¹ “The Law of Real Property” (1879), reprinted in Fisher, H.A.L. (ed.), Collected Papers of F. W. Maitland (Cambridge, 1911), vol. 1, at p. 190.Google Scholar

² Literally so: Faryngton v. Darell (1431) Baker & Milsom 73, per Babington C.J.;Google ScholarReadings and Moots at the Inns of Court, 105 Selden Soc. 251, per Frowyk (1492).

³ For the earlier history of the contingent remainder, see Bordwell, P., “The Common-Law Scheme of Estates and the Remainder” (1949) 34 Iowa Law Review 401–429;Google Scholar“The Common-Law Scheme of Estates Revisited” (1965) 50 Iowa Law Review 677 at pp. 698–705;Google ScholarMilsom, S.F.C., Historical Foundations of the Common Law (2nd ed., 1981), pp. 194–196;Google ScholarBaker, J.H., Introduction to English Legal History (3rd ed., 1990), p. 314.Google Scholar

⁴ See Anon (1454) Hil. 32 Hen. VI, Statham Abr., Done pl. 6; Fitz. Abr., Feffements, pl. 99 (“pertotam curiam”). This was foreshadowed in Salman v. Wille (1388) Pas. 11 Ric. II (Ames Fdn.), p. 283.

⁵ Colthirst v. Bejushin (1550) Plowd. 21. The defendant, Peter Bewshin or Bewchin, is “Beiushin” in the plea roll: CP 40/1141, m. 441; Baker & Milsom 78.

⁶ Plowd. 34v (translated from the French).

⁷ Mich. 27 Hen. VIII, fo. 24, pl. 2. Brooke abridged it (Bro. Abr., Done, pl. 3; Fine, pl. 5) as meaning that Mountague opposed Fitzherbert's opinion that the remainder was good; but it seems from the year book that he merely questioned his opinion as to the time of vesting. The only MS. text (Anthony Gell's book, Lib. Congress Law MS. 15, 27 Hen. VIII, ff. 41v–42r) is the same as the print.

⁸ The term was adjourned until the morrow of All Souls because of plague: CP 40/1087, m. 1 (writ of common adjournment, 6 Oct. 1535).

⁹ See Holdsworth, W.S., History of English Law, vol. VI (1903; 4th ed., 1935), p. 253, note 6; vol. VII (1925), pp. 87–88;Google ScholarMilsom, , Historical Foundations (1969), pp. 165–166 (replaced in 2nd ed.);Google ScholarSimpson, A.W.B., A History of the Land Law (2nd ed., 1986), p. 213, note 10.Google Scholar

¹⁰ The king still appointed a “Banner-bearer of the Field”, but he was remunerated with fees rather than land: Barkley v. Sulyard (1562) Dyer 176a.

¹¹ Melton v. Earl of Northumberland (1535) CP 40/1086, m. 428 (copy of writ of scire facias, Trin. 1535, returnable in the octave of Michaelmas); CP 40/1087, m. 138 (imparlance, Mich. 1535).

¹² CP 25/289/54/109 (octave of St. John, 8 Ric. II, but recorded in Michaelmas term); printed in de Fonblanque, E.B., Annals of the House of Percy (1887), vol. I, pp. 510–514.Google Scholar The fine was levied “per preceptum domini regis”. The same limitations and conditions occur in the licence to alienate, dated 1 Dec. 1383: Cat. Patent Rolls 1381–85, p. 392. They are also recited in the inquisition after Maud's death in 1398: C 136/106/3; Cat. Inq. post mortem, vol. XVII, 15–23 Ric. 11 (1988), pp. 467–473, nos. 1246–1247. Nathaniel Johnston sets out the last in his history (1677) of the family: Brit. Lib. MS. Egerton 3402, fo. 121r (see note 38, below). See also Scott, D., “Recent Discoveries in the Muniment Rooms of Appleby Castle and Skipton Castle” (1917) 18 Transactions of the Cumberland and Westmorland Antiquarian and Archaeological Society (New series) 189–210, at p. 207.Google Scholar

¹³ I.e. three silver pikes upon a red field. The record uses L. lucius; the allusion to the name Lucy is obvious. The armorial term is derived from the standard Anglo-French luce, which is also found in the year-books: Baker, J.H., Manual of law French (2nd ed., 1990), p. 142.Google Scholar In the Lucy arms, the pikes were always depicted as hauriant (i.e. swimming palewise, or vertically). They may be seen on the gate-tower of Cockermouth castle, built by the 1st earl.

