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lUtpjig: F. A. BKOCKHAUS.
LAND IN FETTEBS
OR
THE HISTORY AND POLICY OF THE LAWS RESTRAINING
THE ALIENATION AND SETTLEMENT OF LAND
IN ENGLAND.
BEING THE YORKE PRIZE ESSAY OF THE UNIVERSITY
OF CAMBRIDGE FOR THE YEAR 1885.
BY
THOMAS EDWARD SCRUTTON,
M.A. LL.B. : BARRISTER AT LAW; PROFESSOR OF CONSTITUTIONAL LAW AND
HISTORY IN, AND FELLOW OF, UNIVERSITY COLLEGE, LONDON: LATE
SCHOLAR OF TRINITY COLLEGE, CAMBRIDGE: AUTHOR OF "THE
LAWS OF COPYRIGHT"; "THE INFLUENCE OF THE ROMAN
LAW ON THE LAW OF ENGLAND"; ETC.
'^ojihall he have the curse of his father, but the land of his
grandfather. ' ' BACON.
OF THE
UNIVERSITY
CAMBRIDGE:
AT THE UNIVERSITY PRESS,
1886
CambriBge :
PRINTED BY C. J. CLAY, M.A. AND SONS,
AT THE UNIVERSITY PRESS.
TO
KENELM EDWARD DIGBY,
THIS WORK,
WHICH OWES SO MUCH TO HIS WRITINGS,
IS DEDICATED
\
BY
HIS FORMER PUPIL
THE AUTHOR.
s.
PREFACE.
PT^HE Yorke Prize of the University of Cambridge, to the
establishment of which this work owes its existence, was
founded about thirteen years ago by Edmund Yorke, late Fellow
of St Catharine's College, Cambridge, and, under a scheme of
the Court of Chancery, is given annually to that graduate of the
University, of not more than seven years' standing from his first
degree, who shall be the author of the best essay on some
subject relating to the "Law of Property, its Principles, and
History in various Ages or Countries." The subject prescribed
for the year 1885 by the Adjudicators (Arthur Cohen, Q.C.,
M.P., and R. Romer, Q.C.), was " The History and Policy of the
Laws restraining the Alienation and Settlement of Land in
England." The prize was awarded to the Essay bearing the
motto : " Te teneam moriens" which is now published in accord-
ance with the conditions of the Award.
I am fully conscious that this essay sees the light under
serious disadvantages. The subject it deals with has already
been so fully treated by Mr Kenelm Digby and Mr Pollock,
Mr Kay, Mr Brodrick and Mr Arnold, each from a different
point of view, that there can hardly be room for another work
on the subject. These pages bear the additional stigma of
being a Prize Essay, and it is a commonplace of criticism that
from that source no good thing can come. My critics, however,
have been so forbearing to two previous trials of their patience
Vlll PREFACE.
in the shape of Prize Essays, that I am sure they will in this
case distribute their blame and censure aright. That the
Yorke Prize Essay is written at all, the late Mr Edmund Yorke,
assisted by the Court of Chancery, must bear the responsibility ;
that it is written in this year on this particular subject the
Adjudicators, and not the author, are the cause; that it is
published, is the result of the scheme sanctioned by the Court
of Chancery. The author's modesty would prefer to receive the
money value of the prize without the additional honours of
publicity.
While life is too short to review the reviews of one's work,
there is yet one criticism on my last Essay, to which, as it may
also affect the present work, I should wish to refer. The
Saturday Review regretted that my treatise " was marred by a
pervading flippancy in tone," and expressed the hope that I
might when a little older become " less cocksure." I naturally
took this to heart, and was about to endeavour to mould my
style on the sober and modest exemplar prescribed by the
Saturday Review itself. But my intentions were bewildered
by a critic in the Law Quarterly Review, who informed me
that "the author's opinions are for the most part sound and
sober, and are clearly and modestly stated." And on reflection I
felt that a style which was, in the opinion of two such authori-
ties, both "sober" and "flippant," "cocksure" and "modest,"
was such a unique production as to be worth preserving.
In the present essay, I do not claim to have done more than
collect as carefully, and state as clearly as I could the methods
and degrees in which the State has recognized and upheld from
time to time the power of the individual to dispose of and
control the ownership and management of his land, both during
his life and after his death. I have paid especial attention to
the earlier periods of the law, and have availed myself freely of
the priceless records of Domesday. My indebtedness to Mr
PREFACE. IX
Digby is visible on every page, and I have derived great assist-
ance from the study of Mr Pollock's little book, as exhaustive in
matter as it is admirable in exposition. But I have always
endeavoured to go straight to the original authorities, and I
trust that when Parliament is again at liberty to devote itself to
the consideration of English matters, and when the whole
question of the Reform of the English land laws is under
consideration, this little work will be found of some use, as
containing a short but accurate account of the history of those
laws.
T. E. S.
1, ESSEX COUET, TEMPLE,
Aug. 3, 1886.
TABLE OF CONTENTS.
PAGE
INTRODUCTION
1,2
CHAPTER I.
Anglo-Saxon Land Law ....
3—22
CHAPTER II.
The Evidence of Domesday Book .
. 23—36
CHAPTER III.
Feudal Land Law
. 37—69
CHAPTER IV.
The Evasion of the Law by Fines and
Re-
coveries
. 70—79
CHAPTER V.
Uses
. 80—90
CHAPTER VI.
Wills
. 91—100
CHAPTER VII.
Economical Changes in the Land System
. 101—107
CHAPTER VIII.
Family Settlements ....
. 108—122
CHAPTER IX.
The Rule against Perpetuities
. 123—133
CHAPTER X.
Lord Cairns' Act
. 134—139
CHAPTER XI.
Policy of the Present Law
. 140—158
CONCLUSION
.
159
INDEX
160
OF
UNIVERSITY
INTRODUCTION.
THE history of the English Land Law is a history of inten-
tions of Parliament frustrated by the ingenuity of lawyers, of
national legislation perverted and thwarted in the interests of a
class. The conservative tendencies of the English people have
clung to the forms of a by-gone day, though they have served
but to fetter the modern spirit. The object of the old techni-
calities has been defeated by fictions of the most cumbrous and
artificial character, which in turn have lingered on in the sanctity
of their antiquity long after their original purpose has been
answered, while their continued existence has only given rise to
expense and uncertainty of title. In the law of England, relics
of the feudal ages, when the land was held by tenures whose
main object was in turbulent times to provide for its safe culture
and for the defence of the nation, have survived, long after the
reason for their existence was dead. In this "Herculaneum
of feudalism," as it has been called, the legal explorer must
still resort to the early centuries of our history to find the
original justification of institutions and rules which have no
longer any but a historical excuse for their survival. The legis-
lation of this century has patched in to the edifice which the
posthumous ambition of landowners has employed the ingenuity
of lawyers to erect, and which the evasiveness of lawyers has
prevented Parliaments, however earnest in the work, from
destroying, modern rules and a modern organization. The Lord
Protector Cromwell's words are still true that the "Law of
England is a tortuous and ungodly jumble."
A law which has developed by fiction and by accident, rather
s. 1
2 INTRODUCTION.
than by direct legislation or clear intent, which has survived
by chance and by conservative instincts, rather than through
foresight and intelligent maintenance, can only be satisfactorily
explained historically. In the following pages I shall therefore
endeavour to trace the history of the restrictions on the
alienation of and succession to land step by step from the
earliest times.
CHAPTER I.
ANGLO-SAXON LAND LAW.
PROPERTY in land in Anglo-Saxon Law falls under two great
classes.
I. Customary Estates: the nature and incidents of which
depended not on any writing but either on the customary law
of the community, or, as in the case of estates of folc-land, on a
grant not embodied in writing, together with customary law.
II. Land held by written grant, or Book-land, the rights of
the owner of which depended not on custom, but on the terms
of the Book, or written instrument by which it was conferred.
Customary Estates again were divided into three classes :—
1. Heir-land, or Family Land; Yrfe-land, or eihel ; which was
owned by individuals1. 2. Community-land, said to be owned
by the community in a Mark, and certainly claimed by the Lord
in a Manor, in which the members of the free community, or
the geburs, villani, and bordarii of a manor, had subordinate
rights, their relations to their lord or to the community being
determined mainly by custom. 3. Folc-land, owned by the
people or state, from which in turn estates might be granted by
parol to individual holders.
The subordinate estates carved out of Customary Land also
go by the name of Laen-land. Mr Kemble would limit this
term to such estates as were held of a lord, but not created by
any writing. Mr. Lodge, in his essay on the Anglo-Saxon Land
1 Sometimes called alod, as to the correctness of which term see Pollock,
Land Laics, p. 191. Note B.
1—2
4 CUSTOMARY ESTATES.
Law, calls such estates "unhooked laens" and applies the term
" booked laens3 to all subordinate estates of land, carved out of
the full property in land and created by writing, thus taking the
general term "laen" to mean all estates in land where there was
a reversion or remainder over from the original grant. Mr
Pollock criticizes both the use of the term laen, as applied to
estates created by book, and also the proposition that estates in
folc-land were unbooked laens ; he himself holds laens to involve
"holding under a definite person or superior by specific services,"
and as estates of folc-land were held from the state, and not
from a definite person, he refuses them the name of laens1.
With regard to each of these classes, we have now to con-
sider :
I. The holder's power of alienating them during his life.
II. The holder's power of disposing of them on his death,
by Will.
III. The course of Intestate Succession with regard to
them.
A. Customary Land. I. Heir-land3.
The advocates of the Mark-System allege the division of the
land of each community into : 1. the Homestead, in which
private property apart from the community was gradually
established3 : 2. Arable lands, which were allotted annually to
the members of the community according to customary rules :
3. Pasture and Waste, which were shared by the community in
common without any, even temporary, allotment of particular
portions. And in the growth of private property in the Home-
stead, they find the origin of Heir-land.
This property at first is that of the family ; its nature and
incidents are based upon the needs and regulated by the rights
of the family: but the family's private property gradually
becomes the private property of the individual. There seems
little doubt that originally Heir-land, or yrfe-land, whatever its
1 Land Laws, p. 194. » Suam quisque domum spatio cir-
2 Anglo-Saxon Law, pp. 68 — 81. cumdat. TACITUS.
HEIU-LAND. 5
origin, was inalienable either inter vivos, or by Will, and that
the question of intestate succession did not arise with regard to
it ; for the family never died, though its members did, while if
it died out entirely, the land would revert to the community.
The next step in its development into private property would
be when the head of the family was recognized as having certain
rights over the land, and we find a stage in the history when
the land is alienable by the head of the family, at first only
within the limits of the family, and with the consent of all the
members of the family. Several instances occur in the charters
where attempts to alienate family land without the consent of
its members failed. Thus, in a charter of Bishop Wulfred [A. D.
81 1]1, it is recited that Egbert had granted leave to Aldhun to
leave his land by will [conscribendo dederat] : sed post ea Rex
Off a praedictam terrain a nostra familia, [to whom Aldhun had
willed it], abstulit, videlicet quasi non liceret Ecgberhto agros here-
ditario jure scribere (because family land might not be
booked)2.
Another instance is found in a suit in which Ealdred, Bishop
of Worcester, was concerned. Toki, a King's thegn, had willed
to the bishop land held "jure haereditariae successions" But
his son Aki attacked the will; "earn terram parentum successions
ad suum jus reclamasset" whereupon the bishop compromised
the matter with the king's consent for 8 marks, and Aki gave
him the land, "liber am a sua et ab omniparentelae.suaehaeredi-
taria proclamation*, et scripto firmato reconsignavit, ut libere earn
posset dare seu vendere cuicumque vellet absque ullius contradic-
tione3." In some cases also the kindred join in the grant for
additional security4, and attempts by kindred to break the
1 Cod. Dip. cxcv. biting alienation without leave of the
2 The reason for a similar inter- king, but it is noticeable that Offa
ference by Offa with a gift to the did not restore the land to Aldhun's
church by Aldhun of land given him family, who were wronged by his will,
by Egbert, is stated elsewhere to be but " suis distribuit ministris." Cod.
" injustum esse quod minister ejus (i.e. Dip. MXX.
Aldhun), praesumpserit terram sibi 3 C. Dip. DCCCV. Anglo-Saxon Law ,
a domino distributam, absque ejus App. No. 30.
testimonio in alterius potestatern 4 C. Dip. MXVII.
dare:" this looks like a grant prohi-
6 WILLS OF HEIR-LAND.
wills which purport to alienate Heir-land from the family are
frequent1.
On the other hand the celebrated Will of Duke Alfred is
written to show "who are the men of my kin and my companions,
to whom I will my yrfe-land, and my boc-land2." Yrfe-land here
is Heir-land, and the possibility of leaving it by will, certainly
within the limits of the kindred, and perhaps beyond, is shown.
A grant of Offa's runs: "Duddono meo ministro, etpost se homini
suae propinquitatis cui ipse relinquat3." In the will of Aethelric
he leaves certain land to his mother, with power to alienate it,
"cum recto consilio propinquorum meorum, qui mihi haereditatem
dabant*." Beorhtric and Aelfswyth make a will "testibus his
praesentibus de propriis parentibus suis5" Leofwine buys land
from Edric his kinsman "aefre in his cynn to fane and to syllanne
Sam Se him aefre leofost beo6." Sellers to Bishop Aelfwold
arranged "Saet hi wurdon sehte Saet Sa gebroSra eallae geeodon
of Sam lande, butan anum, " to whom it was bequeathed, and
that he should hold it for his day7.
Development of the incidents of family land seems therefore
to be, from absolute inalienability to private ownership within
the family, admitting of alienation within the family and by the
consent of its members8; thence to private ownership and power
of alienation outside the family with the consent of the king
and Witan, which is substituted for that of the family; and
thence to the full power of alienation without any restrictions.
An example of this last stage appears, when Wulfred grants to
the church "aliquem partem meae propriae hereditariae terrae, "
without any reference to his kin, or to the consent of the king
1 See also Cod. Dip. CLVI., CLXXXVI., 4 C. D. CLXXXVI. A.D. 804.
CCLVI., the last a very amusing record, 5 C. D. MCCXLII. A.D. 962.
in which the church, who were as 6 C. D. DCCCII. A.D. 1056.
usual beneficiaries under the will, were 7 C. D. MCCCXXXIV. A.D. 1046 ; see
attacked by a person whom the reporter also ccxxvm.
describes as "ille antiquus venenatissi- 8 Some traces of this stage may
mm serpens." perhaps appear in the customs of some
2 C. D. cccxvii. circa A.D. 880. manors, e.g. Millan in Norfolk, where,
Quaere, whether family land could if any copyholder wishes to sell his
be left to the "companions," "ye- land, his kindred have the right of
feora." pre-emption in order of nearness of
3 C. D. cxxxvu. A.D. 779. blood. Hazlitt's Blount, p. 221.
COMMUNITY LAND. 7
and Witan1. This is early in date, but it is impossible to assign
any strict limits of time to the particular stages suggested above,
which varied with each piece of land, and, as is usually the case
in changes of customary law, probably overlapped to a consider-
able extent.
Family-Land thus passes from inalienability to perfect
alienability. Wills are introduced by ecclesiastical influence, and
frequently used for clerical benefit ; the progress is towards
freedom of testation, unless the kindred are powerful enough to
prevent it. In intestacy the land is divided among all the sons
equally, and, failing sons, among all the daughters, this being
the custom which survived in socage lands after the Conquest,
and which still survives in Kent under the name of Gavelkind.
The custom known as Borough-English, the Continental Jung-
sten-Recht, whereby the youngest son succeeds to the paternal
inheritance, also exists in some parts of the country.
The progress of Family-land is thus from a property belong-
ing to the family and inalienable, to a fully alienable property,
belonging usually to the head of the family. In this progress
the position of the individual is strengthened at the expense of
the claims of the family. The most potent influence effecting
this change is to be found in the desire of the church to benefit
by gifts, or legacies in wills, themselves a clerical introduction.
II. Community Land may be regarded from two points of
view. In the first place, a certain area of land was owned by
an individual, or a family, or a community; in the second place
it was tilled by tenants who had customary rights against the
owners of the land and amongst themselves. Until recently
however it has been an accepted article of faith in England that
the early English land-system was one in which the cultivators
were themselves the owners, one in which the land was owned
by village communities or Marks. The Manor, or form of
community where there is but one owner whose land is tilled
under customary rules by free and serf tenants, is treated as a
later encroachment on this. Indeed Mr Elton confidently
assigns the parcelling out of the land into Manors to the reign of
1 C. D. ccxxv. A.D. 805—831.
8 MARKS AND
Edward the Confessor1. But the Bishop of Chester, together
with Dr Gneist, has refused to recognize the Mark as the "basis
of local administration." "It cannot safely be affirmed," says
Dr Stubbs, -"that the German settlers in Britain brought with
them the entire system of Mark organization2." He indeed
makes the Township his constitutional unit, and represents it,
as we have it in history, "either as a body of allodial owners who
have advanced beyond the stage of land community, retaining
many vestiges of that organization; or a body of tenants of a
lord who regulates them, or allows them to regulate themselves,
on principles derived from the same source3." Mr Lodge will
not even accept the Township as the unit of the Constitution, for
he argues that the historical communities were mainly dependent,
or settled on and owned by a lord, as opposed to independent, or
owning the land themselves4. This view Mr Seebohm's learned
and original work strongly supports; for he indeed makes an
unexpected attack on the very foundations of the Mark-System,
by showing that the early Swiss communities in which Von
Maurer found his primitive Marks are at least equally capable
of being explained on the hypothesis of manorial communities
holding of an abbey, as their lord5. This is not the place to
enter into a discussion as to the origin of manors, but Mr
Seebohm appears to me to prove conclusively the identity of the
manorial communities in their tenures, customs, and services,
with the communities existing before the Conquest, and
undoubtedly holding land in common. And if this is so it is,
to say the least, not improbable that these latter were dependent
communities, settled on land owned by a lord.
The importance of this as bearing on questions of alienation
of, and succession to, land seems to me to be this. Heir-land, as
explained by Lodge and Pollock, arises from the growth of
private property in a village community. Now if this com-
munity were independent, the rights of the family and individual
being established as against the rights of the community, free-
dom of alienation in the individual or family would result.
1 Elton, Tenures of Kent, p. 121. 4 Anglo-Saxon Laiv, p. 82.
2 Stubbs, i. 83. s Seebohm, Village Community, pp.
3 Stubbs, i. 85. 328—335.
MANORS. 9
But if the community were dependent, though the individual
tenant might have well-established customary rights against his
fellow-tenants, and even against his lord, in his homestead,, and
though custom might bind the lord to recognize the descent of
land to heirs, I do not see how the ordinary manorial tenant
could acquire, as against his lord, the right of alienation or
of devise. Free tenants added to the Manor might often,
as we know from Domesday, "ire quo voluerunt cum terra,"
commend themselves and their land to another lord; though
many of them again could only "ire quo voluerunt" change
their allegiance by abandoning their land, or at the utmost
alienate it so that the new tenant should hold of the manor1;
while others again "non potuerunt recedere cum terra."
But I do not think there is any evidence2 that the ordinary
villani and bordarii at this or any time could alienate without
their lord's consent; and this consent was probably more of a
reality, when Villein-services had not yet been commuted for
money, and when travelling was less common. The modern
agricultural labourer now rarely journeys into "foreign parts," as
he calls them; his ancestor of Domesday is not likely to have
been more active.
But if this is so, the alienable Heir-land of the member of a
community is of small importance, and we must look for
Heir-land elsewhere. I think it can be found in all the older
manorial communities, regarded from the point of view of the
Lord. Many of the newer thegns and great men derived their land
undoubtedly from grants by book from the folc-land, or some few
from transfers of heir-land by writing : but the older proprietors, I
think, held most of their land as Heir-land, which had descended
in their family from the original settler to whom had been granted
the manorial estate which the conquered were still tilling on
the site of the Roman villa, which their former conquerors had
abandoned3. In these lands, family rights would conflict with
the claims of the individual, and in these lands, the growth of
1 Domesday, 140, a. 2, " a vassal of Tenures of Kent, pp. 39, 40.
Asgar held this land, and might sell it, 3 See Seebohm on the local evidences
but the soke remained in Hitchin. " in -Hertfordshire. V. G. p. 424 et
2 Except perhaps in Kent : Elton, seq.
10 FOLC-LAND.
individual property, set out by Lodge and Pollock, may be traced.
This is the class of estate we find in Domesday everywhere in
England but in the Eastern and Danish counties, where the
original tillers of the soil had disappeared, and the land seems
to have been cultivated on a system more akin to a free
community, by socmen and liberi homines. Here again, we
shall find a place for Heir-land, and here the rights of the family
will not easily die out. But community-land, in the sense of
land which a free community held in tillage, in my opinion
filled a very small place in English rural economy. The English
communities were dependent on a lord.
Mr Seebohm has suggested1 that the right of succession to
the manorial holding, the equal yardland of the geburs or
villani, was to one son only, whether the oldest or youngest, for
the equal holdings could have been preserved in no other way.
This necessity, he argues, caused the abandonment of gavelkind,
or equal division, while the Jungsten-Recht, or Borough English,
an old custom of tribal households, survived in some cases to
determine which son should be the favoured one. The customs
of many manors appear to contradict this theory; and the
difficult questions of early manorial customs can hardly be
solved till the treasures of history in the Court Kolls of the
Manors are brought to light.
III. The Folc-land was the land of the folc, or people, and
it could only be permanently alienated from them by a grant in
writing, or Book, made by their representatives, the King and
Witan, when it ceased to be folc-land. But there were also estates
of folc-land concerning which very slight evidence exists, but
which appear to have been estates for the grantee's life, reverting
to the folc on his death. They were certainly not devisable
by will, nor were they estates of inheritance, descending in a
fixed line on the grantee's death. Duke Alfred's will runs : " I
bequeath to Aethelwald my son 3 hides of boc-land...smd if the
King will give him the folc-land to the boc-land, then he may
have and enjoy it, but if it shall not be so, then let my wife give
him which she will, either the land at Horsley or that at
Langafeld V This shows both that Alfred by himself could not
1 Seebohm, pp. 77, 352. 2 C. D. cccxvii.
BOOK-LAND. 11
bequeath his estate offolc-land, and also that Aethelwald, as his
son, would not eo jure inherit it. Again Abbot Wulfwold
formally recites to the scirgemot a grant by the King, as an
unfettered estate, " to give or sell during my day or after my
day to whomsoever it best pleases me," of land "which my
father held1." Here the Abbot's father appears to have held
an estate offolc-land, and the Abbot to have obtained its regrant
as unfettered book-land. But as from the nature of this tenure
no charter existed to record its incidents, it is impossible to
speak of it with any certainty. It is probable that the holder of
an estate offolc-land might alienate his interest in it during his
life, in which case the subordinate interest, as held of a definite
holder, and not of the State, would be laen-land.
B. Land held ly the terms of a writing, or Book.
In the case of Book-land, from the method of its creation, far
more information exists. If created out of Heir-land, it would
be by a simple charter or book, to which the family, or the
King, might at certain stages of its history be parties ; if out of
folc-land, the consent of the King and Witan would be neces-
sary2. But the nature of the estate granted followed strictly
the terms of the book or charter ; and of the various estates so
created we have numerous specimens. Book-land probably owed
its introduction to the clergy, who monopolized the art of
writing, and who were interested in strengthening the power of
free alienation and bequest, as against the claims of the family,
that they might turn to good use the death-bed repentances of
wealthy sinners, by procuring the reversion of their lands to
their church or monastery. But even the restrictions in a book
1 Circa 1060 A.D. C. D. DCCCXXI. derived from alienations of large es-
Kemble, Saxons in England, i. 300. tates, originally held as Heir-land, than
2 Mr Pollock is of opinion that the Mr Pollock supposes. The fact that
creations of Book-land out of Heir-land, the consent of the King and Witan
or Community Land were very slight was obtained to alienations of Heir-
(Land Laws, p. 24). For the reasons land, shows that large estates of
just stated, I am inclined to think that tenure were held, and by great
that more of the Book-land may be men.
12 ALIENATION OF
might be disregarded; at least this appears to be the peril
guarded against in Alfred's lav/ : —
" The man who has boc-land which his kindred left him ;
then ordain we that he must not give it from his kindred, if
there be writiog or witness that it was forbidden by those men
who at first acquired it, and by those who gave it to him, that
he should do so ; and then let that be declared in the presence
of the king and the bishop before his kinsmen1."
It is difficult to see how this is, as Mr Lodge argues, an
attempt to convert boc-land into family-land • it is rather an
attempt to enforce the provisions of the book, for the holder's
alienation of his boc-land is only to be restrained when such
restrictions have been imposed on the land previously. It is
curious however that the restriction is spoken of as imposed
by "those who first acquired it, or who gave it to him" (these
last being presumably the "kindred who left him land" of the
earlier part of the law). For we should expect to find the
restriction imposed in the original grant to his kindred, whereas
it appears to be added to that original grant by the dealings
of his kindred with the land. Perhaps this is explained by
the addition by will of restrictions on the originally unfettered
boc-land. It is also curious that the restrictions on alienation
can be proved not only by gewrit, the book or written will, but
also by gewitnesse, oral testimony : this may refer either to
restrictions on alienation contained in a nuncupative will, or to
oral proof of the contents of writings that have been lost.
The possessor of Book-land had powers of alienation, varying
with the terms of the book, or will, under which he held. Thus
a number of charters give an absolute power of alienation inter
vivos or by will : e.g. —
"ita ut quamdiu vixerit potestatem habeat tenendi ac possi-
1 Laws, § 41. Stubbs, S. C. p. 62. earn extra cognationem suam, sicut
Anglo-Saxon Law, p. 70. Pollock, praediximus." c. LXX. § 21. Cus-
L. L. p. 194. This law may be com- toms of Wessex. There is no previous
pared with the provision in the Leges reference in the Laws to this, but C.
Henrlci Primi, an unofficial collection 88 § 14 reads, ' ' Et nulli liceat forts
of laws and customs, partly Saxon, mittere hereditatem suam de parentela
partly Norman. "Si bocland habeat, sua, datione vel venditione, sicut dixi-
quam ei parentes dederint, non mittat rnus, maxime si parentela contradicat,"
BOOK-LAND. 13
dendi, cuicumque voluerit vel se vivo vel certe post obitum suum
relinquendi1."
" ut hdbeat libertatem commutandi vel donandi in vita sua, et
post ejus obitum teneat facultatem relinquendi cuicumque
voluerit2."
There are also, to anticipate modern terms, obvious Estates
Tail: e.g. —
" in jus possessionemque sempiternam sibimet ad habendum
quamdiu vivat, suoque relinquendum fratre germano diutius
superstes si fuerit et sic semper in ilia sanguinitate paternae
generationis, sexuque virili, perpetualiter consistat adscripta3."
" Hoc modo donatum est, ut semen masculum possideat et non
femininum ; et post obitum prosapiae illius data sit ad eccle-
siam Eofesham4" : where there is a species of Estate tail, with
remainder to the Church.
We also find estates granted by book for three lives, with a
reversion or remainder to some religious foundation5 : e.g. —
"EalhferS quanto tempore vixerit, et post se duobus haeredi-
bus, quibus defunctis aecclesiae Weogornensi restituatur":
"freolice his daeg forgeaf, and aefter his daeg twam yrfe-
weardum" (heirs) "Saem Se sylf wille." One of these books
has a note explaining that Aelfward was the first life, and the
land was then in the hands of his daughter, who was the second
life6.
The right of alienation was sometimes restricted by a right
of pre-emption on the part of the grantor. In an old deed in
the Canterbury archives, the Prior of Christchurch grants land
thus7: "G. tenebit de nobis has terras jure hereditario; et licebit
ei de ipsis tanquam de propriis facere quod voluerit, salvo jure
et redditu nostro. Ita tamen quod si eas alicui dare voluerit vel
1 A.D. 736: Kemble, C. D. i. Pref. 3 A.D. 869: Kemble, C. D. i. Pref.
XXXI. XXXIII.
2 A.D. 805. Kemble, ibid. Two other 4 A.D. 784 : Kemble, ibid.
examples are curious. A.D. 767: "quam 5 Anticipations of the leases for
is semper possideat, et post se cui lives, so prevalent in the West of
voluerit haeredum relinquat." A.D. England, and now attacked in Mr
805: " et jure haereditario firmiter Broadhurst's Bill.
fixa permaneat" — where there appears 6 A.D. 968: Kemble, i. Pref. xxxiv.
to be some sort of restriction or limita- 7 Cited by Elton, Tenures of Kent,
tion to the family. Kemble, ibid. p. 40 note.
14 LAEN-LAND.
vendere, nobis prius hoc indicabit, et nos ad emendum eas
proximiores esse debemus."
In face of all these grants, I do not understand how Mr
Digby can say: "in the Anglo-Saxon time, there was as a rule
perfect freedom of alienation in the case of book-land1." The
power of alienation must depend in each case on the form of
the grant. Every degree of ownership of book-land is found
to exist, from complete freedom of alienation, sometimes
fettered by a right of preemption in the donor, through lands
booked to the kindred, or to male heirs only, to lands booked
for a series of lives, with a reversion to the Church. And lands
might be confiscated to the donor, if the conditions of the book
were not observed. Thus where Cissa had granted to the
Church lands for the erection of religious buildings, "Ini rex
eandem terram diripiens reipublicae restituit" (i.e. the land
become folc-land again), "nondum constructo monasterio in ea>
nee ullo admodum oratorio erecto2"
Laen-land, as we have seen, comprises those estates of land
held of a definite lord, other than the State, by definite services,
not recorded in a writing. It does not necessarily imply a
grant for a fixed term, for there is only one such instance, and
that a late one, in all the charters3. But it would include all
grants of land with a reversion to the owner, not made in
writing, and would comprise the lands of a manor, both those
held by libere tenentes, and those held by geburs or villani.
Mr Lodge appears to sacrifice his authorities to logical classifi-
cation when he speaks of booked and unbooked laens. It is
true that there were booked estates in land, with a reversion
to the grantor, but so far from being called "laens" they are
even contrasted with laens*. Bishop Oswald of Worcester,
whose land-grants are very numerous, frequently grants land
thus5: — "Now there are 3 hides of this land which Oswald
booketh to Eadric his thane, ...even as he before held them as
1 Digby, E. P. 3rd ed. p. 189. (C. D. MLXII), where, in a grant by book,
2 Kemble, Saxons in England, i. the term " gelaeneS " is used.
304. C. D. XLVI. 5 C. D. DCXVII, DCLI, DCLXXIX ; Kem-
3 C. D. DCCCCXXIV. ble, Saxons in England, i. 313.
4 There is one apparent exception
RESULTS. 15
laen-land" ; and again "that he may hold it in as large measure
for hoc-land, as he before held it for laen-land."
It seems probable that these laens could not be alienated
inter vivos, but that by the terms of the grant they might be
bequeathed or limited in a fixed line of succession. A Law of
Cnut's provides that if a man holding land of a lord died
intestate (which assumes that he could bequeath his land), the
land was to be divided among his kin in proper proportions,
the lord taking his heriot1. But Alfred's translation of
Augustine indirectly shows the precarious nature of laen-land,
by illustrating the contrast between this world's turmoil and
the heavenly rest by the figure of the man dwelling on
laen-land, and hoping that his lord would convert it into
boc-land, ece yrfe, permanent inheritance2.
Collecting these results, which perhaps I state too
definitely : —
I. Alienation inter vivos. Heir-land could not at first be
so alienated as to deprive the family of its rights. It might
afterwards be alienated by their consent, which was replaced
in later times, as the position of the individual improved,
by the consent of the Crown. The restrictions on the alienation
of Heir-land became in the end practically obsolete.
Community-land could not be alienated by members of
the community without the consent of the community, or its
lord, and such alienation was probably in reality a surrender
and regrant. The lord of a manor could alienate the whole,
or part of his manor ; for from his point of view the land was
either Heir-land, or Book-land, and the customary rights, if any,
of his manorial tenants would not prevent his transferring his
interest in the land, and jurisdiction over its tenants, to another
lord. It is not likely that the question whether the community
could alienate all its land ever arose. Folc-land, as an estate
of land held by a private person, could probably be alienated
during life to the extent of the tenant's interest. The power
to alienate Book-land was determined by the terms of the book,
and varied from complete power to its entire absence, though
1 § 71. 2 Kemble, 8. in E., i. 313. Seebohm, V. G. 170.
16" SUCCESSION AT DEATH.
a tendency to disregard the terms of the Book is observable
in the latter part of the period. Laen-land could probably not
be alienated, certainly not so as to deprive the grantor of the
services due to him.
II. Power of bequest. Testamentary dispositions were
introduced by the clergy from Roman sources, and their object
was usually to benefit the Church.
Heir-land could not, strictly speaking, be devised, though
the right of the family to set aside a will was gradually
weakened, and wills determining the devolution of land
within the family became allowed.
Community-land could not be devised by the community,
which never died; and estates of community-land were
apparently not the subject of devise as of right by the
members of the community who held them, though the consent
of the lord, either in individual cases, or embodied in the
customs of the manor, might allow of such devise. Book-land
was specially known as terra testamentalis ; it was frequently
created by will ; but whether it could be devised by its holder
depended in each case on the terms of the book, as booked
estates of inheritance could not be interfered with by the will
of any one tenant under the book. Estates of folc-land could
not be directly devised, though the king, by a new grant, could
give effect to the wishes of the late holder.
Laen-land, according to the law of Cnut, could be devised,
but this must have depended in each case on the terms of the
grant.
III. Succession at death. The ordinary rule of succession
before the Conquest was that known in later times as descent
in gavelkind or on socage lands, succession to all the sons
equally, and, failing them, to the daughters equally. This
would apply to all lands not held of manors, and to manors
themselves from the lord's point of view. Mr Seebohm argues
that the manorial system of equal and indivisible yardlands
could only have been maintained by a rule of descent to a
single successor, fixed either by the custom of the manor, or
the will of the lord1. For equal division of each yardland
1 Seebohm, V. C. 176—178.
PRIMOGENITURE. 17
among the late tenant's children would naturally produce
inequality of holdings; but in many manorial records after the
Conquest this inequality is not found ; the villani hold, each
his equal yard-land, and the same manorial holding has been
in the same family for centuries. But though in many manors
a custom of succession to one son, whether the eldest, or
youngest, prevails, and though there are some traces of a
custom of primogeniture in particular manors before the
Conquest1, yet there are no traces before the Conquest of any
general rule of primogeniture, and after the Conquest there
are manors in which the custom of gavelkind descent is
found2.
The rule of primogenitary succession appears to have made
no serious inroads on the principle of equal division before the
Conquest, though the change was near at hand, and the Domes-
day Book furnishes good examples of the method in which it
would take place. At Covenham in Lincolnshire, on the land of
William de Perci, it is recorded that " Chetel and Turver were
brothers, and after the death of their father divided the land, yet
so that Chetel, performing the King's service, should have aid of
his brother Turver3." Here Chetel represents the land for the
purposes of taxation and personal service, with an understanding
that his co-heir assists him. That the representation should
become possession, and the understanding of no effect in the
eye of the King's Courts, can easily be conjectured. The
same county also affords an instance of the breaking down
of descent in gavelkind : in the Clamores, or disputed claims,
we read: — "Tres fratres, Herold et Godevert et Aluric di-
viserunt dominicam terram patris sui aequaliter et pariliter ;
solum Herold et Godevert diviserunt socam patris sui sine
tertio fratre et aequaliter et pariliter tenuerunt earn tempore
Regis Edwardi4...de soca 6 bovata...quod praedicti duo fratres
aequaliter et pariliter habuerunt socam T. R. E., eo anno quo
1 Elton, Tenures of Kent, p. 106, kind division, see Lincolnshire f. 375,
et post, p. 56. a, 2, between 3 brothers; Gloucester -
2 e.g. Highbury, and Eothley, see shire, f. 168, b, 2, between 5 brothers.
Hazlitt's Blount, pp. 159, 263. 4 Usually abbreviated T. B. E.
3 f. 354, 1, a. For instances of gavel-
s. 2
18 SUCCESSION.
idem rex mortuus est, filii Godevert habebant socam totam,
nesciunt qua ratione, utrum vi vel dono patrui sui1."
Gavelkind succession we may conclude to have been the
rule in Heir-land, and in Book-land and Laen-land, where no
special line of succession was prescribed in the grant, probably at
any rate in those manorial holdings held by a free tenure on
the lord's domain. Estates of Folc-land would revert to the
State, and Estates of Book-land and Laen-land, where special
provision for the succession was made in the grant, would follow
the lines of the grant.
Kestrictions on alienation therefore existed chiefly in Heir-
land, for the benefit of the family, and in Book-land, as the exer-
cise of proprietary rights in the original owner, to whose power
of fixing the succession by book there seem to have been no
limits.
In the first instance the order of succession is fixed by
customary law, and no power of modifying it by will exists.
Wills are introduced by clerical influence and probably for
interested motives. The power of fixing the succession by will
conflicts with the rights of the family in Heir-land, and the rights
of the remainder-man in Book-land. By both it is stoutly re-
sisted, though the family are less successful than the designated
heirs in the book. In each case the individual triumphs, in
defeating the claims of the family, and in resisting the attempts
to set aside his will, as expressed in the book. The book itself
is an encroachment on the customary law of succession, but both
books and wills are allowed by the State, because tenure by
feudal and military services has not yet developed, and it is not
yet of importance either to the Crown or to the lord that the
land should be in the hands of tenants, who can do their service
acceptably. When this stage arrives we shall find that wills
which alter the succession to land disappear.
1 i. 375, a, 2. But why Aluric did brothers held them for five manors, et
not take a share of the soca, does not pares erant" Gavelkind descent ex-
appear ; the sons of Godevert appear plains the numerous entries in Domes-
to hold by descent in gavelkind. So day of brothers who hold in par agio :
in Warwick, i. 241, a, "De Turchil cf. Wiltshire, ff. 70, b, 2; 72, b, 7 ;
tenent quatuor fratres"...and Glouces- 73, b, 1. Ellis, Int. I. 241, n.
tershire. " There are five hides, five
CHURCH LANDS. 19
There are two minor restraints on alienation, which we may
briefly notice ; the devotion of land, especially under the Con-
fessor, to religious purposes, and the creation of restraining
rights over land by mortgages. Mortgages are naturally found
most frequently in the freer counties of England. In Lincoln-
shire there are some half-dozen entries in Domesday of land in
vadimonium, and the existence of a mortgage was of course a
restraint on the alienation of the land. We find this actually
recorded in Hertfordshire, where in a certain manor "a certain
woman had 5 virgates of land under Anschil de Wara, and she
might sell them, except one virgate, which was mortgaged to
Aimer for 10s.1
Similarly ecclesiastical ownership had a restraining influence
on alienation, besides that exercised by the fact that many
ecclesiastical lands were held for one life, or at the most three.
Lands owned by the church in Domesday show more restraints on
alienation than those held either of the King, or of great Lords :
the lordship or jurisdiction "non potest separari db ecclesia," and
sometimes it is the tenant who cannot be separated, but is
bound to the land. In Wiltshire, of 32 landowners and their
land we find the entry "qui tenuerunt T. R. E. non potuerunt ab
ecclesia separari." The hundred in Hertfordshire testify that
a certain tenant "could not dispose of it from the church, but
that after his death it must return to the church2." In Wiltshire,
"Alwardus tenet tres hidas quas Ulwardus T. R. E. ab Episcopo
emit in vita sua tan turn ut postea redirent ad firmam episcopi,
quia de dominio episcopi erant3." Again: "De hac eadem terra
tres hidas vendiderat Abbas cuidam Taino T. R. E. ad aetatem
trium hominum, et ipse abbas habebat inde servitium et postea
debebat redire ad dominium V This church estate for three lives
however allowed considerable liberty to its holder, for in the
same county there is an entry: "Toti emit earn T. R. E. de
Ecclesia Malmesburiense ad aetatem trium hominum, et infra
1 f. 141, a, 2. Sometimes the mort- 133, a, 2.
gagee had the power to sell— cf. the 2 f. 139, a, 2.
entry " an Englishman held this land 3 f . 66, a, 1.
in mortgage, and might sell it" — f. 4 f. 66, b, 1.
