the bottom, or the top, or in the context of the will, the name of the
testator, written by his own hand, in any place, being sufficient. And
the putting his seal to the will, though without his writing, has been
judged sufficient; for his seal is as much his mark, or sign, as his
handwriting. As to the attestation, the statute requires it to be in the
testator’s presence; but it is absolutely necessary, that he should look
on and see it done. Therefore, if it is attested in the room where he
lies sick in bed, with his curtains undrawn, this is a good attestation;
or if it is attested in a neighbouring room, and the door open, so that
he might possibly see it done, this is in his presence. But if the door
be shut, or the place so situated that he could not by any means see the
attestation, the will is void.
I shall next proceed to _involuntary alienation_ of lands, namely, for
payment of debts; and then give an account of the origin and progress
of _estates tail_, which were introduced to restrain this power of
alienation, and to restore, in some degree, the old law of keeping
estates in the blood of the first purchaser.
LECTURE XVI.
_Involuntary alienations of feudal land—Talliage—Edward I.
introduces the first involuntary attachment of lands—Statutes
enacted for this purpose—Their effects—The origin of estates
Tail._
The _involuntary_ alienation of feudal land, namely, the attaching,
and afterwards the selling it for debt, kept pace pretty much, but not
strictly, with the voluntary alienation already treated of. It first
began in cities and trading boroughs, which were either the remains of
old Roman towns, and where, consequently, the estates were allodial;
or else new towns, founded either by the kings, or other great lords;
or their demesnes, for the benefit of trades and arts within their own
districts. External commerce, during those confused times, was little
known or practised, the Barbarians of the North infesting the coasts
of the ocean, and the Saracens and Moors, those of the Mediterranean.
It was the interest, therefore, of every lord who had such a town on
his territory, to give it such privileges as would make it flourish,
and outrival the towns of like nature on the lands of the king, or the
neighbouring lords. For the natives of such towns were no part of the
feudal society, but were in the nature of socage tenants in the early
times, removeable, and consequently subject to be taxed, or, as our law
calls it, _talliagable_, from the French word _tailler_ to cut[214].
Talliage, consequently, was the cutting out a part from the whole of
the tenant’s substance, at the will of the lord. Yet this very power
of talliage, which the lords were not for a long time inclined to part
with, joined to their desire to make their towns flourish (that they
might be able to bear a greater talliage) put them under a necessity
of making such provisions, and granting such privileges, as were
necessary for the use of trade and commerce, and at length, in effect,
destroyed that absolute power of taxation, which the king and lords had
all along claimed and exercised, and which at first, for their own
interests sake (which no doubt they well understood) they had used with
great moderation. But after the discovery of the civil law at Amalfi
in Italy, in the reign of our Stephen, the kings of Europe, who found
therein an unlimited power of taxation in the emperor, were desirous to
establish the like authority in themselves; and for that purpose began
with oppressing their nobles with arbitrary scutages, or commutations
for military services; and the towns of their demesne with talliages,
not only arbitrary, but extravagantly beyond their power to pay without
ruin[215].
John of England was particularly famous for these extraordinary charges;
for though his title to the crown was, at that time, by many of his
subjects, and by others abroad, much doubted (as in prejudice of his
elder brother’s son Arthur then a minor) and his only just claim could
be but by parliamentary authority, the omnipotence of which was not
then so universally admitted, never was there a prince who carried his
prerogative to such extravagant and oppressive heights. This, at length,
occasioned the making _Magna Charta_; partly to assert and restore the
ancient liberties of the nation, which had been invaded; partly to alter
the old law, in such particulars as had been the engines of oppression.
One of the chief of these latter remedies was the taking away the right
of talliage, unless consented to in parliament. And now were the boroughs
emancipated, and the burgesses made freemen, which before they could
hardly be called, while their effects lay wholly at the mercy of the
lord[216].
In the next reign they advanced in importance; for as the treasure of the
kingdom was in their hands, they were sure to be favoured and courted on
both sides, during the fierce contests between the king and the barons.
