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of truth is probable as an entail precludes any disposition, testamentary or otherwise, but that it is wholly true is not made out by the historians. Any statement so generally accepted by the common lawyers, while it may not be accurate in fact, is, however, always important as a datum, because on it the courts often predicate their decisions,3o and even the legislature may accept it as a starting point or cause for new legislation. The distinction between a false historical statement accepted and acted on by law-men as a fact and a true historical statement, not acted on at all, is often lost sight of by the more scientific historical jurists, who insist too much on the historical continuity of law, and they are often too critical of the furely legal historians of the seventeenth and eighteenth centuries, who were dealing with very different problems. Even Freeman and Bishop Stubbs are quite oblivious at times of the ends aimed at by the old legal historians.

But to resume our discussion. It is doubtless true that at some time before the Statute of Wills — precisely when is not established — certain fiefs or feudal estates in England were not recognized as devisable by the Curia Regis and the subsequent King's Courts which grew out of it and had jurisdiction at first of the Anglican law of fiefs or feuds and afterward of lands. It will be remembered that under the Normans and Angevins the King of England came to be in England, as the Duke of Normandy was in Normandy, the great feudal superior, and his conception of England was a greater Normandy. There were no doubt some regulations, probably more or less restricted in operation, but of a feudal character, which ultimately led to the expression in the so-called common or feudal law of land, “that lands were not devisable at common law.” The common law is in this sense the law recognized in the common-law courts which are only a later phase of the earlier King's or feudal courts. But that lands as lands in England ever ceased to be devisable by the law of England --Lex Angliae — after they became inheritable and vendible in that law, is not made out, we think, by the legal historians of either the old

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32 See Lord Mansfield in Wyndham v. Chetwynd, Black. Rep. 95; I Burr. 414.

33 At King Stephen's death in 1135

there were 1115 castles in England belonging to the Normans and subject to the feudal law (i Taine Eng. Literature, 115).

or the new school, and there is good reason to believe that such a proposition can not be made out.

Importance of the Right to Devise. It is lately the fashion of modern political economists to assume that property is transmissible to heirs or devisees on the death of the owner, not as a matter of natural right, but juris positir'i. This grave and pregnant assertion is doubtless destined at no distant day to figure largely in the programme of the politicians. But we should observe that the owner's right of testamentary disposition of property as a natural right, incidental to the property itself, was asserted with great force in the New York Court of Errors some seventy years ago.34 As this right of testamentation may be somewhat obscured by the assertion that lands were devisable only by force of the Statute of Wills, the antiquity of the right in the old law --Ler Angliae — which became the fundamental law of this great State, is important. Let us examine, then, in some detail the rise of the theory that at common law lands were not devisable. It will be remembered that the mediæval law regulating the greater fiefs and their more distinguished owners ultimately became what is now called the common law of land." The contemporary law, regulating people in the humbler walks of life, very gradually either faded away into “ custom” or else was conformed to the law of the higher classes. Thus primogeniture, which was a rule of succession at first confined to the greater fiefs, ultimately triumphed as a universal rule of descent at common law. That the triumph of primogeniture and the Statute de Donis are in some way connected with the disappearance of a power to devise in the King's courts having jurisdiction of such fiefs, is a plausible and indeed a probable conjecture. When the eldest son must succeed to the land and the seigniory of the father there is no room for the executor. The disability to dispose of certain fiefs by will was doubtless on account of the personal jurisdiction involved in a seigniory rather than because lands were not devisable. The rule of law in respect of power to devise, if formulated accurately, would then appear to be, that tenants in capite and other principal tenants of fiefs could not dievise their fiefs so as to contravene a succession by the eldest male next in blood. But this feudal rule had no relation to other tenants of land, such as those within the manors, or to holders of domiciliary land within the towns.

34 Remsen v. Brinkerhoff, 26 Wend. 325, 333, seq. But see Maine, An

cient Law, chap. VI, and Matter of Delano, 176 N. Y. 486, 491.

We must, however, recognize that it is commonly stated by the leading modern commentators on the common law that land in tenure ceased to be devisable in England after the Conquest and remained so until the Statute of Wills.35 Coke and Bacon certainly so state.36 Yet there is reason to believe that this very general statement, covering centuries of time, is only partly accurate. It is impossible to point out the law taking away the power of devising lands or the exact time when land as land ceased to be devisable in England. A much more profound study of the law of the Middle Ages than any yet made is necessary before we may regard this part of the history of devises in England as established. If we take for example the period prior to the reign of Richard II (A. D. 1371) we have little systematic material to rely on. The valuable but scattered documents, rolls, charters, etc., extant have still to be examined and in the main subjected to exhaustive and scientific treatment in connection with the origin and the development of the law of wills in England. The want of certain material is shown even by such an excellent writer as Reeves, when he speaks of wills during the reign of Edward III and is significant. He starts off with such a damaging reservation as, “If lands were devisable it was mostly in boroughs." 37 Some other. law writers are equally vague.