2—2
20 CHURCH LANDS.
hunc terminum poterat ire cum ea ad quern vellet dominum1."
Here the church had not even the soc during this term of lives ;
but no similar entry occurs in the rest of Domesday. More re-
stricted estates are common : e.g. " Aluric tenuit de Abbatissa
unam hidam...ea conditione ut post mortem ejus rediret ad
ecclesiam, quia de dominica firma erat2." Sometimes the church
had not to wait till the death of the holder, but could exert its
influence before: e.g. "Hanc terram reddidit sponte sua eccle-
siae Hardingus, qui in vita sua per conventionem debebat
tenere3." In Essex a landowner "non potuit vendere sine licentia
abbatis4:" and this sometimes affected superior landowners.
Asgar held T. R. E. a manor in Buckinghamshire of the Church
at Canterbury, "so that it could not be separated from the
church5," and Archbishop Stigand himself is recorded as having
held land which he could not separate from the church6. From
an entry in Cambridgeshire "T. R. E. de hoc manerio tenuit
Ailbertus vi hidas, ita quod non potest vendere nee ab ecclesia
separare, sed post mortem suam restitueretur ecclesiae de Ely7,"
where vendere is contrasted with separare ab ecclesia, I should
infer that the latter phrase referred merely to the soke or juris-
diction, and allowed by itself a substitution of another tenant to
the estate which the alienor held of the church.
There are a large number of instances in Domesday of lands
held by the church or private persons on condition of praying
for the donor, or in frankalmoign, which of course could not be
alienated by their holders8. In Hertfordshire certain lands
"were of the alms of King Edward, and of all the Kings his
forerunners9." In Bedfordshire, Alurin a priest held T. R. E.—
one sixth of a hide : " Rex Willielmus sibi postea in eleemosina
concessit, unde pro anima regis et reginae omni ebdomada feria
duas missas persolvit." In Norfolk, " unus liber homo tenet XL
acras terrae in eleemosina et cantat unaquaque ebdomada tres
missas."
1 f. 72, a, 1. e f> 135j b> 2.
2 f. 67, b, 2. 7 f< 201, b. See also 202.
8 f. 67, b, 1. s Collected by Ellis. Introduction
4 So also in Hertfordshire, f. 141, to Domesday, i. 258—260.
b, 1. 9 f. 141, b, 2.
5 f. 143, b, 2.
KING'S CONSENT TO ALIENATION. 21
In lands devoted to religious purposes we inevitably find re-
strictions on alienation, the multiplication of which leads in the
course of time to prohibitions of alienation for such purposes.
Another alleged restriction on alienation before the Conquest
may be briefly noticed. Mr Coote has argued that " no land
before the Conquest could be alienated without the leave of the
King1." In support of this startling proposition, he adduces
some dozen charters in the Codex Diplomaticus in which the
gift is recited to be made by the leave of the king. But we
have seen that at a certain stage in the history of Heir-land the
consent of the king and witan was obtained to its alienation in
order to defeat the claims of the family ; and it is also probable
that many of the greater proprietors made their grants of book-
land in the shiremoot, or in the witan, after the fashion of
Private Acts of Parliament, as Mr Pollock suggests, and to
obtain greater security for and witness of their alienations.
These two causes are quite sufficient to account for the instances
Mr Coote cites, without having recourse to the fact that many
grants of land contain no such recital of the leave of the King.
But Mr Coote's examples explain themselves. Without a
minute examination of all, the very first he cites, runs thus :
" cum licentia et permissione regis Offani, nos tres germani, uno
patre editi, donabimus tibi, Headda abbas, terram juris nostri...
nunquam nos haeredesque nostros ullo tempore contra hanc
donationem esse ventures'2"... which is clearly a grant of family
land by the brothers who owned it, with the king's leave
obtained to bar the claims of the family. And a similar
explanation can be given of Mr Coote's other examples. His
theory of the necessity of the king's leave for alienation may
therefore be dismissed.
With regard to the methods and formalities of alienation
there are undoubted instances where a grant was made by
Book, and a symbolical transfer was also performed3. Thus in
1 Neglected Fact in English History, Nos. 114, 177 are marked by Kemble
pp. 23, 173. Romans in Britain, pp. as forgeries, but the incident may have
247 — 251. been copied from genuine charters.
2 A.D. 759. Cod. D. cv. i. 128. Black Book of Peterborough, ed. Stubbs.
3 Cod. D. Nos. 12, 104, 114, 1019 : Pollock, Land Laws, 193.
22 SYMBOLICAL TRANSFER.
the eighth century Ethelred, on a visit to Medesham, gave to
the brethren he found there 30 manentes, and confirmed the
gift by placing on the Gospels' Book a sod taken from the place.
Again a purchase of lands from the king was ratified in the
king's chamber by placing a sod from the land on the Gospels'
Book in the presence of the bishop. This symbolism might well
find no record in the books, but would play a prominent part in
transfers of Heir-land and manorial holdings under the old
customary law, where its dramatic character would impress the
memory of the witnesses. And the customs still existing in
manors of symbolical transfer, as by a straw at Wintringham in
Lincolnshire, or by a rod in some of the Norfolk manors, have
probably the same origin.
CHAPTER II.
THE EVIDENCE OF DOMESDAY BOOK.
THE question remains to what extent the land of England
was held under one or other of these tenures. We fortunately
have in Domesday Book an exhaustive enumeration of the
classes into which the landowners and cultivators of England fell
20 years after the Conquest. The land was then held and
tilled as follows1: —
( Tenants in Capita .... 1,400) 0 „,__
I. Greater Landowners < TT , „, ' „_ > . . . . 9,271
( Under Tenants 7,871)
II. Socage Tenants Sochmanni 23,072^
Dimidii Sochmanni .... 18
Liberi Homines 10,097 1
Liberi Homines Commendati 2,041
„ „ Dimidii . . 224
Homines 1,287/
III. Manorial Tenants ) Villani 108,407
by servile Tenure ) „ dimidii 49
*Buri 62 110,125
Coliberti 858
Bovarii 749
Bordarii 82,119 > 199,568
„ dimidii 15 11 82,624
„ pauperes .... 490 J
Cottarii 5,054 '
3Coscets 1,749 - 6,819/
Coterii 16,
IV. Slaves Servi 25,156
270,734
1 Ellis, Int. n. 511.
2 Apparently relics of the geburs of
the Rectitudines. Thorpe, Institutes,
pp. 186, 187.
3 Obviously the Cotsetle of the Rec-
titudines.
24 LANDLORDS AND
Out of the 283,242 persons enumerated in Domesday, over
270,000 are thus accounted for, the balance being composed of
Burgenses, 7968; tradesmen and artizans, as presbyteri, 994,
ancillae, 467, salinarii, 108, porcarii, 427, fabri, 64, etc., and
foreigners; Francigenae, etc. 352, Walenses, 111.
At the time of Domesday, therefore, the land of England can
be looked at under two aspects : I. The 9271 greater land-
owners, holding of the king or of tenants in chief, who between
them held together with the king nearly all the cultivated land
in the country; the greater part of this land was in manors,
each divided into two parts, the lord's domain, and the land held
in villeinage by the copyhold tenants of the manor. II. From
the second point of view, all this land was cultivated by the
socage and villein tenants, in all some 236,307 men. The
majority of the former held manorially by free tenure, the latter
manorially by servile tenure, and the villein tenants in addition
cultivated much of the domain land by the work they owed
to the lord. Nearly all the occupied land in the kingdom would
therefore have to be considered under two heads : I. The
rights of alienation and succession as possessed by its lords. II.
Those rights as possessed by its cultivators.
Now if we look at the land-system before the Conquest the
same double aspect is presented : the land as held after the
Conquest by the 9000 feudal landowners was probably held
before the Conquest by nobles and thegns as Heir-land or Book-
land, Heir-land being the older form of holding, while some slight
portion was in estates of Folc-land and laen-land. No settled
forms of feudal tenure existed though much of the book-land was
held with a reversion to the donor, and in the reign of Edward
the Confessor there are the germs of feudalism : e.g. " Godwin
comes tenuit B. de rege Edwardo sicut Allodium1." The Con-
queror gives to the Abbey of Westminster the manor of Everslea
" cum omnibus rebus et consuetudinibus et legibus sicut quatuor
socmanni de Edwardo rege pro iii maneriis in Allodio libere
tenuerunt2." The meaning of the term allodium as used in
Domesday is not quite certain ; in later times it is used to
1 f. 22, b, and other instances, see 2 Cotton MS. cited Ellis, i. 56, n.
Ellis, i. 54—56.
TENANTS. 25
translate "Book-land," a word which only occurs once in Domes-
day1. The term occurs most often in Sussex, where more than
80 landowners are described as allodiarii, or as holding land
T. R. E. per allodium, in many cases as a manor. These entries
are not scattered over the county, but occur in batches in
particular localities. The term probably signifies an estate
either of Heir-land or of Boc-land, with a power of alienation and
devise then unfettered. Its freedom is shown by the constant
Sussex entry "nunquam geldavit" showing the free estate, as
compared with the entry "geldavit" in a serf county like Wilt-
shire.
Looked at from above therefore we have the superior land-
owners with their grants and alienations of land, their wills and
charters, filling the Codex Diplomatics, which however from the
nature of the tenures is almost entirely confined to transactions
in Book-land, the mass of Heir-land changing hands without any
formal records surviving. And these grants usually, by the
boundaries of the land granted, clearly show that a community
in form manorial was settled on the land2.
Looked at from the inferior side we have the numerically
important class of geburs, or villani, and bordarii, whose services
and position are depicted in the Rectitudines Singularum
Personarum3. At the time of Domesday, it is estimated that 2J
million acres out of 5,000,000 in cultivation were tilled by this
class, and that the lord's demesne, for which they furnished
much of the labour, would account for another two million acres,
leaving some 750,000 acres to be tilled by the sochmanni and
libere tenentes. Now it is certain that after the Conquest the
socmen and libere tenentes are in the vast majority of instances
the free tenants of the manor, usually holding portions of the
lord's demesne, or tilling land reclaimed from the lord's waste.
And these libere tenentes may often hold other land on the
manor by villein or servile tenure. The explanation of their
existence appears to me to depend on two causes. First they
represent smaller freeholders whom weakness and the growth
1 "quod tenuerunt duo liberi homi- 2 Seebohm, V. <7., pp. 127, 128.
nes de Eege Edwardo in bochelande." 3 Thorpe, Institutes, pp. 186, 187.
Larkins, Domesday of Kent, p. 45, 1. 21.
26 COMMENDATION OF
of feudal tendencies have led to commend themselves to a lord,
and receive land, which would naturally be on his demesne,
from him to cultivate by a free tenure. That this is so is
shown by the striking fact that the sochmanni and liberi homines
in Domesday are found almost entirely in the Danish districts of
England1. Now the Danish settlers with their customs of
freedom preserved in their districts individual independence, as
opposed to dependence on a lord, longer than the rest of
England. It is not therefore surprising that these districts
should be found to be the stronghold of small landowners at
the time of Domesday ; and we may take it that the sochmanni
and libere tenentes of Domesday represent the last of the
smaller landowners, who held out as allodial and independent
proprietors.
Undoubtedly much of this change of the smaller landholders
into men under the protection of a lord, and the absorption
of the land which they had held in free tenure into the manor
of their lord, took place immediately after the Conquest, for we
have the process recorded in numerous entries in Domesday.
At Haddiscoe in Norfolk we see the process of commendation :
"hie sochmannus commendavit se Alwino tempore Wilhelmi
regis, et erat inde saisitus quando rex dedit terram Eogero
Bigoto." In Gloucestershire, "they who held these lands in King
Edward's time put themselves and their lands under the protec-
tion of Brihtric2." At Bedfont in Middlesex " three sokemen did
not belong to the manor in King Edward's time3." At Tring in
Hertfordshire we have a very full account4 : " Engelric held this
manor in the time of King Edward, and there were two sokemen
there, vassals of Osulf ; they held two hides and might sell them :
1 Percentage of socmen and free men East Anglian. In no other county are
to population. more than 4 per cent, recorded ; they are
f Lincolnshire 45 per cent. only present in 12 other counties, in 9
J Suffolk 40 ,, of which they are 1 per cent., or less, of
Norfolk 32 ,, population. In 14 counties they are
| Derby 28 ,, entirely absent.
L Notts 27 „ 2 163, b, 2.
Northampton 13 „ 3 130, a, 1.
Essex 5 ,, 4 137, a, 2.
The first 5 being strongly Danish and
SMALL LAND-OWNERS. 27
the same Engelric laid these sokemen to this manor after the
coming of King William ; and a vassal of the Abbot of Ramsey's
had 5 hides of this manor after the same manner. He could
not give or sell this land from the church of St Benedict : and
this land Engelric laid to the manor after the coming of King
William, which land was not there in the time of King Edward,
as the hundred affirm. Those aforesaid three sokemen, who are
now there having one hide, were vassals of Engelric and might
sell their land." This instance shows three stages in the
position of the socmen. At first, T. R. E. two of them held
their land as their own, with free liberty of alienation, but for
protection had eommended their persons to Osulf; the third
had commended himself to the Abbot of Ramsey, and could not
alienate his land, so that the soc or jurisdiction passed from the
church of St Benedict at Ramsey1. After the Conquest the
second stage begins. Engelric, who held the manor of Tring,
joined these socmen and their land to the manor ; the first two
changed their personal lord, but might sell their land, though
probably, as in so many other cases, the soc would remain in
Tring. The third socman had also changed his lord ; how the
soc of his land, if it was in the Abbey of Ramsey, was transferred
to Engelric, we are not told : but he could then sell his land,
subject, I presume, to the same restriction as the others.
Lastly, at the time of Domesday, Earl Eustace held the manor ;
the three socmen could sell their land and leave the manor, but
the purchasers of the land would become tenants of the manor
under the earl. Their holdings of land have decreased from 7
hides to 32.
1 This I think is the explanation of land of the church of St Peter ; he
the clause ; but it may be that the could not sell it, but after his death it
reversion of the land was in the church, ought to revert to the church, as the
in which case it is curious that it hundred testify ; but his wife vertit se
should become part of the manor, but per vim cum hac terra to Edith the
such a case is recorded in the same Fair, and held it in the day on which
county, f. 137, a, 1 : " Godwin held this King Edward died."
2 There is a similar example at Thetchworth in the same county, where "five
sokemen [all of them vassals of a lord] held this manor, nullus eorum ad ante-
cessorem Wigot pertinuit sed unusquisque terram suam vendere potuit. Horum
unus terram emit a Wilhelmo rege novem uncias auri, postea ad Wigot se vertit
TJ&IVBRSIT7I
28 RECLAMATION OF LAND.
Oar conclusion is therefore that the further we get back
from the Conquest, the more of these smaller landholders shall
we find surviving as freeholders, independent of any lord or
manor, who have not yet fallen into dependence by commenda-
tion. And this is important to our subject because the
Domesday references to such owners show that many of them
were free to alienate or bequeath without their lord's consent.
Thus at Stamford in Lincolnshire 77 socmen "habent terras
suas in dominio, et petunt dominos ubi volunt V " Potuit
ire cum terra quo volebat" is a common phrase in Domes-
day, of tenants who could commend themselves and their
1 Ellis, i. 70. f. 336, b, 2.
pro protectione". Here one of the sokemen who had commended their persons,
but whose land was free, first bought his land of the King, or redeemed it from
forfeiture, and then, finding this insufficient, attached himself and, I suppose hia
land, to Wigot, lord of the manor. In the same county (f . 138, a, 2) " a sokeman,
one of the men of Anschil de Wara, had there one virgate, and might sell it ;
and after the coming of King William it was sold, and added to the manor,
where it was not in King Edward's time6." In the same place William, a vassal
of the lord of the manor, "invasit terram suam supra regem, sed reclamat
dominum suum ad protectionem." Again, "There is one sokeman who was
not in the manor T.E.E. : he has one hide, he was a vassal of Queen Edith T.E.E.
and he might sell his land" (f. 139, b, 1). Ilbert the sheriff joined 7 sokemen
of King Edward's and two vassals of private lords to the manor "who were not
there T.E.E." (f. 142, a, 1). In Buckinghamshire, "In this manor two sokemen
hold 1| hides ; it laid not there T.E.E." (f. 143, a, 1).
In Essex we see the process going further : " There was T.E.E. a certain liber
homo holding half a hide, who has now been made one of the villeins'." Some of
the freemen who survive the Conquest are in a very anomalous position. In
Kentd, "in hoc manerio tenet unus homo, nee pertinet ad ilium manerium,
neque potuit habere dominum praeter regem." In Wiltshire, " unus tainus T.E.E.
poterat ire ad quern vellet dominum, et T.E.W. spontese vertitadErnulfum," of
whom he now holds6. In Essex there was a liber homo "who paid soc to the
manor, and yet he could go with his land where he wished :" "To this manor
were added 15 acres T.E. W., which were held by one freeman T.E.E." In this
county Engelric immediately after the Conquest is recorded as having " seized "
a number of socmen and added them to his manors, while near Sudbury 137
socmen were transferred to the domain land of Eichard, which they continued to
till. How slight the tie of personal allegiance was, as compared with the tie of
land tenure, is shown by a record in the same county of Coleman, a vassal of
Wigorn's T.E.E. "who was so free that he would go with his land and soc where
he wished'."
• f. 137, b, 2. <i Larkins, p. 22, 1. 9.
* See also two sokemen at Ware, 138, b, 2. * f. 70, a, 2.
« f. 1, b. / f. 40, b.
POWERS OF ALIENATION. 20
land to another lord ; this would not apply where the lord had
granted the land originally, the phrase being then "potuit ire
quolibet"
Again the customs of many manors show that reclamation
of waste land was one of the means by which an Englishman
before the Conquest might raise his position in life. That it
was so with the higher class of thegns we know from King
Alfred's selections from Augustine1. "It pleaseth every man,"
he says, "when he has built himself a cottage upon his lord's
laen with his assistance, to take up his rest thereon, and
provide for himself upon the laen until some day through his
lord's grace he may obtain boc-land and permanent inheritance."
The settler might clear and till a place in the forest as a laen
in the hope of obtaining from the lord a permanent and secure
tenure of inheritance. That villeins in manors improved
their position thus may be illustrated by the tenures in
several of the Sussex manors2, where the land of the manor is
divided into Bond-land, which is also called yard-land, the
ordinary copyhold tenure, and Soc-land. This latter is clearly
derived from the estates of socmanni or liberi tenentes in the
lord's demesne, and one of the modes of its creation is shown by
the fact that it is also called "Assart Land," which signifies
" cleared," while the customs of the manor contemplate that a
villein tenant may hold Assart-land as well as Bond-land.
In any attempt however to speak positively as to the
extent to which alienation is 'prevalent or possible in the
Anglo-Saxon land system, great confusion is caused by the
fact that the same land may bear various characters. Thus the
king may have granted out of the folc-land an estate by book to
one of his thegns, with succession to his heirs male. The thegn
may cultivate that land by what is practically a manorial
community of villeins or geburs, who cannot alienate their land
without his consent, but have customary rights as against each
other and their lord, to homesteads in permanence, and
temporary allotments of arable land. There may also be on the
1 Kemble, S. in E. i. 313. Seebohm, field, Warbleton, etc. Sussex Archaeo-
V. C. 170. logical Collections, vi. 175, 176.
2 e.g. Wadhurst, Framfield, Bother-
SO POWERS OF
lord's domain tenants holding in free socage, some of whom
have joined their land to the manor, but can transfer both it
and their personal allegiance to some other manor at will1 :
others who can sell their land, the jurisdiction remaining in the
manor2 : others again who cannot sell, or even leave their land
without the permission of their lords3 : while, over all their
heads, the lordship of the manor cannot be alienated, but passes
in the line of succession limited in the Book.
And an investigation of Domesday shows socmanni and libere
tenentes with every degree of power of alienation. Frequently
socmen who are in the same manor under the Conqueror, in
the time of Edward held by entirely different tenures. In
Cambridgeshire on the Manor of Cottenham4: "Hanc terram
T. R. E. tenuerunt tres sochmanni, horum unus homo S.
Ethelredae tenuit tres hidas, et non potuit dare, quae erat de
dominio ecclesiae ; alter homo abbatis i hidam habuit, et dare
potuit sine soca ; tertius homo et dare et vendere potest." Here
one could not alienate; one could alienate but could not destroy
the jurisdiction of the Abbots of Ely over the land ; the third
had free power of alienation. In another Cambridge manor, we
find the entry: "hoc manerium tenuerunt T. R. E. vi sochmanni
horum unus homo Eddeue habuit... et recedere potuit; alii
homines abbatis de Ely fuerunt...quatuor terram suam vendere
potuerunt, soca remansit abbati, et quintus habuit, et recedere
non potuit5." Here the first could leave his land but not sell it,
the last was bound to the land, and the other four can sell their
land but the soc will remain in the Abbot of Ely8.
1 potuit ire quolibet cum terra sua. licentia domini.
2 potuit ire quo voluit. 4 f. 201, b, 1.
3 non potuit vendere vel recedere, sine 5 f. 201, a, 2.
6 Hertfordshire supplies a large number of varying tenures of socmen:
"Asgar the staller held the manor of Sawb ridge worth and there were 4
sokemen there ; 2 of them, vassals of Asgar, held half a hide and might sell it
except the soke ; the third and fourth were vassals of Harold and of Alwin, and
might sell and give their land. The soke was Asgar's, and one sokeman, a
vassal of Asgar's, had besides two hides, but he could not sell them0.
" Of this manor Elmer held 4 hides for one manor. Here there were four
sokemen ; one held half a hide and might sell it. Another held one virgate, but
• f. 139, b, 2.
ALIENATION. 31
As lands within the same manor may be subject to varying
powers of alienation, it naturally follows that the same land-
holder may have varying powers of alienation over different
portions of his land. Thus in Hertfordshire "Alward held
two hides and 3 virgates in Box, he could only sell 3 virgates
of it1/' and "William holds a hide and a half of the bishop,
he might sell the half-hide, but the hide he could not sell
without the bishop's leave2."
A further confusion is introduced by the fact that the
position of landowners and tenants with regard to alienation
varies very much in different parts of England. In the Danish
counties, where socmanni and liberi homines were numerous,
and where the traditions of freedom and individual independ-
ence were strong, liberty of alienation was far more extensive
than in the west, where serfs of British origin did much of the
agricultural work. Thus in the whole of the county of
i f. 138, b, 2. 2 f> 133> b> 2.
could not sell it without the leave of Elmer his lord. The third and fourth had
half a hide and might sell it. King Edward had sac and soke over these two.
The four were the liomines of Elmer".
Archbishop Stigand held a manor in which " were 6 sokemen, vassals of the
Archbishop, and everyone had one hide ; they might sell them except the soke ;
but one of them could also sell the soke with his land*. Leman, a vassal of the
Archbishop, held this land and might sell it, and duo, sokmanni qui ibidem
sunt, held three virgates, but they could not sell without the Archbishop's
leave'.
In Greenford in Middlesex, of two sokemen, unus potuit facere quod voluit,
unus non potuit dare sine licentia domini"*.
In Cambridgeshire, the socmen were still more fettered in alienation :
" quidam socmannus Guert comitis non potuit recedere nee vendere:" "duo
sochmanni non potuerunt recedere ab eo manerio." T. E. E. hanc terram
tenuerunt quatuor socmanni, homines Waltheof comitis, horum duo tenuerunt
unam hidam, recedere sine licentia ejus non potuerunt, alii duo dare et vendere
potuerunt'.
Hertfordshire affords a good instance of the way in which land might be
changed from manor to manor : " one sokeman holds eight acres of Geoffrey in
Wickham...he himself held it T. E. E., he was a vassal of Godred's, and he
could sell it. It was of the king's soke. In T. E. E. it lay in Wickham,
Geoffrey placed this soke in Thorey where it was not T. E. E. /n
" f. 141, a, 1. * f. 142, b, 2. c f. 138, a, 2.
<* f. 129, b, 1. e f. 201, b. / f. 140, a, 1.
LINCOLNSHIRE.
Nottingham, a Danish county1, the Domesday record of the
condition of the lands T. R. E. contains no notice of any
restraint on alienation, and, a fact which is more significant
when we compare the county with such counties as Hertfordshire,
no express statement that any landowner is at liberty to alienate.
In Lincolnshire2, the county showing the largest proportion of
socmanni and liberi homines, there are only two entries concern-
ing freedom of alienation or the reverse3. The prevalence of
free landowners is also shown by the number of entries of
mortgages of land4, entries which are absent as we get further
west in Domesday. But on the other hand, in such a county
Heir-land would remain in full vigour, and alienation might be
restricted from this cause.
Lincolnshire also contains a curious example of laen-land,
similar to a yearly tenancy, and interesting from its connexion
with an historical character. The men of the county say that
certain land " fuisse dominicam firmam monachorum : Ulchel
abbatem commodasse earn ad firmam Herewardo sicut inter eos
188
1 Nottinghamshire : Ellis, n. 476.
Domesday population . . 5,686
tenants in capite
under tenants.
socmanni 1,516
villani 2,603
bordarii 1,101
servi 26
burgenses 176
2 Lincolnshire : Ellis, n. 465.
Domesday population . . 25,305
tenants in capite
and under tenants
socmanni 11,503
villani 7,723
bordarii 4,024
servi 0
burgenses 1,329
3 'Note, viz., one as to burgesses of
Stamford : "In his custodiis sunt 77
mansiones socmannorum, qui habent
terras suas in dominio, et qui petunt
dominos ubi volant, supra quos rex
nihil aliud habet nisi emendationem
forisfacturae eorum et heriete et thelo-
neum, " f . 336, b, 2 ; one as to the Free
Manor of Hacam [quaere an independ-
ent community: cf. "free soke," ff. 368,
b, 1 ; and " habebat tria maneria in
propria libertate de rege Edwardo, f.
376, b, 1]. This entry, after an enu-
meration like an ordinary manor, con-
tinues "In hac villa habuit Eobertus
presbyter i carucatam terrae de rege in
eleemosina et modo cum eadem terra
effectus est monachus in Sancta Maria
Stow. Sed non licet terram alicui
habere nisi regis concessu." [f. 345,
l,a].
Here it seems that as Eobert's land
was granted by the King in alms, the
King's consent is necessary for anyone
to hold it. I suppose St Mary of Stow
had some rights over the land, as
Kobertus became a monk there cum ea
terra. If the entry referred to all
land in the manor, it would come
earlier.
4 ff. 367, a, 2; 377, a, 2, etc.
HERTFORDSHIRE. 33
conveniret unoquoque anno, sed Abbas resaisivit earn antequarn
Herewardus de patria fugeret, eo quod conventionem non
tenuisset1."
In a less Danish county, Hertfordshire2, in which there is
only one per cent, of socmanni and liberi homines as against
86 per cent, of villani and bordarii3, we find entries of powers of
alienation constant : some 50 tenants of church land have the
entry " et potuit vendere" and in the lands held by lay tenants
in chief, some 60 tenants may sell their terra, while of some 25
it is said " tenuit hoc manerium et potuit vendere*" There are
many entries of church tenants who cannot separate their lands
from the church, and of lay tenants who cannot separate the
soke of their land from some manor, usually either Hitchin or
Tring. Some church tenants cannot sell without the leave of
the church, nor some lay tenants without the leave of their lord.
Some church tenants, though sokemen, could not sell at all6;
whilst on the other hand some sokemen could sell the soke with
their land. The powers of alienation possessed by nearly every
free landowner except the tenants in capite T. R. E. are stated,
and I should infer from this fact that the county was in a
transition state from the freedom of the older and Danish shires
to the servile holdings of the western counties.
In Essex6, a very common holding is : "non potuit vendere
1 f. 377, a, 2. Derman in Bradewater Hundred (f.
2 Hertfordshire. Ellis, n. 456. 142, a, 2), at Wodetone and Walchra;
Domesday population . . 4,927 of which the two phrases are used. It
tenants and under tenants 239 is true that Walchra is called mane-
socmanni i rium, but from the description of
liberi homines \ ' Wodetone, which has demesne, villani,
villani ....... 1,830 bordarii, and is held of the King, it is
bordarii 1,107 clear that it too was a manor.
cotarii 837 5 f . 138, a, 1.
servi 550 6 Essex. Ellis, n. 441.
3 As compared with Lincolnshire Domesday population . . 16,060
with 35 per cent, socmanni, and 46 per tenants and under tenants 615
cent, villani and bordarii. sochemanni )
QQ A.
4 I cannot discover any distinction liberi homines )
between these two entries to explain villani 4,087
why one should be used and not the bordarii 8,052
other. Anyone curious in the matter servi ........ 1,768
may test his theory by explaining the burgenses 601
difference between the two holdings of
s. 3
.34 SUSSEX AND KENT.
sine licentia domini"; sometimes varied where the person also is
bound by " non potuit recedere sine licentia domini." Many
socmanni are bound in this way: e.g. "xn socmanni qui non
recedere potuerunt de terra sua," and a number of socmen
T. R E. are recorded as forcibly added to manors T. R. W. The
large number of bordarii and servi show a population in
considerable dependence, which is curious when we consider
the early settlement of Essex, and its proximity to the Danish
counties.
In Sussex1 a far freer state of things is found to exist
T. R E., though the county is not uniformly free, and at the
time of Domesday there is an entire absence of free tenants of
a manor. But we find constant entries of allodial tenure
T. R E. More than 80 then tenants of land are spoken of as
allodiarii, or holding per allodium, followed by the significant
free entry " nunquam geldavit": there are 35 tenants, qui
potuerunt ire quolibet, and 5 more who could carry their land
with them2. Entries of restriction, e.g. "Wenestan tenuit de
Oswardo, nee quolibet ire potuit," are very scarce, and I should
infer that freedom of alienation was the rule in the county
before the Conquest, and that most of the minor free tenants
found death or the forfeiture of their lands at Hastings.
Kent3 gives curious results, for Kent is the county in which
the old Saxon custom of equal division in intestacy has
survived : the "yeoman of Kent with his yearly rent" is well
known in English ballads, and, for prose, the Law Courts of the
fourteenth century laid down that there was no villeinage in
Kent, and that a man's freedom was established by showing
that any one of his ancestors was born in Kent4. But Domesday
1 Sussex. Ellis, u. 496. Domesday population . 12,205
Domesday population . 10,410 tenants and under tenants . 225
tenants and under tenants . 549 socmen 44
villani 5,898 villani 6,597
bordarii 2,497 bordarii 3,118
cotarii 765 cotarii 364
servi 420 servi 1,148
burgenses 260 burgenses 661
8 potuit ire quolibet cum terra sua. 4 pollock, p. 206. Y. B. 30 and 31
3 Kent. Ellis, n. 459. Edw. I. 168.
WILTSHIRE. 35
shows a large number of manors ; five-sixths of the population
are manorial tenants, and there is a fair proportion of slaves.
There are very few entries respecting powers of alienation in
the Domesday of Kent, and those found relate to freedom of
alienation, which we should therefore infer to be the exception.
Four tenants potuerunt ire quolibet cum terra, and four potuerunt
se vertere quolibet cum terra, six potuerunt se vertere quolibet, one
qui potuit ire quolibet, and one qui potuit ire quolibet sine licentia
domini. There are no entries of the simple power of sale, or of
any other restrictions on it. In fact it is not very easy to draw
any inferences as to the condition of the county before the
Conquest, or to see any reason for the exceptional survival of
the old customs after it1.
Travelling west, we find a state of things distinctly less free.
In Wiltshire2, which has a large proportion of slaves, and an
entire absence of socmen and liberi homines, the records as to
alienation are usually merely entries that the tenant potuit ire
quo voluit ; that he had liberty to take his land with him is
never recorded. There are a large number of church leases, and
over 30 entries "qui tenuerunt T. R. E. non poterant ab
ecclesia separari" ; while the constant statement geldabat shows
the servile nature of the tenures and the probable absence of
power to alienate the land.
These examples show the complexity of the Anglo-Saxon
land system, especially in the reign of the Confessor, at a time
when the germs of feudalism were developing, and the piety of
the monarch was fettering much of the land with religious
services. Powers of alienation and devise, and the order of
succession, were different according to the character of the land,
the mode in which it was acquired, or even the county in which
it was situated. Lands in the same manor or hundred might
have different qualities, and lands of the same owner might be
1 v. sub. pp. 60 et seq. bordarii 2,754
2 Wiltshire. Ellis, n. 501. cottarii 1,697
Domesday population . 10,150 coliberti 260
Tenants in chief and ) servi 1,539
under tenants \ ' burgenses 295
villani 3,049
3—2
36 RESULTS.
in his power to a different degree. The restraints which
existed on alienation were either in the interests of the family
as in heir-land, of the will of the donor as in book-land, of the
church, or of the lord or possessor of the soc or jurisdiction.
Against the first two of these the interests of the individual
tenant for the time being were successfully struggling. Re-
straints imposed for the two latter causes, and especially those
created in the interests of the lord, grew to such an extent that
they strongly fettered most of the land in England.
CHAPTER III.
FEUDAL LAND LAW.
ALTHOUGH the germs from which a feudal system, or one in
which the organization of society is based upon the tenure of
land, might develope certainly existed in England before the
Conquest, the Feudal System as it grew in England after the
coming of William was undoubtedly of Norman introduction.
The essential features of feudalism are tenure of land by each
landowner of a superior to whom he is bound by a tie of
personal fealty, from whom he receives protection and security,
and to whom he owes services, usually military, as the conside-
ration for his enjoyment of the land. The English system
shows in addition a personal tie of fidelity to the king as
supreme landowner, which overrides the vassal's fealty to his
immediate lord, and which tends to counteract the disruptive
effects of the continental feudalism, in which the great tenants
in capite were each an almost independent potentate over
whom the king, his nominal lord, had practically no control.
The justification of the system is the organization for
national defence which it provides at a time when nations and
lands were only safe in the possession of the strong man armed.
For agricultural purposes there was no advantage except
comparative security of tenure : the reason of the system was
not so much the efficient, as the safe, tilling of land.
It cannot be truly said that feudalism was imposed on
England at one time or by one measure. Its greatest effects
were seen among those who owned the land ; the condition of
the cultivators was at first but little changed. The Folc-land
38 RISE OF
of before the Conquest became the Terra Regis of the Norman
kings; the large estates of the principal English nobles were
confiscated by William and distributed by feudal tenure among
his leading followers, who in their turn rewarded with grants
of land to be held of them by military service the armed men
in their train. But it is not probable that the cultivating
portion of the nation was much affected in tenure by the
Conquest, except in those counties whose fyrd fought for
Harold at Hastings, or which King William laid waste in the
north, or in the case of the smaller freemen whose land was
too insignificant to confiscate, and whose very insignificance
led them to commend themselves and their land to a lord1.
According to many writers, the period of the Conquest
was marked by the rapid conversion of independent village
communities into manors dependent on a lord, but Mr
Seebohm's investigations have gone far to disprove this theory,
and if this is so, if communities in form manorial were widely
prevalent before the Conquest, the tenure of land from the
point of view of its cultivators was practically unchanged,
though the tenure of the owners of the land became more
definitely feudal, and the services they rendered more precise.
The English feudal system grows rapidly into completeness :
Ranulf Flambard, the justiciar of William Rufus, is the first
to give it definiteness, by developing its incidents on a logical
basis in the interests of the superior lords. Such legislation
as we find is in the interests of the greater landowners, and
the complaints as to the working of the system are of the
uncertainty of the incidents of its tenure, which enables
tenants to be oppressed by extortionate demands. When the
commutation of personal service for money payments, which
dates from the institution of scutage by Henry II. in 1159,
sets in, the system becomes rather a financial boon to the
lords than a system of national defence, and from the region of
finance we shall be brought to consider the commercial aspect of
the land question.
Of the Saxon tenures of land Folc-land, as we have seen,
became the Terra Regis ; the land of free communities, if any
1 r. supra, pp. 9, 26.
FEUDALISM. 39
such existed, was probably converted in manorial form into the
property of a lord, the tenure of its cultivators changing for
the worse, though their dependence ensured their protection.
The land of manorial communities was not affected as regards
its cultivators, though its lord held by a definite feudal tenure.
Heir-land, as a tenure, and so far as large proprietors were
concerned, was probably entirely superseded by the feudal tie,
though traces of its incidents remained in the restraints on
alienation noticed by Glanvil, probably also among the smaller
proprietors who did not hold their lands by military service,
and in the free tenants of manors ; this survival would be
helped by the abolition of wills of land. Book-land, in the
sense of a tenure continuing under the Anglo-Saxon "books,"
entirely disappeared, though the grants of land made by
charter were of a similar nature, with the addition of the
annual services and rents. Tenures, from the landowner's
point of view, were much simplified, as landowners fell into
two classes ; those holding of the king or of mesne lords by
military tenures of various kinds, a class which comprised the
great mass of feudal tenants, and those holding by free and
peaceful services, the free tenants in socage. From the
cultivator's point of view we have still the free tenants of the
manor holding by free and certain services, contrasted with
the villani, and lesser manorial tenants, holding, though often
freemen themselves, by servile tenure and uncertain services.
The history and incidents of the tenure of the landowners
however concern us most here.
I. Alienation during life. This might affect two interests
in the land, those of the heir of the alienor to whom the lands
should otherwise descend, and those of the lord of the alienor
to whom the services from the land were due, to whom the
lands might escheat, and who might have limited his grant by
prescribing a line of descent for the land.
To deal first with the case of a simple estate of inheritance,
or a grant in fee by the lord, we find in Glanvil, writing about
1180, restraints in the interests of the heir, of which no traces
are found afterwards. These appear to be derived from the
incidents of Heir-land, though the statement of them is not
40 POWERS OF ALIENATION
very precise. According to Glanvil1, a landowner may during
his life alienate a certain portion of his land (quaedam
pars terrae) with or without the consent of his heir, and
he instances grants in maritagium to his daughter, or in elee-
mosynam to the church. He defines this quaedam pars
terrae a little more precisely as rationabilis pars terrae*. But
this alienation is restrained by the condition that it must not
deprive his sons of their share of the inheritance. Thus if he
possesses land acquired by inheritance, and also land acquired
by purchase (per questum), he may alienate the whole of his
purchased land, without the consent of his heirs ; but in the
case of his lands acquired by descent, if he has heirs, he may
only alienate the "reasonable part," an alienation which his heirs
will be bound to warrant. Of his socage lands he cannot grant
to any of his sons during life a share of his hereditary land,
larger than would descend to that son on his father's death.
If he has only acquired land by purchase, the strict rules as to
alienation apply to that also ; he has only free power of alienation
over his purchased land, when he has inherited land with which
to satisfy the claims of his children. These restrictions seem
framed in the interests of the heir; a similar distinction
between inherited and purchased lands appears in the customs
of some manors3.
This passage in Glanvil receives some confirmation from
two passages in that part of the unofficial compilation, known
inaccurately as the "Laws of Henry I.," which purports to treat
of the " Customs of Wessex," viz. —
"Primo patris feudum primogenitus films habeat; emptiones
vero, vel deinceps acquisitiones suas det cui magis velit. Si
bocland habeat quam ei parentes dederint, non mittat earn
extra cognacionem suam4."
