LIBRARY 
 
 OF THK 
 
 UNIVERSITY OF CALIFORNIA. 
 
 Rtetted.... ..MV.19 .1891 ...... /<? 
 
 Accessions No.^+S^Ef.Z Shelf No.... 
 
LAND IN FETTERS 
 
SonDon: C. J. CLAY AND SONS, 
 
 CAMBEIDGE UNIVEKSITY PEESS WAREHOUSE, 
 
 AVE MAEIA LANE. 
 
 : DEIGHTON, BELL AND CO. 
 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 .... 
 
 322 
 
 CHAPTER II. 
 
 The Evidence of Domesday Book . 
 
 . 2336 
 
 CHAPTER III. 
 
 Feudal Land Law 
 
 . 3769 
 
 CHAPTER IV. 
 
 The Evasion of the Law by Fines and 
 
 Re- 
 
 
 coveries 
 
 . 7079 
 
 CHAPTER V. 
 
 Uses 
 
 . 8090 
 
 CHAPTER VI. 
 
 Wills 
 
 . 91100 
 
 CHAPTER VII. 
 
 Economical Changes in the Land System 
 
 . 101107 
 
 CHAPTER VIII. 
 
 Family Settlements .... 
 
 . 108122 
 
 CHAPTER IX. 
 
 The Rule against Perpetuities 
 
 . 123133 
 
 CHAPTER X. 
 
 Lord Cairns' Act 
 
 . 134139 
 
 CHAPTER XI. 
 
 Policy of the Present Law 
 
 . 140158 
 
 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 individuals 1 . 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. 
 
 12 
 
4 CUSTOMARY ESTATES. 
 
 Law, calls such estates "unhooked laens" and applies the term 
 " booked laens 3 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 laens 1 . 
 
 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-land 3 . 
 
 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 
 established 3 : 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- 
 tione 3 ." In some cases also the kindred join in the grant for 
 additional security 4 , 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 
 frequent 1 . 
 
 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-land 2 ." 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 relinquat 3 ." 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 suis 5 " Leofwine buys land 
 from Edric his kinsman "aefre in his cynn to fane and to syllanne 
 Sam Se him aefre leofost beo 6 ." 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 day 7 . 
 
 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 members 8 ; 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 Witan 1 . 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. 805831. 
 
8 MARKS AND 
 
 Edward the Confessor 1 . 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 organization 2 ." 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 source 3 ." 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 themselves 4 . 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 lord 5 . 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. 328335. 
 
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 manor 1 ; 
 while others again "non potuerunt recedere cum terra." 
 But I do not think there is any evidence 2 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 
 abandoned 3 . 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 suggested 1 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 held 1 ." 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- 
 sary 2 . 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 kinsmen 1 ." 
 
 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 
 relinquendi 1 ." 
 
 " ut hdbeat libertatem commutandi vel donandi in vita sua, et 
 post ejus obitum teneat facultatem relinquendi cuicumque 
 voluerit 2 ." 
 
 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 adscripta 3 ." 
 " Hoc modo donatum est, ut semen masculum possideat et non 
 
 femininum ; et post obitum prosapiae illius data sit ad eccle- 
 
 siam Eofesham 4 " : 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 foundation 5 : 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 
 life 6 . 
 
 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 
 thus 7 : "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-land 1 ." 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 erecto 2 " 
 
 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 charters 3 . 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 
 thus 5 : "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 heriot 1 . 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 inheritance 2 . 
 
 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 lord 1 . For equal division of each yardland 
 
 1 Seebohm, V. C. 176178. 
 
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 
 Conquest 1 , 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 
 found 2 . 
 
 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 Turver 3 ." 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 Edwardi 4 ...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 sui 1 ." 
 
 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 church 2 ." 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 erant 3 ." 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. 
 
 22 
 
20 CHURCH LANDS. 
 
 hunc terminum poterat ire cum ea ad quern vellet dominum 1 ." 
 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 erat 2 ." 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 
 tenere 3 ." In Essex a landowner "non potuit vendere sine licentia 
 abbatis 4 :" 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 
 church 5 ," and Archbishop Stigand himself is recorded as having 
 held land which he could not separate from the church 6 . 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 Ely 7 ," 
 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 holders 8 . In Hertfordshire certain lands 
 "were of the alms of King Edward, and of all the Kings his 
 forerunners 9 ." 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. 258260. 
 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 
 King 1 ." 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 performed 3 . 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 follows 1 : 
 
 ( Tenants in Capita .... 1,400) ,__ 
 
 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 1 1 82,624 
 
 pauperes .... 490 J 
 
 Cottarii 5,054 ' 
 
 3 Coscets 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 Allodium 1 ." 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 
 tenuerunt 2 ." 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. 5456. 
 
