Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Freehold Estates, of Inheritance
THE next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant has therein: so that if a man grants all his estate to another and his heirs, every thing that he can possibly grant shall pass thereby.1 It is called in Latin, status; it signifying the condition, or circumstance, in which the owner stands, with regard to his property. And, to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement: secondly, with regard to the time at which that quantity of interest is to be enjoyed: and, thirdly, with regard to the number and connections of the tenants.
FIRST, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him: or it is circumscribed within a certain number of years, month, or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occasions the primary division of estates, into such as are free hold, and such as are less than freehold.
AN estate of freehold, liberum tenementum, or franktenement, is defined by Britton2 to be “the possession of the soil by a freeman.” And St.Germyn3 tells us, that “the possession of the land is called in the law of England the franktenement or free-hold.” Such estate therefore, and no other, as requires actual possession of the land, is legally speaking freehold: which actual possession can, by the course of the common law, be only given by the ceremony called livery of seizin, which is the same as the feudal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seizin; or, in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton,4 that where a freehold shall pass, it behooves to have to have livery of seizin. As therefore estates of inheritance and estates for life could not by common law be conveyed without livery of seizin, these are properly estates of freehold; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates.
ESTATES of freehold then are divisible into estates of inheritance, and estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail.
1. TENANT in fee-simple (or, as he is frequently styled, tenant in fee) is he that has lands, tenements, or hereditaments, to hold to him and his heirs for ever;5 generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feudum) is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium;6 which latter the writers on this subject define to be every man’s own land, which he possesses merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof has absolutum et directum dominium [absolute and direct ownership], and therefore it is said to be seized thereof absolutely in dominico suo, in his own demesne. But feudum, or fee, is that which is held of some superior, on condition or rendering him service; in which superior the ultimate property of the land resides. And therefore Sir Henry Spelman7 defines a feud or fee to be the right which the vassal or tenant has in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England has;8 it being a received, and now undeniable, principle in the law, that all the lands in England are held mediately or immediately of the king. The king therefore only has absolutum et directum dominium;9 but all subject’s lands are in the nature of feudum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs, which were laid upon the first feudatory when it was originally granted. A subject therefore has only the usufruct, and not the absolute property of the soil; or, as Sir Edward Coke expresses it,10 he has dominium utile, but not dominium directum. And hence it is that, in the most solemn acts of law, we express the strongest and highest estate, that any subject can have, by these words; “he is seized thereof in his demesne, as of fee.” It is a man’s demesne, dominicum, or property, since it belongs to him and his heirs for ever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feudal: it is his demesne, as of fee; that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.
THIS is the primary sense and acceptation of the word fee. But (as Sir Martin Wright very justly observes11) the doctrine, “that all lands are held,” having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and, when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as, a fee, or, a fee-simple) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seized in fee, he being the feudatory of no man.12
TAKING therefore fee for the future, unless where otherwise explained, in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal.13 But there is this distinction between the two species of hereditaments; that, of a corporeal inheritance a man shall be said to be seized in his demesne, as of fee; of an incorporeal one he shall only be said to be seized as of fee, and not in his demesne.14 For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses,15 their owner has no property, dominicum, or demesne, in the thing itself, but has only something derived out of it; resembling the servitudes, or services, of the civil law.16 The dominicum or property is frequently in one man, while the appendage or service is in another. Thus Gaius may be seized as of fee, of a way going over the land, of which Titius is seized in his demesne as of fee. The fee-simple or inheritance of lands and tenements is generally vested and resides in some person or other; though diverse inferior estates may be carved out of it. As if one grants a lease for twenty one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet sometimes the fee may be in abeyance, that is (as the word signifies) in expectation, remembrance, and contemplation of law; there being no person in esse, in whom it can vest and abide; though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est haeres viventis [no one is the heir of the living]: it remains therefore in waiting, or abeyance, during the life of Richard.17 This is likewise always the case of a parson of a church, who has only an estate therein for the term of his life: and the inheritance remains in abeyance.18 And not only the fee, but the freehold also, may be in abeyance; as, when a parson dies, the freehold of his glebe is in abeyance, until a successor be named, and then it vests in the successor.19