"Et nemo forisfaciat feudum suum legitimis heredibus
suis, nisi propter feloniam vel reddicionem spontaneam; et
1 Gl. vn. 1. shire, where lands acquired by descent
2 The Mirrour of Justice, c. 1, § 3, pass to the youngest son, lands
speaks of it as " one fourth," but the acquired by purchase to the eldest.
Mirrour is hardly reliable. Hazlitt's Blount, p. 38.
3 e. g. Brigstock in Northampton- 4 L. 70, § 21.
DURING LIFE. 41
nulli liceat forismittere hereditatem suam de parentela sua
datione vel venditione...maxime si parentela contradicat1.
These extracts point to the relics of Heir-land, limited in
descent to the family, and protected from alienation, and to
its distinction from land acquired by purchase.
It would seem to follow from the feudal theory of a personal
and territorial tie between lord and vassal, protection and
property granted for service and fidelity, that the tenant under
the grant could not substitute another in his place without
the consent of his lord. Such was, we know, the rule of
continental feudalism, and it is stated by Sir Martin Wright
to have been the law of England2. It is all but certain
however that this rule did not prevail in England; that
alienation by a tenant of the whole of his land, so that his
feoffee should hold in his place of the chief lord, could not be
prevented by his lord, except in the case of tenants in capite,
for whose alienations the king's license became requisite about
the year 1236. But while this was so, the tenant could not
alienate part of his land to be held directly of the lord, for
thereby the lord would be deprived of his right to distrain on
the whole seigniory for the whole of the services. The tenant
could however alienate part of his land to be held of himself
as mesne lord until the passing of the statute Quia Emptores.
Bracton states the law in accordance with this3; he says
that in cases where there is no special restriction in the
donation, the tenant may alienate to whom he will, for though
there may be a damnum to the chief lord yet there is no
injuria, or legal wrong. He denies, " salva pace et reverentia
capita-Hum dominorum" that the lord loses his services ; for the
lord, he says, cannot claim more of right than the certas
1 L. 88, § 14. ab homagio et extinguitur homagium,
2 Wright on Tenures, pp. 154 — 167. velit nolit dominus capitalis, et incipit
3 The chief passage of Bracton on in persona feoffati. The whole subject
the subject, besides that cited in the has been carefully discussed by the
text, is, — f. 81 — si tenens...se dimi- Lords' Committee of the Dignity of a
serit ex toto de haereditate sua et Peer, 1st Eeport p. 398 ; see also Coke,
alium feoffaverit tenendum de domino u. 66.
capitali, ex quo casu tenens absolvitur
42 POWERS OF ALIENATION
consuetudines et cerium servitium, which he has agreed should
be paid to him, " et sic tollat quod suumfuerit et vadat1."
The tenant could however alienate parts of his land to hold
of himself; or he could alienate parts of his land in socage,
whereas he held them by military tenure. All these feoflments,
sub-feoffments and changes of tenure rendered the chance of
the superior lord's obtaining his due services more precarious,
for the under-tenant in his turn might enfeoff another to hold of
him ; or the tenant, instead of enfeoffing an under-tenant for
the whole of his lands, might enfeoff four, six, or a dozen, each
for a part of the lands.
This difficulty the greater lords attempted to meet by
legislation ; and in the second re-issue of Magna Charta by
Henry III. in 1217 the following clause appears:
" Nullus liber homo de cetero det amplius alicui vel vendat
de terra sua, quam ut de residuo terrae suae possit sufficienter
fieri domino feodi servitium ei debitum quod pertinet ad
feodum illud2." For the breach of this proviso there was no
penalty: it seems to have been held that the remedy for an
alienation which contravened it was not in the chief lord, who
might be injured, or in the mesne lord who made the grant,
" quia nemo contra factum suum proprium venire potest," but in
the heir of the mesne lord, who could enter and avoid the
grant3; and it was hoped that such grants would be restrained
by the prospect of their nullity at the will of the grantor's heir.
But this penalty was altogether inadequate, as the action of the
heir could be averted by his joining in the grant, in which case
he and his heirs were bound. The proved inadequacy of this
remedy led in 1290 to the enactment of the well-known statute,
entitled Quia Emptores, which is expressly stated to have been
passed ad instantiam magnatum regni.
1 f. 45, b, cf. f. 46, b. "Cum donatio tate donationis sequatur, quod dona-
facta a domino tenenti suo perfecta torius de re data facere possit quod
sit et libera, pura et non conditionalis voluerit, si rem ulterius dederit, domino
nee servilis, ex hoc non fit domino suo non injuriatur, cumtotumhabueiit
injuria, si tenens ulterius dederit, ex quod ad ipsum pertinuerit."
hoc enim provenit injuria si contra 2 § 39.
modum vel conventionem det.. Ex liber- 3 Coke, Ins. n. 66.
DURING LIFE. 43
Before we consider the effect of this statute we may deal
with the alienation of lands held by tenants in capite direct
from the king. Whether from the importance of the due
rendering of services from these lands, or from the royal power,
the consent of the king was necessary to the alienation of these
lands1. It was however disputed whether alienation without
such a license worked the forfeiture of such lands, or merely
entitled the king to a fine, inasmuch as his consent was usually
purchased by a fine. In 13042 we find the king claiming that
an advowson, which had been appendant to a manor held of
the king, but had been severed and held in gross, was forfeited
for alienation without license : the counsel for the king urge :
" If it were a thing that could be distrained such as land, and
were holden in chief of the king and alienated against his will,
it would be taken into the king's hands until the purchaser had
made satisfaction with the king, and if it were a serjeantry, it
would be forfeited": but the case seems to have been decided
against the king by the peculiar nature of the subject matter.
The dispute was terminated in 1327 by the passing of a
statute3: — "Whereas divers people of the realm complain that
they are grieved because that lands and tenements, which be
holden of the king in chief and aliened without license, have
been seized heretofore into the king's hands and holden as
forfeit, the king will not hold them as forfeit in such a case,
but willeth and granteth from henceforth that of such lands
and tenements so aliened there shall be reasonable fine taken
in the Chancery by due process."
After the passing of this statute the king's officers,
probably in the attempt to increase the royal revenue, began to
raise questions as to the validity of alienations made in earlier
times, as to which there was no record of the king's license.
This question was disposed of in 1360 by a statute which
enacted that "concerning alienations of lands and tenements
made by people which did hold of King Henry III. or of other
kings before him, to hold of themselves, such alienations shall
1 Coke, ii. 65, 66. This probably be- 2 Y. B. 32 Edw. I., pp. 35—38.
came necessary in the reign of Henry Bolls Series.
III. Digby, R. P., 3rd ed. pp. 131, 132. 3 1 Edw. III. c. 2, § 12.
44 STATUTE OF
stand in their force, saving always to the king his prerogative
of the time of his grandfather, his father and his own time1."
The effect of this was that alienations made before the reign of
Edward I. would be safe from fine or forfeiture, though made
without the king's license, but that alienations without license
since that king's accession must pay fines to the Crown, These
fines were in the case of alienation with license one third of
the annual value of the land, in the case of alienation without
license, one year's value2.
The celebrated statute, Quia Emptores*, forming the first
part of the statute of Westminster the Third, and passed in
1290 by a Parliament in which only the Lords Temporal and
Spiritual were present, is, as the Bishop of Chester observes,
" one of the few acts of legislation which, being passed with a
distinct view to the interests of a class, have been found to
work to the advantage of the nation generally4." A very
modern preamble recites that, " Whereas purchasers of lands
and tenements held in feud of magnates and others have in
time past most often entered into such feuds to the prejudice of
the said magnates, in that the free tenants of the said magnates
and others have sold their lands and tenements to such
purchasers to be held in feud to them and their heirs of the
feoffors and their heirs, and not of the chief lords of those feuds,
by which the said chief lords have often lost the escheats
marriages and wardships appertaining to such lands and
tenements held in feud of them ; which seemeth very hard and
strained to the said magnates and like unto a plain dis-
inherison"; and then proceeds "our lord the king... at the
instance of the magnates... enacted that any free man may sell
his land or tenement or part of it at his will, but so only that
the feoffee should hold such land or tenement, or part of it of
the same chief lord, and by the same services and customs, that
the feoffor held of and by. And if he shall sell any part of the
same lands or tenements to anyone the feoffee shall hold it
immediately of the chief lord, and shall be bound immediately
1 34 Edw. III. c. 15. 3 18 Edw. I.
2 Eeport on the Dignity of a Peer, 4 Stubbs, S. C.,p. 468.
i. pp. 398—401.
QUIA EMPTORES. 45
by the services which ought to pertain to such chief lord for
that part according to the amount of land or tenement sold ;
and so in that case that part of the service to be taken from
the hand of the feoff or1 shall cease to the chief lord, because
the feoffee owes (it) to the chief lord, being responsible for that
part of the service so owed according to the amount of land or
tenement sold."
The effect, in brief, of this statute was that tenants in fee
(per feodum) could no longer alienate their lands in fee so as to
create a subordinate fee holden of themselves, but that such
alienations would at once destroy the feoff or's interest in the
land and make the feoffee a tenant of the lord by the same
tenure and services, as those by which the feoffor had held.
The statute stopped the creation of new manors, of new tenures
in frankalmoign, and also the endless subinfeudation which was
taking place ; for an alienation in fee now created no new estate,
but only changed the person who held the old one. When
military services became commuted for fixed money payments,
and with the decrease in the value of money these payments
became small in amount, the feudal tenures became more
vexatious than profitable, and the Act of 1660 which changed
them all into estates in free and common socage, virtually
converted them into our modern freehold estates in fee simple.
Such was the law as to alienations inter vivos of tenements
held in fee, or without any restrictions in the grant2. And
there is nothing in Glanvil which shows that any restrictions
on the grant, analogous to the old restricted books, then
existed, though he mentions customary restrictions similar to
those of Heir-land3. But just as grants had been made before
the Conquest with restrictions on alienation, so after the
Conquest these restrictions reappeared. Their most important
form is the feudum talliatum or limited fee, in which the
descent was cut down4 to a limited class of heirs. Bracton
gives this in two forms : —
1 I readier manum feoffatoris ; ma- 2 But see post, p. 47, for a more
num feoff ati, the reading of some ver- difficult point as to such alienations,
sions of the statutes and of Coke, 3 Gl. vn. 1.
makes nonsense. 4 Fr. tailler.
46 LIMITED ESTATES
" Do tali tantam terrain habendam et tenendam sibi et
haeredibus suis, quos de carne sua et uxore sibi desponsata,
procreates habuerit" ; and
" Do tali et haeredibus suis, si haeredes habuerit de corpore
suo1." He also cites other instances of restrictions in the
grant; e.g.:—
" ne res detur alicui praeterquam ipsi donatori " :
" ne cui detur a donatorio vel haeredibus suis2." He also
mentions twice a form of restriction : " licet donatorio rem
datam dare vel vendere cui voluerit, exceptis viris religiosis et
Judaeis3"; where the first part of the restriction appears
connected with the policy which terminated in the statute De
jReligiosis*. In case of an alienation contrary to these latter
conditions, Bracton says that the donor's only remedy will be
"ex conventione agere ad suum interesse" both against his
donee, and the possessor of the land, to reclaim it, unless there
has been an agreement that, in case of an alienation contrary to
the terms of the gift, the donor may re-enter on the land, in
which case he may do so against the possessor, as well as against
the donee.
Where there is a gift in any way restricted by the donor
there are two interests which may be created by the restriction
and defeated by alienations contrary to it, the interest of the
heirs, and the interest of the lord5. It is fully established by
the time of Bracton that the heirs obtained no independent
interest in the land by their mention in the grant, but had only
the possibility of succession to their ancestor; the words
haeredibus suis in a grant " to A and his heirs," to use modern
technicalities, were words of limitation and not of purchase6."
As against his heirs therefore the tenant could fraely alienate,
and they would be bound to warrant his grants.
As against the lord the matter is not so clear : his right was
that of escheat on failure of heirs, or of heirs of the particular
1 Br. ff. 17, b, 47. 4 v. sub. pp. 64, 65.
2 Br. ff.47, b, 48; of. Britton n. 5, 3, 5 There are no traces in Glanvil of
par la condicioun que il ne doigne ne safeguards in the interest of the lord.
aliene. 6 Br. f. 17.
8 ff. 13, 47, b.
IN LAND. 47
class to which he had limited his grant, and we should naturally
expect that, while, so long as there were heirs in existence of
the class named in the grant, their ancestor's grant would avail
against them, it would also avail against the lord so long and
no longer, for his right of escheat would vest when all such heirs
were extinct, and not till then.
In the case however of estates in fee, or "to A and his
heirs," Mr Kenelm Digby and Mr Reeves assert1 that the
failure of A's heirs did not cause his fee to escheat, if he had
previously alienated. Mr Joshua Williams holds that at the
time of Bracton they did2. The most important passage on this
point is where after citing a grant : Do tali et haeredibus suis,
Bracton continues : — " Item augere potest donationem, et facere
alios quasi heredes...ut si dicat in donatione, ' habendum tali et
haeredibus suis, vel cui terram illam dare et assignare voluerit,
et ego et haeredes mei warrantizabimus eidem T. et haeredibus
suis vel cui illam terram dare voluerit vel assignare et eorum
haeredibus, contra omnes gentes.' In quo casu si donatorius
terram illam dederit vel assignaverit, si donatorius et haeredes
sui defecerint, donator et haeredes sui incipiunt esse loco
donatorii et haeredum suorum, et pro haerede donatorii erunt,
quoad warrantizandum assignatis et haeredibus eorum, per
clausulam contentam in charta primi donatoris quod quidem
non esset, nisi mentio fiat de assignatis in prima donatione3."
Mr Digby gathers from this that the only practical effect of the
*' assigns clause " was to bind the donor to warrant the title of
the assigns of the donee, who had the power of alienation
without any special words. If this is so, I do not see the use of
the limitation to the donee's assigns, as well as the warranty
clause to them4. Mr Williams' contention seems to me more
correct, and it is supported by a passage of Bracton, which
neither writer appears to notice : viz. — " Et per hoc quod
dicatur ' tali et haeredibus suis ' vult donator quod comprehen-
dantur certae personae ad quas descendere debet res donata
post mortem donatorii per modum donationis, et per quod
1 Digby, R. P., 3rd ed. , p. 137, note 2 ; 3 Br. f. 17, 17, b.
Reeves i. 320. 4 Cf. Britton n. 4, 2; f. 91.
2 Williams, R. P., 15th ed., p. 63.
48 CONDITIONAL GIFTS.
perpendi poterit, si tales heredes defecerint, quod per modum
taciturn reverti debeat res donata ad donatorem1." I think
therefore that at the time of Bracton a grant to A and his heirs
gave A a power of alienation which could be defeated by the
lord on the failure of A's heirs, but not till then.
I think this was also the case in what Bracton calls
conditional gifts2. His curious grant: "A et haeredibus suis, si
haeredes habuerit de corpore suo," acts as a grant in fee simple,
conditional on A's having heirs of his body: as soon as he has them,
his liberum tenementum or freehold estate for life will become
a feodum or freehold estate in fee simple ; he can alienate the
fee and his alienation will not be defeated by the failure of
heirs of his body. But if the donation be per modum, as " Do
A tantam terram habendam et tenendam sibi et haeredibus
suis quos de carne sua procreates habuerit/' A will have at once
a freehold and a fee ; he can at once alienate it, at any rate for
his own life estate, though both his estate will revert and his
alienations be defeated if he either has no heirs of the body, or,
having had them, they have failed.
The most accepted text- writers agree3 in stating that before
the statute De Donis Conditionalibus the donee of an estate
granted to him and the heirs of his body, which they call a
"conditional gift," could not aliene till he had heirs who
satisfied the description in the grant, but that on their birth he
could alienate in fee, and (apparently) that his alienations
would not be defeated by the failure of heirs of his body. I
think it very doubtful whether this is the law as stated by
Bracton. He divides donations into4 : —
I. Simplex et pura ; ubi nulla est adjecta conditio nee
modus.
II. Sub modo; modus enim dat legem donationi... haeredes
coarctari poterunt per modum donationis : e.g. to A and the
heirs of his body.
1 Br. f. 35 ; cf. Fleta 197; Britton of the above ' curious grant ' in the law-
ii. 8, 6. courts is given in L. Q. E. n. 409.
2 The substance of the next two 3Digby,U. P., 3rded., p. 138, note 6;
pages has appeared in an expanded p. 154. Pollock, Land Laws, p. 64.
form in the Law Quarterly Eeview, n. Williams, E. P., 15th ed. , pp. 59, 64.
276—278 ; while a note of an instance 4 ff. 17, 17, b, 18.
IN BRACTON. 49
III. Conditionalis ; do tali et haeredibus suis, si haeredes
habuerit de corpore procreatos.
The second class is sometimes called a Conditional gift, not
as Mr Pollock and Mr Digby seem to put it, because of its
condition of the birth of an heir of the class named, but because,
as Bracton and the preamble to the statute De Donis explain,
of the express or implied condition of reversion to the donor on
failure of issue. In conditional donations (class III.) it is true
that A has only an estate for life, until issue are born, arid
that on their birth he has the fee, but Bracton carefully dis-
tinguishes this result from that of a Donatio sub modo, thus1 : —
"si dicat 'Do tali et haeredibus suis, si haeredes habuerit de
corpore suo2,' statim erit liberum tenementum donatorii, sed
nunquam feodum nisi cum tales haeredes habuerit, propter
conditionem, quae dependet ex fortuna...Si autem sic dicatur
'Do tali et haeredibus suis, de corpore procreatis3/ statim
erit perfecta donatio, et feodum donatorio, licet in fine adda-
tur talis condicio (of reversion on failure of heirs), nihilomi-
nus perfecta erit donatio ab initio...sed resolvitur sub tali
condicione."
By the end of the 13th century, when the statute De Donis
was passed, the grant to " A and the heirs of his body " seems
to have been treated as a conditional gift, Bracton's distinction
having disappeared, though one of the examples cited in Britton
is Bracton's conditional gift "to A and his heirs, if he have
heirs of his body4." Britton also writes of it as clearly established
that the birth and subsequent failure of heirs of the body did
not affect the descent of an estate thus granted and aliened, for,
the condition being satisfied by the birth of heirs of A's body,
A had then the fee. I should suppose however that even this
grant would escheat on the failure of the heirs general of A,
though he had aliened it. But we know from Britton and the
statute De Donis that by the end of the century the failure of
heirs of the body in a grant to " A and his heirs of the body,"
1 f. 47. "so that he will be able to give and
2 A conditional gift. alien the land although the issue "
3 donatio sub modo. (? of his body) fail because the condi-
4 Brit. n. 5, 5. f. 94, A. D. 1290 : tion is satisfied.
s. 4
50 DE DONIS
did not then give the lord an escheat if A had aliened before
the failure, whatever it might have done at the time of Bracton.
Through this interpretation of limited and conditional grants
lords lost their escheats and their will as expressed in the grant
was defeated : the influence of the great landowners therefore
procured in 1285 the passing of the statute " De Donis Condi-
tionalibus1" which creates estates tail in the strict sense, feuda
talliala, cut off from the fee, and strictly limited to the line
of descent prescribed in the grant. The statute runs thus : —
" First whereas tenements are often given conditionally ; (1) as
when one giveth his land to A and his wife and the heirs of
their bodies, such an express condition2 being added as that if
the man and woman should die without heirs of their bodies,
the land so given should revert to the donor or his heirs3; (2) or
when one giveth a tenement to another in frankmarriage, which
gift hath a condition annexed, though it be not expressed in the
deed of gift, i.e. that if the man and woman should die without
heirs of their bodies, the tenement so given should revert to the
donor or his heirs; (3) or when one giveth a tenement to a
man and the heirs of his body ; it seemeth hard to those who
have made grants of this kind and to their heirs that their will
expressed in their gifts has not been and is not observed. For
in all the above cases after offspring has issued from those to
whom the land was so conditionally given, they have the power
of alienating a tenement so given and of disinheriting their
issue from the tenement, contrary to the will of the donors and
the express form of the grant, and moreover whereas, when
issue fail to a man enfeoffed after this wise, the tenement so
given ought to revert to the donor or his heir under the form
contained in the deed of gift, yet, though the issue, if there
were any, may have died, by the deed and feoffment of those to
whom the tenement was so given on condition, (the lords) are
1 The phrase is taken from Bracton, quired to be expressed now ; (vide 31
who derived it from the Koman Law, Edw. I. Y. B. p. 384, Eolls ed.) "in a
but it is used in a different sense from gift in tail the reversion is not saved,
Bracton's term, being applied here to if it be not expressly saved by charter."
Bracton's donationes sub modo. 3 Bracton called this not donatio
2 This was implied (tacita) in conditionalis, but donatio perfccta sub
Bracton ; but seems to have been re- modo. (v. ante, p. 48.)
CONDITIONALIBUS. 51
shut out from the reversion of these tenements, which is plainly
contrary to the form of the gift1. Wherefore the King,...
determined that the will of the donor as plainly expressed in
the charter of the gift2 should be observed, so that those3 to
whom the tenement was thus conditionally given should not
have the power of alienating such tenement, so that it should
not remain to the issue of the donee after his death, or to the
donor or his heir, if the donee had no issue or his issue failed."
The levying of fines on such estates tail was expressly pro-
hibited, and the operation of the statute was confined to gifts
made after its enactment.
The effect of this statute was to enforce the restrictions on
alienation and succession, which the will of the donor sought to
impose on the land. The tenant in tail in possession might
indeed alienate the land, but on his death, the issue to whom
the land descended might defeat the alienation by a writ of
" Formedon* in the Descender," the lord might defeat it, on
failure of the donee's issue, by a writ of "Formedon in the
reverter" The alienee therefore had only what was known as a
" base fee" which might be only an estate pur autre vie, and
this in Bracton's time was not even treated as a liberum tene-
mentum.
All these restrictions on alienation, and enforcements of the
will of the donor in determining succession were clearly imposed
at the instance, and in the interest of the greater landowners.
II. The power of devise at death, which before the Conquest
had only been fettered by the restraints either of the claims of
the family on Heirland, or of the conditions of the " book " in
bookland, almost entirely disappeared after the Conquest. It
had been introduced by church influence, in opposition to the
interests of the family and the lord, in order that deathbed repent-
ances might result in temporal profit to the spiritual adviser,
whose ministrations effected them. It was defeated by the
1 As I have said (ante, p. 47), I do parol evidence Y. B. 20 Edw. I. p. 130.
not think this was so at the time of 5 The Courts held that the heirs of
Bracton, in the case of a grant to A the donee were also bound. Beeves n.
and the heirs of his body. 200.
2 But restrictions might be proved by 4 i.e. per fonnam doni.
4—2
52 WILLS.
interests of the lords, whose pecuniary profits in feudalism were
derived in great measure from the payments which they
received on the succession and admission of a new tenant to the
feud of his dead ancestor. The necessity, if feudalism were to
maintain the national defence, of ensuring that lands should be
in the hands of a male fit to bear arms, justified the introduction
of a fixed rule of succession with payments to the lord by whose
allowance it was carried out for his consent to the succession.
The abolition of wills was due to the interest of the lords.
They only survived in gavelkind lands and by custom in a few
towns.
Bracton indeed in one place1 suggests that the lord could
confer by his grant the power of disposing of lands by will, and \
that wills made in pursuance of such a grant could be enforced.
He supposes a grant: "Do tibi et haeredibus tuis, vel cui dare
vel assignare in vita, vel in morte legare volueris," and suggests
that if the legatee obtained seisin, he could resist an assize
brought by the heir, by setting up the grant, or that if out of
seisin he can bring a breve formatum or special writ, though he
admits that such a proceeding was then inauditum, unheard of;
proceedings in the ecclesiastical courts would, as he says, be
stayed by a writ of prohibition. It does not appear that either
of these suggestions was ever acted upon ; Bracton indeed in a
later passage discusses his own devices and pronounces them
useless2. " Laicum feodum", he says, " legari non possit, nisi in
rebus specialibus sicut burgagiis, et unde si laicum feodum
petatur ex causa testanientaria in seculari foro, audiri non debet
legatarius"; and he holds that an exception by reason of the
form of the grant will not lie by a legatee who has seisin
against an heir bringing the Assize Mort D'ancester. The
suggestions of one part of his work are thus negatived in
another. The denial of testamentary power he in several places
bases on the maxim "solus Deus haeredem facit."
Exceptions to this prohibition of devise existed in gavel-
kind lands where many of the old incidents of socage tenure
survived. In Kent it seems that a tenant of such lands might
dispose by will of all lands which he had acquired by purchase,
1 Br. f. 18, 6. 2 Br. f. 49.
WILLS. 53
but not of inherited land1. This distinction was connected with
the family claims on Heirland, and is in accordance with the
custom of Wessex recorded in the Leges Henrici Primi:
" Emptiones vel acquisitiones suas det cui magis velit. Terrain
autem quam eiparentes dederunt non mittat extra cognationem
suam"; and also with the customs of some manors, e.g. Brig-
stock in Northamptonshire2, where lands acquired by descent
pass to the youngest son, lands acquired by purchase to the
eldest. Similar restrictions on alienation inter vivos are re-
corded in Glanvil3; and a similar custom as to devise existed in
the town of Shrewsbury, as to which the Assize found that the
custom of Shrewsbury allowed a man to devise purchased, but
not inherited lands, the will being proved at the Guildhall4.
Attempts to extend the power of devise seem as yet unsuc-
cessful. Thus in 1293 it was asserted against an heir claiming
Mort D' Ancestor that the tenements were devisable and not
under the common law, whereupon counsel for the heir press
for proof of this : " Will you say that these tenements are in a
free borough of our Lord the King, or in ancient Demesne,"
(these being the boroughs which had usually a custom to
devise). The legatee attempts to set up a special grant by the
Earl of Lincoln of power to devise, apparently based on
Bracton's suggestion, but this the court immediately reject as
inoperative5.
With the exception therefore of the survival of the early
freedom of devise in gavelkind lands and in the old boroughs,
the power of disposing of lands by will is destroyed by
feudalism, as contrary to the interest of" the lords. .
III. Succession at death. With the practical abolition of
the power of testamentary disposition the rules of succession at
1 Elton, Tenures of Kent, p. 40. tenements in the town may on their
2 Hazlitt's Blount, p. 38. death-beds devise give or sell to whom
3 supra, p. 40. they please. Similar customs prevailed
4 A. D. 1292, Y. B. 20 Edw. I. p. 266. in London, Oxford, Canterbury,
Rolls Series. In Northampton in 1268, Scarborough, and Newcastle-on-Tyne.
a jury found that A on his death-bed de- And much of the land in North Wales
vised certain shops to be applied by his was devisable with or without writing,
executors for his soul as by the custom Appendix to 4th Report of Eeal Pro-
well he might. In Nottingham the perty Commissioners, p. 25.
jury find that a man or woman having 5 Y. B. 21 Edw. I. p. 70. Rolls Ed.
54 SUCCESSION AT DEATH.
death become of great moment, and the period between the
Conquest and the end of the thirteenth century covers one of
the most important changes in the law of succession. The
Conquest finds equal division among all the sons of the dead
man, or failing sons, among the daughters, to be the law of
the land where restrictions in books or the customs of manorial
communities do not interfere with it. By the year 1300 primo-
geniture, or succession to the eldest son alone and, failing sons,
to the daughters equally, has become the common law, the old
equal division surviving in gavelkind lands, as in Kent and
parts of Notts, Borough English or Jungsten Recht holding its
ground in Sussex and the older towns, and a variety of customs
existing in different manors, but all as exceptions to the
"common law" of Primogeniture. There is neither space nor
place here for a lengthened discussion of this change, and indeed
no materials for a complete account of the development appear
to me to exist : one can only suggest the leading stages in the
growth of the law,
The introduction of primogeniture into England may be
ascribed to the grants which the Conqueror made to his leading
followers out of the lands which his English enemies forfeited
to him. The feudal system, as a system of national defence,
would logically involve the concentration of lands upon, and the
tenure of fortified places by, one person with sole authority,
rather than by several owners of equal powers in whose differ-
ences of counsel there would be weakness. The importance of
this motive is seen from two incidents in the law : though on
the failure of sons the daughters succeeded equally, as in the old
law, yet castles or strong places must descend to one daughter
only, who should compensate her sisters for their shares, "propter
jus cjladii, quod dividi non potest1" And secondly in the case of
the death of a feudal tenant leaving a young grandson by his
eldest son who had died before his father, and a mature second
son, there was till after the time of Glanvil much doubt as to
whether the uncle or nephew should succeed; for though the
strict rule of primogeniture recognized the grandson's claim, yet
the reason of primogeniture, the holding of military fiefs by one
1 Br. f. 76.
PRIMOGENITURE. OO
capable tenant, would have preferred the grown-up man to the
orphan boy.
It is therefore in the great military fiefs that we find the
first introduction of primogeniture, though even in these the
rule is applied with more regard to convenience than to logic.
Thus on the death of the Earl of Arundel in 1094 Robert, his
eldest son, succeeded to his Norman title and lands, Hugh, his
second son, took the English earldom, and three younger sons
"had none1". Here again the desire to place lands in capable
hands is seen to prevail over strict primogeniture, while the
Conqueror's policy of not unduly strengthening his turbulent
barons is pursued. But on lower levels the great mass of the,
land of the country is still divided equally among the sons.
The unofficial compilation known as the "Laws of William the
Conqueror" has the clause: "Si quis paterfamilias casu aliquo
sine testamento obierit, pueri inter si haereditatem paternam
aequaliter dividanta". But the uncertainty of the reigns of
William Rufus and Stephen probably led many socage tenants
to adopt the safer plan of transmission of their lands undivided
to one tenant, their eldest son. In Glarivil, writing about 1180,
we find that in military tenures the eldest son succeeds to all
the land secundum jus regni Angliae3. In socage tenures
Glanvil distinguishes between lands anciently divisible, in which
the old rule of equal division among the sons survives, with the
exception that the eldest son must have the chief messuage,
paying his brothers their share of its value ; and lands not
anciently divisible in which either the eldest or the youngest son
succeeds according to the local custom. Thus primogeniture
appears in lands not held by military tenure, only on the same
level as Borough English, a local custom where the old rule of
divisibility does not survive or never applied. It is possible
that even this customary primogeniture may be a survival from
before the Conquest ; it may possibly be connected with Mr
Seebohm's theory of the primogenitary descent of the equal
yardlands in manors4. The clearest example we have of it is the
1 Kenny on Primogeniture, p. 13. 3 Gl. vn 3
Dugdale's Baronage, p. 27. 4 v. ante, pp. 10, 17.
2 § 34. Thorpe Inst. p. 207.
56 PRIMOGENITURE
position of those tenants of the Canterbury monasteries called
"liberi Bokmanni" who did certa servitia, but had primo-
genitary succession1.
When legal organization and civil security were revived
under Henry II. the merging of local custom in a national and
uniform law, and the rules of evidence applied by the itinerant
judges tended to establish the rule of primogeniture as a pre-
sumption of evidence, just as the absence of security and
organization before Glanvil had led to the same result, as a
measure of safety. The tendency of the action of the king's
judges, consciously or unconsciously, was, by their rules as to
procedure, to increase the number of primogenitary holdings.
A case in A.D. 1200 is recorded thus: —
Rutland : Gilebertus de Beivill petit versus Willelmum de
Beivill duas virgatas terre cum pertinentiis in Gunetorp que ei
contingunt de socagio quod fuit patris eorum in eadem villa.
Willelmus defendit quod socagium illud nunquam partitum
fuit nee debet patiri et hoc otfert det'endere, etc. Quia Gilebertus
nullam probam produxit consideratum est quod Willelmus
eat inde sine die et quietus2.
Mr Kenny speaks of this as establishing a new presumption
of primogeniture, on which Mr Pollock remarks that it is only
an application of the ordinary rule that the plaintiff must prove
his case ; as the younger brother does not prove the lands
partible, he fails in his suit. But while this is so, it is also true
that, as the elder brother would usually take possession, for
under either law he was entitled to a share in the land, it
would be usually divisibility and not primogenitary succession
that must be strictly proved, and the chances would therefore
be in favour of the spread of primogeniture.
Bracton in 1260 shows some though not a great advance on
Glanvil. He indeed broadly states the proposition : " Si quis
plures haberet filios, jus proprietatis semper descendit ad
primogenitum, eo quod ipse inventus est prirno in rerum
natura3," and he recognises the strict doctrine of primogeniture
1 Elton, Tenures of Kent, p. 106. Laws, p. 208. Kenny, p. 20.
2 PI. de Term. S. Mich. 2 Joh. 3 f. 64, b.
Abbrev. Placit. 28, b. Pollock, Land
IN BRACTON. 57
in the question of Representation, by upholding the claims of
the grandson against the uncle. But in the case of socage
land the question is still whether the inheritance is antiquitus
divisum ; if it is, primogeniture has no place ; if it is not,
in the case of lands held by free socage, primogeniture is
established as the universal rule, [tune tota remaneat primo-
genito], instead of, as in the time of Glanvil, appearing as a
local custom, competing with other customs, such as Borough
English. In the case of villein socage the old rule still remains,
consuetude loci erit observanda, and Borough English and
Primogeniture are again mentioned as competing customs.
The chief messuage, if there is only one, goes to the eldest son,
charged with payments to his brothers of the value of their
shares ; but if there are several messuages each child in order
of descent takes one so long as any remain1. For where the old
rule is not incompatible with the feudal system of defence it
survives.
In a case decided in 12922 in which Piers and John de
Mauteby claimed a partition against their elder brother Robert
of land which he claimed as the eldest son of his father, we
have the whole history of a succession for five generations.
Robert de Mauteby (1) had seven sons of whom three, Walter
(2), Geoffrey, and John shared the land ; on Walter's death his
son Robert (3) succeeded, though he had five brothers, his six
uncles agreeing and granting for themselves and their heirs that
the land was not partible, and levying a fine. Robert (3) died
leaving a son Walter (4), who succeeded, being apparently an
only son, and he died leaving Robert (5), the present defend-
ant, and two younger brothers, the present claimants. Further,
Robert de C., who held by Knight's service of the lord R.
de Valence, had enfeoffed Bonde as yearly tenant ; Bonde
died leaving three sons, of whom the eldest succeeded, and
on his death, leaving five sons his eldest son again succeeded3.
Thus Robert (5), the defendant showed absence of partition
for five generations in the tenants, and for three generations
1 f. 76. 3 I confess I do not understand how
2 20 and 21 Edw. I. Y. B. Eolls Bonde comes into the case; previous
Series, p. 320. writers have omitted to notice him.
58 GROWTH OF
in the descent from Bonde. Against this the claimants
alleged : — I. that the tenements were held in socage , to which
it was answered that, were it so, it did not follow that they
were partible, for in some places, and in this, tenements
held by socage as well as other tenements were governed by
the common law (of primogeniture). II. That the tenements
were partible as of right, which was answered by the history of
Bonde's tenure and succession ; and III. That the tenements
had actually been divided when the three sons of Robert (1)
shared them, to which it was answered that this was not a
partition in fact because four of the children were left out.
Metingham, the judge, says, "It seems to us that by the
feoffment made to Bonde by R de Valence's ancestor the
tenements are not transferred from the common law" (of
primogeniture by which R. de Valence held) "to a special law"
of equal division, " unless you can shew that they have since
been departed amongst the entire family : " and as they could
not, the claimants failed. Here the action of the family itself
seems to have established the primogenitary rule.
A similar case is recorded in 1302 concerning lands in
Arundel, which the younger brothers claimed as partible against
the elder1. The younger brothers alleged a partition of the
land on the death of their great-great-grandfather in the reign
of Richard, and of their great-grandfather in the reign of John ;
the elder brother alleged a primogenitary succession on the
death of his grandfather, and therefore claimed it on the
death of his father: upon this the younger brothers asserted
that all tenements held of the fee of Arundel were partible,
which the elder denied and issue was joined, but the result is
not stated. Here we see the actual change in succession,
whether finally successful or not, and the matter is decided by
the local custom of the fee of Arundel. The complicated state
of tenures is shown by a case in 13072, where the judge laid
down that tenements held by Knight service might be partible,
and only required evidence that they had been once divided, to
1 Sedman v. Sedman. Y. B. 30 and Rolls Series. This ruling would tell
31 Edw. I. pp. 56 — 60. against primogeniture.
2 33—35 Edw. I. Y. B. p. 514.
PRIMOGENITURE. 59
hold that they were partible of right, for he said " le departizon'
Us fet departables."
The author of Fleta, writing about 1290 merely repeats
Bracton, but Britton about the same time asserts primogeniture
without qualification1: — "Age is material, because he who is
the first born is admissible before the younger son of the same
father and mother : " that he does not really overlook socage
inheritance appears from other parts of his work, in which he
recognises divisible inheritances, though he allots the chief
mansion to the eldest son or daughter "pur la prioritd de son
age," or if there are several messuages, to the children in turn,
the eldest having the prerogative of choice. He goes on to
say2: — " Des terres de auncienes demeynes soit use' solom le
auncien usage del lu, dount en acun lu tient horn pur usage que
le heritage soit departable entre tons les enfants freres et
soeurs3, et en acun lu que le eynzriee fiz avera tres tut " (custom
of primogeniture) " et en acun lu qe le pusnee de tour les freres
eyt tut." (Borough English.)
Before the year 1300 primogeniture is recognised as the
common law of the land, to which other customs were exceptions.
The Statutum Walliae* in 1284, after reciting the Welsh custom
"quod hereditas partibilis est inter heredes masculos, et a
tempore cujus non extitit memoria partibilis extitit," proceeds
" aliter usitatum est in Wallia quam in Anglia," without any
reference to the existence of the same custom in all gavelkind
lands in England. This primogeniture or succession to the eldest
son, and, failing sons, to the daughters equally, being then the
rule in England in the year 1300, the exceptions were : —
I. The custom of Gavelkind, or succession to all the sons
equally, and failing sons, to all the daughters equally. This
especially prevailed in Kent, but also in other parts5.
1 Brit. vi. 2, 3. Nicholls u. 313. Yorkshire, Raper and Lonsdale (1810).
2 Brit. in. 8, 4. Mr Kenny (p. 26) 12 East 37.
overlooks these passages. 4 12 Edw. I.
3 This alleged custom goes far be- 6 It survived in parts of Netting-
yond gavelkind, but a similar custom hamshire till the reign of Henry VIII.,
is recorded in at least one manor, when it was abolished there by statute
Warcham. Hazlitt's Blount. p. 355 : (32 Hen. \7III. c. 29), and in many
while a similar custom is recorded in manors.
60 GAVELKIND
II. The custom of Borough English) or the succession of the
youngest son. This survived chiefly in Sussex, in which county
Mr Corner traces 140 manors with such a custom, as against 136
in all the rest of England1.
III. The numerous intermediate varieties of custom which
we find surviving in various manors.
With regard to GavelJcind tenure, which is especially
associated with Kent, it appears to be a survival of the allodial
tenures and incidents which before the Conquest prevailed all
over England. If this be so, the problem is to account for its
survival in Kent while in most other parts of the country it dis-
appeared. Mr Kenny attributes this survival to three reasons2 :
(1) That the villani of Kent were in reality more free than
the villani elsewhere ; and that consequently Kent as a county
was more free than the rest of England at the time of Domesday
Book.
(2) That the church was a great landowner in Kent, hold-
ing 108 out of 278 knights' fees in capite, and that clerical rule
was less harsh than that of lay lords.
(3) That as Kent lay on the high road to the Continent
and Normandy, the good feeling of its inhabitants was more
important to the Norman Kings, and consequently the
ancient privileges of the English were more likely to be pre-
served.
