fect after an entail. Lord North and the other judges said
"No". The Lord Chancellor said "Yes"-provided the con-
tingency will "wear out in a short time." How long a period
such a contingency may cover he refuses to decide; but he does
hold that it may be "a contingency to happen in a life."
The opinions of the advisory judges all reach the conclusion
that because the trust was for Henry "and the heirs male of his
body" so long as Thomas or any issue male of his body be li-v-
ing, therefore the springing trust for Charles was void. In their
view under no circumstances could such a remainder after an
entail be effective "because the limitation to one and the heirs
male of his body is a full disposition of the term. And if such
limitations over were permitted, it would create perpetuities
which the law doth abhor." 32 This abhorrence made the gift of
any such remainder anathema no matter how soon the remainder
must in fact become effective if at all. The law as so laid down
was inflexible, even if in application to specific facts it was il-
logical.
The Lord Chancellor discussed the position taken by the ad-
visory judges, and indicated the points in which he was in agree-
ment with them. For example, we find in his opinion the fol-
lowing: 8
"It is clear that the legal estate of a term for years, whether it
be a long or a short term, cannot be limited to any man in
tail, with the remainder over to another after his death
Wood v. Sanders, 1 Cas. in Ch. 131. A comparison of this decision with that
also rendered by Bridgman in Boucher v. Autram, 2 Ch. Rep. 65, seems to
bear out the impression that until the Duke of Norfolk's Case the proscribed
perpetuity perhaps eluded uniform definition.
32 3 Cas. in Ch. 17; see also pp. 21, 26.
33 3 Cas. in Ch. 28. In consonance with this he agreed with the judges that
certain contingent remainders to the brothers younger than Charles were void
in that these tended to create perpetuities:
"for they are limitations of remainders of a term in gross after an estate
tail in that term which commenceth to be a term in gross when the con-
tingency for Charles happens."
To this ruling, in which all concurred, we may bow in acquiescence whether
or not we feel able to explain its exact meaning.

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without issue; that is flat and plain, for that is a direct

perpetuity."
Elsewhere the Lord Chancellor draws the rather subtle dis-

tinction: 34
"Suppose the estate had been limited to Henry Howard and

the heirs male of his body till the death of Thomas with-
out issue, then to Charles, there it had been a void limitation
to Charles: if then the addition of those words, if Thomas
die without issue in the life of Henry, etc., have not mended
the matter, then all that addition of words goes for noth-
ing, which is unreasonable and absurd to think it should."
It is true that the provision which he pronounced void can

only take effect at the end of a single lifetime already in being.
but an arbitrary rule made the gift over invalid. In the other
situation the arbitrary rule was not operative.
He described at some length the subject of what was and what
was not a perpetuity, saying in part: 35
"If it tends to a perpetuity there needs no more to be said, for

the law has so long laboured against perpetuities, that it is
an undeniable reason against any settlement, if it can be
found to tend to a perpetuity.
Therefore let us examine whether it do so and let us see what
a perpetuity is and whether any rule of law is broken in this
case.
* * *
A perpetuity is the settlement of an estate or an interest in

tail, with such remainders expectant upon it as are in no sort
in the power of the tenant in tail in possession to dock by
any recovery or assignment, but such remainders must con-
tinue as perpetual clogs upon the estate: such do fight
against God, for they pretend to such a stability in human
affairs, as the nature of them admits not of, and they are
Ibid., p. 32.
Ib., p. 31.
In 2 Swanston, 460, the definition as there reported reads: "A perpetuity
is a settlement of an estate, or interest in tail, with such remainders ove
that no act or alienation of the present tenant in tail can ever bar those re-
mainders; but they must continue perpetually, and be as a cloud hanging
over the present possession; such perpetuities fight against God, by affecting
a stability which human providence can never attain to, and are utterly against
the reason and policy of the common law."

