Chapter VIII: Front Matter (8)

A man purchases _feudum novum, ut antiquum_, and dies without heirs of his body. This feud is, by the constitution of it, presumed to have descended from some of his ancestors. To find out who is that ancestor, it was likely to have descended from, you must look at the law of descents: the father, in the first place, is supposed the person. His children, that is, the brothers or sisters, or their descendants, in the first place; if none of them, the grandfather by the father is supposed the person; then the grandfather’s descendants. The uncles and aunts by the father, and their descendants, succeed in the second place. If none of them, then the great grandfather’s by the grandfather and father descendants, the great uncles and aunts, and their posterity; and if there are none of them, you still go a step higher in the male line, till you can trace it no farther. But now you begin to invert the rule of tracing up in the male ancestors, and so downwards, and trace up to the female ancestor of the males, as supposing the estate descended from her, or her ancestors. For instance, I have supposed the descendants of the male line have failed in the great grandfather. His wife, therefore, the great grandmother, is supposed the first purchaser; for, upon account of the probability of the inheritance coming through males, I trace up to her through the father and grandfather; her heirs, therefore, shall succeed, first, lineal, then collateral, in the same manner as if the estate had descended from a remote ancestor of her’s. If none such can be found, we descend another step, namely, to the grandmother by the father, and suppose the estate to have come from her line; and then heirs, first lineal, then collateral, succeed according to their several ranks. If none of these, so that there is no kindred on the side of the father, the presumption is, that this supposed antient feud came from the mother’s family, and therefore the heirs of her male ancestors are to be traced up, and discovered in the same manner; and whenever they fail, the heir of the most remote female ancestor, all through males; and failing them, the heir of the next most remote, and so on, until the blood of the mother is spent; and then the estate, for want of heirs, reverts to the lord, of whom it is holden.

Such is the rule of descents of new purchases granted as if they had been ancient inheritances; but this rule was, on the Continent, and anciently in England, confined to such grants, and them only, wherein this clause appeared in the investiture. But in the reign of Stephen, his necessity of gaining adherents, and the same necessity of his competitor Henry the Second, occasioned so many grants of this kind to be made, some originally, and others on the surrender of old ones, that it hath since become the common law of England, that purchases, that is, new acquisitions, are descendible to any relation, however remote[200].

It will be necessary to say something as to _feminine feuds_, which are a deviation from the strict principles of the ancient law, which excluded them and their descendants entirely. They first arose from the woman’s being the principal consideration of the grant; as when a lord gave lands in marriage with his daughter, sister, niece, kinswoman, or any other female: here the lands being partly given in consideration of the female blood, it was reasonable they and their descendants should be inheritable. But this was still an exception to the general law, and confined to those grants wherein it was mentioned, until the number of those grants, at length prevailed to have this order of succession considered as the general law, and the succession of males remote, in exclusion of a nearer female (as in case of tail male) considered as an exception. The monarchy of France, however, and of many of the principalities of Germany, have retained the antient feudal law, in absolutely excluding females and their descendants.

The descent of imperial crowns to females, was of a much later date, than that of lower fiefs: for here a manly capacity was looked upon as indispensibly requisite. The first step was admitting a male representative for them, a husband or a son. This began in Spain. Pelagius, who was of the blood royal, having gathered a few of the Spanish fugitives together, after the Moorish conquest, founded a pretty monarchy in the mountains of Asturias. His son Favila dying without issue, the crown was given to his daughter’s husband, and this continued the rule for many ages, where males failed. But where the son of such female heir was of sufficient age to mount the throne, he of course excluded both mother and father. At length, in the thirteenth century, Europe, for the first time, saw a woman solely invested with royalty, Joan the first of Naples; for Henry the first of England’s project in favour of his daughter Maud, as we have said before, had miscarried. Margaret of Denmark, Sweden and Norway, Joan the second of Sicily, and Isabella of Castile, followed in the next century. In the following century came Mary and Elizabeth in England, and many since in all parts of Europe; so that at present the monarchies of Europe are descendible to females in general, if we except France, and several but not all of the principalities of the empire. Bohemia and Hungary have received a queen in the person of the present empress in this present century, but so inveterate are old customs and opinions, that when her faithful Hungarians resolved to assist her to the last extremity, it was by saying, _moriamur pro rege nostro Maria Teresa_, not _pro regina_[201].

LECTURE XV.

_The difference between allodial and feudal lands—The
restrictions on the feudal law—The decay of these—The history
of voluntary alienations._

One great and striking difference between allodial and feudal lands consisted in this, that the former entered into commerce. They were saleable or otherwise alienable, at the will of the possessor, either by act executed, and taking effect in his lifetime, or by will, to take effect after his death. They were likewise pledges to the king for the good behaviour of the owner, and therefore for his crimes forfeitable against him and his heirs. They were also security to his fellow subjects for the debts he might contract; and, therefore, by following the due course of law, attachable and saleable, to satisfy the demands of a just creditor[202].