The word, heirs, is necessary in the grant or donation in order to make a fee, or inheritance. For if land be given to a man for ever, or to him and his assigns for ever, this vests in him but an estate for life.20 This very great nicety about the insertion of the word “heirs” in all feoffments and grants, in order to vest a fee, is plainly a relic of the feudal strictness: by which we may remember21it was required, that the form of the donation should be punctually pursued; or that, as Crag22 expresses it, in the words of Baldus, “donationes sint stricti juris, ne quis plus donasse praesumatur quam in donatione expresserit.” [“Donations should be construed strictly, lest any one be presumed to have given more than is expressed in the donation.”] And therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee’s estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened by exceptions.23
For, 1. It does not extend to devises by will; in which, as they were introduced at the time when the feudal rigor was apace wearing out, a more liberal construction is allowed: and therefore by a devise to a man for ever, or to one and his assigns for ever, or to one in fee-simple, the devisee has an estate of inheritance; for the intention of the devisor is sufficiently plain from the words of perpetuity annexed, though he has omitted the legal words of inheritance. But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devisor intended any more. 2.Neither does this rule extend to fines or recoveries, considered as a species of conveyance; for thereby an estate in fee passes by act and operation of law without the word “heirs:” as it does also, for particular reasons, by certain other methods of conveyance, which have relation to a former grant or estate, wherein the word “heirs” was expressed.24 3. In creations of nobility by writ, the peer so created has an inheritance in his title, without expressing the word, “heirs;” for they are implied in the creation, unless it be otherwise specially provided: but in creations by patent, which are stricti juris [of strict right], the word “heirs” must be inserted, otherwise there is no inheritance. 4. In grants of lands to sole corporations and their successors, the word “successors” supplies the place of “heirs;” for as heirs take from the ancestor, so does the successor from the predecessors. Nay, in a grant to a bishop, or other sole spiritual corporation, frankalmoign, the word “frankalmoign” supplies the place of both “heirs” and “successors,” ex vi termini [from the strict sense]; and in all these cases a fee-simple vests in such sole corporation. But, in a grant of lands to a corporation aggregate, the word “successors” is not necessary, though usually inserted: for, albeit such simple grant be strictly only an estate for life, yet, as that corporation never dies, such estate for life is perpetual, or equivalent to a fee-simple, and therefore the law allows it to be one.25 Lastly, in the case of the king, a fee-simple will vest in him, without the words “heirs” or “successors” in the grant; partly from prerogative royal, and partly from a reason similar to the last, because the king in judgment of law never dies26 But the general rule is, that the word “heirs” is necessary to create an estate of inheritance.
II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts: 1. Qualified, or base fees; and 2. Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute de donis [of gifts].
I. A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is entirely defeated. So, when Henry VI granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; here John Talbot had a base or qualified fee in that dignity;27 and the instant he or his heirs quitted the seigniory of this manor, the dignity was at an end. This estate is fee, because by possibility it may endure for ever in a man and his heirs; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee.
2. A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others: “donatio stricta et coarctata;28 sicut certis haeredibus, quibusdarn a successione exclusis” [“a strict and limited donation; as to certain heirs, others being excluded from the succession”]: as, to the heirs of a man’s body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or, to the heirs male of his body, in exclusion both of collaterals, and lineal females also. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all grants whatsoever; that on failure of the heirs specified in the grant, the grant should be at an end, and the land return to its ancient proprietor.29 Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon laws.30
Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift (to a man and the heirs of his body) was a gift upon condition, that it should revert to the donor, if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee-simple, on condition that he had issue. Now we must observe, that, when any condition is performed, it is thenceforth entirely gone; and the thing, to which it was before annexed, becomes absolute, and wholly unconditional. So that, as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for these three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion.31 2. To subject him to forfeit it for treason: which he could not do, till issue born, longer than for his own life; left thereby the inheritance of the issue, and reversion of the donor, might have been defeated.32 3. To empower him to charge the land with rents, commons, and certain other encumbrances, so as to bind his issue.33 And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor’s reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition: for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simple took care to aliene as soon as they had performed the condition by having issue; and afterwards re-purchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees: which things, says Sir Edward Coke,34 though they seem ancient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and therefore remain as at the common law.