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against the reason and the policy of the law, and therefore
not to be endured.
But on the other side future interests, springing trusts, or
trusts executory, remainders that are to emerge and arise
upon contingencies, are quite out of the rules and reasons
of perpetuities, nay, out of the reason upon which the pol-
icy of the law is founded in those cases; especially, if they
be not of remote or long consideration, but such as by a
natural and easy interpretation will speedily wear out, and
so things come to their right channel again."
The parting of the ways between Nottingham and the advi-

sory judges came when the gift to Charles was considered. As
to this he wrote: 36
"* * * the bare limitation of a remainder after an estate

tail which doth not tend to a perpetuity, that is not void."
He was at some pains to explain his reasons, writing in part

as follows: 87
"The law doth in many cases allow of a future contingent es-

tate to be limited, where it will not allow a present remainder
to be limited; and that rule, well understood, goeth through
the whole case * * * It is not impossible to limit a
contingent fee upon a fee * * * If a lease for years
come to be limited in tail, the law allows not a present re-
mainder to be limited thereupon, yet it will allow a future
estate arising upon a contingency only, and that to wear out
in a short time."
Then follows a much cited clause: 38
"But what time? and where are the bounds of that contin-
gency? you! may limit, it seems, upon a contingency to
happen in a life; what if it be limited if such a one die with-
out issue within 21 years or 100 years, or while Westmin-
ster Hall stands? where will you stop if you do not stop
here? I will tell you where I will stop; I will stop wher-
ever any visible inconvenience doth appear, for the just
36 3 Cas. in Ch., p. 48.

3 lb., p. 49.
Ib., p. 49. In the first opinion Nottingham answers this in slightly dif-
ferent language (p. 36). In the revision of this opinion, printed in 2 Swans.
468, this language of p. 36 is revised and more closely approximates that above
quoted, which appears at p. 49 of the report in 3 Cas. in Ch.

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bounds of a fee simple upon a fee simple are not yet de-
termined, but the first inconvenience that ariseth upon it
will regulate it."
With some of the opposing arguments he showed impatience: 38
"Oh yes, terms are mere chattels, and are not in consideration
of law so great as freeholds or inheritances. These are
words and but words, there is not any real difference at all,
but the reason of mankind will laugh at it * * *"
And again:40
"here is a conveyance made which breaks no rules of law,

introduceth no visible inconvenience, savours not of per-
petuity, tends to no ill example, why this should be void
only, because it is a lease for years, there is no sense in that"
In the opinion rendered by Chief Justice Pemberton it is said: 41
" * * * And there is no great question but it might have

been made good and effectual by the limitation of two
terms; for if one term had been limited to determine upon
the death of Thomas without issue, and that to be for the
now Duke of Norfolk, and another term then to commence
and go over to Charles, that would certainly have been good
and carried the estate to Cnarles upon that contingency;"
As to this, the Lord Chancellor commented: 42
* * * This is such a subtilty as would pose the reason

of all mankind; for I would have any man living open my
understanding so far, as to give me a tolerable reason why
there may not be as well a new springing trust upon the
same term to go to Charles, upon that contingency, as a new
springing lease upon the same trust; for the latter doth
much more tend to a perpetuity than the former doth. I
am bold to say it."
Lord Nottingham's decision in this case was the basis for rul-
ings that came later, as much by reason of what he denied as of
what he affirmed. He overrode the views of the advisory judges
and the precedents on which they relied, and he adopted what he
Ib., p. 49.
40 Ib., p. 51.
Ib., p. 23.
Ib., p. 50.

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considered the sounder views expressed by other judges and in

other precedents. He prepared the way for uniformity of rulings
by later Chancellors.
It seems fair to say that Lord Nottingham's decision estab-
lished as a principle that in an equitable estate a future interest
to take effect upon a contingency that cannot occur beyond the
expiration of one or more lives in being is not void by reason of
remoteness; and further, that a contingency upon a contingency
does not necessarily invalidate a future interest. It would be
going too far, however, to say that in this case the Chancellor
announced a rule that the validity or invalidity of a future inter-
est depended upon its remoteness and not on the nature of the
contingency.
The dramatic history of this case and the importance of the
parties naturally focused attention upon it, and later cases citing
it as the exemplar resulted in giving it a quality and scope that
may have been beyond its original purpose.
THt SUBStQUENT HISTORY OF THIS CASE