¹⁴ “Ita quod si [Henricus] arma predicta quarteriata modo forma et locis predictis statim non gesserint [or break any condition relating to Maud's possession of other lands]. … extunc supradictus status de predictis castro, honore … omnino cessaret, vacuus esset, adnullaretur et pro nullo penitus haberetur, et tune predicta castrum, honor … statim post mortem predictorum comitis et Matillis et heredum suorum ac heredum predicte Matillis predictorum rectis heredibus ejusdem Matillis remanerent.”

¹⁵ This was when he became a knight of the Garter. According to the register of the order, he was installed on 7 May: Anstis, J. ed., Register of the Order of the Garter (1724), vol. II, p. 388. The banner was presumably brought in on the vigil.Google Scholar

¹⁶ The late G.D. Squibb could find no examples before the early 18th century: 69 L.Q.R. at p. 220.

¹⁷ Camden, W., Remaines. … concerning Britaine (1605), p. 125Google Scholar (vague reference to assumption of Lucy arms); Prynne, W., Brief Animadversions on … the Fourth Part of the Institutes (1669), p. 66;Google ScholarAnstis, J. ed., Register of the Order of the Garter (1724), vol. 1, p. 260;Google Scholar and note the old verse chronicle of the Percy family, quoted below at p. 254.

¹⁸ Miss Stokes, E., in Complete Peerage, vol. IX, p. 712Google Scholar(k) (“the tenure of quartering the arms of Lucy with those of Percy”). But using the arms was not reserved a service.

¹⁹ Litt., §347.

²⁰ Litt., §325–331; Madox, T. ed., Formulare Anglicanum (1702), p. 405, no. 736Google Scholar (“Et si contingat. … quod bene liceat prædicto [donatori] aut hæredibus suis prædictam moram intrare et in pristino statu retinere”).

²¹ Sutton's Case (1366) Hil. 40 Edw. III, fo. 9, pl. 18; Baker & Milsom 65. Cf. Champernon's Case (1426) Pas. 4 Hen. VI, fo. 19, pl. 6, where a similar remainder is assumed to be a reversion.

²² This seems to be the import of the words “statim post mortem predictorum comitis et Matillis et heredum suorum, ac heredum predicte Matillis predictorum”, which refer to the two first entails.

²³ I.e. where it joins the River Derwent.

²⁴ For the Lucy title to Cockermouth, see Graham, T.H.B., “The Honour of Cockermouth” (1929) 29 Transactions of the Cumberland and Westmorland Antiquarian and Archaeological Society (New series) 69–81.Google Scholar

²⁵ According to modern peerage doctrine—though she was not so regarded at the time—she became suo jure Baroness Lucy after the death of her niece Joan in 1369. She was the widow of the earl of Angus when she married Percy in 1381. See Complete Peerage, vol. VIII, p. 256; vol. IX, p. 712.

²⁶ Jackson, W., “An Historical and Descriptive Account of Cockermouth Castle” (1880) 4 Transactions of the Cumberland and Westmorland Antiquarian and Archaeological Society at p. 121.Google Scholar

²⁷ It is shown on his seal (used in 1397) and in the Willement Roll (1390s): Longstaffe, W.H.D., The Old Heraldry of the Percys (Newcastle upon Tyne, 1860), p. 18;Google Scholar illus. in Fonblanque, , House of Percy, vol. 1, fac. p. 80;Google ScholarBrenan, G., History of the House of Percy (ed. Lindsay, W.A., 1902), vol. I, fac. p. 28.Google Scholar

²⁸ Complete Peerage, vol. IX, pp. 712–715; CCR 1413–19, p. 314. The first earl was slain at Bramham Moor in 1408. His son Henry (“Hotspur”) predeceased him, having been slain at Shrewsbury in 1403.