TENANTS. 25 
 
 translate "Book-land," a word which only occurs once in Domes- 
 day 1 . 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 land 2 . 
 
 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 
 Personarum 3 . 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 
 England 1 . 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 Brihtric 2 ." At Bedfont in Middlesex " three sokemen did 
 not belong to the manor in King Edward's time 3 ." At Tring in 
 Hertfordshire we have a very full account 4 : " 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 Ramsey 1 . 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 3 2 . 
 
 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 time 6 ." 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 
 Kent d , "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 holds 6 . 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 Augustine 1 . "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 manors 2 , 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 will 1 : 
 others who can sell their land, the jurisdiction remaining in the 
 manor 2 : others again who cannot sell, or even leave their land 
 without the permission of their lords 3 : 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 Cottenham 4 : "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 potuit 5 ." 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 Ely 8 . 
 
 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 them . 
 
 " 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 it 1 /' 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 leave 2 ." 
 
 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 county 1 , 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 Lincolnshire 2 , the county showing the largest proportion of 
 socmanni and liberi homines, there are only two entries concern- 
 ing freedom of alienation or the reverse 3 . The prevalence of 
 free landowners is also shown by the number of entries of 
 mortgages of land 4 , 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 
 
 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 
 tenuisset 1 ." 
 
 In a less Danish county, Hertfordshire 2 , in which there is 
 only one per cent, of socmanni and liberi homines as against 
 86 per cent, of villani and bordarii 3 , 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 all 6 ; 
 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 Essex 6 , 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 Sussex 1 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 them 2 . 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. 
 
 Kent 3 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 Kent 4 . 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 p o llock, 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 it 1 . 
 
 Travelling west, we find a state of things distinctly less free. 
 In Wiltshire 2 , 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 
 
 32 
 
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 lord 1 . 
 
 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 Glanvil 1 , 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 manors 3 . 
 
 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 suam 4 ." 
 
 "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 contradicat 1 . 
 
 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 England 2 . 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 this 3 ; 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 vadat 1 ." 
 
 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 illud 2 ." 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 
 grant 3 ; 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 
 lands 1 . 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 1304 2 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 
 statute 3 : "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. 3538. 
 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 time 1 ." 
 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 value 2 . 
 
 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 generally 4 ." 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. 398401. 
 
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 or 1 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 grant 2 . 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-land 3 . 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 down 4 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 
 suo 1 ." 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 suis 2 ." He also 
 mentions twice a form of restriction : " licet donatorio rem 
 datam dare vel vendere cui voluerit, exceptis viris religiosis et 
 Judaeis 3 "; 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 lord 5 . 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 purchase 6 ." 
 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 assert 1 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 did 2 . 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 donatione 3 ." 
 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 them 4 . 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 donatorem 1 ." 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 gifts 2 . 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 agree 3 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 into 4 : 
 
 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 3 Digby,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. 
 276278 ; 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, thus 1 : 
 "si dicat 'Do tali et haeredibus suis, si haeredes habuerit de 
 corpore suo 2 ,' 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 procreatis 3 / 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 body 4 ." 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- 
 tionalibus 1 " 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 condition 2 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 heirs 3 ; (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 gift 1 . Wherefore the King,... 
 determined that the will of the donor as plainly expressed in 
 the charter of the gift 2 should be observed, so that those 3 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. 
 
 42 
 
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 place 1 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 
 useless 2 . " 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 land 1 . 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 Northamptonshire 2 , 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 Glanvil 3 ; 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 Guildhall 4 . 
 
 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 
 inoperative 5 . 
 
 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 potest 1 " 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 none 1 ". 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 dividant a ". 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 Angliae 3 . 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 manors 4 . 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 succession 1 . 
 
 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 quietus 2 . 
 
 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 
 natura 3 ," 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 remain 1 . For where the old 
 rule is not incompatible with the feudal system of defence it 
 survives. 
 
 In a case decided in 1292 2 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 succeeded 3 . 
 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 elder 1 . 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 1307 2 , 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 3335 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 qualification 1 : "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 
 say 2 : " 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 
 soeurs 3 , 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 parts 5 . 
 
 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. \ 7 III. 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 England 1 . 
 