And in the latter end of this reign it appears they had got admission
into parliament, which not a little increased their consequence. Edward
the First was a great favourer of merchants, and, for the security of
their debts, introduced the first involuntary attachment of lands by the
act called _statute merchant_, in the thirteenth year of his reign[217].
Before this time, no lands, except in boroughs by custom, were attachable
for debt, but only in the case of the king, who, by right of his
prerogative, could enter on the lands of his debtor, and receive the
profits, until he was paid. For the same political reason, the surety
also for a debt to the king, if he paid the debt, was allowed to come
in the king’s place, and enjoy the same privilege; but in all other
cases, the chattles were the only mark for the debt. This statute,
after reciting that merchants had fallen into poverty, for want of a
speedy remedy for recovering their dues, provides, that, in every city
or great town, which the king should appoint, there should be kept a
_recognizance_, that is, the acknowledgement or confession of debts due
to merchants, and of the day of payment; and that, in case payment was
not made at the day, they may, or should, on the application of the
merchant, and inspection of the roll, imprison the body of the debtor
until payment; and if no payment was made within three months, (which
time the debtor was allowed to sell his chattles or lands) his chattles
and lands were to be delivered to the merchant creditor, at a reasonable
valuation, or _extent_, as it is called; that out of the profits he might
satisfy himself. And in case the debtor could not be found within the
jurisdiction of the city or town, or had no chattles or lands therein,
then was the mayor to send into chancery the recognizance of the debt,
and the chancellor was to issue a writ to the sheriff in whose bailiwick
the debtor was or had effects, to act in like manner. And so greatly was
the merchant favoured, that tho’ this was but an estate for years (it
being certain, from the valuation, in what time the debt would be paid),
yet had he, with regard of maintaining actions to recover his possession
when deprived of it, the privileges of a free-holder given him, by
express provision in the act. Such was the favour shewn to merchants to
recover their just demands, nor were other creditors at this time left
totally unprovided for, in cases where there was a deficiency of chattles.
In the same year a law was made for attaching the lands of persons, in
favour of creditors who were not merchants, but in a different manner,
called an _elegit_. I shall here use the words of the statute, as
they are sufficiently plain, and easy to be understood. “When debt is
recovered or acknowledged in the king’s courts, or damages awarded, it
shall be, from henceforth, in the election of him that sueth for such
debt or damages, to have a writ to the sheriff of _fieri faciat_ of the
lands and goods” (which was the old remedy against the chattles) “or
that the sheriff shall deliver to him all the chattles of the debtor,
saving only his oxen and beasts of his plough, and the one half of his
land, until the debt be levied upon a reasonable price or extent.” After
this the act gives the same privilege as in case of statute merchant, to
the creditor dispossessed. From his making his election for the extending
the lands, the writ directed to the sheriff for that purpose got the name
of _elegit_. The difference of execution just mentioned shews clearly in
how superior a light the legislature regarded the interests of commerce.
That the debts to merchants, in whose prosperity the whole community was
concerned, might be levied as soon as possible, the security by statute
merchant gave possession of the whole of the land to the creditor; but
the writ of _elegit_ gave him possession of no more than one half.
Originally men could not alien lands at all. Afterwards they were allowed
to alien, but not beyond the half of the fief; and this principle or
maxim was strongly regarded at the time the writ of _elegit_ was framed,
which was before the statute of _Quia emptores terrarum_, which allowed
alienation of the whole. So that whatever stretches might be found
necessary, from the circumstances of merchandize, yet, with regard to the
kingdom in general, a small deviation only was made from the common law,
and the _elegit_ was allowed to affect no more by operation of law than a
man was supposed capable of alienating by his own deed[218].