²⁹ The castle and honour of Cockermouth were granted by Edward IV to the earl of Warwick (Cal. Patent Rolls 1461–67, pp. 149, 434), who was himself attainted of treason in 1471. They were restored to Henry Percy (two years after his restoration to the earldom) in 1472: Rot. Parl., Vol. V, p. 16 (and cf. Cal. Patent Rolls 1467–77, p. 206).

³⁰ Longstaffe, Heraldry of the Percys, pp. 28 (seal of second earl), 37 (seal of fourth earl), 46.

³¹ Quartering means the division of a shield into four or more compartments (“quarters”), each containing arms. Where only two coats are to be thus disposed (e.g. as required by the 1384 fine), the first arms are placed in the first and fourth of four quarters, and the second in the second and third. A grand quarter refers to a quarter which is itself quartered.

³² Longstaffe, Heraldry of the Percys, p. 54 (seal used in 1528, banner recorded in Coll. Arms MS. I.2); Fonblanque, House of Percy, vol. I, fac. p. 80 (fig. 19: seal).

³³ Brit. Lib. MS. Add. 6298, ff. 156v, 241r: from an early 17th-century list of knights of the Garter with their arms in trick, possibly based on lost stall-plates. (No stall-plate is recorded in E.H. Fellowes, Knights of the Garter (1939).) The Northumberland arms are here slightly different in that the first quarter of the five is simply Percy quartering Lucy.

³⁴ Brit. Lib. MS. Harley 2076, fo. 33v (more or less contemporary notes of arms of knights of the Garter).

³⁵ Some of the earl's contemporary knights of the Garter (previous note) used even more quarterings.

³⁶ Longstaffe, , Heraldry of the Percys, pp. 62–63. 563 of them were inherited wholesale from the Seymours.Google Scholar

³⁷ 27 Geo. II, c. xiv, cited by G.D. Squibb in 69 L.Q.R. at p. 224.

³⁸ Biographical notes on the Meltons in Brit. Lib. MS. Egerton 3402, at ff. 118v–124r. This MS., which furnishes some valuable evidence noted below, is an essay on the history of the ancestors of Lord Darcy, compiled in 1677 by Dr. Nathaniel Johnston (1629–1705), of King's College, Cambridge, and Pontefract, Yorkshire, a keen local antiquary. Until 1947 the volume was at Hornby Castle, in the library of the dukes of Leeds: H.M.C., Eleventh Report, Appendix, pt. VII, p. 43. Unfortunately, the supporting muniments do not seem to have survived. Johnston's almost illegible draft of the Melton notes in Bodl. Lib. MS. Top. Yorks. c. 42, ff. 20r–19r (reversing) adds nothing.

³⁹ Letters & Papers of Henry VIII [hereafter Letters & Papers], vol. III, p. 942 (granted jointly with Sir Henry Wyat, 1522).

⁴⁰ See his letter to Cromwell, p. 259, below. The John Melton, gentleman of the king's household, who was sued for dues by the Middle Temple in 1498 (CP 40/946, m. 543), and again in 1500 and 1504 must therefore be his father, who was knighted in 1505. The date of our Sir John's knighthood is unknown; it does not occur in lists of ceremonial dubbings. He was not a knight in 1522 (last note) but is named knight in June 1530: Letters & Papers, vol. XII, pt. ii, p. 71. Cf. John Melton, esquire, of Aston, Yorks., sued by the Middle Temple for dues in 1530: CP 40/1067, m. 77.

