Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Having shewn the origin of estates tail, I shall next consider their consequences, and future fortune.

LECTURE XVII.

The consequences and history of estates Tail.

The following are the words of my lord Coke. “When all estates were fee simple, then were purchasers sure of their purchases, farmers of their leases, creditors of their debts; the king and lords had their escheats, forfeitures, wardships, and other profits of their seignories: and for these, and other like cases, by the wisdom of the common law, all estates of inheritance were fee simple; and what contentions and mischiefs have crept into the quiet of the law by these fettered inheritances, daily experience teacheth us.” By this enumeration of his, of the advantages that attended estates of fee simple, it is easy to see who were the sufferers, and wherein they suffered, by the introduction of estates tail. But it is a little surprizing that he should make such a slip as to say, that before this creditors were secure of their debts by all estates being fee simple; when the first statute that gave them any hold of lands was made after this statute De Donis, in the latter end of the same year of the king’s reign, the thirteenth of Edward the First. Those, indeed, who had landed estates at that time, and their posterity, were great gainers hereby; but the king and the nation in general were sufferers. The nation suffered by the check that commerce, then just arising, received, by so much lands becoming unalienable, and the crown suffered in a double respect; first by the opportunity it afforded to strengthen and explain the great estates of the lords, and secondly by the security it gave when enlarged.

Soon after the conquest, the estates of the English lords were enormous. William brought over an army of 60,000 men, not levied by himself, (for he was unable to raise or defray the expences of a third of that number, out of the province of Normandy,) but consisting chiefly of adventurers, who engaged in the expedition on the promise of forfeited lands, in proportion to the numbers they brought with them. Accordingly, some had seven hundred manors, others five, four, three, two, one hundred, or less; insomuch, that all the lands of England, (if we except the king’s demesnes, the church lands, and the little properties annexed to cities and boroughs) were in no more than about seven hundred hands, the principal of which were petty princes, like the dukes and counts of France[225].

William was sensible, from the experience of that country, how dangerous such large grants would prove to the authority of the crown, and he accordingly moderated them as well as his circumstances would permit. That the king might not be too far removed from the view of the lower people, by the interposition of the great lords, their immediate superiors, he did not, as in France, leave the whole judicial power, and the profits of the county courts in the earls; but justice was administered in the king’s name by his sheriffs; who, as being deputies of the earls, were called Vice Comites, and who accounted for the profits to the king, except as for the one third, which in England was the earl’s proportion; and in after times, upon new creations, the third also was referred to the king, and only a certain stipend out of it, generally twenty pounds a year, assigned to the earl[226].

Another means he used of disarming them of the too great powers immoderate estates would have given them, was avoiding the rock the French court had split on, the giving vast territories, lying contiguous to each other, in fief, whereby all the followers were immediately in the view and at the call of the lords. William acted more prudently. He generally gave to an earl twenty knights fees, which was the proportion of an English earldom in the county, whose title he bore; perhaps thirteen, or a barony, in another county; and the remainder, he was to give, either in baronies in distant counties, or more generally in single knights fees, dispersed through all England. This was his general method, except to a few of his near relations, to whom he gave palatinates with jura regalia, which were exactly in the nature of the French dutchies and counties[227].

Another prudent step he took for the benefit of his successors, was the making all his grants feminine fiefs. For as, in a course of several descents, it must happen that lineal males would frequently fail, by admitting the daughters in that case, these vast inheritances were frequently broken, as females succeeded equally. His successors followed his plan, and for that purpose, not only permitted, but encouraged their great vassals to alien, and dismember their properties; and whenever a great escheat fell, were always sure, unless there was a prince of the blood to be provided for, to divide it into many hands.

Both kings and people received the advantages, and would have received more, if this policy had continued. The immediate tenants of the crown being encreased in number, and lessened in wealth, were not able to confederate so easily against the crown; and, sensible of their being weakened, had occasion for the support of the lower rank of the people, whom, consequently, they treated with more gentleness and equality than before. But this statute of entails put a stop to the progress that course of things were in; estates became unalienable, and indivisible. The property of no lord could lessen; and if it happened, as it frequently did, that they acquired, either by descent or marriage, or the purchase of an estate not tied up, a new entail connected it inseparately with the old one; and thus the lords, towards the end of the Plantagenet line, grew up to such a pitch of power, as was dangerous to the constitution, and when they were divided into the factions of the York and Lancaster, deluged the land with blood.