Coke upon Littleton, ed. Coventry 1830

PREFACE.

The text of this work was first published about the year 1481, near 350 years ago, and the Commentary appeared about 150 years afterwards, or 200 years since. It has survived the policy of 16 kings and the attacks of as many generations; and notwithstanding the enactment of some hundreds, of statutes, and the adjudication of several thousand critical Questions, this admirable production has all along maintained, and still continues to enjoy, a reputation far exceeding that of any other legal publication. Some few, indeed, of its distant members exhibit symptoms of imbecility and decay, but the great body of the work remains sound and vigorous, and bears, even in the present day of reform, every feature of longevity and endurance. It contains, in fact, one main repository of the ancient common law of England, embodied by Littleton, commented on by Coke, and ripened by time into all the authority of an act of parliament,—which indeed it has viewed in the light of a law sanctioned by the common consent of Prince and People. A code thus matured cannot easily be abolished; in truth, to abrogate it would be to demolish one main pillar of the state.

These remarks are merely introduced to shew the futility of the supposition, that the sitting commission of inquiry have devoted this venerable pile of learning to destruction. The object of that commission is emendation not subversion; and when we consider that principle is immutable, and that both the text of Littleton and the commentary of Coke are composed almost entirely of that sterling materiel, we may rest assured, from the history of this very work, that however involved the detail of the Law of Real Property may become, its principles will be found stored up in this celebrated compendium, which must remain as it has hitherto done, the foundation of all law on the subjects of real property and conveyancing.

The following pages were composed by two learned and eminent Judges, at the close of long and active lives, occupied almost exclusively in the acquisition of that knowledge which they have thus bequeathed to posterity. The text of Littleton is written without any reference to authorities; but the Commentary of Coke is supported by a host of quotations from Bracton, Britton, Fleta, Glanville, and the Year-books; so much so as to render a perusal of those text writers a matter of curiosity rather than of use. Law-books of the present day are compiled by quite a different class of authors, and assume in consequence an essentially different cast of character. Many of them, it is true, contain excellent collections of the recently adjudged cases and statutes, but in few of them will be found the labour of general deduction or of condensed classification, — qualities in which, as also in ingenious exemplification, the present works abound.

This, then, being the nature of the works now for the hundredth time offered to the Public ; the following, it is conceived, is, at the present day, the most convenient shape in which they can appear—that is without note or comment. The text and commentary — unique and intelligible in themselves — have nevertheless been so overloaded with excellent though incongruous notes and references, that the formidable appearance, of the whole and the still more enormous price, have deterred many an aspiring tyro from entering on the perusal of so laboured a performance, — obstacles which it is hoped the present alluring edition will effectually remove,— and in which the student need fear the contraction of no erroneous notion, though his after-reading and experience will shew him many points of qualification.

The object of the present edition of Coke upon Littleton is to give the text of the work complete in its native excellence; omitting only such parts as have become entirely obsolete, and adding a few references to modern leading decisions and statutes where the text has been altogether altered or very materially modified. The marginal reductions and a new and improved index are also additions.—The pleasing task of rearing upon this solid basis the superstructure of modern law is left to the industry and ingenuity of the student, — an employment which has made many an eminent and successful lawyer, and will doubtless make many more.

5, Lincoln's Inn,
29 March, 1830.

CONTENTS.

Estate tail apres 27 b.

Curtesy 29 a.

Dower 30 b.

Estate for Life 41b.

Estate for Years 43 b.

Homage Ancestral 100 b.

Grand Serjeanty 105 b.

Petit Serjeanty 108 a.

Tenure in Burgage 108 b.

Tenants in Common 188 b.

Conditions 201 a.

Descents which Toll entries 238 b.

Continual Claim 250 a.

Release 264 a.

Confirmation 295 b.

Attornment 309 a.

Discontinuance 325 a.

Remitter 347 b.

Warranty 364 b.

SOME ACCOUNT

THE LIFE

SIR THOMAS LITTLETON, Knight,

ONE OF THE JUDGES OF THE COURT OF COMMON PLEAS IN THE REIGN OF EDWARD IV., A. D. 1467.

Few particulars have reached us concerning the author of the ensuing Treatise on Estates and Tenures. He lived in times of great civil commotion, but it does not appear that he took any decided part in the violent politics which then agitated the kingdom. This may account for the paucity of facts recorded of his life and character. He was born at the beginning of the 15th century, and died about the year 1481, his exact age not being known. He was buried in the cathedral church at Worcester, where a monument of his own device was erected to his memory. This monument consisted of a fair tomb of marble, which he caused to be finished in his lifetime; displaying a portraiture of himself in a kneeling posture, ejaculating an impressive prayer,— "0 Son of God have mercy upon we." As the tomb was completed in his lifetime his age is not added, and nothing therefore can be said as to the exact period of his birth.

It appears, however, that he was descended from a family of great antiquity in the counties of Salop and Worcester. Thomas Littleton was settled at South Littleton, in the county of Worcester, in the reign of Hen. 3. 1270; his grandson, Thomas Littleton, married the only daughter and heiress at law of Richard Quarterman, with whom he received a considerable landed estate. The issue of this marriage was an only daughter, Elizabeth, the mother of our Author. She married Thomas Westcote Esq., a gentlemen of good descent, who held an honourable post in the court of Hen. 6. By settlement on her marriage the estates, both of her father and mother, were entailed on the issue of the marriage, who, it was stipulated, should bear the name and arms of her paternal ancestors, the Littletons. There was issue of this marriage four sons, Thomas, Nicholas, Edmund, and Guy, and four daughters, who, to use the words of Lord Coke, "spread themselves abroad by honourable matches with many ancient families."

The eldest son, Thomas, the subject of this memoir, was designed for the bar, and in due course was entered of the Inner Temple, where he became a reader or lecturer; and by the influence of his father, then in the court of Hen. 6. obtained the stewardship of the king's household; in virtue of which office he sat as Judge in the Palace Court of Westminster, — a court then of much more consequence and resort than at present, and where we may suppose the Judge was usually of the degree of the Coif. That Littleton was at this time a Serjeant may fairly be inferred, from the circumstance of his soon afterwards being made King's Serjeant, which shows that he had been a Serjeant some time before.

On the 13th of May 1455, he was appointed one of the justices in Eyre, and rode the Northern circuit,— a province entirely devoted to the reigning house of Lancaster, which party Littleton espoused. At this time the military part of feudal tenures was grown into disuse; but in other respects the cumbrous forms of real actions, and all the technical learning of knight's-service, escuage, frankalmoign, villeinage, reliefs, wardships, attornments, warranties, and other feudal incidents, were in full force and vigour. Wills, so fruitful a source of litigation at the present day, were not then allowed of lands, and the present doctrine of uses and trusts had not been introduced, nor had feigned recoveries been fully acknowledged as a common assurance; consequently the present modes of conveyancing were altogether unknown. The only thing in common with that day and this, is the doctrine of Estates, which has continued with little variation from the first introduction of i'euds to the present time.

While our Author was on his first circuit the fatal quarrel between the two contending houses of York and Lancaster broke out into open hostilities, which lasted with varying success for a period of near thirty years, until in fact the whole ancient nobility by whom the quarrel had been fomented were nearly annihilated. The Yorkists, for the most part, had the advantage in these fierce encounters; and in 1461 the house of Lancaster was formally deposed. On that occasion a bill of attainder and forfeiture was passed against the weak King Henry 6. and his magnanimous queen, Margaret of Anjou, together with their more conspicuous adherents.

With thedeclining house of Lancaster, Littleton of course lost his place; and though it does not distinctly appear that he was included in the long list of proscriptions which followed the downfall of his unfortunate prince; yet it is certain that he did not altogether escape disgrace; for we are informed, that in the 2d year of the reign of Edw. 4. he received his pardon, and was continued in his post as justice of assize for the northern circuit. On the King's private espousal with the Lady Elizabeth Grey in 1466, the Earl of Warwick, who had long swayed the counsels of his victorious kinsman, retired in disgust, and a complete change of ministers ensued; Littleton on this occasion was appointed one of the judges of the Court of Common Pleas, and he maintained himself in that situation with great prudence and dignity for fifteen years, when he expired in a ripe old age. He was one of the judges who pronounced sentence in the celebrated Taltarum's case, which gave rise to the use of common recoveries,—the salutary effects of which, in removing the fetters on alienation, have long been felt and acknowledged.

Of the private life and character of Littleton nothing remains at this day. A wretched portrait of him is prefixed to some of the older editions of his Tenures, which was probably taken from the rude effigy on his tomb, or the family escutcheons in the churches of Frankley and Hales Owen. He married Joan, one of the daughters and co-heirs of William Burley, Esq., and widow of Sir Philip Chetwyn, by whom he had three sons, William, Richard, and Thomas. He died the 23d day of August 1481, having made his will only the day before his death, and was buried in the cathedral church of Worcester. William succeeded to the family estates, and his descendants have since been ennobled, first by the style of Baron Westcote, of Balamore in Ireland, and second, by the title of Lord Littleton, Baron of Frankley in the county of Worcester, the present noble Lord being the second under the latter title. Littleton's arms (argent a chevron between three escalop shells, sable) and motto {ting Dieu ting Roy—one God and one King) are scrupulously preserved by the family.

To his second son Richard, who afterwards became a lawyer of great eminence in the reigns of Henry 7. and Henry 8., Littleton left the affectionate bequest of the ensuing Treatise an Tenures — a rich inheritance, also, to every Student of the Law. He compiled this book when a judge, after the 14th year of Edw. 4.; but the exact period cannot be ascertained. It seems, from Sections 291, and 324., that he intended writing on tenancies by elegit and statute-merchant and staple, which not being added, induced Lord Coke to suppose that the work was prepared only a short period before his death and that it was not completely finished at that time. It does not distinctly appear that the work was published in Littleton's lifetime, but it was publicly sold before his death, as is manifest from the following note in the first page of the written copy of his work, now deposited in the public library at Cambridge, Mm. 52 —" This book was purchased in St. Paul's Church-yard, London, 27th July, 20 Edw. 4. (1480.) for 10*. 6rf." In the table of contents in this copy no mention is made of the chapters supposed to be omitted, and the situation of the table in the body of the work of the earlier editions, precludes the possibility of its being prepared by any other than the author's hand.

The art of printing was introduced in England about the year 1475, and it is conjectured that the first edition of Littleton made its appearance about 1481, printed by Lettou and Machlinia; but, as was common in the inr fancy of printing, this edition is without date. A more beautiful impression was produced at Rouen or Rohan, in France, by R. Pynson, which also is without date; but, from its similarity both in type and paper to Statham's Abridgment, printed at the same place for the same person, it is probable that both these editions were published about the same time. They are both written in law French, and run on continuously. West, the author of Symboliography, who lived in Lord Coke's time, introduced the sections, without much attention to the sense or grammatical reading; but these sections have since been retained for convenience of quotation. Lord Coke's edition of Littleton, published with his Commentary in 1628, gave the present English translation, which was taken exclusively from the Rohan edition ;—Lord Coke, as it should seem, not being then aware of any other earlier edition. This translation has been very carefully corrected by the edition of Lettou and Machlinia, as also by those of Pynson and Redman, from which corrected editions the present has been prepared.

Of the authority of Littleton — Lord Coke mentions a memorable instance where it was fully acknowledged by the whole Court of Common Pleas. His words are, "In the reign of our late sovereign lord King James of famous and ever blessed memory, it came in question upon a demurrer in law, whether a release to one trespasser should be available or no to his companion? Sir Henry Hobart, that honourable judge and great sage of the law, and those reverend and learned judges, Warburton, Winch, and Nichols, his companions, gave judgment according to the opinion of our author, and openly said, that they gave such great reverence to Littleton, that they would not have his case disputed or questioned." Co. Pref. —The merit of the work has been uniformly acknowledged and warmly applauded. — Lord Guildford made it a rule never to let a year pass without reading it through—that, however, cannot be requisite in the present day.— Lord Coke himself calls it "the ornament of the common law, and the most perfect work that ever was written in any human science," and Sir William Jones has added his meed of approbation which no one will think partial or exaggerated; he speaks of Littleton as the English lawyers' great master, and pronounces his work at once luminous in method, apposite in example, and clear and manly in style.

Besides the Treatise on Tenures, "A Reading on the Statute de Donis" is attributed to Littleton; but that work was never published, and it is doubtful if it be now in existence.

** During the progress of this work through the press, a very curious and useful Commentary on the Tenures of Littleton has been presented to the profession, edited by H. Carey, Esq. of Lincoln's Inn, Barrister at law. It is supposed to have been written prior to Lord Coke's Commentary, and Mr. Hargrove considers it a very methodical and instructive work.

THE LIFE

SIR EDWARD COKE, Knight,

LORD CHIEF JUSTICE OF THE COURT OF KING'S BENCH IN THE REIGN OF JAMES I.

Sir Edward Coke was bom at Mileham in Norfolk, in the year 1549. At the age of ten years he was sent to Norwich free school, and in 1567, at the age of eighteen, he was entered of Trinity College, Cambridge, where he remained four years. At twenty-two he removed to Clifford's Inn, and a year after (1572) he became a member of the Inner Temple, where he soon acquired the reputation of great shrewdness and penetration by the dexterity with which he unravelled a complicated case concerning some peculation of the Cook.

At the age of twenty-eight, after six years' probation in the Temple, he was called to the bar, and in 1578 made his first appearance in the Court of King's Bench in Lord Cromwell's case for libel. He was about this time appointed reader or lecturer of Lyon's Inn, where an excellent portrait of him is preserved. His father, Robert Coke, who was also a lawyer of good repute, and who had been for some time a bencher of Lincoln's Inn, died in chambers at the early age of forty-seven, while his son Edward was at Norwich school. From his father he could of course derive no "legal lore," but from him he inherited a very ample landed estate, which no doubt contributed to the rapid rise he afterwards experienced. He was successively chosen recorder of Coventry, Norwich, and London, the latter being then a sure steppingstone to the highest honours in the law.

About six years after his call to the bar, Sir Edward married Miss Bridget Paston, a descendant of Judge Paston, who sat on the Bench of the Common Pleas with the subject of the preceding memoir. With this lady he received a portion of 30,000/. and lived with her in great harmony and affection for many years.

The labour and enthusiasm with which he conducted his studies attained for him very early in life the reputation of a sound and trustworthy lawyer, and the talent and research which he brought into court soon placed him among the most eminent practitioners of his day. He was also fortunate enough to enjoy in early life the patronage of several great and influential characters, particularly of Archbishop Whitgift, and Lord Treasurer Burleigh, who threw into his hands most of the crown cases which gave strength and eclat to his well-earned famed.

In June, 1592, Thomas Egerton, Solicitor General (afterwards Lord Ellesmere), was made Attorney General and Coke succeeded him in the office of Solicitor General, as he did a year afterwards in the office of Attorney General when Egerton was made Master of the Rolls. The post of Solicitor General being now vacant, Francis Bacon (afterwards the celebrated Lord Bacon and corrupt Lord Chancellor), then not thirty years of age, made strenuous efforts through his friend the Earl of Essex, to obtain the appointment, but his ambition was blighted, and he attributed his failure chiefly to the interference of his successful rival Coke, who, however, just then promoted, could have had little influence in the nomination of a successor.