⁴¹ The Latin may be ambiguous, but in Tudor and later heraldry a standard (standardum) is quite different from a banner. A banner is a three-foot square flag displaying arms. A standard never displays arms; it is an elongated flag with the cross of St. George next the staff and the remainder parted lengthwise in livery colours, with crest, war-cry and badges. An earl's standard at this period was six yards long: see Lord Howard de Walden, Banners, Standards and Badges from a Tudor Manuscript in the College of Arms (1904), introd.

⁴² SeeIves, E.W., Anne Boleyn (1986), pp. 77–83.Google Scholar It is impossible to be sure now whether there was a formal engagement or not. Northumberland eventually denied it, but in circumstances where he may not have felt entirely free to express the truth.

⁴³ Bean, J.M.W., The Estates of the Percy Family 1416–1537 (Oxford, 1958), p. 148.Google Scholar

⁴⁴ Ibid., p. 151, citing a lost indenture of 7 July 1531 (recited in the indenture of 3 Feb. 1535 whereby the estates were returned to the earl). By the 1531 indenture, the castle and honour were bargained and sold to Sir Brian Tuke, Christopher Hales Att. Gen., Baldwin Mallet Sol. Gen. and Thomas Cromwell, to the use of the king, on the terms that they would be returned if the earl repaid the money to the king: C54/403, no. 17. Bean says, “that the estates were actually conveyed to the Crown is confirmed by the existence of the appropriate foot of fine”; but the fine (next note) does not mention the king.

⁴⁵ CP 25/2/5/28/15 (quindene of St. John, 23 Hen. VIII). The conusees were Lord Montacute, Sir Anthony Fitzherbert, Reynold Pole, Thomas Wharton esq., Christopher Hales Att. Gen., William Walsingham esq., Henry Whitereason and Thomas Horwode; the premises were acknowledged to be the right of Fitzherbert and were granted to the conusees and the heirs of Fitzherbert for £10,000. In the same file there is a final concord of Cockermouth levied in 1514 by the fifth earl and his wife Katherine to the archbishop of Canterbury and other nominees (including the attorney-general): CP 25/2/5/28/1. The occasion is not known.

⁴⁶ Close Roll, C54/403, mm. 9–13, no. 17. (This is the roll cited by Bean, op. cit., as C54/430.)

⁴⁷ It is a close coincidence—though any connection is elusive—that on 12 May 1535 Melton was distrained to do fealty for the manor of Kingsclere, Hants., which he was alleged to have entered on his father's death in 1510: Communia of the King's Remembrancer of the Exchequer, E159/314, “Recorda” for Trin. 1535, m. 13.

⁴⁸ The evidence is garbled. Nathaniel Johnston, op. cit., Brit. Lib. MS. Egerton 3402, fo. 124r, wrote: “This Sir John it seemes tooke advantage of the adhering [presumably John Percy, but something here omitted] King Richard the 3d who was taken prisoner at Bosworth Field [sic] to make his claime to the lands of Lucy, for I finde among the extracts of records etc. in the custody of the noble Conyers Lord de Arcy and Mennel a note I suppose taken out the act of Parliament made in the beginning of H. 7th reigne when this John Earl of Northumberland was pardoned, provyded alway that the act nor anything there conteined shall be in any wise hurtfull or prejudiciall unto Sir John Melton” or anyone else claiming title to the honour of Cockermouth. But John [Nevill] was earl of Northumberland from 1464 until 1470, when Henry Percy (d. 1489) was restored; the act of restoration in 1472 (note 29, above) has no saving for Melton. On fo. 124v, Johnston copies an undated petition to the king (attributed by him to the younger Sir John Melton) claiming Cockermouth as forfeited for treason.

⁴⁹ Re Lord Dacre of the South (1535) Pas. 27 Hen. VIII, fo. 7, pl. 22, at fo. 9; Baker & Milsom 105, at p. 108. Serjeant Mountagu e did not become a king's Serjeant (i.e. with responsibilities as a law officer of the Crown) until 1537.

⁵⁰ Public Record Office, SP 1/122, fo. 130r. Also present, besides the two Serjeants, were William Coningsby and John Pakington, benchers of the Inner Temple. The note was written by Thomas Palmer, an attorney.