This is hardly the place for a critical discussion of this very
difficult question, but the first two of these reasons appear to me
altogether inadequate. (1) The free character of Kent in the
time of Domesday is rested on the returns of population which
show :— Population 12,205.
Tenants in chief and under tenants 225
socmanni 44
villani 6,597
bordarii 3,118
cotarii 364
servi 1148
burgenses 671,
1 Corner, Sussex Arch. Trans, vi. 164, 175. 2 Kenny, p. 20.
IN KENT. . 61
or in a shorter form Villani, 54 per cent. : Bordarii and cotarii1,
29 per cent. : Servi, 9 per cent.
But with this we may compare the neighbouring county of
Sussex, which shows: — Villani, 57 per cent.: Bordarii &c. 31
per cent. : Servi, 4 per cent., or the northern county of Yorkshire,
with : Villani, 63 per cent. : Bordarii &c. 23 per cent : Servi, 0.
Mr Kenny's answer to this, following Mr Elton, is that the
villanus in Kent is a different person from the villanus elsewhere,
a far freer man, a free tenant of a manor. On this point I do
not wish to recapitulate Mr Seebohm's arguments, but I do not
think there is anything to show that the Kentish villanus of
Domesday was in any different position from the man of the
same name in Sussex or in Yorkshire, a freeman holding of the
manor by servile tenure. But if he were, it will hardly be con-
tended that he occupied a better position than the socmanni or
liberi homines of the Danish and East Anglian counties. And
if we compare the Kentish percentages, with that of Lincoln-
shire: sochmanni, 45 per cent. : villani, 30 per cent.: bordarii &c.
16 per cent. : servi, 0: or of Suffolk: sochmanni et liberi homines,
40 per cent. : villani, 14 per cent. : bordarii &c. 30 per cent. :
servi, 4 per cent. : there can be no doubt which was the freer
county. Yet Kent has maintained the old institutions, which
Danish Lincolnshire has lost.
(2) Again, while Kentish landowners show a decidedly
clerical character as compared with other counties in England,
it does not follow that the inhabitants received any lighter
treatment therefrom. The people of Kent had taken such
a part in the battle of Hastings, and their lands had been
confiscated to such an extent, that at the time of Domesday
there was not a single English tenant in capite in Kent2. And
nearly half the church lands in Kent were held under Odo,
Bishop of Bayeux, so that as Mr Freeman very justly observes,
"there is nothing to show that Kent was better treated than the
rest of England. As it was put under Odo, it was perhaps
treated a little worse3." The County of Middlesex also, which
1 There appears no warrant for the points, if at all.
separation of bordarii and cotarii, 2 Freeman, N. C. v. 810.
whose tenures only differ on minute 3 See also N. C. in. 538, note.
62 BOROUGH ENGLISH.
contained a large proportion of church lands, has not preserved
the old incidents of tenure.
I do not therefore think that the causes assigned by Mr
Kenny are sufficient to account for the preservation of the old
law in Kent, though I cannot assign any that are. It would
however in my opinion be a mistake to suppose that the
privileges alleged to attach to gavelkind lands at a later period ex-
isted continuously from the time of the Conquest. The proverb
that "there were no villeins in Kent" has proverbial inaccuracy in
face of the 6597 villani of Kent in Domesday. When the custom
of devise of lands in Kent was established by the Courts, it was
so decided on the authority of the records that lands were
devisable in Saxon times, and in the teeth of a mass of evidence
and decided cases showing that no such custom existed in Kent
after the Conquest. Though the Kentish peculiarities of sur-
vival are not therefore all due to continuous maintenance, but
in many cases to judicial re-establishment of the ancient custom,
the reasons for this peculiar position of Kent are in my opinion
still unknown.
II. To succession by Borough English, a mark of the old
tribal household which still remains in some manors, we have
already referred1. Sussex is its stronghold. The explanation of
its origin which refers it to the supposed jus primae noctis of the
lord may be dismissed as fabulous, even if its natural conse-
quence were not succession to the second rather than to the
youngest son. Mr Corner in his exhaustive paper on the sub-
ject2 is of opinion that it must simply be attributed to the will
of the particular lord of the manor ; he instances, as examples,
that it is found in all the manors of the Earls of Warrenne and
Surrey in different parts of the country ; and also a charter of
Simon de Montfort, who at the request of his burgesses of
Leicester and by his mere will changed their customary suc-
cession in Borough English to a prirnogenitary rule. Mr Corner
goes further and places the origin of this custom after the
Norman Conquest, when he supposes it to have been "imposed
by the Norman lords as a peculiar mark of serfdom on their
1 supra, pp. 10, 59. 2 Sussex Archaeologia, vi. 164.
CUSTOMS IN MANORS. 63
English vassals1," and oddly enough cites in favour of this theory
the borough of Nottingham, which was in the reign of Edward I.
held under two tenures, so that "all the tenements whereof the
ancestor died seised in Burgh Engloyes ought to descend to the
youngest son, and all the tenements in Burgh Francoyes to the
eldest son as at Common Law2". This theory is directly
opposed to the usually accepted explanation, which would make
the "English borough" in Nottingham the old town, retaining the
old Saxon rules, whilst the "French borough" was the new town
which had sprung up since the Conquest and was governed by
the common law of primogeniture. Mr Corner's suggestion
seems to me to fail to account for the continental evidence, and
for the curious local distribution of the custom as noted by Mi-
Elton and Mr Seebohm; and it is moreover contrary to the
English evidence of the tenure as prevalent in manors of Ancient
demesne which dated from before the Conquest.
III. Besides these two exceptions to the general law of
primogeniture, which prevailed in many manors, we have a
number of local and intermediate customs of succession in
other manors throughout the country. In some the rule of
primogeniture is applied to daughters also, the eldest daughter
succeeding on failure of sons3; in others it is the rule of
Borough English which receives extension and in such a case
the youngest daughter succeeds4, instead of the daughters
equally, as in other Borough English manors5, while sometimes
the custom extends to the youngest male kinsman of a
particular degree, e.g. the youngest son, or brother, or uncle,
failing whom the youngest female of the degree succeeds6. In
some manors the rule of succession varies according to the
nature of the lands, as in Brigs tock, where the youngest son
succeeds to land acquired by descent, (the older lands of the
manor,) while as to lands acquired by purchase, the newer rule
of primogeniture prevails7. Wareham in Dorsetshire has the
curious rule of equal division among all the children8: in
1 p. 173. 4 pp. 14, 258, 350.
2 1 Edw. I. p. 12, No. 38. Corner, 5 p. 17.
pp. 165, 173. 6 Corner, Sussex Arch. vi. 181.
3 Hazlitt's Blount, pp. 8, 30, 37, ? Hazlitt's Blmmt, p. 39.
121, 185. s Ib. p. 355.
64 ALIENATIONS TO THE CHURCH.
Dymock, descent is limited to the heirs of the body of the
tenant1. In Pollington the daughters do not inherit2, and a
similar rule prevailed on the Scotch Marches, where the
necessity of having a male tenant of the lands was obvious3.
At Tregon in Cornwall the tenant was allowed to demise his
land for three lives4; which in Bedminster unless the copy-
holder named his successor the lands escheated to the lord,
there being apparently no rule of succession5. Each manor had
in effect its own peculiar customs of succession depending on
local usages and history which cannot now be traced.
Restrictions on alienation of land are also to be found in the
prohibitions of alienation for certain purposes, and by or to
^-ce£tain persons. To these we now turn.
Alienations of land to religious foundations were, as we
have seen, common before the Conquest, and they increased
/ with the power of the Church6. By this means the land of the
country was withdrawn from contributing to military service,
and the lords of the land alienated lost the escheats wardships
liveries etc., which would have accrued from the tenancy of a
lay holder but were absent from that of a corporation which
neither married nor died, and was never an infant7. This
mischief was first attacked by a clause in the reissue of Magna
Carta in 12178: "Non liceat alicui de cetero dare terram suam
alicui domui religiosae ita quod illam resumat tenendam de
eadem domo, nee liceat alicui domui religiosae terram alicujus
sic accipere quod tradat earn illi a quo earn receperit tenendam.
Si quis autem de cetero terram suam alicui domui religiosae
sic dederit et super hoc convincatur, donum suum penitus
cassetur et terra ilia domino suo illius feodi incurratur." This
clause was practically repeated in the Provisions of Westminster
in 1259, which contain the clause: "Viris religiosis non liceat
ingredi feodum alicujus sine licentia capitatis domini, de quo
scilicet res ipsa immediate tenetur9": and Bracton writing
1 Hazlitt's Blount, p. 102. 7 Coke, Ins. n. 75.
2 p. 247. s § 43.
3 p. 268. » § 14. It is this, which is ab-
4 p- 325. stracted or recited in the Statute de
5 p. 22. Heligiosis, and not Magna Carta, as
6 ante, p. 19. Coke says.
STATUTE DE RELIGIOSIS. 65
a.bout the same time speaks of a grant of the power of
alienation " exceptis viris religiosis et Judaeis" as common,
while Lord Coke says he has seen the same clause in many old
deeds.
As these Acts proved ineffectual the great Statute de
Religiosis was passed in 1279. It recites that " men in religion"
have entered upon lands in defiance of the former statutes, by
which the services due for national defence are lost and the
chief lords lose their escheats, and it enacts " quod nullus
religiosus aut alius quicunque terras aut tenementa aliqua
emere vel vendere, aut sub colore donationis aut termini vel
alterius tituli cujuscunque ab aliquo recipere aut alio quovis
modo arte vel ingenio sibi appropriare praesumat, sub foris-
factura eorundem, per quod ad manum mortuam terrae et
tenementa hujusmodi deveniant quoque modo." In case of
alienations contrary to the statute the chief lords may enter
and seize the lands ; and the statute extends to lay corporations
as well as " men in religion." It secures the feudal revenues of
the chief lords by limiting ecclesiastical endowments, just as
the Statute Quid Emptores, six years later, protected them by
abolishing subinfeudations.
The Statute De Religiosis had been occasioned by evasions
of the previous Acts on the part of the Clergy, who took leases
of lands for long terms of years, and had "used many other
devices." It was framed so widely that it might meet their
ingenuity but, as Coke quaintly remarks: "ecclesiastical persons,
who in this were to be commended that they have ever had the
best learned men in the law that they could get of their
counsel, found many ways to creep out of this statute1. They
discovered that the statute did not prohibit the recovery of
lands by legal process, and they therefore brought feigned suits
against any landowners who wished to convey lands to them,
and " recovered " the land, owing to its owners' collusion, by
process of law. This expedient was promptly checked by the
Statute of Westminster the Second in 1285 2, which provided
that all such claims should be submitted to a jury of the
county, and that, if they found the demandant church to have
1 Coke, ii. 75. " 13 Edw. I. c. 32. Coke, n. 428.
s. 5
66 RESTRAINTS OX
no right in its demand, the land should be forfeited to the chief
lord.
To anticipate the next clerical evasion, religious houses
obtained the conveyance of lands to feoffees to uses, to be held
to the use of religious houses, till this was declared by a Statute
of 13921, which expressly applied to lay corporations as well, to
be mortmain within the Statute De Religiosis.
The original purpose of these statutes is plainly and
avowedly the interests of the chief lords ; indirectly though
hardly intentionally they protect the interests of the nation.
A restraint on alienation, depending on the person of the
alienor, is found in the rule that no minor could alienate. The
age of majority in socage lands was 15, which in lands held by
military tenure was increased to 21 ; but there were also local
customs in various towns. Thus in 1339 a writ of Entry, duin
fait infra aetatem, (the proceeding to invalidate alienations made
under age) was brought against J. in respect of alienations made
by J. C.2 J.'s counsel alleged that the tenements were in Hereford,
where the usages are that when a man is of such an age that
he knows how to measure an ell of cloth, or reckon up to
twelvepence, he can sell his land, and that J. C. was of such an
age; but judgment was given against him because the allegation
was not certain. The same custom was pleaded as to alienations
at Gloucester, with the same result. Bracton mentions the
same custom, "where no certain time is defined," as applying
to filius burgensis, while the daughter is of age when she knows
quod pertinet ad coffer and keye, which is put about her 14th or
15th year3. The case cited shows how the Central Judicature
ensured uniformity in the law by breaking down local customs.
Another restraint on alienation, resting on the person of the
alienee, is to be found in the prohibition of gifts from husband to
wife during coverture. Such a prohibition did not exist in
Saxon times, in which the wife, in the absence of express agree-
ment ad ostium ecclesiae, would take half her husband's estate
at his death if she had children, one third if she were childless.
But these shares might by express stipulation either be restricted,
1 15 Kich. II. c. 5. also Y.^B. 32 and 33 Edw. I. p. 511.
2 Y. B. 13 Edw. III. p. 236. See 3 Br. f. 86 b.
ALIENATION. 67
or enlarged to half the property if she were childless, or the
whole, if she had children. After the Conquest, in lands of
military tenure, this right of succession was limited to a life
interest in one-third of the lands which the husband possessed
at the time of the marriage, a proportion which might by
express agreement be either restricted, superseded by personalty,
or enlarged to one third of all the lands of which he was seised
during coverture. In gavelkind, socage, and copyhold lands,
the share is still one half, and in Borough English towns and in
some manors1, the whole, of the lands. There are still no
restrictions in gifts by husband to wife during coverture ; at
least Glanvil in 1180 is silent as to any.
In Bracton however we find a change : citing three recent
decisions he expressly states that: "hujusmodi donationes non
valent," when made in excess of the legal dower2. He gives no
reason for the change, but his follower Fleta is more explicit,
and says: "quia prohibetur in lege3." There can indeed be
very little doubt that for this restriction on alienation the
influence of the Roman Law is responsible. Though the
Statute of Uses provided a circuitous remedy, the restriction
was not even partly removed till the Court of Chancery in 1712
held a gift by the husband to the wife without the intervention
of a trustee good in equity4; but this is only possible where the
husband makes himself a trustee for his wife. An instance of
failure to make a valid gift is to be found in a recent case,
where Vice-Chancellor Hall said : " It is a monstrous state of
the law which prevents effect being given to such a gift5."
It only remains to notice briefly the formalities required for
alienation. These were based on the assumption that publicity
of alienation and notoriety of title were important matters. It
was therefore necessary that possession should be actually
delivered by the grantor to the grantee, or in technical language
that there should be " livery of seisin." This was effected in
two ways6. In " Livery by deed," some object symbolical of the
1 e.g. Taunton Dene. Kep. p. 207, note.
2 f. 29. 5 Breton v. Woolven (1881), L. E.
3 in. 3, 12 and 15. 17 Ch. D. pp. 416, 419.
4 Mitchell v. Mitchell, Bunbury, 6 Co. Litt. 48, a.
5—2
68 FORMS OF ALIENATION.
land, " the ring or hasp of the door, branch or twig of a tree,"
was delivered by the grantor to the grantee on the land in
question in accordance with the terms of the deed or grant.
The object of this is plain from the rule that one Livery of
Seisin sufficed for all the tenements in a particular county, but
if the tenements were in different counties, there must be one
Livery of Seisin in each county. For one jury of the men of
the county would decide the title to all lands in that county,
and there must therefore be at least one Livery in each county
that a jury might be found in that county who were cognizant
of it. In " Livery in Law" the presence of the parties on the
land was not necessary, but they must be in sight of it, a
proceeding devised to effect the alienation of land of which
seisin in fact could not be given owing to its being in the hands
of a hostile claimant. These precautions were clearly intended
to secure notoriety of title and full evidence of alienations.
The same purpose was served in manors by public admissions of
new tenants and records of alienations and successions in the
manorial Court Rolls, in connexion with which customs of
symbolical delivery survive in many manors. The old customary
law remained for centuries in the lower tenures of land, which
were too insignificant to come into the King's Courts, but
preserved their ancient customs in the local court of the manor.
The legislation of Edward I. initiates a new era in the Land
Law: the Statute of Quia Emptores restrained the creation
of new tenures, forbidding any alienations but such as either
convey the whole interest of the grantor, leaving him without
any interest in the land, or convey only a part of the grantor's
estate and leave him with a substantial reversion. It allowed a
holder in fee to alienate his land in fee, if he surrendered all
interest in the land, or to alienate his land in tail, retaining a
reversion for himself, but forbade him to alienate his land in
fee, while keeping an interest in the land as mesne lord. The
Statute de Donis ensured that the will of the grantor as
expressed in the grant should be observed, and thus strengthened
the power of a landowner over his land after his death. This,
which from the point of view of the chief lords was a gain
of power to alienate, from that of the tenants was a loss of
RESULTS. 69
power, as they held their land fettered by restrictions on
alienation and by a line of succession marked out by the grantor
and enforced by the Statute. The power of disposing of land
by will was lost ; and the succession to the sons equally, which
had protected the interests of the family, was changed in all
military tenures to the succession of the eldest son, which was
required directly in the interests of the lords, and indirectly in
the interests of the State. This rule of primogeniture, at first
as a measure of safety in the absence of an efficient central
power, then as a measure of unity imposed by a strong and
harmonizing government through its Central and Itinerant
Judicature, became the common law of the land, the old law of
succession to the family being relegated with, other local customs
to the rank of local exceptions to the general rule. The
interests of the lords with some slight reference to the welfare
of the State led to the imposition of restraints on the alienation
of land for ecclesiastical purposes, while alienations resulting
from the conjugal relation were much limited. For about
150 years most properties are subject to strict entail ; alienation
by their tenants is forbidden ; succession to them is defined by
the will of their grantor, whose power in this respect is
unlimited. The interests of the chief lords or greater land-
owners, the class in power, are the reason and origin of the land
legislation of Edward I., the system of national defence which
is the ultimate justification of the feudal system having but a
remote reference to most of the changes which took place.
CHAPTER IV.
THE EVASION OF THE LAW BY FINES AND KECOVERIES.
THE Statute "De Donis" in 1285, from the point of view of
landowners, fettered the alienation of the greater part of the
lands of the kingdom, since the will of the original donor, as
fixed in his grant limiting the succession to the land, was to be
strictly observed. No power existed of disposing of the land by
will, or of defeating the right of the lord to the reversion of the
land, if the heirs to whom the land was limited failed.
It is true that the doctrine of Warranty, derived from the
old Teutonic procedure, was used to allow the tenant-in-tail to
partially set aside the rights of his heir. For, according to that
doctrine, the donor of an estate of land was bound to warrant the
title, or defend the possession, of his donee ; and this obligation
extended to the heirs of the donor. The tenant-in-tail there-
fore, by alienating in fee simple, could on the strict application
of the doctrine of warranty, oblige his heirs in tail to warrant his
gift, and could thus deprive them of succession under the grant
in tail. This proceeding would not defeat the rights of the ori-
ginal donor or lord to the reversion of the land on failure of the
class of heirs to whom it was limited in the original grant ; but
in itself it would allow the tenant-in-tail considerable freedom
of alienation inter vivos, so as to defeat the claims of his heirs.
This power was limited by a decision in 1310, which laid down
that the heir in tail was only bound to warrant his ancestor's
grants, if he had from his ancestor Assets, or lands in fee of equal
WARRANTY. 71
value to those alienated ; and that, if he had not Assets, he
could defeat his ancestor's alienation by a writ of "Formedon in
the Descender1/' This restriction of the obligation to warrant
was apparently a piece of judicial legislation, though it had its
precedent in a similar restriction imposed by the Statute of
Gloucester on alienations made by the tenant by the Curtesy,
the Statute providing that his heir was only bound to warrant
them, if he had lands of the same value descending from his
father2. The judges had already allowed such an heir to use a
writ of "Formedon in the Descender" to defeat his father's alien-
ations3, and may have felt justified in extending the statutory
provision as to Assets to the case of Entails. But they stretched
the doctrine of the Statute of Gloucester further in the interests
of the heir ; for if one heir of a tenant by the Curtesy received
assets, the alienation of his ancestor was held good, and subse-
quent heirs though receiving no assets were bound by it. But
in the case of a fee tail, it was necessary that each heir should
receive assets in order that the entail might be barred against
him, and if he did not, the writ of Formedon was open to him
to defeat the alienation4.
The heir in tail had therefore a practical security in receiv-
ing at any rate lands of the same value as those entailed on him,
a protection ensured by his writ of "Formedon in the Descender"
and by judicial legislation. The lord had absolute security for
his reversion or escheat by a writ of "Formedon in the Re-
verter."
There remains the case where the form of the gift was "to
A. and the heirs of his body, and if they fail, then to B. and the
heirs of his body." Such a grant is mentioned by Bracton, who
calls it a "donatio per modum pluribus" arid instances a father
granting successive estates tail to his three sons, with a tacit
reversion to himself5. Shortly after the Statute de Donis B.'s
right became recognized with a definite name as a "remainder,"
and in 1308 we find a writ of "Formedon in the Remainder" re-
cognized as the definite remedy for alienations infringing the
1 4 Edw. II. Reeves, n. 202—204. 4 Reeves, n. 340.
2 6 Edw. I. (1282). Reeves, n. 56. 6 Br. f. 18, b.
:J Reeves, n. '204.
72 RESULT OF STRICT
right of the remainderman1. In the case of heirs taking in re-
mainder the doctrine of warranty was more strictly applied'2.
Thus in the case of a feoffment, "to A. in tail, remainder to B. in
tail, remainder to C. in tail," if A. died without issue, and B., suc-
ceeding, aliened with warranty and died leaving issue D., D. would
not be bound by the warranty, unless he had assets ; but if D.
died without issue, and C. succeeded, C. would be bound by B.'s
warranty, even if he had no assets. And this was called Col-
lateral Warranty, as distinguished from the warranty with Assets,
known as Lineal Warranty. The Courts also contributed to the
strict enforcement of the Statute by the decision3 that, though
its terms omitted any mention of the heirs of the donee, they
yet were restrained from alienation as well a<s the donee himself,
a decision which would have made "the will of the donor as
expressed in the grant" extend its power for all eternity, if some
means of defeating it had not been found. They also defeated
some claims on the estate at common law, as resulting in alien-
ations which would prejudice the issue3.
The result was that the tenant-in-tail had but slight free-
dom against the heirs of his body, more against the remainder-
man, but none against the lord. The owner of land could thus
fetter the disposition of his land without any limits as to time?
and the means by which the tenant could escape from his fetters
were of the scantiest application. The evils of this state of
things have been graphically described by Coke and Blackstone4.
"Children grew disobedient when they knew they could not be
"set aside ; farmers were ousted of their leases made by tenants-
"in-tail, for if such leases had been valid, then under colour of
"long leases the issue had been virtually disinherited; creditors
"were defrauded of their debts, for if tenant-in-tail could have
"charged his estate with their payment, he could also have
"defeated his issue by mortgaging it for as much as it was worth;
"innumerable latent entails were produced to deprive purchasers
"of the lands they had fairly bought; and treasons were en-
"couraged, as estates tail were not liable to forfeiture longer
1 Reeves, n. 201. 4 Coke, Mildmay's Case : 6 Rep. 40.
2 Reeves, n. 341. Blackstone, n. 116.
:! Reeves, n. 200. Vide ante, p. 51.
ESTATES TAIL. 73
"than for the tenant's life. So that they were justly branded
"as the source of new contentions and mischiefs unknown to the
"common law, and almost universally considered as the common
"grievance of the realm1."
For these reasons all classes in the community, except the
great landowners, who in the uncertainty of civil wars desired
the protection of their estates from forfeiture for treason, pressed
for alterations in the Statute2. "The same was attempted and
endeavoured to be remedied at divers Parliaments, and divers
Bills were exhibited accordingly, but they were always on one
pretence or other rejected. For the Lords and Commons,
knowing that their estates tail were not to be forfeited for felony
or treason, — as their estates of inheritance were before the Act
de .Doms...and finding that they were not answerable for the
debts and incumbrances of their ancestors, nor did the sales
alienations and leases of their ancestors bind them for the lands
which were entailed to their ancestors, they always rejected such
bills3."
The remedy for this national evil, maintained by that class
of the community having power in legislation for their own
interests, came from the Law Courts, and is generally associated
with the oddly named Taltarum's Case41, decided by the judges
in 3472. The process by which judicial ingenuity evaded in the
interests of the community a statute passed in the interests of a
class was that of a Common Recovery, or fictitious suit brought
by a plaintiff in collusion against the tenant-iu-tail who wished
to alienate his land. This process had already been used by the
clergy to evade the Statutes of Mortmain ; and its use for that
purpose had been restrained by special Statute5. It was now
brought into play for other purposes.
It is not very material to discuss whether Taltarums Case
was the "leading case" to establish the efficacy of common re-
1 Bl. ii. 116. party to the case, but had been the
2 Keeves, ii. 341. Godbolt's Reports, plaintiff in the common recovery
p. 303. alleged, so his immortalit}' is an usur-
3 Mildmay^s Case. 6 Co. Hep. 40. pation and not of right.
4 Y. B. 12 Edw. IV. 19. Digby, 11. ° V. supra, p. 65.
P. 3rd. ed. p. 211. Taltarum is not a
74 COMMON
coveries to bar estates tail, or whether their virtue for that pur-
pose had been earlier recognized1. Coke says in Mildmays Case
that "about 1472 the judges, on consultation had amongst them-
selves, resolved that an estate tail might be docked and barred
by a Common Kecovery"2, while in Mary Portingtons Case, he
says that this method of barring an Estate Tail was "not newly
invented in 1472, but oftentimes affirmed before3;" citing a
number of black-letter authorities and concluding that "these
resolutions and opinions of law produced the judgment in 1472,
which was not of any new invention, but proved and approved
by the resolution of the sages of the law at all times after the
Act De Donis until 1472. And the judges of the law then per-
ceiving what contention and mischiefs had crept into the quiet
of the law by these fettered inheritances, on consideration of the
said act and of former expositions thereof by the sages of the law
gave judgment that in such case the estate tail should be
barred."
Taltarum's Case itself does not expressly decide on the
validity of a Common Recovery, for while the plaintiff pleads a
common recovery suffered by defendant's ancestor, defendant
admits it, and sets up a previous estate tail in his ancestor, which
alone, he says, was defeated by the common recovery suffered,
and the Court agree with him : but it is assumed by both parties
and by the Court itself that the Common Recovery in which
T. Taltarum is concerned is effectual in barring some estate tail
in the ancestor.
The procedure of a Common Recovery was based on the
doctrine of Warranty, by which the heirs to an entailed estate
were barred by the alienation of their ancestor, if they obtained
from him Assets, or lands of equal value to those alienated.
This proviso was satisfied if they had a right to lands of equal
value, though the right might be valueless. The tenant-in-tail,
therefore, who wished to alienate arranged that a fictitious suit
should be brought against him for the lands: this he met, not
by an assertion of his own title, but by calling upon a person
1 See Pollock, p. 83, note. Beeves, effect of T alt arum's Case.
in. 18, where Mr Keeves and Mr 2 6 Kep. 40.
Finlason entirely disagree as to the 3 10 Itep. J57.
RECOVERIES. 75
whom he alleged to have granted to him the lands in question
to warrant or defend the grant he had made. The alleged
grantor appeared and acknowledged that he was bound to
warrant, but then disappeared and failed to warrant. Where-
upon the fictitious plaintiff had judgment against the tenant-in-
tail for the lands which he claimed, and the tenant-in-tail had
judgment over against the fictitious grantor who had so basely
failed to defend his grant. This judgment over, or right to
recover lands of equal value from the defaulter, served as Assets
to the heir of the tenant-in-tail, who was therefore barred.
And Lord Coke expressly rests his defence of Common Recoveries
on this "intended recompense1,'' and lays down, "that the judg-
ment given in such case for the tenant-in-tail to have in value
is a bar to the estate tail, although no recompense be had2."
For of course the heirs never did recover lands of the value they
had lost: the defaulting warrantor was a man of straw, who had
no lands to lose, and was indeed in later times, when the comedy
was in full working order, the Crier of the Court of Common
Pleas, who passed the Law Terms in failing to warrant for the
consideration of fourpence per failure.
It is hardly necessary to set out in detail the technicalities
of the Common Recovery, either at the time of Taltarums Case,
or as ultimately developed by the needs of conveyancing. The
proceedings were based on an elaborate series of fictions, and
were complicated and expensive in the highest degree; slight
slips in them might prove fatal to the title to the land, and it
was impossible to find any satisfactory justification for the
numerous stages of the procedure, or reasonable explanation of
its existence, other than a historical statement of its origin.
The Real Property Commissioners in their first Report3 speak
of "the whole mass of technical law relating to common
recoveries," as "a mere excrescence on the main body of our
laws;" and claim to have shown both their "inaptitude for the
purpose for which they (Common Recoveries) have been applied,
and the shifts and contrivances to which ingenuity has been
obliged to resort in order to render them subservient to those
1 midmaifs Case, 6 Eep. 40. 37.
2 Mary 1'or tiny ton's Caxf, 10 Eep. 3 pp. 30, 31.
76 COMMON RECOVERIES
purposes." Previous legal authorities indeed rarely, if ever, even
attempted to explain the reason of a Common Recovery, but
contented themselves with upholding it. "None ought to be
heard," says Coke, "in dispute against the legal pillars of com-
mon assurances of lands and inheritances1." In a case which he
mentions, "Hoord an utter barrister of counsel with the plaintiff"
(who was barred by a Common Recovery) "rashly and with great
ill will inveighed against common recoveries, not knowing the
reason and foundation of them, who was with great gravity and
some sharpness reproved by Sir J. Dyer, C. J., who said he was
not worthy to be of the profession of the law, who durst speak
against Common Recoveries, which were the sinews of assurances
of inheritances and founded upon great reason and authority", but,
adds Coke, "non omnis capit hoc verbum. " In short, the procedure
in Common Recoveries, invented to evade a Statute, complicated
from time to time with provisions against all manner of techni-
cal difficulties, became an elaborate and technical formality,
whose parts had survived their uses, whose elaboration was only
productive of expense, and whose technicality abounded in
deadly traps for any but the most skilled and careful lawyers.
It had degenerated from a fiction which at its best was
cumbrous to a juggle which had hardly the merits of solemnity.
Whatever may have been the law before Taltarums Case,
there is no doubt that, after 1472, the way of evading Estates
Tail by Common Recoveries was in constant use; and that in
consequence the restraints on alienation, and the limited line of
succession, imposed by the Statute de Donis, were gone. The
class legislation of Parliament was defeated by the national
legislation of the judges, at the cost of the introduction into
Real Property Law of a fiction which, like Frankenstein's
monster, became too powerful for its authors.
Another method whereby the strictness of the Statute
De Donis was evaded was by the Levying of fines. A Fine
was the compromise of a suit, whether fictitious or actual, as
distinguished from a Common Recovery which was the prosecu-
tion of a fictitious suit to judgment. In the time of Glanvil,
the suit was genuine : " Contingit autem multototiens loquelas
] Mary Portinrjton'* Case, 10 Rep. -40.
AND FINES. 77
motas in Curia domini regis per amicabilem compositionem
et finalem concordiam terminari dicitur talis concordia
finalis, eo quod finem imponit negotio adeo ut neuter
litigantium ab ea de cetero poterit recedere1." The Modus
Levandi fines of 1290 recites that a fine solemnly levied
concludeth or barreth all parties and privies to the fine and
their heirs, and all other persons in the world, being of full
age, out of prison, of whole memory and within the four seas
the day of the fine levied, unless they make their claim of
their action within a year and a day2. That these Fines were
then well known as means of transferring lands is shown by
the fact that the Statute de Donis contains an express provision
against them : " Et si finis super hujusmodi tenemento
imposterum levetur, ipso jure sit nullus, nee habeant haeredes
hujusmodi aut illi ad quos spectat reversio, licet plenae sint
aetatis, in Anglia, et extra prisonam, necesse apponere
clameum suurn."
The barring of all claims by non-claim within a year and
a day was abolished by an Act of I8603, which shortly provided
that the plea of non-claim of fines should not be taken for a bar
in time to come. This Statute, " whereby" as Coke says "great
contention arose, and few men were sure of their possessions,"
was repealed by an Act of 1483, practically re-enacted by an Act
of 1489 4. This last statute has been treated by Hume and others
as a deep device of Henry VII. to obtain free alienation in land
by weakening the force of entails. It is sufficient to point out
that entails had practically been destroyed by the time of the
decision as to common recoveries in 1472, and also that the
Statute of Henry VII. only re-enacts the preceding Statute of
Richard III., which, as the Act of an usurper, might be taken to
require confirmation. And Lord Bacon in his history of the
reign discovers no such design in the Act. The two statutes
together give all, except parties to the fine, five years in which
to claim against it. At the expiration of this period they
were barred by non-claim5. But heirs in tail or in remainder
1 Gl. vin. 1, 2, 3. 4 1 Rich. III. c. 7. 4 Hen. VII. c.
2 18 Edw. I. 24. Blackstone, n. 354. Coke, n. 518.
3 34 Edw. III. c. 16. 5 Butler's note to Co. Litt. 121, a.
78 FINES.
might have no right to the estate till the death of the levier
of the fine, their ancestor, and he might survive the fine by
more than five years, thus barring their claim. The Statute
therefore expressly provides that persons whose title did not
accrue till after the levying of the fine should have five years
from the accrual of their title in which to claim. Thus the
Statute instead of destroying Estates Tail seems rather intended
to preserve them1. But subsequent provisions of some techni-
cality left it open to doubt whether a fine levied by a tenant-
in-tail did not really bind his own issue, and in 1528 the
judges were divided on this point, three holding that the
Statute of 1489 was not a bar to the issue and four that it
was. An Act of 1540 resolved this doubt by the provision
that fines levied with proclamations according to the Statute
should immediately bar the heirs in tail of the tenant levying
the fine, without any time being allowed during which they
might claim with success. In this Act, however, certain
exceptions were contained, notably that the Act should not
apply to lands the alienation of which was restrained by
Parliament or to entailed lands the reversion of which was
in the king. These exceptions left open to consideration the
effect, by itself, of the Statute of 1489, and in the reign of
Charles II. eight judges against three held that by the Statute
of 1489 also a fine levied by a tenant-in-tail barred his issue2.
As the system of Common Recoveries as bars to Estates
Tail had been definitely established in 1472, the recognition
in 1540 of the efficacy of fines for the same purpose was only
of secondary importance. There were however two classes of
cases in which the use of a fine instead of a common recovery
was advisable. If the tenant-in-tail had also a reversion or
remainder in fee, there was no one who need be barred but
his privies or heirs, and this could be effected by a fine
without the necessity of resorting to a common recovery.
Secondly, where a remainderman in tail desired to bar the
entail, but the person having the freehold in possession refused
to play his part in a common recovery, a fine was the only
1 Barrington, Ancient Statutes, 3rd 2 Murray dem. Derby v. Eyton
ed. p. 402. and Price, T. Kaym. 260.
FINES. 79
method open to the remainderman though it would only bar
and bind his own issue.
In the history of the defeat of strict entails, fines, though
they developed into a system of great complexity and expense1,
are therefore of secondary importance. Their efficiency as
devices for barring entails was unintentionally effected by the
Statute of 1489, and intentionally confirmed by the Act of
1540. From that time Fines and Recoveries, both fictitious
proceedings countenanced by the judges for the purpose of
evading the Statute de Donis, grew in complexity, losing in
their growth any semblance of reality they had once possessed,
till they were swept away in 18.33 by the "Act to abolish
Fines and Recoveries2/' which substituted for them a simple
deed enrolled. Their only merit was that the judges by their
use had been enabled to evade in the interests of the Community
a statute passed in the interests of a Class.
1 The Eeal Property Commissioners payable on levying a fine was £4000.
give an instance where the amount 2 3 and 4 Will. IV. c. 74.
CHAPTER V.
USES.
As the ingenuity of ecclesiastics and their advisers origin-
ated the system of common recoveries, by which ultimately
the strictness of entailed estates was broken down, so the
conception of Uses, by which the prohibition against Wills of
Land was evaded and the secrecy of land-transfer was ensured,
was due to clerical endeavours to evade the laws of mortmain.
If uses had been common or well-known at the passing of the
Statute De Viris Religiosis, they would have been alluded to
in some more specific way than "alio quo vis modo arte vel
ingenio." The ingenuity however which found that common
recoveries were not prohibited by the Act discovered also that
lands might be conveyed to a third person, or held by the
donor himself, to the use of some religious house, or in trust
to pay the proceeds to religious purposes with the result of
obeying the letter and evading the spirit of the Statute. But
just as this use of common recoveries had been prohibited by
the Statute of Westminster the Second, so also the evasion of
the Statute of Mortmain by means of uses was prohibited by
a statute of 1391 \ which recited that "of late by subtile
imagination arid by art and engine some religious persons"
had evaded the Statute, whereby "men were possessed by
feoff ment or by other manner to the use2 of religious people of
1 15 Eich. II. c. 5. benefice, soit il a son oeps propre, ou
2 This word is oeps i.e. ad opus et al oeps d'autri. 7 Eich. II. c. 12.
usum. It first appears in a Statute of Digby, 3rd ed. p. 274 note.
1383, " Si ascun alien occupie ascun
EARLY RESTRAINTS ON USES. 81
lands to amortise1 them, whereof the said religious persons
take the profits," and enacted that such lands should only
be so alienated by the license of the king or lords or else
sold "to some other use*" under pain of forfeiture and that " from
henceforth no such purchase be made so that such religious
and other spiritual persons take thereof the profits." The
Statute contains similar provisions as to lay corporations: "and
whereas others be possessed or hereafter shall purchase to
their use, and they thereof take the profits it shall be done
in like manner as is afore said of people religious."
But though religious alienations by means of uses were thus
restrained, the device had been viewed with favour by the laity,
and several statutes were passed to meet the different methods
in which uses were employed to evade common law liabilities.
Thus in 1376 a statute3 recites that divers people having
incurred debts " do give their tenements and chattels to their
friends by collusion to have the profits thereof at their will,
and after " take sanctuary, " and there do live a great time till
the creditors are forced to take a small parcel of their debts
and release the remnant/' and it is enacted that such gifts if
made by collusion shall not protect the goods and chattels from
the creditors. In the following year (1377)4 another statute
attacks the practice by which persons unjustly in possession
resist the true owners by making feoffments of their lands to
Lords and great men5, against whom the true owners dare not
proceed, and declares that such feoffments made by fraud and
maintenance shall be void, and that the persons disseised shall
bring actions within a year against those who take the profits
of the disseised lands. After the prohibition of uses ecclesiasti-
cal, further restraining statutes show that the laity fully
appreciated the advantages of the device. Thus a Statute of
1402 extends the remedies of the Statute of 1377 by allowing
1 i.e. alienate in mortmain. necessarily any double interest.
2 Thie has been interpreted as a 3 50 Edw. III. c. 6.
legislative sanction of uses. I think 4 1 Rich. II. c. 9 .
it only implies the devotion of the 5 To hold to their (the wrongful
land to secular purposes, without possessor's) use.
s. G
82 EARLY RESTRAINTS
the person disseised to sue the beneficial owner in his lifetime1,
and a Statute of 1433 extends this advantage to all writs
grounded upon Novel Disseisin, as well as the Assize of Novel
Disseisin itself2. A Statute3 of 1485 recites that persons claim-
ing under entails are hindered by feoffments made to persons
unknown " to the intent that the demandants should not know
against whom they shall take their actions," and enacts that
the demandant shall have his action against " the Pernors4 of
the profits of the said lands," and that actions shall " proceed
against the said Pernors as if they were tenants indeed or
feoffees to their use of the freehold of the said lands." A
Statute of 1488 attacks the injury to lords who lost their ward-
ships by feoffments to uses, and provides that if the beneficial
owner dies without any wall concerning his lands, the lord shall
have his wardship or relief in spite of the feoff ment to uses5.