At this time Queen Elizabeth was engaged in two expensive military and naval enterprizes on the continent, to support which she was obliged to call a parliament. Coke was returned for Norfolk, and was unanimously elected Speaker of the House of Commons. The Queen's memorable speech on this occasion shews what a despotic prince expects from an obsequious parliament. She granted them "liberty of speech, but they should know what liberty they were entitled to, not a liberty for every one to speak what he pleased or what came uppermost in his brain; that sort of licence she would not allow; their privilege should extend no further than a liberty of saying aye, or no ; and she enjoined the speaker, if he perceived any idle heads so negligent of their own safety as to attempt reforming the church or innovating in the commonwealth, that he should refuse the bills exhibited for that purpose, till they were examined by such as were fitter to consider of these things, and could better judge of them :"—language which the Speaker (if we may judge from his conduct in subsequent parliaments) could ill brook, but which from circumstances he then found himself obliged to submit to. His elevated situation, however, was far from enviable. With the indefatigable zeal of the puritans on the one hand, and the reiterated commands of an arbitrary mistress on the other, it required more than ordinary caution and discernment so to manage his conduct as to escape altogether the fury of the raging elements around him. After an angry session of not quite two months the parliament was hastily dissolved, and the Speaker happily relieved from the critical eminence of his high office.

The death of Sir Edward's first wife took place soon after his appointment to the office of Attorney General, and he was left a widower with ten children to deplore the loss of one who was endeared to him by a long course of conjugal felicity which he was destined never again to enjoy. In 1598 he married Lady Elizabeth Hatton, daughter of the famous Lord Treasurer Burleigh, Earl of Essex, and relict of Sir William Hatton, brother of the chancellor. By this alliance he cemented his connection with the party in power, and acquired for a time a still further addition of influence and splendour. But this marriage proved as unfortunate as the first had been happy. It was celebrated in a private house late in the evening, contrary to the canons of the church, for which the parties were prosecuted in the Ecclesiastical Court. But by a timely submission and supplication.for pardon, a dispensation was procured, and they were absolved from the severe penalties which awaited them, on the extraordinary pretence of ignorance of the law. Lady Elizabeth Hatton possessed very extensive estates, and a large personal property, which was for the most part settled to her separate use, and she always used the name and title of Lady Elizabeth Hatton, and could never be prevailed on to bear the name of her husband. By this marriage Mr. Coke had two children, but unhappy differences arising between him and his wife, the lady betook herself and children to a separate establishment, and they were never afterwards reconciled.

About the year 1600 the Earl of Essex, the favourite alike of Queen and people, fell into disgrace by his maladministration of affairs in Ireland, and he was tried before the Privy Council. The Attorney-General Coke opened the case against him with much virulence and cruelty. He displayed, in the strongest colours, all the faults committed by Essex, and exaggerated the indignity of the conditions which Tyrone had been allowed to propose; odious and abominable conditions (said he); a public toleration of an idolatrous religion, pardon for himself and every traitor in Ireland. Essex, however, (such was his popularity) was only deprived of his office and imprisoned during the Queen's pleasure, and if he could have borne his confinement with patience would probably have been restored to favour; but the Queen was cautious and slow in a renewal of her confidence, and although she restored him to liberty, refused to reinstate him in his full credit and authority. She allowed him to retain a wine monopoly which was on the eve of expiring, but when he requested a renewal of the patent, she was advised to refuse, and even added in a contemptuous style that "an ungovernable beast must be stinted in his provender."

This rigour, pushed one step too far, proved the final ruin of this young nobleman, and was the source of infinite sorrow and vexation to the Queen herself. Essex, who had with great difficulty so long subdued his proud spirit, and whose patience was now exhausted, imagining that the Queen was entirely inexorable, burst at once all restraints of submission and prudence, and entered with avidity into every treasonable design which his enemies had prepared to entrap him. He was taken in a wild project to instigate the City to seize the Queen in her palace; and in February 1601 he and the Earl of Southampton were arraigned before their peers on a charge of high treason. The Attorney-General conducted the prosecution, and in a speech abounding in malignant abuse overwhelmed the prisoners with a very aggravated case of ingratitude and crime. Essex entreated leave to defend himself, declaring that Coke had played the orator, and had abused the ear of the Court with slanders; and Southampton exclaimed — "Mr. Attorney General, you have urged the matter very far, and you wrong me therein; my blood be upon your head!"

The guilt of the prisoners, however, was too apparent to admit of any doubt, and they were sentenced to bear the heaviest penalty the law can inflict. In signing the death-warrants the Queen felt many compunctions of tenderness towards one whom she had perhaps once sincerely loved. But what chiefly hardened her heart against him, was his supposed obstinacy, in never making, as she hourly expected, any application for mercy. She finally gave her consent to his execution, which was conducted privately in the Tower, agreeably to his own request. Sir Walter Raleigh, who came to the Tower on purpose, it is said, to wituess the execution of his rival, increased much, by this unworthy action, the general hatred under which he laboured.

Thus ended the splendid, yet imprudent career of the Earl of Essex, at the very early age of thirty-four. The Queen survived her favourite but a few years: and it seems agreed, that the circumstances attending his death hastened her own. She had in the days of his prosperity presented him with a ring, in token of her affection, assuring him, that into whatever disgrace he should fall, if he sent her that ring, she would immediately afford him a patient hearing, and lend a favourable ear to his apology. Essex reserved this precious gift to the last extremity; and after his condemnation he resolved to try its efficacy. He committed the ring to the Countess of Nottingham, to deliver it to the Queen. The Countess was prevailed on by her husband (the mortal enemy of Essex) not to execute the commission; and Elizabeth, who still expected that her favourite would make this last appeal to her tenderness, and who ascribed the neglect of it to his invincible obstinacy, was, after much delay, and many internal compunctions, pushed by resentment and policy to sign the warrant for his execution. At a subsequent period the Countess of Nottinghum, affected with the near approach of death, revealed the secret to the Queen, who in a furious passion absolutely shook the dying woman in her bed, crying, " That God might pardon her, but she never could.'" She broke from the room, and thenceforth resigned herself to the deepest and most incurable melancholy, which terminated her existence on the 24th March 1603.*

On the accession of James 1. -Coke was retained in his place and knighted. In November following he was called upon to prosecute Sir Walter Raleigh and others for treason. The exact object of this conspiracy is still involved in mystery, and the conspirators themselves had not perhaps formed any fixed design, so early did the discovery take place. It appears however to have been intended to oppose the proclamation of King James, and to place Arabella Stuart (a descendant of Henry 7.) on the throne in his stead. Lords Grey and Cobham, Sir Walter Raleigh and a few others were the principal persons accused. Raleigh was brought to trial at Winchester on the 17th November 1603, the Court then sitting there, on account of a general sickness in London. Cobham was the principal witness against him, but he was not confronted with the prisoner, and his evidence he first retracted, and then retracted his

* The celebrated ring is now in the possession of W. Sotheby, Esq , late of Bloomsbury-square.

retractation. Upon the written evidence of this single witness, without any concurring testimony, was this highly gifted individual convicted, contrary to all law, which requires, that in cases of treason the witnesses be examined in the prisoner's presence. Sir Walter knew that if he could once get Cobham face to face, his acquittal was certain; he therefore strenuously pressed the Court for a viva voce examination, which Coke as resolutely opposed. At this time all prosecutions for treason were conducted on the statute of Edw. 3., which, according to Lord Chief Justice Anderson, speaks of those who imagine a treason; "and how," says he, "can an imagination be proved by honest men, when it lies only in the secret recesses of a traitor's mind." A prosecution in these days seldom missed its aim from any defect of evidence, or indeed from any other cause. Against the weight and ability of the crown lawyers a prisoner had nothing to oppose: he was allowed no counsel; and if he prayed the Court in their humanity to see that the indictment was sufficient, the answer was, that they sat there not to give counsel, but to judge. Even the innocence of a prisoner could not be made out; for witnesses were not to be heard against the Crown. Juries were no protection to the subject: for though the Court might perhaps allow challenges for cause, they would not allow a prisoner to make one peremptory challenge. No one was, nor does it appear how anybody could possibly be acquitted under such a course of proceedings. A trial for high treason was indeed, in those days, a formal, but a certain, method of getting rid of an obnoxious character.

It is scarcely possible to convey an idea of the rancorous abuse which the intemperate Attorney gave way to on this occasion, but by extracts from the trial itself: —

Attorney-General.—I shall not need, my lords, to speak any thing concerning the king, nor of the bounty and sweetness of his nature, whose thoughts are innocent, whose words are full of wisdom and learning, and whose works are full of honour; although it be a true saying, nunquam nimis quod nunquam satis. But to whom do you bear your malice ?— to the children.

Raleigh.—To whom speak you this? You tell me news I never heard of.

Attorney.— Oh! sir, do I? I will prove you to be the most notorious traitor that ever came to the bar. After you have taken away the king, you would alter the religion. I will charge you with the words.

Raleigh.—Your words cannot condemn me; my innocence is my defence.

Attorney.—Nay I will prove all; thou art a monster, thou hast an English face, but a Spanish heart. Now you must have money. Aremberg was no sooner in England, but thou incitedst Cobham to go to him, and to deal with him for money to bestow on discontented persons, to raise rebellion in the kingdom. Raleigh.— Let me answer for myself. Attorney.— Thou shalt not. Raleigh.— It concerneth my life.

Lord Chief-Justice Popham.— Sir Walter Raleigh, Mr. Attorney is yet but in the general; but, when the king's counsel have given the evidence wholly, you shall answer every particular.

Raleigh.—I will wash my hands of the indictment, and die a true man to the king. Attorney.— You are the most absolute traitor that ever was. Raleigh.— Your phrases will not prove it, Mr. Attorney. Attorney.— Cobham writes a letter to my Lord Cecil, and commands Mellis, his man, to lay it in a Spanish bible, and to make as if he found it by chance. This was after he had intelligence with this viper that he was false.

Lord Cecil.—You mean a letter intended to me; I never had it. Attorney.— No, my Lord, you had it not. You, my masters of the jury, respect not the wickedness and hatred of the man; respect his cause. If he be guilty, I know you will have care of it, for the preservation of the king, the continuance of the gospel authorized, and the good of us all.

Raleigh.—I do not hear yet, that you have spoken one word against rue; here is no treason of mine done. If my Lord Cobham be a traitor, what is that to me?

Attorney. All that he did was by thy instigation, thou viper; it was through thee, thou traitor.

Raleigh.— It becomes not a man of quality and virtue to call me so; but 1 take comfort in it, it is all you can do.

Attorney.— Have I angered you?

Raleigh.—I am in ho case to be angry.

Popham, J.— Sir Walter Raleigh, Mr. Attorney speaks out of the zeal of his duty, for the service of the king, and you for your life; be valiant on both sides.

Raleigh.—I never came to the Lord Cobham's but about matters of his profit; as the ordering of his house, paying of the servants' board wages &c. I had of his, when I was examined, 4*000/. worth of jewels for a purchase; a pearl of 3000/., and a ring worth 500/, If he had had a fancy to run away, he would not have left so much to have purchased a lease in fee-farm. I saw him buy 300/. worth of books to send to his library at Canterbury, and a cabinet of 30/. to give to Mr. Attorney for drawing the conveyances; and God in Heaven knows, not I, whether he intended to travel or no. But for that practice with Arabella, or letters to Aremberg framed, or any discourse with him, or in what language he spake unto him; if I knew any of these things, I would absolutely confess the indictment, and acknowledge myself worthy ten thousand deaths.

Attorney.— Now let us come to those words of destroying the king and his cubs.

Raleigh.—O barbarous! if they, like unnatural villains, should use these words, shall I be charged with them? I will not hear it; I was never any plotter with them against my country; I was never false to the crown of England. I have spent 4000/. of my own against the Spanish faction, for the good of my country. Do you bring the words of these hellish spiders, Clark, Watson, and others against me?

Attorney.—Thou hast a Spanish heart, and thyself art a spider of hell; for thou confessest the king to be a most sweet and gracious prince, and yet hast conspired against him.

Raleigh.— If truth be constant, and constancy be in truth, why has he foresworn what he has said? You have not proved any one thing against me by direct proofs, but all by circumstances.

Attorney.— Have you done? The king must have the last.

Raleigh.— Nay, Mr. Attorney, he which speaks for his life, must speak last. False repetitions and mistakings must not mar my cause. You should speak secundum allega et probata, I appeal to God and the king in this point, whether Cobham's accusation be sufficient to condemn me.

Attorney.—The king's safety and your clearing cannot agree. I protest before God, 1 never knew a clearer treason.

Raleigh.— I never had intelligence with Cobham since I came to the Tower.

Attorney.— Go to, I will lay thee upon thy back, for the most confident traitor that ever came to a bar. Why should you take 8000 crowns for a peace?

Lord- Cecil.— Be not so impatient, good Mr. Attorney, give him leave to speak.

Attorney.— If I may not be patiently heard, you will encourage traitors, and discourage us. I. am the king's sworn servant, and must speak: If he be guilty, he is a traitor; if not deliver him.

Here the Attorney sat down in a chafe, and would speak no more, until the commissioners urged and entreated him. After much ado, he went on and made a long repetition of all the evidence for the direction of the jury; and at the repeating of some things, Sir Walter Raleigh interrupted him, and said, he did him wrong.

Attorney.—Thou art the most vile and execrable traitor that ever lived.

Raleigh.— You speak indiscreetly, barbarously, and uncivilly.

Attorney.— I want words sufficient to express thy viperous treasons.

Raleigh.—-I think you want words indeed, for you have spoken one thing half a dozen times.

Attorney.—Thou art an odious fellow, thy name is hateful to all the realm of England for thy pride.

Raleigh.— It will go near to prove a measuring cast between you and me, Mr. Attorney.

Attorney.—Well, I will now make it appear to the world, that there never lived a viler viper upon the face of the earth than thou.

And therewith the learned attorney drew a letter from his pocket wherein Raleigh purports to council Cobham (after some scripture exhortation) not to associate with preachers as Essex did, and so betray himself; after which the Attorney continued :—

Attorney.—Oh! damnable Atheist! he hath learned some text of scripture to serve his own purpose, but falsely alleged. He councils him not to be councilled by preachers, as Essex was: he died the child of God, God honoured him at his death; thou wert by when he died. Et lupus et turpes instant morientibus ursa. He died indeed for his offence. The king himself spake these words; "He that shall say Essex died not for treason is punishable."

Raleigh.— I say that Cobham is a base, dishonourable poor soul.

Attorney.— Is he base? I return it into thy throat, on his behalf: but for thee he had been a good subject.

Lord-Chief-Justice.— I perceive you are not so clear a man as you have protested all this while; for you should have discovered these matters to the king.

Upon the conclusion of the evidence, the jury retired for about a quarter of an hour and returned a verdict of Guilty, upon which,

The Lord-Chief-Justice proceeded:—Now it rests with me to pronounce the judgment, which I wish you had not been this day to have received from me: for if the fear of God had been in you answerable to your other great parts, you might have lived to have been a singular good subject. I never saw the like trial, and I hope I shall never see the like again. But since you have been found guilty of these horrible treasons, the judgment of this court is, that you shall be had from hence to the place whence you came, there to remain until the day of execution; and from thence you shall be drawn upon a hurdle through the open streets, to the place of execution, there shall be hanged and cut down alive, and your body shall be opened, your heart and bowels plucked out, and your privy members cut off, and thrown into the fire before your eyes; then your head shall be struck off from your body, and your body shall be divided into four quarters, to be disposed of at the king's pleasure. And God have mercy upon your soul.