Two reigns after, namely, the 27th of Edward the Third, when the mart, or
market of the standing commodities of England, namely, wool, woolfels,
hides, lead and tin, was removed from Flanders into England, and a court
merchant was erected in all such places where the staple was fixed,
to be held by the mayor of the staple, he had power given him to take
recognizances on the debts contracted at the staple, called _statute
staple_, in the same manner as of _statute merchant_; and as the effect
thereof was the same as of statute merchant, it need not be particularly
repeated. However in some time afterwards, statute merchant was, by
custom, extended to others beside merchants, and became one of the common
assurances of the realm. The statute staple was likewise extended upon
surmise of the debt being contracted at the staple; and though an act of
Henry the Eighth in England restrained this latter to its ancient bounds,
yet, the same act framed a new kind of security in imitation of it,
common to all the subjects, called a recognizance on that act, which had
all the effects and advantages of it[219].
The statutes of Elizabeth and those since her time, concerning bankrupts,
have gone much further. They not only, in the cases they extend to,
laid the whole land open to the creditor, but, instead of a possession,
and gradual discharge of the debt, which was all that was given by the
statute merchant, _elegit_, or statute staple, they gave him a more
speedy satisfaction, by enabling him to procure a sale of the lands[220].
But these later acts having never been enacted in this kingdom, I shall
content myself with having barely hinted at them, and their effects.
Voluntary alienations of land having gained ground, and become at length
established in England, contrary to the principles of the original law;
and it being allowed for a maxim, that he that had a fee simple, had an
absolute dominion over half of his land, to dispose of as he pleased,
and, in some cases, of the whole; it could not be, but that there would
arise many persons fond of perpetuating their estates in their families,
and consequently displeased at this power of alienation. The means they
used to attain their ends was under that maxim of law, _Tenor investituræ
est inspiciendus_, or, as we express it, _Conventio vincit & dat modum
donationi_. Every man therefore, absolute master of his estate, having
a right to give it on what terms he pleased, they began, not as before,
to give lands to a man and his heirs in general, for that would have
given an absolute dominion, but to heirs limited, as to the _heirs of his
body_, or to the _heirs male_ of his body, or to the heirs of his body by
such a woman. Here it was plain enough, that none were intended to take,
but such as came within this description; and by this means they hoped
to defeat the power of alienation, to secure the estate to the persons
described, and, in failure of them, the returning or reversion of it to
themselves or their heirs.
But the judges complying with the universal bent of the times to the
contrary, did not give these grants that construction they expected, upon
the natural presumption, that every person will have heirs of his body,
and that his posterity will continue for ever. They construed this to
be a fee simple; and yet, not entirely to disregard the intention of the
donor, to be a fee simple conditional; as if the words had been _to a man
and his heirs_, provided he have heirs of his body, and consequently to
be alienable, and forfeitable upon a certain event. And one great reason
of making this construction, I take to be the consideration of forfeiture
for treason and felony, which, by such grants, would be defeated by
another construction, and men thereby rendered more fearless to commit
crimes in those troublesome times[221].
Let us see then what estate or power was in _donor_ and _donée_
immediately by the grant; and what, upon the performance of the
condition, namely, the having issue. And first, the _donée_ had
immediately a fee simple upon the grant, contrary to Britton’s opinion,
that, before children born, he had only an estate for life, and
afterwards a fee. This appears from hence, that if a man had aliened in
fee before issue had, the donor could not have entered upon the lands
for the forfeiture, which, if he was tenant for life, he might. For the
alienation in fee of tenant for life is an absolute forfeiture, and gives
right of entry to the _lessor_. The _donée_, then, having presently a
fee simple in him, that is, an estate for ever, than which there can be
no greater; it was impossible the donor should have any actual estate
or interest in the lands. He had not, therefore, a _reversion_ vested
in him, that is, a certain positive right of the lands returning to him
or his heirs, as he would have had, if an estate for life only had been
granted. He had only a bare _possibility of reverter_, in case the donée
died without issue; or, leaving any, that issue had failed.