These later proceedings are not without dramatic quality.
While the case was pending before him, the Chancellor, then
Baron Finch, was made Earl of Nottingham, but he did not long
survive this added dignity, and died December 18, 1682.
He was succeeded, December 20, 1682, by Lord Chief Justice
North. one of the judges who sat with him in the Duke of Nor-
folk's Case. Lord North was not, however, appointed Lord
Chancellor, but only Lord Keeper of the Great Seal. With this
there were delegated to him the powers of the Lord Chancellor;
but through a rather sordid measure Of economy the King by
this device saved ?2,000 per annum. In the following year
North was raised to the peerage as Baron Guilford.
Doubtless encouraged by the opinion delivered by Lord North
supporting his claim, we find the Right Honourable Henry,
Duke of Norfolk, and Earl Marshall of England, now filing a
petition for review of Lord Nottingham's decree; and before six
months had elapsed after that great Chancellor's death, his suc-
cessor had reversed that decree-May 15, 1683.43
4 1 Vernon's R. 163; 3 Cas. in, Ch. 53; Select Cas. in Ch. 53.

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When the case thus again came before North, now Lord
Keeper of the Great Seal, he stated that he saw "no cause to
change his former opinion." Defendant's counsel had urged
that they relied much upon the trust of a term being different
from the limitation of a term at law; but he said that Notting-
ham had held a trust of the term to be governed by the same
rules as a limitation or devise of the term at law; and he ob-
served: 44
"A perpetuity is a thing odious in law and destructive to the

commonwealth; it would put a stop to commerce and pre-
vent the circulation of the riches of the Kingdom, and
therefore it is not to be countenanced in equity. If in eq-
uity you should come nearer to a perpetuity than the rules
of common law would admit, all men being desirous to con-
tinue their estates in their families would settle their estates
by way of trust, which might indeed make well for the ju-
risdiction of the court, but would be destructive to the com-
monwealth."
The Lord Keeper commented upon the respect that Notting-

ham showed for Bridgman, who had drawn these papers, but he
added rather contemptuously: "This conveyance, whoever drew
it, was certainly a very inartificial conveyances * * * " He
concluded by holding the gift to Charles Howard invalid and re-
versing Nottingham's decree.
In the then existing state of affairs this was final; there was
no tribunal to which an appeal could be taken. Jurisdiction to
review was vested in the House of Lords, but there had been no
session of Parliament since the summary and dramatic dissolu-
tion at Oxford in March, 1681, already described. The experi-
ence of Charles II with Parliament had been mortifying and ir-
ritating, and he had decided to have no more sessions. How-
ever, Charles II died February 6, 1685; the new king, James II,
found himself under the necessity of summoning Parliament in
order to get money; and it assembled May 19, 1685.
In the interim Henry, sixth Duke of Norfolk, had died in pos-
session of the property that his father had intended Charles to
receive, and Henry's son succeeded not only to the titles of Duke
and Earl and the estates accompanying those titles, but also to
4 1 Vernon's R. 164.

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this trust property. However, Charles Howard, the ousted

younger brother, now carried the matter to the House of Lords,
where it was brought on for hearing in the next following
month; for two days the counsel for Charles and the counsel for
the Duke of Norfolk were heard; and here Lord North, now
Baron Guilford, as presiding officer of the House of Lords, had
to endure vituperation and ridicule from his personal enemy Jef-
freys, who had become Lord Chief Justice of the Kings Bench
and was seeking to supplant him on the Woolsack and in the
Court of Chancery; also as presiding officer, North had the bit-
ter duty of announcing the reversal of his own decree by a prac-
tically unanimous vote.
"It was decided June 19, 1685, by a very full House, there be-
ing present besides the King eighteen bishops and sixty-
seven temporal peers, although there was no other business
to be done. There was no division on the motion to reverse,
so that the Lord Keeper must have been almost entirely
without support." 45
Not long after this Jeffreys achieved his ambition and further
gratified his desire for revenge by displacing North and securing
his own appointment as Lord Chancellor. This was apparently
a token of the King's esteem for his outstanding services in con-
ducting the "Bloody Assizes." 46
It may be noted that after the restoration of his rights,
Charles Howard lived in tranquillity for the remainder of his
life upon this estate intended for him by his father; 47 and at a
later period two of his descendants held the title of Duke of Nor-
folk.48
4 CAMPBPLL, supra p. 291.