 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 reasons 2 : 
 
 (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 cotarii 1 , 
 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 Kent 2 . 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 worse 3 ." 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 referred 1 . 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- 
 ject 2 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 vassals 1 ," 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 Law 2 ". 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 sons 3 ; in others it is the rule of 
 Borough English which receives extension and in such a case 
 the youngest daughter succeeds 4 , instead of the daughters 
 equally, as in other Borough English manors 5 , 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 succeeds 6 . 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 prevails 7 . Wareham in Dorsetshire has the 
 curious rule of equal division among all the children 8 : 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 
 tenant 1 . In Pollington the daughters do not inherit 2 , and a 
 similar rule prevailed on the Scotch Marches, where the 
 necessity of having a male tenant of the lands was obvious 3 . 
 At Tregon in Cornwall the tenant was allowed to demise his 
 land for three lives 4 ; which in Bedminster unless the copy- 
 holder named his successor the lands escheated to the lord, 
 there being apparently no rule of succession 5 . 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 
 
 ^-cetain 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 Church 6 . 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 infant 7 . This 
 mischief was first attacked by a clause in the reissue of Magna 
 Carta in 1217 8 : "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 tenetur 9 ": 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 statute 1 . 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 1392 1 , 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 year 3 . 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 manors 1 , 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 dower 2 . He gives no 
 reason for the change, but his follower Fleta is more explicit, 
 and says: "quia prohibetur in lege 3 ." 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 equity 4 ; 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 gift 5 ." 
 
 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 ways 6 . 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. 
 
 52 
 
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 Descender 1 /' 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 
 father 2 . The judges had already allowed such an heir to use a 
 writ of "Formedon in the Descender" to defeat his father's alien- 
 ations 3 , 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 alienation 4 . 
 
 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 himself 5 . 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. 202204. 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 remainderman 1 . 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 decision 3 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 issue 3 . 
 
 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 Blackstone 4 . 
 "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 realm 1 ." 
 
 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 Statute 2 . "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 
 bills 3 ." 
 
 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 Case 41 , 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 Statute 5 . 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 recognized 1 . 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 before 3 ;" 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 recompense 1 ,'' 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 had 2 ." 
 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 Report 3 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 inheritances 1 ." 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 recedere 1 ." 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 day 2 . 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 I860 3 , 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-claim 5 . 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 them 1 . 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 issue 2 . 
 
 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 expense 1 , 
 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 Recoveries 2 /' 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 use 2 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 amortise 1 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 statute 3 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 men 5 , 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 lifetime 1 , 
 and a Statute of 1433 extends this advantage to all writs 
 grounded upon Novel Disseisin, as well as the Assize of Novel 
 Disseisin itself 2 . A Statute 3 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 Pernors 4 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 uses 5 . 
 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 
 liable 6 . 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 party 7 ". 
 
 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 question 8 . 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 
 statute 1 ." 
 
 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 made 2 ." It recites that a number of feoffments 
 to uses have been made to Richard before he was king 3 , 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 assertion 4 ; "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 
 
 62 
 
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 
 crown 1 ". For the judges held in the reign of Edward IV., that 
 a use of lands was not forfeited by attainder 2 , 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 1402 1 , 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 follows 2 : 
 
 " 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 Chigwell 3 , 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 
 indenture 4 , 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 
 good 5 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 Chancery 1 . 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 bound 2 . 
 
 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 uses 1 ." 
 
 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 statement 2 ; "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 special 3 ." 
 The preamble recites 4 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 oaths 5 ":) (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 use 1 ." 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. 326328, 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 Enrolments 1 
 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 
 law r yers 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 passed 1 , 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 counties 3 , 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 Law 4 . 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- 
 ham 1 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 
 one 1 , 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 Rone 2 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 instance 3 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 declared 4 ". 
 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 1488 1 , 
 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 clause 2 
 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 shillings 1 ." 
 
 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 people 2 ." The demands of the insurgents 
 include 3 , " 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 said 4 : " 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 wise 5 ." 
 
 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 land 1 ." 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-times 2 , 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 Wards 3 ; 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 Blackstone 4 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 causes 1 . 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 Parliament 2 . 
 
 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 void 1 . 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 1837 s 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 Inheritance 4 " 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 discussed 1 . 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 Act 2 . It is also certain that a series of excise 
 taxes were imposed by the Long Parliament and codified by the 
 19th ordinance in 1656 3 . 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 up 4 . 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 adjourned 5 . On November 19 
 the debate was resumed and adjourned 6 . On November 21, the 
 debate was resumed, when it was moved 7 :" "That the moiety 
 of the excise of ale 8 &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 "moiety 9 /' 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. 
 
