The Pamphlet Collection of Sir Robert Stout: Volume 2

The History of Entail

The History of Entail.

It is however to the principle of entail that we

The History of Entail.

must mainly ascribe the reduction and disappearance of small owners. This principle was by no means one of the earliest features of feudalism. Fiefs and lordships of manors being in the first instance connected with military duties, even the hereditary principle was not at first recognised, and was for a time resisted by the feudal superiors; but when fully recognised every effort was made to secure the perpetuation of these functions and properties in the male line of the family. The Norman barons endeavoured to introduce this principle shortly after the Conquest, but they met with great resistance from the Crown and the Church.

History of Entail

The main object which the feudal chiefs had in view was to secure their fiefs and property to their successors free from the chance of forfeiture in case of treasonable acts of their own. Conviction for treason was followed by forfeiture of property. Entail would preserve the property for the family, though the present holder might suffer forfeiture during his lifetime.

On the other hand, the Sovereign, representing the principle of order and of imperial interests, as opposed to those of the feudal lords or petty local chiefs, was much concerned in maintaining the principle of forfeiture of property in case of treason, as one of the main securities against rebellion. Any reduction therefore of this penalty was to be resisted. A powerful ally in this instance was found in the Church. The principle of entail if once admitted would deprive the Church of the; main source of its wealth, the gifts of land by its pious sons. The clerical lawyers therefore assisted the sovereign in his efforts to prevent the introduction of this principle, and we find that they borrowed principles from the Civil Law with great ingenuity to upset the grants which had been obtained by the nobles with the object of creating entails.

In the year 1285, however, the nobles found themselves strong enough to force upon the Crown and the country a law, which overrode the interpretation which had been given by the lawyers to the words of entail, and practically enabled perpetual entails to be created. It is worthy of notice that this statute of Edward I. known as 'De Donis,' an Act still on the statute book and part of the law of this country, never obtained the consent of the Commons. This vicious principle of perpetual entail speedily came into common use, and it was not long before grave inconvenience and mischief arose from it, and from the consequent withdrawal of a great part of the landed property of the country from free commerce. The celebrated Lord Coke speaking of the statute 'De Donis,' said of it—

The bad effects of this statute are also described by Blackstone in a well-known passage:—

"Children grew disobedient when they knew they could not be set aside; farmers were ousted of the leases made by tenants in tail; creditors were defrauded of their debts; innumerable latent clauses were produced to deprive purchasers of land they had bought and paid for, and treasons were encouraged as estates tail were not liable to forfeiture longer than for the tenant's life."

These evils continued without remedy for another period of 200 years. After this long interval the reviving power of the Crown and the ingenuity of the lawyers combined to upset these perpetual entails, and a method was discovered by which the celebrated statute of Edward I. was circumvented and defeated. The process by which this was arrived at, and carried out, was so subtle, technical, and ingenious, that it would be impossible to explain it in popular language, or to make it intelligible to others than lawyers and logicians. It is sufficient to say, that by a kind of collusion between the courts of law and the immediate holder of an entailed property, the object of the entail could be defeated, and landed property subject to it could be sold.

Later the Tudor kings, Henry VII. and Henry

History of Entail

VIII., succeeded in inducing Parliament to give legislative sanction to this curious device of the lawyers, and also to deprive entailed estates of their freedom from forfeiture in the case of the treason of their holders. These acts again gave great freedom to the sale of land, and though entails were not wholly destroyed and were still valid for certain purposes, they were not effective to prevent the alienation of land. Thenceforward for another 200 years land again became freely alienable, and entails were practically rendered innocuous.
Frequently during this interval attempts were made by clever lawyers to restore the principle of indefeasible entail; the courts of law, however, uniformly resisted such attempts; in a well-known case which came before them, and which was known as the "Perpetuities case," it was attempted to create an entail or settlement upon an unborn person, not dissimilar to our present family settlements, by giving a life-interest to a father and vesting the property in his unborn eldest son; the Judges however rejected the scheme, alleging that if this were permitted the following evils would arise :
1. That the owner of the property would be prevented providing for his widow and younger children in such proportion as he should think fit.
2. That the eldest son being certain of his inheritance, and therefore independent of his father, would not be subject to parental control.
3. That such settlements would lead to complexity of title, and therefore to uncertainty and expense of transfer.

The period of freedom of land from entails lasted from the date of the discovery of the means of eluding the Statute de Donis, in 1472, till about the time of the great Rebellion, another period of nearly 200 years; it might possibly have lasted till our own time, but for the accidental effects of that great political crisis upon the views of lawyers and landowners. It again became a great object to the owners of land to protect their properties from the possible results of their acts if convicted of treason; and at a time when almost every landowner was forced, either by inclination or public opinion, to take one side or the other in the great national struggle, there was almost equal danger of the enforcement of this forfeiture for treason, on either side, as now one party and now the other prevailed.

It is interesting to observe that the lawyers and Judges who had previously favoured freedom of alienation, and had exercised all their ingenuity to prevent entails, or to find the means of eluding and breaking them, now shifted their advocacy, and lending their subtleties to the opposite principle, aided the landowners in protecting their family estates from forfeiture, and succeeded in forging the system of entail through family settlements, from which the country has ever since Buffered.

It would be difficult, if not impossible, to make intelligible to other than lawyers how this was effected, and how the old traditions and doctrines of the law were evaded, or to describe all the subtleties and difficulties which have since grown out of it. It is sufficient to say that it led directly to the system known as that of family entail under which landed properties are now generally held. It will be observed that this system has never received the assent of Parliament. It has never fairly been brought under review of the legislature. It was the invention of lawyers, and was sanctioned by the courts of law, but has never been subjected to popular control.