1 MACAULAY, supra, pp. 571, 594. Lord Birkenhead comments: "The
King was grateful and promoted him to the Woolsack." (Fourteen English
Judges, p. 95.)
4 1 COLLINS, supra, p. 130. "Thus happy in a quiet conscience," says his
grandson, the late Duke, "thus innocently employed, lived Charles Howard.
Retired from the bustle and noise of the world, he found true happiness there
(within himself) where only it should be sought." He died in 1713.
4 Although Henry had been blessed with numerous offspring, nevertheless
the ducal title was not destined to remain with his descendants. On the death
of his long lived grandson, Edward, at the age of eighty-one, the title passed
to a grandson of the same Charles whose rights were upheld by Notting-

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It is not the purpose of this paper to analyze this rule as to

perpetuities, nor to attempt any exposition of its interpretation
and application, beyond a very brief reference to the history of
its later development.
After the dramatic reestablishment of Nottingham's decision,
there was general acceptance of the principle that an executory
limitation would not be void for remoteness if it was to take ef-
fect not later than the expiration of a life in being when the in-
strument was made. How much if at all this period might be
extended, Nottingham had expressly refused to say.49
The principle had already been expressed by others that the
period of a life in being was equally applicable to a number of
co-existent lives "because all the candles are lighted at once." 50
During the next hundred years a further additional period was
gradually developed, and the limitation expanded as stated by
Chief Baron Macdonald in Thellusson v. Woodford:5-
"The established length of time during which the vesting may
be suspended is during a life or lives in being, the period of
gestation and the infancy of such posthumous child."
He further said:
"What should prevent the period of gestation being allowed

both at the commencement and termination of the suspen-
sion, if it should be called for?"
* * *
"it would seem that no distinction can properly be made; but

that in the singular event of both periods being required
they should be allowed; as there can be no tendency to a
perpetuity."
ham. This grandson, also named Charles, became 10th Duke of Norfolk,
and in turn was succeeded by his son Charles, the 11th Duke. Then the title
againR passed to another line; in this instance also the ancestor being a brother
of the Duke who was unfortunately non compas mentis, and this ancestor
was Bernard, the eighth son of the Earl of Arundel, who created the cele-
brated trust. Thereafter the title has remained in the descendants of Ber-
nard. (BURKW S PXMAG .)
g See note 58, post.
50 Love v. Wyndam, 1 Mod. 50. In the opinion as published in 2 Swans.
at 458, Lord Nottingham used the language: "so that all the candles are
lighted together."
5 11 Ves. 143, 144; see also Gray, Perpetuities, ?? 220-222. Some questions
apparently still remain.

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In that case there was elaborate and vigorous argument that

the rule was not susceptible of the construction asserted, and the
importance of the case made the decision conclusive as to the
principle. There yet remained the question whether the extra
period of twenty-one years must be measured by some actual mi-
nority. The negative was finally established in 1833.52
THE D VELOPMENT IN THIS COUNTRY
In England the gradual evolution of the rule established its

various features at successive periods. Thus at the beginning
of the seventeenth century some elements, later defined and es-
tablished, were open to divergent views and interpretations.
In this country the first English settlement was at Jamestown
in 1607, the fourth year of the reign of James I, and the system
of common law, including the principles of equity jurispru-
dence, then existing, is that which Virginia adopted, with some
designated qualifications. A number of other States, including
Arkansas, Colorado, Illinois, Indiana, Kentucky and Missouri,
adopted the Common Law as of the same date.53 In one such
State the court said: 54
Cadell v. Palmer, 1 Sim. 267; 1 Ch. & F. 411.

In Virginia the Convention of 1776, which declared the separation from
England and framed the first Constitution, ordained that "the common law of
England, all statutes or Acts of Parliament made in aid of the common law
prior to the fourth year of the reign of King James the First and which are
of a genieral nature and not local to that Kingdom * * * shall be the rule
of decision, and shall be considered in full force until the same shall be al-
tered by the legislative powers of this colony." (Foster v. Commonwealth, 96
Va. 306 (1898); 42 L. R. A. 689.)
Kentucky by its Constitution adopted with some qualifications "all laws
which on the first of June, 1792, were in force in the State of Virginia."
The Kentucky Court of Appeals in Aetna Inrs. Co. v. Commonwealth, 106
Ky. 864, at 880 (1899); 45 L. R. A. 355, said:
"* * * this court construing the question of how far the common law
of England was adopted by Kentucky said that only such principles of
the common law as had been adjudicated before the fourth year of James
I had been adopted in Kentucky * * *
"To declare that the common law and statutes enacted prior to that time
should be in force was equivalent to declaring that no rule of the com-
mon law not then recognized and in force in England should be recog-
nized and enforced here."
Penny v. Little, 4 Ill. 301, at 304 (1841); see also Sopher v. The State, 169
Ind. 177 (1907), at 182; 14 L. R. A. (N. s.) 172, at 176.