 72 
 
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 Hallam 1 , 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 book 2 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 
 perished 1 . 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 wages 2 /' 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 
 employments 4 . 
 
 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 Labourers 6 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 period 1 . 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 
 lease 2 . 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 acres 3 . 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 1450 4 . 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 people 1 :" 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 
 continues 1 , "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-tail 1 . 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 Case 1 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 void 2 , 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 Case 5 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 body 6 : 
 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 attempting 1 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 Coke 2 , 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 void 3 . 
 
 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 otherwise 5 , 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 restricted 1 . 
 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 rules 1 : 
 
 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 party 2 . 
 
 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 remainder 3 ; 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 children 4 '" 
 
 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. 
 
 82 
 
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 grant 1 . 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 settled 2 . 
 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 remainder 3 . 
 
 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 155G 1 , 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 Case 3 , 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 uses 4 : (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 Case 5 , 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 remainders 1 . 
 
 Other attempts which were made and failed were as fol- 
 lows 2 : 
 
 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 void 3 . 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 
 failed 5 . 
 
 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 estate 1 , 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 marriage 2 . 
 
 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 Property 1 , 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 Tail 2 . 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 law 8 . 
 
 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 law 1 ." 
 
 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 devisor 2 . 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 contingency 3 . 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 
 devise 4 . 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 
 established 1 ." 
 
 1 Bl. ii. 174. 
 
CHAPTER IX. 
 
 THE RULE AGAINST PERPETUITIES 1 . 
 
 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 conveyance 2 ." It is where "if all that have 
 interest join yet they cannot bar or pass the estate 3 ." 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. 1182. 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. 2744. 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 kingdom 1 ." 
 
 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 valid 3 . 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 
 person 4 . It has been argued that this is merely a tentative 
 form of the Kule against Perpetuities in Executory Interests 5 , 
 but the better opinion appears to be that the two rules are 
 distinct and separate 6 . 
 
 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 recognized 7 . 
 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. 3335. 
 
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. Bickerstaff 2 (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 once 3 ," 
 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 be 1 . 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 expiration 2 . 
 
 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. Edge 1 , 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. Biddall 1 . 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 after 2 " ; and in 
 Jee v. Audley 3 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 1699 4 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. Blackhatt 1 , (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. Westcott 2 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. Palmer 41 . 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, 173271. 
 
 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 
 
 92 
 
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 Thellusson 1 , 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 
 remainders 1 . 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 settlements 1 . 
 
 " 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 ownership 1 , 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 family 2 ". 
 
 In 1856, however, greater power was given to the tenant for 
 life, by an "Act to facilitate Leases and Sales of Settled Estates 3 ," 
 which, with the Acts amending it, was consolidated and improved 
 by the Settled Estates Act of 1877 4 . 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 settlement 5 ". 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 settlement 6 . 
 
 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 Act 1 , 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 incumbrances 2 . 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 runs 1 : "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 Book 1 ," 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 cotarii 1 . 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 afraid 1 ." 
 
 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 landowners 1 . 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 estates 2 . 
 
 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 glebe 1 . 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 owners 2 . 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 
 extent 1 . 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 persons 2 ; Mr Kay, who 
 does not allow for the errors of the New Domesday, estimates that 
 12,500 persons own two-thirds of the United Kingdom 3 . 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 please 1 ." 
 
 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 encumbrances 2 ." 
 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. 
 
 102 
 
148 DISADVANTAGES OF 
 
 landowner is called upon to make in order to keep his property 
 abreast of the advances in agricultural practice 1 ." 
 
 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 
 dilapidated 2 /' 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 effect 3 . 
 
 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 pleased 4 :" 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 says 5 : "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 says 1 "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 owners 2 ." 
 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 land 1 ." 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 simple 2 ." 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 says 1 : "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 them j 
 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 injustice 1 ." 
 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 
 life 1 . 
 
 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 time 1 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 land 2 . 
 
 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 estates 1 ." 
 
 1 3 Jurid. Soc. 598, from pamphlet of 1648. 
 
INDEX. 
 
 Agriculture, Early, 101105. 
 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, 15001650, 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, 1114, 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, 710, 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, 5153. 
 
 of socage lands, 95, 96. 
 
 of lands military, 95. 
 
 Executory, 109, 120122. 
 ,, 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, 2336. 
 
 ,, New, 141145. 
 
 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, 7779. 
 