In every one of these respects did fiefs, when they became descendible inheritances, differ from them. The possessor was but an usufructuary, and his power over his lands was checked and controlled by the interest others had therein. These were the lord and the persons descended from the first purchaser. The consent of the lord was absolutely necessary to the tenant’s alienation, to prevent the introduction of an enemy or unqualified person into the fief; but the consent of the lord alone was not sufficient, if there were in being any persons entitled to the succession. Thus if A. is himself the first purchaser of a fee, and hath a son, his alienation, even with the consent of the lord, would hold good only during his own life; but if he had aliened with the consent of the lord before issue had, this should be valid, and bind the issue born afterwards. For here the alienation was made by all the persons in being interested in the land, and the former contract is by their mutual act dissolved, nor is there any wrong done; for it is an absurdity to say that a person not _in rerum natura_ can suffer wrong: the consent therefore of the son, or sons, if one or more of them were in being, was as necessary as the lord’s in this case.

If the lands descended from B. the first purchaser, to his son A. before the introduction of collateral descent, the law was the same; but when these were admitted, it varied for the same reason. A. could not alienate with the consent of the lord and his sons, without the consent also of all the collaterals intitled, that is, all the _agnati_, or male descendants of B. for this would strip them of their right of succession. If it descended from C. the grandfather, or from any more remote ancestor, the consent also of all the male descendants of the grandfather, or that remote ancestor was required, upon the same principle. By this we see, it was next to an impossibility, that an estate which had been any time in a family (so many consents were required) could be alienated at all. However, there was allowed by that law a transfer of the fief in a particular case, even without the consent of the lord. This was called _refuting the fief_; it was a resignation of it to the person who was next in order of succession. Here was no injury done to the lord, or the _agnati_, because it went in the same manner, and to the same persons, as if the refuter was absolutely dead, _& quisque juri suo renunciare potest_. For the same reasons no testaments of lands were allowed, except the lord, and all others concerned were present and consenting; which scarce ever happening, it became a maxim of the English law, that lands were not devisable by will.

Neither were the feudal lands originally forfeitable for the crimes of the possessor for any longer time than his own life, if there were persons entitled to the succession. But this rule of forfeiture was afterwards extended to the issue of the criminal: for as the right of succession depended much on the supposition the successor was educated in the fealty of the lord, this presumption ceased where the father had actually broke his oath of fealty. And at length, when the rule was established, that every person must claim through him that was last seized, and make himself heir to him, the delinquency of the predecessor became likewise a bar to collaterals.

Feudal estates also were not liable to the debts contracted by the feudatory. For if the creditor might have sold them for debt, a wide door for alienation had been opened, by means of fictitious debts, contracted by collusion between the creditor and vassal. Or even if they were honest ones, the lords and the heirs would have been deprived of their right. Neither could the creditor attach the profits of the land during the life of the debtor; for if he could, an improvident vassal might so impoverish himself, as to be incapable of the duties of the fief.

Such and so strong were the restrictions this old law laid on the feudatory. But as times grew more settled, and the strictness of the military system abated; as commerce increased, and with it luxury, the propensity to alienation grew up, and became at length so strong, in every country, as to be irresistable. And it is a speculation not only curious, but very useful for the students of our law, to observe and remark its progress in England[203].

The first step towards voluntary alienations arose from the practice of sub-infeoffing. Originally, as I observed in a former lecture, although the vassals of the king could infeoff, their vassals could not; but at the latter end of the second race in France, when the power of the crown was declined, and the great lords were in reality sovereigns, acknowledging only a nominal dependance on the king, some of them, in order to strengthen themselves, and to increase the number of their military followers, allowed this privilege not only to their immediate vassals, but to sub-vassals also, to an unlimited degree. And when this practice was once begun, the other lords, for their own security and grandeur, were obliged to follow the example. This practice of subinfeuding contributed much to the power of the lords, and therefore was by them encouraged. But though it was intended, at first, only to extend to part of the vassal’s fief, the usage of subinfeuding the whole gained ground, to the great prejudice of the heirs; when the terms of subinfeudation were no better than those of the first grant; and of the lords also, who thereby lost frequently their profitable fruits of tenure, their reliefs, wardships, and marriages; which, with respect to the lords, was remedied in the reign of Edward the First, by the statute of _Quia emptores terrarum_ before mentioned[204].

In the mean time, free alienation was allowed in cities and boroughs; partly because many of these were old Roman towns, and their lands and houses allodial, and because those which were not so were founded by lords on the same principles for the benefit of commerce, which could never have flourished if a debtor had not full power over his property of all kinds to satisfy his creditor; and if the creditor, in case he was unwilling, had not power to compel him to sell for his just satisfaction. Alienations, however, of one kind were permitted, namely, the founding of monasteries, and endowing of churches. These, through the superstition of the times, were looked upon as being equally beneficial to the feudal society as subinfeudation, by engaging God in their interest; and even if the lords and their heirs, who suffered by these grants, were willing to dispute them, they were unable to contend with the omnipotent power of the pope and the clergy; until at length the tyranny of the first, and the avarice of the last, provoked both king and people to restrain them by the acts against Mortmain. But no other alienations were yet allowed without consent, as before mentioned[205].