And a Statute of 1503 recites that whereas creditors were
defrauded of their executions, lords of their reliefs and heriots,
and lords of villeins of the purchases of their villeins, by reason
that the debtors, tenants and villeins " cause by fine, feoffment,
recovery or otherwise divers persons to be seised of the said
lands, only to their use, they taking the profits of the same," it
provides that in each case the cestui-que-use shall be directly
liable6. All these statutes however only gave relief to pur-
chasers and others, who came in by act of the law, but were
defeated by "special covinous attempts of the party7".
There remained the case of those who " came in by act of
the party," but were defeated by a prior act of that party in
feoffing to uses. A Statute of 1483 attempted comprehensively
to deal with this question8. It recited that "by privy and
unknown feoffments great unsurety...grew among the king's
subjects insomuch that no man that buyeth any lands,... nor
women that have jointures nor dowers in any lands... nor men's
1 4 Hen. IV. c. 7. 1378 (2 Rich. II. c. 3), and 1433 (11
2 11 Hen. VI. c. 3. Henry VI. c. 5).
3 1 Hen. VII. o.l. 7 Bacon, Reading on the Statute of
4 i.e. cestuis-que-use. Uses, Works, ed. Spedding, vol. vn.
5 4 Hen. VII. c. 17. p. 413.
6 19 Hen. VII. c. 15. Similar 8 1 Rich. III. c. 1.
statutes on technical points appear in
ON USES. 83
last wills to be performed... nor leases for terms of years or of
life, nor annuities granted for life be in surety because of the
said privy and unknown feoffments," and enacted that all
feoffments and grants made and all acts done by a competent
cestui-que-use should avail to the grantees against such cestui-
que-use and his heirs, and all persons claiming an interest in the
land only to the use of the said cestui-que-use. Yet, as Coke
says, " So mischievous and sinister is the invention and con-
trivance of uses that they also over-reached the policy and
provisions of the makers of this Act also... so that danger,
trouble, costs and great vexation remained to the realm by
these co vinous and fraudulent uses, notwithstanding the said
statute1."
An Act of 1483 of a somewhat personal character is of
interest because, according to Bacon, it is " the precedent upon
which the Statute of Uses was drawn, the very mould whereof
that statute was made2." It recites that a number of feoffments
to uses have been made to Richard before he was king3, and
enacts that where he was one of several feotfees to uses, all his
interest shall vest in his co-feoffees, and that where he is sole
feoffee, "all possession, right, title or interest in him" by reason
of such feoffment to uses shall vest in such person or persons
and their heirs to whose use he is so thereof seised : — a clause
almost exactly similar in purport to the important provision in
the Statute of Uses.
In face of this long series of statutes restraining alienations
to uses, and preventing them from being used for purposes of
fraud, or from injuring the rights of others, it is difficult to
understand Bacon's assertion4; "that an Use had * never any
force at all at the common law, but by statute law"; even
though he admits that " there was never any statute made
directly for the benefit of cestui-que-use, but always for the
1 Chudleigh's case, 1 Co. Hep. with corporations and aliens, being
123, a. incapable of being affected by the
2 1 Eich. III. c. 5, Reading, p. 417. Chancellor. Blackstone, n. 332. Digby,
3 The King could not be feoffee to 3rd ed. p. 283.
uses, having for this purpose no 4 Reading, p. 411.
Conscience, and therefore, in company
6—2
84 ORIGIN AND GROWTH
benefit of strangers and other persons against cestui-que-use and
his feoffees, for though by the Statute of Richard III., he might
alter his feoffee, yet that was not the scope of the statute, but
to make good his assurances to other persons, and the other came
in ex obliquo." It is true, as we shall see, that a use had no
recognition or remedy from the common law, but in the face
of these statutes, it is impossible to say that a Use had any
force from Acts, which are only directed to restraining its
creation and annulling its effects.
In spite however of all these statutes, directed, as we have
seen, to ensuring that the device of uses should not protect the
person enjoying the profits of the land from the common law
liabilities attaching to the legal ownership of the land, the
amount of land held subject to uses rapidly increased. Lord
Bacon attributes the first practice of uses to the reign of
Richard II: "and the great multiplying and overspreading of
them was partly during the wars in France," (of the Lancastrian
kings) "which drew most of the nobility to be absent from
their possessions, and partly during the time of the trouble and
civil wars between the two houses about the title of the
crown1". For the judges held in the reign of Edward IV., that
a use of lands was not forfeited by attainder2, so that in the
hazards and vicissitudes of civil wars, a system of land tenure
by uses which protected the land from the misfortunes of an
owner who had identified himself with one side, was even
preferable to the system of estates tail, which preserved the
land to his children, though it allowed his own interest to be
forfeited.
It is evidence of the rapid spread of the conception of uses
that the judges interpreted a Statute of 1414 requiring jurors
to be worth forty shillings in land, to apply to those who had
the use of lands to that amount, who were therefore liable to
serve as jurors ; for, as Coke says, "the greater part of the lands
of England in those troublesome and dangerous times was in
use." The position however of cestui-que-use had its dis-
advantages; the feoffee to uses was the legal owner of the land,
1 Reading, p. 411. was met by private acts of parliament
2 Spence, Chancery, i. 441. This to forfeit such lands.
OF USES. 85
and if he asserted his legal rights, and refused to recognize the
claims on his conscience of the cestui-que-use, the remedy of the
latter was not clear. The clerical courts would naturally deal
with cases of conscience and breaches of faith, but they would
be restrained by writ of prohibition from dealing with matters
affecting land. The Chancellor does not appear to have given
any remedy till the reign of Henry V.,and then only a tentative
one: we find in 14021, the Commons complaining that many
grantees and feoffees in trust alienated and charged the tenements
granted to them, for which there was no remedy, and praying
that one might be provided by Parliament. When recourse to
Parliament proved fruitless, the Chancellor's jurisdiction supplied
a remedy by enforcing on the conscience of the feoffee to uses,
a performance of the trust on which he held the land.
The first recorded application to Chancery is in the reign of
Henry V. and is as follows2:
" To my worthy and gracious Lord Bishop of Winchester,
Chancellor of England. Beseeching meekly your poor bedes-
man William Dodd, charioteer, who passed over the sea in
service with our liege lord and was one of his charioteers in his
voyages ; and of his trust feoffed in my land, John Browning
and John of Chigwell3, with my wife, which John and John
afterwards against my will and witting put my land to farm,
and delivered my movable goods of the value of 20 marks
where them list, and thus they keep my deed and the
indenture4, with my movable goods unto mine undoing, unless
I have your excellent and gracious help and lordship; beseeching
you at reverence of that worthy Prince his soul your father,
whose bedeman I am ever, that ye will send for John and John
aforesaid, that the cause may be known why they withhold my
good5 to mine undoing ; also which am undone for bruising in
service of our liege lord, and in service of that worthy Princess
my lady of Clarence, and ever would, if my limbs might, serve
worthy prince's son. At reverence of God and of that peerless
1 Spence, i. 443. 4 Hen. IV. Kot. 3 feoffees to uses.
Parl. p. 511. •» ? creating the use.
2 Cal. Chancery, i. xiii. Digby, 3rd 5 ? does this only refer to the move-
ed. p. 291. I modernise the spelling. able goods?
86 STATUTE
Princess his mother take this matter at heart of alms and
charity."
Thenceforward recorded applications become more frequent.
Even then there is no sufficient protection to the cestui-que-
use, for while the feoffee to uses could be bound by conscience
and good faith, his heir, who succeeded by a legal title, though
he was a privy to the feoffee to uses, was held not answerable
to the subpoena out of Chancery1. So late as the reign of
Edward IV. the cestui-que~use was driven to the remedy of bill
in Parliament. Chancery however, probably in the same reign,
remedied this, and even extended the rule, holding that a
purchaser for good consideration from the feoffee to uses, with
notice of the uses, would be bound by such uses. If he had no
notice he held the land free from the uses, but if no valuable
consideration passed, notice of the use was presumed and the
purchaser was bound2.
The law therefore was unsatisfactory both to the cestui-que-
use, and to those having claims on him, and in 1535 an attempt
was made to deal with it in a comprehensive way in the
celebrated Statute of Uses. This Act proceeded on the basis of
providing as a general principle, what had hitherto only been
asserted in particular instances, that the beneficial owner should
stand in the position of and incur all the duties of the legal
owner. But there is probably no better statutory illustration
of the proposition that, whoever may dispose of the results of
a statute, it is certainly not the men who propose it. That
the Statute of Uses would result in a comprehensive system of
equitable ownership administered by the Chancery, and a
complete allowance of wills of land was probably the last
thought to occur to its framers. Coke explains their intent to
have been "to extirpate and extinguish all uses; for the makers
of this Statute," he continues, " having maturely examined the
former Statutes and provisions by parliament to reform the
great abuses of uses in many particular cases, at last resolved
that uses were so subtle and perverse that they could by no
policy be governed and reformed," and therefore " they did not
1 Bacon, p. 410. eel. p. 282. Y. B. 5 Edw. IV. 7, b.
2 Bacon, p. 405. Digby, E. P. 3rd
OF USES. 87
intend to provide a remedy and reformation by the continua-
tion and preservation, but by the extinction and extirpation
of uses1."
The lengthy preamble with which, like most other statutes
of the reign, the Act is provided furnishes the best recital of
the results which had followed the introduction of uses, and
which the Statute was intended to prevent. In it is to be
found a complete justification of Coke's statement2; "There
were two inventors of uses, fear and fraud ; fear in times of
troubles and civil wars, to save their inheritances from being
forfeited, and frauds to defeat due debts, lawful actions, wards,
escheats, mortmains" : and also of Bacon's : " that the special
intent unlawful and covinous was the original of uses, though
after it induced to the lawful intents, general and special3."
The preamble recites4 that though the common law has
provided that lands should not be devisable, and should only be
aliened during life by solemn livery and seisin, matter of record,
yet by these fraudulent feoffments and other assurances craftily
made to secret uses intents and trusts, and by wills made on
their death-beds by persons unfit to make them and unduly
influenced by those around them : — (1) many heirs have been
unjustly disinherited: (2) Lords have lost their wardships and
feudal incidents, (for if several persons held as feoffees to uses,
there would never be a minority, or death of the tenant at law,
and the infancy or decease of the cestui-que-use would not give
rise to wardship or reliefs) : (3) purchasers have no assurance of
their title and no knowledge against whom to claim, (owing to
the secrecy in which uses may be created) : (4) husbands lose
their tenancies by the curtesy and wives their dower, because
neither wife nor husband is seised of the lands : (5) the trials
of such secret wills and uses lead to perjury, (for as Bacon says,
" there is a labyrinth of uncertainties and so continual occasion
of false oaths5":) (6) the king and lords lose their attainders
and escheats. Wherefore it is enacted that where any person
is seised to the use of another of any estate in land, the cestui-
1 Chudleigh's case, 1 Co. Kep. 124, a. 4 27 Hen. VIII. c. 10.
2 Ibid. 121, b. 5 Works, ed. Spedding, vn 627.
3 Bacon, p. 411.
88 OBJECTS AND RESULTS OF
que-use should be deemed to be seised of such estate in land,
and that the seisin that was in the feoffee to uses should be
transferred to the cestui-que-use.
In other words the doctrine of Uses had provided a
complicated machinery, by which the person enjoying the
benefits of the land was relieved of many of the liabilities
attaching to its ownership, while the nature of the "legal
owner" was such that that artificial body could evade most of
the legal liabilities of the owner. The Statute endeavoured to
deal this system its deathblow by providing that the person
really enjoying the estate should be treated as the legal owner.
Thus a conveyance " to A. to the use of B.," instead of, as before,
leaving A. the legal owner, and B. entitled in the Chancery to
the profits of the land, converted B., the equitable owner, into
the legal owner, leaving A. merely as a " conduit pipe " to pass
the property to B. So a grant by A. " to B. to the use of A.,"
left under the Statute the legal as well as the equitable
ownership in A.
The objects of the Statute seem to have been ; to prevent
the evils resulting from secret transfers of land, which would
not arise were its ownership notorious; to practically abolish the
system of uses by making them inefficacious ; and probably to
abolish the system by which wills of land had become possible.
Its results were very different. In the first place legal
ingenuity discovered that though the Statute disposed of one
use, and prevented it from having its old efficacy, its virtues
were exhausted by that operation, and if a second use were
created by the grant, the Statute was powerless to touch it.
Thus if A. granted lands to B. to the use of C. to the use of D.,
the Statute made C. the legal owner, but its virtue was then
exhausted, because as the metaphysical conception of a use
showed, "a use cannot be engendered of a use1." C. therefore
held as feoffee to uses, D. being the cestui-que-use ; and as D.
had no common law remedy, the Court of Chancery in inter-
fering to protect him, reintroduced the whole doctrine of Uses.
Further if the grant ran in the form "to A. upon trust to collect
1 TyrrelVs Case, Dyer's Rep. 155, a. Digby, E. P. 3rd ed. pp. 326—328, 331.
STATUTE OF USES. 89
and pay the rents to B.," A. was evidently intended to be legal
owner with an active duty towards B., rather than as in the
case of a grant " to A. to allow B. to take the rents," a legal
owner subject to a duty of forbearance. Here again the Statute
did not apply, and another sphere of action was found for the
Court of Chancery. From these two sources, the great doctrine
of Trusts was developed.
Again, though the preamble of the Statute recited that
lands ought only to be transferred by solemn livery of seisin
so as to secure publicity and avoid the evils of secrecy, yet the
enacting part of the Statute provided that a conveyance to the
use of A. should pass the legal estate and the seisin to A. Now
the Court of Chancery had already held that when B. had
bargained to sell to A., and A. had paid the price, B., by this
Bargain and Sale, held the land to the use of A., and with no
other than a bare legal interest in it. But the Statute of Uses
carried it further, for when B. held to the use of A., the legal
ownership and the seisin passed at once to A., who thus became
the legal owner with even less publicity than had been the case
before the Statute. This evasion \vas too glaring to be over-
looked, and in the same year, (1535) the Statute of Enrolments1
provided that no estate of inheritance or freehold should pass
by any bargain and sale, unless the same should be made in
writing and enrolled either in the King's Courts at Westminster,
or with the clerk of the peace in the county where the lands
were situated. By this means it was hoped that publicity of
ownership and transfer would be assured. But the ingenuity of
lawryers was as usual too crafty for the precautions of Parlia-
ment. The Statute of Enrolments only applied to " estates of
inheritance or freehold " ; and did not extend to estates less
than freehold. If A. therefore bargained and sold or leased to
B. a term of years, i.e. an interest in the land for a year or
years, B. became the legal owner of that estate in the land ; if
A. then "released" to B. the reversion of the land, B.'s two
estates would merge, and B. would become tenant in fee simple
in possession. Formal and public livery of seisin would be
avoided, for B. had as tenant for a term of years a sufficient
1 27 Hen. VIII. c. 16.
90 LEASE AND RELEASE.
estate in the land, and thus all securities for publicity were
destroyed. This transaction, the lease and release being
executed on following days, became the recognized method of
conveying freehold lands inter vivos till the year 1841, when a
statute was passed1, which simplified the formality by allowing
one deed, the release, to take the place of the two, lease and
release, which the history of the introduction of the device had
rendered necessary. This in its turn was superseded by the
"Act to amend the Law of Real Property*" in 1845, which, by
enacting that all corporeal hereditaments should be deemed to
lie in grant as well as in livery, and therefore could be conveyed
by a simple deed without any necessity for livery of seisin,
removed the necessity for any fiction to supply the place of
public livery of seisin, and allowed freehold lands to be conveyed,
as incorporeal hereditaments were, by deed.
Thus the framers of the Statute of Uses in their attempt to
secure publicity of transfer of land, provided machinery by
which secrecy of transfer was ensured. And transfer has, except
in certain counties3, remained secret to this day, though the
signs of the times point to a system of registration of title,
which will provide publicity of ownership and of alienation, in
the interests mainly of cheapness of transfer.
With the way in which the Statute was used in attempting
to refetter land by the will of a dead owner by means of
springing, shifting, and future uses we shall deal hereafter in
considering the history of the rule in restraint of Perpetuities.
But we may note that the Statute at once enabled alienations
to be made which were impossible under the rules of the old
Common Law4. Thus a man could, by means of uses, convey a
legal estate in land to his wife, a thing impossible under the
common law, which forbade alienations between husband and
wife inter vivos. A man could also under the statute convey
lands to himself, as when three old trustees convey land to
themselves and a fourth new trustee, by means of a conveyance
to A. to the use of the four, a result which could only have been
attained by two deeds under the common law.
1 4 and 5 Vic. c. 21. » e.g. Middlesex and Yorkshire.
2 8 and 9 Vic. c. 106 § 2. 4 Digby, 3rd ed. p. 312.
CHAPTER VI.
WILLS.
ANOTHER avowed object of the framers of the Statute of
Uses was to abolish the power of devise of lands, which, as the
preamble recites, did not exist at the common law, but had
been allowed by means of uses, whereby many heirs had
unjustly been disinherited. The inroad on the feudal rule
which prohibited devise had been effected by means of uses
declared in the following manner. The tenant enfeoffed A. into
his lands to hold them to his use, until he should declare by
deed or parol the uses to which they should be held; he
thereafter, usually on his deathbed, declared his will as to those
lands, whereupon the feoffees to uses held the lands to the uses
declared in his will. By this means a practically complete
power of devise was obtained, and was, in numerous reported
cases, protected by the Chancellor, acting on the conscience of
the feoffee. The technical result is hardly similar to a will, for
the tenant is obliged to part with the legal estate in his lands
before his death ; it is rather akin to settlement, but differs in
that the settlor does not declare or limit the settled estate till
after the original feoffment, and shortly before his death.
One of the earliest recorded cases is Rothenhale v. Wyching-
ham1 in the reign of Henry V., where the tenant enfeoffed four
persons to have and to hold to them and their heirs for ever, and
afterwards by a separate deed "declared his will for the disposition
after his death of his lands " that the feoffees " should make full
estate" of the lands to his wife for life and by way of remainder to
1 Chan. Cal. n. iii., iv. Digby, 281 n.
92 EARLY WILLS.
his son. The son made a will of his reversionary interest, and
the bill is brought to compel the feoffees to carry it out. Two
similar instances are recorded in the reign of Henry VI. In
one1, John, Lord Arundel, enfeoffed certain persons in lands "to
the entent that they the said feoffees shoidd performe his will
which he would afterwards declare touching the said manors and
offices." And afterwards by a deed under seal he declared his
will to be that William of Arundel should have an estate tail in
the lands. Bat on the death of Lord Arundel his son John,
Earl of Arundel entered upon the lands "the said feoffment not-
withstanding," and enfeoffed others "to the intent to perform his
will, the which he would afterward declare," and afterwards by a
letter written at Rone2 directed to his mother, he "declared openly
that it was his will that a state should be made to William of
Arundel in the said lands according to the will of his father in
the most surest wise." But his feoffees to uses refused to so
"make a state," and William of Arundel appeals to the
Chancellor to help him. Another instance3 records that
Robert Credy, being so sore sick in his bed that for his
sickness he might not be removed, insomuch that in the same
night he died, called to him John and Thomas and said to
them : " Sirs, ye be the men in whom I have great trust before
much other persons, and in especial that such will as I shall
declare to you at this time for my full and last will shall
through your good help by our Lord's mercy be performed " : he
then gave and granted to them and their heirs and assigns all
his lands "to this intent that after my death ye shall make
estate," to his wife for life, remainder to his daughter Margaret,
remainder to his right heirs, and he delivers them seisin " to
the intent that this my last will shall be performed by you, as
my trust is that it shall be." They accordingly "make estate to
Alice his wife according to the entent and will afore declared4 ".
That this system of devise became widespread may be
1 Chan. Cal. i. p. xxxv. Digby, 292. uses, but to a third person.
2 ? Rouen. The curious informality 3 Cal. Chan. i. xliii. Digby, 293.
of the system is shown here. The will 4 I gather that the feoffees to uses
of the cestui-que-use is alleged by a would transfer even their legal estate,
letter apparently not under seal, and and would not continue to hold it as
not even addressed to the feoffee to trustees.
STATUTE OF USES. 93
gathered from its incidental statutory recognition in 14881,
when a statute against "fraudulent feoffments tending to
deprive the king of his wards and liveries," enacts that if any
persons are seised in fee to the use of any other person and his
heirs, and the cestui-que-use dieth "his heir being within age
and no will ly him declared nor made in his life touching the
premises'1 the lord of the land shall have the same rights of
ward and livery, as if the cestui-que-use had himself been seised
" of that estate so being in use at the time of his death and no
such estate" i.e. ~by will "to his use made nor had." Here the
system of devise is recognized as an usual occurrence, and as
depriving the lord of his wardships.
The informality and insecurity of these wills finds place in
the complaints of the Statute of Uses, which recites that here-
ditaments are conveyed "by Wills and testaments sometimes
made by nude parolx, sometimes by signs and tokens, and
sometimes by writing, and for the most part made by such
persons as be visited with sickness, in their extreme agonies, or
at such time as they have had scantly any good memory or
remembrance : at which times they, being provoked by greedy and
covetous persons lying in wait about them, do many times dispose
indiscreetly and unadvisedly their lands and inheritances."
Though the Statute of Uses does not expressly take away the
power of devise, it does so in effect, by destroying any continu-
ing property in the feoffees to uses, who are thereby prevented
from remaining seised till the feoffor declares as his will to what
uses they are to hold on his death. That this consequence was
intended by the framers of the Statute is clear from the clause2
providing that the wills of persons deceased or who shall die
before May 1, 1536, "Shall be good and effectual in the law
after such fashion as they were commonly taken at any time
within forty years next afore the making of this Act, any thing
contained in this Act or in the preamble thereof, or any opinion
of the common law to the contrary thereof notwithstanding."
But the power of leaving lands by will was too deeply rooted
in popular customs to be torn up by a statute, and the attempt
to do so caused great discontent and uncertainty. The will of
i 4 Hen. VII c. 17. 2 27 Hen. VIII. c. 10 § 9.
94 RESTORATION OF
Thomas Bourne a tenant in gavel-kind, in 1538, runs : "And
whereas there is an Act lately made to avoid uses of wills, yet
my mind is that Clement my son shall have my land at
Tenderden, and John my son my other lands, and I give my
son John forty shillings upon condition that he will abide and
stand to the order and dividing of my lands": if he will not, the
legacy is to go to testator's wife. In the same year one Sarlys
wills that his brother shall have his house at Wy, " if that may
be suffered by law ;" and John Stace of Leigh wills : " that
if the king's last Act in Parliament will not stand with my
wife's enjoying the one half of my lands, I will that my
executors pay her an annuity of forty shillings1."
In the Pilgrimage of Grace, a revolt largely caused by the
suppression of the great northern monasteries, one of the merits
assigned to monasteries was that they were " the executors of
the wills of the people2." The demands of the insurgents
include3, " the repeal of the Statute of Uses," and some of the
speeches of their leaders show that one great objection to the
Statute was that it abolished the power of devise. Sheriff
Dymock, the leader of the revolt at Horncastle said4: " Masters,
there is a statute made whereby all persons be restrained to
make their will upon their lands : for now the eldest son must
have all his father's lands; and no person to the payment of
his debts neither to the advancement of his daughters' marriages
can do nothing with their (sic) lands." Aske said of the
demand of the insurgents : " They want the Statute of Uses
qualified that a man be allowed to bequeath part of his lands by
will," and Lord Oxford wrote to Cromwell: "divers things
should be reformed and especially the Act of Uses. Younger
brothers would none of that in no wise5."
Within four years from the enactment of the Statute of
Uses it was therefore found necessary to restore by statutory
recognition the power of devise, which was accordingly effected
by the Statute of Wills, in its full but inaccurate title : " The
1 4th Eeport of Real Property Com- 4 Ibid. in. 91, note.
missioners. Appendix, p. 29. 5 Because they were the gainers by
2 Froude, iv. 89 — 91. wills, elder brothers by intestacy.
3 Ibid. m. 158.
POWER OF DEVISE. 95
Act of Wills, Wards, and Primer Seisin, whereby a man may
devise two parts of his land1." By this act after a very quaint
preamble, which may be not irreverently described as " to the
glory of Henry VIII. and God," setting forth that "lawful
generations are very great and abundant in the realm," and
that the king has "most virtuously considered the mortality
that is to every person at God's will and pleasure most common
and uncertain," it was enacted that all persons holding lands in
fee simple in socage might freely devise of them all by will and
testament in writing, or by any act or acts lawfully executed in
their life-times2, and that any person holding lands in knight
service might devise two-thirds of them at his pleasure by
will in writing. The profits which would result to the king
and lords from wardships and primer seisin are carefully
preserved to them. From the third part of lands held in
knight service, which was not the subject of devise, the lord
would obtain his profits of wardship ; while, from the fact that
the Statute gives security that the lord should have as much
land as would give one third of the annual value of the lands,
which was the fine payable for leave to alienate land held of the
King, it would seem that the proportion of one third was fixed
to give security for the fines payable on alienation.
To secure the Crown's rights under this Statute an Act of
the same year established the Court of Wards3; but the more
efficient enforcement of the feudal incidents only rendered them
the more unpopular. The confiscation of the land of the
monasteries, and its regrant by the King to lay tenants, had
placed a larger number of the tenants of the country in the
position of holding in chief of the King ; and the misfortunes of
a tenant in capite are feelingly narrated by Blackstone4 and
Sir T. Smith. "The heir on the death of his ancestor, if of
full age, was plundered of the first emoluments arising from his
inheritance, by way of relief arid primer seisin; and, if under
age, of the whole of his estate during infancy. And then
'when he came to his own, after he was out of wardship, his
1 32 H. VIII. c. 1, explained by 34 3 32 H. VIII. c. 46.
and 35 H. VIII. c. 5. 4 Com. n. 76.
2 I suppose conveyances in trust.
96 FULL POWER OF DEVISE.
woods decayed, houses fallen down, stock wasted and gone, lands
let forth and ploughed to be barren,' to reduce him still farther,
he was yet to pay half a year's profits as a fine for suing out
livery ; and also the price or value of his marriage. Add to
this the untimely and expensive honour of Knighthood, to
make his poverty more completely splendid ; and when by these
deductions his fortune was so shattered and ruined that perhaps
he was obliged to sell his patrimony, he had not even that poor
privilege allowed him without paying an exorbitant fine for a
license of alienation."
In 1610 an attempt was made to purchase the king's feudal
rights for a yearly grant to him, but the transaction, known as
the Great Contract, fell through, partly from disagreement as to
the price to be paid, partly from other political causes1. On
February 24, 164o, the Long Parliament passed a resolution
assented to by the Lords, that all feudal incidents should be
abolished, and all tenures by knight service converted into
tenures in free and common socage. This was confirmed by an
Act of 1656, and re-enacted in effect in the first year of the
Restored Parliament2.
But while the immediate aim of this series of Acts was the
sweeping away of oppressive feudal incidents, whose reason had
long been wanting, while their burden had been intensified by
the searching zeal of the Court of Wards, its indirect result was
to enable all lands held in fee simple to be devised. For, the
object of the restriction of devise to only two-thirds of lands
held in knight service being swept away with the abolition of
that tenure, all lands held in free and common socage could
now be freely devised.
The law as to the formalities of devise was still in an unsatis-
factory state: for, though the power of disposing of lands by
will was open to great frauds unless a clear and well certified
declaration of the intention of the testator was obtained, since,
the testator being dead, those present at his death could by
collusion easily support a feigned parol will or one made inform-
1 Gardner, n. 69, 83, 107. Coke, iv. circumstances of the passing of this
202. Act in a note hereafter.
2 12 Car. II. c. 24. I deal with the
FORMS OF WILLS. 97
ally, without fear of detection, yet the Statute of Wills only re-
quired that the will should be in writing : it need not be
signed ; nor need it even be in the testator's own handwriting,
but might be written by another without any sign of attestation
by the testator. This was plainly contrary to good policy, for if
it was desirable that the State should allow a man to arrange
what should happen to his land after his death, and should en-
force that arrangement when made, it was still more desirable
that the arrangements which the State enforced should be the
true arrangements which the testator had made. Accordingly
in 1676 the well-known Statute of Frauds provided that all
devises of lands should be in writing, signed by the testator, or
by some other person in his presence and by his express direc-
tions, and should be attested and subscribed in the presence of
the testator by three or four credible witnesses, or else be null
and void1. Similar provisions were also enacted as to the means
by which a will might be revoked. An Act of 1749 adds
further securities in the same direction, especially in defining
"credible witnesses'."
To complete the history, the great Wills Act of 1837s sim-
plified and made uniform the law as to the formalities required
for wills of land and personalty with the object of securing that
the will of the testator as to the disposition of his property at
his death should neither be expressed with such laxity as to give
rise to fraud, nor be defeated by the requirement of techni-
calities which had an ancient history but no modern justifica-
tion. The "Act to amend the Law of Inheritance4" had assisted
this work by reversing some old rules of descent, whose feudal
justification had ceased with the feudal system. Such was the
rule that a will which left to the heir the same estate in lands
as he would have taken without a will was ineffective, the reason
being that under a will the lord would have lost his wardship,
which he might obtain from an heir. The law as to the powers
of disposition of land possessed by a testator has now been put
on a satisfactory footing so far as form is concerned, though the
reasonableness of its substance may be questioned.
1 29 Car. II. c. 3, § 5. 3 7 Will. IV. and 1 Vic. c. 26, § 9.
2 25 Geo. II. c. 6. 4 3 and 4 Will. IV. c. 106, § 3.
s. 7
APPENDIX.
Note on the abolition of Tenures in Chivalry.
As considerable misapprehensions seem to exist as to these
proceedings, it may be well to give them somewhat in detail. It is
certain that in the reign of James I., a proposal, under the name
of "the Great Contract," to commute the feudal rights of the
Crown for a yearly revenue payable to the king was considered.
This fell through owing partly to extortionate demands on the
king's part, and partly to political causes. Coke is certainly wrong
in putting the date as 18 Jac. I. (1620), a date which Mr Digby
follows: it is probably a slip for 8 Jac. I., (1610), in which year
and parliament the Great Contract was discussed1. The feudal
incidents and the Court of Wards were abolished by resolution
of the two Houses in 1645', and in 1656 these resolutions were
embodied in an Act2. It is also certain that a series of excise
taxes were imposed by the Long Parliament and codified by the
19th ordinance in 16563. But there seems to be no connexion
in the minds of the legislature between the loss of revenue in
1645 by abolition of the feudal incidents, arid the gain of
revenue by the excise in 1656. The latter was not intended as
a substitute for the former: for though, the land being free,
there was a loss of revenue to the State, yet, the expenses of
government being less, the need of compensating taxation was
not felt.
In the first parliament of Charles II., the matter was at once
taken up4. On May 3, 3660, it was resolved "That a Committee
be appointed to prepare a bill for taking away tenures in chiv-
alry...and to consider and propound to the House how £100,000
may be raised and settled on his Majesty, in compensation for
Wardships and Liveries and the Court of Wards." The bill this
1 Gardner, n. 69, 83, 107. 3 Hid. 452.
2 Scobell, 375. 4 Commons Journals, vm. p; 11.
ABOLITION OF MILITARY TENURES. 99
Committee presented was read a first time on May 22 l, a second
time, and went into Committee, on May 25 2: when it was re-
solved that "The sum of £100,000 to be settled on the King's
Majesty his heirs and successors in lieu of taking away (sic) the
Court of Wards and Liveries and Tenures in Capite and by
Knight Service, be generally charged on all lands" The bill
was then further referred to a Committee. There was a debate
on the reported amendments on July 28 3. On August 4, it was
referred to a Committee " to apportion a rate upon the several
Counties as equally as they can for the raising of £100,000 per
Annum to be settled on his Majesty, in Compensation for Ward-
ships, and Liveries, and the Court of Wards*". On November
8, the apportionment of the £100,000 on the respective counties
was brought in and the debate adjourned5. On November 19
the debate was resumed and adjourned6. On November 21, the
debate was resumed, when it was moved7 :" — "That the moiety
of the excise of ale8 &c. shall be settled on the King's Majesty
his heirs and successors in full recompense and satisfaction of
all Tenures in Capite, and by Knight Service, and of the Courts
of Wards and Liveries and in full satisfaction of all Purveyance,
[and that the other Moiety of the Revenue of the Excise of Ale
&c. be settled upon the King's Majesty during his natural life
in further part of the £1,200,000 per annum revenue resolved
to be settled on his majesty]." An amendment was moved to
leave out the word "moiety9/' and was negatived. A second
amendment was then moved to leave out the words in brackets,
and this was carried by a majority of two. The resolution was
therefore passed without the second clause, the object of the
amendment being apparently not to prejudge the important
viii. p. 40. the Excise as part of the royal revenue
p. 45. was passed, Dec. 24, 1660.
p. 105. 9 The intent of this amendment
p. 111. must either have been by omitting the
p. 178. "first moiety" — to settle the whole
p. 186. excise on the King, as compensation,
pp. 187, 188. or by omitting the second moiety, to
8 Bills temporarily continuing the make the whole excise count as part of
Excise had been passed, July 28, and the revenue of £1,200,000 to be set-
Aug. 18,1660: the bill finally imposing tied.
7—2
100 ABOLITION OF MILITARY TENURES.
question of how the £1,200,000 should be raised, by dealing with
it piecemeal.
From this it is clear: (1) that Hallam1, and Taswell-Lang-
mead following him, are wrong in attributing the majority of
two to a division which changed the compensation from a land-
tax to an excise. This change was affected without a division,
the majority of two being on a question relating to the settle-
ment of the ordinary revenue. (2) That any assertions that
either the excise, or the abolition of feudal tenures, were new
acts of a reactionary Parliament are incorrect ; both had a past
history; the novelty was their conjunction. Mr Humphreys-
Owen's appendix to Mr Brodrick's book2 seems to me rather to
fight the wind. The facts show that a Parliament of Land-
owners at first agreed that the compensation to the king
for his revenues derived only from lands held in chivalry
should be "generally charged on ALL lands f a proceeding in it-
self unfair because the lands of all were made to bear the
burdens of the few : that, on seeing the amount assessed on each
county, this Parliament changed the compensation from a tax
on all lands to a tax on ale and spirits, consumed by all people.
The land owners in chivalry clearly thus escaped from their own
burden, while persons who paid excise found part of it appropri-
ated to defray the debts of others, instead of being used to
lessen the taxation necessary for the king's ordinary revenue.
Mr Humphreys-Owen in denying that the excise was substituted
for the profits of the feudal tenures can hardly have had these
facts in his mind.
1 Hallam, Const. Hist. u. 424. T.- 2 English Land and English Land-
Langmead, 2nd ed. p. 617. lords.
CHAPTER VII.
ECONOMICAL CHANGES IN THE LAND-SYSTEM.
BETWEEN the middle of the 14th century and the middle of
the 16th, the English system of land cultivation entirely
changed ; and as the tendency of the changes was undoubtedly
to cause larger quantities of land to come into the market, and
to make alienations more common, the formed habits of the
people naturally led to the repeal or evasion of laws which
hindered the free transfer of land.
In the first half of the 14th century the method of culti-
vation of the land was, on the domain land of the manor by
labourers employed by the lord or his bailiff, and paid out of
•the money commutations which had taken the place of the
personal services due from the copyhold tenants ; on the copy-
hold lands of the manor, by copyhold tenants whose holdings
were so small that, aided by a common-field system, and
common ploughing, they were their own labourers. The land
had thus to sustain two classes, a landlord and labourers. The
copyhold tenants had their homestead and stock from their
lord, and were bound in return to perform personal service in
tilling his domain land, a service which by this time had
usually been commuted into fixed money payments with which
he had hired labourers to cultivate his domain. Alienations of
land would usually take place by the hands of the lord, and
involving as they frequently did the transfer of a whole
manor, would be serious and unusual undertakings. More land
probably changed hands through forfeitures and escheats than
through direct alienations inter vivos.
102 THE BLACK DEATH.
This system was completely broken up by the effects of the
Plague or " Black Death," which devastated England in 1348 —
49, and again in 1361, and in which nearly half the population
perished1. The immediate result of this great mortality was
a remarkable rise of wages. The Bishop of Chester misun-
derstands Prof. Thorold Rogers in making him state that it
"doubled the rate of wages2/' as that particular statement
only refers to the threshing of corn, and to the years im-
mediately following the plague, while the wages for that labour
dropped again in the following years when harvests were plenti-
ful. Prof. Rogers actually states the increases of wages due to
the plague thus : — Reaping Harvest : general rise of nearly 60
per cent; Mowing Grass: of 34 percent.; Thatching: of 48 per
cent.; Threshing Wheat: Eastern counties, 32 percent.; Midland,
40 per cent.; Southern, 33 per cent.; Western, 26 per cent.;
Northern, 32 per cent., &c.3.
He estimates the general effect of the visitation of the
Plague, at an average of 50 per cent, rise in wages in all
employments4.
There was great scarcity of labour, and the few labourers
who survived demanded high wages. It thus became unprofit-
able and even impossible for the great lords, who rarely lived on
their manors, to hold their lands and cultivate them by bailiffs 5.
They attempted however to continue the old system of tillage
by two devices. The famous Statute of Labourers6 endeavoured
to fix the rate of wages which the labourers should receive, at
the rate at which they had worked before the plague, and to
punish them if they would not work for those wages. It recites
and confirms an ordinance made, " against the malice of servants,
which were idle and not willing to serve after the Pestilence
without taking excessive wages," and enacts that they should
be bound under pain of imprisonment to serve at the wages of
four years before. That this Statute was at any rate not
strictly observed is shown by the repeated petitions of the
1 Thorold Eogers, Hist of Prices, i. 3 Rogers, i. 266, 274.
60. 4 Ibid. i. 292.
2 Stubbs, n. 400, note. Eogers, i. 5 Ibid. i. 24.
260. « 25 Edw. III. c. i.
THE PEASANT REVOLT. 103
Commons that it may be enforced. Prof. Rogers thinks how-
ever that in farm labour as distinguished from that of artisans
some effect was produced, as he finds records of the reduction
of the rate of wages in farm accounts of the period1. But as a
whole the Statute was inoperative.
The second method resorted to by the landowners was that
of attempting to enforce the personal services of their copyhold
tenants, instead of their payment of the previous pecuniary
commutation. If this succeeded the labour, being of higher value,
was obtained as practically an increased rent from the villeins.
To the discontent caused by this attempt on the part of the
Lords much of the Peasant Revolt of 1381 is undoubtedly due.
Its failure as an universal expedient led to changes of
cultivation. For fifty years or so many of the ecclesiastical and
lay corporations let their lands on lease on a system somewhat
similar to the metayer system of the South of France, the land-
lord finding all or a great part of the stock on the farm, the
tenant paying a rent either in money or in kind, and being
bound to return the stock or its value on the expiration of his
lease2. But even this extent of participation by the landlord in
the cultivation of the lands passed away and, sooner or later
according to the intelligence and adaptability of the lords, the
land was let out on lease to other cultivators, usually for short
terms, and at first in small lots of 5 or 10 acres3. This is so on
corporation lands, which could not be alienated; the lands of
Merton College, Oxford, were all under leases of this description
by the beginning of the 15th century, while New College,
which had retained the system of cultivation under a bailiff till
about 1425, did not arrive at a complete system of leases till
somewhere about 14504. But the lay lords probably alienated
much of their lands in small plots, and the small freeholder, the
forty shillings freeholder of the Act of 1430, became an impor-
tant factor in England. The increased number of proprietors
meant an increased amount of transfer and alienation of lands,
and called attention to the restraints on such alienations.