Thus ended this most extraordinary and cruelly conducted trial. But notwithstanding the dreadful sentence recorded, Sir Walter was left to his Majesty's mercy, who, apparently convinced of the iniquity of the conviction, still thought the prisoner too great a malcontent to have his freedom, and yet too innocent to lose his life. Sir Walter was therefore confined in the Tower, but permitted to enjoy libera custodia; where he beguiled his imprisonment in literary and scientific pursuits. After some time spent in close companionship with musty records, he completed his "History of the World," a book which, "for the exactness of its chronology, singularity of its contexture, and learning of all sorts, should rather seem to be the work of an age, than the production of a single individual in the compass of a few years." The publisher, however, complained that he was a loser by the sale, whereupon Sir Walter threw a second part which he had prepared into the fire.

In this history Sir Walter threw out certain allusions to a gold mine in Guiana, on the southern coasts of America, which, in his travels twenty years before, he alleged to have discovered; and after fourteen years confinement in the Tower, taking advantage of the cupidity of the times, he succeeded in convincing the people, as also the Queen and Prince, and ultimately the wily King James himself, of the truth of his assertions, and obtained a commission for an expedition to Guiana in search of this hidden treasure. The King of Spain, however, had in the mean time taken possession of Guiana, and planted a small colony there called St. Thomas; which Raleigh unadvisedly sacked and plundered, but the Spaniards he alleged commenced hostilities. After a fruitless voyage he returned to an incensed court, and was immediately arrested and brought to London, where he found the Spanish Ambassador crying aloud for vengeance on the destroyer of the rising colony of Guiana. King James was thus involved in an unpleasant situation, he must either sacrifice Raleigh or encounter the charge and toil of a war with Spain. The choice was soon made, and the unfortunate Sir Walter, at near eighty years of age, was carried to the scaffold— a martyr to his country rather than a traitor to his king. Coke must certainly be acquitted of any share in this execution; but his intemperate zeal had no doubt an intimidating effect on the jury and mainly contributed to the verdict of condemnation which they unhesitatingly returned. It was thought by many that Sir Walter's commission which enabled him to exercise martial law on a considerable body of his majesty's subjects, was in itself so incompatible with the notion of a condemned criminal, that it amounted to a pardon; and certain it is that this act of apparent injustice and cruelty gave general dissatisfaction to the nation.

The next important occasion which called forth a display of the Attorney's sagacity in unravelling the perplexities of a dark and mysterious case, was the Gunpowder Treason, upon which he was engaged three-andtwenty days in arranging and connecting the evidence. At the conclusion of his able speech to the jury, he craved to be reminded of the Lords Commissioners if he had forgot any thing material. Upon which Cecil, then Earl of Salisbury, said, " Mr. Attorney, I do assure you, you have done very well, painfully and learnedly; the evidence you have well opened, and I never heard so much matter better compacted or made more intelligible to a jury."—The principal conspirators pleaded guilty, and Garnet's trial was the only one on which the learned Attorney had an opportunity of displaying his learning and ingenuity; this he did with more temper and suavity than on former occasions, and consequently commanded more general attention and respect. His speech on this occasion, which is given at length in the State Trials, is considered one of the best he ever delivered.

In June, 1606, Gawdy, Chief Justice of the Common Pleas, died, and Sir Edward now mounted the Bench. The day after his appointment, he took his seat as Chief Justice, and was attended by the Society of the Inner Temple, who indulged themselves in the evening, as was usual, with a solemn revel; and this perhaps was one of the last occasions on which a mummery of that kind was performed. The chief seat in the Common Pleas was at this time much more beneficial in point of emolument than that in the King's Bench. It was also less subject to the influence of political intrigues, and was consequently more steady and desirable in the main. In this place Sir Edward conducted himself with much propriety, there being perhaps fewer occasions for the exercise of his forbearance than in the stormy conflicts he was obliged to endure as Attorney-General.

Sir Edward held the Chief-Justiceship of the Common Pleas about seven years, when (August, 1613) Fleming, Chief Justice of the King's Bench, died. By this time Bacon had procured the post of Solicitor-General, and was one of the Privy Council: he was on terms of much intimacy also with Villiers the prime favourite of the King, and through his means this accomplished politician obtained access to the royal ear; and it now appears by the publication of his letters, that to mortify his rival Coke, and at the same time to gratify his own ambition, he advised in a memorial which he drew up, that Coke should be removed to the King's Bench, Hobart, Attorney-General, to the Common Pleas, and that he himself should be made Attorney-General. This advice was adopted, and Sir Edward Coke was, on the 25th of Ocber, 1613, sworn in Chief Justice of the King's Bench. It was one object of Bacon to embroil the Chief Justice with political questions, well knowing his inflexible adherence to the law would render his conduct obnoxious to those whom he opposed.

The Archbishop of Canterbury was at this time at the head of a High Commission Court for the administration of ecclesiastical affairs and the punishment of spiritual delinquents. Besides the power of fine and imprisonment, this Court occasionally indulged in the unconstitutional use of the rack and torture. And its commitment of Sir William Chancey to the Fleet for adultery, now raised a question as to the extent of its jurisdiction. Sir Edward Coke held that the High Commission Court had no power to commit on suspicion, and its power to imprison in any case he also allowed to be impugned without contradiction. (See 12 Co. 19.) This gave great umbrage to the Archbishop, and highly incensed the church party.

With the Lord Chancellor Ellesmere also, Sir Edward found himself entangled in an unpleasant dispute. It had always been, and still is the province of the Chancery to soften the rigour of the common law. It has therefore of necessity, power to modify in some degree the adjudications of courts of law. This the Chief-Justice denied, and hinted, that if after judgment given in the Court of King's Bench, any man should draw that judgment to a new examination in any other court, he the Chief Justice would speedily regard it. The Chancellor, however, was held justified in his claim of jurisdiction in the Star Chamber, and the Chief Justice created many enemies by the dispute.

With the King himself, the Chief Justice had also frequent conflicts on the policy and legality of court measures. On the question of proclamations which King James had been advised were equal to acts of parliament, Lord Coke delivered the following unanimous resolution of himself and brethren. "The king by his proclamation cannot create any offence which was not an offence before; for then he may alter the law of the land by his proclamation in a high point. The law of England is divided into three parts; common law, statute law, and custom; but the king's proclamation is none of them. The king has no prerogative but that which the law of the land allows him. But the king, for prevention of offences, may, by proclamation, admonish his subjects that they keep the laws and do not offend them upon punishment to be inflicted by the law &c. Lastly, if the offence be not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it punishable there:" 12 Coke, 76. After this resolution, proclamations were abandoned; but the king still claimed the prerogative in his next speech to parliament.

His majesty was further offended at Sir Edward's obstinate perseverance in doubts concerning the royal prerogative in granting commendams. At this time a power was claimed by the crown of granting vacant benefices falling into its hands by lapse or otherwise in commandant, as it was called, or in augmentation of poor livings. This prerogative had been generally exercised in favour of poor bishopricks: and now it occurred that a living in Norfolk which had lapsed to the crown, was granted in commendam to the bishop of Lichfield and Coventry. The patron of the advowson sued his writ against the bishop; and, among other important points of law which were involved in the discussion of the case, the right of the sovereign to grant commendams was called in question. The king, who perhaps anticipated what would happen, had ordered Secretary Winwood, and the Bishop of Winchester, Dr. Bilson, to attend in court during the trial, and make a report to him of the proceedings. However the bishop alone was present at the hearing of the cause, and he gave his majesty to understand that Serjeant Chiborne, who argued against the commendams, had maintained several positions prejudicial to the royal prerogative; among others, that the king had only power to grant commendams in case of necessity, which necessity could never, in fact, exist, since no clerk was bound to keep hospitality above his means. On the receipt of this information, the AttorneyGeneral, Bacon, was directed to acquaint Sir Edward Coke that it was the king's pleasure that all further proceedings in the cause should be stayed till the judges could have an opportunity of conferring with His Majesty on the subject. At Coke's desire a similar intimation was officially sent to all the other judges, and they assembled together for the purpose of consulting as to the course they should pursue. The result of their deliberation was a resolution to act in every respect as though they had received no notice to suspend the proceedings: and a letter was despatched to James, who was then absent from London, containing a firm but respectful remonstrance against the command that had been addressed to them, together with their reasons for not obeying it.

Shortly after this correspondence the king returned to London, and the twelve judges were immediately summoned before the council at Whitehall (June 6th, 1G16) to answer for their conduct. His Majesty himself recapitulated the principal circumstances that had occurred, and commented with much asperity on the liberties that had been taken with his prerogative; observing that it was a new thing, and very indecent and unfit for subjects to disobey the king's commandment, but most of all to proceed in the mean time and to return to him a bare certificate; whereas they ought to have concluded with the laying down and representing their reasons modestly to His Majesty why they should proceed, and so to have submitted the same to his princely judgment, expecting to hear from him whether they had given him satisfaction." Immediately upon this declaration, the twelve judges fell on their knees and acknowledged their error as to the form of the letter, for which they craved His Majesty's gracious favour and pardon; but Sir Edward Coke entered into a defence of the matter of it, showing that the delay required would have been a delay of justice; and therefore contrary to law and the judge's oath. After some little altercation between the Attorney-General and the Lord-Chief-Justice, this point was referred to the decision of Lord Ellesmere, who gave it as his opinion that the stay which had been required by His Majesty was not against the law, nor the judge's oath. The judges were then severally asked, "Whether if, at any time, in a case depending before them, His Majesty conceived it to concern him either in power or profit, and thereupon required to consult with them and that they should stay proceedings in the mean time, they ought not to stay accordingly?" and they all, with the exception of the Lord-Chief-Justice, declared that they would. But Sir Edward Coke contented himself with answering that " when the case should be he would do that which should be fit for a judge to do." They were then permitted to proceed in the cause, which was finally decided against the Bishop of Litchfield and Coventry.

This firm and resolute conduct of the Lord-ChiefJustice gave great offence to his Majesty, and it is supposed that this weak monarch, in addition to his other reasons for being displeased with Coke, had conceived a mean jealousy of his popularity. It was evident, indeed, that the fearless integrity which had thwarted the King's views was the principal cause of that popularity; and the circumstance did not escape the attention of James, who afterwards remarked that Sir Edward Coke had obtained it without " having in his nature one particle of those things which are popular in men, being neither civil, nor affable, nor magnificent." He had, however, taken the surest means to acquire the lasting and deserved esteem of his countrymen.

One of the last judicial acts of the Chief Justice was the trial of Mrs. Turner for the murder of Sir Thomas Overbury, and what would be rather a novelty in the present day, the whole conduct of the prosecution was committed to his especial charge by the King—so enormous appeared the crime, and so established was the Judge's fame for tracking the crooked course of villany. The labyrinth of guilt he carefully unravelled, and pursued his scrutiny with great industry and severity; even his great rival Bacon, then Attorney general, paid him many high compliments on the efficacy of his searching examinations. It is, however, lamentable to relate the unbecoming language which the Chief Justice still thought proper to indulge in against the prisoner. He told her that she was guilty of the seven deadly sins, that she was a whore, a bawd, a sorcerer, a witch, a papist, a felon, and a murderer. It is scarcely necessary to add that she was condemned and executed, though the prime movers of the murder, the Earl and Countess of Somerset, escaped with their lives.

The declining health of the venerable Lord Chancellor Ellesmere, now made it apparent that the woolsack would soon be without an occupant. The sharp-sighted Bacon saw in the profound legal attainments of his rival, the only competitors. The credit of the Chief Justice was by this time completely undermined at court, and his thwarting the favourite Villiers in his endeavours to procure the reversion of a lucrative situation in the Court of King's Bench, may be considered as completing the full measure of his iniquity. It was not therefore, difficult to procure his removal. Some slight pretext was however necessary. He was accused of concealing a statute of 12,000/. due to the king from the son of the late Lord Chancellor Hatton, of speaking irreverently of His Majesty in court, of opposing the Attorney-General (Bacon), in the discharge of his duty, of assuming the style of Chief Justicier of England," and of presuming to allow his coachman to drive him bareheaded. Upon these charges, he was in November 1616 displaced, but no impeachment followed. In the ensuing March, Lord Ellesmere died, and Bacon was made Lord Keeper.

At the time of his discharge Sir Edward Coke was 67 years of age, but by great temperance and regularity he preserved his health unimpaired, and lived afterwards to the advanced age of 83. He had been ten years on the bench, and by his opposition to court measures had rendered himself a great favourite with the people; a popularity which his successor Montagu was admonished to forego. The remaining sixteen years of his life were actively spent, and his patriotic exertions in the cause of freedom, still further secured to him the love and esteem of his countrymen.

Sir Edward was anxious for a renewal of the king's favour, and therefore projected a marriage between his youngest daughter by Lady Hatton, and John Villiers, brother of the favourite Duke of Buckingham. At this proposal Lady Hatton was highly offended, and refused her consent altogether until it was wrung from her by an expression of his majesty's displeasure. The liberal settlements proposed by Sir Edward, and exacted from his lady, hastened on the match, and the parties were married by Michaelmas.

The effect of this union was the restoration of Sir Edward to the council table, and a temporary reconciliation with his wife; but it appears to have been of short continuance, for within a month after, Lady Hatton gave a grand entertainment to the new-married couple at her house in Hatton Garden, at which the King, the Duke of Buckingham, and other great personages were present, but the father of the bride was not only not invited, but expressly excluded.

Sir Edward lived long enough to prepare an impeachment against his formidable rival Bacon, for bribery and corruption, upon which he was convicted, and sentenced to pay a fine of 40,000/., and to be imprisoned in the Tower during his majesty's pleasure. This sentence the disgraced courtier survived five years, but the brilliancy of his literary productions and his unrivalled merits as a philosopher have eclipsed the weaker points of his character.

In the parliament of 1621, Sir Edward was returned for Liskeard in Cornwall, in which to use the words of Camden, he bore himself with the truest patriotism, and taught that no proclamation was of weight against parliament. For these, and other liberal expressions he was committed to the Tower *, but upon the dissolution of parliament soon after, he was released, and retired

* The apartment allotted to him was the kitchen, and on the walls it is said were found inscribed, " This place has long wanted a Cook," a curious coincidence it' true, as his name had often been pronounced and written Cook,

to his country house at Stoke Pogeys, to enjoy the residue of his days free from the turmoils of public life.

It was here, in the 75th year of his age, that he employed his leisure in writing the ensuing commentary on the treatise of Littleton, which was first published in 1628, a work replete with sound and useful learning.

In March 1625, King James died, leaving an only son Charles, and one daughter by his queen, Anne of Denmark. Charles, in the 25th year of his age ascended the throne in the midst of a violent struggle then raging between prerogative and liberty. In his third parliament, the venerable subject of this memoir was returned for Buckingham, and his strenuous and generous efforts in forcing a declaration of rights were warmly applauded by the people and never forgotten by the court. This famous ordinance commonly known as The Petition of Right, was mainly attained by the animating voice and undaunted resolution of Coke, who in defiance of threats and promises, urged on the measure with such address, that in a few days the Lords were prevailed on to join the lower House, and the petition was passed into a law.

On the dissolution of this parliament, Sir Edward retired from public life, but his unpopularity at court frequently occasioned him great disquiet. A little before his death his house was searched for seditious correspondence, and all his papers and manuscripts seized and deposited in the exchequer. Among the documents carried off was his will, which was never afterwards found.

