Zeitschrift Aufsätze

Matthew Cleary*

Henry Swinburne and Devise of Land: The Textual Evolution of A briefe treatise of Testaments and last Willes and its Reflection on the Law, 1590-1803

1For over two hundred years, one of the primary texts on real and personal property in English law was Henry Swinburne’s treatise, A Briefe Treatise of Testaments and last Willes. While his importance to the English understanding of inheritance has been noted by others, mainly Ronald A. Marchant (1969), J. D. M. Derrett (1973), John Baker (1993, 1998), and Richard Helmholz (most recently in 2022), the textual evolution of his treatise has not received formal recognition. Swinburne’s text was continuously used and reproduced, with nine editions from 1590 to 1803;1 this article outlines the evolution of the various editions, noting the changes that occurred and their relation to the law. Swinburne’s first treatise »was to pass through several editions and—like a modern textbook—evolve in the hands of successive editors during an active lifetime of some two centuries.«2 While references are often made to the existence of various editions of the treatise, very little is known about the specific changes, alterations, removals, and inclusions that occurred in the evolution of these editions. As will be discussed, the evolution of the versions was not always successive, and some editions were better than others in this respect.

2The changes in the editions of Swinburne’s treatise reflect more than simple changes in literary styles—they denote changing principles in the law, particularly focused on how wills could and could not be used. The aim of this article is twofold: firstly, to demonstrate that the 1635 and 1640 versions of the treatise are distinct and should be counted as separate editions. There is a misconception about these two versions being a singular edition. This, in turn, alters the perceived number of editions produced in the approximately two-hundred-year period while Swinburne’s treatise was considered the dominant source on English wills and testaments. To date, what little research has been done on Swinburne surmises that the treatise was reprinted at least eight times; this is an oversimplification that this article seeks to address. Secondly, the subsequent editions were not just reiterations but had distinct elements that conflicted with prior and subsequent versions. The treatise was not merely reprinted, as the inclusion of material goes beyond the addition of relevant statutes in the Stuart and Georgian period; rather, whole components were refashioned or removed to suit the aims of the times.

1. Early Life

3Henry Swinburne was born in Micklegate Ward, York, in the early 1550s3 and went on to practice »as an advocate at York from 1581 until his death in 1624,« at the age of seventy-three.4 Swinburne received a Bachelor of Civil Law5 at Oxford in 15796 and gained a reputation as an influential ecclesiastical lawyer, holding several judicial deputising roles in the deanery courts from the 1590s on.7 His work as a Commissary of the Exchequer Court of York (1604-24) and Commissary of the Dean and Chapter of York (1613-24) brought his focus onto testamentary business, which was the chief concern of the Exchequer Court.8 In the post-Reformation period, common-law judges began to increase their control over the abilities »of the ecclesiastical and other civil-law courts.«9 His first of two treatises was entitled A Briefe Treatise of Testaments and last Willes, Very profitable to be understoode of all the Subjects of this Realme of England, (desirous to know, Whether, Whereof, and How, they may make their Testaments: and by what meanes the same may be effected or hindered,) and no lessedelightfull, aswellfor the rarenes of the worke, as of the easines of the stile, and method: Compiled of such lawesEcclesiasticall and Civill, as be not repugnant to the lawes, customes, or statutes of this Realme, nor derogatorie to the Prerogative Royall … By the Industrie of Henrie Swinburn, 11 Bachelar of the CivillLawe.10 This treatise discussed essential civil, ecclesiastical, and common-law elements of testaments and wills. His second treatise, which is not the focus of this article, A treatise of Spousals, or Matrimonial Contracts: Wherein All the Questions Relating to that Subject are Ingeniously Debated and Resolved (1686),11 was published posthumously based upon »an incomplete manuscript that now resides in Lincoln’s Inn.«12Spousals received one reprint as a second edition in 1711 but did not hold as much influence as his first treatise due to its unfinished nature.13

4As John Baker notes, Swinburne’s first treatise »represents a landmark in jurisprudence,« and »[a]s a result, Swinburne remained the first recourse on the subject for over two hundred years.«14 Swinburne intended the treatise to be utilised by practitioners and students alike, which differentiated his work from others. The treatise was »on the learned laws in English while at the same time … [was] sufficiently versed in the common law to utilise case law.«15 Indeed, until the versions following the 1677 edition, the title page included some variation of a statement that the text was »fit to be understood by all men, that they may know, Whether, Whereof, and How, to make them.«16 Swinburne’s treatise remained relevant for two main reasons; firstly, he wrote treatises on the learned laws in English with common-law elements, including case law. By combining civil, canon, and common law, his treatise encompasses the various legal approaches to wills, testaments, and hereditaments in a coherent, logical approach. He also included footnotes directing readers to the appropriate Latin and case material, to provide references for students of the law. Swinburne also addressed a wide range of topics, from the more mundane to the complex of married women’s will, which helped to ensure the utility of his work.17 Swinburne was the first prominent author to write on the canon law in English,18 and his work »adopted a felicitous informal style designed to be understood by laymen as well as experts.«19 As the first prominent author to write on the canon law in English, Swinburne is entrenched among English jurists as the author of the most comprehensive treatise on wills and testaments;20 he described the aim of the project as the creation of »this one litle booke may serve in steed of many great volumes.«21 Indeed, while several minor treatises on elements of ecclesiastical administration appeared, they did not match the breadth of Swinburne’s coverage.22