The inconvenience, which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse, (for such it undoubtedly was) in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second35 (commonly called the statute de donis conditionalibus [of conditional gifts]) to be made; which pays a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revives in some sort the ancient feudal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor.
Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal, the instant any issue was born; but the divided the estate, which they denominated a fee-tail;36 and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion.37 And hence it is that Littleton tells us,38 that tenant in fee-tail is by virtue of the statute of Westminster the second.
Having thus shown the original of estates-tail, I now proceed to consider, what things may, or may not, be entailed under the statute de donis. Tenements is the only word used in the statute: and this Sir Edward Coke39 expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which favor of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same; as, rents, estovers, commons, and the like. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed.40 But mere personal chattels, which favor not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels; nor an annuity, which charges only the person, and not the lands, of the grantor. But in them, if granted to a man and the heirs of his body, the grantee has still a fee conditional at common law, as before the statute; and by his alienation may bar the heir or reversioner.41 An estate to a man and his heirs for another’s life cannot be entailed;42 for this is strictly no estate of inheritance (as will appear hereafter) and therefore not within the statute de donis. Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord: but, by the special custom of the manor, a copyhold may be limited to the heirs of the body;43 for here the custom ascertains and interprets the lord’s will.
Next, as to the several species of estates-tail, and how they are respectively created. Estates-tail are either general, or special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten: which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate-tail, per formam doni [by form of the gift].44 Tenant in tail-special is where the gift is restrained to certain heirs of the donee’s body, and does not go to all of them in general. And this may happen several ways.45 I shall instance in only one: as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten; here no issue can inherit, but such special issue as is engendered between them two; not such as the husband may have by another wife: and therefore it is called special tail. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee; but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited, on whom such heirs shall be begotten, (viz. Mary his present wife) this makes it a fee-tail special.
Estates, in general and special tail, are farther diversified by the distinction of sexes in such entails; for both of them may either be in tail male or tail female. As if hands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor, e converso [on the other hand], the heirs male, in case of a gift in tail female.46 Thus, if the donee in tail male has a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by heirs male.47 And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man has two estates-tail, the one in tail male, the other in tail female; and he has issue a daughter, which daughter has issue a son; this grandson can succeed to neither of the estates: for he cannot convey his descent wholly either in the male or female line.48
As the word heirs is necessary to create a fee, so, in farther imitation of the strictness of the feudal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs.49 So, on the other hand, a gift to man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they shall issue.50 Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of expression.51
There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libero maritagio, or frankmarriage. These are defined52 to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee.53
The incidents to a tenancy in tail, under the statute Westm. 2. are chiefly these.54 1. That a tenant in tail may commit waste on the estate-tail, by stealing timber, pulling down houses, or the like, without being impeached, or called to account, for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. 4.That an estate-tail may be barred, or destroyed, by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.
Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott55) occasioned infinite difficulties and disputes.56 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 color of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payments, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent books are full: and treasons were encouraged; as estates-tail were not liable to forfeiture, longer 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.57 But, as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it.
About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV: which were then openly declared by the judges to be a sufficient bar of an estate tail.58 For though the courts had, so long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected upon these principles,59 yet it never was carried into execution; till Edward IV observing60 (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had no families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum’s case to be brought before the court:61 wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. What common recoveries are, both in their nature and consequences, and why they are allowed to be a bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus [pious fraud], to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and, that these recoveries, however clandestinely begun, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament62 have by a sidewind countenanced and established them.
This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritance, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently re-settled in a similar manner to suit the convenience of families, had address enough to procure a statute,63 whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason.
The next attack which they suffered, in order of time, was by the statute 32 Hen. VIII. c. 28. whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines,64 by the statute 32 Hen. VIII. c. 36. which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII, whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favorably as possible for the defeating of entailed of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 & 35 Hen. VIII. c. 20. which enacts, that no feigned recovery had against tenants in tail, where the estate was created by the crown,65 and the remainder or reversion continues still in the crown, shall be of any force or effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned.