In the reign of William Rufus a particular matter occurred, which opened a way for alienation without the lords consent, and occasioned a prodigious revolution in the landed property of Europe. This was the madness of engaging in crusades for the recovery of the Holy Land. A crazy friar returning from a pilgrimage to Palestine, where he saw the Christians maltreated, began to preach up this expedition as the most meritorious of works; and it is wonderful with what an epidemical contagion the enthusiasm spread through all ranks of people. These pilgrims, who assumed the cross, had no way of defraying the expence, but by the sale of their lands, which their lords, if disinclined, dared not to gainsay, or obstruct so pious a work. But indeed, most of them were conscientiously affected with the same madness, as may be seen by the great number of kings, princes, and lords, that beggared themselves in these fruitless enterprizes[206].

The pope and the kings concurred in inflaming this superstition, but from different motives. The pope did it out of ambition and avarice. The former he satisfied by declaring himself the head of the expedition, and thereby attaching to himself and his see such multitudes of redoubted warriors by the strongest of bonds, conscientious superstition. And indeed successors in that chair afterwards made very good use of this example, by preaching up crusades against such Christian kings and princes as disobliged them. But the more immediate advantage he received, was the glutting his avarice by a proper sale of dispensations to such as had rashly taken the cross, and afterwards found themselves unable, or unwilling to fulfil the obligation. The reason that induced the kings of Europe to promote this spirit, I mean such of them as were not possessed with the frenzy themselves, was the hope of abasing their too great and powerful vassals, which would naturally follow from the alienation of part of their lands, to equip them for the expedition; and a desire to facilitate the partition of these great seignories among females, when the males were so frequently and miserably slaughtered[207].

So many were the alienations of this kind, and so long were they continued, that it is no wonder that the interest of the lord and the heirs began to lose ground in the opinions of the people, which proceeded so far, as that, in the other cases, the lord, on the payment of a moderate fine, either before or after, was looked upon as obliged to consent to the alienation. Let us now see how the liberty of alienation gained ground, particularly in England.

In Henry the First’s time, a man was allowed to alienate his purchase, but not an estate that came by descent. This law says, _Acquisitiones suas det cui magis velit; si Bocland autem habeat, quam ei parentes sui dederint, non mittat eam extra cognationem suam_[208].

This liberty of alienation of purchases is not to be understood generally, but only where the purchaser had no son; if he had any, it may be a doubt whether he could alienate any part at this time. Certain it is, he could not the whole, even in Henry the Second’s time. For thus Glanville lays down the law: _Si vero questum tantum habuerit, is qui partem terræ suæ donare voluerit, tunc quidem hoc ei licet sed non totum questum, quia non potest filium suum hæredem cohæredare_[209].

The practice of alienating lands by descent grew up more slowly. At this time a part only was alienable, and that not freely, to all persons, or for any consideration generally; but only in particular cases, first to the church in Frankalmoigne; secondly, to one who had done services in war, or to the fief in time of peace; thirdly, for the advancement of his family, as in Frank-marriage with his daughter, sister, niece, or cousin. But every day this liberty gained ground, until at length the interest of the heir entirely vanished, and that of the lord began, in military tenures, to be little considered, and not at all in socage. However, in Magna Charta some check was given to that kind of alienation of the whole fief, that was carried on under the pretence of subinfeudation. _Nullus liber homo det de cætero amplius alicui vel vendat de terra sua quam ut de residuo terræ possit sufficienter fieri domino feudi servitium ei debitum_; and this sufficiency was by practice explained to the half of the fee[210].

No provision being made in these laws for the consent of the lords, they generally, though not always, lost their fines; and a method likewise was invented to obviate their refusal, by levying fines in the king’s courts of record, in this manner. They used to suppose that the parties had covenanted to alienate; and all writs of covenant (being actions of public concern to the justice of the kingdom) were sueable only in the king’s court; and by consequence this covenant to alienate was sueable only there. The superior court then being possessed of the matter, as an _adversary cause_, permitted the parties (on a fine being paid to the king, in lieu of that which he would have received at the end of the suit, from the party that failed) to make an amicable agreement or end of the suit, which was done by the party sued coming in, and recognizing, that is, acknowledging in court the right of the demandant to the land. This method of conveyance by fine grew up, and still continues to be one of the common assurances of the realm. For being transacted in a court of record, it obviated the danger of future controversies between parties, or any dispute concerning the execution of a deed, or the giving of livery and seizin[211].