5In terms of content, Swinburne’s treatise covers a variety of topics, including definitions of what constitutes a will, codicil, legacy, written and unwritten testaments, what can and cannot be left to others in a will or testament, and a variety of other related topics.23 One topic of particular interest is entitled What things may be divised by will, wherein two parts are essential: land, and goods and chattels. Swinburne explains what occurred when a testator bequeathed more lands or goods and chattels than they were able to, including in which instances legacies were to be preferred and to which courts such matters should be brought.24 These practical elements helped entrench Swinburne’s treatise as an essential text, especially compared to the work of common lawyers whose writing could be overly technical and usually lacked practical examples. The closest equivalent to Swinburne’s treatise by a common lawyer is the readings on the Statute of Wills (1540) by people such as James Dyer (1552) and Ambrose Gilbert (1556), »[which] consisted principally of lists of cases connected by a few disjointed generalisations.«25 However, for this paper, the focus shall remain on the matter of devising land, with limited exceptions when relevant to goods and chattels. The detailed treatment of the subject reveals a unique dichotomy; while Swinburne possessed extensive practical experience spanning decades and various roles, subsequent editors and scholars questioned how well his treatment reflected English practice.26

2. Number of Editions

6Nine editions were produced between 1591 and 1803, with several reprints and reissues. The nine editions are as follows, with relevant information included about the printing or involvement of Swinburne as applicable. The first edition was published as a quarto by John Windet in 1590, but the colophon is dated 1591. A quarto is a twice-folded sheet that creates four leaves, or eight pages, which results in a book of medium size.27 Swinburne was actively involved with the production of this edition and his extensive comments can be found on several copies. The second edition was published as a quarto in 1611 by the Company of Stationers, who acquired the copyright in 1607. No printer name was recorded, only »the Companie of Stationers.« The foreword of this edition describes it as a »newly corrected and augmented with sundry principall additions, by the industrie of Henry Swinburn.«28 The 1611 edition was printed during Swinburne’s life and comments in several surviving manuscripts appear to be in his own hand, or the printer's hand upon the direction of Swinburne. The Company of Stationers maintained their copyright of Swinburne’s treatise and printed the 1635 and 1640 editions. The third edition in 1635 was printed in two quartos by William Stansby and Thomas Harper.29 Iohn Legat, Felix Kingston, Richard Bishop and John Dawson printed the fourth edition in 1640 as two quartos. The fifth edition in 1677 was printed in a single quarto by George Sawbridge, Thomas Roycroft, and William Rawlins, assigns of Richard Atkins and Edward Atkins Esquires. E. and R. Nutt printed the sixth edition in 1728. Departing from the previous practice of printing the books as a quarto, folio editions were published in 1728 and 1743. When a single large sheet is folded once and sewn together, creating two leaves or four pages, and then bound together, the resulting text is called a ‘folio.’30 Folios are twice the size of a quarto and four times the size of an octavo printing.

7The seventh edition was printed by Henry Lintot, assignee of Edw. Sayer, Esq., in 1743 and sold by S. Birt, D. Browne, and J. Shuckburgh. The eighth edition was printed in 1793 in two octavo volumes: an octavo is a sheet of paper composed of 16 pages or eight leaves,31 by Elizabeth Lynch in Dublin, Ireland (the only known edition printed outside London). Little is known about Lynch’s early life. The earliest known records of her are from when she succeeded her first husband (Richard Watts) as printer and bookseller after his death in November 1762. It is likely that she was involved in the printer process for years but was uncredited as Richard’s spouse.32 In 1768, Elizabeth »married the curate of St Werburgh's, Dublin and bookseller, the Reverend Stewart Lynch (died June 1788).«33 Elizabeth Lynch maintained her bookselling and lending business from 6 Skinner Row. Starting in 1762, Elizabeth was granted the exclusive privilege of selling law books at court by the Society of the King’s Inn of Dublin, attesting to her expertise in printing law books. She has been noted as »one of the most prolific early woman printers.«34 She focused on legal publications, which included an edition of Blackstone's Law Tracts (1767), as well as a range of Irish and English legal texts.35 Lynch died in January 1794 and was succeeded by her son, Henry Watts. The ninth and final version of Swinburne’s treatise was printed as three octavo volumes in 1803 and »was heavily edited by the conveyancer John Joseph Powell of the Middle Temple (d. 1801), prepared for the press by James Wake of Lincoln’s Inn, and published in three volumes by William Clarke and Sons in 1803.«36

