power, as they held their land fettered by restrictions on alienation and by a line of succession marked out by the grantor and enforced by the Statute. The power of disposing of land by will was lost; and the succession to the sons equally, which had protected the interests of the family, was changed in all military tenures to the succession of the eldest son, which was required directly in the interests of the lords, and indirectly in the interests of the State. This rule of primogeniture, at first as a measure of safety in the absence of an efficient central power, then as a measure of unity imposed by a strong and harmonizing government through its Central and Itinerant Judicature, became the common law of the land, the old law of succession to the family being relegated with other local customs to the rank of local exceptions to the general rule. The interests of the lords with some slight reference to the welfare of the State led to the imposition of restraints on the alienation of land for ecclesiastical purposes, while alienations resulting from the conjugal relation were much limited. For about 150 years most properties are subject to strict entail; alienation by their tenants is forbidden; succession to them is defined by the will of their grantor, whose power in this respect is unlimited. The interests of the chief lords or greater landowners, the class in power, are the reason and origin of the land legislation of Edward I., the system of national defence which is the ultimate justification of the feudal system having but a remote reference to most of the changes which took place. CHAPTER IV. THE EVASION OF THE LAW BY FINES AND RECOVERIES. THE Statute "De Donis" in 1285, from the point of view of landowners, fettered the alienation of the greater part of the lands of the kingdom, since the will of the original donor, as fixed in his grant limiting the succession to the land, was to be strictly observed. No power existed of disposing of the land by will, or of defeating the right of the lord to the reversion of the land, if the heirs to whom the land was limited failed. It is true that the doctrine of Warranty, derived from the old Teutonic procedure, was used to allow the tenant-in-tail to partially set aside the rights of his heir. For, according to that doctrine, the donor of an estate of land was bound to warrant the title, or defend the possession, of his donee; and this obligation extended to the heirs of the donor. The tenant-in-tail therefore, by alienating in fee simple, could on the strict application of the doctrine of warranty, oblige his heirs in tail to warrant his gift, and could thus deprive them of succession under the grant in tail. This proceeding would not defeat the rights of the original donor or lord to the reversion of the land on failure of the class of heirs to whom it was limited in the original grant; but in itself it would allow the tenant-in-tail considerable freedom of alienation inter vivos, so as to defeat the claims of his heirs. This power was limited by a decision in 1310, which laid down that the heir in tail was only bound to warrant his ancestor's grants, if he had from his ancestor Assets, or lands in fee of equal value to those alienated; and that, if he had not Assets, he could defeat his ancestor's alienation by a writ of "Formedon in the Descender1." This restriction of the obligation to warrant was apparently a piece of judicial legislation, though it had its precedent in a similar restriction imposed by the Statute of Gloucester on alienations made by the tenant by the Curtesy, the Statute providing that his heir was only bound to warrant them, if he had lands of the same value descending from his father. The judges had already allowed such an heir to use a writ of "Formedon in the Descender" to defeat his father's alienations, and may have felt justified in extending the statutory provision as to Assets to the case of Entails. But they stretched the doctrine of the Statute of Gloucester further in the interests of the heir; for if one heir of a tenant by the Curtesy received assets, the alienation of his ancestor was held good, and subsequent heirs though receiving no assets were bound by it. But in the case of a fee tail, it was necessary that each heir should receive assets in order that the entail might be barred against him, and if he did not, the writ of Formedon was open to him to defeat the alienation*. The heir in tail had therefore a practical security in receiving at any rate lands of the same value as those entailed on him, a protection ensured by his writ of "Formedon in the Descender' and by judicial legislation. The lord had absolute security for his reversion or escheat by a writ of "Formedon in the Reverter." There remains the case where the form of the gift was "to A. and the heirs of his body, and if they fail, then to B. and the heirs of his body." Such a grant is mentioned by Bracton, who calls it a "donatio per modum pluribus," and instances a father granting successive estates tail to his three sons, with a tacit reversion to himself. Shortly after the Statute de Donis B.'s right became recognized with a definite name as a "remainder," and in 1308 we find a writ of "Formedon in the Remainder" recognized as the definite remedy for alienations infringing the 14 Edw. II. Reeves, II. 202-204. 