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"From that period we must look to

the reports of American courts for i
ifications of the common law."
In the greater part of the States that adopted the common law
it was the system existing in 1776 that was so taken over; and
as to these the principle above quoted applies, although there the
subject matter of the "improvements and modifications" is not
the common law of 1607 but that of 1776. The rule against
perpetuities had its principal development during the period be-
tween 1607 and 1776; which fact tended toward some divergen-
cies in interpretation of the rule; and apart from this the tend-
ency is toward independence or individualism in approaching the
subject.55
As already mentioned, the term Perpetuities was originally
applied to certain estates at common law, where alienation of
the land was prevented by estates tail. In its later application
the term designated future estates the vesting of which was un-
duly remote. The prohibition of an unreasonable restriction
upon alienation and the prohibition of unreasonably remote vest-
ing of title have a common purpose; as sometimes expressed, to
prevent withdrawing of property from commerce--but the doc-
trines have had separate developments. Fundamentally, both
doctrines have the same object.56 As a Virginia court said: 57
"These two rules are so similar in their underlying reason as

that they necessarily often shade into each other."
In the United States the distinction has not always been ob-
served, from which some confusion has resulted.58
Thus in Edgerly v. Barker, 66 N. H. 434 (1891), at 461, the court said:

"The number of lives in being that may be designated as a part of the pe-
riod of postponement, and the power of including the lives of persons to whom
no interest is given, and adding a term of twerqty-one years in gross without
reference to the infancy of a beneficiary (GRAY, PzPxITIEuirs, ?? 171-190,
216-219, 223, 224; Lxwis, PuRP4'TUITMS, 167) are open questions in this ju-
risdiction."
56 Strong v. Shatto, 45 Cal. App. 29 (1919) 187 Pac. 159.
5 Skeen v. Clinchfield Coal Co., 137 Va. 397, 119 S. E. 89 (1923).
Gray, Perpetuities (3rd ed.), ? 118a. A definition, that will be accepted
as accurate is not easy to formulate on this elusive subject. Even Professor
Gray recast the definition presented in the first edition of his work; and this

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Thus, in North Carolina the term perpetuities as used in the

Bill of Rights was limited to estates tail;59 but a Pennsylvania
court said: 60
"With us in Pennsylvania the word perpetuities is used in its

largest sense, including as well interests or estates that are
inalienable or indestructible as those that are bad for re-
moteness."
In Virginia we find the court citing Professor Minor's enun-

ciation of the rule"6 and expressing the principle in slightly
modified terms as follows: 62
"Every executory limitation, whether of real or personal es-

tate, in order to be valid must vest in interest, if at all, with-
in a life or lives in being and ten months (the utmost pe-
riod of gestation) and twenty-one years thereafter."
The courts have not always been fortunate in the language

employed to express the Equity Rule adopted as part of the com-
mon law; and this is illustrated by decisions in New Jersey, a
State that still has a Court of Chancery as well as courts of com-
mon law. We find there the Court of Chancery saying: "The
English common law forbidding perpetuities is in force in this
State." 63 But in stating the period beyond which future inter-
ests may vest, no mention is made of the circumstance that the
period of gestation may be included. And in a decision by the
Court of Errors and Appeals the language used is equally ret-
icent: 64
"This State, however, has received and perpetuated the com-

mon law against perpetuities in its original form, without
change or modifications; which rule validates testamentary
provisions of this nature 'when the term is measured by the
later definition was challenged by Professor Kales, 20 HARv. L. Rzv. 192, at

