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CHAPTER 5: THE RISE OF THE ENTAIL - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE RISE OF THE ENTAIL
As we have seen,1 it was possible under Anglo-Saxon law to impose limitations upon bookland which resemble the entail rather closely. There is no evidence, however, that this practice survived much later than the Conquest, or that it was used to any considerable degree even in Anglo-Saxon times. We have also remarked that one of the most frequent occasions for alienating land was the establishment of a younger branch of the family, and particularly the endowment of a daughter. It is in this latter that the origin of the entail must be sought.
The maritagium or “marriage” was a post-Conquest institution which in the course of time took fairly definite form as the result of many years of custom.2 The terms and incidents of a maritagium were perfectly well known and in many cases were not embodied in any written document. We do find a few examples, however, of deeds from the twelfth century which show us the principal characteristics of the gift in free marriage, and confirm Glanvill’s words. In the twelfth century the gift in maritagium seems regularly to declare that the donor gives the lands in question together with his daughter to the donee in frank marriage—it is worth noting that the earliest forms are gifts to the husband alone and not to the wife nor the two jointly.3 From Glanvill we learn the conditions attaching to such a gift. He tells us4 that if the marriage is “free”, the feudal services will not be due (for it is clear that he contemplates the establishment of frank marriage by means of subinfeudation). Feudal services, however, will revive at the moment the third heir enters. The descent of frank marriage seems already in Glanvill’s day to have followed the same canon as the thirteenth century would have expressed in the formula “to A. and B. and the heirs of their bodies”. As soon as the third heir enters feudal services revive—and clearly the presumption is that by this time (three generations average one hundred years) the new family will become established and perfectly capable of performing feudal services.
THE EFFECT OF HOMAGE ON MARITAGIUM
Glanvill also tells us that the third heir is the first one who shall do homage (whether the marriage is free or not) which henceforth shall be due from all his heirs. The reason for this is that while homage has not been done there will always be the possibility of the land reverting to the donor upon the extinction of the donee’s line. When, however, homage has been taken upon the entry of the third heir the lord becomes bound to warrant and his reversion is therefore destroyed.1 The evidence all goes to show that these feudal technicalities were imposed upon an older institution2 whose characteristics apparently were heritability by a limited class of heirs, failing which there would be a reversion to the donor unless three heirs in succession had entered; in the latter case the gift became unrestricted and the reversion was destroyed. Glanvill does not say so, but it would rather seem that until the third heir had entered the maritagium could not be alienated;3 it is only by supposing some such rule as this that the provisions concerning feudal service and the reversion take a consistent shape. Glanvill furthermore assures us that until homage has been taken the tenants are in a particularly weak position, since the donor and his heirs are not yet bound to warrant. This seems to be a difficulty created by applying feudal rules to an institution which was really more ancient. In order to circumvent it the constitution of a maritagium was accompanied by a pledge of faith binding the donor and his heirs to maintain the arrangement. Now the pledge of faith was a purely ecclesiastical affair—a ceremony whereby the promisor put into pledge or pawn his hopes of future salvation as security for the performance of his obligations. Over such matters the Church courts had competence, and so litigation concerning a maritagium which involved the relationship between the donor and the donee could take place in ecclesiastical as well as in royal courts. It may be remarked that here as at many other points the Church exercised a powerful influence in insuring the stability of the family by securing an adequate economic foundation for each new family. As we shall see later on, the Church also used its influence to secure proper dower rights for the sustenance of widows. Finally, Glanvill informs us that “when a man has received lands with his wife in marriage” they shall revert to the donor after the death of the wife unless issue has been born alive; it is not necessary that it should have survived. This rule bears an obvious resemblance to the more general rule of “curtesy”, but for our purpose its importance lies in the fact that until the birth of issue the husband’s estate is very slender; it would be quite easy for a husband to get the impression that as far as he was concerned the gift only became a really valuable one upon the birth of issue. From this it would be a very short step to the theory that such a gift was really conditional upon the birth of issue—and this idea was to play an important part in the future.
