Donis, only repeated what the law of tenures had said before, that the tenor of the grant should be observed. But it appears that the courts, in compliance with the general spirit of the times, or what is more probable, unconsciously partaking of it themselves, had put upon the words constituting a fee-tail, what must be admitted to be a very subtle and strained construction. They said that such a gift as we have mentioned, to A, and the heirs male of his body, was a fee-simple, on condition subsequent, that he should have, heirs male of his body-therefore, as soon as the donee of an estate of this kind had such issue, his estate, according to the maxim of the law, that when a condition is once performed, it is thenceforth entirely gone, became absolute at least to the three following purposes:-1st. To enable him to alien the land, and so to bar not only his own issue, but the donor of his possibility of reverter. 2dly. To be liable to forfeit the estate for treason or felony. 3dly. To enable him to charge the land with rents and other incumbrances.

But it is to be remarked, that the donee of the estate did not acquire a fee-simple absolute upon the birth of issue, ipso jure. For if he did not alter the course of the descent by alienating the estate and taking it back, as was the practice, it went down according to the form of the gift to the class or description of heirs designated by the donor-and if they, in like manner, neglected to alien it, the donor was not barred of his right of reverter.* And it has recently been decided in this State, that a tenant in fee conditional, cannot disappoint his issue, by devise; their right, like the jus accrescendi in joint tenancy, being in the eye of the law antecedent and paramount to any that could arise by will.

It was with a view to obviate the effect of the construction thus put upon the words creating a fee-conditional, that the nobility procured the statute De Donis to be passed. By this statute, a gift to a man and the heirs male of his body, was made to convey to him an estate of inheritance, descendible to the particular class of heirs designated by the donor, to be enjoyed by each successive generation of heirs as they came in esse, without being liable to be defeated or barred by any one of them who might be in possession. So much for its effect upon the rights of the heir. With respect to those of the donor, the statute vested in him an indefeasible reversion in the lands, expectant on the determination of the estate-tail, instead of a mere possibility of reverter, which was all he had in fee-conditionaland as for the means of asserting his right, he was no longer

7. Rep. 34, 1. Inst, 19, a

under the necessity of making formal entry to defeat the gift, as it was necessary to do in all estates upon condition; but the estate, upon failure of issue of the donee, returned to him by mere act of law, according to the form of original limitation. Upon this view of the disposition made by the statute, the judges held that it had created in the donee a particular estate; that is, an estate less than the fee, which, as it left a vested reversion in the donor, enabled him to make a further gift of that reversion by way of remainder over.

The entails thus introduced, so enormously increased the wealth and power of the nobles, that they were enabled to trample at once upon the rights of the people and the prerogatives of the crown.

But although these effects were long felt, yet the progress of commerce, the luxury introduced by it, into which the nobility, always disposed to be prodigal, heedlessly rushed-and no doubt the secret jealousy of the kings, to whom the pretensions of the great lords could not but be offensive, if not dangerous— all conspired to bring about an alteration of the law in this point. This was not done at first by act of Parliament, but as we have seen, that a construction favourable to the free alienation of property had been put upon the fee-conditional by the courts, so the attack upon these entails by statute, was begun in the same way. For on the one hand, the judges discouraged all new devices for new species of entails, as we learn from Lord Coke ;* and on the other, such contrivances as had been resorted to to elude the old entails, were sustained. Until at length it was solemnly decided in the reign of Edward IV. (Taltarum's case) that the tenant might bar not only his issue, but the reversion of the donor by the collusive suit called a common recovery.‡

That politic and tyrannical prince, Henry VII., pushed this matter still further. He procured a statute to be passed in the fourth year of his reign (4 Henry VII. c. 24) which explained

1. Inst. 377.

Bac. Abr. Fine and Recovery, p. 541.

6. Rep. 40. (Sir Anthony Mildmay's case.) Lord Coke says, that the mischief arising out of entails were attempted to be remedied at divers Parliaments, and divers bills were exhibited accordingly, (which I have seen) but they were always on one pretence or other rejected. But the truth was, that the Lords and Commons knowing that their estates-tail were not to be forfeited, &c. as their estates of inheritance were before the said act, (and chiefly in the time of Henry III. in the Barons' War) they always rejected such bills-and the same continued in the residue of the reign of Edward I. and of the reigns of Edward II. Edward III. Richard II. Henry IV. Henry V. and Henry VI. and till about the twelfth year of Edward IV. (1464-1482.) Where the judges, on consultation had, amongst themselves, resolved that an estate-tail might be docked and barred by a common recovery, and that by reason of the intended recompense, the common recovery was not within the restraint of the said perpetuity made by the said act, 13 Edward L.

and confirmed by (82 Henry VIII. c. 36) in fact repealed the statute De Donis, by making a fine with proclamation, to conclude all persons claiming under the conusor. According to the statute De Donis, a fine was to be ipso jure, null; whereas, by the statute Henry VII. a fine was made valid to bar the issue in tail. The form of a recovery had been that of a collusive suit and judgment-that of a fine, was a collusive suit and compromise.

2dly. Although in the order of nature, involuntary alienation, by attachment of law, precedes voluntary alienation by will, yet we shall first treat of the latter.

It is plain that the idea of a posthumous disposition of property is a more refined one than that of a right to make any use of it during the life of the proprietor. Accordingly, we find that until Solon permitted them, the Athenians could not make testaments, and the only mode by which the Romans were allowed to do so before the time of the XII. Tab. was by a solemn act of legislation, whereby the whole people in the Comitia Calata, during the life of the testator, approved of the substituting of a testamentary in the place of the natural heir, by a species of adoption. But, as Dalrymple observes, there is a long interval in the progress of society, between such alienation mortis causá, as is made good by delivery during life, and that alienation which is made good by barely notifying one's wish as to what disposition shall be made of his estate after his death. And, accordingly, as in the ancient Roman law, so in the English, alienation, of this sort, was an intermediate step between the absence of all testamentary power over property, and that unlimited extent of it which is, at present, allowed by our jurisprudence.

