parol evidence rule and coke and averment and justice popham and isabel

The first two subpoints articulated by Chief Justice Popham stressed that a writing could only be trumped by a subsequent writing. His precise language was that if any limitation or change of a previous indenture should be "made by writing, or other matter as high or higher," then the "last agreement shall stand." Thus, a writing has to be replaced by something "as high or higher." We know that another writing is "as high," but what could be "higher?" I suppose it would be a sealed document, that is a writing affixed with the seal of the contracting party. The maxim quoted, then, serves to confirm the point established: it is against nature for any arrangement to be dissolved except in the manner in which it was tied. The previous essay described two of the four subpoints Popham made to illustrate this first point.*

[*I won't get to the other three, rather more minor, points in the case]

The Concluding Two Subpoints

But then the concluding subpoints of Popham's first principle are in the following statement:

Also it would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. And it would be dangerous to purchasers and farmers, and all others in such cases, if such nude averments against matter in writing should be admitted" (Id.).

In these lines Coke, the reporter, gives two other reasons why matters in writing should trump averments. First, he begins with the word "inconvenient." This word comes right out of the Latin maxim just quoted ("conveniens"). Something that was "convenient" in the 17th century use of the term was something "congruous" or "agreeing" or "fitting" or "suitable" or "befitting" or even "natural." Since the maxim just quoted is a sort of "natural law" maxim, articulated in terms of what is fitting to "natural equity," this sentence continues on the "fitting" theme. It simply is fitting that written words should be given higher credit than oral testimony, especially because the oral testimony consists of "nude averments" that are the product of "slippery memory." In the case at hand, for example, the indentures were written 24 years before trial, and the oral testimony to which people were making reference (Edward's words that Isabel should have the Eykering for a life estate) was at least 17 years old (since Edward died in 1587). Thus, we can see why a court would want to decide that words of a document are controlling. At least you have a clear intention articulated in the documents of the case--that the second indenture should control if the first wasn't activated by the end of Trininty term 1581. I am sure that the court decided that listening to oral testimony that contradicted this documentary evidence would simply make their work too unpredictable--and might not get any closer to truth or justice.

The second point in this passage is that honoring written agreements above oral ones is good for commerce. How else can you interpret the words: "And it would be dangerous to purchasers and farmers, and all others in such cases"? This point clearly goes beyond what the Justices were strictly asked to decide in the case. It makes you ask when courts decided to decide only questions directly before them...But we can see how this construal of the rule now reaches into the commercial sphere. Contracts don't need to be in writing (because of the long history of oral contracts in our tradition), but when they are in writing they control any "averment" about the contract. It is this basic insight that the PER has tried to instantiate.

Returning to Keren's Article

The diagrams that Professor Keren found of Eykering in 1604 are fascinating. The second one, especially, is revealing in that it says that:

"The Ladie parke is a woodgrounde, and the woodes therein are lately sold, so that little profitte is to be made thereof by woodsales for manye yeres. Therefore in my opinion it were good to stubbe the most parte thereof & convert it to pasture. So that thereby present profitte maye be made. And the rather for that it is to be kepte enclosed continuallye."

This diagram indicates that Roger likely won the lawsuit and, to pay off his mounting debts, had the trees cut on Eykering and sold. Thus the quotation just given urges the owner simply to enclose the ground and convert it to pasture. Something about "highest and best use" seems to be behind this advice.

A Long Conclusion

But I close these essays both with gratitude to Professor Keren for giving a "thick description" of the case, but with my skepticism about her major point. She tried to argue a feminist point--that Isabel 'lost' the land because society's rules worked against women's interests, and that the decision not to accept oral testimony was basically an anti-woman approach to law (I am abbreviating the argument, of course). Women had no access to the "male" world of writing and contracting and law; therefore to elevate the written word above the spoken word betrayed an implicit, if not explicit anti-feminine bias.

She is probably right that it could be so used, but she has picked a bad case to illustrate her point. First, the witnesses at trial, though not specifically identified, would have primarily been the male trustees of the first indenture. Because parties were not permitted to testify in their own behalf in those days (why? when did that change?), Isabel wouldn't have been allowed to testify for herself. But that rule was not an anti-woman rule but an anti-party rule. Of course, it was thought, you would trumpet your own interest to the detriment of the truth, if you as a party were allowed to testify.

Second, I really think that if you read the text of the case closely, that there is no question that Roger wins, not because of an anti-female bias in the judges but because it looks like the documents unequivocally gave the default rule that if no decision was made by Trinity term 1581, the second indenture would control. Professor Keren completely overlooks that fact when making her point. Thus, someone is missing something.

The subsequent debate over the PER is far beyond the scope of these essays. Perhaps I will get to it elsewhere. But, as for now, whenever you think PER, think of Isabel and Edward, and the wastrel Roger, and Sir Edward Coke and Justice Popham and averments and directory and indentures and Trinity Term and Feasts of the Annunciation. If you think in these terms, you will learn a lot more than just law as you pursue your legal education.

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