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.

Both kings and people received the advantages, and would have received more, if this policy had continued. The immediate tenants of the crown being encreased in number, and lessened in wealth, were not able to confederate so easily against the crown; and, sensible of their being weakened, had occasion for the support of the lower rank of the people, whom, consequently, they treated with more gentleness and equality than before. But this statute of entails put a stop to the progress that course of things were in; estates became unalienable, and indivisible. The property of no lord could lessen; and if it happened, as it frequently did, that they acquired, either by descent or marriage, or the purchase of an estate not tied up, a new entail connected it inseparately with the old one; and thus the lords, towards the end of the Plantagenet line, grew up to such a pitch of power, as was dangerous to the constitution, and when they were divided into the factions of the York and Lancaster, deluged the land with blood.

The king saw the mischief betimes, but the mischief was done. The act was passed, and to get it repealed was impossible. They had nothing left, but to find means to elude it by construction of law, wherever they could. The scheme was readily embraced by the judges and lawyers, who had raised great outcries against these fettered inheritances, and were joined by all the trading and industrious people, and even by the younger branches of these great families, whose fathers were thereby disabled to provide for them.

The first means found out was by collateral warranty. Before this statute all warranties by an ancestor bound the heir at law, although no land descended from that ancestor, upon the presumption that no man would disinherit his heir, without leaving him a recompence. But this could be no longer the law in general; for, if so, the ancestor in tail might, by his warranty, defeat the tail, contrary to the statute, which says, The will of the donor shall be observed. They therefore made now a distinction between a lineal warranty and a collateral one. Lineal warranty is that which is made by tenants in tail; collateral, that which is made by one who is a stranger to the entail. In the first case they held it no bar, unless assets descended; that is, an estate in fee simple, equal in value. But in the latter case, that no assets descended, they held it at bar as at common law[228].

To illustrate this by an example, If lands are given to A. and the heirs male of his body, and A. aliens with warranty, this is lineal warranty, and shall not bind the son; but if B. the brother of A. who has nothing to say to the entail, joins in the alienation with warranty, or releases to the alienee with warranty, or disseizes A, and then aliens with warranty, and dies without issue, so that A’s son is his heir, this warranty is collateral to the entail, and without assets should bind the son of A, as at common law. At first view it may seem surprising how this construction gained ground against the express words of the statute, Voluntas donatoris de cætero observetur; for the will of the donor was certainly as much defeated by a collateral, as by a lineal warranty; but the judges took advantage of the preamble of the act, which, reciting the mischief, speaks only of the alienation of the tenant in tail, that is, of lineal warranty. They restrained, therefore, out of disfavour to these fettered estates, the general words in the enacting part, to the particular case mentioned in the preamble, on this ground, that the common law was not to be altered without it appeared undeniable that the legislator intended it; and here, as to collateral alienation, they are silent. This was the first device used to defeat estates tail, namely, by getting a collateral relation, whose heir the issue in tail was to be, to concur in the alienation, and to bind himself and heirs to warranty; which was generally obtained for a small consideration, as such person could never be a gainer by the estate tail, since it could in no case come to him.

When once this rule of collateral warranty barring an estate tail, was settled, attempts were made to prevent its taking effect, and to continue such estate notwithstanding. Jude Richel, in Richard the Second’s time, led the way; he having settled lands on his eldest son in tail; remainder to his second son in tail; adds, that the lands are given on this condition, that, if the eldest son should alien, that instant his estate should cease and determine, and the land remain to the second son and the heirs of his body. Here he imagined he had got clear of collateral warranty, because the first estate was to determine, and the second to commence immediately on the alienation, and before any collateral warranty could descend on the second. But the judges determined this condition to be void; for which Littleton gives three reasons, drawn rather from the art of law, than from the principles of plain reason[229]. The true ground seems to be this:

In every reign, from Edward the First down to Edward the Fourth, bills were brought into parliament to repeal the statute De Donis, as Coke informs us, but had constantly miscarried, as the estates of the majority in parliament were entailed. The only relief found out at that time against their mischiefs was this collateral warranty; and if Richel’s conditions were to be adjudged good, all estates tail would have been made with such conditions, and there would have been an end of that method of defeating them. The same was the fate of a similar settlement of Judge Thirning, who took the advice of his cotemporary judges, in wording his condition so as to make it effectual; but their successors were of a different opinion, and rejected it. However, these collateral warranties not being to be got in all cases, the relief was but partial, and extended only to particular cases. And the tenant in tail himself could by no act of his, in concurrence with any other person, except a collateral ancestor of the issue in tail, bar them.

