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with which we started, and assert, that a copyholder may have (by the custom of the manor) a freehold interest, though he has not a freehold tenure.

When, in the course of the following pages, we shall have occasion to speak of "freehold," we are to be understood as signifying a certain quantity of interest in land, be the land itself of what nature or kind it may. And a freehold is this: an indeterminate legal duration of right to enjoy some immovable thing, or the issues and profits of some immovable thing,-as an estate (i. e., an interest) for a man's own life, or during the life of another, in land, or in rent issuing out of land. For the duration of existence of this right is indeterminate (it being uncertain how long the man may live,) and the enjoyment is to be of that which is immovable, or of what is to issue of that which is immovable, viz., land. Therefore, also, an estate in land for one thousand years is no freehold; but only a chattel: for there is a certain prefixed time beyond which the estate cannot possibly exist; although as the estate is an immovable thing, it is denominated a chattel real. By the same, name, and for the same reason, an estate for a certain number of years in rent, tithes, and the like, is known. And it may be laid down, that all which is not real estate, or which is not chattels real, is termed, in the law, personal, or personalty; with which we shall, at this time, have nothing to do.

Estates of freehold are either of inheritance or for life. Estates of inheritance are either in fee-simple or fee-tail.

We have shown, in our last number, the necessity of the word "heirs" in all grants, in order to create an estate in fee-simple; and that if a man by deed convey" to a man for ever," " to have and to hold to him and his assigns for ever," only an estate for life passes, for the lack of this word "heirs."

The civil law divided the land into a right to the profits, termed usufruct, which was generally an estate for life, and the absolute property termed nomen. A simple gift of the land passed the latter; but the former estate was, in order to pass, particularly described. This mode, obviously the more simple and natural, has not obtained, in our law, at least, since the introduction of tenures. So that at this day, the great absurdity prevails of language not having the effect in law which with regard to every other subject it is allowed to possess. For who in their senses, whose minds are not imbued with a knowledge of tenures, could at this day suppose, that a grant to a man to hold to him for ever, would not pass the absolute interest to him in the subject of the grant. Yet in order to prevent this absurdity, in a case which the law declares would be one of great hardship, from being carried into effect, another absurdity is resorted to. In the case of wills, this strictness is not required; but any form of words, provided they be consonant with other rules of law, have the effect of passing the feesimple. Thus we have two modes of construction in our law wholly dissimilar. And this very mode of construction, adopted with respect to wills to obviate the injustice (as they call it) which would otherwise arise in not giving effect to the intention of the maker of the will, has caused more dissimilar decisions, and consequently more uncertainty, injustice, and absurdity, than the very existence of the rule it was in

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tended to remedy. This is the result of attempting to prevent the effects of a bad system from working all the injustice it would of its own nature cause, instead of removing that system itself. Unmindful of all principle, they seem to discover no connexion between cause and effect; they seem to imagine that, to prevent a complete inundation of evils, they must endeavour to stop the stream, which, accordingly, on being opposed, by its own weight naturally overflows the country. All these evils are of feudal origin. They all spring from our glorious system of tenures. They all consist in preserving laws and customs, together with their pernicious effects, (for they were even in feudal times intolerably pernicious, every object and lawful intent of property and society being sacrificed to the one idea-the cutting of throats,) after the disgraceful causes of these, at this time, unmeaning and obnoxious laws,-together with the atrocious times for which they were made, and for which they were alone in any degree suited,-have ceased to exist. But we shall speak about wills hereafter.

We now pass to the consideration of estates in fee-tail. And, first, as to the meaning of the phrase. The expression fee-tail, or feodum talliatum, was borrowed from the feudists *, among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off, being derived from the barbarous word taliare, to cut; from which the French tailler, and the Italian tagliare are formed †, Some, however, have presumed to say, it is so called for that it is a part cut out of the whole; but of such conceits (being of modern invention) we take no notice. Here we may observe, that before the introduction of entails by the perpetuity act, which we shall presently mention, the attempts to perpetuate property, that is, to prevent the land, at any time, to be alienated, sold, or disposed of, (which, in all ages, appears to have been the wish of the aristocratic and privileged few,) by making gifts" to a man and the heirs of his body," were defeated, as the act itself dolefully recites, by the judges construing such gifts to be upon condition that the donee had issue, which condition, when once performed, (by the birth of such issue the condition itself being fulfilled) was gone, and the lands, being wholly discharged therefrom, accordingly became alienable.