8Shifting now to the content of each edition, what follows outlines the evolution of the treatise’s arguments about the devise of land, including the controversy and issues arising from the previous numbering of the nine editions. First, a brief summary of the editions of Swinburne’s text: the first edition was printed by John Windet in 1590,37 and the second edition was published in 1611 during Swinburne’s life and is noted as such in the title, »newly corrected and augmented with sundry principall additions,« by the initiative of Swinburne.38 The third and fourth editions were reprinted by the same publishing company in 1635 and 1640. Perhaps due to the relatively close period in which these two versions were printed, they are often treated as a singular edition.39 However, essential differences exist between the two texts despite only five years separating their reprinting.40 Further, other texts reference the 1635 and 1640 publications as separate versions. The introduction to the 1793 version, entitled »Some Account of the Author, and of the Several Editions of His Treatise of Testaments and Last Wills« states:

9For there was a third Edition [1635] of this Treatise about 24 Years after the Second, in which there was a Multitude of Common Law Cases inserted; and if we believe the Oxford Antiquary, that Impression was sold in a very little Time; for he tells us there was a fourth Edition in the Year 1640, which was about 5 Years after the Third.41

10This passage conflicts with many sources which number the treatise under the assumption that the 1635 and 1640 versions are the same. Modern scholars have worked under this same assumption, based primarily on the numbering of later editions. However, as will be demonstrated, the conventional numbering is flawed and unreliable.

11The most widely referenced edition is the fifth, released in 1677 by George Sawbridge and several others.42 This version became »the largest and most popular edition.«43 Contemporaries referred to this as the fourth edition, due to the treatment of the 1635 and 1640 versions as a single version.44 The sixth edition was published in 1728 by E. and R. Nutt.45 The seventh version was published in 1743 by Henry Lintot and claims to be a »corrected and very much enlarged version with all the statutes to 16 Geo.2.«46 In this edition, material was added and amended to reflect changes in the law.47 The eighth version, printed by Elizabeth Lynch in Dublin in 1793, and is usually called the Irish version.48 This edition includes all relevant statutes up to the 32 Geo. III and also »all Decrees in Chancery and Resolutions of Common Law.«49 The final version was printed in 1803 and was thoroughly edited and expanded to produce three volumes in 1803.50 Depending on chronology, this was either the eighth or ninth English version (including the Dublin edition); regardless, this was the final version of the treatise. This complex history of editions has remained unclear in the literature. For example, in his entry in the Dictionary of National Biography on Swinburne in 1898, Alfred Pollard made no mention of the 1793 edition but referenced editions from 1633 and 1678.51

12The nine editions produced between 1590 and 1803 demonstrate the influence Swinburne held on English law and the importance of his treatise. It is because of that importance that the evolution, additions, and contradictions made throughout the 213-year period of reprints are discussed in the next section. The fading of this text in the early nineteenth century is most likely brought on by several factors; the massive size and cost of production, the waning relevance of ecclesiastical authority in testamentary issues, and various legal reforms such as the Wills Act 1837. While several alterations, additions, or removals occurred over time and across editions, the treatment of devise of land specifically demonstrates these evolutions.

2.1: Relevant Notes in Conjunction with the Changes, Alterations, Differences in Editions

13Several grammatical changes occur between editions; for example, in the 1611 version Swinburne writes how he would indeed »seeme to be more bold then blinde baiarde« if he was to claim a masterful knowledge of many elements of the common law.52 In the 1635 version, the passage has been altered to »seeme to bee more bold then blinde Bayard.«53 In the 1677 version, the passage is slightly altered once more, to »seem to be more bold then blind Bayard,«54 a minor example which demonstrates that alterations to the practical and theoretical devise of land by wills occurred alongside writing and technical changes.55 Derrett notes that »editions after his last are defaced with innumerable misprints and errors in citation.«56 The inclusion of relevant statutes as an appendix became commonplace. The use of Latin also evolves between editions; the 1590 edition has a two page handwritten Latin message following the title page, which was expanded to seven pages in the 1611 version, reduced to three typed pages for the 1635 and 1640 copies, and removed entirely from the 1677 version.57 The 1590 version also includes handwritten comments throughout the treatise, on page 33v at the end of the first section, for example.58 These handwritten notes might have been written by Swinburne himself or the publisher at Swinburne’s direction, and were incorporated in later editions.

14There was also considerable fluctuation between the page counts of editions. While editions in the late seventeenth century onward had increasingly better typesetting, some editions were larger than others. The editions in 1635 and 1640 differed in length only by one page, which some have interpreted to mean they are the same edition. However, it appears that one possible motive for the reprinting of the 1640 edition was the inferior quality of the 1635 version. Even by the standards of the early seventeenth century, it was a flawed edition with rampant issues in clarity of writing, page numbering, and text alignment. Some editions only had a marginal increase in page count, yet sections such as devise were increased significantly. Specifically, the 1677 edition decreased in overall page count but the section on devise of land increased by six pages (this was despite the increase in quality of printing—most notably in the typographical respects).59

15Although page count did not significantly change over the first four editions, from the late seventeenth century onward printers began expanding upon the devise of land section. These expansions consisted largely of quotations from statutes and substantive analysis of the case law. The editors of the 1803 edition note their preference for the most accurate version of the treatise, stating:

16Feeling many objections to the sixth edition [1743] of this author, namely, that in the attempt to modernize the text, the editor had not only altered the style and language of Swinburne, but in several instances mistaken, and thereby perverted his meaning, that in others he had omitted whole passages, besides which, the having incorporated his own notes with the text, and without furnishing the means to distinguish them; by which it appeared more like a new work, than a new edition of an old one: for these reasons, therefore, Mr. Powell, fixed on the edition of 1640, as the most correct, and whence the present has accordingly been taken.60

17Curiously, Powell seems either to ignore or be unaware of the edition between his own and the 1743 publication. This point will be further analyzed in relation to the numbering of the nine versions; suffice to say that Powell’s version had a slightly larger section on devise of land than the original 1640 edition.