At length the statute of _Quia emptores terrarum_, already mentioned, was made, as well to remedy the mischiefs the lords complained they suffered by subinfeudation, namely, the loss of their fruits of tenure, as to settle the doubt, as to the right of the tenants to alienate. This statute entirely takes away the lords consent; for it gives the tenant free power to sell, or alien the whole, or part of his tenancy, to whom he pleased. But then, in favour of the lord, it establishes, that if the tenant parts with his whole interest in the lands, namely, the fee simple, the _alienée_ should not hold of the _alienor_, but immediately from the alienor’s lord, by the same services, by which he, the alienor, had holden. Thus were the lords, in one respect secured in their rights, by the stopping the course of subinfeudations, and the tenants got a free liberty of alienation without the consent of the lord, or paying any fine to him. The king, however, not being named expressly in this act, it was construed not to bind him, as I have said before; and his consent was still required to the alienation of his tenants by military service, according to the rule of Magna Charta; that is, if more than half was alienated, so that the residue was deemed unsufficient to answer the services. And this was put out of doubt by the statute _De prerogativa regis_, made the 17th of Edward the Second, cap. 6.

The bent towards free alienation, however, was so strong as to occasion a further mitigation so soon after, as the first year of Edward the Third. For then it was provided, that if the king’s military tenant alienated without licence, contrary to the late act, the land so alienated should not be absolutely forfeited as before, but that the king should be contented with a reasonable fine in chancery. These compositions were sometimes dispensed with, to encourage the tenants to attendance in hazardous expeditions; but, except in those singular cases, they continued to be paid, until the reign of Charles the Second, when knight’s service being abolished, they fell of course along with it[212].

Such was the progress the alienation of land made by conveyance _inter vivos_; but the bequeathing lands by last will did not keep equal pace with it. The first step made thereto was by laying hold of the doctrine of _uses_, which about the time of Richard the Second was invented by the clergy, to elude the statutes of Mortmain, by which their advance from time to time was checked. As in every feudal grant there were two estates, the absolute propriety in the lord, a qualified property, namely, the possession and profits, in the tenant; now that they were prohibited from taking the real tenancy, they cunningly devised a means of subdividing the tenancy, by separating the profits from the possession. When, therefore, a man had a mind to alienate to the church, as he could not do it directly, he infeoffed a person to the use of such a monastery. Here the feoffee and his heirs were, in the construction of the common law, the proprietors, but, in fact, were bare trustees for the monastery, for the use of which they received the profits. But it may be asked, if the trustee or his heirs would not suffer them so to do, where was their remedy. The courts of common law allowed of no such division of estates at that time, nor would they have suffered such necessary laws to be defeated by such collusion, though they had been acquainted with these divided interests. They had recourse, therefore, to chancery, where, it being always, to the time of Henry the Eighth, filled with a churchman, they were sure to meet favour; and this court claiming an equitable power to enforce persons conscientiously to fulfil their engagements, compelled the trustee to support and maintain the uses.

These uses, once introduced, were applied to other purposes, particularly to that I am now upon, the enabling persons to dispose of their lands by will. The manner was thus: A. aliens his lands to B. to the use of A. himself for his life, and, after his death, to such uses as he A. should, by his last will and testament, appoint. B. was then compellable in chancery, not only to suffer A. to take the profits during life, but after his death to execute the directions of the will, and to stand subject to the use of such persons as he appointed, and make such estates as he directed. This method gained ground every day, as many persons chose to retain their power of alienation in their own hands, to the last moment of their lives, and to keep their heirs, or other expectants, in continual dependance. And it at length grew so common, that in Henry the Eighth’s time, it was thought proper to give leave, without going through this round-about method, to dispose of lands directly and immediately by will; of the whole of their socage lands, and of two thirds of the lands holden by knight’s service. And this latter tenure being, after the Restoration, turned into common socage, all lands, not particularly restrained by settlement, are since become devisable; whereas, before these laws, they were only so in particular places, by local custom. But the statute that gives this power, in order to prevent frauds, expressly orders such will to be in writing; whence arose a distinction, as to the validity of wills of land, according as these lands had, or had not, been before devisable by custom. For those that were so before, continued devisable by will _nuncupative_, or without writing[213].

But the reduction of the will into writing was not found sufficient to prevent forgery and perjury, and therefore the statute of frauds and perjuries has added other solemnities, as requisite to pass lands by will. It requires that it shall be signed by the testator, or some other by his direction, and attested by three witnesses in his presence.

As to signing, it is insignificant where the signature is, whether at the bottom, or the top, or in the context of the will, the name of the testator, written by his own hand, in any place, being sufficient. And the putting his seal to the will, though without his writing, has been judged sufficient; for his seal is as much his mark, or sign, as his handwriting. As to the attestation, the statute requires it to be in the testator’s presence; but it is absolutely necessary, that he should look on and see it done. Therefore, if it is attested in the room where he lies sick in bed, with his curtains undrawn, this is a good attestation; or if it is attested in a neighbouring room, and the door open, so that he might possibly see it done, this is in his presence. But if the door be shut, or the place so situated that he could not by any means see the attestation, the will is void.

I shall next proceed to _involuntary alienation_ of lands, namely, for payment of debts; and then give an account of the origin and progress of _estates tail_, which were introduced to restrain this power of alienation, and to restore, in some degree, the old law of keeping estates in the blood of the first purchaser.