EVOLUTION OF THE ENTAIL
In the period between Glanvill and Bracton we get an increase in the use of written documents and considerable variety in their forms. Instead of conveying an interest which is described simply as a maritagium, donors set out in detail the principal points of the arrangement. We therefore find gifts to the man alone, or to the woman alone, or to both of them jointly, and the descent limited to the heirs or to the heirs of the body of either or both, according to the fancy of the donor. It is during the same period, moreover, that we find the appearance of some other forms of gifts which we believe must be regarded as derived, or imitated, from the maritagium. The maritagium was the first institution (other than life estates) in which a reversion was saved, and it may very well be that donors would wish to devise some other means whereby a reversion could be saved, which could be used in other circumstances than those under which the maritagium was normally constituted. This is the explanation for the rise and early history of the entail. The most striking feature of the maritagium was the reversion to the donor upon the failure of the descendants of those whom he wished to benefit,1 and the entail was an attempt to extend this characteristic to gifts which were not to be confined within the traditional bounds of the maritagium, and, indeed, which might be entirely unconnected with any marriage.
Numerous difficulties arose. The only body of rules then in existence had been developed in connection with the maritagium. They were admirably devised for the purpose of governing property given to a new household in the expectation that it would become a permanent family, but when they were applied to these other situations they worked confusion and mischief. In the midst of this confusion Bracton was writing, and it must be said that he did nothing to make it clearer. He begins by stating an excellent principle; all the limitations expressed in the gift (which taken together he calls the modus) must govern the gift, “for the modus will override common law because a modus and a covenant restrain the law”.1 If this principle had been observed, then the newer forms of gifts which we have described would have presented little difficulty. A gift to A. and the heirs of his body would have been construed along simple and fairly obvious lines. But Bracton immediately vitiates his principle by introducing implied conditions, and consequently the modus will not prevail in actual practice, for the law will presume a number of implied conditions which the donor did not express and probably did not contemplate.
There is no doubt that in this passage Bracton has had in mind certain portions of Roman law on the matter of conditional gifts. It would be unfair, however, to accuse Bracton, personally, of using his Roman learning in a place where it did not belong. If Bracton treated these gifts as conditional it is because he had some grounds for doing so in contemporary opinion, and there is no evidence that Bracton was the originator of the doctrine.2 We have already suggested that such an opinion might easily arise in connection with the maritagium, for the husband’s estate under this arrangement depended to a very large degree upon the birth of issue, and he might very naturally have regarded it as being conditional upon that event. So, too, the donor might likewise have imagined that his gift was in a sense conditional, for it is natural that he should intend the gift to be the foundation of a new family, and if that family did not become established, then the gift should revert to the donor. To him, also, the maritagium may therefore have looked very much like a gift conditional upon the birth of issue. Then, too, it must be remembered that in practice the donor may often have remained in possession, so that the donees did not get seisin until later. This was convenient, no doubt, but risky;3 but once again, donors might easily get the impression that a maritagium was not a complete gift unless the donees founded a family. In view of all this Bracton not unnaturally looked to his Roman books for light upon the treatment of conditional gifts, for in Bracton’s day the English law was evidently very unsettled; the traditional maritagium was undergoing numerous variations and donors were devising all sorts of fancy limitations, while many gifts containing limitations of this sort could hardly be described as maritagia at all.
BRACTON ON CONDITIONAL FEES
Bracton begins his discussion by the somewhat fruitless classification of practically every sort of gift which is not in fee simple as a conditional gift, throwing together in one category the maritagium, gifts to religious houses, to bastards, gifts for life, for years and fee farm.1 This, of course, is not very helpful. He then proceeds to say that the modus will control the line of descent and exclude heirs of any class except those named in the modus, while upon the failure of the prescribed class of heirs there will be a reversion to the donor, which if it is not expressed in the deed will be based upon an implied condition—which is Bracton’s way of saying in Roman terms that as a matter of custom there always has been a reversion in such cases, and that it is part of the legal institution of the maritagium and need not be set forth specially in the deed. He then proceeds to develop this curious theory: a gift to A. and the heirs of his body by a particular wife (an example of a maritagium) gives to A. a life estate only until the birth of an heir; upon that event the life estate swells to a fee simple; if the heir predeceases the donee that fee simple will shrink to a life estate. On the other hand, a gift to “A. and his heirs if he have heirs of his body”, once it has become a fee simple upon the birth of an heir,2 will never shrink to a life estate again on the failure of that heir; the reason for this, it seems, lies in the fact that the former gift must be construed as a maritagium whose aim is to endow an enduring family, while the second is expressly conditional. Consequently, the eventual failure of issue in the case of a maritagium reduces the donee’s estate to a life interest, thereby assuring the reversion after the death of the wife and of the husband (who will be entitled to a sort of curtesy even although the issue has failed).