198.
5 Griffin v. Graham, 8 N. C. 83 (1820), at 110.
60 Morris v. Fisher, 8 Pa. Dist. Ct. 161 (1896), at 163.
61 2 MINOR'S INSn[UMIS (3rd ed.), pp. 431-432.
62 Woodruff v. Pleasants, 81 Va. 37 (1885); Skeen v. Clinchfield Coal
CORP., 137 Va. 397, at p. 403 (1923), quotes GRAvEs' Nowvs ON RAi, PROP-
tERTY, ? 215, to substantially like effect.
63 Gallen v. Harding, 106 N. J. Eq. 286 (1930), at 292, 150 Atd. 779 (1930).
64 Fischer v. Stuart, 104 N. J. L. 78, at 79, 138 AtI. 73 (1927).

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life or lives of a person or persons in being, at the time of

the creation of the interest, and twenty-one years there-
after; otherwise they are invalid and void.'"
On its face this would seem to exclude the period of gestation,

but in a recent decision of the Chancery Court this interpretation
is negatived: 65
"It need only be added that the rule against perpetuities is de-
signed to forbid the vesting of estates and interests beyond
designated periods, in this State life or lives in being and
twenty-one years plus an additional nine months in certain
instances."
By still other decisions in that State the allowance of the pe-

riod of gestation is quite well established.6
Except when the subject has been otherwise regulated by con-
stitutional or statutory provisions,67 we find in all States which
adopted the common law, a doctrine in force that is based on the
equity rule against perpetuities, whatever may be the local varia-
tions.
Statutory, and in some instances constitutional, provisions
dealing with this subject are found in a number of States. In
New York it was attempted at an early date to deal with both
restraints against alienation and remoteness of vesting, by stat-
utory enactments applicable alike to situations in either class.
The greatest departure was in changing the elastic measure of
the common law, figuratively expressed, "so that all the candles
are lighted together," to the strict yardstick of two lives in being.
This legislation is referred to, without enthusiasm, by Professor
Gray as follows: 68
"In New York, by the Revised Statutes of 1828, the rule of

common law on the subject of remoteness was abrogated,
and an elaborate system established in its stead. This sys-
6 Federal Trust Co. v. Ost, 120 N. J. Eq. 475, 183 Atl. 830 (1936).
66 Van Riper v. Hilton, 78 N. J. Eq. 371, 78 Atl. 305 (1911); Grav
Graves, 94 N. J. Eq. 268, 120 Atl. 420 (1923); Re Helme's Estate, 95 N. J.
Eq. 197, 123 Atl. 43 (1923).
67 An illustrative discussion, of certain statutes of this nature is found
paper by Blewett H. Lee, a contemporary and friend of the present writer,
published in (1924) 10 VA. L. RIE., p. 533.
66 GRAY, supra, Appendix, ?? 728-752.

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temr consists of three parts: (1) provisions as to remote-

ness of interests in land; (2) provisions as to the accumu-
lation of rents and profits from land; (3) provisions as to
the remoteness of interests in personal property and as to
the accumulation of income therefrom."
Professor Chaplin's treatise on the New York statute deals

with the subject comprehensively and more sympathetically.
The construction and interpretation of these statutory pro-
visions and subsequent amendatory acts have been the subject of
many decisions in the courts, and neither the provisions of the
statutes nor the rulings of the courts can be here dealt with.69
In a number of States portions of the New York system have
been adopted; but these also cannot be dealt with in this paper.
The subject of the rule against perpetuities and the cognate
subject of restrictions against alienation in the various States is
too wide and complex for even the most elementary outline to
be attempted in a paper such as this.
In this country it may be well to avoid dogmatic views about
such a rule. The term itself, "Rule against Perpetuities", is a
misnomer, for it deals with periods far from perpetual; and in
its application to some practical situations it can scarcely be said
to have finally crystallized. It has been the subject of extensive
legal writings and not a little controversy ;70 this paper does not
e An elaborate analysis of the statute, its historic background, and a sum-