LECTURE XVI.

_Involuntary alienations of feudal land—Talliage—Edward I.
introduces the first involuntary attachment of lands—Statutes
enacted for this purpose—Their effects—The origin of estates
Tail._

The _involuntary_ alienation of feudal land, namely, the attaching, and afterwards the selling it for debt, kept pace pretty much, but not strictly, with the voluntary alienation already treated of. It first began in cities and trading boroughs, which were either the remains of old Roman towns, and where, consequently, the estates were allodial; or else new towns, founded either by the kings, or other great lords; or their demesnes, for the benefit of trades and arts within their own districts. External commerce, during those confused times, was little known or practised, the Barbarians of the North infesting the coasts of the ocean, and the Saracens and Moors, those of the Mediterranean. It was the interest, therefore, of every lord who had such a town on his territory, to give it such privileges as would make it flourish, and outrival the towns of like nature on the lands of the king, or the neighbouring lords. For the natives of such towns were no part of the feudal society, but were in the nature of socage tenants in the early times, removeable, and consequently subject to be taxed, or, as our law calls it, _talliagable_, from the French word _tailler_ to cut[214].

Talliage, consequently, was the cutting out a part from the whole of the tenant’s substance, at the will of the lord. Yet this very power of talliage, which the lords were not for a long time inclined to part with, joined to their desire to make their towns flourish (that they might be able to bear a greater talliage) put them under a necessity of making such provisions, and granting such privileges, as were necessary for the use of trade and commerce, and at length, in effect, destroyed that absolute power of taxation, which the king and lords had all along claimed and exercised, and which at first, for their own interests sake (which no doubt they well understood) they had used with great moderation. But after the discovery of the civil law at Amalfi in Italy, in the reign of our Stephen, the kings of Europe, who found therein an unlimited power of taxation in the emperor, were desirous to establish the like authority in themselves; and for that purpose began with oppressing their nobles with arbitrary scutages, or commutations for military services; and the towns of their demesne with talliages, not only arbitrary, but extravagantly beyond their power to pay without ruin[215].

John of England was particularly famous for these extraordinary charges; for though his title to the crown was, at that time, by many of his subjects, and by others abroad, much doubted (as in prejudice of his elder brother’s son Arthur then a minor) and his only just claim could be but by parliamentary authority, the omnipotence of which was not then so universally admitted, never was there a prince who carried his prerogative to such extravagant and oppressive heights. This, at length, occasioned the making _Magna Charta_; partly to assert and restore the ancient liberties of the nation, which had been invaded; partly to alter the old law, in such particulars as had been the engines of oppression. One of the chief of these latter remedies was the taking away the right of talliage, unless consented to in parliament. And now were the boroughs emancipated, and the burgesses made freemen, which before they could hardly be called, while their effects lay wholly at the mercy of the lord[216].

In the next reign they advanced in importance; for as the treasure of the kingdom was in their hands, they were sure to be favoured and courted on both sides, during the fierce contests between the king and the barons. And in the latter end of this reign it appears they had got admission into parliament, which not a little increased their consequence. Edward the First was a great favourer of merchants, and, for the security of their debts, introduced the first involuntary attachment of lands by the act called _statute merchant_, in the thirteenth year of his reign[217].

Before this time, no lands, except in boroughs by custom, were attachable for debt, but only in the case of the king, who, by right of his prerogative, could enter on the lands of his debtor, and receive the profits, until he was paid. For the same political reason, the surety also for a debt to the king, if he paid the debt, was allowed to come in the king’s place, and enjoy the same privilege; but in all other cases, the chattles were the only mark for the debt. This statute, after reciting that merchants had fallen into poverty, for want of a speedy remedy for recovering their dues, provides, that, in every city or great town, which the king should appoint, there should be kept a _recognizance_, that is, the acknowledgement or confession of debts due to merchants, and of the day of payment; and that, in case payment was not made at the day, they may, or should, on the application of the merchant, and inspection of the roll, imprison the body of the debtor until payment; and if no payment was made within three months, (which time the debtor was allowed to sell his chattles or lands) his chattles and lands were to be delivered to the merchant creditor, at a reasonable valuation, or _extent_, as it is called; that out of the profits he might satisfy himself. And in case the debtor could not be found within the jurisdiction of the city or town, or had no chattles or lands therein, then was the mayor to send into chancery the recognizance of the debt, and the chancellor was to issue a writ to the sheriff in whose bailiwick the debtor was or had effects, to act in like manner. And so greatly was the merchant favoured, that tho’ this was but an estate for years (it being certain, from the valuation, in what time the debt would be paid), yet had he, with regard of maintaining actions to recover his possession when deprived of it, the privileges of a free-holder given him, by express provision in the act. Such was the favour shewn to merchants to recover their just demands, nor were other creditors at this time left totally unprovided for, in cases where there was a deficiency of chattles.