MARITAGIA BECOME ALIENABLE
Bracton’s most striking remarks are on the subject of the alienability of the maritagium. The donee has only a life estate until issue is born; but then—
“if heirs of the prescribed class are born, they only are called to the succession; and if the feoffee has alienated to someone else, that alienation is good and his heirs will be bound to warrant, since they can claim nothing save by succession and descent from their parents—although some people think that they were enfeoffed at the same time as their parents, which is not true.”1
It certainly seems that Bracton here lets technical rules defeat the modus whose power he so highly praised on this very page, for he uses the rule that “heirs” is a word of limitation to enable the donee to alienate so as to disinherit the heirs. This clearly defeats the intention of the donor and flouts the modus. Bracton’s Romanism is not to blame, for it is clear that his learned language is merely expressing the state of contemporary English law.2 At the moment he was writing, the insurgent barons had drawn up a list of grievances (called the Petition of the Barons, 1258), c. 27, in which we have this complaint:
“The barons pray remedy concerning the alienation of maritagia in such cases as this: If one give a carucate of land with his daughter or sister in marriage to have and to hold to them and the heirs issuing of the said daughter or sister in such wise that if the said daughter or sister die without heir of her body the land shall wholly revert to the donor or his heirs, although the said gift is not absolute but conditional, yet women after the death of their husbands give or sell the said maritagium during their widowhood and make feoffments thereof at their will although they have no heirs of their body, nor have such feoffments so far been in any way revocable (by the donor). Wherefore the barons pray remedy that out of the equity of the law there be provided a remedy to recall such feoffments by reason of the said condition either by a writ of entry or in some other competent manner and that in such cases there should be judgment for the demandant.”3
From this it will be seen that the barons’ protest was against the rule which allows the donee (who by this time was often the woman as well as the man) to alienate in spite of the failure of issue. Their suggestion of a writ of entry clearly refers to the writ of entry at common law whereby a reversioner could recover land against the alienee of a tenant for life. The barons had to wait nearly a generation before they got a remedy.
THE STATUTE DE DONIS
The Statute De Donis, which is the first chapter of the Statute of Westminster II (1285), examines the whole situation and enacts:
“Concerning tenements which are often given on condition, viz. when one gives his land to a man and his wife and the heirs begotten of that man and woman, with an express condition added that if the man and woman die without heir begotten of that man and woman the land thus given shall revert to the donor or his heir; in the case moreover when one gives a tenement in free marriage (which gift has a condition annexed although not expressed in the charter of gift, to the effect that if the man and woman die without an heir begotten of the man and woman the tenement thus given shall revert to the donor or his heir); in the case moreover when one gives a tenement to one and the heirs of his body issuing, it seemed (and still seems) hard to donors and their heirs that the intention expressed in the gift so far has not been (and still is not) observed for in all such cases after the birth of issue to the donees of such a conditional gift, the feoffees have so far had the power of alienating the tenement so given and disinheriting thereof their issue against the will of the donors and against the express form of the gift; and moreover whereas on the failure of issue of such feoffees a tenement so given ought to revert to the donor or his heir according to the expressed form in the charter of the gift, nevertheless donors have been thus far excluded from the reversion of their tenements on account of the deed and feoffment of the donees of the conditional gift, although the issue (if there were such) had died—which was manifestly against the form of the gift.