 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, 5962, 
 
 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, 123133. 
 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, 153155. 
 
 Protector to the Settlement, 136. 
 
 Quia Emptores, 41, 42, 44, 65, 68. 
 
 Eecovery, Common, 7376, 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, 134138. 
 
 ,, ,, criticism on, 139. 
 Settlements, Family, 108122. 
 
 ,, origin of, 116 
 
 118, 119. 
 
 ,, Cliffe Leslie on, 135. 
 
 ,, present law of, 140. 
 
 evils of, 146158. 
 
 ,, 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, 8090. 
 
 Springing, 120. 
 
 Shifting, 120. 
 
 clerical origin of, 80. 
 
 advantages of, 84. 
 
 and Chancery, 85. 
 
 Statute of, 83, 8690, 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, 6667. 
 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. 
 
 CAMBRIDGE: FEINTED BY c. j. CLAY, M.A. & SONS, AT THE UNIVERSITY PRESS. 
 
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 each of his successive contributions to know- "We are convinced that nothing has had a 
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 this volume deal largely with the subject of the vancement of physical science." Glasgow 
 dynamics of heat. They begin with two or Herald. 
 three articles which were in part written at the 
 
 MATHEMATICAL AND PHYSICAL PAPERS, by 
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 London: C. J. CLAY &> SONS, Cambridge University Press Warehouse, 
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THE CAMBRIDGE UNIVERSITY PRESS. 13 
 
 THE SCIENTIFIC PAPERS OF THE LATE PROF. 
 
 J. CLERK MAXWELL. Edited by W. D. NIVEN, M.A. In 2 vols. 
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THE CAMBRIDGE UNIVERSITY PRESS. 15 
 
 LAW. 
 
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 THE FRAGMENTS OF THE PERPETUAL EDICT 
 
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1 6 PUBLICATIONS OF 
 
 AN INTRODUCTION TO THE STUDY OF JUS- 
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 THE COMMENTARIES OF GAIUS AND RULES OF 
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 SELECTED TITLES FROM THE DIGEST, annotated 
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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 
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 almost equally eminent German statesman. It notion of the contents of these volumes, which 
 
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 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. 
 
 Accompanied by a short narrative of events, with references to the 
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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 
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 HISTORY OF THE COLLEGE OF ST JOHN THE 
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THE CAMBRIDGE UNIVERSITY PRESS. 19 
 
 THE ARCHITECTURAL HISTORY OF THE UNI- 
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 CAMBRIDGE AND ETON, by the late ROBERT WILLIS, M.A. 
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 sale, at Twenty-five Guineas net each set. 
 
 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. 
 With six plates. Demy 8vo. los. 6d. 
 
 THE WOODCUTTERS OF THE NETHERLANDS 
 
 during the last quarter of the Fifteenth Century. In three parts. 
 I. History of the Woodcutters. II. Catalogue of their Woodcuts. 
 III. List of the Books containing Woodcuts. By WILLIAM MARTIN 
 CONWAY. Demy 8vo. los. 6d. 
 
 A GRAMMAR OF THE IRISH LANGUAGE. By Prof. 
 
 WINDISCH. Translated by Dr NORMAN MOORE. Crown 8vo. js. 6d, 
 
 LECTURES ON TEACHING, delivered in the University 
 of Cambridge in the Lent Term, 1880. By J. G. FITCH, M.A., LL.D. 
 Her Majesty's Inspector of Training Colleges. Cr. 8vo. New Edit. $s, 
 
 "As principal of a training college and as a "Therefore, without reviewing the book for 
 
 Government inspector of schools, Mr Fitch has the second time, we are glad to avail ourselves 
 
 got at his fingers' ends the working of primary of the opportunity of calling attention to the 
 
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 the late Endowed Schools Commission he has bringing it within the reach of the rank and 
 
 seen something of the machinery of our higher file of the profession. We cannot let the oc- 
 
 schools . . . Mr Fitch's book covers so wide a casion pass without making special reference to 
 
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 the best existing -vade mecum for the teacher." icle. 
 Pall Mall Gazette. 
 
 For other books on Education, see Pitt Press Series, pp. 30, 31. 
 
 London : C. J. CLA Y &> SONS, Cambridge University Press Warehouse, 
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20 PUBLICATIONS OF 
 
 FROM SHAKESPEARE TO POPE: an Inquiry into 
 
 the causes and phenomena of the rise of Classical Poetry in England. 
 By EDMUND GOSSE, M.A., Clark Lecturer in English Literature at 
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 THE LITERATURE OF THE FRENCH RENAIS- 
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 and Tutor of King's College, Cambridge. Crown 8vo. 6^. 
 