mary of the problems of construction disposed of by the courts is presented
in a communication by the Law Revision Commission; Legislative Document
(1936) No. 65 (H). This also outlines questions yet unsettled; and recom-
mends amendatory legislation. It also briefly summarizes the experience in
other States and action taken.
7 Some illustrations are noted in Appendices E, G, K and L to the 3rd edi-
tion of Professor Gray's work; also ? 222. Apart from comprehensive trea-
tises bearing on this subject, numerous papers have been published in Law
Reviews. Of the critical and controversial type we find illustrations in Pro-
fessor Gray's answer in 7 HARv. L. Rpmv. 406 (1894), to a criticism published
in the preceding volume; also his criticism of the decision in Edgerly v. Bar-
ker, entitled "General and Particular Interest in Connection with the Rule
against Perpetuities" (1896) 9 HARV. L. RFvv. 242. The criticism by Professor
Kales, "Vested Gifts to a Class and the Rule against Perpetuities" (1906) 19
HARV. L. REv. 598, brought out a reply by Gray at p. 604 of the same vol-
ume. In the next following volume Kales wrote "Several Problems of Gray's
Rule against Perpetuities, Second Edition" (1907) 20 HARV. L. REV. 192. In a
later volume we find Kales' "General Powers and the Rule against Perpetui-

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attempt to cross the threshold of such exposition or discussion.

The object of this paper is to present a historical picture of the
origin of the rule, not to trace it through its development to its
fruition in various jurisdictions.
CONCLUSION
And after all, was not this equity rule, so built up by succes-
sive Chancellors, somewhat artificial? When the Taltacrum
case overthrew the original perpetuities, the privilege under at-
tack was primarily that which prevented the King from con-
fiscating the estates of persons attainted of treason. In that era
such confiscations supplied much needed support for the Royal
authority. It was the King who assailed the privilege. The
vested interests whose defenses he attacked were mainly those
of the nobility.
When the equity rule developed, it was directed against no
particular class, and it was invoked, not primarily in the interest
of Royalty, but of the more or less inarticulate public; and the
public interests were those as contemporaneously viewed by the
Chancellor who at that time held the Great Seal. The equity
rule overrode the purposes of grantor or testator where, in the
language of Lord Nottingham, "inconvenience" to the public
became visible to the Chancellor; and he was the arbiter as to
what he saw. As a natural sequence, its growth and develop-
ment in different environments present an interesting diversity
rather than happy harmony.
As an academic question, it is interesting to consider what
might have been the outcome and the effect of this case in mould-
ing any rule as to perpetuities, had the review in the House of
Lords not become an issue of personal animosities quite foreign
to the legal questions involved. It was doubtless a personal sat-
ties" (1913) 26 HARv. L. Riv. 64; also Gray's response and Kales' rejoinder
(1913) 26 HARv. L. Rev. 720. Contributions to the subject by Professor
Thorndike appear in (1914) 27 HARV. L. REv. 705; and (1915) 28 HARV. L.
Rev. 664.
This active discussion and other controversial questions were commented on
ill 1934 by Professor W. Barton Leach (1934) 47 HARV. L. Rtv. 948.
These references are only illustrative; the list of papers in various Law Re
views would be a long one, and it is not attempted here to recite them.

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isfaction to Lord North to overrule Lord Nottingham and to

substitute his own view as the conclusive authority. At this
stage Lord Nottingham's decision could not be held to establish
the basis for any rule as to perpetuities.
In the House of Lords the legal questions involved were com-
pletely overshadowed by violent personal antipathies. Jeffreys
was not famed for knowledge of law or for judicial poise, and
his practice had been largely in criminal trials. As a judge he is
chiefly remembered for his reign of terror in the "Bloody As-
sizes", and he has been execrated for his malicious disregard of
law, of human rights and of ordinary decencies of speech. He
was a bitter partisan, brutal and violent in his vituperation and
fond of employing it.71 Jeffreys had now become Lord Chief
Justice and recently made a peer ;72 he venomously hated North,
now Baron Guilford, and Lord Keeper of the Great Seal; Jef-
freys seized the opportunity of making the Duke of Norfolk's
Case the vehicle of personal attack on his enemy.
The large attendance in the House of Lords was drawn un-
doubtedly by much the same impulses that make heavyweight
contests profitable in the present day. Of the highly technical
legal question at issue Jeffreys probably knew little and cared
less. Few of those who came to hear him had even this slight
acquaintance.
"The lay Lords who voted could have known nothing of the
merits of such a nice question; and must have been guided
by favor or enmity to the Lord Keeper or the Lord Chief
Justice." 73
1 I MACAULAY, sUpra, pp. 406, 407.
Birkenhead, after making allowances for prejudice and traditional denun-
ciation, presents a picture of Jeffreys as a man of brilliance but of inhuman
cruelty. "He carried out his tasks with a cold yet blatant brutality, in which
he seemed to delight." His efficiency in carrying out prosecutions desired
by his royal masters resulted in rapid advancement. He apparently pos-
sessed personal charm and magnetism when he chose to exert it, and definite
ability in conducting a trial as counsel, but otherwise his intellectual achieve-
ments were apparently superficial. An unflattering view is illustrated in the
remark attributed to Charles II that Jeffreys had "no knowledge, no sense,
no manners, and more impudenct than ten carted street walkers." (Fourteen
English Judges, p. 78.)
" His elevation to the peerage was on May 15, 1685, a few days before the
assembling of Parliament. (BIRKINHEAD, supra; 4 CAMPBELL, supra, 339.)
" 4 CAMPBJL, supra, 290.

