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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.
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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.

For the first 200 years after the Conquest, the nobles failed to secure their object, or to effect entails. During the whole of this time therefore land was practically alienable; and no doubt this page 67 contributed greatly to the increase in the number

History of Entail

of owners of land.

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 true policy of the common law was overturned by this statute, which established a perpetuity, by art for all those who had or would have it; by force, whereof all the possessions in England were entailed accordingly, which was the occasion and cause of divers other mischiefs; and the same was attempted to be remedied at divers Parliaments, and divers bills were exhibited accordingly, but they where always on one pretence or other rejected. But the truth was that the Lords and Commons, knowing that their estates in tail were not to be forfeited for felony or treason, as their estates of inheritance page 68

History of Entail

were before the said Act, and finding that they were not answerable for the debts and incumbrances of their ancestors, and that the sales or alienations and leases of their ancestors did not bind them, they always rejected such bills."

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.

page 69
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.
It may be not unworthy of notice that these 200 years, when land was practically free from the shackles of entail, when the holders of estates were really their owners, and not merely the ostensible owners or temporary enjoyers of them, were not the least memorable years of English history or the least fruitful of great Englishmen. They embraced the Elizabethan era, and they spanned the lives of Bacon, Shakespeare, and Milton; of Sydney, Raleigh, and Blake; of Cecil and Walsingham, of Hampden and Pim, of Cromwell and Vane, of Strafford and Falkland. It does not appear that, even in those days, not-withstanding the absence of effective entail, men had any fear of being unable to hand down to a remote posterity the products of their fortunes in lands and houses. Burleigh, Hatfield, Longleat, Audley End, Holland House, and Bramshill, and page 70

History of Entail

numerous other great mansions, were built in this period, and still survive as evidence that even in days when landowners were in full possession of their property, they did not fear to build for a long future.
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.
It is most important to recollect these objections of the Judges to the introduction of the first germs of a system which afterwards unhappily was page 71 established, and which, as will be shown, has led

History of Entail

to the very evils which were thus foretold.

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.

A royalist lawyer, of great learning and in- page 72

History of Entail

genuity, Sir Orlando Bridgeman, the ancestor of the Earls of Bradford, was the first to devise a plan, by which landed property could be settled upon an unborn eldest son, in such a way, as to elude both the statute law against entails, and the common law doctrine against perpetuities, and to lay the foundation for the family entails such as we now have them. It is said that Sir Orlando, whose reputation as a lawyer was so great that he became "the oracle of both parties, his very enemies not thinking their estates secure without his advice," himself assisted in giving currency to his own coinage, when he was raised to the Bench of Judges after the Restoration; in other words, he upheld, by decisions from the Bench the devices he had invented as a lawyer. However this may be, it is certain, that about this period there was invented by the lawyers and accepted by the judges as valid, a system of entailing property on unborn persons, wholly alien to the principle which had induced Parliament 200 years before to break the system of entails, and utterly opposed to the doctrine of freedom and alienability of land which had been the happy condition of the country during that period.
The essence of the new principle thus introduced was the settling of property upon an unborn person, against which the courts of law had previously struggled. The effect of thus permitting the vesting of property in the unborn was to page 73 convert the immediate possessors of properties

History of Entail

hampered by these arrangements into mere life- holders, without any real power over the property, without power to sell, or even to lease for any period beyond their own lives, and without any power of bequest in favour of other children than the one named in the settlement, It had the great merit however, at such a period, of preventing the forfeiture of more than the life estate in the event of the life-holder being convicted of treason.

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.