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.