3. Textual Evolution on Devise of Land

18Devise of wills has always been a contentious topic, as devise is the testamentary disposition of land, i.e., the transfer of real property by the last will and testament of the deceased. However, while many debates were taking place in the surrounding centuries over the ability to transfer real property by wills, Swinburne wrote of its importance, stating that »it shall not be amisse to speake first of the bequeathing or devising of lands, tenements, and hereditaments«61 when discussing what could be left by a will. Swinburne devotes one-seventh of the text to what could be left via wills, totaling c.80 pages (around 14% of his original treatise) on the topic. While other works from the time touch on devise of land, none were so influential and widely-used.62 However, Swinburne’s contribution to devise of wills has not always been appreciated; Professor Mirow states that Swinburne’s1590 edition »provides no treatment of devises of land, apart from setting out the text of the statutes …« and goes on to note that readings on wills in the Inns of Courts must have been sufficient to any need for explanation of the statute.63 While Swinburne did set out the context and scope of the 1536 and 1540 statutes, he also provided conditions in which devise of land was permitted. In subsequent editions, this treatment of devise of land was elaborated upon in dozens of additional pages.64

19In Swinburne’s original two editions he states the following:65

20The rule it is, that this matter of the devise of land, tenements and hereditaments, within this realme of England, with all questions incident thereunto, it is to be determined, according to the lawes temporall of this realme, and is not subject to the rules and decisions of the laws civil or ecclesiastical; … before I go any further, I am to crave this favour (learned professors, and serious students of the laws temporal of this realme,) that for as much as this your fielde, wherein groweth all these questions concerning the devise of landes, does lie so just betwixt me and those other groundes, wherein the marke whereat I aime, is placed, … Touching the bequest or devise of lands, tenements and hereditaments, this appeareth to be a true position, and ground agreeable to the civill law,66 and also the lawes of this realme,67 that lands, tenements or hereditaments, cannot be disposed or devised by will, but in certaine cases, of which some are approved by force of certaine customes,68 within this realme, and some by force of certaine statutes.69

21In the same edition, he writes:

22Now followe certaine other cases authorised by the statutes of this Realme of England, wherein it is lawful to bequeath or devise landes, tenements and hereditaments by will, sometimes wholly, and sometimes in part only, or rateably, according to the nature of the tenure of such landes, tenements and hereditaments, as in the same statutes, which I have here set downe at large doth appeare.70

23It is this statement that Mirow refers to when stating that Swinburne provided no treatment of devise of land. This argument is partially true, in that apart from his discussion on two general principles in which devise of land was permissible, Swinburne’s focus remained on the statutes. However, this issue was remedied in later editions of the treatise, when he added twelve instances in which devise of land was permitted. Therefore, Mirow’s statement is not entirely correct and should be amended to reflect the treatment of devise of land, albeit with preference to the statutes, a fact which the later editions remedied by providing copious notes and additional pages of treatment on devise of land. For instance,71 in the 1677 edition, over nineteen additional pages on the devise of land were added. The first section was titled »What shall be a good devise of lands and tenements; what not: what estate shall pays by the words of the will, whether fee-simple, fee-tail, for life, or other estate.«72 The second was called »Devises of Lands with Limitations and upon Condition. What Condition in a Devise shall be good, what not: what words shall make a Condition, what not: and what Estate shall pays to the Devisee by implication,«73 and the third was named »Devise of Reversions, Remainders, and of Rents, when good, and when not, and to whom.«74 This new section included 118 additional footnotes, demonstrating the author’s extensive research. In the 1728 edition, this section increased to over forty-two pages of additional content with over 240 footnotes.75 The 1728 edition employed extensive practical cases and was well versed in citations of continental treatises, English case law, statutes, and the writing of important English jurists. The 1728 edition not only cited case examples, but also provided direct case reports as examples of successful and unsuccessful instances relating to devise of land. This trend continued in later editions: notably, the Dublin edition of 1793 provided a ‘true’ copy of the will of Sarah Churchill, the Duchess of Marlborough. The use of practical examples of wills and influential cases helped ensure the relevance of Swinburne’s treatise. Interestingly, the final edition in 1803 did not include the additional material on devise of land which had been expanded upon in the previous versions, and instead issued a reprint similar to the 1640 edition.