⁵¹ An undated memorandum in the Darcy papers refers to a meeting with Lord Darcy “ayther at Stepney or at London oon day next weke for Mr. Melton is matier”: SP 1/122, fo. 9v.

⁵² Complete Peerage, vol. IV, p. 75.

⁵³ CP 40/1086, m. 428 (copy of writ); CP 45/8, m. 24 (remembrance by Mr. Prothonotary Jenour).

⁵⁴ These muniments must have been Nathaniel Johnston's source (note 38, above). Johnston (Brit. Lib. MS. Egerton 3402, at fo. 126r) also mentions the importance of Melton's property to Sir George after 1537 (when his father was attainted), calling it a tabula post naufragium. Sir George was restored to the barony in 1548 and died in 1558.

⁵⁵ Public Record Office, SP 1/113, fo. 201r. What appears to have been a draft of this letter is copied by Nathaniel Johnston, op. cit., Brit. Lib. MS. Egerton 3402, at fo. 125r–v.

⁵⁶ This may be the point of Mountague's question whether the remainder took effect before it fell in, though he seems to be arguing against his client on this point. There is a general saving in s. 32 of the 1536 Act (n. 57 below) for preserving remainders in the Percy estates, but this presumably refers only to remainders subsisting in 1536.

⁵⁷ 27 Hen. VIII, c. 47. The statute extended t o all the earl's castles, honours and lands, without listing them.

⁵⁸ The statute empowered the earl to make a jointure, and to charge the estates with £4,000 (i.e. to devise land worth £500 a year for eight years) to discharge his debts. But it provided that any alienation by fine, recovery, deed, or other assurance, should be void.

⁵⁹ SP 1/87, fo. 107r (17 Dec. [1535], referring t o the “great mater betwene the kynges majesty and me”, and offering a bargain, presumably that embodied in the statute of 1536; wrongly dated 1536 in pencil, and assigned to 1534 in Letters & Papers, vol. VII, no. 1550); Brit. Lib. MS. Egerton 2603, fo. 22 (letter of 2 Feb. [?1536], declaring his determination to make the king his “heir”), printed in Collier, J.P., “Some unpublished Particulars concerning Henry Algernon Percy. … ” (1848) 33 Archaeologia 1, 4;Google Scholarde Fonblanque, E.B., Annals of the House of Percy (1887), vol. 1, pp. 470–471Google Scholar (with photogravure of original; assigned to 1537); Letters & Papers, vol. VIII, no. 166 (assigned t o 1535).

⁶⁰ SP 1/87, fo. 107r.

⁶¹ So argues Fonblanque, House of Percy, vol. I, p. 472. The letter of 2 Feb. (last note) refers to the “debylytery [debility] and unnaturallnes in thos of my name”.

⁶² The remembrance rolls of John Jenour, second prothonotary of the Common Pleas, contain three rules for the earl to answer in Hilary term 1536: CP 45/8, m. 24 (“r. [die] Veneris post festum Pauli; habet ulterius [diem] Veneris post festum Purificationis peremptorie; habet ulterius [diem] Mercurii post crastinem Purificationis peremptorie”). The same term, while the suit was pending, a fine was levied to the king of the honour of Cockermouth (not mentioning the castle), and various manors, for an expressed consideration of £4,000: CP 25/2/5/28/20.

⁶³ Melton v. Earl of Northumberland (Pas. 1536) CP 40/1089, m. 438 (“Et predictus nunc comes dicit quod per quendam actum in parliamento … Et sic idem nunc comes dicit quod ipse tenet predicta castrum, honorem. … sibi et heredibus de corpore suo legittime procreatis, remanere inde dicto domino regi et heredibus suis in forma predicta spectans. Et ulterius idem nunc comes dicit quod ipse predicto quinto die Februarii anno vicesimo sexto supradicto et postea habuit castrum, honorem … sibi et heredibus masculis de corpore suo exeuntibus virtute finis predicte. Et hoc paratus est verificare. Unde non intendit quod justiciarii hic dicto domino rege nunc inde inconsulto in loquela predicta ulterius procedere velint etc. Et super hoc dies datus est tam prefato Johanni Melton petenti quam predicto nunc comiti hic a die Sancti Johannis Baptiste in xv dies in statu quo nunc. Et dictum est eidem Johanni Melton quod interim sequatur penes dictum dominum regem nunc etc.”).