 STUDIES IN THE LITERARY RELATIONS OF 
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 A CATALOGUE OF THE MANUSCRIPTS preserved 
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THE CAMBRIDGE UNIVERSITY PRESS. 21 
 
 Camlmtrse Bible for 
 anfc Colleges* 
 
 GENERAL EDITOR : THE VERY REVEREND J. J. S. PEROWNE, D.D., 
 DEAN OF PETERBOROUGH. 
 
 " It is difficult to commend too highly this excellent series, the volumes of which are now 
 becoming numerous." Guardian. 
 
 "The modesty of the general title of this series has, we believe, led many to misunderstand 
 its character and underrate its value. The books are well suited for study in the upper forms of 
 our best schools, but not the less are they adapted to the wants of all Bible students who are not 
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 issued in this country will be found more serviceable for general use." Academy. 
 
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 The Very Reverend J. J. S. PEROWNE, D.D., Dean of Peterborough, has 
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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 
 
 of Hebrew. 
 
 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 
 
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 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. 
 Rev. W. SiMCOX, M.A., Rector of Weyhill, Hants. 
 ' W. ROBERTSON SMITH, M.A., Lord Almoner's Professor of Arabic. 
 Rev. H. D. M. SPENCE, M.A., Hon. Canon of Gloucester Cathedral. 
 Rev. A. W. STREANE, M.A., Fellow of Corpus Christi College, Cambridge. 
 
 London : C. J. CLA Y & SONS, Cambridge University Press Warehouse, 
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22 PUBLICATIONS OF 
 
 THE CAMBRIDGE BIBLE FOE SCHOOLS & COLLEGES. 
 
 Continued. 
 
 Now Ready. Cloth, Extra Fcap. 8vo. 
 
 THE BOOK OF JOSHUA. By the Rev. G. F. MACLEAR, D.D. 
 
 With i Maps. is. 6d. 
 
 THE BOOK OF JUDGES. By the Rev. J. J. LIAS, M.A. 
 
 With Map. y. 6d. 
 
 THE FIRST BOOK OF SAMUEL. By the Rev. Professor 
 
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 THE SECOND BOOK OF SAMUEL. By the Rev. Professor 
 KIRKPATRICK, M.A. With i Maps. $s. 6d. 
 
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 THE BOOK OF ECCLESIASTES. By the Very Rev. E. H. 
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 THE BOOK OF JEREMIAH. By the Rev. A. W. STREANE, 
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 THE BOOK OF HOSEA. By Rev. T. K. CHEYNE, M.A., D.D. $s. 
 
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 is. 6d. 
 
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 THE GOSPEL ACCORDING TO ST MATTHEW. By the 
 
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 THE GOSPEL ACCORDING TO ST MARK. By the Rev. 
 
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 THE GOSPEL ACCORDING TO ST LUKE. By Archdeacon 
 
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 THE GOSPEL ACCORDING TO ST JOHN. By the Rev. 
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 THE EPISTLE TO THE ROMANS. By the Rev. H. C. G. 
 
 MOULE, M.A. 3-y. 6d. 
 
 THE FIRST EPISTLE TO THE CORINTHIANS. By the Rev. 
 
 J. J. LIAS, M.A. With a Map and Plan. is. 
 
 THE SECOND EPISTLE TO THE CORINTHIANS. By the 
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 THE EPISTLE TO THE EPHESIANS. By the Rev. H. C G. 
 MOULE, M.A. is. 6d. 
 
 THE EPISTLE TO THE HEBREWS. By Arch. FARRAR. $s. 6d. 
 
 THE GENERAL EPISTLE OF ST JAMES. By the Very Rev. 
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 THE EPISTLES OF ST PETER AND ST JUDE. By the 
 
 same Editor, is. 6d. 
 
 THE EPISTLES OF ST JOHN. By the Rev. A. PLUMMER, 
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 London ; C. J. CLA Y & SONS, Cambridge University Press Warehouse, 
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THE CAMBRIDGE UNIVERSITY PRESS. 23 
 
 THE CAMBRIDGE BIBLE FOR SCHOOLS & COLLEGES. 
 
 Continued. 
 
 Preparing. 
 THE BOOK OF GENESIS. By the Very Rev. the DEAN OF 
 
 PETERBOROUGH. 
 
