We have seen that lands cannot now be conveyed in fee-simple to be holden of the grantor, but that the tenure must be of him to whose seigniory the fee belongs (h). It is otherwise, however, with respect to a gift in tail. For if a tenant in fee-simple grants an estate tail out of it, (the reversion remaining in the donor,) the donee in tail shall hold of the donor, by fealty and such other services as may be reserved; or if none be reserved, then by fealty and such other services as the donor himself renders to the next lord paramount (i). But the tenure thus created between the donor and donee in tail, differs from that between the tenant in fee-simple and the chief lord; the latter being described as a perfect, the former as an imperfect tenure (j). [Thus much for the nature of estates tail; the establishment of which family law (as it is properly styled by Pigott (k)) occasioned infinite difficulties and disputes (1). 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 estates-tail were not liable to forfeiture longer than for the tenant's life. So that they were given by Littleton is, that after the (i) Litt. s. 19; Co. Litt. 23 a, 93 a, 143 a, 68 b, n. (5), by Harg. ; 2 Inst. 505; Willion v. Berkley, Plowd. 237; Bingham's case, 2 Rep. (j) Co. Cop. s. 31. (1) Chudleigh's case, 1 Rep. 131 b. [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(m). But as the nobility were always fond of the statute De donis, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it. About two hundred years intervened between the making of the statute De donis and the application of common recoveries 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 (n). For though the courts had, so long before as the reign of Edward III., very frequently hinted their opinion that a bar might be effected upon these principles (o), yet it never was carried into execution, till Edward IV., observing (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had upon families, whose estates were protected by the sanctuary of entails, contrived(p) that Taltarum's case should be brought [before the court (q); wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should convert his estate into a fee simple absolute, and bar all persons whatever claiming the estate tail, or any estate ulterior thereto (r). What common recoveries were, both in their nature and consequences, and why they were allowed to be a bar to the estate tail, must be reserved to a subse (m) Co. Litt. 19 b; Hunt v. Gateley, Moor, 156; Mary Portington's case, 10 Rep. 38. (n) Chudleigh's case, 1 Rep. 131; Mildmay's case, 6 Rep. 40. (0) Mary Portington's case, 10 Rep. 37, 38. (p) Pigott, 8. Blackstone says he suffered it to be brought, but the expression of Pigott is that he "brought it on the stage." (9) Year Book, 12 Edw. 4, 14, 19; Fitzh. Abr. tit. Faux Recov. 20; Bro. Abr. ibid. 30; tit. Recov.in Value, 19; tit. Taile, 36. See Reeves's Hist. Eng. Law, vol. iii. p. 328. (r) See Martin v. Strachan, 5 T. R. 107 (n); Willes, 449; Taylor v. Horde, 1 Burr. 115; Smith v. Clifford, 1 T. R. 738; First Real Property Report, p. 22. [quent inquiry. At present it may suffice to say, that they were 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, afterwards became by long use and acquiescence a most common assurance of lands; and were looked upon as the legal mode of conveyance, by which tenant in tail might dispose of his lands and tenements, so that no court would suffer them to be shaken or reflected on (s). 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 forfeiture 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 re-settled in a similar manner to suit the convenience of families, had address enough to procure a statute (26 Hen. VIII. c. 13) 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. The next attack which they suffered in order of time was by the statute 32 Hen. VIII. c. 28, 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 (t). But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines, 4 Hen. VII. c. 24, by the statute 32 Hen. VIII. c. 36, which de (s) As to these assurances vide 11 Hen. 7, c. 20; 7 Hen. 8, c. 4; 34 & 35 Hen. 8, c. 20; 14 Eliz. c. 8; 4 & 5 Ann. c. 16; 14 Geo. 2, c. 20. (t) Co. Litt. 45 b; see also as to leases by a tenant in tail, the new provisions of 3 & 4 Will. 4, c. 74, s. 41. [clares that species of conveyance called a fine (which is another species of fictitious proceeding), when duly levied by tenant in tail, to be a complete bar to him and his heirs, 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 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. By a statute of the succeeding year (u), all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws (x), 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 (y) by tenant in tail of the land entailed, to a charitable use, has been held to be good without fine or recovery. But the most extensive and effectual relaxation is that (u) 33 Hen. 8, c. 39, s. 75. (1) The first provision for subjecting estates tail to sale in the case of bankruptcy, was by 21 Jac. 1, c. 19, s. 12, repealed by 6 Geo. 4, c. 16, s. 65, (as to the effect of which vide Jervis v. Tayleur, 3 Barn. and Ald. 557), and this latter provision is now repealed, and new enactments substituted by 3 & 4 Will. 4, c. 74, s. 55-65. (y) Attorney-General v. Rye, 2 Vern. 453; Chan. Prec. 16. lately introduced by 3 & 4 Will. 4, c. 74, enabling the tenant in tail, by an ordinary deed of conveyance (if duly enrolled), and without resort to the indirect and operose expedient of a fine or recovery (which the statute wholly abolishes), to aliene in fee-simple absolute, or for any less estate, the lands entailed, and thereby to bar himself and his issue and all persons having any ulterior estate therein (z). Yet this is subject to an important qualification, designed for the protection of family settlements. For in these, it is usual to settle a life estate (which is a freehold interest) on the parent, prior to the estate tail limited to the children; and the nature of a recovery (by which alone interests ulterior to the estate tail could formerly be barred) was such as to make the concurrence of the immediate tenant of the freehold indispensable to its validity. In order, therefore, to continue to the parent (or other prior taker) a control of the same general description, the act provides that where under the same settlement which created the estate tail, a prior estate of freehold, or for years determinable with life, shall have been conferred, it shall not be competent for the tenant in tail to bar any estate taking effect upon the determination of the estate tail, without consent of the person to whom such prior estate was given; who receives for that reason the appellation of protector of the settlement (a). But the object not being to restrain the power of the tenant in tail over the estate tail itself, (which he could have barred before the statute, by fine, without any other person's concurrence,) his alienaation (in the manner prescribed by the act) is allowed to be effectual even without the consent of the protector, so far as regards the barring of himself and his issue (b). Even subsequently to the passing of this act, however, one of the ancient and justly obnoxious immunities of an estate tail still remained without disturbance; viz. its (*) 3 & 4 Will. 4, c. 74, s. 15. This provision took effect from 31st December, 1833. (a) S. 22. The estates however of doweresses, bare trustees, and some |