24While the later editions provided more copious details, even the 1590 edition briefly explained the twelve instances in which lands could be devised by wills:

25Certain cases approved by custome, wherein it is lawful to devise lands, tenements or hereditaments. 1. Gavelkind lands may be divised by will.76 2. The cause wherefore the custom of Gavelkind did continue. 3. Burgage land divisible by will.77 4. To whom, and after what manner Burgage lands be divisible. 5. Whether any other person may devise Burgage lands but a citizen. 6. Burgage tenure a kind of tenure in soccage.78 7. Weather liuerie or feofin be needful, where burgage land is divised. 8. Whether the innocent may bequeath his part of Burgage land otherwise devisable. 9. Of lands devised to certain uses. 10. The custom of devising lands to feoffees reformed. 11. The causes of this reformation. 12 The statues of acts of reformation.79

26While the list of instances of permissible devise of land did not change between the nine editions, the interpretation and discussion were revised across the eighteenth-century publications. These editions also added commentary on statutes and updated the text with relevant statutes as they were passed.80 For example, in the 1728 version (and the 1743 and 1793 editions, but not the one from 1803) following the text of the 1536 Statute of Uses, the author included three paragraphs referencing statutes under William and opinions of Coke. The inclusions state:

27Before this Statute was made, if Lands were limited to one and his Heirs, to the Use of another, the Cestui que Use might take the Profits; and the Person in whom the Freehold was vested was to make Estates according to the Direction of the Cestui que Use, who had only a bare Trust, and had no Remedy against the other for a Breach of Trust, but only in Chancery; but now by this Statute the Possession is transferred to him who hath the Use, and what ever Estate a Man hath in the Use, the same he hath in Possession.
28[second paragraph - citing I Rep. 126 & 136] But several Things are required to the Execution of an Use within this Statute: The First is, that some Person should be seised: But the King, a Corporation, an Alien, one attainted, &c. cannot be seised to the Use of another; nor Tenant in Tail, Tenant by the Curtesy or in Dower; the Cestui que Use must be in Being [citation states See 11 & 12 Will. cap. 16.]; there must be an Use likewise in Being, either in Possession, Remainder, or Reversion, &c. And where one converys Lands to another by Fine, Feoffment, or Common Recovery, to the Use of his Last Will; and afterwards by his Will declares the Uses, &c. this he may do without any Consideration, either of Kindred or Money. [Third paragraph] It seems that Copyhold-Lands are not within this Statute, because the Transferring the Possession to the Use by the Operation of Law, without Allowance of the Lord and the Agreement of the Tenant, would be to the Prejudice of both [citation states - Coke Copyholder, Sect. 54.].81

29These three paragraphs demonstrate an alteration of the text and discussion of material other than relevant new statutes. The statement »Before this Statute was made …,« refers to the pre-1536 statute, and deviates from previous editions which sought only to include relevant new statutes. The alteration or inclusion of additional discussions occurs throughout this edition and the immediate two that followed; the treatise no longer remained entirely true to Swinburne’s version.

30Although the list of twelve cases remained the same across all nine editions, Swinburne developed his analysis of these examples in the editions made throughout his lifetime. Most prominently, Swinburne wrote that three overarching principles existed in these cases, and analyzed their differences in the examples described below, shown in Appendix 1.82

31Swinburne followed this section by copying the text of the Statute of Uses (1536), the Statute of Wills (1540), and the Explanation of the Statute of Wills (1542). He then moved on to discuss the topic of devising goods and chattels by will. The nearest common law treatment of these statutes is found in the Middle Temple reading by James Dyer (1552) and the Lincoln's Inn reading by Ambrose Gilbert (1556); however, Swinburne’s detailed discussion of the multi-faceted aspects of devise of land helped ensure the continued relevance of his treatise, even in subsequent editions with slightly altered elements. Derrett states that »however technical the subject-matter, the same cheerful tone appears, such as his contemporaries (lawyers as celebrated as Coke or as adventurous as Fulbecke) seldom achieved, though their writings were less systematic.«83 Swinburne utilised »above two hundred and twenty-five authors … and about two hundred and seventy-five works, if we exclude the basic texts of the Corpus Juris, the Decretum, Decretales, Clementinae, and Extravagantes84 This is all the more impressive considering Swinburne published this work after practicing for only twenty-three years. Given the breadth of his source material and the complex subject matter he dealt with, Derrett noted that »indeed that seems a short time. Clerke was in the profession forty years before he drafted his Praxes85

32The editors of the 1793 version seem to be unaware of the existence of the 1743 version.86 This could explain why the editor referred to it as the seventh edition; they agreed that the 1635 and 1640 versions were separate but were unaware of the 1743 edition. The exact same passage appeared that was reiterated in the various editions up to the 1728 edition, and this was present in the 1743 and the 1793 editions (but the 1793 edition did not extend the list to include the 1743 edition). Perhaps they omitted the 1743 edition for a reason that remains unclear; however, it is most likely that the editor and printer were unaware of its existence.