The nobility, and other great men of the day, then made another attempt to perpetuate their possessions; and to that end procured the statute of Westminster the 2d., commonly called the statute de donis conditionabilis, or the statute of entails, of date the 13th year of the reign of King Edward I. It is so called "of Westminster the 2d," first, because the parliament was holden at Westminster; and 2dly, for that another parliament was formerly holden at the same place in the third year of the reign of the same king, called Westminster the 1st.; though not but that other parliaments were holden at Westminster, but these two are so called propter excellentiam. The king and the great men who made this statute were all very wise men; and all this on the authority of Lord Coke.

By this solemn act of the legislature, the power of entailing property was fully established; and a most auspicious measure this was, not merely for the nobility, but also for the noble profession of the *See Craig, 1. i., t. x., S. 24-5. + Spelm, Gloss. 531.

law for it not only allowed estates to be perpetuated, but it has perpetuated a succession of intricate points, the exposition of which is one of the most plentiful sources of revenue to a most learned and useful body of men.

This estate tail is an estate of inheritance. Every man who hath an estate of inheritance, hath (as we have seen before) either a feesimple or a fee-tail. And for this reason it requireth two manner of words to create this estate; namely, words of inheritance, and words to "mutilate, truncate," or restrict the former; for the word "heirs" alone, as was formerly observed, will carry the fee-simple. Now, the force of this word "heirs" is restrained by limiting the heirs to be "of the body" of some particular person or persons; which words, "of the body," are termed words of procreation, denoting, when connected with the given name, from whose body these particular heirs are to spring, as an estate to a man and the heirs of his body; to a man and the heirs male of his body; to a man and the heirs of his body on the body of a particular woman, to be begotten; to a man and the heirs female of his body on the body of his present wife, to be begotten, are examples of different kinds of estates tail: the first being an estate tail general, and going to all the lineal descendants of his body; the second is restricted to his male lineal descendants, and called an estate tail male general; the third going only to his lineal descendants, which should spring from the body of a particular woman, and thence called an estate tail special; the fourth, being restricted to the female lineal descendants of his body to be produced from a given venter, is emphatically termed, an estate tail female special. These are examples of the most common kinds of estates tail; the maker of which is termed in law the donor, and he to whom the estate is given is called the donee. And this estate should always be created by the words employed above: for it is to be noted, that if either words of inheritance, or words of procreation be omitted, albeit the others be inserted in the grant, it will make no estate tail." This estate tail can only descend to the lineal descendants of the donee, no collateral inheritance being allowed thereto.

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The effect of entails, however, was soon found to be extremely injurious to the interests of the community, particularly to the advancement of agriculture, as it prevented possessors who had only a life interest in the land from pursuing those extensive, and, therefore, expensive improvements, which they probably would have made, had they been entire owners of the estate. Thus cultivation was greatly retarded; besides, entails were hurtful to commerce, by preventing the quick circulation of property, and by exempting lands from being liable to the payment of debts. Such inconveniences must have made mankind in general desirous of overturning entails. But how could this be done? The barons, and other great men of the day, landholders, always exerting their influence in the state with the most disinterested views, would not consent to an act of parliament to rescind the statute de donis, for those very reasons which chiefly induced its enactment; namely, the perpetuating property, and preventing its liability to forfeiture, and the payment of debts.

At length, however, in the reign of Edward IV., after many fruitless.

attempts to repeal this statute by an act of parliament, the ingenuity of the lawyers of that age, and the finesse of the courts of law, effected that which by many had been so long desired, and which the legislature, although frequently urged, could or would never enact, and this in the very teeth of the act of parliament itself: they effected the virtual repeal of that statute which declared that the will of the donor should, from the period of its enactment, be observed; and that the tenements so given (to a man, and the heirs of his body) should, at all events, go to his issue, if there were any; or, if not, should revert to the donor -he who created the entail,-by the introduction of a fictitious process, called a recovery. From this we necessarily deduce, that, as it is an axiom with the English lawyers, as we are informed by M. de Lolme, that our parliament can do every other thing than make a woman a man, and a man a woman-the lawyers of that age, surpassing the legislature, must have been capable of adding this also to their exploits, a "thing" at times mightily convenient, the result of the execution of a power to sex and unsex at pleasure.