Sir Edward died on the 3rd September 1633, in the 83rd year of his age, as the following epitaph from his monument in Titeshall Church, where he was buried, will more fully shew :—

Dedicated to the Memory of

Sir Edward Coke, Knight, a late reverend Judge,

Born at Mileham in this County of Norff.

Excellent in all Learning divine and human, That for his

Owne, This for his Countrie's good, especially in the Knowledge

And Practice of the Municipal Lawes of this Kingdome,

A famous Pleader, a sound Counsellor.

In his younger Yeares Recorder of the Cities of Norwiche

And London, next Solicitor Generall to Queene

Elizabeth, and Speaker of the Parliament in the 35

Year of her Reigne. Afterwards Attorney General to

The same Queene, as also to her Successor King James.

To both a faithfull Servant for their Ma"", for their Safetye.

By Kinge James constituted Chief Justice of bothe Benches

Successively. In both a Just, in both an Exemplary Judge.

One of his Mai'"1, most honorable Privie Counsell. As also of

Counsell to Queene Anne, and Chief Justice in Eire

Of all liir Forests Chases and Parkes.

Recorder of the Cittye of Coventrye, and High Steward

Of the Universitye of Cambridge, whereof he was sometime

A member in Trinitye Colledge.

He had two Wives; By Bridget his first wife (one of the

Daughters and Coheires of John Paston, Esq.) he had Issue Seaven

Sonnes and Three Daughters; And by the Lady Elizabeth his second

Wife (One of the Daughters of the Right Honorable Thomas late Earle

Of Exeter) he had Issue Two Daughters.

A chast Husband, a provident Father.

He crowned his pious Life with as pious and

Christian Departure at Stoke Poges in the

County of Buckingham, on Wednesdaye

The Third Daye of September in the Yeare of

Our Lord M.DCXXXIIII. And of his age LXXXIII.

His last Wordes

Thy Kingdom come, Thy Will be done.

Learne Reader to live so that thou mayst so die.

Sir Edward Coke was gifted with the advantages of a fine person and commanding appearance. The bust of him which is preserved in the library at Trinity College, Cambridge, and the portrait which hangs in the hall of Lyon's Inn, represent him as having handsome and regular features, with a gravity of countenance to which the costume of his time, and particularly the long pointed beard, did not a little contribute. He was at all times particularly attentive to his apparel and general personal appearance, holding it for a maxim that the exterior neatness of the body ought to be emblematic of the inward purity of the heart.

The patriotism and independence of Sir Edward Coke, says a contemporary writer, must ever be considered as the brightest feature in his character. It is as a patriot alone that he stands superior to his great contemporary Bacon, with whom throughout the greater part of his professional career he was placed in constant competition. Both had embraced the same profession, both prosecuted it with ardour and success; one attaining the highest, the other the second dignity it can confer; and both lived to experience the instability of the preferment they had struggled so hard to acquire. But the causes which produced the downfall of these illustrious persons were widely different"; and he whose integrity was unimpeached rose highest in public estimation after his disgrace at court; while all the brilliant qualities of his rival, when sullied by corruption, failed to procure him the consideration and esteem that to a generous mind form the most gratifying reward of every exertion. As a practical lawyer, Coke was undoubtedly without an equal. All the abstruse learning of the common law, the subtle niceties of pleading, and the voluminous enactments of the statute-book, were treasured in his memory; and from this copious repertory he could always draw wherewithal to supply the emergencies of a particular case.

The regular life which Sir Edward Coke observed, kept him in vigorous health to the last. He seldom slept more than six hours, and usually rose at three in the morning. He was no friend to medicine, and was wont to give God solemn thanks that he never gave his body to physic, his heart to cruelty, nor his hand to corruption. He was very frugal in his expenditure, and as his income was large he left a good inheritance to his family. He was ardently attached to his profession, and one may suppose from the extent, variety, and depth of research displayed in his numerous publications, that he was a slave to his studies; but with method in his labour, and perseverance in his work, he has shewn what temperance and assiduity combined may accomplish. Of the common law he was a great admirer, and when a statesman one day intimated that he meant to consult him on a point of law: "If it be common law," said Coke, " I should be ashamed if I could not give you a ready answer; but if it be statute law, I should be equally ashamed if I answered you immediately." This statesman was Archbishop Abbot, who while hunting in the park, most unhappily killed a man with his cross-bow. Lord Coke was asked on the event being mentioned to him (he was playing at bowls at the time) whether a bishop might hunt in a park by the laws of the realm?—He answered, that it was clear he might, for there was an old law which required of bishops when they died to leave their pack of hounds to the King's free use and disposal.

Bacon's character of Coke is perhaps applicable in some degree to all great lawyers. In a remonstrance addressed to the Chief Justice while under censure, which is undoubtedly Bacon's production, he says, "You cloy your auditory when you would be observed; speech must be either sweet or short. You converse with books, not men, and books especially human; and have no excellent choice with men, who are the best books; for a man of action and employment you seldom converse with, and then but with your underlings."— This from an eye witness was perhaps a just though a severe criticism. But in his general character Coke is uniformly spoken of as a man of great prudence and learning, and of a pious and virtuous life. The depth of his knowledge and the wisdom of his judgments have never been disputed, and he must be regarded by all as a sound, constitutional, and upright judge, notwithstanding the obliquity of his manners and the austerity of his deportment.

His works consist of Institutes of the Laws of England in three parts, of which the Commentary on Littleton is the first; and Reports of Cases in the King's Bench, now collected in six volumes, together with some few other smaller productions, but all of equal note. He has found an able biographer in Mr. Woolrych, whose recent "Life of Sir Edward Coke" has set the character of the Chief Justice in a fairer light than it has hitherto been placed in. In Fuller's Worthies also will be found many particulars concerning this great Judge, and his life in the Biographia Britannica, as also that in the biographical department of the Library of Useful Knowledge, are spirited productions.

LORD COKE'S PREFACE.

We have formerly written, that this book is the ornament of the common law, and the most perfect work of its kind, and there never was any learned man in the law, that understood our author, but concurred with me in this commendation. And albeit our author in his Three Books cites not many authorities, yet he holds no opinion but what is approved by these two faithful witnesses, authority and reason. We have known many of his cases drawn in question, but never could find any judgment given against them, which we cannot affirm of any other book in our law.

We have in these Institutes endeavoured to open the true sense of each particular case, and the extent of the same, either in express words or by implication; and where any position is altered by act of parliament, we have endeavoured to observe the same and wherein the alteration consists. And we have by comparison of the late and modern impressions of the text with the original print, vindicated our author from two injuries: First, from divers corruptions in the late and modern prints, and, Secondly, from all additions and encroachments upon him, that nothing might appear in this work but his own.

Our hope is, that the young student, who meeting with difficult terms and matter was at first discouraged, may, by reading these Institutes, have the difficulty and darkness both of the matter and terms of art, facilitated and explained, to the end he may proceed in his study cheerfully and with delight; and therefore I have termed them Institutes, because my desire is, they should institute and instruct the studious, and guide him in a ready way to the knowledge of the laws of England.

This Part we have (not without precedent) published in English, to the end that the nobility and gentry of this realm, who may be pleased to read him and these Institutes, may understand the language wherein they are written. And I cannot conjecture that the general communicating of these laws in the English tongue can work any inconvenience, but introduce great profit, seeing that Ignorantia juris non excusat. Et neminem oportet esse sapientiorem legibus, No man ought to be wiser than the law. And true it is, that our books of reports and statutes in ancient times were written in such French as in those times was commonly spoken and written by the French themselves. But this kind of French that our author has used, is most commonly written and read, and very rarely spoken, and therefore cannot be either pure, or well pronounced. But it should be remembered that by long custom many ancient terms and words drawn from the French are grown to be terms of art, and are so apt and significant to express the true sense of the laws, and are so woven in the laws themselves, that it is in a manner impossible to change them, neither ought legal terms to be changed. In school divinity you meet with a whole army of words, which cannot defend themselves in hello grammatical}, and yet are more significant, compendious, and effectual to express the true sense of the matter, than if they were expressed in pure Latin.

This work we have called, "The First Part of the Institutes," for two causes: First, because our author is the first book that the student takes in hand. Secondly, because I have other Institutes not yet published, viz. The Second Part, being a Commentary upon the statute of Magna Charta, Westm. 1. and other old statutes. The Third Part treats of criminal causes and pleas of the crown: which Three Parts we have by the goodness of Almighty God already finished. The Fourth Part we have purposed to be of the jurisdiction of courts: but hereof we have only collected some materials towards the raising of so great and honourable a building. We have now, by the goodness and assistance of Almighty God, brought this twelfth work to an end: in the Eleven Books of our Reports we have related the opinions and judgments of others; but herein we have set down our own.

Before I entered into any of these Parts of our Institutes, I, acknowledging my own weakness and want of judgment to undertake so great works, directed my humble suit and prayer to the Author of all goodness and wisdom, out of the Book of Wisdom; Pater et Deus tnisericordice, da mihi sedium tuarum assistricem Sapientiam! Mitte earn de ca'lis Sanctis tuis et d sede magnitudinis tucc, at mecum sit et mecum laborct, ut sciam quid acceptum sit apud te! "O Father and God of mercy, give me wisdom, the assistant of thy seats! O send her out of thy holy heavens, and from the seat of thy greatness, that she may be present with me, and labour with me, that I may know what is pleasing unto thee!" Amen.

Our author dealt only with estates and tenures. I have added somewhat concerning estates by force of certain statutes, as of statute-merchant, statute-staple, and elegit, (whereof our author intended to have written) and likewise of executors to whom lands are devised for payment of debts, and the like. And once for all I desire the learned reader will not conceive any opinion against this painful and large volume, until he shall have advisedly read over the whole, and diligently searched out, and well considered of the several authorities, proofs and reasons which we have cited and set down for warrant and confirmation of our opinions throughout this whole work.*

My advice to the student is, that before he read any part of our Commentaries upon any Section, that first he read again and again our author himself in that Section, and do his best endeavours, first of himself, and then by conference with others, (which is the life of study) to understand it, and then to read our Commentary thereupon, and no more at any one time than he is able with a delight to bear away, and after to meditate thereon, which is the life of reading. And albeit the reader shall not in any one day (do what he can) reach to the meaning of our author, or of our Commentaries, yet let him be no way discouraged, but proceed; for on some other day, in some other place, that doubt will be cleared.

* The margins of all the editions of Lord Coke's works are crowded with authorities from the Year Books, and the text writers of his day. These have been omitted in the present edition, because of their uselessness in study, and the difficulty of following them, as also from the scarceness of the authorities referred to.

READABLE EDITION

COKE UPON LITTLETON.

BOOK I.
CHAPTER I. Section 1.

FEE-SIMPLE.

Tenant in fee-simple is he who has lands or tenements to hold Tenant in fee io him and his heirs for ever. Therefore, if a man purchase lands M ai or tenements in fee-simple, it behoves him to have these words in his purchase, To have and to hold to him and his heirs: for it is these words (his heirs) that make the estate of inheritance. If a man purchase lands by these words, To have and to hold to him for evtr; or by these words, To have and to hold to him and his assigns for ever: in these cases he hath but an estate for term of hfe, for that there lack the words (his heirs), which words only make an estate of inheritance in all feoffments and grants.

Tenant.] In latin, tenens is derived from the verb teneo, and Tenant—mam has in law several significations. 1. It signifies the estate of the tenant in the land. 2. It signifies the tenure or service whereby the lands or tenements are holden. All lands and tenements in England in the hands of subjects are holden mediately or immediately of the king, and therefore the owner of the land is not called a tenant because he holds of some superior lord by some service. But the king in this sense cannot be said to be a tenant, because he has no superior but God Almighty. Of the several estates of land our author treats in his first book, and he begins with fee-simple, because all other estates are derived out of the same.

Fee-simple tthat.

Fee-simple.] Fee legally signifies inheritance, and simple is added for that it is descendible to heirs generally, that is, simply without restraint to heirs of the body or the like. Of fee-simple it is commonly holden that there be three kinds, viz. fee-simple absolute, fee-simple conditional, and fee-simple qualified or base. But the more genuine and apt division were to divide fee, that is, inheritance, into three parts, viz. simple or absolute, conditional, and qualified or base; for this word (simple) properly excludes both conditions and limitations that defeat or abridge the fee. Hereby it appears that fee in legal understanding signifies that the land belongs to us and our heirs, in respect whereof the owner is said to be seised in fee, and in this sense the king even may be said to be seised in fee. Of fee in the first sense our author treats in this first book, and as it is taken in the second sense, in his second book; and of the third you shall read in our author, Sect. 13. G44, 645.

Lands or tenements.] Here it is to be observed, that a man may have a fee-simple in three kinds of hereditaments, viz. real, personal, and mixt. Real, as lands and tenements, whereof our author here speaks. Personal, as if an annuity be granted to a man and "his heirs," it is a fee-simple personal. And lastly, hereditaments may be mixt both of the realty and personalty. As when the king creates an Earl of such a county or other place, to hold that dignity to him and his heirs, this dignity is personal, and also concerns lands and tenements. But of this matter more shall be said in the next chapter. Sect. 14 and 15.

Fee by right and wrong distinguished.

A lawful or pure inheritance.] Here it is well put in the disjunctive lawful or pure, for every fee-simple is not lawful. A disseisor, abator, intruder, usurper, &c. have a fee-simple, but it is not a lawful fee. So that every man who has a fee-simple, has it either by right or by wrong. If by right, then he has it either by purchase or descent. If by wrong, then either by disseisin, intrusion, abatement, usurpation, &c. In this chapter Littleton treats only of a lawful fee-simple, and divides the same as is aforesaid.

For if a man purchase.] Persons capable of purchase are of two ^l"> man rmrsorts, natural persons created of God, as I. S. I. N. &c. and persons incorporate or politic created by the policy of man, who are therefore called bodies politic; and these be of two sorts, viz. cither sole, or aggregate of many: again, aggregate of many, either of all persons capable, or of one person capable and the rest incapable or dead in law, as in the Chapter of Discontinuance, Sect. 665, shall be shewn. Some men have capacity to purchase, but not ability to hold: some, capacity to purchase and ability to hold or not at the election of themselves or others: some, capacity to take and to hold: some, neither capacity to take nor to hold; and some, are specially disabled to take some particular things.

If an alien christian or infidel purchase houses, lands, tenements, Aiiem. or hereditaments, to him and his heirs, albeit he can have no heirs, L ■" yet he is of capacity to take a fee-simple, but not to hold. For npon an office found, the king shall have it by his prerogative, of whomsoever the land is holden. And so it is if an alien purchases land and dies, the law casts the freehold and inheritance upon the king. If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the king npon office found shall have them. If an alien be made a denizen and purchase land, and die without issue, the lord of the fee shall have the escheat, and not the king. But as to a lease for years, there is a diversity between a lease for years of a house for the habitation of a merchant strangrer being an alien, whose kino- is in league with ours, and a lease for years of lands, meadows, pastures, woods, and the like. For if he take a lease for years of lands, meadows, &c. upon office found, the king shall have it. But of a house for habitation he may take a lease for years as incident to commerce; for without habitation he cannot merchandize or trade. But if he depart or relinquish the realm, the king shall have the lease. So it is, if he die possessed thereof, neither his executors or administrators shall have it, but the king; for he had it only for habitation as necessary to his trade or traffic, and not for the benefit of his executor or administrator. But if the alien be no merchant, then the king shall have the lease for years, albeit it were for his habitation; and so it is if he be an alien enemy. And all this was resolved by the judges assembled for that purpose in the case of Sir James Croft, Pasch. 29. of the reign of Queen Elizabeth.