33The final edition, published in 1803, did not follow the style of the three preceding editions and in some respects favoured the earlier editions with their focus on statutes. However, the 1803 edition was by no means a mere copy of the versions from the 16th and early 17th centuries; rather, this was the largest edition, printed over three volumes totaling nearly 1250 pages, with additional material. There are a variety of factors that might explain why the treatise was not reprinted after 1803, one of which is the deviation from Swinburne’s initial purpose, that »this one little booke may serve in steed of many great volumes.«87 The final edition in 1803 was expansive and expensive, and the 1250 pages of text could not be sustained and would be replaced by other works. In the same way Swinburne had wished to create a small work, others would now seek to write about the subject in more accessible and concise publications. Further, the growing irrelevance of ecclesiastical law, which was stripped of testamentary authority in the 1800s, may have also contributed to the irrelevance of Swinburne’s writings—editors were unlikely to reprint a text which was no longer true to legal practice. Without much legal relevance, publishers lacked financial incentive to continue reprinting editions. However, it is important to note that Swinburne’s influence did not suddenly end in 1803, even though his work was no longer reprinted.

34Swinburne’s treatise provides an interesting case study of devise of land and textual evolution in early modern England. The nine versions printed during this roughly two-hundred-year period reflect the importance of this text in the development of English law and the education of law students for over two centuries. The treatment of devise of land is a case study representative of wider issues, both within Swinburne’s treatise and broader cultural, social, and legal developments. In Swinburne’s lifetime, »land was still the most important asset.«88 There are considerable variations in the subsequent editions, which allow readers to compare the types of cases in which devise of land was permissible for a period spanning over two centuries.

35With reference to uses, »one plausible explanation for the apparent oversight by legal historians is the careless imposition of equity onto the use by subsequent editors of their work.«89 Derrett is critical of the later editions, stating that »editions after his last are defaced with innumerable misprints and errors in citation.«90 These issues were not limited to the section on devise of land. One such example from the 1793 edition was the removal of »references to customary law … [replacing] it with an explanation that is entirely the editor’s invention:«91

36The usual way in former days to dispose lands which men had by purchase, was be feoffments in trusts; and they directed by their last wills, how those feoffees should dispose the estates; and because a trust was properly under the jurisdiction of a court of equity: That court would compel the feoffee to execute the trust, the case he should refuse to do it at the request of the persons for whom he was intrusted.92

37The 1677 edition made no mention of the idea that only Chancery could remedy against a breach of trust, yet the editor of the 1728 edition included:

38Before this statute was made [Statute of Uses], if lands were limited to one and his heirs, to the use of another, the Cestui que Use might take the profits; and the person in while the freehold was vested was to make estates according to the direction of the Cestui que Use, who had only a bare trust, and had no remedy against the other [a feoffee] for a breach of trust, but only in Chancery; but now by this statute the possession is transferred to him who hath the use, and what ever estate a man hath in the use, the same he hath in possession.93

39The various editions’ inclusions, alterations, or outright removal of sections occurred at the discretion of editors. The editors of the 1803 edition were critical of this and referenced Powell’s decision to reprint based upon the 1640 edition in an effort to avoid such editorial alterations.

4. Devise of land94

40In 1981, Milsom stipulated that the Statute of Uses95 in 1536 »had abolished both [uses and devises] together,« and that although the 1540 Statute of Wills96 incorporated devises though circumventing the old mechanisms by making »it operate directly at law,« the issue of devising land was effectively put to rest (in the opinions of Henry VIII and his advisers upon passing 32 Hen. VIII, c.1.).97 Swinburne, writing fifty years later, devoted a portion of his treatise to the topic of devise of land. Indeed, later editors of Swinburne’s treatise included more material and lengthened the analysis of this section. It is therefore a focal point of this article for two reasons: first, it demonstrates changes in Swinburne’s treatise between editions in both content and analysis, and second, it reflects the fact that the issue of devise of land was not definitively decided by the passage of two successive statutes. This article focuses on freehold land, which was much »altered by the Statutes of Uses and Wills,«98 and leasehold land is not considered.99 A series of important cases in devise of freehold land occurred leading up to Swinburne’s time, and »by the end of the sixteenth century it had been established that, provided the testator took the proper steps during his lifetime and worded his will carefully, it was possible for him to devise land without reference to the Statutes of Wills.«100

41Within the last few decades, it has become increasingly »known that by the late fourteenth and early fifteenth centuries it had become common for landholders to create feoffments to uses to in effect bypass the common law rule prohibiting the devise of freehold land by last will.«101 In Swinburne’s 1590 edition, his treatment of devises and uses included the following:

42there was also some-times used and practised, of devising lands, tenements, and hereditamentes by willes to certain uses, intentes, and trustes; which willes or testamentes of landes, tenementes or hereditamentes in feoffees handes were for the time accompted and taken for good. But this custom was reformed in many things…102

43This section of Swinburne’s treatise deals with difficult issues, among which is »the question of the presence—or absence—of a power to devise.«103 Indeed, contemporaries »saw a distinction between a feoffment to the uses of a last will, and the power of devise under the Statute of Wills 1540.«104

44In the immediate period leading up to Swinburne writing his treatise, several major cases occurred, of which two will be noted. First, the relation between uses and devise shall be outlined:

45Medieval uses can be divided into two great classes, those which transmitted land from one generation to the next and those which did not. [i] Uses of the [second] class were created to secure debts or other obligations, [ii] to avoid creditors, [iii] to evade litigation, and [iv] to circumvent the Statute of Mortmain.105

46Richard Helmholz notes that fourteenth-century ecclesiastical courts enforced uses and that the main purpose of the feoffment to use was to permit the feoffor to devise land.106 The Statute of Uses altered the pre-1536 tradition which allowed for feoffments to the uses of a last will, »by executing uses and passing legal title from the feoffees to cestui que use107 Recent research has argued that »the legislation relating to loss of feudal revenue eventually culminated in the ‘assault on uses’ in the 1520s, the Statute of Uses 1536 and the subsequent political compromise of the Statute of Wills 1540.«108 Some select cases have been outlined in both uses and devises to contextualize Swinburne’s treatment in the late sixteenth century.109 When considering the relatively substantial expenses and amount of effort that publishers went to in order to expand and change the relevant sections on devise of land, it is curious why Swinburne’s treatise was not cited for this topic.110

5. Swinburne and Uses

47Swinburne treated uses under the heading: certaine cases approoued by custome, wherein it is lawfull to deuiselandes, tenementes, or hereditaments.111 Swinburne »appreciated the nature of uses and the effect of the statute while writing the treatise that later English courts routinely cited for testamentary issues.«112 He wrote on uses that:

48devising lands, tenements, and hereditamentes by willes to certain uses, intentes, and trustes; which willes or testamentes of landes, tenementes or hereditamentes in feoffees handes were for the time accompted and taken for good.113 [New paragraph] But this custome was reformed in manie things …114

49Swinburne situated the Statute of Uses as this reform, arguing that it »aimed to protect heirs and address uncertainties surrounding other legal rights that fifteenth-century uses caused.«115 As Hannay demonstrates, the aim within reform of uses may have been in line with feudal revenue via heirs, rather than »to protect heirs« themselves. Swinburne »conceptualised the use alongside other customary exceptions to the common law that allowed devises of land. Namely, Gavelkind, a customary division of lands amongst all heirs, and land held in Burgage tenure divisible by will.«116

50Swinburne’s treatment of devise of land, as well as the subsequent alterations and additions to the versions of his treatise following his death, reflect the importance of this subject and the failure of the statutes of 1536 and 1540 to resolve its issues. Devise of land received considerable treatment in each edition, and references by the common law courts would be made to this topic in several cases from the seventeenth to nineteenth centuries.117 Swinburne’s treatise, in all its nine editions, influenced successive generations of English laws, both common and ecclesiastical.

6. Conclusion

51This article seeks to reassess how we understand Swinburne’s A briefe treatise of Testaments and last Willes, its interpretation of devise of wills, and our knowledge of early modern textual evolution from the sixteenth to nineteenth centuries. Devise of land is only one example of the shift occurring in Swinburne’s treatise and its influence on English law. As Helmholz has shown, when Swinburne was cited, those citations were primarily legal citations, demonstrating that lawyers made use of his coherent and learned treatments of the civil law on wills and testaments.118 This treatise helped educate and train law students over two centuries, thereby ensuring its place in the history of influential jurisprudential writing. It explains the influence of continental jurisprudence in England after the Reformation119 and the later decline of such influence. Swinburne’s treatise reflects wider trends of the period, such as the decline of continental learned sources, a growing focus on English statutes and case law, and the creation of more readily accessible material. Considering Swinburne’s career as an ecclesiastical lawyer, it is surprising that his treatise would come to represent such change, but the work was bolstered by his practical legal experience.120

52Nine editions of Swinburne’s first treatise were published between 1590 and 1803. As outlined above, this article makes two claims. First, the debate surrounding the 1635 and 1640 versions was most likely not due to the copies being identical but rather the inferior quality of the 1635 version, which required a better version to be produced only five years later. This demonstrates the influence of the treatise; the need for a more legible version was quickly realised by publishers who understood the potential to profit from producing a better version just five years later. Secondly, the evolution of Swinburne’s treatise on the devise of law demonstrates the unique traits of each version, which must be considered distinct. In particular, the sections on devise of land via wills altered both the scope of when such action was considered acceptable and the rationale behind such conditions. Ultimately, Swinburne’s treatise represents one of the great English works on wills and testaments and was an important source for legal education in England. This treatise is only one example of the large topic of the validity and influence of continental jurisprudence in England after the Reformation.