Recoveries owed their invention to the religious zeal of the clergy. That numerous and respectable body of men, labouring in their vocation, had been very industrious to accumulate vast extents of land, which they held as payment for masses and other religious treatment, to be performed, as they said, for the benefit of the souls of deceased penitents. Their increase of property was justly esteemed a favourable symptom of advancement in piety; these symptoms became at length too apparent. The necessity of restraining this was obvious; for as corporations, particularly those formed of the clergy, both in law and in fact, never die, had land been permitted to be limited to them without restriction, it would have been chained down for ever. Accordingly. very early in our history, even so far back as Henry III.'s, time, we find statutes to prohibit alienation to the clergy, which was called alienation in mortmain; for, as it is said in the books, they do cling to property as a drowning or dying man will to a straw. The clergy were most loth, as their representatives of this day will feelingly conceive, to part with these profitable donations. These men of religion, accordingly, for effectuating their pious frauds practised on the dying moments of "the faithful" of that age, and to elude the statute of mortmain, had recourse to the following expedient :-They set up a fictitious title to the land which it was intended they should enjoy, and for this purpose brought their action against the person from whom they were to have the land, and he designedly omitting to make any defence in the action, the religious house recovered the land by sentence of law, on the presumption of their having a better title. And this is called a recovery.

This ecclesiastical plan having however been restrained by an act of the reign of Edward I., lay dormant for more than one hundred and fifty years, when, in Henry the VI.'s reign, it was attempted to be revived, not for the use of the clergy, but for the purpose of destroying entails; for (said the lawyers of those times) though the statute de donis prevents a donee in tail from alienating his estate, it does not prevent him from resigning it up to another having a better title. In the following reign recoveries came to be investigated in our courts of law,

and they were, for the obvious reason of weakening the power of the nobility of that day, much approved of by Edward IV. himself, who, most graciously, gave clandestine countenance thereto. The process was at a subsequent date of his reign firmly established, and, as Mr. Hargrave observes, gave the death-wound to entails. For a person who now wishes to cut off an entail, has only to suffer a recovery to go against him in favour (as the practice is) of a confederate, who reconveys it to him, in pursuance of a previous arrangement; and he thus re-obtains the land, with the enlarged interest consequent upon the barring of the entail. So that, if at this day land is conveyed or devised to A., and the heirs of his body, A. is tenant in tail, and by the express declaration of the statute de donis, cannot alienate this entailed estate, but the same shall at all events go to his issue if he have any, and if not, it shall return to the donor or his heirs. Yet, by the aid of a recovery, he is enabled not only to prevent the estate from ever going to his issue, but also to cut off the person in "reversion" him who gave the estate. After this form, called a recovery, is gone through, he, to whose issue the estate was at all events to have gone, can alone, without the concurrence of any, sell it absolutely as his own, can charge it as his own, can devise by will, it will descend to his heir at law, (whether lineal or collateral,) according to our common law of descents, it is subject to his debts, and is liable to escheat to the lord of the fee. It is also subject to forfeiture for treason, to which estates tail were indeed themselves made liable. In short, an estate so situate, is generally the same as an estate in fee-simple; I say generally, because you may read in "Preston on Conveyancing," that the recovery will only acquire that extent of ownership which belonged to the donor of the estate tail.

Entails may also be barred by fines, which in the particular of being a complicated, and very expensive process, strongly resemble recoveries.

Having said thus much of recoveries and fines, as modes of evading the statute de donis, it will be well to let our readers know in what these mysterious processes really consist. And first, as to a Fine, the elder manœuvre of the two, though not employed as a bar to entails until comparatively modern times.

A Fine, then, may be described to be, according to Blackstone, an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices; whereby the lands in question become, or are acknowledged to be, the right of one of the parties. In its original, it was founded on an actual suit, commenced at law for a recovery of the possession of land, or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were, and continue to be every day, commenced, for the sake of obtaining the same security. A fine is also so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. The statute 18th Edward I., called modus levandi fines, declares and regulates the manner in which they are to be levied or carried on; which is in about the following manner :- The party, to whom the land is to be conveyed or assured, commences an action,

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