 THE BOOKS OF EXODUS, NUMBERS AND DEUTERO- 
 NOMY. By the Rev. C. D. GINSBURG, LL.D. 
 
 THE FIRST AND SECOND BOOKS OF KINGS. By the Rev. 
 Prof. LUMBY, D.D. 
 
 THE BOOK OF PSALMS. By the Rev. Prof. KIRKPATRICK, M.A. 
 
 THE BOOK OF ISAIAH. By Prof. W. ROBERTSON SMITH, M.A. 
 
 THE BOOK OF EZEKIEL. By the Rev. A. B. DAVIDSON, D.D. 
 
 THE EPISTLE TO THE GALATIANS. By the Rev. E. H. 
 PEROWNE, D.D. 
 
 THE EPISTLES TO THE PHILIPPIANS, COLOSSIANS 
 AND PHILEMON. By the Rev. H. C. G. MOULE, M.A. 
 
 THE BOOK OF REVELATION. By the Rev. W. SIMCOX, M.A. 
 
 THE CAMBRIDGE GREEK TESTAMENT 
 
 FOR SCHOOLS AND COLLEGES, 
 
 with a Revised Text, based on the most recent critical authorities, and 
 
 English Notes, prepared under the direction of the General Editor, 
 
 THE VERV REVEREND J. J. S. PEROWNE, D.D. 
 
 Now Ready. 
 
 THE GOSPEL ACCORDING TO ST MATTHEW. By the 
 Rev. A. CARR, M.A. With 4 Maps. 4*. 6d. 
 
 '' Copious illustrations, gathered from a great variety of sources, make his notes a very valu- 
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 Pall Mall Gazette. 
 
 THE GOSPEL ACCORDING TO ST MARK. By the Rev. 
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 to the study of the New Testament in the original . . . Dr Maclear's introduction contains all that 
 is known of St Mark's life, with references to passages in the New Testament in which he is 
 mentioned ; an account of the circumstances in which the Gospel was composed, with an estimate 
 of the influence of St Peter's teaching upon St Mark ; an excellent sketch of the special character- 
 istics of this Gospel ; an analysis, and a chapter on the text of the New Testament generally . . . 
 The work is completed by three good maps." Sat^lrday Revienu. 
 
 THE GOSPEL ACCORDING TO ST LUKE. By Archdeacon 
 
 FARRAR. With 4 Maps. 6s. 
 THE GOSPEL ACCORDING TO ST JOHN. By the Rev. A. 
 
 PLUMMER, M.A., D.D. With 4 Maps. 6s. 
 
 " A valuable addition has also been made to ' The Cambridge Greek Testament for Schools, 
 Dr Plummer's notes on ' the Gospel according to St John ' are scholarly, concise, and instructive, 
 and embody the results of much thought and wide reading." Expositor. 
 
 THE ACTS OF THE APOSTLES. By the Rev. Prof. LUMBY, D.D., 
 
 with 4 Maps. 6.r. 
 THE FIRST EPISTLE TO THE CORINTHIANS. By the 
 
 Rev. J. J. LIAS, M.A. $s. 
 
 THE EPISTLE TO THE HEBREWS. By Archdeacon FARRAR. 
 
 [In the Press. 
 THE EPISTLES OF ST JOHN. By the Rev. A. PLUMMER, 
 
 M.A., D.D. 4-r. 
 
 London : C. J. CLA r &> SONS, Cambridge University Press Warehouse, 
 Ave Maria Lane, 
 
24 PUBLICATIONS OF 
 
 THE PITT PRESS SERIES. 
 
 I. GREEK. 
 
 SOPHOCLES. OEDIPUS TYRANNUS. School Edition, 
 
 with Introduction and Commentary, by R. C. JEBB, Litt. D., LL.D., Professor 
 of Greek in the University of Glasgow. 4^. 6d. 
 
 XENOPHON. ANABASIS, BOOKS I. III. IV. and V. 
 
 With a Map and English Notes by ALFRED PRETOR, M.A., Fellow of 
 St Catharine's College, Cambridge, is. each. 
 
 " In Mr Pretor's edition of the Anabasis the text of Kiihner has been followed in the main, 
 while the exhaustive and admirable notes of the great German editor have been largely utilised. 
 These notes deal with the minutest as well as the most important difficulties in construction, and 
 all questions of history, antiquity, and geography are briefly but very effectually elucidated." The 
 Examiner. 
 
 " We welcome this addition to the other books of the Anabasis so ably edited by Mr Pretor. 
 Although originally intended for the use of candidates at the university local examinations, yet 
 this edition will be found adapted not only to meet the wants of the junior student, but even 
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 matters." The Academy. 
 