Even the great historians of the English law before the time of Edward I, who are of the few scholars adequately equipped for such remote investigations, would seem to be very hesitating in this branch of their subject. They appear to miss the point in their very first reference to devises. They say: “But just about the middle of the century" (1250) “we find for a short while in charters of feoffment a more ambitious clause. It strives to give


4 Kent. Comm. 503; 2 Black. Comm. 373.

Even Digby, Hist. R. P. so states (see 5th ed.), but his reference to Glanvill, 102, n. 2, does not bear him out.

36 Co. on Litt. IIIb and see i Roll. 608 and 6 Rep. 166; Bacon, Reading on the Statute of Uses, 20.

37 3 Hist. Com. Law, 215 (Finlason ed.).

" 38

the feoffee that testamentary power which the common law denies him." The historians fail to state how the common law denies it to him. Is it not possible that these distinguished historians here draw a wrong inference? Is it likely that charters drawn up by scholars, probably law-men, went openly counter to the common law? Is not the truer inference from such charters rather that the common law was then consistent with venia testandi and generally recognized the privilege of devising land? That the feudal constitution, even then was circumscribing in some way the testamentary power of disposition of certain tenants in chief, is not inconsistent with the coexistence of a general power to devise. That the purely feudal law or the law regulating the greater fiefs 'had some difficulty in conceiving of an hereditary feud, and next of an hereditary feud which could be alienated without the consent of the heir is apparent in mediuval law.29 But we find signs that the conception of property was stronger than the feudal law, and that the right to dispose of land by last will was maintained after the Conquest and even when the feudal law had triumphed.

At a later era of legal history the Statute of Uses 40 is sometimes regarded as conclusive. That the Statute of Uses (27 Hen. VIII, chap. 10) does plainly state“ that by the common law” of that day "lands tenements and hereditaments' be not devisable'"is, however, by no means conclusive evidence. In the first place the statement is too late. In the next place the Statute of Uses (certainly one of the most interesting of all statutes) was like the Fourteenth Amendment to our Federal Constitution, a purely revolutionary document. The Statute of Uses was a part of the war between the Church and the State, or the King within the State. Its real design was to give fair notice to master churchmen everywhere that his civil jurisdiction in England was over. That this great statute has had tremendous consequences in English law (as seen even in the present law of the State of New York, where with some variation that statute still stands) was no part of the original design of the statute. This is shown by the grave though different

38 P. & M., Hist. E. L. II, 26. 39 Cf.

Madox, Form. Anglic. rassim; Spellman, Ancient Deeds,

40 Its real title is “An Act concerning Uses and Wills.”

ways Bacon and Coke tried to make this curious statute ultimately fit into the orderly jurisprudence of the common law.41 That it ultimately did fit into modern jurisprudence with splendid results is to the lasting credit of these great common lawyers who led the way. It is susceptible of proof that the recital in the Statute of Uses means no more than that, in the King's regular courts and by the old feudal law of England recognized in those tribunals only, certain lands in England could not pass directly by devise away from the heir. That such lands did pass in effect in the churchmen's courtst? by a will in some form we know, and this is apparent from the rest of the recital in the Statute of Uses.43 That nearly all the lands in England could by some one law of England be disposed of by a last will in some form long before the Statute of Wills, in the reign of Henry VIII, is, we think, shown by the facts which we are about to narrate.

That after the Conquest all lands in England did not cease to be devisable until the Statute of Wills is apparent if we consider first the borough or burgage lands and lands in some ancient towns such as London, York and Oxford. They, at least if held for a fee simple, always remained devisable in England after disposition of property to take effect at death was recognized at all. It is also apparent that the “Conquest” and the stricter feudal law which followed it had no effect whatever on such dispositions of burgage lands. This only goes to prove that whenever land is regarded in the mediæval law of England as the property of the possessor and free from certain tenurial obligations it passes by will. It is, we think, only when his property right is not complete or the status of its possessor is by law immediately subordinated by tenure to some great person that it will be found that such a possessor became unable to devise his land by will.45 Doubtless

41 Take the trouble to read Bacon on the Statute of Uses, 42 Elizabeth. There is a London ed. 1785. 42 These

were only nominally courts of the King until the eign of Henry VIII.

43 See clause 9. “And for as much as great ambiguities and doubts may arise of the validity and invalidity

of wills heretofore made of any lands, tenements and hereditaments to the great trouble of the King's subjects, etc., etc.”

44 1 Roll. Abr. 556; Litt. § 167; Co. on Litt. Innb. Cf. Glanvill, Lib. VII, chap. 1.

45 Reliquiae Spelmannianae, ib. 127, 128, and see below "feuds."

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