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Jeffreys gained an overwhelming personal victory over North,

and the by-product was the reinstatement of Lord Nottingham's
decision, which is now one of the classics in English legal litera-
ture and a landmark in the field of equity jurisdiction. Who can
say what might have been the rule developed as to perpetuities
bad North's enemy not been made Baron Jeffreys of Wem, and
by right thereof sat in the House of Lords in June, 1685 ?
Herbert Barry.
Niw YORK CITY.

102.70.3.212 on Thu, 29 Dec 2022 23:12:12 UTC

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The Duke of Norfolk's Case

Author(s): Herbert Barry

Stable URL: https://www.jstor.org/stable/1067819

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THE DUKE OF NORPOLK'S CASE

Norn ON THI PUBIUSHZD RPPORTS.

"The Duke of Norfolk's Case, or the Doctrine of

"To the Reader

Reader, it will be wholly impertinent to hold thee here; and I should

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In 1702 this pamphlet of 1688 was republished, but wit

THE DUKE OF NORFOLK'S CASE

T HIS celebrated case is regarded as establishing the basis on

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to secure a repealing statute were unsuccessful, and the system

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doctrine of immutable title. Thus died the original "Per-

32 BL. COMm. *118.

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assembled into any consistent system.4 The background and the

Heneage Finch, later Earl of Nottingham, was born in 1621.

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In the case that we are considering the reported decision

THE PARTIES To THE LiTIGATION

The defendant was Henry Howard, Duke of Norfolk, Earl

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the light-hearted monarch, an Act of Parliament was secured

from BURKE'S PJTAGE; COLLINS, PERAGE o0 ENG1,AND, and from various

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Padua. It was thus, however, that Thomas became, in name at

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ducal title conferred on Lord Henry Frederick Howard, the son

THE CREATION Or THE, TRUSTS

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ern terms, were as follows: The property was to be held for

' (See note 8, supra.)

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folk apparently succeeded in fortifying his claim of equitable

THE TRIAL BEFORE THE LORD CHANCEJLLOR

In this situation the younger brother, Charles, brought his bill

"I do suspend the inrolment of any decree in this case as yet,

On June 17, 1682, the Chancellor permitted reargument by

' 3 Cas. in Ch., p. 37.

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ued for years. Incident to this, by requiring of all Members of

20 1 Macaulay, HISTORY OF ENGLAND (Am. ed.), p. 219.

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TH:E, OPINIONS AND DEciutE OF THE LORD CHANLIOR

"* * * nothing in the world can excuse Marriot from

Z3 4 CAMPBMW, supra, p. 172.

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if Charles have any right to this term. * * * If the

"Now, if Charles Howard's estate be good in law, it is ten

Elsewhere, in dealing with the same subject, the Chancellor

Apart from touches of human interest, this noted case affords

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not, however, wholly in accord as to just what was a Perpetuity.

In Washborn v. Downes, 1 Cas. in Ch. 213, decided by Nottingham's

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The critical point of difference between Nottingham and his

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without issue; that is flat and plain, for that is a direct

Elsewhere the Lord Chancellor draws the rather subtle dis-