After the Wars of the Roses the commercial element entered
1 Kogers, i. 300. 3 Brodrick, English Land, p. 18.
2 Ibid. i. 24, 25. 4 Kogers, i. 25.
104 COMMERCE AND THE
into the English land-system. The whole baronage had "killed
itself out" in the civil wars ; the barons who survived found their
feudal castles powerless to resist the newly invented gunpowder,
and their armed retainers were suppressed by the policy of the
Tudors. To them succeeded new men, who had made their wealth
in commerce, and whom the growing security of the country
tempted to leave the towns and to take up landowning as a busi-
ness, to be therefore conducted on strict business principles. They
saw that the immediate profit to be derived from pasture land
was larger than the rent of plough-land, while, as there was no
longer need of an armed body of followers, the lard's motive for
establishing on his land a number of tenants, who would depend
on him and support his cause, was gone. These two motives
led to the forced expatriation of the small holders, and the
consolidation of their small holdings into large ones. This
process is well recounted by Bacon, who says that : " Enclosures
at that time began to be more frequent, whereby arable land,
which could not be manured without people and families, was
turned into pasture, which was easily rid by a few herdsmen ;
and tenancies for years, lives and at will, whereupon much of
the yeomanry lived, were turned into demesnes. This bred a
decay of people1:" and, as was said in a petition to the
Parliament "sheep and cattle drave out Christian labourers."
This tendency to consolidate holdings was met by a series of
Acts, (which we need only notice in their general effect on the
alienation of land), providing, in one Act, that no houses to
which 20 acres of land were attached should be destroyed, in
another that a suitable dwelling-house should be maintained
for every 40 acres of land, with others directed against exces-
sive sheep-farming and enclosures. These Acts, as Bacon
continues1, "did wonderfully concern the might and manner-
hood of the kingdom, to have farms as it were of a standard,
sufficient to maintain an able body out of penury, and did in
effect amortize a great part of the lands of the kingdom unto
the hold and occupation of the yeomanry or middle people, of a
condition between gentlemen and cottagers or peasants." The
1 Bacon's Works, ed. Spedding, vi. 93, 91, 95.
LAND SYSTEM. 105
tendency of these Acts was to ensure the tenure of land by
small farmers or yeomen, who could till their land themselves ;
the tendency of the action of the lords was to divorce the tiller
of the soil from any proprietary interest in it, and practically to
create three classes of persons deriving their living from the
land, the landlord, the farmer, and the labourer. So long how-
ever as the landowning classes were bent on accumulating land
and founding and maintaining families, it was inevitable that
lawyers should exhaust for them every means of preserving the
land of the family from alienation by any member of the family,
should avail themselves of every device to tie up the land in
strict settlement. The tendency in the three classes has there-
fore been, for the landlord to accumulate land, for the farm to
become larger, for the labourer to become more dependent, and
to live with less hope of ever acquiring land of his own.
The desire of the landowning classes may have been assisted
by events which, as their immediate result, led to the freer
circulation and transfer of land. The Dissolution of the
Monasteries in 1536 and 1539 confiscated to the Crown lands
estimated at one fifth of the soil of the kingdom, which, being
held by corporations, had never come into the market, but had
been usually cultivated by tenants on favourable leases at low
rents with an option of renewal. These lands were regranted by
the Crown to lay tenants, and thus, in the then state of law and
family custom, rendered alienable, with the result that transfers
of land became far more common. The years following the
Dissolutions contain a large number of Statutes relating to the
tenure and transfer of land; there being ten in the year 1540,
the year of the Statute of Wills, alone; and to this extent
secularizing the lands of the church assisted freedom of aliena-
tion. But many of these lands were granted to "new men" of
commercial habits, who yet looked forward to founding families,
and to establishing themselves firmly as members of a landed
nobility. To the aims and desires of these new landowners we
must look for the source of the experiments and attempts in
restraining alienation, which, under the spur of the insecurity
of civil wars, obtained success in the family settlements of
Orlando Bridgman.
106 EESULTS.
Meanwhile the reign of Henry VIII. , as compared with that
of Edward I., sees a great change in the laws restricting the
transfer of land. The landowner's power of restraining his
tenant from alienation of the land during his life, and of impos-
ing a particular line of succession on the land on the tenant's
death, which had been established by the Statute De Donis, is
evaded with the help of the judges, by the devices of Fines and
Common Kecoveries, introduced by the ingenuity of the church,
and adopted by lay tenants of land. Through the same channel
the Doctrine of Uses is applied to the tenure of lands, with the
result of evading the strictness of feudal relations and of the
common law to the advantage both of tenant and of lord.
Especially by its means was the power of disposing of lands by
will given to all landowners, who thus had land free both
in their life and at their death. The Statute of Uses aimed
at restoring the old common law; at imposing upon the bene-
ficial owner of land the duties and rights attaching to its owner
at law; at ensuring publicity of transfer and notoriety of title;
and incidentally at checking the secret disposition of lands by
will. The irony of fate and the ingenuity of the Courts
perverted the Statute from its original purposes. A new system
of beneficial ownership, separate from the legal title to land,
arose from the ruins which the legislature had made. The
means employed to secure publicity of ownership, though sup-
plemented by the Statute of Enrolments, led through the system
of Lease and Release to complete secrecy of transfer ; and the
power of devise, destroyed by the Statute of Uses, was restored
four years later, in deference to the strong national feeling in its
favour, by the Statute of Wills. Side by side with these legal
changes economic transitions were taking place, which furnished
the motive power for still further developments in the system
of land-tenure. The cultivation of England by lord and peasant
gave way to a system of culture by lord, farmer, and labourer :
commercial reasons led to large farms, and the desire of new
landowners to found a family prompted the accumulation of
land in one hand, and the invention of devices to keep on the
land the grasp of that hand, though dead. Thus, though from
the end of the fifteenth century land is the subject of almost
KESULTS. 107
complete freedom of alienation, influences are at work, which
after several experiments and failures enable landowners in the
seventeenth century to reimpose on the land the fetters of the
will of a dead owner, checked only by the rule that those fetters
cannot last for a perpetuity. To the history of Family Settle-
ments and of the "Rule against Perpetuities" therefore we now
turn.
CHAPTER VIII.
FAMILY SETTLEMENTS.
THE 16th and 17th centuries in England were years of
almost complete freedom of alienation. Estates Tail, the great
device by which landowners had kept lands in their family or
under their control, had been broken down by the introduction
of Fines and Recoveries, as devices for barring the entail. The
absence of the power of devise, which had imposed on the land
a line of succession fixed either by the State or the donor, had
been at first supplied by the introduction of Uses, and then the
incapacity had been deliberately destroyed by the provisions of
the Statute of Wills. The tenant could therefore alienate his
land freely during his life and devise it at his death to the
successor of his choice.
But this freedom of alienation and devise was not congenial
to the spirit in which great landowners viewed their land. To
preserve their family name and position, to "keep the land in
the family" seemed to them a desirable and even laudable object ;
to restrain any individual holder of the land from dealing with
it so as to interfere with the interest of subsequent generations
of the family in the family land was a necessary means to this
end. To contrive restraints on alienation and succession which
the law would enforce, to ascertain the furthest limits up to
which the law would allow the grasp of the dead hand to be kept
on the land of the living, was the task set by the great land-
owners before their legal advisers. The judges on the other
hand endeavoured to protect the interests of the community and
of the living tenant, by refusing to recognize many of these
ATTEMPTS TO RESTRAIN ALIENATION. 109
attempted restraints, and by bounding those devices which they
did allow by a limit beyond which no restraints would be
valid, that the land of England might not be tied up in
perpetuity.
The endeavour to impose restraints on the land was made
along three lines, on one of which it failed completely, while on
the other two it achieved considerable success. These three
lines were: —
I. Attempts to deprive estates tail of their capacity of
suffering fines and recoveries, which failed on all points.
II. Attempts to prevent any particular tenant from having
the power to alienate the land, by the device of Life Estates
and Contingent Remainders.
III. Attempts to attain the same end, and defeat any
alienations, if attempted, by the System of Executory Devises,
founded on Uses and Trusts.
The two latter methods achieved considerable success, and
between them account for the present ingenious and fairly
effective device of family settlements, which is further supported
by the customary law of the landowning class. A definite limit
however was imposed on its operation by the rule, to which the
Courts gradually gave great precision in dealing with repeated
attempts to evade it, which is known as the "Rale against
Perpetuities."
I propose briefly to deal with each of these three methods
without going too minutely into the technicalities of the law,
to explain the limits of the Rule against Perpetuities and to
give the history of its growth, concluding this part of the
subject with an examination of the present position of the
law, and the method in which the system of Family Settle-
ments has been dealt with by Lord Cairns' "Settled Land
Act."
I. It was attempted by landowners and their legal advisers
to create estates tail, which had as an incident that they
could not be barred by a common recovery suffered by the
tenant -in-tail1. But all these attempts were defeated by the
1 Fearne on Contingent Remainders, Horde, 1 Burr. 84; Mildmaifs Case,
p. 257 note. Taylor d. Atkins v. 6 Rep. 40; Corbet's Case, 1 Rep. 83.
110 ATTEMPTS TO MAINTAIN
judges, who stoutly adhered to a rule, justified rather by policy
than by logic, that the power to suffer a common recovery
was a privilege, inseparably incident to an estate tail, of which
its tenant could not be deprived. Thus in Corbet's Case1 in
1599, the indenture creating the estate tail contained a
provision that if the tenant-in-tail or any of his heirs should
attempt any alienation by which the estate tail should be
barred such estate tail should cease as if he were dead. The
judges held such a condition to be void2, for a condition to be
good must defeat the whole of the estate to which it was
annexed, whereas this condition did not destroy the estate
tail, for the death of the tenant-in-tail would not determine
it, but only his death without issue.
This case is believed to have been a fictitious one to obtain
the opinion of the Court and pave the way for Mildmay's Case
in 1605 3, in which a condition in a gift in tail not to suffer
a common recovery was held repugnant and against law. In
Sondays Case* in 1610 an attempt was made to evade common
recoveries by leaving land to "A., and if he marry and have
issue lawfully begotten then his son to have the land after
his decease, if he have no male issue, then B. to have the land
...if any of his sons or their heirs male went about to alien
or mortgage the land, then the next heir to enter." But the
judges held that this ingenious attempt to make a tenant-
in-tail with only a life estate failed, and that A. could at once
alienate by recovery, so as to bar the estate tail ; for tenant-
in-tail could not be restrained from alienating by recovery,
either by condition or limitation or devise.
In Mary Portingtoris Case5 in 1613, the devise in estate
tail was made on the condition that if the tenant-in-tail
should agree to suffer any recovery, his estate should at once
be forfeited, as if he were dead without heirs of his body6:
but the judges held that no condition or limitation could
1 1 Eep. 83. Kep. 40, a.
2 It might be good to restrain 4 9 Kep. 127, a.
discontinuances, though not common 5 10 Kep. 35, a.
recoveries. Co. Litt. 223, b, 224, a. 6 This was contrived to meet the
3 See note to Mildmay's Case, 6 argument in Corbet's Case.
ENTAILS. Ill
restrain a tenant-in-tail from suffering a recovery, nor therefore
also from attempting1 or agreeing to suffer it.
Attempts were also made to take away the power of
suffering a common recovery, by obtaining from each tenant-
in-tail an agreement in binding form that he would not alien,
but these also were held not to bind the tenant-in-tail. Thus
in 1608 a case came before Coke2, in which the donor of an
estate tail had made tenant-in-tail enter into a statutory
recognizance that he would not alien, "et quia ceux statutes
fuerunt en substance de faire un perpetuity, quel le State
d'Angleterre ne poit porter, ideo les statutes per le advice de
Coke fuerunt cancell." In 1708 a similar attempt was made
by means of a covenant against suffering a recovery entered
into by the tenant-in-tail in the instrument creating the estate
tail, and it w-as held that the covenant was void3.
The same end was sought in Taylor v. Shaw*, (1664),
, where it was alleged that by custom, certain copyhold lands
held in tail could only be barred by the lord's seizure for
forfeiture and not otherwise5, and the Court held that the law
would create a liability to suffer recovery, by the custom of
the Court: "if you will allow a customary tail you must allow
customary recovery, otherwise we shall have a fine device of
making perpetuities of copyhold estates."
While these attempts were in progress Bacon detected
and condemned their object. "There is started up," he said,
" a device called perpetuity, which is entail with a conditional
proviso tied to his estate not to put away the land from his
next heir, and if he do, to forfeit his own estate, which
perpetuities, if they stand, would bring in all the former
inconveniences subject to entail and far greater." They did
not however "stand," for, as Fearne sums up, the power of the
tenant-in-tail to suffer a common recovery, or to agree or
1 Corbet's Case, 1 Kep. 83. P., 3rd ed. p. 227. H. was seised of
2 Cited Moore, 810. tenements in Winchester, devisable by
3 Collins v. Plummer, 1 P. Wms. custom by will, where there was also a
104. custom that he who is seised by devise
4 Carter, 6, 22. cannot make alienation by warranty or
5 Compare with this the custom in otherwise, which shall be a bar to the
30 Liber Assisarum, p. 47. Digby, E. remainderman or reversioner.
112 REMAINDERS.
attempt to suffer it, cannot be restrained by condition, limita-
tion, custom, recognizances, statute or covenant. By some of
these means however the liberty of a tenant-in-tail to alienate
by other methods than a recovery, (as by a feoffment, a fine
at common law, or other conveyance working a discontinuance,
as opposed to a recovery barring the estate), may be restricted1.
So also the form of grant in Mary Portingtoris Case, (to the
tenant-in-tail, to discontinue on certain conditions as if he
had died without issue), which avoids the difficulty raised in
Corbet's Case, may be applied to impose other conditions on
tenant-in-tail, as that his estate shall determine unless he
take the arms of the settlor, or that if he succeed to some
other estate his estate under that particular deed shall
determine. But the chief result of all these attempts was to
firmly establish that the tenant of an estate tail could not be
restrained from alienating it, so as to bar the entail. In any
scheme therefore for preventing alienations tenancies-in-tail
could only play a secondary part, for as soon as a tenant-in-
tail held the land, liberty of alienation by suffering a common
recovery would come in.
To appreciate the methods by which the power of the
settlor or testator to restrain the alienation of the land settled
or devised was successfully extended, some account of the
conception of Remainders is necessary. By the law of England
a landowner might at one time and by one grant limit, or
carve out of his estate in the land, as many smaller estates,
to take effect in succession, as would make up the whole estate
he had in the land. Thus having an estate in fee, he might
grant his land to A. for life, on A.'s death to B. and the heirs
of his body, on failure of the heirs of B.'s body to C. in fee.
By this ultimate grant in fee he would exhaust the estate he
himself had ; A. would have an estate for life in possession, B.,
an estate tail in remainder, C. an estate in fee in remainder,
this "remainder" not being necessarily the whole remaining
estate of the donor, but implying that that estate is subsequent
to an estate in possession. If the remainder in fee were
1 Notes to Corbet's Case, 1 Rep. 84, a. ; Co. Litt. 223, b. ; 224, a.
VESTED REMAINDERS. 113
f{Lt do"1"^
omitted, part of A.'s estate, an estate in fee, less an estate for
life followed by an estate in tail, would not be disposed of by
his grant, and A. would therefore have an estate in fee in
reversion. Such estates in remainder are of two sorts : Vested
and Contingent. A Vested Remainder is one which the person
to whom the estate is limited in remainder is ready to take
should the estate previous to his remainder determine at that
moment. A Contingent Remainder is one which the person
designated to take in remainder is not ready to take eo
instante, should the preceding estates determine. Thus a grant
to A. for life, remainder to B., a living person, in fee, gives
A. an estate in possession, B. a vested remainder in fee, for,
should A. die, B. is ready to enter on the estate eo instante.
But if the grant is to A. for life, remainder to the eldest son
of B. in fee, B. being then unmarried, whether the remainder
will ever take effect is contingent at common law on B.'s
having a son, before A. dies ; as soon as that son is born he
becomes entitled to a vested remainder, his estate ceasing to
be contingent on his birth before the death of A. The mark
of a vested as opposed to a contingent remainder is therefore
its present capacity of taking effect in possession, if the prior
estates are determined at once.
The landowner wishing to settle his estate did not obtain
much help from the system of vested remainders. For the
grant of an estate tail to anyone would at once let in a recovery,
which would defeat the estate tail, and give the tenant in tail
full powers to alienate ; while a series of life estates, which must
if the remainders were to be vested, be to persons alive at the
date of the settlement or deed, (since such deed or conveyance
passed at once the seisin for all the estates created by it), would
not give any power of settlement beyond the lives of persons in
being.
Contingent remainders afforded a more effective means, for
by giving an estate in tail in remainder to the unborn son of a
living person, the time when effective alienation could take
place was still further postponed.
The law of Contingent Remainders bristles with technicalities
and even absurdities. This is partly owing to the doctrine that
s. 8
114 CONTINGENT
livery of seisin conveyed seisin at once to the estate in
possession, and to all the particular estates in remainder. But
if the estate in remainder were contingent, as where it was to a
person then unborn, where, after the grant, was the seisin of
that estate ? According to the common law it was transferred
by the livery, but there was no person in existence to whom it
could be transferred ; and there must also, it was thought,
be something remaining in the original donor to account for his
right to the reversion of the land, should the estates preceding
the remainder determine before that remainder became vested.
To explain this the fictions that the seisin was in nubibus or in
gremio legis were introduced. The doctrine of double possi-
bilities noticed hereafter is also responsible for much of the
confusion.
Contingent Remainders were subject to three great rules1: —
I. There must be a particular estate, that is an estate smaller
than the grantors estate, precedent to the estate in remainder.
From this it follows that the space between the grant of a
contingent remainder and its taking effect must be filled up
with particular estates of freehold, and these particular estates
must be valid and continuing; leases at will will not suffice.
It further follows that, once a fee simple has been granted, no
remainder can be limited upon it ; for the fee simple is all that
the donor has to grant, and having granted it, he can grant no
more. Neither at common law can a fee simple be granted
determinable on a particular event, as, " to A. in fee until he
marries, and then to B. in fee," for there would be created, not a
remainder, but an estate in derogation of a previous estate,
which was not allowed at common law. And as the benefit of a
condition could only be reserved in favour of the donor and his
heirs, a conditional grant could not be used at common law to
give an estate to a third party2.
II. The remainder must commence or pass out of the
grantor at the creation of the particular estate.
III. The remainder must vest in the grantee during the
continuance of the particular estate, or eo instante that it
1 Blackstone, n. c. 11. 2 Digby, R. P. 3rd ed. p. 223.
REMAINDERS. 115
determines. From this it results that' the determination of the
preceding particular estates before the contingent remainder
becomes vested destroys such remainder. Further, there must
be a possibility that the person to whom the contingent
remainder is limited should be in existence at the determination
of the preceding particular estate. Thus in a grant " to A. for
life, remainder in tail to the eldest son of B," who was then
unmarried, there was said to be a possibility that B. would marry
and have a son before A. died, and the grant in remainder was
therefore good. But in the time of Lord Coke, a grant " to A.
for life, remainder to John, the son of B. or to the eldest
grandson of B," B. being then unmarried, was held void as
involving a "double possibility," instead of a single one, for it
was possible that B. might have a son, and possible that that
son might be called John, two possibilities. It is impossible to
defend this rule of "double possibilities" on any grounds of
reason : it appears to have arisen from the praiseworthy dislike of
the Common law judges to anything savouring of "perpetuities"
For it is certain that the absence of any such restriction as was
in effect contained in the rule against a "possibility on a
possibility," whatever the logical merits of the reasoning sup-
porting it, would have favoured the creation of perpetuities of
restraints on alienation. And the rule has now been superseded
by one form of the " Rule against Perpetuities V
When Contingent Remainders first originated is matter of
dispute. Mr Joshua Williams was of opinion that they were
not held valid till the reign of Henry VI.*, and is certain that
they were not definitely recognized even then. But there is a
grant of the year 1313 to " R. pro vita, reni diversis filiis suis in
generali tallio" which, if R. had no sons at the time of the
grant, would constitute a contingent remainder3; while in a
case in the Liber Assisarum a grant was made "to A. for life so
that A. should make no gift or alienation so as to bar the
remainder to the nearer heirs of the blood of the children4'"
1 Williams, R. P. 15th ed. p. 322, 2 R. P. 15th ed. p. 312.
323. Lord St Leonards in Cole v. 3 7 Edw. II. Pollock, p. 210.
Sewell, 4 Drury and Warren (Ir. Chan.) 4 propinquioribus haeredibus dc san-
pp. 1, 32. fi'iiine puerorum.
8—2
116 EARLY
which, as it was held to refer to the grandchildren of the
donor, would constitute a contingent remainder, if there were
no grandchildren living at the time of the grant1. In the dis-
cussion of this case two of the counsel put cases of remainders,
which are in fact contingent, being defeated by the failure of
the particular estate preceding them before they became vested,
though in one of the cases, the remainderman is en venire de
sa mere when the particular estate falls in.
Littleton's work shows that in the reign of Edward IV. the
law as to Contingent Remainders was not definitely settled2.
For, after citing the case of Richel, Chief Justice in the Com-
mon Pleas in the reign of Richard II., who granted land to "his
eldest son in tail in condition that if he and his heirs aliened,
their estate should cease, and the land should remain to his
second son in tail on the same condition," Littleton says, "that
all such remainders in the form aforesaid are void and of no
value," and the first reason he gives is: "that in every
remainder which beginneth by a deed, it behoveth that the
remainder be in him to whom the remainder is entailed by force
of the same deed, before the livery of seisin is made to him,
which shall have the freehold." This rule would bar all Con-
tingent Remainders, and was rightly objected to by Coke, who
destroyed it under the guise of exceptions such as when the
remainderman is unborn, and when the remainder depends on
a condition. It is curious also that though Littleton in effect
absolutely condemns Contingent Remainders, one had actually
been allowed as valid by the Courts in the preceeding reign, in
which under a grant to A. for life, remainder to the right heirs
of B., who was then living, on the death of B., and then of A.,
it was held that B.'s heir succeeded, though at the time of the
grant there was no one entitled to the remainder3.
Mr Williams finds the first examples of settlements with
estates for life, followed by estates tail to children then unborn,
in the reign of Philip and Mary. He finds none previous to
1 Digby, 3rd ed. p. 227, Society, i, 50.
2 §720. Co. Lit. 377, b. Williams, 3 Juridical Society, i. 51. Will. .R. P.
On History of Settlements, Juridical p. 313. Hil. 32. Hen. VI.
SETTLEMENTS. 117
the year 155G1, though he infers that such a mode of limitation
had already come into some use ; while from the number of
settlements merely to husband and wife in special tail, he argues
that it could not have been general. Chudleigtis Case* depends
on a similar settlement of a rather complicated nature made in
1556, in which the machinery of feoffment to uses is employed.
In this system the vesting of an estate tail, which could be
barred by recovery, is postponed by previous estates for life, the
first estate tail being limited to a son then unborn.
But this system of settlement was not sufficiently rigid, for
if the tenant for life made a tortious feoffment, or forfeited his
estate for waste, or did any act amounting to a discontinuance
before the remainder in tail had vested, the remaindermen were
barred. Thus the very extension of security against alienation,
which could only be effected by remainders which were con-
tingent, served to defeat itself, the contingency of the remainders
being their destruction. In Chudleigh' s Case3, the settle-
ment started with a feoffment by Richard Chudleigh to six
feoffees to uses, to the use (1) of Richard Chudleigh and the
heirs of his body lawfully to be begotten on each of the six
wives of the six feoffees to uses4: (2) failing this issue, to the
use of the feoffees their heirs and assigns during the life of
Christopher Chudleigh,. (3) remainder to- the sons of Christopher
successively in tail male.
During the life of Christopher and before he had a son, the
feoffees conveyed to him in fee; and after much argument it
was decided that the feoffment made by the feoffees destroyed
the contingent remainders of Christopher's sons unborn. This
case being argued in 1598, in 1602 it was also decided in
Archers Case5, under a conveyance to A. for life, remainders
to the next heir male of A., who was then living, that a
feoffment by A. before B.'s death defeated the contingent
remainder of the heirs of B.
It was thus clearly established that a device which endeav-
1 Jurid. Soc. i. 47. The case cited 3 1 Co. Eep. 121, a.
by Pollock may be to children then 4 A most ridiculous aud unaccount-
alive. able limitation.
2 1 Co. Eep. 113, b. D 1 Co. Kep. 66, b.
118 EARLY
oured to fetter alienation by means of life estates, followed by
contingent remainders in tail, was always liable to be defeated
by discontinuances on the part of the tenant for life. And in an
ingenious variation in 1554 an anticipation of the device of
trustees to preserve contingent remainders was frustrated by
the possibility of a merger of estates, which would shut out the
contingent remainders1.
Other attempts which were made and failed were as fol-
lows2:—
1. A conveyance containing a series of estates for years, as
to A. for 99 years if he should so long live, remainder to his
sons and their heirs male, each for 99 years if he should so long
live. In this case the Court held the devise to A. and the first
contingent remainder good, but the remaining limitations void.
2. A series of life estates, limited by deed as to A. for life,
to his heir for life, to his heir for life, &c. This was defeated
so far as the grandsons or remote heirs' estate was concerned
by the rule of double possibilities.
3. A similar devise in a will was construed by the Cy Pres
rule, as a life estate to A., remainder in tail to his heir. But
this construction was limited to cases where the children of the
unborn child received estates tail under the will, and is not
applied where the children's estate is either for life or in fee.
In those cases such estate is simply treated as void3. And this
rule of Cy Pres is not applied to similar limitations in deeds.
4. A devise to A. for life, remainder to his sons successively
in tail, with a direction to trustees on the birth of each son, and
on the consequent vesting of his remainder in tail, to revoke
that estate in tail and to reduce it to an estate for life also
failed5.
Under the spur of civil troubles an effective device against
the insecurity of contingent remainders was at length hit on in
the time of the Commonwealth, and it is curious that three
1 Holcroft's Case, Moore, 486. Cited C. R. p. 204, note, and cases there
Pollock, p. 211. cited.
2 Real Property Commissioners' 5 Diike. of Marlboro lights Case, 1
Third Report, p. 30. Eden, 404.
3 Williams, R. P. p. 325. Fearne,
SETTLEMENTS. 119
great epochs in the history of the Laws relating to Land, the
Statute De Donis, Taltarums Case, and Bridgman's Conveyances,
all follow on civil wars and great insecurity in the nation. The
device of trustees, whose duty it was to preserve the contingent
remainders, is commonly attributed to Sir Orlando Bridgman,
Sir Geoffrey Palmer, and " other eminent counsel who betook
themselves to conveyancing, in order by such device to secure in
family settlements a provision for the future children of an in-
tended marriage, who before were usually left at the mercy of the
particular tenant for life ; and when after the Restoration those
gentlemen came to till the first offices of the law, they supported
the invention within reasonable and proper bounds, and in-
troduced it into general use." Orlando Bridgman's conveyances
were published in 1682 by his clerk, Johnson, who says of his
master that during the Commonwealth, he "betook himself to a
sedentary kind of life in his chambers and became the great
oracle not only of his fellow sufferers but of the whole nation in
matters of law, his very enemies not thinking their estates
secure without his advice. Then it was that these precedents
were framed and advised by him, they being for the most part
settlements between persons of the greatest honour in the
kingdom." And in them the device of trustees to preserve
contingent remainders is frequently though not invariably
employed. Thus in a marriage settlement, the property is con-
veyed to A. for the term of her natural life, and after the deter-
mination of that estate1, to the use of W. S. for and during the
term of the natural life of A. "upon trust only for the preserving
the contingent uses and estates hereinafter limited and to
make entries for the same, if the same shall be needful, but
that the said W. S. shall not convert the rents &c. thereof to his
own use, and from and immediately after the death of the said
A," to the use of his wife, with estates tail in remainder to the
sons to be born of the marriage2.
By these means the defeat of contingent remainders by the
determination of the estate of the tenant for life before his death,
as by some discontinuance, was effectually prevented ; and this
1 Which might precede her natural 2 Bridgman's Conveyances, p. 85.
death.
120 USES AND
expedient is not found before the conveyances of Orlando
Bridgman. Even this was rendered unnecessary in 1845 by
the Act to amend the Law of Real Property1, which provided
that Contingent Remainders should be capable of taking effect,
notwithstanding the determination by forfeiture, surrender or
merger of any preceding estate of freehold, in the same as if
such determination had not happened. The same Act also
increased freedom of alienation by rendering Contingent Remain-
ders and other future interests alienable, provided that no such
alienation by itself should defeat an Estate Tail2. But from
the time of the Commonwealth it had been possible by means
of Contingent Remainders to postpone the time when the settled
land would become alienable, in a manner and to an extent only
limited by the rule against Perpetuities.
Even greater powers to effect settlements of land were given
by the machinery of Uses and Executory Devises, though,
whenever a future interest could be construed as a remainder, it
was so interpreted and thus rendered subject to the stricter
rules of the common law8.
Executory interests, contrary to the rules of limitation at
common law, may be created either under the Statute of Uses
inter vivos, or by Will. Under the Statute a use of lands may
be created, to arise, not on the determination of any recognized
estate in the land, in which case it would be treated as a
remainder, but on the occurrence of some other event. Thus
land may be settled by means of uses on A. in fee, until the
marriage of B. and C., when B. shall take a life estate with
remainders in tail to the children to be born of the marriage.
Here a springing use is created, to spring into existence,
defeating A'.s previous estate, as soon as B. and C. are married ;
or there may be a shifting use, the use of lands may be limited
to A., so long as he remains unmarried, or bears the'name and
arms of the settlor, and it may be directed that if he marries, or
ceases to bear the name and arms, the use shall shift to B., on
similar conditions. Similar estates in land, known as Executory
Devises may be created by means of uses in wills, and may be
1 8 and 9 Vic. c. 106, § 8. » Williams, E. P. p. 307.
2 §6.
EXECUTORY DEVISES. 121
defined as "such a limitation of future estate or interest in lands
as the law admits in the case of a will, though contrary to the
rules of limitations in conveyances at common law1."
These devices were more flexible than the system of remain-
ders, and consequently gave greater power of control over the
land to its settlor or devisor2. For these executory interests,
to use a general term, need no "particular estate" of freehold to
support them. A man could leave by will an estate in land to
vest on the occurrence of some particular event, and make no
provision for the ownership of the land till that event should
occur, though such a disposition would at common law at once
defeat a remainder. But by such a devise the land would pass
to the heir until the event happened, when by a springing use
the settled estate would spring into existence. By this means
an estate to take effect at a future time not too distant could
be created without risk of defeat.
By these means also a fee simple or other less estate in land
could be created to take effect after a grant in fee simple, or
rather so as to arise and defeat a previous estate in fee on the
occurrence of a particular contingency3. A devise to A. in fee,
but if A. should die before the age of 21, then to B. in fee, would
be void in a deed, but valid if made by will as an executory
devise4. Estates for life with remainders may be limited by
will after chattel interests in land such as terms of years, as
executory interests, though such limitations would be invalid if
made by deed. Powers can also thus be given to particular
persons to vary the uses to which the land is held, by the
declaration of their will in a prescribed form, even though such
declaration defeats their existing estates.
By these means great flexibility was given to the powers of
disposition which an owner of land possessed, subject to this,
that if the interest in land created could be construed as a
contingent remainder rather than as an executory interest; that
is, if it must wait for its commencement the determination of
1 Fearne, C. R. 386. a, Case of Prior of St Bartholomew.
2 Blackstone, n. 173. Sheldon v. Gardner, Vaughan, 25J,
3 This power appears not to have 271.
existed so late as 1538, see Dyce, f. 33, 4 Blackstone, n. 174.
122 RESULT.
a previous estate in the land by its own weakness, it would be
treated as a remainder, and subject to the strict rules of the
common law.
Like contingent remainders also, executory interests could
not be conveyed by deed, though they might be released and
were devisable. The Act to amend the Law of Real Property
allowed their alienation by deed, provided that no estate tail
was thereby defeated.
The device of contingent remainders, protected by trustees
created for that purpose, and the more flexible system of
executory interests under the Statute of Uses and by will,
placed considerable powers of disposition in the hands of an
owner of land. On this power the Courts in their desire to
"avoid perpetuities," imposed very definite limits. Their policy
is summarized by Blackstone in these words : " Courts of justice
will not indulge even wills so as to create a perpetuity, which
the law abhors, because by perpetuities, or the settlement of an
interest which shall go in the succession prescribed without any
power of alienation, estates are made incapable of answering
those ends of social commerce, and providing for the sudden
contingencies of private life for which property was first
established1."
1 Bl. ii. 174.
CHAPTER IX.
THE RULE AGAINST PERPETUITIES1.
UNDER the statute De Donis, there was, as we have seen,
apparently no limit to the power of a landowner to fetter the
alienation of his land, until judicial action allowed the tenant-
in-tail to defeat the entail by suffering a recovery. And when
this restriction had been imposed it was maintained by the
judges against all attempts to create estates tail to which
common recoveries should be inapplicable. The great dislike of
the common law to "perpetuities" or to those settlements of
land which attempt to restrain in perpetuity its alienation, has
led to the establishment on grounds of public policy of clear
rules, limiting and restricting the extent to which dispositions
of land by a settlor or testator are good and binding. At first
vague definitions and denunciations of a monster " horrendum
in/orme ingens" called a Perpetuity, are plentiful, but there is
little more. A perpetuity is " an estate inalienable though all
mankind join in the conveyance2." It is where "if all that have
interest join yet they cannot bar or pass the estate3." But as to
the limits or nature of a perpetuity, the common law judges are
silent and content themselves with vaguely denouncing it, as
"a thing odious in law, arid destructive to the commonwealth,
1 For authorities, see Hargreaves' Land Laws, pp. 210 — 215. Lewis On
Argument in Thellusson Case, 4 Ves. Perpetuities, pp. 140 — 162. Marsden
247 ; 2 Jurid. Arg. pp. 1—182. Sir On Perpetuities. Gray, Rule against
E. Sugden's argument in Cadell v. Perpetuities. Boston. 1886.
Palmer, 1 Cl. and Fin. 372, 384. 3rd 2 Scattergood v. Edge, (1697) 1 Salk.
Report Real Property Commissioners, 229.
pp. 27—44. Williams, R. P., 15th ed. 3 Washburne v. Downcs, (1672) 1 Ch.
pp. 323, 324, 368-374. Pollock, Ca. 213.
124 DEFINITION OF
which would stop the commerce and prevent the circulation of
the property of the kingdom1."
Mr Sanders clearly defines a perpetuity in these words : " a
perpetuity is a future limitation, restraining the owner of the
estate from aliening the fee simple of the property, discharged
of such future use or estate, before the event is determined
or the period is arrived when such future estate is to arise.
If that event or period be within the bounds prescribed by
law, it is not a perpetuity V It is now firmly established
that no limitation by way of executory interest or devise
which will take effect after the expiration of 21 years from the
death of any person living at the creation of the limitation
is valid3. It is also laid down with regard to contingent
remainders that no life estate can be given to any unborn
person, followed by any estate to the child of such unborn
person4. It has been argued that this is merely a tentative
form of the Kule against Perpetuities in Executory Interests5,
but the better opinion appears to be that the two rules are
distinct and separate6.
During the 16th and the beginning of the 17th centuries
there are on the one hand a series of vague denunciations of
Perpetuities from the bench; without any clear distinction as to
what restraints on alienation were allowable and what void ; on
the other several cases of some obscurity by which executory
devises, contrary to the common law were yet recognized7.
The first case of any importance however is that of Pells' v.
Brown* (1621), which Lord Kenyon described as " the foundation
and as it were the Magna Charta of our Law," on this subject,
but which Mr Hargreaves, though he admits " the almost
unreachable subtlity of the reasoning," " does not feel to have
furnished much of the code of executory devise*." In that case,
land was devised to A. in fee, and if he died without issue,
1 Vernon, 164 (1683). seq. Pollock, p. 213.
2 Sanders, Uses and Trusts, 5th ed. lt Per Joshua Williams.
p. 204. 7 Hargreaves, pp. 30 — 32. Especially
3 Cadcll v. Palmer (1833), 1 Cl. Matthew Mannings Case, 8 Co. Hep.
and Fin. 372. 94 b.
4 Williams, #. P. p. 323. 8 Cro. Jac. 590.
5 Lewis On Perpetuities, pp. 408, ct * pp. 33—35.
PERPETUITIES. 125
leaving B. surviving, then to B. in fee. A. suffered a common
recovery, and then devised the land to C., and died without issue,
leaving B. surviving. B. claimed against C., and it was held (1),
that the executory limitation to B. was good ; (2), (DoddrMge, J.
dissentiente) that it could not be barred by a common recovery
in the part of A. The case therefore, though it supports the
power and efficacy of executory devises, does not impose or define
any limits to that power, and in it the contingency did riot
exceed one life in being.
In Snow v. Cutler (1660 — 1670)1, there was a devise to the
heirs of the body of the testator's wife if they should attain the
age of fourteen, (a devise which if valid, might have extended
to a life in being, and fourteen years after). The devise was
objected to as being to a person unborn, and also on Lord
Coke's metaphysical doctrine of a double possibility, the birth
of a child and that child's living to be fourteen years old. All
the judges, following Pell v. Brown, agreed that an executory
devise to take effect within the compass of a life was good,
" but not after a death without issue, for that would make a
perpetuity," and that an executory devise could not be barred
by a common recovery, but on the question whether the
particular devise, notwithstanding the double contingency was
good, the court were equally divided, and, as Levinz says, " I
suppose the parties afterwards agreed, for I heard nothing of it
after." Some years previously in Goring v. Bickerstaff2 (1664),
it had been decided in the case of a chattel, that "the limitation
of a term to several persons in remainder one after another, if
they be all in being and alive together is good, and doth in no
sort tend to the perpetuity of a chattel " ; for the lives are all
wearing out together, "all the candles are lighted at once3,"
and the limitations really amount to the life of a person in
being with an added machinery to secure a long life.
In Taylor v. Biddall*, (1672), there was a devise to A. until
1 1 Lev. 135. T. Kaym. 162. 1 3 This phrase is attributed by Lord
Keb. 752, 800. 2 Keb. 11, 145, 296. Bridgman to Lord Hale. Hargreaves,
1 Sid. 153. 46.
8 Pollexfen, 31. Lewis, Perp. pp. 4 2 Mod. 289.
142.
126 CASE OF
her son B. was 21, and then to B. in fee, but if B. should not live
to be 21, then to the heirs of the body of C. in fee. B. died
under 21, while C. was still alive; but it was held that the
devise was good: this certainly appears to allow a devise to
lives in being and 21 years afterwards, yet it hardly seems at
first to have been treated as an authority for that proposition.
For in Lloyd v. Carew (1697)1 there was a devise to the heirs
of the body of husband and wife, but if they died without such
heirs, then, if the wife's heir should within a year of the death
of the survivor of them pay to the husband's heir £4000, the
land was to go to the wife's heir in fee. This was in effect a
settlement on two lives in being, and a year beyond ; yet it was
held void in the Common Pleas, apparently because the con-
tingency was too remote, though the decree was reversed in the
Lords. And in Luddington v. Kime* (1696), while Powell, J.
would allow a posthumous son to take, " as happening so short
a time after the death of a life in being," Treby, C. J. " doubted
much of that and was of opinion that the time allowed for
executory devises to take effect, ought not to be longer than
the life of one person then in esse," and he cited Snow v. Cutler.