Fehn. Also if a man commit felony, and after purchase lands, and after is attainted, he had capacity to purchase, but not to hold it; for in that case the lord of the fee shall have the escheat; and if a man be attainted of felony, yet he has capacity to purchase to him and to his heirs, albeit he can have no heir, but he cannot hold it; for in that case the king shall have it by his prerogative, and not the lord a fee; for a man attainted hath no capacity to purchase (being a man civiliter mortuus) but only for the benefit of the king, no more than the alien-nee has.

Corporation. If any sole corporation or aggregate of many, either ecclesiastical or temporal (for the words of the statute of mortmain, 7 Edw. 1. c. 2. are si quis religiosus vel alius) purchase lands or tenements in fee, they have capacity to take but not to retain unless they have a sufficient license in that behalf; for within the year after the alienation the next lord of the fee may enter; and if he do not, then the next immediate lord to have half a year, and so of all the mesne lords, up to the king who shall have the land so aliened for ever in default of the other lords; but this is to be understood of such inheritances as may be holden. Of inheritances which are not holden of any, as rent charges, commons, and the like, the king shall have them presently by a favourable interpretation of the statute. But an annuity granted to a corporation is not considered as in mortmain, because it charges the person only. And lands granted to a corporation are said to be in mortmain, because the lands are as to the superior lords dead to their services, for by an alienation in mortmain they lose their escheats and the services of their knights, also the feudal incidents of wardship, marriage, reliefs and the like; and therefore such an alienation is said to be in mortmain or dead hand, for that a dead hand yields no service.

Infants. An infant or minor (and all are such who are under the age of twenty-one years) has, without the consent of any other person, capacity to purchase, and the law will assume that such purchase is for his benefit, but at his full age he may either agree threunto and perfect it, or without cause to be alleged, waive or disagree to the purchase; and so may his heirs after him, if he agreed not thereunto after his full age.

Lunatic. A man of non-sane memory may, without the consent of any other, purchase lands, and he himself cannot waive it, but if he die in his madness, or after his memory recover without agreement thereunto, his heir may waive and disagree to the estate purchased without any cause shewn; and so of an idiot. But if the man of non-sane memory recover his memory and agree to the purchase, then is it unavoidable.

And note that an hermaphrodite may purchase land according Hermaphrodite. to that sex which prevails. [3a]

A feme covert cannot take any thing of the gift of her husband Feme covert. [except by will or through the medium of uses and trusts] but she is of capacity to purchase of others without the consent of her husband. And of this opinion was Littleton in the year-books, and in this book, Sect. 677; but her husband may disagree thereunto and devest the whole estate; but if he neither agree nor disagree, the purchase is good; but after his death, albeit her husband agreed thereunto, yet she may, without any cause alleged, waive the same, and so may her heirs also, if after the decease of her husband she herself agreed not thereunto. A wife {uxor) is a good name of purchase, without a Christian name; and so it is if a Christian name be added and mistaken, as Em for Emelyn, Sec. for utile per inutile non vitiatur.

But the queen consort of the king of England, is a separate Queen. person from the king by the common law, and is of ability and hath capacity to purchase and grant without the king. Of which see more at large, Sect. 200.

The parishioners, inhabitants, or churchwardens [of a parish] are Churchu ardent. not [as such] capable of purchasing lands [except by an act of parliament or grant from the crown] but goods they may purchase.

An ancient grant by a lord to his commoners of a right of way Commoners. was formerly good; but otherwise it is of such a grant at this day. And so in ancient time a grant made to a lord et ftominibus mis tarn liberis quam tiativis, or the like, was good ; but these persons are not of capacity to purchase land by such a name at this day.

name.

And regularly it is requisite, that the purchaser be named by Purchaser's the name of baptism and his surname, and that special heed be taken to the name of baptism, for a man cannot have two names of baptism but he may have divers surnames. And yet in

some cases, though the name of baptism be mistaken (as in the case put before of the wife), the grant is good. So it is if lands be given to Robert Earl of Pembroke, where his name is Henry,—to George bishop of Norwich, where his name is John:—in these and the like cases there can be but one of that dignity or name. And therefore such a grant is good, albeit the name of baptism be mistaken.

Kame <facer- If by license lands be given to the dean and chapter of the holy and undivided Trinity of Norwich, this is good, although the dean be not named by his proper name, provided there be a dean at the time of the grant, [for the dean is the head, and without a head the corporation is not complete and cannot purchase] but in pleading the dean's proper name must be shewn. And so on the other side, if the dean and chapter make a lease, without naming the dean by his proper name, the lease is good, if there were a dean at the time of the lease; but in pleading, the proper name must be shewn; andjso is the year-book 18 E. 4. to be intended; for the same j udges in 13E. 4. held a grant to a mayor aldermen and commonalty to be good although the mayor was not named by his proper name; but in pleading the name must be shewn as it was there also holden.

Kame of bap- If a man be baptised by the name of Thomas, and after, at his HrmaTLi Ms-' confirmation, by the bishop he is named John, he may purchase by uuguuhed. th.e name of his confirmation. And this was the case of Sir Francis Gawdie, late chief justice of the court of Common Pleas, whose name of baptism was Thomas, and his name of confirmation Francis: and the name of Francis he afterwards bore and by the advice of the judges used that name in all his subsequent purchases and grants. And this agrees with our ancient books, where it is holden that a man may have divers names at divers times, but not divers Christian names. And the court said, it may be that a woman is baptised by the name of Anable, and forty years after she is confirmed by the name of Douce, and then her name is changed, and after she is to be called Douce, but all purchases, &c. made by her by her name of baptism before her confirmation remain good; a matter not much in use now, nor requisite to be put in use, yet is it necessary to be known. But purchases are good in many cases by a known name, or by a certain description of the person without either surname or name of baptism, as taori J. S. as hath been said, or primogenitoJUio, or secundo genitoJUio, &c. or jilio natil minimo, J. S. or senior/ puero, or omnibus filiis, or jiliabus J. S. or omnibus liberis seu excitibus of J. S. or to the right heirs of J. S.

A bastard having acquired a name by reputation may purchase by Emtard. his reputed or known name to him and his heirs, although he can L^J

have no heir but of his body. A man makes a lease to B. for life, remainder to the eldest issue male of B. and the heirs males of his body. B. has issue a bastard son, he shall not take the remainder, because in law he is not his son; for que ex damnato coitu nascunlur inter liberos non computentitr. And, as Littleton says, a bastard is quasi mdliusjilius and cannot have a name of reputation immediately on his birth. So it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate. B. has issue a bastard on the body of Jane S., this son or issue shall not take the remainder; for (as it has been said) by (he name of issue, if there had been no other words, he could not take; and (as it has been also said) a bastard cannot take but after he has gained a name by reputation, [as] that he is the son of B. &c. [then if an estate be limited or given to him by that name he may take.] Hence a bastard can take no remainder limited before he be born; but after he is born and has gained by time a reputation to be known by the name of a son, then a remainder limited to him by the name of the son of his reputed father, is good; but if he cannot take the remainder by the name of issue at the time when he is born, he shall never take it at all. And so it seems for the same cause that if, after the birth of issue, B. had married Jane S., whereby the issue might have become bastard eigne and have had a possibility to inherit, vet he shall not take the remainder.

Persons deformed having human shape, idiots, madmen, lepers, who may pw deaf, dumb, and blind, minors, and all other reasonable creatures, c ase' have power to purchase and retain lands or tenements.

But the common law disables some men to take any estate Offices. in some particular things; as if an office either of the grant of the king or subject, which concerns the administration, proceeding, or execution of justice, or the king's revenue, or the common-wealth, or the interest, benefit, or safety of the subject, or the like, if these or any of them be granted to a man that is inexpert, and has

no skill and science to exercise or execute the same, the grant is merely void, and the party disabled by law and incapable to take the same pro commodo regis et populi; for only men of skill, knowledge, and ability to exercise the office are capable of the same, to serve the king and his people. An infant or minor is not capable Steward. of an office of stewardship of the court of a manor, either in pos

session or reversion. No man, though never so skilful and expert, is capable of a judicial office in reversion, but must expect until it fall in possession. And see Sect.378. where bargaining or giving of money or any manner of reward &c. for offices there mentioned, shall make such a purchaser incapable thereof, which is worthy to be known, but more worthy to be put in due execution.

Monitor. A monster born within lawful matrimony, that hath not human

shape, cannot purchase, much less retain any thing.

Professed monks.

The same law is de professis et mortuis seeculo, for they are civiliter mortui; whereof you shall read at large in its proper place, Sect. 200.

Purchase and descent distinguished.

Purchase.] In latin perquisitum, of the verb perquirere. Littleton describes it in the end of this chapter in this manner: also purchase is called the possession of lands or tenements that a man has by his deed or agreement, unto which possession he comes not by title of descent from any of his ancestors or of his cousins, but by his own deed. So that I take it, a purchase is when one comes to lands by conveyance and [rightful] title, and that decisions, abatements, intrusions, usurpations, and such like estates gained by wrong, are not to be called purchases but oppressions and injuries.

Fraudulent conveyances.

Note, that purchasers of lands, tenements, leases, and hereditaments, for good and valuable consideration, shall avoid all former fraudulent and covinous conveyances, estates, grants, charges, and limitations of use of or out of the same, by a statute made since Littleton wrote, [27 Eliz. c. 4. 13 Eliz. c. 5.] whereof you may plainly and plentifully read in my reports, to which I will add, this case: I. C. had a lease of certain lands for sixty years if he lived so long, and forged a lease for ninety years absolutely, and he by indenture reciting the forged lease, for valuable consideration, bargained and sold the forged lease and all his interest in the land, to R. G. It seemed to me that R. G. was no purchaser within the statute of 27 Eliz. for he contracted not for the true and lawful interest, for that was not known to him and perhaps if he had known the shortness of the term, he would not have dealt for it, but the visible and known term which he purchased was forged; and although by general words the true interest did pass, yet he gave no valuable consideration for it, neither did he contract for it. And of this opinion were all the judges in Serjeant's-Inn, in Fleet-street.

And on the other side, purchases, estates, and contracts may be Utury. avoided, since Littleton wrote, by certain acts of parliament [An] against usury; and to those who lend money my caveat is, that neither directly nor indirectly, by art, or cunning invention, they take above ten per cent, interest for their money [the then current interest], for they that seek by sleight to creep out of these statutes, will deceive themselves and repent in the end.

Purchase lands.] Littleton here, and in many places, puts lands but for an example; for his rule extends to seigniories rents, advowsons, commons, estovers, and other hereditaments, of what kind or nature soever.

La«rf.] Terra, in the legal signification, comprehends any Land includa ground, soil, or earth whatsoever; as meadows, pastures, woods, moors, waters, marshes, furzes, and heath. Terra est nomen generaliisimum et comprehendit omnes species terra; but properly, terra dicitur a terendo, quia vomere terilur; and anciently it was written with a single r; and in that sense it includes whatsoever may be ploughed, and is all one with arvum ab arando. It legally includes all castles, houses, and other buildings: for castles, houses, 8tc. consist upon two things, viz. land or ground, as the foundation or structure thereof, so that in passing the land or ground, the structure or building thereupon passes therewith. Also, the waters that yield fish for the food and sustenance of man are not by that name demandable; but the land whereupon the water flows or stands is demandable, as for example, twenty acres of land covered with water: and besides, the earth does furnish man with many other necessaries for his use, as it is replenished with hidden treasures, namely, with gold, silver, brass, iron, tin, lead, and other metals, and also with a great variety of precious stones, and many other things for profit, ornament, and pleasure [all which pass by the general name of land]. And lastly, the earth has, in law, a great extent upwards, not only of water, as hath been said, but of air, and of all other things, even up to heaven; for cujus est solum ejus est usque ad caelum.

Moveable fee- And albeit land, whereof our author here speaks, be the most s""p' firm and fixed inheritance, and fee-simple the highest and most

absolute estate that a man can have; yet may the same at several times be moveable, sometime in one person and alternis vicibus in another; nay, sometime in one place and sometime in another. As for example, if there be eighty acres of meadow, which have been used time out of mind to be divided between certain persons, so that a certain number of acres appertain to each person individually; as for example, to A. thirteen acres to be yearly assigned and lotted out, so as sometime the thirteen acres lie in one place and sometime in another, and so of the rest; A. has a moveable fee-simple in thirteen acres which may be parcel of his manor or lordship, albeit they have no certain place but are yearly set out in several places, so that the number only is certain, and the particular acres or place wherein they lie after the year is uncertain. And so it was adjudged in Bridgwater's case. If a partition be made between two coparceners of one and the same land, viz. that the one shall have the land from Easter until Lammas to her and to her heirs, and the other shall have it from Lammas till Easter to her and her heirs, or that the one shall have it the first year, and the other the second year, alternis vicibus, &c. that also is a case wherein two persons have several inheritances in the same land at several times. So it is if two coparceners have two several manors by descent, and they make partition, that the one shall have the one manor for a year, and the other the other manor for the same year, and after that year then that she who had the one manor shall have the other, et sic alternis vicibus for ever, this is a good partition, and although the manors be several, yet are they certain, and it is therefore stronger than Bridgwater's case; so that this makes a division of estates into certain or immoveable, whereof Littleton here speaks, and uncertain and moveable, whereof these three cases for examples have been put; and in these cases it is to be noted, that the possession is not only several, but the inheritance is general also.

Herbage. It is also necessary to be seen by what names lands shall pass.

L' If a man has twenty acres of land, and by deed grants to another and his heirs vesturam ttrree, and makes livery of 6eisin stcundam formam charts, the land itself shall not pass, because he has a particular right in the land; for thereby he shall not have the houses, timber-trees, mines, and other real things parcel of the inheritance, but he shall have the vesture of the land, (that is) the com, grass, underwood, sweepage, and the like, and he shall have an action of trespass quare clausumfregit. The same law is if a man grant herbagium terra, he has a like particular right in the land, and shall have an action quare clausum fregit; but by grant thereof and livery made the soil shall not pass, as is aforesaid. If a man let to B. the herbage of his woods, and after grants all his lands in the tenure possession or occupation of B., the woods shall pass, for B. hath a particular possession and occupation, which is sufficient in this case; and so it was resolved.

So if a man be seised of a river, and by deed grants seperalem Fisimy. piscariam in the same, and makes livery of seisin secundum formam charts, the soil does not pass nor the water, for the grantor may take water there, and if the river becomes dry, he may take the benefit of the soil; for there passed to the grantee but a particular right, and the livery being made secundum formam chartee cannot enlarge the grant. For the same reason, if a man grant aquam suam, the soil shall not pass, but the fishery within the water passes therewith. And land covered with water shall be demanded by the name of so many acres covered with water; whereby it appears that they are distinct things.

So if a man grant to another to dig turf in his land and to carry Turf. it away at his will and pleasure, the land shall not pass, for part only of the profit is given viz. the turf, and not the trees, mines, See.

But if a man seised of lands in fee, by his deed grants to Rents and another the profit of those lands, to have and to hold to him and af^ldltsl'f. his heirs, and makes livery secundum formam chartee, the whole land itself does pass; for what is the land but the profits thereof, for thereby vesture, herbage, trees, mines, and all whatsoever is parcel of the land passes.