Lastly, by a statute of the succeeding year,66 all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as, since, by the bankrupt laws,67 they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4. an appointment68 by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.
Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and, lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce.
1. Co. Litt.345.
3. Dr & Stud.b.2.d.22.
4. § 59.
5. Litt. 1.
6. See pag. 45, 47.
7. of feuds, c.1.
8. Co. Litt. 1.
9. Praedium domini regis est directum dominium, cujus nullus est author nisi Deus. [The estate of the king is direct ownership, of which God alone is the author.] Ibid.
12. Co. Litt. 1.
13. Feodum est quod quis tenet sibi et haeredibus suis, sive sit tenementum, sive reditus, &c. [A fee is that estate which a man holds to himself and his heirs, whether it be a tenement or a rent.] Flet. l. 5. c. 5. § 7.
14. Litt. § 10.
15. See pag. 20.
16. Servitus est jus, quo res mea alterius rei vel personae servit. [Service is that right by which my estate is answerable to the estate or person of another.] Ff.8.1.1.
17. Co. Litt. 342.
18. Litt. § 646.
19. Litt. § 647.
20. Litt. § 1.
21. See pag. 56.
22. l. 1. t. 9. § 17.
23. Co. Litt. 9, 10.
24. Ibid. 9.
25. See Vol. I. Pag. 472.
26. Ibid. 242.
27. Co. Litt. 27.
28. Flet. l. 3. c. § 5.
29. Plowd. 241.
30. Si quis terram haereditariam habeat, eam non vendat a cognatis haeredibus suis, si illi viro prohibitum sit, qui eam ab initio acquisivit, ut ita facere nequeat. [He who possesses an hereditary estate may not, by sale, deprive his heirs by consanguinity of it, if he be prohibited from so doing by him who first acquired the land.] LL. Aelfred. C. 37.
31. Co. Litt. 19. 2 Inst. 233.
32. Co. Litt. Ibid. 2 Inst. 234.
33. Co. Litt. 19.
34. 1 Inst. 19.
35. 13 Edw. I. C. i.
36. The expression fee-tail, or feudum talliatum, was borrowed from the feudists; (See Crag. L. t. 10. § 24, 25.) among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off; being derived from the barbarous verb taliare, to cut; from which the French tailler and the Italian tagliare are formed. (Spelm. Gloss. 531.)
37. 2 Inst. 335.
38. § 13.
39. IInst. 19, 20.
40. 7 Rep. 33.
41. Co. Litt. 19, 20.
42. 2 Vern. 225.
43. 3 Rep. 8.
44. Litt. § 14, 15.
45. Litt. § 16, 26, 27, 28, 29.
46. Ibid. § 21, 22.
47. Ibid. § 24.
48. Co. Litt. 25.
49. Co. Litt. 20.
50. Litt. § 31. Co. Litt. 27.
51. Co. Litt. 9. 27.
52. Litt. § 17.
53. Ibid. § 19, 20.
54. Co. Litt. 224.
55. Com. Recov. 5.
56. 1 Rep. 131.
57. Co. Litt. 19. Moor. 156. 10 Rep. 38.
58. 1 Rep. 131. 6 Rep. 40.
59. 10 Rep. 37, 38.
60. Pigott. 8.
61. Year Book. 12 Edw. IV. 14. 19. Fitzh. Abr. tit. faux recov. 20. Bro. Abr. ibid. 30. tit. Recov. In value. 19. tit. Taile. 36.
62. 11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 34 & 35 Hen. VIII. c. 20. 14 Eliz. C. 8. 4 & 5 Ann. c. 16. 14. Geo. II. 20.
63. 26 Hen. VIII. c. 13.
64. 4 Hen. VII. c. 24
65. Co. Litt. 372.
66. 33 Hen. VIII. c. 39. § 75.
67. Stat. 21 Jac. I. C. 19.
68. 2 Vern. 453. Chan. Pree 16