“Wherefore our lord the King perceiving how necessary and useful it is to appoint a remedy in the aforesaid case, has established that the will of the donor according to the form manifestly expressed in the charter shall henceforth be observed, in such wise that those to whom a tenement is thus given upon condition shall not have power of alienating it and preventing it from remaining to their issue after their death, or else to the donor or his heir if issue shall fail, either by reason that there was no issue at all or if there were, that the heir of such issue had failed.”1
The preamble mentions the three cases of a gift (a) to husband and wife and the heirs of their bodies, with a reversion expressly reserved, (b) in “free marriage” (which will be construed in law as containing by implication analogous provisions), and (c) a gift in the form merely of “to X. and the heirs of his body”. It states the mischief of the existing rules to be that on the birth of issue the donees can alienate and so (a) disinherit their issue and (b) destroy the reversion, and (c) when there has been issue which has failed, the donee can defeat the reversion. For remedy, the statute enacts the general rule that the form of the gift is to be observed so that a donee cannot prevent the tenement either descending to his issue if such there be, or reverting to the donor, if there be no issue. As the machinery for its application, the statute gives the forms for a writ of formedon in the descender (“because in a new case, a new remedy must be provided”): it remarks that formedon in the reverter is already sufficiently common. It neither mentions nor implies any remedy for remaindermen.2
THE DURATION OF AN ENTAIL
An examination of the use of the word “issue” in the statute will show that its meaning was not an indefinitely long line of descendants of the prescribed class, but only the first generation; this is clear, for the statute speaks of “issue or the heir of such issue”.3 It therefore follows that the statute only assures the inheritance to the issue of the donee, that is to say, his heir in the first generation. The statute imposes no restraint upon an alienation by the issue. This point was raised in 1311 when the famous Chief Justice Bereford admitted that this was the literal meaning of the statute, “but”, he said—
“he that made the statute meant to bind the issue in fee tail as well as the feoffees until the tail had reached the fourth degree, and it was only through negligence that he omitted to insert express words to that effect in the statute; therefore we shall not abate this writ.”1
According to another reporter Bereford’s words were these:
“Herle. That case was one of free marriage and in naught similar to the present one.
“Bereford, C.J. I take the law to be the same in both cases, for in both cases the tail continueth until after the fourth degree; and you are to know that we will not abate the writ in these circumstances.”
From this passage we can clearly see the state of affairs in 1311. The Statute De Donis had been in operation for a quarter of a century and it is not surprising to find that so distinguished a lawyer as Herle (who afterwards became Chief Justice of the Common Pleas) should venture the opinion that there were now two forms of gift less than a fee simple, the maritagium and the fee tail. It is just as significant, however, that Bereford indicates the historical relationship between the two. So strong does he feel that connection to be that he applies to the estate tail (which by now is beginning to be regarded as the creation of the Statute De Donis) a characteristic which was once peculiar to the maritagium. Back in Glanvill’s day a gift in free marriage remained free until the third heir had entered, and this in the canonical way of counting was the fourth degree.2 Bereford applies and extends this rule; the fee tail like the maritagium is to retain its peculiar characteristics until the third heir (or the fourth degree) enters. (As we have already observed, Glanvill does not tell us expressly that the maritagium in his day was inalienable,3 but we may well believe that until the end of the twelfth century it was rarely, if ever, disposed of.) True, the statute did not say this, but Bereford had a ready explanation. Chief Justice Hengham who drew the statute had done it carelessly; as he worded it the entail only lasted two degrees, but his intention was to make it last for four. This information Bereford, no doubt, derived from tradition, and there was no rule at that time to prevent him from setting aside the clear words of a statute when he had private information that the draftsman really meant something else. It is curious to observe that one of the greatest pillars of real property law had been erected so carelessly.
Bereford’s exposition of the statute, like many others of his striking contributions to the law, was not followed, and in the middle of the fourteenth century it was still an open question how long an entail was inalienable—the real test of Bereford’s doctrine could not, of course, be made for some time, for four degrees would normally last nearly a century. Indeed, in 1344 it was not certain that an entail would last even as long as four degrees—a very long discussion on this point was inconclusive.1 As to what happened after the fourth degree we have no indication until the year 1410 when we are told2 that “after the fourth degree frank marriage becomes formedon”—in other words, it is already the doctrine that an entail will endure as long as there are heirs of the prescribed class, and this doctrine is now transferred to the maritagium so that the maritagium now becomes of indefinite duration.