In the same year a law was made for attaching the lands of persons, in favour of creditors who were not merchants, but in a different manner, called an _elegit_. I shall here use the words of the statute, as they are sufficiently plain, and easy to be understood. “When debt is recovered or acknowledged in the king’s courts, or damages awarded, it shall be, from henceforth, in the election of him that sueth for such debt or damages, to have a writ to the sheriff of _fieri faciat_ of the lands and goods” (which was the old remedy against the chattles) “or that the sheriff shall deliver to him all the chattles of the debtor, saving only his oxen and beasts of his plough, and the one half of his land, until the debt be levied upon a reasonable price or extent.” After this the act gives the same privilege as in case of statute merchant, to the creditor dispossessed. From his making his election for the extending the lands, the writ directed to the sheriff for that purpose got the name of _elegit_. The difference of execution just mentioned shews clearly in how superior a light the legislature regarded the interests of commerce. That the debts to merchants, in whose prosperity the whole community was concerned, might be levied as soon as possible, the security by statute merchant gave possession of the whole of the land to the creditor; but the writ of _elegit_ gave him possession of no more than one half. Originally men could not alien lands at all. Afterwards they were allowed to alien, but not beyond the half of the fief; and this principle or maxim was strongly regarded at the time the writ of _elegit_ was framed, which was before the statute of _Quia emptores terrarum_, which allowed alienation of the whole. So that whatever stretches might be found necessary, from the circumstances of merchandize, yet, with regard to the kingdom in general, a small deviation only was made from the common law, and the _elegit_ was allowed to affect no more by operation of law than a man was supposed capable of alienating by his own deed[218].

Two reigns after, namely, the 27th of Edward the Third, when the mart, or market of the standing commodities of England, namely, wool, woolfels, hides, lead and tin, was removed from Flanders into England, and a court merchant was erected in all such places where the staple was fixed, to be held by the mayor of the staple, he had power given him to take recognizances on the debts contracted at the staple, called _statute staple_, in the same manner as of _statute merchant_; and as the effect thereof was the same as of statute merchant, it need not be particularly repeated. However in some time afterwards, statute merchant was, by custom, extended to others beside merchants, and became one of the common assurances of the realm. The statute staple was likewise extended upon surmise of the debt being contracted at the staple; and though an act of Henry the Eighth in England restrained this latter to its ancient bounds, yet, the same act framed a new kind of security in imitation of it, common to all the subjects, called a recognizance on that act, which had all the effects and advantages of it[219].

The statutes of Elizabeth and those since her time, concerning bankrupts, have gone much further. They not only, in the cases they extend to, laid the whole land open to the creditor, but, instead of a possession, and gradual discharge of the debt, which was all that was given by the statute merchant, _elegit_, or statute staple, they gave him a more speedy satisfaction, by enabling him to procure a sale of the lands[220]. But these later acts having never been enacted in this kingdom, I shall content myself with having barely hinted at them, and their effects.

Voluntary alienations of land having gained ground, and become at length established in England, contrary to the principles of the original law; and it being allowed for a maxim, that he that had a fee simple, had an absolute dominion over half of his land, to dispose of as he pleased, and, in some cases, of the whole; it could not be, but that there would arise many persons fond of perpetuating their estates in their families, and consequently displeased at this power of alienation. The means they used to attain their ends was under that maxim of law, _Tenor investituræ est inspiciendus_, or, as we express it, _Conventio vincit & dat modum donationi_. Every man therefore, absolute master of his estate, having a right to give it on what terms he pleased, they began, not as before, to give lands to a man and his heirs in general, for that would have given an absolute dominion, but to heirs limited, as to the _heirs of his body_, or to the _heirs male_ of his body, or to the heirs of his body by such a woman. Here it was plain enough, that none were intended to take, but such as came within this description; and by this means they hoped to defeat the power of alienation, to secure the estate to the persons described, and, in failure of them, the returning or reversion of it to themselves or their heirs.

But the judges complying with the universal bent of the times to the contrary, did not give these grants that construction they expected, upon the natural presumption, that every person will have heirs of his body, and that his posterity will continue for ever. They construed this to be a fee simple; and yet, not entirely to disregard the intention of the donor, to be a fee simple conditional; as if the words had been _to a man and his heirs_, provided he have heirs of his body, and consequently to be alienable, and forfeitable upon a certain event. And one great reason of making this construction, I take to be the consideration of forfeiture for treason and felony, which, by such grants, would be defeated by another construction, and men thereby rendered more fearless to commit crimes in those troublesome times[221].

Let us see then what estate or power was in _donor_ and _donée_ immediately by the grant; and what, upon the performance of the condition, namely, the having issue. And first, the _donée_ had immediately a fee simple upon the grant, contrary to Britton’s opinion, that, before children born, he had only an estate for life, and afterwards a fee. This appears from hence, that if a man had aliened in fee before issue had, the donor could not have entered upon the lands for the forfeiture, which, if he was tenant for life, he might. For the alienation in fee of tenant for life is an absolute forfeiture, and gives right of entry to the _lessor_. The _donée_, then, having presently a fee simple in him, that is, an estate for ever, than which there can be no greater; it was impossible the donor should have any actual estate or interest in the lands. He had not, therefore, a _reversion_ vested in him, that is, a certain positive right of the lands returning to him or his heirs, as he would have had, if an estate for life only had been granted. He had only a bare _possibility of reverter_, in case the donée died without issue; or, leaving any, that issue had failed.