At length the judges found out a device, by a fiction in law, to enable him to bar his issue, and all remainders, and reversions. A. brings his action real against B, tenant in tail, and alledges the lands in tail to be his A’s right and inheritance, when in truth he hath no title thereto; B. comes in, and voucheth C. to warranty, who enters into warranty, and after, when he should defend, makes default, so judgment is given for A. against B. and for B. to recover in value against C. Here, though C. has no land to render in value, the judges have construed B, and all that should come after him, to be barred; because if C. ever after purchased lands, these lands might be recovered from him, by virtue of the former judgment; and so there was a possibility of a recompence. Though this decision at first created great outcries, and even in Henry the Eighth’s reign was but weakly defended in equity and conscience, by the author of Doctor and Student, yet the judges, for the public good, constantly adhering to it, and these common recoveries being taken notice of and approved of by subsequent acts of parliament, are at length grown to be common assurances of lands, and, passing in the court of record, are the best securities of estates[230].

The bearing of estates tail, by fine passed in the king’s courts, grew up another way, and is founded on an act of parliament in Henry the Seventh’s reign, and is indeed, properly speaking, a partial repeal of the statute De Donis, since it puts it in the tenant in tail’s power to destroy it, by observing certain solemnities. Though common recoveries had been invented some years before, yet as they had not had time to grow up to such a degree of firmness as to be sufficiently depended upon, their legality was still doubted, and it was not certain that future judges would give them the same construction which their predecessors had done. Therefore, that politic prince Henry the Seventh, who saw, in all its lights, that superiority which the preservation of landed property in their families gave to the nobles, a superiority which had cost some of his predecessors their lives and crowns, freed lawyers from the trouble of inventing future devices against entails, by getting the famous act passed in the fourth year of his reign, which made a fine, with proclamations to conclude all persons, strangers as well as privies[231].

It was the purport of, and so it is expressed in the statute De Donis, that a fine levied of entailed lands should be ipso jure null, and it is the intent of this act, on the contrary, that a fine, levied with the prescribed solemnity, should be valid to bar the persons therein intended to be barred. There is a clause, indeed, in this act, saving the right and interests of all persons, which accrued after the ingrossing of the fine, they pursuing their rights within a certain time after they accrued. This clause was apparently thrown in to make the act pass, and to deceive the enactors into an opinion, that it would not affect estates tail; and on this clause a doubt occurred in that reign, whether the issue of tenant in tail could be barred by this statute, and that, notwithstanding by the tenor of it, privies were barred. The question was, whether the statute meant privies to the fine, or privies to the estate of the person levying it? The issue were not privies in the first sense, but were in the latter. The judges embraced the opportunity this ambiguity gave them, of defeating entails, and bound the issue by the fine. A statute of the succeeding prince approved of that construction, gave it retrospect, and prevented all ambiguity for the future[232].

Thus were estates tail no longer certain perpetuities, but defeasible upon performing certain requisite solemnities. Still however they continued not to be forfeitable for crimes, which was a point not to be got over without an act of parliament, and there was little likelihood of obtaining such an one; but Henry the Eighth snatched the lucky opportunity his situation gave him, of gaining this important point, in the 26th year of his reign, when he had quarrelled with the Pope, and all hope of accommodation vanished; when a sentence of excommunication was denounced against him, and numbers of his subjects, many of them of great fortunes, bigotedly attached to the old religion, were known to meditate rebellion. The parliament, the majority of which were of the new profession, seeing no other means to preserve the security of the state, and the protestant religion, yielded at length to the passing of an act for that purpose[233].

However, there were not wanting persons after this, willing to create perpetuities, in which they were always disappointed by the decision of the judges. The first device was by giving estates upon condition, that if tenants in tail should levy a fine, or suffer a recovery, the estate should cease, and go over to the next issue intitled. But the judges rejected such condition, for the same reason as in Richel’s case. They adjudged the right of barring by a fine or recovery to be an incident inseparable to a fee tail, and all conditions repugnant thereto idle and void; for how could the law suffer that an estate, by previous act of the donor, should, upon a judgment at law, become vested in any other person than him who recovered? These ingenious conveyancers, finding that the limitation upon breach of the condition came too late, as the estate had already gone in another channel, framed the condition thus; that if tenant in tail should go about to levy, &c. or make any covenant to levy, or hold any communication about levying, &c. the estate should then, &c. But these were all condemned upon the old principle, and still more for their vagueness and uncertainty.