2 6 Edw. I. (1282). Reeves, 11. 56. 3 Reeves, 11. 204. 4 Reeves, II. 340. 5 Br. f. 18, b. right of the remainderman'. In the case of heirs taking in remainder the doctrine of warranty was more strictly applied". Thus in the case of a feoffment, "to A. in tail, remainder to B. in tail, remainder to C. in tail," if A. died without issue, and B., succeeding, aliened with warranty and died leaving issue D., D. would not be bound by the warranty, unless he had assets; but if D. died without issue, and C. succeeded, C. would be bound by B.'s warranty, even if he had no assets. And this was called Collateral Warranty, as distinguished from the warranty with Assets, known as Lineal Warranty. The Courts also contributed to the strict enforcement of the Statute by the decision that, though its terms omitted any mention of the heirs of the donee, they yet were restrained from alienation as well as the donee himself, a decision which would have made "the will of the donor as expressed in the grant" extend its power for all eternity, if some means of defeating it had not been found. They also defeated some claims on the estate at common law, as resulting in alienations which would prejudice the issue3. 8 The result was that the tenant-in-tail had but slight freedom against the heirs of his body, more against the remainderman, but none against the lord. The owner of land could thus fetter the disposition of his land without any limits as to time, and the means by which the tenant could escape from his fetters were of the scantiest application. The evils of this state of things have been graphically described by Coke and Blackstone*. 'Children grew disobedient when they knew they could not be "set aside; farmers were ousted of their leases made by tenants"in-tail, for if such leases had been valid, then under colour of "long leases the issue had been virtually disinherited; creditors were defrauded of their debts, for if tenant-in-tail could have 'charged his estate with their payment, he could also have "defeated his issue by mortgaging it for as much as it was worth; "innumerable latent entails were produced to deprive purchasers "of the lands they had fairly bought; and treasons were en"couraged, as estates tail were not liable to forfeiture longer 1 Reeves, II. 201. 2 Reeves, 11. 341. 3 Reeves, 11. 200. Vide ante, p. 51. 4 Coke, Mildmay's Case: 6 Rep. 40. Blackstone, II. 116. "than for the tenant's life. So that they were justly branded "as the source of new contentions and mischiefs unknown to the "common law, and almost universally considered as the common "grievance of the realm1." For these reasons all classes in the community, except the great landowners, who in the uncertainty of civil wars desired the protection of their estates from forfeiture for treason, pressed for alterations in the Statute. "The same was attempted and endeavoured to be remedied at divers Parliaments, and divers Bills were exhibited accordingly, but they were always on one pretence or other rejected. For the Lords and Commons, knowing that their estates tail were not to be forfeited for felony or treason, as their estates of inheritance were before the Act de Donis...and finding that they were not answerable for the debts and incumbrances of their ancestors, nor did the sales alienations and leases of their ancestors bind them for the lands which were entailed to their ancestors, they always rejected such bills"." The remedy for this national evil, maintained by that class of the community having power in legislation for their own interests, came from the Law Courts, and is generally associated with the oddly named Taltarum's Case1, decided by the judges in 1472. The process by which judicial ingenuity evaded in the interests of the community a statute passed in the interests of a class was that of a Common Recovery, or fictitious suit brought by a plaintiff in collusion against the tenant-in-tail who wished to alienate his land. This process had already been used by the clergy to evade the Statutes of Mortmain; and its use for that purpose had been restrained by special Statute. It was now brought into play for other purposes. It is not very material to discuss whether Taltarum's Case was the “leading case" to establish the efficacy of common re 1 Bl. II. 116. 2 Reeves, II. 341. Godbolt's Reports, p. 303. 3 Mildmay's Case. 6 Co. Rep. 40. 4 Y. B. 12 Edw. IV. 19. Digby, R. P. 3rd. ed. p. 211. Taltarum is not a party to the case, but had been the |