For the same reason, of the donée’s having a fee simple, no _remainder_ could be limited in such an estate. If land be given to A. for life or for years, and after the efflux of the life or years to B., B. hath presently a remainder in the lands for life, years, or in fee, according as the limitation of the estate is; because it is certain that a life, or term of years, must expire. But if land be given to A. and the heirs of his body, and, in failure of such heirs, to B. and his heirs, this remainder to B., before the statute _De Donis_, was void, for A. had immediately an estate for ever, and therefore the limitation over to B. was rejected, as repugnant to the estate it depended upon.

But though, by such a grant, the donée got a fee, it being clogged with a condition, he had not, to all intents and purposes, an absolute power over it, either with respect to the donor, or his own issue. If the donor aliened before issue had, this was no bar to the donor, of his possibility of _reverter_; but it was a bar to the issue born afterwards, to enjoy the estate tail. For at this time fathers had a greater liberty to bar their children, than a stranger. Therefore, in this case, the _alienée_ and his heirs, were to enjoy the lands while the donée, or any issue of his body remained. But whenever they failed, the donor’s, or his heir’s possibility of reverter, was changed into an actual reversion, and the land became his. For now, by a subsequent event, it appeared, that the legal presumption of the estates continuing for ever was ill founded. Neither, by the having of issue, was the condition performed to all purposes, so as to vest an absolute fee in the _donor_; for if the donée had died without issue, or if his issue failed, without any alienation being made by either, in this case also, the donor’s possibility was changed into an actual reversion. But by having issue, the condition was so far performed, as to enlarge the power of the donée to three special purposes; first, to alien absolutely, and thereby to destroy the right of issue, and the possibility also of reverter in the donor; secondly, to charge and incumber it to the prejudice of both issue and donor; and thirdly, to forfeit it for treason or felony, to the prejudice of both also. Such was the construction the judges made of these grants, which, we see, gave, in almost all cases, an unlimited power of alienating, contrary to the intention of the donor, and the form of the gift[222].

But, in the thirteenth of Edward the First, the lords, willing to preserve the grandeur of their families, obtained of that monarch the famous statute of Westminster the second, called _De Donis_, which by these words, _quod voluntas donatoris, secundum formam in charta Doni sui, manifeste expressam, de cætero observetur, ita quod non habeant illi, quibus tenementum sic fuit datum sub conditione, potestatem alienandi tenemenium sic datum, quo minus ad exitum illorum, quibus tenementum sic fuerit datum, remaneat post eorum obitum, vel ad donatorem vel ad ejus hæredem, si exitus deficiat, revertatur_[223], created a new kind of inheritance, _estates tail_, which very much resemble the old feudal donations, that were only descendible to the issue of the first feudatory. Let us see the consequence of these words. First, since the will of the donor was to be observed, it followed, that neither the donée, nor his issue, should have power to alien, incumber, or forfeit: the consequence of which was, that he could no longer have a fee simple, as these are inseparable incidents to such an estate; but a lesser estate, called _Fee tail_, from, the French word _Tailler_ before mentioned, as being, like other lesser estates, carved out of the fee simple.

Were it to be asked, in whom did the fee simple reside? it is plain it could be in none other but the donor, who had it originally in him. Therefore, by this statute, the possibility of reverter, which the donor had, was changed into an actual present interest, called a _reversion in fee simple_. But it was not always necessary that the fee simple should be in the donor; for estates tail, being now less than a fee simple, it became possible to limit a remainder thereon which should be good: Thus, if a gift be made to A. and the heirs of his body, and, in failure of such heirs, to B. and his heirs; in this case, there is no reversion: for the donor hath parted with his whole estate, but A. hath an estate tail, and B. a remainder in fee simple. Many remainders may be limited on one another, as for instance, an estate may be given to A. for years, remainder to B. for life, remainder to C. in tail, remainder to D. in tail, remainder to E. in fee simple; but if the last remainder is not in fee simple, but in fee tail, then is the reversion in fee simple to the donor.

However, although a tenant in tail after this statute could alien only for his own life, his heir in tail was not allowed to enter upon the alienée without first proving his right in a court of law, and this is what is meant by saying, _though a tenant in tail could not destroy the estate tail by his alienation, yet he could continue it_. The reason of this is, that all estates of inheritance are presumed fee simple, until the contrary is proved, and it would be unjust to remove a possessor, who came in by a title apparently fair, until the weakness of that title appears judicially. This rule, however, extended only to estates corporeal, that lay in liveries, not to incorporeal ones, that lay in grant; which shews that this maxim of its working a discontinuance proceeded from the feudal principle, of protecting the possessor, because he was to do the feudal duties.

