Bacon's Maximes III
Bill Long 11/28/05
The Life (and Death?) of Maxim # 23
We saw in the previous essay that Maxim # 23 was probably articulated by Bacon in response to Lord Cheyney's Case, reported by Coke in 1591. It was this Maxim which introduced the distinction in law between patent and latent ambiguities. If one had the former, where the ambiguity was lying open on the face of the document, you couldn't admit extrinsic eveidence to "solve" it, while if it was not evident on the document's face, extrinsic evidence would be admissible to clarify the ambiguity. It is based on the notion that if you let in testimony when something is ambiguous in the writing, you somehow will dishonor the written word and open the door to all kinds of frivolous lawsuits. However if words appear clear but only can be shown to be ambiguous from extrinsic evidence, well, no one can be expected to know what was actually meant in the contract.
It seems as if the distinction that Bacon wants to create between the two kinds of ambiguity is artificial. That is, why would something that is subject to two reasonable interpretations (a patent ambiguity) resist extrinsic evidence to clarify it while something that has no ambiguity in the text require extrinsic evidence? Well, the latter point is clear. If you can only learn of the ambiguity (two John Does who might stand to inherit) by extrinsic evidence, it seems logical that you should solve that one by means also of an appeal to extrinsic evidence. But, why not be willing to take testimony about what a patent ambiguity might mean?
The example given by Coke and Bacon is that you shouldn't receive extrinsic testimony regarding a devise to "T and A.B and children" because this will somehow degrade the high status of the written word. You don't want to mingle a "matter of specialty" with an "averment." A "specialty" in the common law was an instrument under seal; that is, a contract, will or land transfer which was drawn up with the highest level of solemnity known to law at the time--having an official seal affixed to it. To allow testimony of "mere mortals" on the meaning of what such a "specialty" meant would be to mingle something of "higher account" with something of "lower account." Thus, the distinction can only be maintained, in fact, if we have an elevated view of a contract as a sort of "specialty," which, of course, we no longer have.
Thus, the whole edifice of the distinction rests on realities from the 17th century that are no longer realities today. As James Bradley Thayer, legal historian at Harvard around 100 years ago, said:
"To say that a difficulty which was revealed by extrinsic facts could be cured by looking further into such facts, had a reasonable sound; and when it was coupled with a rule that you could not in any way remedy a difficulty which presented itself on the face of the paper, there semed to be a complete pocket precept covering the whole subject. When this was found clothed in latin, and fathered upon Lord Bacon, it might well seem to such as did not think carefully that here was something to be depended upon. The maxim caught the fancy of the profession, and figured as the chief commonplace of the subject for years" (A Preliminary Treatise on Evidence at Common Law (1898) at 472).
The Distinction Breaks Down
As Thayer shows, Bacon's distinction and maxim was ignored for about 150 years, being picked up only around 1751. Yet, by the early days of the 19th century, as John Henry Wigmore shows, in his great multi-volume treatise on the law of evidence, the distinction was all but ignored as evidence of all kinds was broadly accepted in will contests and elsewhere. For example, a leading 19th century treatise (J. Wigram's Extrinsic Evidence in Aid of the Interpretation of Wills (1831)) said:
"For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a Court may inquire into every material fact relating to the person who claims to be interested under the will..."
Yet, in a shocking decision, which earned the derision of Thayer and disbelief of Wigmore a century later, a court in England in 1839 (Doe v. Hiscocks) held that factual errors, misdescriptions or any kind of possible error in the will/document meant that it was not an equivocation (another word used by Bacon to describe a latent ambiguity) but was, in fact a patent ambiguity. In particular the Doe court held that a devise "to my grandson John H., eldest son of the said, John H." would not be honored because the grandson was not actually the oldest son of John H. No testimony to this fact was permitted. This caused subsequent courts to eliminate relevant testimony of all kinds of helpful evidence under the guise that the contract/will displayed a patent ambiguity.
Thus, two factors kept courts from extensive examination of extrinsic evidence in will contests and in the interpretation of deeds. First, the distinction between patent and latent ambiguity led many courts to conclude that the written word, despite ambiguities, would rule over any "lesser" attempts to construe it verbally, and second, that misdescriptions and mistakes in a will were examples of a patent ambiguity. In both instances this functioned to eliminate much good testimony from a court's hearing. The latest editors of Wigmore's treatise (Vol. 9, p. 255) express the hope that a "reversion" to the pre-Doe orthodoxy might prevail, and in many ways it looks like it will do so. But the lesson of this maxim is that latinate phrases, combined with hoary authority, can often triumph over common sense in law.
Copyright © 2004-2008 William R.Long