THE NATURE OF THE HEIR’S INTEREST
In discussing Bracton, we have seen that his difficulty was due to the application to entails of the doctrine that the word “heirs” is a word of limitation and not of purchase. This doctrine left no basis for the expectation of the heir in tail until the Statute De Donis gave him a legal estate and a form of action for its protection. This statutory reform, however, made it difficult to retain Bracton’s dogma; as things stood after the statute a gift to A. and the heirs of his body gave to the heir an interest which was protected by the writ of formedon in the descender; how, then, could it be said that the heir takes nothing by purchase? An examination of the attempts to resolve this difficulty would yield interesting results which we can only briefly indicate here.3 Shortly after the statute a case of formedon in the descender arose in which the demandant was under age.4 On principle the infant heir of an ancestor who died seised could sue at once for his inheritance, but as the ancestor had alienated this rule did not apply. The demandant therefore turned to the rule that an infant can sue as to his own purchase, and argued thus:
“After the gift was made to John our father and Alice our mother and the heirs of their two bodies, John and Alice had only a freehold before they had issue, for the fee and the right remained in the donor until they had issue; immediately thereafter the fee and right began to be in the person of the issue, and was out of the person of the donor, and then for the first time the issue became purchaser together with the others. Since he became a purchaser under age, judgement whether he ought not to be answered although still under age.”
This ingenious point was open to much criticism; the demandant had counted upon his descent, not upon his purchase, and Howard pursued the theory until it became an absurdity:
“If his father and mother were now alive and were impleaded in respect of the tenements and were to say that the tenements were given to them and the heirs of their bodies, and that they had a son named William begotten between them who was a purchaser equally with them who were in possession, and were to pray aid of him—would they delay the plea until their issue should come of age? No, by God.”1
Bewildered by these arguments the court took refuge in the fact that the demandant was nearly twenty-one, anyhow, and so he might as well be allowed to sue. The question of the heir’s interest continued to arise, however, and the proposition which Howard had regarded as absurd was soon put forward in all seriousness. The machinery of aid-prayer worked in this way: when a tenant for life was defendant in an action where the title to the fee simple was in dispute, he was unable to proceed alone. The proper thing for him to do was to “pray aid of the reversioner in whom the fee resides” in order that the reversioner could come and defend his own title. It sometimes happened, however, that there was collusion between the plaintiff and the tenant for life, in consequence of which the tenant for life omitted to pray aid of the reversioner and instead defaulted or “pleaded faintly” so as to allow the plaintiff to recover by judgment. In order to prevent the reversioner losing his rights through the dishonesty of his tenant for life in refusing to pray aid of him, a number of rules were evolved, many of them statutory,2 which allowed the reversioner to intervene and “pray to be received to defend his right”. Thus in 1307 Agnes, widow of Thomas Picot, was the surviving donee in tail, and upon her default in a real action her son and heir prayed receipt on the ground that his mother had only a freehold. His prayer for receipt was granted.3 In 1308 Bereford, J., recognised that the issue (“in whom the fee and right repose”) might have to be joined with the tenant in frank marriage for some purposes,4 and about 1311 we have a case on these facts: tenements were given in frank marriage, and the husband (who had survived his wife) attempted to alienate them fraudulently by having his alienee bring an action against him which he suffered to go by default. The heir intervened and prayed to be received, and his prayer was granted.5