As the Court held that this particular devise was a contingent
remainder, no decision on the other point was necessary; but
clearly Taylor v. Biddall was not considered in either of these
cases as justifying a rule of lives in being and 21 years after.
The reason may be that though the form of devise " to A. for
life until B. reaches 21" might where B. was then unborn reach
the limit, yet when B. was born and A. was alive at his
majority, the devise would be within a life in being, i.e. A.'s,
and so the possible extension would not be suggested. And
certainly Lord North, who presided in Taylor v. Biddall, took
an entirely different view in the case of the Duke of Norfolk,
which we have for the moment passed over.
The Duke of Norfolk's case as the first reasoned discussion
of the rule is sometimes called The Case of Perpetuities*. The
deed in question was rather complicated, its object being to
1 Showers, Parl. Cases, 137. Har- 3 2 Chan. Kep. 119. Pollexfen, 223.
greaves, 36. Lewis, Perp. 144. Hargreaves, 46.
2 1 La. Kaym. 203.
PERPETUITIES. 127
secure the profits of certain lands to the second son of the Duke
of Norfolk, whoever he might be1. The lands were therefore
conveyed to the Duke for life, with remainder to trustees for a
term of 200 years, remainder to Henry the second son in tail,
remainder to Charles the third son in tail. Another deed
declared the trusts of the term of 200 years to be to pay the
profits to Henry, so long as Thomas the eldest son or his issue
male should survive, but if Thomas should die without issue
male, (in which case Henry would succeed as eldest son), then
the profits should be paid to Charles. Thomas died without
issue, and the question arose whether the trust of the term
claimed by Charles, limited after the trust to Henry and his
heirs male, was not too remote. The Chief Justices of the three
Common Law Courts advised the Chancery that it was void, but
the Chancellor, Lord Nottingham, upheld it as taking effect
within Henry's life, and therefore not leading to a perpetuity.
The judges had opposed, partly on the authority of some of the
older cases, and partly as leading to perpetuities, and Lord
Nottingham said : " as to the objection that was made ' where
shall it stop, for if it may be good after a limitation to a man
and his heirs determinable upon a contingency to happen in
the space of one life, so likewise for two lives, and so for twenty
lives.' To that he answered that Westminster Hall will quickly
stop it, when they find it tends towards a Perpetuity, or when
they find any inconvenience in it, but when the contingency is
to determine in one or two lives, there is none." In opposition
therefore to the view of his three Common Law Assessors, the
Chancellor affirmed the validity of the deeds : on his death his
decision was reversed on review, by Lord North, the then Lord
Keeper, but was reaffirmed on appeal to the House of Lords.
The effect of this decision, which proceeded on the ground
that terms of years were equally with estates of inheritance
subject to executory devises, was, according to Mr Hargreaves, to
create a general practice of settling terms of years, and providing
portions for children under the trusts of such terms, to the
extent of lives in being and 21 years after their expiration2.
1 The eldest son was a lunatic, hence 2 p. 50.
the machinery.
128 FURTHER HISTORY OF RULE.
For the Duke of Norfolk's Case was considered to support the
principle "that so long as the strict settlement of any property,
whether by executory devise or by similar trusts, did not exceed
the ordinary time for barring a regular entail settled in estates
for life with remainder in tail to an unborn child, which was
when such child should attain 21, it was allowable." Although
this practice followed with regard to terms of years, yet the case
itself only gives authority for the creation of limitations to take
effect within lives in being, in this following Goring v.
Bickerstaff.
The extension of the term, during which freehold estates
might be settled by executory devise, to 21 years after the ex-
piration of lives in being was not formally recognized till the
case of Stephens v. Stephens in 1736. Indeed in 1699 in the
case of Scattergood v. Edge1, Treby, C. J., in allowing as good
a devise to the eldest son of A., (who had then no son), and
his heirs male, and, if A. should die without issue then to the
eldest son of B., (who had then issue), in tail, expressed very
forcibly the strong dislike of the Common Law Judges to any
extension of the limits of executory devises. "Since they have
crept into the law ", he said, " they have occasioned great confusion
and disorder. . .they were utterly unknown to the common law,
have obtained with much ado; and now they have prevailed,
ought to be looked upon with much jealousy, lest they run to a
perpetuity : and a perpetuity is such a condition of a fee that the
feoffee shall not be able to give absolutely to another. It was
a great policy of the Common law that alienations should be
encouraged,... and these executory devises had not long been
countenanced when the Judges repented them; and if it were
to be done again, it would never prevail; and therefore there
are bounds set to them, namely a life or lives in being and
further they shall never go by my consent at law, let Chancery
do as they please."
In Stephens v. Stephens, (1736)2, there was a devise to a
person unborn when he should attain the age of 21 years. The
Chancellor referred the case to the Judges, who certified thus :
1 12 Mod. 278, 287. 2 Cases temp. Talbot, p. 228.
RULE AGAINST PERPETUITIES. 129
" We do not find any case wherein an executory devise of a
freehold hath been held good, which hath suspended the
vesting of the estate until a son unborn should attain the age
of 21 years, except the case of Taylor v. Biddall1. That
resolution appeared on every view of it to be so considerable in
the present case that we caused the record to be searched, and
find it to agree in the material parts thereof with the printed
report, and therefore, however unwilling we may be to extend
executory devises beyond the rules generally laid down by our
predecessors ; yet upon the authority of that judgment, and its
conformity to several late determinations in cases of terms for
years, and considering that the power of alienation will not be
restrained longer than the law would restrain it ; viz. during
the infancy of the first taker (in tail), which cannot reasonably
be said to extend to a perpetuity; and that this construction
will make the testator's whole disposition take effect, which
otherwise would be defeated ; we are of opinion that the devise
before mentioned may be good by way of executory devise."
To this certificate the Lord Chancellor, Lord Talbot, "was
pleased to decree accordingly, and expressed his satisfaction
with it, as agreeing perfectly with his own sentiments, and said
he hoped it would be for the future a leading case in the
determination of all questions of this kind."
In 1765, Blackstone states the law accordingly: "The
utmost length that has hitherto been allowed for the contin-
gency of an executory devise of either kind to happen in, is
that of a life or lives in being, and 21 years after2 " ; and in
Jee v. Audley3 in 1787, Sir Lloyd Kenyon, the Master of the
Rolls, refers to the authority of the rule as to personalty thus :
" the limitations of personal estate are void, unless they neces-
sarily vest, if at all, wicain a life or lives in being, and 21 years
and nine or ten months afterwards. This has been sanctioned
by the opinion of judges of all times, from the time of the
Duke of Norfolk's Case to the present : it is grown reverend by
age, and is not now to be broken in upon."
A statute of 16994 had provided that children en venire sa
1 2 Mod. 289 ; supra, pp. 125, 126. 3 1 Cox, Cases in Equity, 324, 325.
2 Bl. n. 174. 4 10 and 11 Will. III. c. 16.
130 RULE AGAINST PERPETUITIES
mere at their father's death should, for all purposes of limi-
tations of estates, be deemed to have been born in his life-
time; an enactment which necessarily converts the time of
" 21 years after lives in being," into " 21 years plus the time of
gestation." This rule was however treated by some judges as
merely an explanation of lives in being, the period of gestation
being treated as " an appendix of the life in being," and not a
new period. In Long v. Blackhatt1, (1797), this period of gesta-
tion was reckoned at the beginning of the period ; that is to say,
an infant en venire sa mere at the testator's death was reckoned
as a life in being, from whose death the 21 years would run ; and
this would seem, though Mr Hargreaves disputes it, to allow
the period of gestation twice, once to make " the life in being,"
and once for the 21 years, or minority of a tenant after the
expiration of the life in being.
One more decision was necessary to give precision to the
rule. The period of "lives in being and 21 years after "was
probably derived by analogy from the practical effect of the
rule forbidding the limitation of remainders to the unborn child,
A., of an unborn child, B, in restraining alienation ; but there
the 21 years was derived from the actual minority of B., at the
expiration of which he, as tenant-in-tail, could break the entail
and alien. The question arose whether in the case of executory
devises, the 21 years must relate to the actual minority of
some particular person or whether it was a term in gross, that
is to say, of 21 years from the death of the last "life in being"
irrespective of any minority or the condition of any particular
person. After an inconclusive discussion of the point in Beard
v. Westcott2 in 1813, the question was clearly raised in 1827 in
the case of Bengough v. Edridge*, afterwards decided by the
House of Lords under the name of Cadell v. Palmer41. There
land was devised to trustees for 120 years from the testator's
death, if 28 persons named in the will, or anyone of them,
should so long live, and for 20 years from the expiration or
sooner determination of the term of 120 years. This, it will be
seen, was in itself an ingenious machinery to secure that the
1 7 T. R. 100. 3 1 Simons, 173—271.
2 5 Taunt. 392. 4 1 Cl. and Fin. 372.
FINALLY ESTABLISHED. 131
term "lives in being and 21 years after" should be as long as
possible, by taking the survivor of 28 persons as the "life in
being." Out of this term so created, a number of smaller
estates were limited, some of which, as for instance an estate to
the son of an unborn person for 99 years if he should so long
live, would, if standing by themselves and limited out of the fee,
have been invalid. Here the term was treated as one in gross,
and independent of the particular persons interested in the
estate, and could only be sustained if such a view were valid.
On this view both the Court below and the House of Lords in
Cadell v. Palmer confirmed it. It was there held that a
limitation by way of executory devise was valid, though not to
take effect till after the determination of a life or lives in
being, and within a term of 21 years from such determina-
tion, as a term in gross, and without reference to the minority
of any particular person. The time of gestation is only to be
allowed where gestation actually exists.
This decision therefore finally establishes the definite limits
of restraints on alienation, or the Rule against Perpetuities, in
the case of executory devises. Though the rule seems to have
been built up on the analogy of the rule relating to contingent
remainders, it yet goes further than its model in two important
respects. The rule as to remainders, which seems historically
connected with Lord Coke's metaphysical objection to a possi-
bility on a possibility, is that no estate can be limited after a
life estate to a person unborn. The result was that the
ordinary form of settlement became a series of life estates to
persons in being, with a remainder in tail to a person unborn.
If the tenant-in-tail were en venire sa mere at the death of the
last tenant for life, the land would be in effect restrained
from alienation for a life or lives in being, and for 21 years
plus the time of gestation afterwards, as it could not be dealt
with till the tenant-in-tail attained his majority. But the
tenant-in-tail might have attained his majority before the last
tenant for life died, in which case the period of restraint would
be 21 years shorter.
These restrictions differ in two important respects from
those imposed on Executory Devises. I. In settlements by
9—2
132 REMAINDERS AND
remainders the "lives in being" all take life estates in the land,
and have a substantial interest in it : there is some reasonable
connexion between the duration of their lives and the post-
ponement of free alienation. But in Executory Devises, the
lives in being may have no interest at all in the land ; in the
great case of Cadell v. Palmer, out of the 28 lives in being,
21 had no interest in the land at all, and it would be quite
within the letter of the law to insert as the lives in being, all
the boys at Eton on the testator's death, or all the members of
the House of Lords at the same date.
II. While a settlement by remainders in tail depending
on particular life estates can only last for 21 years after lives
in being and may cease to restrain alienation at the death of
the last tenant for life, according to the age of the particular
tenant-in-tail, an executory devise, being founded on a term in
gross, independent of the circumstances of any particular person,
can always be contrived so as to restrict alienation for the full
term of 21 years after lives in being ; while these lives in being
may, by arbitrary selection, be prolonged with all but certainty
beyond the average duration of human life.
In the case of Executory Devises the rule against perpetuities
is therefore much less strict and effective than is the corre-
sponding rule with regard to remainders. This was recognized
by the Real Property Commissioners, who recommended: (1)
that lives in being by which to postpone the period of free
alienation should not be arbitrarily taken, and that all lives
should be deemed to be arbitrarily taken unless in the instru-
ment creating the limitations each life appeared to be actually
interested in the land. (2) That a contingent remainder or other
future estate or interest which, if limited to take effect out of
an estate in fee, would be void under the rule against per-
petuities, should also be void if limited to take effect out of any
estate less than fee simple; a suggestion designed to defeat
the ingenious machinery in Cadell v. Palmer by which void
limitations were rendered valid by the protection of a term of
years.
An additional restriction was imposed on the power of a
man to fetter his successors in dealing with the land, in conse-
EXECUTORY DEVISES. 133
quence of the celebrated will of Mr Thellusson1, who directed
the income of his property to be accumulated during the lives
of all his descendants living at his death, and on the death of
the last of them to be divided amongst the heirs male of his
three sons. It was calculated that this will might cause
income to be accumulated for a hundred years, in which case
the sum to be ultimately divided would be at least thirty
millions. An Act was therefore passed in 1800 2, which provided
that trusts for accumulation of income of land should only
be valid during the life of the settlor, or for 21 years after
his death, or during the minority of any person living or en
venire sa mere at the time of his death. This however does
not affect dispositions of the land itself, which are still
governed by the Kule against Perpetuities, but prevents
testators from imposing still tighter fetters on the use of the
land, by even restraining the expenditure of the income derived
from it.
1 Thellusson v. Woodford, 11 Ves. E. P. 14th ed. p. 334.
112. Fearne, C. E. p. 538 note. Will. 2 39 and 40 Geo. in. c. 98.
CHAPTER X.
LORD CAIRNS' ACT.
SUCH therefore being the restrictions which judicial legis-
lation has imposed on the power of settling land so that it
shall not be alienable, we are now in a position to appreciate
the mixture of law and custom by which even this rule was
evaded, and land was, until the passing of Lord Cairns' Act,
practically fettered to a family in perpetuity.
In the early part of this century an ordinary settlement of
land, to take a very simple instance, was of this nature. On
the marriage of A., land was settled on him for life, with a
remainder in tail to his eldest son B. then unborn, and successive
remainders in tail to his other sons in order of seniority,
remainder to the heirs of A. in fee. B.'s contingent remainder
was protected by the device of trustees to protect contingent
remainders1. Unless A. had no sons at all, in which case he
had an estate in fee, A. had only a life interest in the land.
But if sons were born to him no alienation that he by himself
could make would defeat their interests, for he could only deal
with his own life estate in the land. B. also, unless he could
persuade his father to join with him in barring the entail, could
until he succeeded to the estate on his father's death, only
alienate his own interest in the land, that is an estate in the
land, so long as B.'s heirs survived, which was known as a base
fee; he could not affect A.'s life interest in the land nor bar the
estates tail in remainder of his younger brothers. Consequently
1 This is a simpler form than exists in practice.
CUSTOMARY SETTLEMENTS. 135
the land was safe from complete alienation by the tenant-in-
tail alone, until he was in possession, and had attained the age
of 21 : but as soon as B., the tenant-in-tail in remainder,
attained his majority, he was in a position to join with the
tenant for life, A., in aliening or resettling the estate. On the
coming of age of the eldest son therefore, and very frequently
on the occasion of his marriage, a proposal was usually made
to him that in return for a fixed annual allowance from his
father he should join in a resettlement of the land, which
would convert his estate tail into an estate for life, giving his
eldest son unborn an estate tail in remainder, with successive
estates tail to his other sons. This proposal, if assented to and
carried into effect, had the result of postponing the time when
the estate could be fully alienated for another generation, or
from the time when B. the eldest son should come into posses-
sion of the land to the time when his eldest son should succeed.
It was urged on the eldest son, a young man and necessarily
inexperienced, by the prospect of an immediate and considerable
increase in his income, which usually rendered his marriage
possible, and by the strong traditions of the class to which he
belonged, backed by the advice of his relatives and legal
advisers. The disadvantages of his position have been summed
up by Mr Cliffe Leslie in a passage that has become almost
classical \
" It is commonly supposed that the son acts with his eyes
open and with a special eye to the contingencies of the future
and of family life. But what are the real facts of the case ?
Before the future owner of the land has come into possession,
before he has any experience of his property, or of what is best
to be done, or what he can do with regard to it, before the
exigencies of the future or his own real position are known to
him, before the character, number and wants of his children
are learned, or the claims of parental affection and duty can
make themselves felt, while still very much at the mercy of
a predecessor desirous of posthumous greatness and power,
he enters into an irrevocable disposition by which he parts
1 Eraser's Mag. Feb. 1867. Cited Cobden Club Essays, p. 114
136 FAMILY
with the rights of a proprietor over his future property for ever,
and settles its devolution, burdened with charges, upon an
unborn heir." Its advocates have represented it as " a solemn
appeal from one generation to the next;" which is open to the
answer that at least " the common interests of the nation should
be represented in the more than diplomatic privacy of this
negotiation between father and son. On closer examination
this supposed solemn appeal to each generation dwindles to a
hasty compact, dictated by somewhat sordid considerations of a
momentary interest, to which the law lends the sanction of
irrevocability."
Under this system the great estates of England became held
by a series of life tenants each of whom had signalized his
arrival at legal years of discretion by depriving himself of the
power to deal freely with the land which must be his in the future,
and by fixing the person to whom the land should devolve on
his death before he had any knowledge of that person's character
circumstances or ability, and indeed before he was even born.
The acts of the Reformed Parliament dispensed with the ne-
cessity of "trustees to bar contingent remainders", and established
a personage known as the " protector to the settlement," usually
the tenant for life in possession, whose consent by deed is now
the only formality necessary to enable the tenant-in-tail in
expectancy to bar the entail, not only against his heirs, but also
against remaindermen and reversioners. But these changes had
only the effect of simplifying the machinery of family settle-
ments, and slightly cheapening their cost : they in no way
interfered with the restrictions on alienation management and
succession which family settlements imposed on the land.
Indeed the opinion of the Real Property Commissioners, as
expressed in their first Report, was that no changes were
necessary in the system of family settlements1.
" The owner of the land is, we think, vested with exactly the
dominion and power of disposition over it required for the
public good, and landed property in England is admirably made
to answer all the purposes to which it is applicable. Settle-
1 1st Report, pp. 6, 7.
SETTLEMENTS. 137
ments bestow upon the present possessor of an estate the benefit
of ownership1, and secure the property to his posterity. The
existing rule respecting perpetuities has happily hit the medium
between the strict entails of Scotch law, by which the property
entailed is for ever abstracted from commerce, and the total
prohibition of substitutions and the excessive restrictions of the
power of devising established in some countries on the Conti-
nent. In England families are preserved and purchasers always
find a supply of land in the market. A testamentary power is
given which stimulates industry and encourages accumulation,
and while capricious limitations are restrained, property is
allowed to be moulded according to the circumstances and
wants of every family2".
In 1856, however, greater power was given to the tenant for
life, by an "Act to facilitate Leases and Sales of Settled Estates3,"
which, with the Acts amending it, was consolidated and improved
by the Settled Estates Act of 18774. The general tenor of
these Acts was to allow greater power of leasing and sale to the
tenant for life, subject in each case to the approval of the Court
of Chancery. The Court might authorise leases and sales of
settled estates and timber "if it should deem it proper and
consistent with a due regard for the interest of all parties
entitled under the settlement5". To this extent power was
given to the tenant for life, after going through an expensive
and complicated application to the Court, to deal with the land
more freely than he could under the settlement ; but even this
had a limitation. The settlor's wishes were still to be sacred,
for the powers contained in the Act were not to be exercised if
an express declaration that they should not be exercised was
contained in the settlement6.
Another series of Acts gave power to tenants for life to
obtain capital for necessary improvements from Public Com-
1 Do they enable him to perform 21 and 22 Vic. c. 77, 27 and 28 Vic.
the duties of ownership ? c. 45, 37 and 38 Vic. c. 33, 39 and
2 And often, it might be added, before 40 Vic. c. 30.
the circumstances and wants of the 4 40 and 41 Vic. c. 18.
family are known, or the family is born. 5 § 4.
3 19 and 20 Vic. c. 120, amended by 6 § 38.
138 LOKD CAIRNS'
missioners for drainage and other like purposes. But all these
powers were so fenced round with safeguards and expensive
formalities as to rather discourage than lead to their use, and a
vast quantity of English land is still und rained.
In 1882 however, with the consent and concurrence of a
Liberal Lord Chancellor, Lord Selborne, an Act introduced by a
Conservative Lord Chancellor, Lord Cairns, was passed. The
Settled Land Act1, which usually bears the name of its author,
goes in theory nearly as far in the direction of freeing the land,
as it is possible to do while the system of family settlements
and estates tail is maintained. Any serious step further must
be in the direction of their abolition.
As the result of this Act, it is not going too far to say that
all land in England and Wales held under any family settle-
ment or similar disposition may now be sold or otherwise dealt
with by the private person then entitled to its income as
beneficial owner, in nearly every way in which a prudent owner
would deal with it, except that the resultant purchase money
cannot be treated as income, but must either be invested in
specified securities, or capitalized in the land by making
improvements or paying off incumbrances2. The scheme of the
Act is to place the tenant for life in the position occupied by
the Court under the previous Settled Estates Acts, and to make
him the sole judge of the propriety of the particular improve-
ments or dealings with the land contemplated, so long as they
are within the classes of improvements and dealings sanctioned
by the Act. Certain acts, such as the sale of the principal
mansion on the settled estate, cannot be carried out without
the intervention of trustees ; certain others require an applica-
tion to the Court. The honest attempt has however been made
to reconcile the beneficial owner's power of freely dealing with
the land with the settlor's power of determining the line in
which the land shall descend. The settlor's power over his land
has indeed been seriously curtailed, for the tenant for life can
neither contract himself out of the Act, nor transfer his powers
under the Act to any other person : neither can the settlor, by
provisions in the settlement or otherwise, restrict the exercise by
1 45 and 46 Vic. c. 38. 2 Wolstenholme's Settled Land Act, p. 7.
SETTLED LAND ACT. 139
the tenant for life of the powers under the Act, though he may
enlarge them. The settlor is still allowed to fix a line of succes-
sion for his land, or its money value, but he cannot tie his heirs
to the land or place them under restrictions in the management
of the land which he himself is no longer on earth to control.
The real criticism on this Act and on its forerunners may be
suggested by a clause of the Act of 1877, which runs1: "Nothing
in this Act shall be construed to create any obligation on any
person to make or consent to any application to the Court,
or exercise any power." In other words: "You may lead a
horse to the water, but you can't make him drink." You may
give a tenant for life power to improve or to sell, but you can't
compel him to sell, or improve, if you do not provide him with
a sufficient motive. Lord Cairns' Act provides the limited
owner with the power, but the system of family settlements
deprives him in most cases of any motive. He may not see any
particular object in improving the land for the benefit of a
successor whom he has not chosen, and with whom he may be
at enmity. He may perceive no advantage in risking his own
income for the benefit of others. A limited owner has but a
limited interest in the land, and from a limited interest, only
half-hearted dealings can be expected. The family evils alluded
to in the next chapter are untouched by this Act, which still
allows "the son to have the curse of his father, but the land (or
money) of his grandfather.2" The true remedy, with great
resulting advantages political, economical and domestic, is the
entire abolition of all estates in land but those in fee simple.
Meanwhile further improvements can be made, even on the
lines of Lord Cairns' Act. It only applies at present to private
owners. It should be extended to corporations, especially to
clergymen owning glebe lands : for a clergyman is especially
unfitted to deal with land, and has not, as the tenant for life
may have, even a personal interest in his successor, that he
should make improvements for him. To such owners powers of
sale may be fairly given. And it is questionable whether in
the case of many corporate bodies, such as the Ecclesiastical
Commissioners, this sale might not be made compulsory.
1 § 53. 2 Bacon's Works, vn. 635.
CHAPTER XI.
POLICY OF THE PRESENT LAW.
THE most important restrictions on the alienation of and
succession to land at the present time are the Laws of Entail
and Settlement, and the Law and Custom of Primogeniture.
Under the body of laws and customs which may be
described as the Law of Entail and Settlement, it is possible for
a landowner to settle the disposition and devolution of his land
for a period which may extend to eighty or ninety years from
his death, subject only to the possibility of the sale, under Lord
Cairns' Act, of the whole or part of the land, the purchase
money being still held on the trusts of the settlement. To this
there is annexed the custom of Re-settlement on the majority of
the first tenant-in-tail, which postpones the time when free
alienation, except under Lord Cairns' Act, will be possible, for
an average period of thirty years.
The Law of Prirnogenitary Succession to land on intestacy is
accompanied by and supports a custom of Prirnogenitary Devise.
The policy of these restrictions and the arguments for and
against any alterations in the law in the direction of more or
less freedom of disposition of land, I now propose to consider.
The recent compilation and issue by Government authority
of the record of English landowners, known as the "New
Domesday Book1," has placed at our disposal greater
accuracy of information as to the distribution of landed property
in the United Kingdom. Previous to its issue, there was a
1 Moved for by Lord Derby in the House of Lords, Feb. 19, 1872. Compiled,
1874, 1875.
OLD AND NEW DOMESDAY. 141
statement common that, whereas at the time of the old Domes-
day Book the land of England was divided among more than
200,000 owners, in the nineteenth century, though far more
land was in cultivation, it was held by only 30,000 landlords.
This latter statement was based on the returns to the Census
of 1861, in which only 30,766 persons described themselves as
"landed proprietors"; but an examination of these entries
showed that nearly half these "proprietors" were women, from
which it was clear that many of the male landowners had
returned themselves under other heads. The statement as to
the old Domesday, based on the old Domesday figures which
show roughly : 9000 tenants in chief and sub-tenants : 36,000
socmanni and liberi homines; 110,000 villani, 90,000 bor-
darii and cotarii ; appears to me equally inaccurate. For it
is now fairly clear that the villani, bordarii and cotarii
were manorial tenants, holding, though often themselves free-
men, by servile tenure, and not yet having attained such
security of position that they can be reckoned as landowners in
any modern sense of the word. And if this is so, the greater
part of the land of England is owned immediately after the
Conquest by the 9000 tenants in chief and sub-tenants, while
the 36,000 socmanni and liberi homines represent the small
proprietors, the sum of whose holdings would be insignificant
beside those of the great lords. Mr Seebohm estimates the
acreage of land in the manors at under 4 million acres, divided
into H million acres of the lord's demesne, 2J million acres held
by villani, and a J million held by bordarii and cotarii1. But
from the landowner's point of view, these 4 million acres were
held by the 7,800 sub-tenants, who in their turn were tenants
of the 1400 tenants in capite who thus held 4 million acres of
English land. The holdings of the 36,000 socmen Mr Seebohm
estimates at 1 million acres. On these figures it is hardly fair
to make any definite statement as to the distribution of the land
without considerable explanation ; but there are more substan-
tial grounds for saying that it was held by 1400 landowners,
than for dividing it amongst over 200,000.
1 Seebohm, V. G. p. 102.
142
THE NEW
There can however be no question that shortly after the
Black Death and throughout the 15th century, before the
process of consolidation of farms and their enclosure for pasture
land, induced by the entry of commerce into landowning, had
destroyed many small holdings, English land was largely held
by small proprietors. Fortescue in the reign of Henry VI. says,
that in no country of Europe were small proprietors so numerous
as in England. They were the yeomen of England, " freemen
born in England, who may dispend of their own free land in
yearly revenue the sum of forty shillings"..." These are they
that in times past made all France afraid1."
The New Domesday, in spite of the great inaccuracies to be
pointed out hereafter, at any rate provides materials for far
more accurate generalisations as to the present distribution of
land in England and Wales. It shows 972,836 proprietors of
land, owning 33,013,510 acres, with a gross estimated rental of
£99,352,303. These figures may be further dissected as follows:
Class of owners.
of
owners.
Acreage of
their lands.
Estimated
rental.
Owning over 50,000 acres
4
376,554
^350,620
„ between 50,000 and 5,000 acres
870
8,990,474
12,190,935
5,000 „ 1,000 „
4,534
9,328,497
17,439,682
1,000 „ 100 „
37,116
10,145,024
20,108,311
100 „ 10 „
98,479
3,541,684
10,811,291
10 „ 1 „
121,983
478,679
6,438,324
„ under 1 acre
703,289
151,171
29,127,679
A table which by further division gives the result :
Owners of OVER 100 acres : 42,524 owning 28,840,549 acres,
rental £50,089,548.
Owners of UNDER 100 acres; 923,751 owning 4,171,534 acres,
rental £46,377,294.
And these tables show at first sight a considerable number
of small owners, and a fair distribution of land. Closer investi-
Harrison's Description of England, cited by Brodrick, p. 33.
DOMESDAY. 143
gallon however effects a great alteration in the aspect of the
returns.
In the first place there are important omissions. The
returns only refer to rateable land, and as, at the time they
were made, woods wastes and commons were not rateable, some
4 million acres are excluded from the return, of which most of
the wood and waste undoubtedly belongs to great landowners.
Again, London is not included in the return. This omission
excludes a number of large estates held by great landowners,
such as the Dukes of Bedford, Portland, and Westminster, with
an enormous rental and a still more enormous reversionary
value.
Secondly, beside these omissions, the returns themselves
contain fruitful sources of error. No attempt has been made to
collect under one head the possessions of landowners in different
counties. Thus the Duke of Buccleugh figures as 14 land-
owners, the Dukes of Devonshire and Cleveland, Earl Howe
and Lord Overstone as 11 each, and the Duke of Bedford as 10 :
6 great landlords thus appear as 68 lesser landowners1. And,
as each peer is reckoned as a separate landowner in each
county, some of his county holdings go to swell the ranks of
small owners. Thus the Duke of Buccleugh counts as 9 owners
of lands over 1000 acres, and 5 under 1000 acres, one of these
holdings being a plot of eight acres, for which his Grace appears
as an owner holding less than ten acres. Even in the same
county the same lay owner appears through carelessness several
times ; Captain Heathcote appears as 4 owners in Staffordshire ;
an error which again tends to unduly swell the records of the
small estates2.
Another serious source of error occurs in dealing with the
lands of corporations and of the church. The clergyman is
frequently entered as the " owner " of glebe land, and as the
glebes are usually of small acreage, the roll of small owners is
proportionately enlarged. Thus in Buckinghamshire, there are
only five parcels of glebe land returned, but 235 owners have
the title "Reverend"; in Lancashire there are 286 clerical
1 Arnold, Free Land, p. 5. vestigations. Brodrick, p. 189 et al.
2 See results of Mr Bateman's In-
144 ERRORS IN NEW DOMESDAY.
owners but only seven pieces of glebe1. The same is the case
\vith corporations. "Churchwardens" appear in Norfolk as
136 owners: "charity" in Cambridge as 70 owners: "Trustees
of the Poor " account for 40 owners in Bucks, and the London
and North Western Railway figures as 28 owners in various
counties. All these errors tend to increase the apparent
number of small owners, while decreasing the roll of great
landlords.
Another fundamental source of wrong inferences suggests
itself on referring to the classified list of owners. Owners of
land under one acre hold roughly 150,000 acres with a rental of
£29,000,000, or nearly £200 per acre ; owners of land over one
acre in extent hold their thirt}r-two million acres at a rental of
about sixty million pounds, or £2 per acre. While the 150,000
acres of the proprietors under one acre are rented at twenty-nine
millions, the 480,000 acres of the proprietors of from one to ten
acres are rented at £6,400,000 ; three times the land at less than
a fourth of the rental. Or to put it broadly, the four million acres
held in plots of under 100 acres are rented at 46 millions, whilst
the 29 million acres held in estates of over 100 acres are only
rented at 50 millions.
This striking difference points to a fundamental source of
error in the returns. Many of these small properties which
produce an average rent of £200 per acre must be residential
holdings on the borders of the towns. But these, even if owned
by their occupiers, can hardly be used to swell the number of
landowners in England, while it is more than probable that
many of these plots are in reality long leaseholds on ground
rents, and should therefore in fairness go to swell the records of
the great owners.
The importance of these numerous sources of error is shown
from the fact that Mr Bateman's analysis of the New Domesday
corrects the 5408 holders of land of over 1000 acres, with an
acreage of nearly 19 million, and a rental of SO millions, to
4217 actual owners2. These necessary but difficult corrections
obviously render it impossible to formulate more than approxi-
1 Arnold, p. 9. 2 Brodrick, p. 1G5.
KESULTS. 145
mate conclusions as to the distribution of land in England.
Mr Brodrick estimates that 2250 persons own nearly half,
or 4000 persons four-sevenths, of the land of England and Wales,
and that there are 150,000 owners of land of over one acre in
extent1. Mr Shaw Lefevre estimates the number of such
owners at 165,000. Mr Arthur Arnold puts it under one
hundred thousand, and places four-fifths of the land of the
United Kingdom in the hands of 7000 persons2 ; Mr Kay, who
does not allow for the errors of the New Domesday, estimates that
12,500 persons own two-thirds of the United Kingdom3. While,
according to Mr Froude, the apologist of the present Land
Laws : " the House of Lords does own more than a third of the
whole area of Great Britain. Two-thirds of it really belong
to great peers and commoners, whose estates are continually
devouring the small estates adjoining them."
Detailed analysis of the returns shows conclusively that the
land system of the United Kingdom, especially from an agri-
cultural point of view, is one of large, often of very large, estates :
and there can be no doubt that, up to the passing of Lord
Cairns' Act, the effect of the system of settlements was to
decrease the number, and increase the size, of properties in
land. Land in settlement could not be sold, and adjoining land
was constantly being added to it by ambitious proprietors, or
trustees acting under trusts to purchase, for the purpose of
increasing the family land ; while no settlement ever contained
provisions tending to decrease the size of individual holdings.
Besides this increase in the size of landed estates there has
been a corresponding consolidation of small farms, prompted by
a desire to obtain economy in management and in expenses of
farm buildings and to utilize new steam machinery more
efficiently than can be done in the small fields.
This is hardly the place to fight over the old battle of
Peasant Proprietorship against the system which makes the
land support landlord, farmer and labourer. The evidence
seems to me to point to the conclusions : —
(1) That for certain kinds of agriculture, such as market
1 Brodrick, p. 166. 3 Kay, pp. 17, 18.
2 Arnold, pp. 6, 11.
S. 10
14G NATIONAL EVILS OF
vegetables, fruit, and the vine, small holdings, and la petite
culture are economically preferable to large ones.
(2) That for other kinds of agriculture such as corn, large
holdings are economically preferable. The same amount of
work and capital engaged in producing such crops will produce
more return on one large farm than on six small ones of the
same area.
(3) That from a social and national point of view, the
establishment of a class of peasant owners, hard working and
thrifty, touched by the " magic of property, which turns sand
into gold," working with the zeal of men who know that their
work is for their own benefit and their children's, is far more
desirable than the creation of a class of farmers holding by
custom on yearly tenancies without due security for their
improvements, or the maintenance of a class of labourers at
wages so low as to give little chance of saving, with no hope of
ever emerging from the bondage of a weekly wage, or escaping
the prospect of an old age in the poorhouse.
For the great national danger of the large estates of England
is that the small class of men who own the land of England are
forcibly brought into contrast and conflict with the great nation
who have to live on it. Fortunately English landowners do not
avail themselves of their full legal rights, nor would the state
allow them to do so; else a few great landlords might depopulate
great tracts of country and lay London waste. That the insis-
tance by a landowner on the strict letter of the law is not
impossible is shown by the recent action of Mr Winans on the
vast Scotch moors he hires ; while the dangers of such insistance
appear in the passions which his action has roused in the
neighbouring population of crofters.
Political stability is destroyed when the masses are landless,
and the landowners few; a sober and truly conservative
progress will be assured when the masses of the nation are
educated to the right use of political power, and have a stake
however small in the national land. The present system of
large holdings is unsafe for the landlords and dangerous for the
country.
But besides this political and national evil of instability,
PRESENT SYSTEM. 147
there is the national and economical evil of large holdings
starved of capital and imperfectly developed in resources. The
tenant for life often succeeds to an estate heavily charged with
portions to his mothers and sisters, rent-charges to his younger
brothers, and interest on encumbrances created by past owners.
He is expected to keep up a house, and position in the county,
corresponding to his apparent and not to his real income.
Under such circumstances how is it possible for him to make
the necessary improvements in the property, or even to keep
his farms in good order and his buildings in proper repair.
Indeed, why should he ? The burden of the expenditure falls
on him now; its benefit will generally be reaped by his
successor, a successor whom he has deprived himself of the
power of objecting to, and who will succeed to the land
irrespective of his character, his ability, or the wishes of his
predecessor. For years the land may be thus starved by
limited owners, for as has been well said, " it is not conceivable
that land will ever be handled by those who have only a closely
restricted use of the land, or its purchase money, with anything
approaching the freedom, promptitude or activity of those who
can use the land or the money as they please1."
Thus in 1851, Mr James Caird reported that "much of the
land of England... is in the possession of tenants for life so
heavily burdened with settlement encumbrances that they have
not the means of improving the land they are obliged to hold...
one great barrier to improvement which the present state of
agriculture must force on the attention of the Legislature is the
great extent to which landed property is encumbered. In
every county where we found an estate more than usually
neglected, the reason assigned was the inability of the proprie-
tor to make improvements on account of his encumbrances2."
In 1878 the same eminent authority writes that the land held
by tenants for life " is frequently burdened with payments to
other members of the family and in many cases with debts....
There is no capital available for the improvements which a
1 Lord Hobhouse, Times, Oct. 16, 2 English Agriculture : cited Arnold,
1885. 47.
10—2
148 DISADVANTAGES OF
landowner is called upon to make in order to keep his property
abreast of the advances in agricultural practice1."
Mr Kay cites the case of a large estate of which he was
trustee, which, on the marriage of the owner at 21, was settled
on him for life with remainder in tail to his children. He
plunged extravagantly into debt, sold his life interest to a Jew,
and left England. " For forty years," says Mr Kay the trustee,
"the farmers had no leases or security for any expenditure."
Neither they, nor the Jew, nor the lessee of the mansion would
spend any money on the land. "All social progress, and all
social prosperity upon the estate were put an end to, the farm
buildings fell into decay, the land was not properly drained or
cultivated ; the plantations were injured ; the mansion became
dilapidated2/' and all through the settlements and restrictions
allowed by the law. Lord Carrington's celebrated speech to
his Buckinghamshire tenants in 1879, though inaccurate in
some points, is to the same effect3.
Much of the evidence before the Duke of Richmond's
Commission on agriculture is to the same effect. Mr Charles
Whitehead, the well-known agriculturist says : " In Kent there
is a large estate comprising some of the finest land in the
county, upon which no permanent improvements are being
made, no buildings are being put up, nothing is done ; the rent
has been screwed up to the highest possible point... the present
life tenant is at his wits' end to get money at all ; he cannot
live at the ancestral house ; he lives in a comparatively small
house and he certainly has not half enough to keep up his
position as a nobleman.... That estate has not been fully and
properly developed, as it would be by a man who had it
absolutely, and who could deal with it as he pleased4:" and ho
gives it as his opinion that "the improvements on the estate of
an absolute owner certainly are more striking and marked than
those upon the estate of an owner who has only a life interest,"
Mr Shaw Lefevre says5: "I think the system of entail has a
1 The Landed Interest and the Supply 4 Minutes of Evidence, 1881. C. 2778.
of Food, cited Arnold, 48. qq. 56516; 56668.
2 Kay, p. 20. 5 q. 64152.
3 Cited Arnold, p. 15.
SETTLED LAND. 149
very deleterious effect on the improvement of land. I have no
doubt that a very large number of properties in this country
are in the hands of persons who are so situated by reason of
family entails and settlements that they are without the motive
and without the means of improving their lands." Sir James
Caird confirms his former testimony: he says1 "I consider that
the present system of the ownership of land is detrimental to
the progress of English agriculture, because I think that the
landowners who are under restraint in the management of their
land cannot do full justice to it; and if the landowners of this
country had full powers over the land unquestionably it would
lead to a large development of its resources, which I think is at
present much prevented....! am of opinion that landowners will
find it necessary to have the utmost freedom of action in
view of the great competition upon which we are entering with
America. Entails are great evils." Mr Wolstenholme, the
well-known conveyancer, and an upholder of the present system
makes the significant remark : " Tenants for life effect improve-
ments out of their income, wherever they are solvent owners2."