A man seised of divers acres of wood, grants to another omnes Woods; the buncos suos, all his woods, not only the woods growing upon the land pass, but the land itself, and by the name [of land covered with

wood] shall it be recovered in a prttcipe; for boscos does not only include the trees but the land also whereupon they grow.

If a man grants all his pastures, pasturas, the land itself employed in the feeding of beasts shall pass, and also such pastures or feedings as he hath in another man's soil. So if a man grant omnia prata sua, all his meadows, the land itself of that kind shall pass; el dicilur pratitm quasi paratum, because it grows spontaneously without manurance. A man grants omms brveras sitas, the soil where the heath grows shall pass. And by the grant of omnesjunt-arias or joncarias, the soil where rushes grow shall pass; and he that grants omnes mariscos suos, does convey all his fens and marshy grounds. By grants of tbese particular kinds of land, the lands of the description named only do pass; but, as hath been said, by the grant of land in general, all these particular kinds and some others pass.

Honour.
IsU.

Castle.

Town.

Fann.

Grange.

Pool.

By the name of an honour, which a subject may have, divers manors and lands may pass. So by the name of an isle, insula, many manors lands and tenements may pass. And by the name of a castle, one or more manors may be conveyed; tt t converso, by the name of a manor &c. a castle may pass. But note by the way, that no subject can build a castle or house of strength embattled &c. or other fortress defensible, without the license of the king, for the danger which might ensue if every man at his pleasure might thus entrench himself. By the name of a town, villa, a manor may pass. And by the name of a manor, divers towns may pass.

By the name of a j'erme or farm, Jirma, houses, lands, and tenements may pass; and_/?>»?« is derived of the Saxon word J'tormian, to feed or relieve, for in ancient time were reserved upon these leases cattle and other provisions for the lessor's sustenance. Note, a farm in the north part is called a tack, in Lancashire a farm-holt, in Essex a wike; but the word farm is the general word, and anciently fundus signified a farm, and sometimes land. Lands making a knight's fee shall pass by the grant of a knight's fee, de unofeodo militis. By the name of a grange, grangia, a house or edifice, not only where corn is stored up as in barns, but necessary places for husbandry also, as stables for hay and horses, and stables and styes for other cattle, and a curtilage, and the close wherein it stands shall pass. Stagnum, in English, a pool, consists of water and land: and therefore by the name of stagnutu, or a pool, the water and [5 b] land shall pass also.

So it is of a forest, park, chase, vivary, and warren in a man's Forest. own ground, by the grant of any of them, not only the privilege but j>„X the land itself passes.

By the grant of a messuage or house, the orchard, garden, and Messuage ami curtilage do pass, and so an acre or more may pass by the name of r"r(' "ee' a house.

By the name of minera, mfodina plumbi, &c. the land itself shall Mi»«pass in a grant, if livery be made, and so shall it be recovered L ^ in an assize.

By the grant of a foldcourse, or the like, lands and tenements FoU-emirse. may pass; [contra it is presumed of a sheep-walk.]

Tenement um, tenement, is a large word to pass not only lands Tenementsand other hereditaments and inheritances which are holden, but also offices, rents, commons, profits apprendcr out of lands, and the like, wherein a man may have a frank-tenement and whereof he can be said to be seised ut de libero tenemento. But heereditamentum, Hereditaments. hereditament, is the largest word of all in that kind; for whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real, personal, or mixed.

A man seised of land in fee having divers charters, deeds, and evi- Deeds. dences, makes a feoffment in fee, either without warranty, or with warranty against him and his heirs only [as covenants and warranties are at this day usually made]; the purchaser shall have all the charters, deeds, and evidences, as incident to the lands, et ratione terra, to the end he may the better defend the land himself, if he has no warranty to recover in value; for the evidences are, as it were, the sinews of the land, and the feoffor not being bound to warranty, has no use of them. But if the feoffor be bound to warranty [that is, if he warrants the title generally] so that he is bound to render in value [against whoever claims], then is the defence of the title at his own peril; and therefore the feoffee in that case shall have no deeds that comprehend warranty whereof the feoffor may take advantage. Also he [the feoffor] shall [in such case] have such charters as may serve him to deraigne the warranty paramount. Also he shall have all deeds and evidences which are material for the maintenance of the title to the land, but other evidences which concern the possession and not the title of the land [as leases], the feoffee shall have them.

Habendum. To have and to hold.] These two words in this place prove a double signification, viz. to have an estate of inheritance of lands descendible to his heirs, and to hold the same of some superior lord.

Parts of a There are eight formal or orderly parts of a deed of feoffment, viz. 1. the premises which are implied by Littleton; 2. the habendum, whereof Littleton speaks; 3. the tenendum, mentioned by Littleton; 4. the reddendum; 5. the clause of warranty; 6. the in cujus rei testimonium, comprehending the sealing; 7. the date of the deed, containing the day, the month, the year, and style of the king or of the year of our Lord; lastly, the clause of hiis testibus. The office of the premises of the deed is twofold: first, rightly to name the feoffor and the feoffee; and secondly, to comprehend the certainty of the lands or tenements to be conveyed by the feoffment, either by express words or which may by reference be reduced to a certainty, for cerium est quod certum reddi potest. The habendum has also two parts, viz. first, to name again the feoffee; and secondly, to limit the certainty of the estate. The tenendum at this day, where the fee simple passes, must be of the chief lords of the fee. And of the reddendum, more shall be said in its proper place in the Chapter of Rents. Of the clause of warranty, more shall be said in the Chapter of Warranties. In cujus rei testimonium sigilum meum apposui is added, for the seal is an essential part of the deed. The date of the deed many times antiquity omitted; and the reason thereof was, for that the limitation of prescription or time of memory, did often in process of time change, and the law was then holden, that a deed bearing date before the limited time of prescription was not pleadable; and therefore they made their deed without date, to the end they might allege them within the time of prescription. And the date of the deeds was commonly added in the reign of Edw. 2 and Edw. 3, and so ever since. And sometimes antiquity added a place, as datum apud D. which was in disadvantage of the feoffee, for if the deed be general, he may allege it to be made where he will. And, lastly, antiquity did add

hits testibits in the contents of the deed after the in cujus rei testimonium, written in the same hand that the deed was, which witnesses were called, the deed read, and then their names entered; which clause of hiis testibits in subjects' deeds continued until and in the reign of Henry 8, but is now wholly omitted.

If the witness be an infidel, or infamous, or of non-sane memory, Witmua, »&•

may be.

or not of discretion, or a party interested, or the like, he can be no r(j £] good witness. But oftentimes a man may be objected to on a jury who cannot be challenged to be a witness; and therefore, though the witness be of the nearest alliance or kindred, or of counsel, or tenant, or servant to either party, or any other exception that makes him not infamous, or to want understanding or discretion, or a party in interest, though it be proved true, that shall not exclude the witness to be sworn, but he shall be sworn, and his credit upon the exceptions taken against him left to those of the jury who are triers of the fact; insomuch as some books have said, that though the witness named in the deed be named a disseisor in the writ, yet he shall be sworn as a witness to the deed, and though a witness be outlawed in a personal action, that is no exception against him to exclude him to be sworn as a witness to a jury. But note, it is a maxim in law, that witnesses cannot testify a negative, but can only prove an affirmative: but if one of the witnesses named in the deed be one of the panel, he shall be put out of the panel. If all the witnesses be dead (and no man can keep his witnesses alive, for time weareth out all men), then continual and quiet possession is a violent presumption of right, and stands for a proof [i. e. till rebutted.] Note, it hath been resolved, that a wife cannot be produced either for or against her husband, quia sunt dua anima in came una; and it might be a cause of implacable discord and dissention between them, and a means of great inconvenience.

But now let us return to that from which by way of digres- Formal parts sion (upon this occasion) we are fallen. I have termed the said "" "r^VV parts of a deed the formal or orderly parts, but they are not of . theessence of a deed of feoffment; for if such a deed be withoutpremisses, habendum, tenendum, reddendum, clause of warranty, clause of in cujus rei testimonium, the date, or the clause of hiis testibus, yet the deed is good. For if a man by deed gives lands to another and to his heirs without saying more, this is good, if he put his seal to the deed, deliver it, and make livery accordingly. So it is if A.

give lands to have and to hold to B. and his heirs, this is good, albeit the feoffee is not named in the premises. But no well advised man should trust to such deeds which the law by construction only makes good, ut res magis valeat; but when form and substance concur, then is the deed fair and absolutely good.

lUir, tibii. To him and to hit heirs.] Uteres, in the legal understanding of

[7 hi] the common law, implieth, that he is ex justis nuptiis procreatus;

for hares legitimus est quern nuptia demount rant, and is he to whom

lands, tenements, or hereditaments, by the act of God and right of

blood do descend of some estate of inheritance.

Monster. A monster, which has not the shape of mankind, cannot be heir

or inherit any land, albeit it be brought forth within marriage; but although he has deformity in any part of his body, yet if he has human shape he may be heir.

Bastard. Neither can a bastard be heir, as hath been before said.

[8a]

Hermaphrodite. Every heir is either a male, or female, or an hermaphrodite, that is both male and female. And an hermaphrodite (which is also called Audrogt/nus) shall be heir, either male or female, according to that kind of sex which prevails. Hermaphrodita, tarn masculo qtiam J'amiuec comparalur, secundum prtevalescentiam sexus incalescent'ts. And accordingly it ought to be baptised. See more of this matter Sect 35.

Aliens. A man seised of lands in fee hath issue an alien that is born out

of the king's allegiance; he cannot be heir, propter defectum subjectionk, albeit he be born within lawful marriage. If made denizen by the king's letters patent, yet cannot he inherit to his father or any other. But otherwise it is, if he be naturalized by act of parliament; for then he is not accounted in law an alien but a subject. But after one be made denizen, the issue that he hasafterwards shall be heir to him, but no issue that he had before. If an alien conies into England and has issue two sons, these two sons are indigent, subjects born, because they are born within the realm. And yet if one of them purchase lands in fee, and dies without issue, his brother shall not be his heir; for there was never any inheritable blood between the father and them; and where the sons by no possibility can be heir to the father, the one of them shall not be heir to the other. See more of this matter Sect. 198. [and 25 Geo. 2. c. 40.]

If a man be attainted of treason or felony, although he be born Atufinder. within wedlock, he can be heir to no man, nor any man heir to him, propter delictum, for that by his attainder his blood is corrupted. And this corruption of blood is so high, that it cannot be absolutely salved and restored but by act of parliament; for albeit the person attainted obtain his charter of pardon, yet that does not make any to be heir whose blood was corrupted at the time of the attainder, either downward or upward. As if a man has issue a sou before his attainder, and obtains his pardon, and after the pardon has issue another son, at the time of the attainder the blood of the eldest was corrupted, and therefore he cannot be heir. But if he die, living his father, the younger son shall be heir; for he was not in esse at the time of the attainder, and the pardon restored the blood as to all issues begotten afterwards. But in that case if the eldest son had survived the father, the younger son cannot be heir; because he has an elder brother who by possibility might have inherited; but if the elder brother had been an alien, the younger son should be heir, for that the alien never had any inheritable blood in him. See more plentifully of this matter Sect 746. 747. If a man has issue two sons, and after is attainted of treason or felony, and one of the sons purchase land and dies without issue, the other brother shall be his heir; for the attainder of the father corrupts the lineal blood only, and not the collateral blood between the brethren, which was vested in them before the attainder, and each of them by possibility might have been heir to the father. But otherwise it is in the case of the aliennee, as hath been said. But some have holden that if a man after he be attainted of treason or felony have issue two sons, that the one of them cannot be heir to the other, because they could, not be heir to the father, for that they had no inheritable blood in them.

One that is born deaf and dumb may be heir to another, albeit it i«comp»mt was otherwise holden in ancient time. And so if born deaf, dumb, pmOTls> and blind, for in hoc casu vitio parcitur tiaturali. But contract they cannot. Idiots, lepers, madmen, outlaws in debt, trespassers; or the like, persons excommunicated, men attainted in a pramunire or convicted of heresy, may be heirs.

Posthumous child.

If a man has a wife, and dies, and within a very short time after the wife marries again, and within nine months has a child, so as it may be the child of the one or the other, some have said that in this case the child may choose his father, quia in hoc casujiliatio tum potest probari; for avoiding of which question and other inconveniences, this was the law before the conquest, Sit omnis vidua sine marito duodecim mensibvs, et si maritaverit peidat dotem.

Heir looms.

Heir apparent.

[86]

A man by the common law cannot be heir to goods or chattels, for hares dicitur ab hareditate. If a man buy divers fish, as carp, bream, tench, &c. and put them in his pond, and dies, in this case the heir shall have them, and not the executors, but they shall go with the inheritance; because they were at liberty, and could not be gotten without industry as by nets, and other engines. Otherwise it is, if they were in a trunk or the like. Likewise, deer in a park, conies in a warren, and doves in a dovehouse, young and old, • shall go to the heir. But of ancient time the heir was permitted to have an action of debt upon a bond made to his ancestor and his heirs; but the law is not so held at this day, vide Sect. 12.

It is to be noted, that one cannot be heir till after the death of his ancestor. Before, he is called hares apparens, heir apparent. When a man having lands in fee-simple dies, and his wife soon marries again, and feigns herself with child by her former husband, in this case though she be married, the writ de ventre inspicietido doth lie for the heir. But if a man seised of lands in fee (for example) has issue a daughter, who is heir apparent, she in the life of her father cannot have this writ for divers causes. 1st. Because she is not heir, but heir apparent; for, as hath been said, nemo est hares viventis; and this writ is given to the heir to whom the land is descended. And both Bracton and Fleta say, that this writ lies ad querelam veri haredis, which cannot be in the life of his ancestor; and herewith agrees Britton and the Register. 2dly. The taking of a husband in the case aforesaid being her own act, cannot bar the heir of his lawful action once vested in him. 3dly. The law does not give the heir apparent any writ, for it is not certain whether he shall be heir, solus Deus facit haredis. 4thly. The inconvenience were too great, if heirs apparent in the life of heir ancestor should have such a writ to examine and try a man's lawful wife in such sort as the writ de ventre inspiciendo does appoint; and if she should be found to be with child,or suspected, then she must be removed to a castle, and there safely kept until her delivery, and so any man's wife might be taken from him against the laws of God and man.

And it is to be observed, that every word of Littleton is worthy Heir in singular of observation. First (hares) in the plural number; for if a man give land to a man and to his heir in the singular number, he has but an estate for life, for his heir cannot take a fee-simple by descent, because he is but one, and therefore in that case his heir shall take nothing.

Also observable is this conjunctive (et.) For if a man give lands To A. or his to one, to have and to hold to him or his heirs, he has but an estate for life for the uncertainty.

His.'] If a man give land to two, to have and to hold to "His" omitted. those two et haredibus, omitting mis, they have but an estate for life, for the uncertainty; whereof more hereafter in this section. But it is said, if land be given to one man et haredibus, omitting mis, that notwithstanding a fee-simple passes; but it is safe to follow Littleton.

And his assigns.] Assignee cometh of the verb assign. And Assigns. note there be assigns in deed, and assigns in law, whereof see more in the chapter of warranty, Sect. 733.