For the same reason, of the donée’s having a fee simple, no _remainder_
could be limited in such an estate. If land be given to A. for life or
for years, and after the efflux of the life or years to B., B. hath
presently a remainder in the lands for life, years, or in fee, according
as the limitation of the estate is; because it is certain that a life,
or term of years, must expire. But if land be given to A. and the heirs
of his body, and, in failure of such heirs, to B. and his heirs, this
remainder to B., before the statute _De Donis_, was void, for A. had
immediately an estate for ever, and therefore the limitation over to B.
was rejected, as repugnant to the estate it depended upon.
But though, by such a grant, the donée got a fee, it being clogged with
a condition, he had not, to all intents and purposes, an absolute power
over it, either with respect to the donor, or his own issue. If the
donor aliened before issue had, this was no bar to the donor, of his
possibility of _reverter_; but it was a bar to the issue born afterwards,
to enjoy the estate tail. For at this time fathers had a greater liberty
to bar their children, than a stranger. Therefore, in this case, the
_alienée_ and his heirs, were to enjoy the lands while the donée, or any
issue of his body remained. But whenever they failed, the donor’s, or his
heir’s possibility of reverter, was changed into an actual reversion, and
the land became his. For now, by a subsequent event, it appeared, that
the legal presumption of the estates continuing for ever was ill founded.
Neither, by the having of issue, was the condition performed to all
purposes, so as to vest an absolute fee in the _donor_; for if the donée
had died without issue, or if his issue failed, without any alienation
being made by either, in this case also, the donor’s possibility was
changed into an actual reversion. But by having issue, the condition was
so far performed, as to enlarge the power of the donée to three special
purposes; first, to alien absolutely, and thereby to destroy the right
of issue, and the possibility also of reverter in the donor; secondly,
to charge and incumber it to the prejudice of both issue and donor; and
thirdly, to forfeit it for treason or felony, to the prejudice of both
also. Such was the construction the judges made of these grants, which,
we see, gave, in almost all cases, an unlimited power of alienating,
contrary to the intention of the donor, and the form of the gift[222].
But, in the thirteenth of Edward the First, the lords, willing to
preserve the grandeur of their families, obtained of that monarch the
famous statute of Westminster the second, called _De Donis_, which by
these words, _quod voluntas donatoris, secundum formam in charta Doni
sui, manifeste expressam, de cætero observetur, ita quod non habeant
illi, quibus tenementum sic fuit datum sub conditione, potestatem
alienandi tenemenium sic datum, quo minus ad exitum illorum, quibus
tenementum sic fuerit datum, remaneat post eorum obitum, vel ad
donatorem vel ad ejus hæredem, si exitus deficiat, revertatur_[223],
created a new kind of inheritance, _estates tail_, which very much
resemble the old feudal donations, that were only descendible to the
issue of the first feudatory. Let us see the consequence of these words.
First, since the will of the donor was to be observed, it followed, that
neither the donée, nor his issue, should have power to alien, incumber,
or forfeit: the consequence of which was, that he could no longer have a
fee simple, as these are inseparable incidents to such an estate; but a
lesser estate, called _Fee tail_, from, the French word _Tailler_ before
mentioned, as being, like other lesser estates, carved out of the fee
simple.
Were it to be asked, in whom did the fee simple reside? it is plain it
could be in none other but the donor, who had it originally in him.
Therefore, by this statute, the possibility of reverter, which the donor
had, was changed into an actual present interest, called a _reversion in
fee simple_. But it was not always necessary that the fee simple should
be in the donor; for estates tail, being now less than a fee simple, it
became possible to limit a remainder thereon which should be good: Thus,
if a gift be made to A. and the heirs of his body, and, in failure of
such heirs, to B. and his heirs; in this case, there is no reversion:
for the donor hath parted with his whole estate, but A. hath an estate
tail, and B. a remainder in fee simple. Many remainders may be limited
on one another, as for instance, an estate may be given to A. for years,
remainder to B. for life, remainder to C. in tail, remainder to D. in
tail, remainder to E. in fee simple; but if the last remainder is not in
fee simple, but in fee tail, then is the reversion in fee simple to the
donor.