53Appendix 1:121 The first case wherein by custome of this realme of England it is lawfull for a man by his laste will or testament, to devise or bequeath landes, tenements or hereditaments, is this, namely, when lands, tenements or hereditaments are holden in Gavel-kind: for such landes, tenements or hereditaments by ancient custome, maie be given or devised by wil,122 (the same otherwise being duelie made). For after that William duke of Normandie, had invaded and conquered all England, Kent onelie excepted, at last also the Kentish-men yeelded, but upon condition that they might enjoy their ancient customs of Gavelkind, which was graunted onto them, & since has continued:123 amongst which customes, being verie large and beneficiall, this is one; that they which holde landes in Gavelkind, may giue and fell the same, without license asked of their lordes: sauing unto the lordes, the rents and services due out of the same tenementes.124 [new paragraph] The second cause is, when the lands or tenement be holden in Burgage tenure.125 For it is the custome of diuers Cities and Boroughes of this land, (as in London, Yorke, Oxford, &c.) that such persons as are seased of landes, tenements or hereditamentes, lyinge and being in such cities or boroughes, and hold the same in burgage tenure, maie by their testamentes or last willes, give or bequeath the same to whom they will,126 to holde in fee simple, or in fee taile, or for life or yeeres, or otherwise, and such bequeath or devise is good,127 the will being lawfullie made, and prooved before the ordinarie, as touching the goodes and chatelles bequeathed in the same, and enrowled before the maior of the said citie or borough.128 Howbeit, it is not alwaies necessarie, that the testament be proved before the ordinary, or inrolled, wherein landes onelie, and no goodes and cattelles are bequeathed:129 For in some places by the custome there used, the devisee maie enter to the landes devised, of his own authoritie, without any probation or inrolment praecedent, and in other places hee is to bee put in seasin, or possession by the Balise.130 [The following italicised passage was added by Swinburne in the 1611 edition but is not present in the 1590 edition] Neyther is it necessary, that the will wherein burgage lands is devised, should be written according to the forme prescribed in the Statute of Henry the eighth,131 the said land being devisable before the making of that statute, prescribing a forme of the devise of lands, which could not passe by will, before the making of that statute, as I have formerly declared.132 And it seemeth not to be needeful, to the validitic of the devise in this case, that the testator should be a citizen; or burgess of that citie or boroughe where the landes or tenements devised doo lie: but it is sufficient, if the landes and tenementes be holden in burgage:133 For that not he onelie is said to holde in burgage, who is a citizen or burgesse of the place where the lands or tenementes be, and holdeth of the kinge, or other lorde landes or tenementes, lying in the citie or borough, yeelding therefore to his said lord a certaine yeerelie rent: but he also that is no citizen or burgesse, which holdeth of anie lord landes or tenementes in burgage, yeelding upon him a certaine rent by the yeere,134 which tenor in burgage is but a kind of tenure in soccage.135 However there is this difference betwixt citizens, burgesses, and free-men, and those which be not citizens, burgesses or free-men, that is to say, citizens, burgesses and free-men, may bequeath their burgage landes to Mortmain, which others can not doe.136 And in some borough by the custome thereof, a man may devise by his testament lawfullie made, his landes and tenementes, which hee hath in fee-simple within the same borough at the time of his death, and by force thereof the divisee, after the death of the testator, maie enter into the tenementes to him devised, to have and to holde to him after the sorme and effect of the devise, without anie libertie of seasin thereof to be made unto him.137 But if there be two jojnte tenauntes in fee-simple, within one borough, where the landes and tenementes within the same be devisable by testament, if one of the said jojnte tenants devise that which to him belongeth, by testament and die, this devise or legacie is voide:138 The reason is, for that no devise can take effect til after the death of the testator, who did bequeath and devise the same, but by his death all the lande dooth incontinentlie by the lawe of this realme, come to the survivor, who neither claimeth nor hath anie thing by devise but of his owne right by the survivor according to the course of the lawe of this lande, and for this cause such devise is voide.139 [New paragraph] Another case there was also some-times used and practised, of devising lands, tenements, and hereditamentes by willes to certain uses, intentes, and trustes; which willes or testamentes of landes, tenementes or hereditamentes in feoffees handes were for the time accompted and taken for good.140 [New paragraph] But this custome was reformed in manie things, for divers good considerations: namelie, because by the common law of this realme, lands, tenements & hereditaments: be not devisable by testament: and also for that such devises were not onelie hurtfull to the heire of the testator, beeing manie times thereby disinherited, but also for the divers other inconueniences did by reason thereof insue: as that the lordes lost their wards, mariages, reliefs, harriots, escheates, aids, pur faire fitzchiualer & pur file marier. Furthermore by occasions of suche willes, and other conueiaunces, to secret intentes, uses and trustes, men could not be certainelie assured, of anie landes by them purchased, nor knew not against whom they should use their actions & executions, for their rights and titles. Besides this, men married lost their tenaces by the curtesie, women their dowries; finally the prince himselfe lost the profits of the landes of persons attained: For reformation whereof a statute was made in the time of King Henrie the eight, and enacted as followeth.141

Aufsatz vom 5. Januar 2024
© 2024 fhi
ISSN: 1860-5605
5. Januar 2024

DOI: https://doi.org/10.26032/fhi-2024-001

  • Zitiervorschlag Matthew Cleary, Henry Swinburne and Devise of Land: The Textual Evolution of A briefe treatise of Testaments and last Willes and its Reflection on the Law, 1590-1803 (5. Januar 2024), in forum historiae iuris, https://forhistiur.net2024-01-cleary