These words (his heirs) which words only make an estate of inherit- Sole Corpoonce in ail feoffments and grants.] Here Littleton treats of purchases by natural persons, and not by bodies corporate or politic; for if lands be given to a sole body politic or corporate (as to a bishop, parson, vicar, master of an hospital, 8cc,) there to give him an estate of inheritance in his politic or corporate capacity, he must have these words: To have and to hold to him and his successors; for without this word successors, there passes in those cases no inheritance; for as the heir doth inherit to the ancestor, so the successor doth succeed to the predecessor, and the executor to the testator.

But it appears here by Littleton, that if a man at this day give Successors. lands to J. S. and his successors, this creates no fee-simple in him; for Littleton, speaking of natural persons, saith that these words

[9«] (his heirs) make an estate of inheritance in all feoffments and grants, whereby he excludes these words (his successors.) But if a grant be made to a dean and chapter his heirs and successors; in this case, albeit the word (heirs) applies to them in their natural capacity, yet because the grant is made to them in their politic capacity, it shall enure to them and their successors. And so if the king grants lands to J. S. habendum silri et successoribus sive fueredibns suis, this grant shall enure to him and his heirs.

ChiMrm horn B. having divers sons and daughters, A. gives lands to B. and paientt when. his children and their heirs; the father and all his children take a fee-simple jointly by force of the words (their heirs); but if he had no child at the time of the feoffment, the children born afterwards shall not take; [but the father shall have an estate tail.]

,lehi- These words (his heirs) do not only extend to his immediate heirs,

but to his heirs remote and most remote, born and to be born.

And the reason wherefore the law is so precise to prescribe certain words to create an estate of. inheritance, is for avoiding of uncertainty, which is the mother of contention and confusion.

Estate. Make an estate.] Status dkititi a stando, because it is fixed and

permanent.

hie of Man. The Isle of Man, which is no part of the kingdom, but a distinct

territory of itself, hath been granted by the great seal to divers subjects and their heirs. It was resolved by the Lord Chancellor, the two chief justices and chief baron, that the same is an estate descendible according to the course of the common law; for whatsoever state of inheritance passes under the great seal of England, it shall be descendible according to the rules and course of common law of England.

Feoffment. In all feoffments and grants.'] Here he gives the feoffment the

first place, as the ancient and the most necessary conveyance, both for that it is solemn and public, and therefore best remembered and proved, and also for that it clears all disseisins, abatements, intrusions, and other wrongful or defeasible estates, where the entry of the feoffor is lawful, which neither fine, recovery, nor bargain and sale by deed indented and inrollcd doth.

And by " feoffments and grants" is implied a division of fee into Hereditameuu corporeal, as lands and tenements, which lie in livery and pass by i„Corporeat. livery either with or without deed [by common law, but now otherwise since the statute of frauds], and incorporeal, which lie in grant, and cannot pass by livery, but by deed only, as advowsons, commons, &c. And note, by the delivery of the deed, the freehold and inheritance of such hereditaments as lie in grant, do pass. Hence the deed of incorporeate inheritances equals the livery of corporeate. And therefore Littleton says, in all feoffments and giants, hareditas, alia corporalis, alia incorporalis: corporalis est, qua tangi potest el videri; incorporalis, qua tangi non potest, nee videri.

Feoffment is derived of the word of art feodum, quia est donalis Feoffment. Jeodi; for the ancient writers of the law called a feoffment donatis, of the verb do, or dedi, which is the aptest word of feoffment. And that word Ephron used, when he enfeoffed Abraham, saying, I give thee the field of Machpelah over against Mamre, and the cave therein I give thee, and all the trees in the field, and the borders round about; all which were made sure unto Abraham for a possession, in the presence of many witnesses.

By a feoffment the corporeate fee is conveyed, and it properly betokens a conveyance in fee, as our author himself hereafter says, in his chapter of tenant for life. And yet sometimes improperly it is called a feoffment when an estate of freehold only doth pass.

Grant, concetsio, is properly of things incorporeal, which, (as hath Grant. been said) cannot pass without deed. And here it is to be ob- "■ J served, (that I may speak once for all) that every period of our author, in all his three books, contains matter of excellent learning, necessarily to be collected by implication, or consequence. For example, he says here, that the words (his heirs) make an estate of inheritance in all feoffments and grants. He expressing feoffments and grants, necessarily implies, that this rule extends not,—

First, to last wills and testaments; for thereby, as he himself after wm. says, an estate of inheritance may pass without these words (his heirs). As if a man devise twenty acres to another, [on condition] that he pay his executors 10/. for the same, hereby the devisee hath a fee-simple by the intent of the devisor, albeit the payment be not to the value of the land. So it is if one devise lands to a man

in perpetuum, or to give and to sell, or in fee-simple, or to him and his assigns for ever. In these cases a fee-simple will pass by the intent of the devisor. But if the devise be to a man and his assigns, without saying (for ever,) the devisee hath but an estate for life. If one devise land to a man et sanguine suo, that is a feesimple; but if it be semini suo it is an estate tail.

Fine.

lieleau.

Secondly, that it extendeth not to a fine sur conusans de droit come ceo que il ad de son done, by which a fee also may pass without this word (heirs) in respect of the height of that fine, whereby it is implied that there was a precedent gift in fee.

Thirdly, nor to certain releases, and that three manner of ways. 1st. When an estate of inheritance passes and continues; as if there be three coparceners or joint tenants, and one of them releases to the other two, or to one of them generally without this word (heirs), by Littleton's opinion they have a fee-simple, as appears hereafter. 2dly. By release, when an estate of inheritance passes and continues not, but is extinguished; as where, the lord releases to the tenant, or grantee of a rent, &c. releases to the tenant of the land generally all his right, &c. hereby the seigniory, rent 8w;. are extinguished for ever, without this word (heirs). 3dly. When a bare right is released, as when disseisee releases to the disseisor all his right, he need not (saith our author in another place) speak of his heirs. But of these and the like cases, more shall be said in its proper place.

Recovery. Fourthly, nor to a recovery,- for regularly every recoveror re

covers a fee-simple.

Dignity. Fifthly, nor to a creation of nobility by writ; for when a man is

called to the upper house of parliament by writ, he is a baron, and has an inheritance therein without the word (heirs). Yet may the king limit the general estate of inheritance created by the law and custom of the realm to the heirs male or general, of his body by the writ; as he did to Bronifiete, who in 27 H. 6. was called to parliament by the name of the Lord Vescue, &c. with the limitation in the writ to him and the heirs males of his body. But if he be created by patent, he must of necessity have these words (his heirs), or the heirs males of his body, or the heirs of his body, &c. otherwise he has no inheritance. The first creation of a baron by patent, that I find, was of John Beauchamp of Holt, created baron by patent in 11 R. 2.; for barons, before that time, were called by writ And it is to be observed, that of ancient times earls, &c. were created by girding them with a sword, and nominating him earl, 8cc. of such a county or place; and tins, with a calling of him to parliament by writ by that name, was a sufficient creation of inheritance.

But out of this rule of our author the law makes divers Exception. exceptions (et exceptio probat regulam); for sometimes by a feoffment a fee-simple shall pass without these words (his heirs). For example, first, if the father enfeoff the son, to have and to hold to him and to his heirs, and the son enfeoffs the father as fully as the father enfeoffed him, by this the father has a fee-simple.

Secondly, in respect of the consideration, a fee-simple had passed Frank marat the common law without this word (heirs), and at this day an naffe' estate of inheritance in tail. As if one had given land to a man with his daughter in frank-marriage generally, a fee-simple had passed without this word (heirs); for there is no consideration so much respected in law as the consideration of marriage, in respect of alliance and posterity, [but now an estate tail passes].

Thirdly, if a feoffment or grant be made by deed to a mayor and Corporation commonalty, or any other corporation aggregate of many persons ass"sate' capable, they have a fee-simple without the word (successors); because in judgment of law they never die.

Fourthly, in case of a sole corporation, a fee-simple shall some- corporation times pass without this word (successors). As if a feoffment in fee tolt' be made of land to a bishop, to have and to hold to him in libera eleemouna, a fee-simple will pass without this word (successors). And so if a man give lands to the king by deed inrolled, a feesimple will pass without these words (successors, or heirs); because in judgment of law the king never dies.

Fifthly, in grants sometimes an inheritance shall pass without Partition. this word heirs. As if partition be made between coparceners of L1UaJ lands in fee-simple, and for owelty of partition the one grants a rent to the other generally, the grantee shall have a fee-simple without

Ei change.
Confirmation.

this word (heirs); because the grantor hath a fee-simple in con

sideration whereof he granted the rent.

And this rule of our author extends to the passing of estates of inheritance in exchanges, releases, or confirmations that enure by way of enlargement of estate, warranties, bargain and sales by deed indented and inrolled, and the like, in which this word (heirs) is also necessary; for they amount, to a feoffment or grant, and stand upon the same reason that a feoffment and grant does; for like reason makes like law, ubi eadem ratio, ibi eadem jus.

like reason. And this is to be observed throughout all these three books, that

where other cases fall within the same reason, our author puts his case but for an example; for so our author himself, in another place, explains it, saying, and memorandum that in all other [such] like cases, although it be not here expressly moved or specified, if they be in like reason, they are in the like law.

Purchase.

Gavelkind.

Right heirs.

And here our author is understood to speak of heirs when they are inheritable by descent, for they are capable of land also by purchase, and then the course of descent is sometimes altered. As if lands of the nature of gavelkind be given to B. and his heirs, having issue divers sons, all his sons after his decease shall inherit; but if a lease for life be made of gavelkind lands, the remainder to the right heirs of B. and B. dies, his eldest son only shall inherit; for he only (to take by purchase) is right heir by the common law. So note a diversity between a purchase and a descent. But where the remainder is limited to the right heirs of B. it need not be said, and to their heirs; for being plurally limited, it includes a fee-simple, and yet it vests in them only by purchase.

Conveyances at
Common Lav.

Out of that which has been said it is to be observed, that a man may purchase lands to him and his heirs by ten manner of conveyances (for I speak not here of estoppels). 1st. By feoffment. 2dly. By grant (of which two our author here speaks). 3dly. By fine, which is a feoffment of record. 4thly. By common recovery, which is a common conveyance, and is in nature of a feoffment of record. 5thly. By exchange, which is in nature of a grant. 6thly. By release to a particular tenant. 7thly. By confirmation to a particular tenant, both which are in nature of grants. 8thly. By grant of a reversion or remainder with attornment of the particular tenant, of all which our author speaks hereafter. 9thly. By bargain and sale by deed indented and enrolled, ordained by statute since Littleton wrote. lOthly. By devise by custom of some particular place, as he shews hereafter, and since he wrote, by will in writing generally by authority of parliament.

Our author speaks of feoffments and grants, whereby is im- ViueUinand plied lawful conveyances; and therefore this rule extends not to X^i'm/m. disseisins, abatements, or intrusions into lands or tenements, or to usurpations to advowsons, &c. in which cases estates in fee-simple are gained by the act and wrong of the disseisors, abators, intruders, and usurpers; and if a disseisin, abatement, or intrusion be made to the use of another, if cestui que use agrees thereunto in pais [that is, openly in the face of the country, or before witnesses] by this bare agreement he gains a fee-simple, without any livery of seisin, or other ceremony.

Section 2.

And if a man purchase land in fee-simple, and die without issue, Collateral he who is his next cousin collateral of the whole blood, how far escent' soever he he from him in degree, may inlierit and have the land as heir to him.

Littleton shews here who shall be heirs to lands in fee-simple; for he intends not this case of an estate tail, for he speaks of an heir of the whole blood, which extends not to estates tail, as shall be said hereafter in this Chapter, Sect. 6.

Neil cousin collateral.'] Neither excludes he brothers or sisters, after Wothen because he hath a special case concerning them in this Chapter, Sect. 5, and in his Chapter of Parceners; but this is intended where POo] a man purchases lands and dies without issue, having neither brother nor sister, then his next cousin collateral shall inherit. So that here is implied a division of heirs, viz. lineal (whoever shall first inherit), and collateral (who are to inherit for default of lineal). For in descents it is a maxim in law, quod linea recta semper praftrtur transversali. Lineal descent is conveyed downwards in a right line; as from the grandfather to the father, from the father to

the son, &c. Collateral descent is derived from the side of the

lineal; as grandfather's brother, father's brother, &,c. " ATerr cousin

• | collateral s/iall inherit" gives a certain direction to the next cousin

l cb *° the 80n» [that is» the cousin to the son shall be preferred to the

*■ \ I next cousin of the father,] and, therefore, the father's brother and

his posterity shall inherit before the grandfather's brother and his

posterity. Et sic de ceteris; for propinquior includit propinquum, et

propinquus remotum, et remotus, remotiorem.

•' Next blood." Upon this word {next) I put this case. One has issue two sons A. and B. and dies; B. has two sons, C. and D. and dies. C. the

A l> eldest son has issue, and dies. A. purchases lands in fee-simple,

jr-j, and dies without issue. D. is the next cousin, and yet shall not .' inherit; but the issue of C.; for he that is inheritable is accounted in law next of blood. And therefore here is understood a division of next, viz. next jure representationis, and next jure propinquitatU; that is, by right of representation and by right of propinquity. And Littleton means of the right of representation, for legally in course of descents, he is next of blood inheritable. And the issue of C. represent the person of C; and if C. had lived, he had been legally the next of blood. And whensoever the father, if he had lived, should have inherited, his lineal heir by right of representation shall inherit before any other, though another be jure propinquitatis, nearer of blood; and therefore Littleton intends this case of next cousin of blood immediately inheritable. So that this produces another division of next blood, viz. immediately inheritable, as the issue of C, and mediately inheritable as D., if the issue of C. die without issue; for the issue of C. and all that line, be they never so remote, shall inherit before D. and his line; and therefore Littleton says well, how far so ever he be from him in degree. And here arises a diversity in law between next of blood inheritable by descent, and next of blood capable by purchase ; and therefore, in

Remainder to the case before-mentioned, if a lease for life were made to A., with

Zho takeu' remainder to his next of blood in fee, in this case, as hath been said, D. shall take the remainder, because he is next of blood and capable by purchase, though he be not legally next to take as heir by descent.

Section 3.

But if there be father and son, and the father hath a brother that Father not heir

« uncle to the son, and the son purchase land in fee-simple, and dies through"^

without issue, living his father, the uncle shall have the land as uncle

heir to the son, and not the father, yet the father is nearer of

blood; because it is a maxim in laic, that inheritances may lineally

descend, but not ascend. Yet if the son in this case die without

issue, and his uncle enters into the land as heir to tlie son, (as by

law he ought), and after the uncle dies without issue, living the

father, the father shall have the land as heir to the uncle, and not

as heir to his son, for that he cometh to the land by collateral

descent and not by lineal ascent.

Yet the father is nearer of blood.] And therefore some do hold Remainder to upon these words of Littleton, that if a lease for life were made to iffath„ can' the son, the remainder to his next of blood, that the father shall *£"• t5 B,& take the remainder by purchase and not the uncle, for that Littleton says the father is next of blood, and yet the uncle is heir. As if a man has issue two sons, and the eldest son has issue a son and dies, then a remainder is limited to his next of blood, the younger son shall take it, yet the other is his heir.

It is a maxim in law, that inheritances mat/ lineally descend, but not ascend.

Maxim, i. e. a sure foundation or ground of art, and a conclusion Maxim, what. of reason, so sure and uncontrollable as that they ought not to be L*l aJ questioned. And that which our author here and in other places calls a maxim, hereafter he calls a principle, and it is all one with a rule, a common ground, postulatum, or an axiom, and it were too much curiosity to make nice distinctions between them.