 BOOKS II. VI. and VII. By the same Editor. 2s. 6d. each. 
 
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 to Xenophon, we should esteem ourselves fortunate in having Pretor's text-book as our chart and 
 guide." Contemporary Re-view. 
 
 XENOPHON. ANABASIS. By A. PRETOR, M.A., Text 
 
 and Notes, complete in two Volumes. 7.$-. 6d. 
 
 XENOPHON. AGESILAUS. The Text revised with 
 
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 XENOPHON. CYROPAEDIA. With Introduction and 
 
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 ARISTOPHANES RANAE. With English Notes and 
 
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 ARISTOPHANES AVES. By the same Editor. New 
 
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THE CAMBRIDGE UNIVERSITY PRESS. 25 
 
 EURIPIDES. HERCULES FURENS. With Intro- 
 
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 PLUTARCH'S LIVES OF THE GRACCHI. With In- 
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 OUTLINES OF THE PHILOSOPHY OF ARISTOTLE. 
 
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 II. LATIN. 
 
 M. T. CICERONIS DE AMICITIA. Edited by J. S. 
 
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 ship of the country." Athenceum. 
 
 "A more distinct gain to scholarship is Mr Reid's able and thorough edition of the De 
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 instructive and most suggestive commentary, it would be difficult to speak too highly. . . . When 
 we come to the commentary, we are only amazed by its fulness in proportion to its bulk. 
 Nothing is overlooked which can tend to enlarge the learner's general knowledge of Ciceronian 
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 M. T. CICERONIS CATO MAJOR DE SENECTUTE. 
 
 Edited by J. S. REID, Litt. D. 3.5-. 6d. 
 
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 M. T. CICERONIS ORATIO PRO ARCHIA POETA. 
 
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 " It is an admirable specimen of careful editing. An Introduction tells us everything we could 
 wish to know about Archias, about Cicero j s connexion with him, about the merits of the trial, and 
 the genuineness of the speech. The text is well and carefully printed. The notes are clear and 
 scholar-like. . . . No boy can master this little volume without feeling that he has advanced a long 
 step in scholarship." The Academy, 
 
 M. T. CICERONIS PRO L. CORNELIO BALBO ORA- 
 
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 M. T. CICERONIS PRO P. CORNELIO SULLA 
 
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 " Mr Reid is so well known to scholars as a commentator on Cicero that a new work from him 
 scarcely needs any commendation of ours. His edition of the speech Pro Sulla is fully equal in 
 merit to the volumes which he has already published ... It would be difficult to speak top highly 
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 to a close." Satrtrday Review. 
 
 London : C. J. CLA Y &> SONS, Cambridge University Press Warehouse, 
 Ave Maria Lane, 
 
26 PUB LIC A TIONS OF 
 
 M. T. CICERONIS PRO CN. PLANCIO ORATIO. 
 
 Edited by H. A. HOLDEN, LL.D., Examiner in Greek to the University of 
 London. 4^. 6d. 
 
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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 
 by W. E. HEITLAND, M.A., and HERBERT COWIE, M.A., Fellows of 
 St John's College, Cambridge. y. 
 
 M. T. CICERONIS ORATIO PRO L. MURENA, with 
 
 English Introduction and Notes. By W. E. HEITLAND, M.A., Fellow 
 and Classical Lecturer of St John's College, Cambridge. Second Edition, 
 carefully revised. 3.5-. 
 
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 IVL T. CICERONIS IN GAIUM VERREM ACTIO 
 
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 M. T. CICERONIS ORATIO PRO T. A. MILONE, 
 
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 P. OVIDII NASONIS FASTORUM LIBER VI. With 
 
 a Plan of Rome and Notes by A. SIDGWICK, M.A., Tutor of Corpus Christi 
 College, Oxford, is. 6d. 
 
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 illustrating peculiarities of style, 
 the text." Saturday Review. 
 
 rating peculiarities of style, true and false derivations, and the more remarkable variations of 
 
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 by a practical schoolmaster." The Academy. 
 
 M. ANNAEI LUCANI PHARSALIAE LIBER 
 
 PRIMUS, edited with English Introduction and Notes by W. E. HEITLAND, 
 M.A. and C. E. HASKINS, M.A., Fellows and Lecturers of St John's Col- 
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 London : C. y. CLA Y &* SONS, Cambridge University Press Warehouse, 
 Ave Maria Lane. 
 
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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