There seems to be no doubt but that devises of land were common among the Saxons, who probably followed in this matter, the usage which had been established in Britain during the Roman domination in that island. But, according to Mr. Hargrave, who has given a concise but very satisfactory history of this part of the law;* after the Norman conquest, the power of devising land ceased, except as to socage lands in some cities and boroughs, and also, except as to terms for years, which, on account of their original insignificance and insecurity, were reckoned as personalty, and as such, were ever disposeable by will. This limitation of testamentary power over property, resulted, of course, from the principles of the feudal system, established by the conqueror-but, no doubt, the natural obstacles to that power, which have been adverted to, contributed to produce that effect. For, by the statute Quia Emptores Terrarum, the feudal

*Co. Lit. b. iii. n. 138.

+ Lit. 5, 167,

bar to this species of alienation was removed-yet, it was not until upwards of two centuries were elapsed, that full scope was given to it by the Statute of Wills. Meanwhile, however, partly by the interposition of the courts, partly by the devices of lawyers, the dominion over property, which is so necessary in a commercial and advanced state of society, was gradually enlarged in this, as it had been in other respects. For, soon after the statute Quia Emptores, feoffients to uses having come into fashion, last wills were enforced in chancery as good declarations of the use; and thus, the power of devising was, in effect and reality, though indirectly, exercised. At length, however, this practice was checked, not accidentally, but designedly, by the Statute of Uses (27 Henry VIII.) which, by transferring the possession or legal estate to the use and consolidating them into one, had the effect of totally destroying all distinction between them. But public opinion was too strong for the Legislature, which a few years after they had thus interposed to restrain an indirect mode of passing lands by will, expressly made it devisable by 32 & 34 Henry VIII. And it being the better opinion that these statutes did not extend to estates pur auter vie in freehold lands, this defect was supplied by 29 Car. II. c. 3, which makes them devisable in the same manner as estates in fee simple.

By the law, therefore, as it exists at present, there is no restraint or limit, whatsoever, upon the power of devising lands. 3dly. It remains for us to dispose of the history of involuntary alienation.

Upon this, as upon every other mode of alienation, the feudal system imposed, at first, a complete restraint. At common law, therefore, all that a creditor could look to for the satisfaction of his debt or damages, was, except in some special instances, the goods and chattels of the debtor, and the profits of his lands. Hence, the law allowed him the fieri facias against the goods and chattels of the debtor, and the levari facias against his goods and the rents and profits of his lands as they accrued, until the debt was satisfied. At the common law, therefore, neither the person nor the lands of the debtor were liable to be attached for debt. The first statute by which a debtor was subjected to imprisonment by capias ad satisfaciendum, was the 25 Edward III. c. 17, whereby that process was given in actions of debt, detinue, &c. His lands, however, had been rendered liable at a much earlier period, for the statute Westminster 2., 13 Edw. I. c. 18. granted the writ of elegit, by which the defendant's goods and chattels are delivered to the creditor at an appraised value, and if they are not sufficient, then the moiety of the freehold lands of the debtor are delivered to the creditor, to be retained

until the debt is levied, or the debtor's interest in the land is expired. Afterwards, by statute 13 Edward I., a merchant might cause his debtor to appear before the mayor of London, &c., and there acknowledge his debt. This was called a recognizance. If this recognizance was forfeited, by non-payment, at the time appointed, the body, lands and goods of the debtor were to be delivered to the merchant creditor, in execution. This process was called an extent, because the sheriff was bound before he delivered them to the creditor, to have them appraised at their full or extended value. By the 27 Edward III. a similar remedy was granted to those whose debts were acknowledged before the mayor of any of the towns where the staple was held. These securities are generally called statutes merchant and statutes staple. They were, at first, confined to the commercial part of the community, and it was not until the 23 Henry VIII. that a similar remedy was extended to all other classes of the community by a recognizance in the nature of a statute staple. This makes good the assertion of Dalrymple, (p. 116) "that as the voluntary alienation of land was first freely introduced among trading people in boroughs, so the involuntary alienation of it was first freely introduced among the same people in the same places." The bankrupt laws, in England, have proceeded upon the same principle, making the land property of merchants and other traders generally liable, while, with respect to debts due by other persons, the old distinction introduced by the feudal law, still prevails, with some qualification, even at this day.— That is, that whilst the assets, in the hands of the executor, are liable for all the obligations of what kind soever, the assets in the hands of the heir are liable only to debts of record and debts by specialty, in which the heir is named-to the former, because the process of the court creates a lien on the lands themselves; to the latter, because the heir is comprehended, by fiction of law, in the original contract. For the ancestor's debts, by simple contract, the heir still remains not liable.

We shall conclude with the following passage of an ingenious writer, to whom we acknowledge ourselves very much indebted in the course of the preceding remarks:

"The feudal law," says Dalrymple, "carries with it not only a system of private rights, which swallow up all others, wherever it comes; it involves too, in giving effect to those rights, a system of forms which remain even when the original rights are no more. Nor is this all, for some of these rights, by the force which each gave once to the other remain, even when most of the forms have perished too; but the day will probably come, when all land becoming allodial, and the more complete and easy attachment of it becoming necessary, the rule of the Roman empe