Two of these cases, it will be noticed, involve what was later called a “tenant in tail after possibility of issue extinct” and clearly this situation directed attention to the peculiarities of such an estate.1 The doctrine we are concerned with was not to be confined, however, to the receipt of an heir in tail on the default of a tenant in tail after possibility, for in 1314 we get a formal theory of the entail announced by Serjeant Toudeby in these words: “In the case where tenements are granted in fee tail and the grantee has issue, the fee is severed from the freehold, and the fee is in the issue while the freehold only is in the father.”2 This time the court rejected the theory that the fee was in the issue. If this remarkable theory had prevailed long enough to combine with the development of the idea that an entail endured indefinitely as long as there were heirs, the law would have reached a very different result, for a tenant in tail in possession would always be a life tenant only, while his heir apparent held a fee—the books do not venture to say, however, that this would be a fee simple. By the middle of the fourteenth century this doctrine is extinct. Perhaps it was felt that if even the issue in tail had a fee, it would be difficult to describe what the reversioner had.3 As late as Richard II, we occasionally find hints of uncertainty, even among the learned. Thus in 1387 Holt, J., suggested that if land is given to A. and the heirs of his body, it will descend to such heirs born after the gift, and not to issue already in existence when the gift was made. The serjeants ventured to dissent from this view.4 From the middle of the fourteenth century onwards we can clearly see the growth of the dogmas which are to be fixed in the middle of the fifteenth century in the great treatise of Littleton where we find the classical doctrine, and can appreciate the length of time which separates it from the desperate attempt of Bracton to maintain that the maritagium and similar so-called conditional gifts were no more than fees simple subject to a peculiar line of descent or to a condition as to the birth of issue. Attempts to identify the fee tail and the fee simple had failed, whether they be Bracton’s attempt to place the fee in the donee or Toudeby’s attempt to place it in the issue, and the inevitable conclusion was at last reached that an entail in fact divides the fee among different people. The use of the word “tail” curiously illustrates this. Coke and all the old books are correct when they say that it is derived from the French verb tailler which means “to carve”. But this word “carve” has two senses. In the first place it may mean to give a particular shape to a thing as an artist does to marble; illustrations of this sense are common. Thus, when counsel indulged in some wishful thinking about law, Bereford, C.J., remarked, “Vous taillez la leiauxicom vous le volez”—“You fashion the law as you like it”.1 This was the original meaning of the fee tail, for the descent of the fee was limited—taillé—to preordained lines. But in the view of Coke, tailler takes the second sense of the word “carve”, for to him a fee tail consists of a fee which is cut up and partitioned among the various parties to the entail;2 in Coke’s thought to carve an entail was analogous to carving a joint—a certain amount is cut off and a certain amount is left; adding them together we have exactly one fee simple.
Above, p. 525.
For the earliest known examples, see Pollock and Maitland, ii. 16 n. 2, and cf. Coronation Charter of Henry I (1100), c. 3.
Round, Ancient Charters (Pipe Roll Society), no. 6; Madox, Formulare Anglicanum, cxlv, cxlvi, cxlviii.
Glanvill, vii. 18.
Bracton’s Note Book, no. 241 (1227) is a good illustration of some of these rules. Cf. S. J. Bailey, Warranties of Land in the Thirteenth Century, Cambridge Law Journal, ix. 82 at 88 ff. On the absolute failure of heirs, the lord could still take by escheat, but on the failure of the heirs of the body of the donee the lord’s reversion (while it lasted) would exclude the heirs general.
For the additional complication caused by discussing this situation in terms of Roman law, see the controversy between Bulgarus and Martinus over dos profectitia: H. Kantorowicz and W. W. Buckland, Studies in the Glossators, 98.
Cf. Bracton’s Note Book, no. 566; Pollock and Maitland, ii. 16. The maritagium in Normandy became inalienable as a result of Roman influence; see its history in Génestai, L’Inaliénabilité dotale normande, Nouvelle revue historique de droit, 1925.
The reversion after a maritagium was imposed by common law even although the deed does not provide for it; but the reversion after a fee tail is not effective unless expressly saved in the deed: Y.B. 30 & 31 Edward I (Rolls Series), 250 (1302), 384 (1303); contra, Bracton, f. 47; Holdsworth, iii. 113 n. 2. A gift in maritagium which limits a remainder will be construed as a fee tail: Y.B. 17 & 18 Edward III (Rolls Series), 342 (1343). For an early example of a remainder after a maritagium, see Bracton’s Note Book, no. 86 (1220).
Modus enim legem dat donationi, et modus tenendus est contra jus commune et contra legem, quia modus et conventio vincunt legem: Bracton, f. 17 b.
There are a score of cases listed under “Fee, conditional” in Maitland’s index to Bracton’s Note Book.