But what of the tenants for life, who are not solvent ? for in
them one of the great evils of the system appears.
Lack of capital wherewith to make improvements decreases
the productiveness of the land; proper drainage, the judicious
opening of mines and quarries, liberal use of artificial manures,
and suitable provision for preserving liquid manures, the con-
struction of silos for the new and valuable device of ensilage,
all are practically impossible to the burdened tenant for life,
while where he has the power to borrow money, or to sell land,
for the purpose of employing the resulting funds in making
improvements, he will rarely have the interest or motive to
lead him to do so, when much of the benefit will be reaped by
a successor whom he has not chosen, and with whom he may be
on terms of enmity.
Yet another national evil is to be found in the expense of
the transfer of land : and this is rendered necessary by the
complicated title by which under a will or a settlement land may
be held. As Mr Shaw Lefevre says : " The possibility of carving
1 qq. 62722, 62958, 62969. 2 q. 55129.
150 OBJECTIONS TO
out separate interests in land is the principal cause of the very
great cost and complication of the transfer of land1." The
movement to secure cheap land-transfer can only succeed by
simplifying the title by which land can be held. The legal
charges are or may be undoubtedly high, but they are high
because the work to be done is intricate and difficult, and
requires highly trained and highly paid skill. The more knots
a man is allowed to tie in a piece of string, the more time and
trouble it will take either to untie them all, or to see that they
are all properly tied. "If you make all freeholds devolve
exactly as leaseholds," says Mr Wolstenholme, a hostile witness
and therefore of great weight, " I might burn three-fourths of
the books on property law on my shelves : you would abolish
everything connected with estates for life, contingent remainders
and estates tail. There would be such a clearance made of the
law that it would be most simple2." Again, no system of
Registration of Title can be simple or cheap so long as titles of
so complicated a nature have to be registered. And this
expense of transfer from complexity of title, which at present
must be incurred on each sale, and which is often as great on a
small piece of land, as on thousands of acres, tells heavily
on small purchasers, to whom the delay of investigation is
onerous, and the great expense, still more its uncertainty, a
fatal deterrent. The leisured man can wait for land ; the rich
man will think nothing of his solicitor's costs ; but the land is
already too largely held by these classes. Its dispersion among
smaller holders would promote national stability and security ;
and expense of transfer, or any cause which tends to prevent
that dispersion, is on that ground alone objectionable.
Again, the system of large estates inevitably involves the
existence of the absentee landlord, with the evils that absen-
teeism brings with it. The supervision of agents, however
good, is a very inadequate substitute for the careful eye of a
landlord whose land is his own.
The system of Family Settlements with its restrictions on
alienation and its denned line of succession is therefore objec-
tionable nationally and socially :
1 q. 64168. - q. 55153.
PRESENT SYSTEM. 151
I. Because the owning of land by a small class produces a
condition of unstable equilibrium in national life, instead of the
security that results from the interest of the mass of the nation
in the land.
II. Because the system of settlement deprives the limited
owners it creates of both the power and the motive to effect the
improvements in agriculture, necessary to secure to the land
its greatest efficiency in producing power.
III. Because the system renders the transfer of land
expensive, and thus hinders the lower classes from becoming
small landowners.
But besides these national evils, serious disadvantages result
to the family in whom and for whose benefit the land is settled.
These evils Bacon's keen insight and prudent foresight de-
scribed nearly 300 years ago in language so forcible that later
writers have but followed in his footsteps. He is answering
an imaginary objector who says1: "That it is a wisdom and
foresight for every man to imagine of that which may happen
to his posterity, and by all ways to establish his name. To that
I answer that it is a wisdom, but a greater than even Solomon
aspired after For I find that he uses other language where
he says that he must leave the fruit of his labour to one of
whom he does not know if he shall be a wise man or a fool.
And yet does he say that he shall be an usufructuary, or tenant
restrained in a perpetuity? No, but the absolute lord of all
that he had by his travail. So little did he know of these
establishments 2 Some young heir when he first comes
into the float of his living outcompasseth himself in expenses,
yet perhaps in good time reclaims himself, and has a desire to
recover his estate ; but has no readier way than to sell a parcel
to free himself from the biting and consuming interest. But
now he cannot redeem himself with his proper means, and
though he be reclaimed in mind, yet can he not remedy his
estate Let us now consider the discipline of families If
the father has any patrimony and the son be disobedient, he
may disinherit him ; if he will not deserve his blessing, he shall
1 Chudleigh's Case. Bacon, Works. 2 p. 634.
Ed. Spedding vii. 632, ct seq.
152 FAMILY SETTLEMENTS
not have his living. But this device of perpetuities has taken
this power from the father likewise, and has tied and made
subject the parents to their cradle, and so, notwithstanding he
has the curse of his father, yet he shall have the land of his
grandfather."
Family settlements are injurious to parental control, for the
eldest son stands in a superior position to his father. His
succession is fixed beyond his father's control ; his father's
interest in the land is less than his own. Should, as is too
frequently the case, family dissensions arise the father knows
that his expenditure on the land will be for the benefit of the
son with whom he has .quarrelled ; the son sees or imagines he
sees his father by act or by neglect injuring the land that must
come to him.
The land is settled on an unborn person without any regard
to his character or disposition ; he may be a spendthrift, a
drunkard, a man devoid of all sense of his duty as a landlord,
but the land must come to him. His younger brothers may be
far more fitted to deal with the land than he; their father
might, if he had the power, choose them as the heirs of his land,
rather than his eldest son, the prodigal; but the deed of the
grandfather, who knew nothing of the future circumstances of
the family, but who bound the land so that it should come to a
particular child then unborn, be he the greatest scoundrel in
England, and the most unfit to manage a landed property,
prevails, to the injury of the land and its tenants, the family
and all its branches, and even of the eldest son himself, who has
frequently been strengthened in his evil courses by the sense
that do what he would the land must be his at the last.
Secure in this prospect, but poor till his father's death, he
anticipates his inheritance by encumbering the property, and
receives his land so burdened by the debts of his youth that all
hope of spending on it the capital necessary for its development,
or making savings with which to provide for his wife and
younger children without further encumbering the land, is gone.
And the family plunges deeper and deeper into debt, while still
the posthumous vanity of their ancestor, possibly approved by
their own family pride, ties them to the land they cannot or will
INJUHIOUS TO FAMILIES. 153
not either sell to free themselves from debt, or do justice to while
they hold it.
The system of primogeniture in English family settlements
has a further evil effect on the younger branches of the family.
Dr Johnson's defence of primogeniture was that it secured there
should only be one fool in the family, the eldest son who had no
need to work for his living, as he saw before himself a safe
future. But though the younger sons must in most cases earn
their livelihood, the training they have received has not been
such as to fit them for work. They have been brought up in
the same mode of life as their elder brother the heir, have had
the same, frequently useless, public school and university career
and then find themselves left to face the world, almost entirely
dependent on themselves for their own living, but unfitted by
their training for earning it, while their elder brother, not by
the fitness of things but by the accident of birth, inherits all the
family land. The greatness of the family is secured by immolat-
ing its younger members on the family altar. This system has
in past generations provided a crowd of claimants for public
employment as of right, and the church and the public services
have been flooded with younger sons, not for their competency,
but because the system which produces cannot support themj
but turns them on the country.
Then, until the passing of Lord Cairns' Act, the land was
frequently burdened with restrictions as to its use, intended to
protect the family interests against the individual, but resulting
in the prevention of the proper development of the land. Long
leases could not be granted, lest the heir should receive his
land tied by the engagements of his predecessor ; yet without
long leases, great improvements could not be undertaken by
the tenants. Capital could not be spent in experiments or
doubtful ventures, however productive a successful result might
be; mineral wealth could not be developed; drainage works
could not be undertaken without complicated and expensive
loans. The interests of the family in the land must be
protected even though the interests of the family might suffer
in the process ; the risks that a good man of business would
encounter for the profits that a good man of business would
154 PRIMOGENITURE
foresee must be sacrificed to the humdrum safety of cultivation
on the old lines, however out of date.
The custom of primogeniture is so involved in the system of
family settlements that many of the previous arguments apply
equally against both, though the objections on the ground of
injury to the family itself apply more especially to the custom
which enriches one son and leaves his brothers in poverty.
The law of primogenitary succession in intestacy, which is
the leading restriction on succession in the present day to
which objection can be taken, stands on rather a different
footing. By itself it has a tendency to encourage alienation, by
transferring land to a single owner, without any restraint on his
ownership. But its existence, so far as it tends to support the
custom of primogeniture, is undesirable. The rule was intro-
duced by feudal necessity, and perpetuated by legal ingenuity,
rather than by historical and national policy. It is peculiar to
England, and in England it has its only root in the feelings of
the landed aristocracy. As has been well said, " the system is
a very artificial one ; you may make a fine argument for it, but
you cannot make a loud argument, an argument which would
reach and rule the multitude. The thing looks like injustice1."
If a great landowner dies without a will, it is thought natural
that his lands should go by law to his eldest son, for such a
succession is the custom of great landowners. But in many
poor families with a little land, and among middle-class land-
owners who do not aim at founding a family, primogenitary
succession is never thought of, and it is here when the land-
owner has neglected to make a will, or when his will is for some
reason or other invalid, that great injustice is caused by the
opposition of the line of succession provided by law to the
private circumstances and probable wishes of the dead man.
The cases are small and attract but slight attention, but the
injustice is keenly felt in each family, and there are few
solicitors who cannot supply instances from their own practice
where the rule has worked to produce hardship. A solicitor at
Birmingham, the owner of much small house-property, had
1 Bagehot, English Constitution, Pref. p. xxxi.
AS A RULE OF SUCCESSION. 155
made a will dividing it among his sons and daughters in equal
shares ; owing to changes in his family he desired to alter his
will and gave instructions for that purpose to his younger son,
the property being still to be equally divided. The son drew the
will; it was duly signed and witnessed; and then, the father
and younger son being alone in the father's study, the son said :
" you had better destroy your old will." The father took the
will out, tore it across, and put it back in his desk. On his
death, the two wills were examined, but the new will, and not
the old one, was torn across. The eldest son claimed all the
land as in an intestacy, and the case was tried before a jury,
there being only the evidence of the younger son, who was an
interested witness, as to the circumstances under which the will
was torn. Fortunately for the testator's intentions, the jury
came to the conclusion that the second will was not torn animo
revocandi, and it therefore stood ; but if the son had not been
with the father when the will was torn, and if the law of
intestacy had operated, the father's wishes would certainly have
been defeated, the State making a disposition of his land for
him on his death which he himself would not have made in his
life1.
The different rules of succession for real and personal
property appear the more indefensible, when the artificiality of
the distinction between them is remembered. Railway and
canal shares are usually personalty, while New River shares are
realty ; leases for 999 years are personalty, while leases for life
are realty.
The existence of the law of primogeniture in intestate
succession helps to support the custom of Primogeniture in
testamentary succession and settlement. A striking illustration
of this was seen when in the United States the law of Primo-
geniture was abolished, for a custom of equal division of land grew
up, in spite of the powers of settlement possessed by American
landowners.
Primogenitary succession in intestacy, which among small
landowners is not the rule, and among great landowners works
1 From private information.
156 DEFENCES OF
mischief by helping to support a mischievous system should be
abolished.
The arguments in favour of family settlements and primo-
geniture are difficult to state fairly, because as has been said,
"being surviving peculiarities of feudal law, they can be
defended only by those ingenious arguments which being
manifestly begotten of after thought, appear convincing only to
persons who need no conviction."
It is said in the first place that " a man has a right to do
what he likes with his own," or in the form of the Duke of
Richmond's continual question to witnesses before the Royal
Commission, "Would it not be very tyrannical to prevent a
father and son making what arrangement they please as to the
land?" But this right is subject to the legal rights of others
and to the condition that the use a man makes of his property
shall not be prejudicial to the State. Nothing is more common
than State interference with land, either in taking it for the
purposes of the State, or in preventing it from being so used as
to injure either the State or individual citizens. "A man's
right to do what he likes with his own" is continually limited in
this way by the State during his life ; much more so after his
death. He cannot take his property out of this world, but it
has been considered conducive to industry and in accord with
public policy to allow him to prescribe to whom his land should
pass on his death ; whether he should be allowed to impose
restrictions, which the State would enforce, on the use of the
land after his death, must depend on whether such restrictions
are on the whole for the benefit of the community. The State
has constantly interfered with dispositions of land at death ;
by the Statutes of Mortmain, it has prohibited their being
made for ecclesiastical purposes; in the case of charitable
devises, it has stepped in to change the dispositions which the
testator had made ; and in the very case of Settlement of land,
it has already in the Rules against Perpetuities declined to
sanction restrictions on the land which extend beyond a certain
period. Any question of further restrictions on the power of
disposition over landed property must be a question of degree of
public convenience, and not of right, and as a question of public
SETTLEMENTS. 157
convenience the problem has been treated by Lord Nottingham
and other judges who have specially allowed extensions of this
power of disposition.
On the other hand while there is no right in a landowner to
call upon the State to enforce all the directions which he may
give for the use and management of the land which once was
his, extending for forty, sixty or a hundred years after his death,
neither is there any right in his children to claim all or any
portion of his land unless in cases where their father has raised
expectations of a particular mode of division, on which their
habits and lives have been shaped.
It is alleged in favour of the system of primogenitary
settlement that it is useful in maintaining a hereditary peerage.
This assumes that an hereditary peerage should be maintained,
a point which in 1885 can hardly be considered one of universal
agreement. And if a hereditary peer is the better for the
possession of sufficient property to ensure independence, this
can be secured by the free power of devise in fee simple, which
can be exercised by an hereditary peer in the interests of his
order and his family.
But it is said that the preservation of ancient families can
only be effected by some such means as this. It may be
answered that families worth preserving will preserve them-
selves ; that protection of ancient families is only needed against
those of their members who are spendthrifts and scapegraces.
For honourable and intelligent men may be trusted to do their
duty to their family and the land without restrictions from
without ; it is the worthless members of families who must be
bound. But this means that men unfit to be landowners must
yet be tied to their land, and the land and its tenants will
suffer accordingly. They would be benefited by transfer to
another lord, but they are tied to a careless and improvident
landlord, who cannot free himself if he would, for the sake of
his family. To preserve worthless but ancient families is
hardly a sufficient justification for checking the development
of English lands, and hampering the agriculture of English
tenants.
The general social effects of primogeniture and settlement
are also enlarged on ; it is said to create a leisure class, a
158 RESULTS.
resident proprietary, whose co-operation in county government
is invaluable, and whose despotic but kindly rule showers
blessings on their parish and district. But with large estates,
large portions of them must inevitably lose the blessing of a
resident landlord ; and though the rule of the ideal great
landowner may be beneficial, the rule of the actual one, tested
by experience, has hardly proved so in all cases. The squires
and their allies, the clergy, have had undisputed sway over
rural England for centuries ; what account can they give of
their stewardship with regard to the labourer who has worked
on their land ? How can they justify the cottages they have
provided for him ; how can they defend as sufficient the pro-
visions they had made for his education before the passing of
Mr Forster's Act ; how can they regard the position which the
agricultural labourer is taking at the present time1 as any other
than a just recompense for centuries of neglect by those who
have had the power to help them. While some settled estates
have been admirably managed, too many of such estates, held
by encumbered life tenants who cannot afford to live in their
own mansion, bear eloquent testimony to the evils of limited
ownership under the English land-system.
The system of entails and settlements is therefore to be
condemned both in the interests of the nation, whose develop-
ment it obstructs, and in the interests of the families it is
intended to preserve. It injures the nation by producing
political instability, by depressing the classes of farmers and
labourers, and by hindering the adequate cultivation of the
land. It is hurtful to the families by placing land in improper
hands, by destroying proper parental control, by rearing up
younger children in a manner which unfits them for their
work in the world, and by hindering the proper development of
the land in the interests of the family. On all these grounds it
is desirable that all powers of settlement, or devise of land,
other than a simple grant or devise in fee simple should be
swept away, so that every landowner should be the absolute
and unrestricted owner of his land2.
1 Written November, 1885. is perhaps arguable, though I think
2 Whether an exception should be the proposal in the text is preferable,
made in favour of life estates to widows
159
CONCLUSION.
I have now completed the task I proposed to myself at the
outset. I have endeavoured to trace step by step and in
historical sequence the growth and change of the Land Laws
of England, and the motives of policy which prompted the
legislation of the Parliament, the construction of the judges,
and the evasive devices of landowners and their legal advisers.
The pride of the owners of land has fettered their families to
their estates : " Te teneam moriens is the dying lord's apostrophe
to his manor, for which he is forging those fetters that seem by
restricting the dominion of others to extend his own." The
intricacies of the family settlement, while they add to the costs
of transfer of land, hinder its development in the hands of a
limited owner, and weaken the nation whose masses they leave
landless and at the mercy of a small but wealthy class. All
things point to the conclusion already expressed in this essay,
and set out more than 200 years ago by an anonymous pamph-
leteer : " It were convenient that there might be no estate but
absolute, for life or inheritance, without condition or entails,
whether given by will or purchased by deed in writing; and
this would shorten all suits about estates1."
1 3 Jurid. Soc. 598, from pamphlet of 1648.
INDEX.
Agriculture, Early, 101—105.
Alienation, of Heir-land, 4, 5, 15, 18.
of Book-land, 12, 13, 14,
15, 18.
of Laen-land, 15, 16.
of Community land, 15.
of Folc-land, 15.
of land to Church, 19, 46,
64.
King's licence for, 21, 43.
formalities of, 21.
early powers of, 29.
in Feudal system, 39 — 51.
of socage lands, 40.
by tenants in capite, 41, 43.
by tenants, 42, 45.
restrictions on, 46, 66, 109.
under De Donis, 70.
under Statute of Uses, 90.
free, 1500—1650, 108.
under Lord Cairns' Act,
138.
Allodium, 24, 25, 34.
Anglo-Saxon Land Law, 3 — 22.
Assart land, 29.
Assets, 70, 71, 72.
Bacon on Settlements, 111, 151.
Bargain and Sale, 89.
Base fee, 51.
Bateman, on New Domesday, 144.
Bedfordshire, in Domesday, 21.
Bedminster, Customs of, 64.
Bequest, see Devise.
Black Death, 102, 142.
Bondland, 29.
Book, 18.
Book-land, 3, 11—14, 15, 16, 24, 25, 39.
Borough-English, 7, 10, 54, 57, 59, 60.
origin of, 62, 63.
Bordarii, 23, 25.
Bracton, on alienation, 41, 46, 47, 67,
,, conditional gifts, 48 — 50.
wills, 52.
Bridgman's Family Settlements, 118.
Brigstock, Customs of, 53, 63.
Caird on Settlements, 147, 149.
Cairns' Lord, Settled Land Act, 134—
139, 153.
Cambridgeshire in Domesday, 20,30,31,
Capite, tenants in, alienation by, 41, 43.
Cestui-que-use, 82, 83.
Chancery and Uses, 85.
and Wills, 91.
Chivalry, abolition of Tenures in, 98.
Church, alienations to, 19, 46, 64.
Clerical origin of Book-land, 11.
„ „ „ Wills, 16, 18.
„ „ Uses, 80, 81.
,, ownership of land, 19, 139.
„ in Kent, 61.
Cliffe Leslie on Settlements, 135.
Commendation, 26.
Commissioners, Keal Property, 132,136.
Common Recovery, see Recovery.
Community, land of, 3, 7—10, 15, 16.
Conditional gifts in Bracton, 48.
Contingent Remainders, 113.
,, ,, origin of, 115.
,, „ trustees to pre-
serve, 117,
118,119,136.
,, attempts to protect, 118.
Contract, Great, 96, 98.
Corporations, Lands of, 139.
Curtesy, alienation by tenant by the, 71.
Customary estates in land, 3, 4 — 11.
Danish districts of England, 26, 31.
Devise, of folc-land, 10, 11, 16.
of heir-land, 16.
of Community land, 16.
of Book-land, 16.
of Laen-land, 16.
in Feudal System, 51—53.
of socage lands, 95, 96.
of lands military, 95.
Executory, 109, 120—122.
,, andEemainders,131,
132.
Devise, see also Will.
Domesday Book, 9, 10, 141.
INDEX.
161
Domesday Book, Primogeniture in, 17.
,, „ Clerical Ownership
in, 19.
„ „ evidence of, 23—36.
,, „ New, 141—145.
Donatio sub modum, Bracton, 48.
Donis Conditionalibas, De, 48, 50, 68,
70, 106, 123.
,, „ attempts to
alter, 73.
,, ,, on Fines, 77.
Enclosures, policy of, 104.
Enrolments, Statute of, 89.
Entails, before Conquest, 13.
under De Donis, 51, 73.
evaded by Kecoveries, 75, 76.
evaded by Fines, 76 — 78.
and Uses, 82.
indefeasible, 109, 110.
present law of, 140.
Essex in Domesday, 20, 32.
Executory Devises, 120 — 122.
Family Land see Heir-land.
Family, injured by Settlements, 152.
Feudalism, before Conquest, 24.
„ 37.
,, developed by Flambard, 38.
Feudum talliatum, 45.
Fines, 77—79.
Flambard developes Feudalism, 38.
Folc-land, 3, 10, 11, 15, 16, 38.
Formalities of Alienation, 21, 67.
Formedon, Writ of, 51, 71.
Frankalmoign in Domesday, 20.
,, and Quia Emptores, 45.
Frauds, Statute of, 97.
G-avelkind, 7, 16, 17, 18, 52, 59—62,
67.
Geldavit, 25, 34, 35.
Glanvil on alienation, 39, 40, 45, 67.
Gloucester, Statute of, 71.
Gloucestershire in Domesday, 26.
Heir, interest of, in land, 46.
Heir-land, 3, 4, 8, 9, 10, 11, 15, 16, 21,
22, 24, 25, 39, 41, 53.
Hertfordshire in Domesday, 19, 20, 26,
27, 28, 30, 31, 33.
Jews, restraints on alienations to, 46,
65.
Kent in Domesday, 34, 35.
,, power of devise in, 52.
,, gavelkind, succession in, 59 — 62.
King's licence for alienation, 21, 43.
Knight-service, devise of lands held by,
95.
S.
Labourers, Statute of, 102.
Laen-land, 3, 4, 11, 14, 15, 16, 29, 32.
Land in Domesday, 23 — 36.
Land-law before Conquest, 3 — 22.
Land system, Commerce in, 103.
Lease and Kelease, 89.
Libere tenentes, 25, 26, 30, 31, 141.
Life Estates, before Conquest, 11.
Lincolnshire in Domesday, 19, 28, 32.
Livery of Seisin, 67, 68, 89, 113, 114.
Lord's interest in land, 46.
Magna Carta, 42.
Manors, 7, 8, 9, 16, 17, 23, 25, 29, 38,
45, 101.
,, Free, 32.
, , Succession in, 63, 64.
Marks, 7, 8.
Middlesex in Domesday, 26.
Millan, Customs of, 6,
Monasteries, dissolution of, 105.
Mortgages, 19.
Mortmain, Statute of, 65, 73, 80.
Norfolk in Domesday, 21, 26.
Northampton, Custom of, 53.
Nottingham in Domesday, 32.
,, Customs of, 63.
Peasant Proprietors, 145, 146.
Eevolt of 1381, 103.
Perpetuities, 109, 111, 115, 123—133.
„ Kule against, 109, 123—
131.
,, ,, Blackstone on, 129.
„ ,, gestation in, 130.
Case of, 126, 127, 129.
Pilgrimage of Grace, 94.
Pollington, Customs of, 64.
Possibility, double, 115, 125, 131.
Pre-emption, right of in grantor, 13.
Primogeniture, before Conquest, 17.
,, in feudal system, 54-59.
,, in Glanvil, 55.
,, in Bracton, 56.
growth of rule of, 54 —
59, 69.
„ merits of, 153—155.
Protector to the Settlement, 136.
Quia Emptores, 41, 42, 44, 65, 68.
Eecovery, Common, 73—76, 78, 79.
,, „ inseparable from
Entail, 110, 111.
Eelease and Lease, 89.
Rcligiosis, Statute de, 65, 66, 80.
Remainders, 71, 112.
,, Vested and Contingent,
113, 121.
,, and Executory Devises,
121, 131, 132.
11
162
INDEX.
Scutage, 38.
Seisin, Livery of, 67, 68, 89, 113, 114.
Settled Land Act, 109, 134—138.
,, ,, criticism on, 139.
Settlements, Family, 108—122.
„ ,, origin of, 116 —
118, 119.
,, Cliffe Leslie on, 135.
,, present law of, 140.
„ evils of, 146—158.
,, arguments for, 156 — 158.
Shrewsbury, Custom of, 53.
Socage land, alienation of, 40, 67.
„ „ devise of, 95, 96.
„ ,, succession to, 16, 57.
,, „ villein, 57.
Soc-land, 29.
Socmanni, 23, 25, 26, 28, 30, 31, 33,
39, 141.
Stamford, burgesses of, 32.
Succession to heir-land, 7, 18.
„ folc-land, 10, 11, 18.
„ Book-land, 18.
,, Laen-land, 18.
before Conquest, 16, 18.
in Feudal system, 53 — 64.
to Gavelkind lands, 57, 58.
to Borough English lands,
62, 63.
,, in Manors, 63, 64.
Sussex in Domesday, 25, 29, 34.
,, Borough English in, 62, 63.
Symbolical transfer, 22.
Talliatum, Feudum, 45.
Taltarum's Case, 73.
Tenant in tail, alienations by, 72.
Tenures in Chivalry, Abolition of, 98-
100.
Terra Regis, 38.
Thellusson, Will of Mr, 133.
Township, 8.
Tregon, Custom of, 64.
Trusts, origin of, 89.
Uses, 66, 80—90.
Springing, 120.
Shifting, 120.
clerical origin of, 80.
advantages of, 84.
and Chancery, 85.
Statute of, 83, 86—90, 94, 106.
,, ,, objects of, 85.
„ „ results of, 88, 90.
„ „ and Wills, 93.
,, ,, and Executory Inter-
ests, 122.
Vested Eemainders, 113.
Villani, 23, 25, 39.
„ in Kent, 60, 61.
Wales, Succession in, 59.
Wards, Court of, 95, 96, 98.
Wareham, Custom of, 59, 63.
Warranty, 70.
,, Collateral and Lineal, 72.
Waste land, reclamation of, 29.
Wife, alienations to, 66—67.
Wills, clerical origin of, 16, 18.
,, under Feudal system, 52.
and Statute of Uses, 88, 91, 93.
Early, 91, 92.
after Statute of Uses, 94.
formalities of, 96, 97.
Statute of, 95, 97, 106.
Act, 1837, 97.
Wiltshire in Domesday, 19, 25, 35.
Winans, Mr, 146.
Wolstenholme on Settlements, 149, 150.
Yardlands in Manors, 10, 16, 17.
Yeomen, 142.
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volume such a cyclopaedia of instruction, such definitive in the only applicable sense of the
a variety of helps to the full comprehension of term, and such is the edition of Professor Jebb.
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needed a small library, and all this instruction Sophocles the mind of the present generation."
and assistance given, not in a dull and pedantic — The Saturday Review.
way, but in a style of singular clearness and
AESCHYLI FABULAE.— IKETIAE2 XOH3>OPOI IN
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M. TULLI CICERONIS AD. M. BRUTUM ORATOR.
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MATHEMATICS, PHYSICAL SCIENCE, &c.
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happily for the mere learner, he is no writer of reprint of papers on electrostatics and magnet-
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the nearest available journal . . . The papers in destined in no less degree to further the ad-
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three articles which were in part written at the
MATHEMATICAL AND PHYSICAL PAPERS, by
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A HISTORY OF THE THEORY OF ELASTICITY
AND OF THE STRENGTH OF MATERIALS, from Galilei to
the present time. VOL. I. Galilei to Saint-Venant, 1639-1850.
By the late I. TODHUNTER, D. Sc., F.R.S., edited and completed
by KARL PEARSON, M.A. Demy 8vo. 25^.
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THE CAMBRIDGE UNIVERSITY PRESS. 13
THE SCIENTIFIC PAPERS OF THE LATE PROF.
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A TREATISE ON NATURAL PHILOSOPHY. By
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students, to be sure, possess an excellent guide hardly be placed with advantage in the hands
to the present state of the science in ' Die of any one who does not possess an extended
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auf 86 S. anhangsweise zum Abdrucke gebracht, abstract, presents the English reader with a
wahrend eine fast doppelt so starke Abhand- capital picture of what Greek algebraists had
lung vorausgeht. . . . Wir haben zu zeigen ge- really accomplished.]" — Athetuzrtm.
sucht, dass es in dem uns vorliegenden Buche
THE FOSSILS AND PAL^ONTOLOGICAL AFFIN-
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LAW.
A SELECTION OF CASES ON THE ENGLISH LAW
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to the historian of constitutional law, it is also
THE FRAGMENTS OF THE PERPETUAL EDICT
OF SALVIUS JULIAN US, collected, arranged, and annotated by
BRYAN WALKER, M.A., LL.D., Law Lecturer of St John's College, and
late Fellow of Corpus Christi College, Cambridge. Crown 8vo. 6s.
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to the Commentaries and the Institutes . . . which have attracted his attention in the Corn-
Hitherto the Edict has been almost inac- mentaries, or the Institutes, or the Digest." —
cessible to the ordinary English student, and Law Times.
London : C. J. CLA y &> SONS, Cambridge University Press Warehouse,
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1 6 PUBLICATIONS OF
AN INTRODUCTION TO THE STUDY OF JUS-
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and of the Jurists used or referred to therein. By HENRY JOHN
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London. Demy 8vo. 9^.
JUSTINIAN'S DIGEST. Lib. VII., Tit. I. De Usufructu
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Or the Two Parts complete in One Volume. Demy 8vo. iSs.
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covering nearly 300 pages, of the mode of from Sextus Papirius, under Tarquin the
composition of the Digest, and of the jui'ists Proud, to the Byzantine Bar, has contributed to
whose decisions and arguments constitute its render the tenacity and durability of the most
substance. Nowhere else can a clearer view enduring polity the world has ever experienced
be obtained of the personal succession by which somewhat more intelligible." — The Times.
the tradition of Roman legal science was sus-
THE COMMENTARIES OF GAIUS AND RULES OF
ULPIAN. With a Translation and Notes, by J. T. ABDY, LL.D.,
Judge of County Courts, late Regius Professor of Laws in the
University of Cambridge, and BRYAN WALKER, M.A., LL.D., Law
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reader with few notes and those merely by fanciful representation of it." — Athenaum.
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sical models does not always avail them in pensable." — Spectator.
dealing with the technicalities of legal phrase- "The notes are learned and carefully com-
ology. Nor can the ordinary dictionaries be piled, and this edition will be found useful to
expected to furnish all the help that is wanted. students." — Law Times,
This translation will then be of great use. To
SELECTED TITLES FROM THE DIGEST, annotated
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favour. We are pleased to be able to say that
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THE CAMBRIDGE UNIVERSITY PRESS. 17
HISTORY.
LIFE AND TIMES OF STEIN, OR GERMANY AND
PRUSSIA IN THE NAPOLEONIC AGE, by J. R. SEELEY,
M.A., Regius Professor of Modern History in the University of
Cambridge, with Portraits and Maps. 3 Vols. Demy 8vo. 30^.
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on Stein will turn attention to an earlier and an short resume can give even the most meagre
almost equally eminent German statesman. It notion of the contents of these volumes, which
has been the good fortune of Prince Bismarck contain no page that is superfluous, and none
to help to raise Prussia to a position which she that is uninteresting .... To understand the
had never before attained, and to complete the Germany of to-day one must study the Ger-
work of German unification. The frustrated many of many yesterdays, and now that study
labours of Stein in the same field were also has been made easy by this work, to which no
very great, and well worthy to be taken into one can hesitate to assign a very high place
account. He was one, perhaps the chief, of among those recent histories which have aimed
the illustrious group of strangers who came to at original research." — Athenczum.
the rescue of Prussia in her darkest hour, about "We congratulate Cambridge and her Pro-
the time of the inglorious Peace of Tilsit, and fessor of History on the appearance of such a
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dispirited army, her impoverished finances, and it is something upon which we may congra-
her inefficient Civil Service. Stein strove, too, tulate England that on the especial field of the
— no man more, — for the cause of unification Germans, history, on the history of their own
when it seemed almost folly to hope for sue- country, by the use of their own literary
cess. Englishmen will feel very pardonable weapons, an Englishman has produced a his-
pride at seeing one of their countrymen under- tory of Germany in the Napoleonic age far
take to write the history of a period from the superior to any that exists in German." — Ex-
investigation of which even laborious Germans aminer.
THE DESPATCHES OF EARL GOWER, English Am-
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dimensions to which English industry and com- what is trivial." — Guardian.
CHRONOLOGICAL TABLES OF GREEK HISTORY.
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CARL PETER. Translated from the German by G. CHAWNER,
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CHRONOLOGICAL TABLES OF ROMAN HISTORY.
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KINSHIP AND MARRIAGE IN EARLY ARABIA,
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1 8 PUBLICATIONS OF
TRAVELS IN NORTHERN ARABIA IN 1876 AND
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HISTORY OF NEPAL, translated by MuNSHi SHEW
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A JOURNEY OF LITERARY AND ARCHAEOLOGICAL
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THE UNIVERSITY OF CAMBRIDGE FROM THE
EARLIEST TIMES TO THE ROYAL INJUNCTIONS OY
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even so valuable as Cooper's, as well as over and industrious scholarship. The same quali-
Athenae." — Prof. A. W. Ward in the Academy. ties that distinguished the earlier volume are
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the Colleges, the internal organization of the Notes and Queries.
University, its connection with national pro- " Mr Mullinger displays an admirable
blems, its studies, its social life, and the thoroughness in his work. Nothing could be
activity of its leading members. All this he more exhaustive and conscientious than his
combines in a form which is eminently read- method: and his style. ..is picturesque and
able."— PROF. CREIGHTON in Cont. Review. elevated." — Times.
HISTORY OF THE COLLEGE OF ST JOHN THE
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service on questions respecting our social pro- still greater use to students of English his-
gress in past times; and the care and thorough- tory, ecclesiastical, political, social, literary
ness with which Mr Mayor has discharged his and academical, who have hitherto had to be
editorial functions are creditable to his learning content with ' Dyer. '" — Academy.
and industry." — Athen&um.
SCHOLAE ACADEMICAE: some Account of the Studies
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value for the historical knowledge of English of the materials here collected." — Academy.
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THE CAMBRIDGE UNIVERSITY PRESS. 19
THE ARCHITECTURAL HISTORY OF THE UNI-
VERSITY OF CAMBRIDGE AND OF THE COLLEGES OF
CAMBRIDGE AND ETON, by the late ROBERT WILLIS, M.A.
F.R.S., Jacksonian Professor in the University of Cambridge. Edited
with large Additions and a Continuation to the present time by
JOHN WILLIS CLARK, M.A., formerly Fellow of Trinity College,
Cambridge. Four Vols. Super Royal 8vo. £6. 6s.
Also a limited Edition of the same, consisting of 120 numbered
Copies only, large paper Quarto ; the woodcuts and steel engravings
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MISCELLANEOUS.
A CATALOGUE OF ANCIENT MARBLES IN GREAT
BRITAIN, by Prof. ADOLF MICHAELIS. Translated by C. A. M.
FENNELL, Litt. D., late Fellow of Jesus College. Royal 8vo. Rox-
burgh (Morocco back), £2. 2s.
"The object of the present work of Mich- remarkable. The book is beautifully executed,
aelis is to describe and make known the vast and with its few handsome plates, and excel-
treasures of ancient sculpture now accumulated lent indexes, does much credit to the Cam-
in the galleries of Great Britain, the extent and bridge Press. It has not been printed in
value of which are scarcely appreciated, and German, but appears for the first time in the
chiefly so because there has hitherto been little English translation. All lovers of true art and
accessible information about them. To the of good work should be grateful to the Syndics
loving labours of a learned German the owners of the University Press for the liberal facilities
of art treasures in England are for the second afforded by them towards the production of
time indebted for a full description of their rich this important volume by Professor Michaelis."
possessions. Waagen gave to the private col- — Saturday Review.
lections of pictures the advantage of his in- " Professor Michaelis has achieved so high
spection and cultivated acquaintance with art, a fame as an authority in classical archaeology
and now Michaelis performs the same office that it seems unnecessary to say how good
for the still less known private hoards of an- a book this is."— The Antiquary.
tique sculptures for which our country is so
RHODES IN ANCIENT TIMES. By CECIL TORR, M.A.
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THE CAMBRIDGE UNIVERSITY PRESS. 21
Camlmtrse Bible for
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Rev. T. K. CHEYNE, M.A., D.D., late Fellow of Balliol College, Oxford.
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Rev. A. B. DAVIDSON, D.D., Professor of Hebrew, Edinburgh.
The Ven. F. W. FARRAR, D.D., Archdeacon of Westminster.
Rev. C. D. GINSBURG, LL.D.
Rev. A. E. HUMPHREYS, M.A., late Fellow of Trinity College, Cambridge.
Rev. A. F. KIRKPATRICK, M.A., Fellow of Trinity College, Regius Professor
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Rev. J. J. LIAS, M.A., late Professor at St David's College, Lampeter.
Rev. J. R. LUMBY, D.D., Norrisian Professor of Divinity.
Rev. G. F- MACLEAR, D.D., Warden of St Augustine's College, Canterbury.
Rev. H. C. G. MOULE, M.A., late Fellow of Trinity College, Principal of
Ridley Hall, Cambridge.
Rev. W. F. MOULTON, D.D., Head Master of the Leys School, Cambridge.
Rev. E. H. PEROWNE, D.D., Master of Corpus Christi College, Cambridge.
The Ven. T. T. PEROWNE, M.A., Archdeacon of Norwich.
Rev. A. PLUMMER, M.A., D.D., Master of University College, Durham.
The Very Rev. E. H. PLUMPTRE, D.D., Dean of Wells.
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THE CAMBRIDGE UNIVERSITY PRESS. 23
THE CAMBRIDGE BIBLE FOR SCHOOLS & COLLEGES.
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Preparing.
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THE CAMBRIDGE GREEK TESTAMENT
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scarcely needs any commendation of ours. His edition of the speech Pro Sulla is fully equal in
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London : C. J. CLA Y &> SONS, Cambridge University Press Warehouse,
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26 PUB LIC A TIONS OF
M. T. CICERONIS PRO CN. PLANCIO ORATIO.
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volume is neatly got up, and is in every way commendable. " — The Scotsman.
M. T. CICERONIS IN Q. CAECILIUM DIVINATIO
ET IN C. VERREM ACTIO PRIMA. With Introduction and Notes
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M. T. CICERONIS ORATIO PRO L. MURENA, with
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M. T. CICERONIS ORATIO PRO T. A. MILONE,
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the text." — Saturday Review.
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M. ANNAEI LUCANI PHARSALIAE LIBER
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THE CAMBRIDGE UNIVERSITY PRESS. 27
GAI IULI CAESARIS DE BELLO GALLICO COM-
MENT. I. II. III. With Maps and English Notes by A. G. PESKETT,
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COMMENT. IV. AND V. AND COMMENT. VII. by
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- COMMENT. VI. AND COMMENT. VIII. by the
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P. VERGILI MARONIS AENEIDOS LIBRI I., II., III.,
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