However, although a tenant in tail after this statute could alien only
for his own life, his heir in tail was not allowed to enter upon the
alienée without first proving his right in a court of law, and this is
what is meant by saying, _though a tenant in tail could not destroy the
estate tail by his alienation, yet he could continue it_. The reason of
this is, that all estates of inheritance are presumed fee simple, until
the contrary is proved, and it would be unjust to remove a possessor,
who came in by a title apparently fair, until the weakness of that
title appears judicially. This rule, however, extended only to estates
corporeal, that lay in liveries, not to incorporeal ones, that lay in
grant; which shews that this maxim of its working a discontinuance
proceeded from the feudal principle, of protecting the possessor, because
he was to do the feudal duties.
The statute to guard these inheritances from alienations, expressly
provides, that even a fine levied of them in the king’s courts of record
should be _ipso jure_ null.
The method of recovering such lands so discontinued, is by a writ called
a _Formedon_, from the words _forma doni_, of which writ there are three
kinds, according to the title of the persons who bring them; _formedon,
in the reverter_, _in the descender_, and _in the remainder_. _Formedon
in the reverter_ lies for the donor or his heirs, and lay at the common
law after the failure of issue, where the alienation was before issue
had; but since the statute, upon the failure of issue, it lies, though
the alienation be after. _Formedon in descender_ lies for the issue in
tail, when the ancestor has aliened, and is given by the statute. The
form of it is as follows, “The king to the sheriff of ⸺ greeting, command
A. that he justly, and without delay, restore to B. such a manor, &c.
which C. gave to D., and the heirs of his body, and which, after the
death of the said D., ought to descend to the said B. the son of the
said D. by the form of the aforesaid gift, as he says.” _Formedon in
remainder_ lies for a remainder man in tail, or his issue, after the
particular estate previous to his (whether it be for years, life, or in
tail) is spent. In the reverter, instead of the word _descend_, it is
_revert_; in the remainder, _remain_[224].
Having shewn the origin of estates tail, I shall next consider their
consequences, and future fortune.
LECTURE XVII.
_The consequences and history of estates Tail._
The following are the words of my lord Coke. “When all estates were fee
simple, then were purchasers sure of their purchases, farmers of their
leases, creditors of their debts; the king and lords had their escheats,
forfeitures, wardships, and other profits of their seignories: and for
these, and other like cases, by the wisdom of the common law, all estates
of inheritance were fee simple; and what contentions and mischiefs have
crept into the quiet of the law by these fettered inheritances, daily
experience teacheth us.” By this enumeration of his, of the advantages
that attended estates of fee simple, it is easy to see who were the
sufferers, and wherein they suffered, by the introduction of estates
tail. But it is a little surprizing that he should make such a slip as
to say, that before this creditors were secure of their debts by all
estates being fee simple; when the first statute that gave them any hold
of lands was made after this statute _De Donis_, in the latter end of
the same year of the king’s reign, the thirteenth of Edward the First.
Those, indeed, who had landed estates at that time, and their posterity,
were great gainers hereby; but the king and the nation in general were
sufferers. The nation suffered by the check that commerce, then just
arising, received, by so much lands becoming unalienable, and the crown
suffered in a double respect; first by the opportunity it afforded to
strengthen and explain the great estates of the lords, and secondly by
the security it gave when enlarged.
Soon after the conquest, the estates of the English lords were enormous.
William brought over an army of 60,000 men, not levied by himself, (for
he was unable to raise or defray the expences of a third of that number,
out of the province of Normandy,) but consisting chiefly of adventurers,
who engaged in the expedition on the promise of forfeited lands, in
proportion to the numbers they brought with them. Accordingly, some
had seven hundred manors, others five, four, three, two, one hundred,
or less; insomuch, that all the lands of England, (if we except the
king’s demesnes, the church lands, and the little properties annexed to
cities and boroughs) were in no more than about seven hundred hands,
the principal of which were petty princes, like the dukes and counts of
France[225].