The statute to guard these inheritances from alienations, expressly provides, that even a fine levied of them in the king’s courts of record should be _ipso jure_ null.

The method of recovering such lands so discontinued, is by a writ called a _Formedon_, from the words _forma doni_, of which writ there are three kinds, according to the title of the persons who bring them; _formedon, in the reverter_, _in the descender_, and _in the remainder_. _Formedon in the reverter_ lies for the donor or his heirs, and lay at the common law after the failure of issue, where the alienation was before issue had; but since the statute, upon the failure of issue, it lies, though the alienation be after. _Formedon in descender_ lies for the issue in tail, when the ancestor has aliened, and is given by the statute. The form of it is as follows, “The king to the sheriff of ⸺ greeting, command A. that he justly, and without delay, restore to B. such a manor, &c. which C. gave to D., and the heirs of his body, and which, after the death of the said D., ought to descend to the said B. the son of the said D. by the form of the aforesaid gift, as he says.” _Formedon in remainder_ lies for a remainder man in tail, or his issue, after the particular estate previous to his (whether it be for years, life, or in tail) is spent. In the reverter, instead of the word _descend_, it is _revert_; in the remainder, _remain_[224].

Having shewn the origin of estates tail, I shall next consider their consequences, and future fortune.

LECTURE XVII.

_The consequences and history of estates Tail._

The following are the words of my lord Coke. “When all estates were fee simple, then were purchasers sure of their purchases, farmers of their leases, creditors of their debts; the king and lords had their escheats, forfeitures, wardships, and other profits of their seignories: and for these, and other like cases, by the wisdom of the common law, all estates of inheritance were fee simple; and what contentions and mischiefs have crept into the quiet of the law by these fettered inheritances, daily experience teacheth us.” By this enumeration of his, of the advantages that attended estates of fee simple, it is easy to see who were the sufferers, and wherein they suffered, by the introduction of estates tail. But it is a little surprizing that he should make such a slip as to say, that before this creditors were secure of their debts by all estates being fee simple; when the first statute that gave them any hold of lands was made after this statute _De Donis_, in the latter end of the same year of the king’s reign, the thirteenth of Edward the First. Those, indeed, who had landed estates at that time, and their posterity, were great gainers hereby; but the king and the nation in general were sufferers. The nation suffered by the check that commerce, then just arising, received, by so much lands becoming unalienable, and the crown suffered in a double respect; first by the opportunity it afforded to strengthen and explain the great estates of the lords, and secondly by the security it gave when enlarged.

Soon after the conquest, the estates of the English lords were enormous. William brought over an army of 60,000 men, not levied by himself, (for he was unable to raise or defray the expences of a third of that number, out of the province of Normandy,) but consisting chiefly of adventurers, who engaged in the expedition on the promise of forfeited lands, in proportion to the numbers they brought with them. Accordingly, some had seven hundred manors, others five, four, three, two, one hundred, or less; insomuch, that all the lands of England, (if we except the king’s demesnes, the church lands, and the little properties annexed to cities and boroughs) were in no more than about seven hundred hands, the principal of which were petty princes, like the dukes and counts of France[225].

William was sensible, from the experience of that country, how dangerous such large grants would prove to the authority of the crown, and he accordingly moderated them as well as his circumstances would permit. That the king might not be too far removed from the view of the lower people, by the interposition of the great lords, their immediate superiors, he did not, as in France, leave the whole judicial power, and the profits of the county courts in the earls; but justice was administered in the king’s name by his sheriffs; who, as being deputies of the earls, were called _Vice Comites_, and who accounted for the profits to the king, except as for the one third, which in England was the earl’s proportion; and in after times, upon new creations, the third also was referred to the king, and only a certain stipend out of it, generally twenty pounds a year, assigned to the earl[226].

Another means he used of disarming them of the too great powers immoderate estates would have given them, was avoiding the rock the French court had split on, the giving vast territories, lying contiguous to each other, in fief, whereby all the followers were immediately in the view and at the call of the lords. William acted more prudently. He generally gave to an earl twenty knights fees, which was the proportion of an English earldom in the county, whose title he bore; perhaps thirteen, or a barony, in another county; and the remainder, he was to give, either in baronies in distant counties, or more generally in single knights fees, dispersed through all England. This was his general method, except to a few of his near relations, to whom he gave palatinates with _jura regalia_, which were exactly in the nature of the French dutchies and counties[227].

Another prudent step he took for the benefit of his successors, was the making all his grants _feminine fiefs_. For as, in a course of several descents, it must happen that lineal males would frequently fail, by admitting the daughters in that case, these vast inheritances were frequently broken, as females succeeded equally. His successors followed his plan, and for that purpose, not only permitted, but encouraged their great vassals to alien, and dismember their properties; and whenever a great escheat fell, were always sure, unless there was a prince of the blood to be provided for, to divide it into many hands.