⁶⁴ Johnston, Nicholas, op. cit., Brit. Lib. MS. Egerton 3402, ff. 124v–125r (which is almost in modern orthography, here standardised).Google Scholar

⁶⁵ Copied in Johnston, Nathaniel, op. cit., Brit. Lib. MS. Egerton 3402, fo. 125v.Google Scholar

⁶⁶ Melton v. Bever (1537) CP 40/1093, m. 544 (debt for £35 on an indenture of lease of a game of conies at Kingsclere); CP 40/1095, m. 646d (verdict and judgment for the plaintiff). The plaintiff is described here as Sir John Melton of Aston, Yorks.

⁶⁷ Letters & Papers, vol. XI, p. 208, no. 519(4) (surrendered on 1 Sept. 1536).

⁶⁸ 33Archaeologia at p. 5 (citing Lambeth Palace MS. 695); Fonblanque, House of Percy, vol. I, p. 477. Numerous writs of dower were brought by her in 1539–40, though not in respect of the Cumbrian estates: e.g. CP 40/1102, m. 141 (v. Arundell), m. 149 (v. Johnson), m. 150 (v. Gresham), m. 346 (v. Radclyff); CP 40/1103, m. 557d (v. Kytson); CP 40/1107, m. 148 (v. Popley).

⁶⁹ As a further safeguard, the earl had on 31 Aug. 1536 made an outright grant of all his castles, honours, lands, tenements and franchises in England, Wales and Calais, to the king and his heirs for ever: Close Roll, C54/407, no. 65. This grant would not in itself, of course, have destroyed the remainders in the 1384 entail.

⁷⁰ Cockermouth passed to the Crown yet again when Thomas was attainted of treason in 1571, and was temporarily seized in 1605 when the earl of Northumberland was suspected of implication in the Gunpowder Plot.

⁷¹ Case of Mines, Att.-Gen. v. Earl of Northumberland (1566–68) Plowd. 310. It had been reported on the earl's death that there was believed to be gold and silver in the honour of Cockermouth: Letters & Papers, XII, pt ii, p. 161, no. 398.

⁷² Complete Peerage, vol. VIII, p. 256 (d. 26 Feb. 1545). In 1541 the Crown recovered £80 against him upon a bond given to Wolsey and others in 1515: Att.-Gen v. Melton (1541) CP 40/1110, mm. 589, 612 (judgment upon non est informatus). This has no apparent connection with the Cockermouth litigation.

⁷³ See Jackson, W., “An Historical and Descriptive Account of Cockermouth Castle” (1880) 4 Cumberland and Westmorland Antiquarian and Archaeological Society at p. 127;Google ScholarCurwen, J.F., “Cockermouth Castle” (1911)Google Scholaribid., vol. 11 (New series), p. 148.

⁷⁴ Simpson, A.W.B., Leading Cases in the Common Law (Oxford, 1995), pp. 11–12.Google Scholar

⁷⁵ This was Brooke C.J.'s view of the case: Bro. Abr., Fines levies, pl. 5 (“fynes ne sont uses sur conditions. … mes uncore si soyt prise ceo est bon. … et videtur bon reason, quar homes veyer in auncient fines straunge matters issint que videtur que fines sont come parties sont agrees”). Brooke was a young barrister of the Middle Temple in 1535.

⁷⁶ Professor Simpson (Leading Cases, pp. 13–44) has shown how the queen came to be involved in the Shelley family wrangles. But the “rule” in this case was not a major juridical development; the new thinking lay in treating the year-book cases on remainders (which had a feudal rationale) as laying down a principle of construction applicable to uses.