Cf. Glanvill, vii. 1 (ed. Woodbine, p. 97), who says that in such a case there is no gift, but only the promise of a gift.
Bracton, f. 17 (c. vi. § 1). Selections (with translation) will be found in Digby, History of the Law of Real Property (5th edn., 1897), 164 ff.
Note that there is so far no dogma saying that one cannot be heir of a living person; cf. Plucknett, Statutes and their Interpretation, 45; Pollock and Maitland, ii. 44; Y.BB. Edward II (Selden Society), ix. 28, where the point was contested.
Bracton, f. 17 b. For a great lady who under Henry II alienated some of her maritagium, see S. J. Bailey, The Countess Gundred’s Lands, Cambridge Law Journal, x. 89.
A maritagium seems to be alienated by fine in Eyre Rolls (Selden Society, vol. lix), no. 100 a (1221). The pleadings in a case of the next year (ibid. no. 1479) on the other hand imply that a maritagium is properly inalienable.
Text in Stubbs, Charters.
Stat. Westminster II, c. 1; Pound and Plucknett, Readings, 658-660.
On the question whether these remedies existed even before the statute, see below p. 561, and for De Donis generally, see Plucknett, Legislation of Edward I, 125 ff.
See Updegraff, The Interpretation of “Issue” in De Donis, Harvard Law Review, xxxix. 200-220. With this compare the curious rule that a bond binding “A. and his heirs” binds the son only, and not the son’s heir: Davy v. Pepys (1573) Plowd. 441, and p. 720, below.
Y.BB. Edward II (Selden Society), xi. 177; xii. 226.
Four degrees (or thereabout) are a common limit for all sorts of purposes. Writs of entry in the per and cui comprise four degrees, after which only writs in the post will serve. The peculiarities of parcenry ceased after four degrees, and the third warrantor of the title to goods could vouch no further in Anglo-Saxon law. At the fourth generation Anglo-Saxon rank became hereditary (J. E. A. Jolliffe, Constitutional History, 2); so too, four degrees may be the limit of a family settlement in Malta, thus carrying us back to Code of Rohan (1784) and ultimately to Justinian’s Novel 159 (as to which see D. T. Oliver, Roman Law in Modern Cases, in Cambridge Legal Essays, 255).
For alienations of maritagia in the time of Glanvill and Henry II, see Sir Christopher Hatton’s Book of Seals, nos. 68, 146, and cf. S. J. Bailey, The Countess Gundred’s Lands, Cambridge Law Journal, x. 89.
Y.B. 18 & 19 Edward III (Rolls Series), 201. Cf. Rot. Parl. Inediti, 227, 230 (1333); Rot. Parl., ii. 142 no. 47 (1343); 149, 150 no. 10 (1344); Sayles, King’s Bench, iii. pp. xxxv, cxx.
Y.B. 12 Henry IV, 9.
Since the above was written, some interesting matter has been collected by A. D. Hargreaves, Shelley’s Ghost, Law Quarterly Review, liv. 73.
Y.B. 20 & 21 Edward I (Rolls Series), 58 (1292).
Cf. Y.BB. Edward II (Selden Society), x. 269.
The peculiar wording of Westminster II, c. 3, was a disturbing factor.
Y.B. 33 & 35 Edward I (Rolls Series), 496.
Y.BB. Edward II (Selden Society), i. 117.
Y.BB. Edward II (Selden Society), i. 70 (1308), s.c. xi. 160. For a new-born child who came to court in his cradle, and successfully prayed to be received on the default of both his parents (purchasers in tail), see ibid. i. 72 per Toudeby.
There was naturally an increasing desire to equate it with the life estate; attempts dating from 1348 (Rot. Parl., ii. 170 no. 46) to make the tenant in tail after possibility impeachable for waste were unsuccessful.
Eyre of Kent (Selden Soc.), iii. 44.
The point is well made in Willion v. Berkley (1562), Plowden, 223 at 247 ff.
Y.B. 11 Richard II (Ames Foundation), 71-72.
Y.BB. Edward II (Selden Series), x. 114. Littleton, Tenures, s. 18, seems to take this view.
So, too, even earlier, Willion v. Berkley (1562), Plowden, 225 at 251.