his body, to a man and his seed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs (a). So, on the other hand, a gift to a man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they shall issue (b). Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of expression (c) (36). libero maritagio, riage. There is still another species of entailed estates, now in- of estates in deed grown out of use, yet still capable of subsisting in or frankmarlaw; which are estates in libero maritagio, or frankmarriage. These are defined (d) to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now, by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the (a) Co. Litt. 20. (b) Litt. s. 31; Co. Litt. 27. (36) Whether a devise to a man and his posterity, would give an estate tail, or a fee, was considered a doubtful question in the Attorney General v. Bamfield. (2 Freem. 268.) The whole 5th section of Mr. Roberts' 4th chapter of his Treat. on Wills, is devoted to an enumeration of some of the many expressions by which an estate-tail may be created in a will. He commences by observing that, "to discuss the varieties into which the cases in the books have expanded the doctrine, would require volumes of learned labour." As Mr. Roberts thought, that the readers of a professed treatise on wills exclusively, "could only expect the general heads of so multifarious a subject to be treated of;" it would be still more out of place to enlarge upon it here. The (c) Co. Litt. 9, 27. key to the construction of any particu- Incidents to a tenancy in tail, under the statute of Westm. 2 (de donis). word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee (e). The incidents to a tenancy in tail, under the statute Westm. 2, are chiefly these (f): 1. That a tenant in tail may commit waste on the estate-tail, by felling timber, [ *116] pulling down houses, or the like, *without being impeached, or called to account for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the estatetail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estatetail may be barred or destroyed by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large. Consequences of the establish tail. : Thus much for the nature of estates-tail: the establishment of estates- ment of which family law (as it is properly stiled by Pigott) (g), occasioned infinite difficulties and disputes (h). 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 might have been virtually disinherited creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might 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; of suits in consequence of which our ancient books are full: and treasons were encouraged; as estatestail were not liable to forfeiture, longer 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 realm (i). But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature, and therefore, by the contrivance (e) Litt. s. 19, 20. (g) Com. Recov. 5. (h) 1 Rep. 131. (i) Co. Litt. 19; Moor, 156; 10 Rep. 38. of an active and politic prince, a method was devised to evade it. red by common About two hundred years intervened between the making Estates-tail barof the statute de donis, and the application of common re- recoveries. coveries (37) to this intent, in the twelfth year of Edward IV.; which were then openly declared by the judges to be a *sufficient bar of an estate-tail (k). For though the courts [ * 117 ] had, so long before as the reign of Edward III. very frequently hinted their opinion that a bar might be effected upon these principles (1), yet it was never carried into execution, till Edward IV. observing (m) (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court (n): wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. What common recoveries are, both in their nature and consequences, and why they are allowed to be bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal; and that these recoveries, however clandestinely introduced, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament (o) have by a side-wind countenanced and established them. By the 26 H. tates-tail are lia ble to forfeiture for high treason. This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures (38) for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently [*118 ] *resettled in a similar manner, to suit the convenience of families, had address enough to procure a statute (p) whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason. By the 32 H. VIII. c. 28, certain leases by tenants in tail allowed; and by the 32 H. VIII. c. 36, a to be a bar to an estate-tail: The next attack which they suffered in order of time, was by the statute 32 Hen. VIII. c. 28 (39), whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of Parliament, by the construction put upon the statute of fines (q), by the statute 32 Hen. fine is declared VIII. c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII., whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar VIII. c. 4; 34 & 35 Hen. VIII. c. 20; (p) 26 Hen. VIII. c. 13. (38) See ante, the note to Vol. I. p. 299, and the note to p. 72, of this volume. (39) See post, chap. 20, p. 319. ated by the which the crown sion, excepted. to estates-tail. But the statute of Henry VIII., when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the estates-tail creproperty of the crown from any danger of infringement, all crown, and of estates-tail created by the crown, and of which the crown has the reverhas the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 & 35 Hen. VIII. c. 20, which enacts, that no feigned recovery had against tenants in tail, where the estate was created by the *crown (r), and the remainder or rever- [119] sion continues still in the crown, shall be of any (40) force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estatestail, where the royal prerogative is not concerned. which estates Lastly, by a statute of the succeeding year (s), all estates- Other charges to tail are rendered liable to be charged for payment of debts tail are liable. due to the king by record or special contract; as since, by the bankrupt laws (t), they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4, an appointment (u) by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery. Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, (r) Co. Litt. 372. (s) 33 Hen. VIII. c. 39, s. 75. (t) Stat. 21 Jac. I. c. 19. (40) Before the statute of Henry VIII. the supposed recompense in value was held to bar the issue in tail of the donee in tail of the crown; the recoveror had a fee-simple determinable upon the estate tail, and the king had his ancient fee-simple also :—this being the single anomalous case in which the rule, that two several fees in the same estate cannot be co-existent, was departed from. (Walsingham's case, Plowd. 555 a, 558 a.) Since the statute, an estate tail of the gift of the crown is privileged (as our au- |