And his uncle enters into the land.] For if the uncle in this case Theunciemuu does not enter into the land, then cannot the father inherit the ^j"" y land; for there is another maxim in law herein implied, that a man L1' "J that claims as heir in fee-simple to any man by desceut, must make himself heir to him that was last seised of the actual freehold and inheritance. And if the uncle in this case docs not enter, then

had he but a freehold in law and no actual freehold, but the last that was seised of the actual freehold was the son to whom the father cannot make himself heir; and therefore Littleton says, and his wide enters into the land (as by law he ought), to make the father inherit as heir to the uncle.

Hh title defeat- Note, that true it is that the uncle in this case is heir, but not mens heir" absolutely heir; for if, after the descent to him, the father has issue a son or daughter, that issue shall enter upon the uncle. And so it is if a man has issue a son and a daughter, the son purchases land in fee and dies without issue, the daughter shall inherit the land; but if the father has afterwards issue a son, this son shall enter into the land as heir to his brother, and if he has issue a daughter and no son, she shall be coparcener with her sister.

What seisin of As by law he ought."] These words as a key do open the secrets "leTed'tiumLts °^ ^e *aw» ^or hereupon is concluded, that where the uncle cannot sufficient for a oret an actual possession by entry or otherwise, there the father in

possessio fratris. ° , 'J

Adnicson. this case cannot inherit. And therefore if an advowson be granted to the son and his heirs, and the son dies without issue, and this descends to the uncle, and he dies before he does or can present to the church, the father shall not inherit, because that would make him heir to the son, which he cannot be. And so of a rent and the like. But if the uncle had presented to the church, or had seisin of the rent, there the father should have inherited. For Littleton puts his case of an entry into land but for an example.

Same of a re- If the son make a lease for life, and dies without issue, and the re

"version descends to the uncle, and he dies, the reversion shall not

descend to the father, because in that case he must make himself heir to the son.

Warranty. A. infeoffs the son with warranty to him and his heirs, the

son dies, the uncle enters into the land and dies, the father if ri2a1 ^e De iropteaded shall not take advantage of this warranty, for then he must vouch A. as heir to his son, which he cannot do; for albeit the warranty descended to the uncle, yet the uncle leaves it as he found it, and then the father by Littleton's (ought) cannot take advantage of it. For Littleton, Sect. 603, says that warranties shall descend to him that is heir by the common law ,and Sect. 718, he says that every warranty which descends, doth descend to him who is heir to the person that made the warranty by the common law, which proves that the father shall not be bound by the warranty made by the son, for that the father cannot be heir to the son who made the warranty. And a warranty shall not go with tenements whereunto it is annexed, to any special heir, but only to the heir at the common law. And therefore if the uncle be seised of certain lands, and is disseised, and the son releases to the disseisor with warranty, and dies without issue, this shall bind the uncle ; hut if the uncle dies without issue, the father may enter, for the warranty cannot descend upon him.

So if the son concludes himself by pleading concerning the Estoppel. tenure and services of certain lands, this shall bind the uncle; but if the uncle die without issue, this shall not bind the father, because he cannot be heir to the son, and consequently not to the estoppel in that case; but if it be such an estoppel as runs with the land, then it is otherwise.

Section 4.

An D in case where the son purchases land in fee-simple, and dies Descent. without issue, they of his blood on the father's side shall inherit Eternal line

'J J •> preferred,except

as heirs to him, before any of the blood on the motlier's side; but "°e » maternal if he had no heir on the part of his father, then the land shall descend to the heirs on the part of the mother. But if a man marries an inheritrix of lands in fee-simple, who has issue a son, and dies, and the son enters into the tenements, as son and heir to his mother, and after dies without issue, the heirs of the part of the mother ought to inherit, and not the heirs of the part of the father. And if he has no heir on the part of the mother, then Escheat. the lord of whom the land is held shall have the land by escheat. In the same manner it is, if lands descend to the son of the part of the father, and he enters, and afterwards dies without issue, this land shall descend to tlie heirs on the part of the father, and not to the heirs on tlte part of the mother. And if there be no heir on the part of the fatJier, the lord of whom the land is held shall have the land by escheat. And so see the diversity, where the son purchases lands or tenements in fee-simple, and where he comes to them by descent on the part of his mother or on the part of his father.

}il"°^°f fir* By this it appears, that our author, divides heirs into heirs of

the part of the father, and into heirs of the part of the mother. And note, it is an old and true maxim in law, that none shall inherit any lands as heir, but only the blood of the first purchaser, for refert a~ quo fiat perquisitum. As for example, Robert Coke takes the daughter of Kjiightley to wife, and purchases land to him and to his heirs, and by Knightley has issue, Edward, none of the blood of the Knighlleys, though they be of the blood of Edward, shall inherit, albeit he had no kindred but them, because they were not of the blood of the first purchaser, viz. of Robert Coke.

lUir on father'i They of his blood on the father's side.] Here it is to be understood, that the father has two immediate bloods in him, viz. the blood of his father and the blood of his mother. Both these bloods are of

HuAand's at- the part of the father. And this made ancient authors say, that if

tainder seised , . ...

jure uxoris. a man be seised of lands in right of his wife, and is attainted of felony, and after has issue, this issue should not inherit his mother, for that he [i. e. the issue born after the attainder] could derive no blood inheritable from the father. And both these [12/V] bloods of the part of the father must be spent before the heir of the blood on the part of the mother shall inherit, wherein the male line on the part of the father, (that is) the posterity of such male, be they male or female, must fail before the line of the mother shall inherit. And the reason of all this is, for that the blood of the part of the father is more worthy, and more near in judgment of law than the blood of the part of the mother.

Cotuangninity. Before any of the blood on the mother's tide.] And it is to be observed, that the mother has also two immediate bloods in her, (viz.) her father's blood and her mother's blood. Now to illustrate all this by example, Robert Fairefield, [A] son of John Fairefield, [B] and Jane Sandie, [C] takes to wife Ann Boyes [D], daughter of John Boyes [E] and Jane Bewpree, [F] and has issue William Fairefield [G], who purchases lands in fee. Here William Fairefield [G] has four immediate bloods in him, two of the part of his father, viz. the blood of the Fairefields, and the blood of the Sandies, and two of the part of his mother, viz. the blood of the

Boyeses, and the blood of the Bewprees, and so in both cases upward in infinitum- Now admit that William Fairefield [G] dies without issue, first the blood of the part of his father, viz. of the Fairefields, and for want thereof the blood of the Snndyes, (for both these are of the part of the father) if both these fail, then the heirs of the part of the mother of William Fairefield shall inherit, viz. first the blood of the lioyeses, and for default thereof the blood of the Betoprees.

It is necessary to be known in what cases the heir of the part Material of the mother shall inherit, and where not. If a man be seised of esta(e' lands, as heir of the part of his mother, and makes a feoffment in fee, and takes back an estate to him and his heirs, this is a new purchase; and if he dies without issue, the heirs of the part of the father shall first inherit.* If a man so seised [i. e. by descent from Condition. his mother] makes a feoffment in fee upon condition, and dies, the heir of the part of the father, who is the heir at the common law, shall enter for the condition broken; but the heir of the part of the mother shall enter upon him, and enjoy the land. A man so seised makes a feoffment in fee, reserving a rent to him and to his heirs, this rent shall go to the heirs of the part of the father; but if he had made a gift in tail, or a lease for life, reserving a rent, the heir of the part of the mother shall have the reversion; and the rent also, as incident thereunto, shall pass with it; but the heir of the part of the mother shall not take advantage of a condition annexed to the same, because it is not incident to the reversion, nor can pass therewith.

If a man has a rent-seek of the part of his mother, and the Rent. tenant of the land grants a distress to him and to his heirs, and the "piq -> grantee dies, the distress shall go with the rent to the heir of the part of the mother, as incident or appurtenant to the rent, for now is the rent-seek become a rent charge.

* Bui here Lord Colce must be understood to speak of two distinct conveyances in fee; thejirst passing the use as well as the possession to the feoffee, and so completely divesting the feoffor of all interest in the land; and the second re-granting the estate to him. For if, in the first feoffment, the nse had been expressly limited to the feoffor and his heirs, or if there was no declaration of uses, and the feoffment was not on such a consideration as to raise an use in the feoffee, and consequently the use resulted to the feoffor, in either case he is in of his ancient w, and not by purchase. 3 Lev. 404., and 2Salk.59. Harg. n. (2).

Maternal descent when broken.

A man so seised as heir on the part of his mother makes a feoffment in fee to the use of himself and his heirs, the use being a thing in trust and confidence shall ensue the nature of the land, and shall decend to the heir on the part of the mother [that is, the use being the same as it was before the feoffment, it is the old use which continues, and so the estate taken back is not as in the case put before a new purchase.]

Escheat.

Ilecoveru.

A man hath a seigniory as heir on the part of his mother, and the tenancy escheats, it shall go to the heir of the part of the mother. If the heir of the part of the mother, of land whereunto a warranty is annexed, be impleaded and vouch, and judgment is given against him, and for him to recover in value, and he dies before execution, the heir of the part of the mother shall sue execution to have in value against the vouchee, for the effect ought to pursue the cause, and the recompense shall ensue the loss.

Limitation to heirs i mateina roid.

If a man gives lands to a man, to have and to hold to him and his heirs on the part of his mother, yet the heirs on the part of the father shall inherit; for no man can institute a new kind of inheritance not allowed by the law, and words (on the part of his mother) are void, as in the case that Littleton puts in this chapter. If a man gives lands to a man to him and his heirs males, the [common] law rejects this word males, because there is no such kind of inheritance, whereof you shall read more in its proper place.

Heirs on the fart of the wife.

A man has issue a son, and dies, and the wife dies also, lands are let to one for life with remainder to the heirs of the wife, the son dies without issue, the heirs of the part of the father shall inherit, and not the heirs of the part of the mother; because it [the remainder] vested in the son as a purchaser, [he being born at the time, and on his death it is his heir, as the heir of the first purchaser, that is to be sought for, and not the heir of the wife.] And the rule of Littleton holds as well in other kind of inheritances, as in lands and tenements.

But if a man marries an inheritrix, #c] Here there is an

Maternal ami paternal descent

kept distinct. other maxim, that whensoever lands descend from the part of the mother, the heirs of the part of the father shall never inherit. And likewise when lands descend from the part of the father, the heirs of the part of the mother shall never inherit; el sic paterna patcrnis, el i converso, materna maternis. For further manifestation whereof. See a Table at the end of this Chapter. [which however is not much to the purpose.]

Shall have the land by escheat.,] Escheat signifies properly when Escheat happens by accident the lands fall to the lord of whom they are held, in fhZrT—Attain which case we say the fee is escheated. And an escheat raav '''"•A^'1'

* J ration, and

happen two ways, propter defectum sanguinis aut per delictum tenentis, Outlawry. i. e. for felony, which is perfected by judgment three ways, aut quia suspensusper collum, aut quia abjuravit regnum, aut quia utlegatusest. And therefore they who are hanged by martial law, in furore belli, forfeit no lands.

The father is seised of lands in fee, holden of J. S., the son is Attainder of attainted of high treason, the father dies, the lands shall escheat **>/«***>*• to J. S. propter defectum sanguinis, for that the father died without beir. And the king cannot have the land, because the son never had any thing to forfeit; but the king shall have the escheat of all the lands whereof the person attainted of high treason was seised, of whomsoever they were holden.

In an appeal of death or other felony, &c. process is awarded Attainder reagainst the defendant, and pending the process, the defendant con- fittedTnT""' vevs away the land, and afterwards is outlawed, the conveyance is intermediate

* J i • i . convetiancebad;

good, and shall defeat the lord of his escheat; but if a man be contra of out

indicted of felony, and pending the process against him, he conveys au"^'

away the land, and afterwards is outlawed, the conveyance in that

case shall not prevent the lord of his escheat. And the reason of

this diversity is manifest; for in the case of the appeal, the writ [I3b~\

contains no time when the felony was done, and therefore the

escheat can relate but to the outlawry pronounced*; but the

indictment contains the time when the felony was committed, and

therefore the escheat upon the outlawry shall relate to that time.

Which cases I have added, to the end the student may perceive

how much the observation of writs, indictments, process, judgments,

and other entries conduces much to the understanding of the right

reason of the law.

* So it is presumed outlawry in a personal action will not invalidate a conveyasc« before final judgment is pronounced.—Ed.

D

A'u escheat on dissolunon of body corporate. Land reverts to donor.

And it is to be well observed that our author says, if he has no heir, fyc. the land shall escheat. In which word is implied a diversity (as to the escheat) between fee-simple absolute which a natural body hath, and fee-simple absolute which a body politic or incorporate hath. For if land holden of J. S. be given to an abbot and his successors, in this case, if the abbot and all the convent die, so that the body politic is dissolved, the donor shall have his land again, and not the lord by escheat. And so if land be given in feesimple to a dean and chapter, or to a mayor and commonalty, and to their successors, and after such body politic or incorporate is dissolved, the donor shall have the land again, and not the lord by escheat. And the reason and cause of this diversity is, for that in the case of a body politic or incorporate, the fee-simple is vested in their politic or incorporate capacity created by the policy of man, and therefore the law doth annex this condition to every such gift and grant, that if such body politic or incorporate be dissolved, the donor or grantor shall re-enter, for that the cause of the gift or grant fails; but no such condition is annexed to an estate in fee-simple vested in any man in his natural capacity, but where the donor or feoffor reserves to him a tenure, and then the law does imply a condition by way of escheat. Also (as hath been said) no writ of escheat lies, but in the three cases aforesaid, and not where a body politic or incorporateis dissolved.

Section 5.

Elder brother. Ai/SO if there be three brothers, and the middle brother purchases lands in fee-simple, and dies without issue, the elder brother shall have the land by descent, and not the younger, &c. And also if there be three brothers, and the youngest purchases lands in feesimple, and dies without issue, the eldest brother shall have the land by descent, and not the middle brother, for the eldest is most worthy of blood.

Descent and purchase distinguished.

Now comes our author to the descent between brothers, which he purposely omitted before. Descent, descensus, comes of the latin word descendo; and, in the legal sense, it signifies when lands by right of blood fall to any person after the death of his ancestors ; or a descent is a means whereby one may derive his title to certain lands as heir to some of his ancestors. And from these observations arises another division of estates in fee-simple, viz. that every man who has a lawful estate in fee-simple has it either by descent or by purchase.

The eldest is most worthy of blood.] It is a maxim in law, that Mule preferred the next male of the worthiest blood shall ever inherit (as also and all paternal female descendants from him,) before the female, and the female of the part ^J/""'"'^" of the father before the male or female of the part of the mother, [14 a] &c., because the female of the part of the father is of the worthiest blood. And therefore among the males, the eldest brother and his posterity shall inherit lands in fee-simple as heir before any younger brother, or any descending from him, because (as Littleton says) he is most worthy of blood. In King Alfred's time, knights' fees descended to the eldest son, for that by division of them between males, the defence of the realm might be weakened; but in those days socage fee was divided between the heirs male, and therewith agrees Glanville. But of this more shall be said hereafter in its proper place.

Section 6.

Also it is to be understood, that none shall have land in fee-simple Half blood ex

by descent as heir to any man, unless lie be his heir of the whole cIudec1,

llood. For if a man has issue two sons by divers venters, and

the elder purchase lands in fee-simple and dies without issue, the

younger brother shall not have the land, but the uncle of the elder

brother or other his next cousin shall have the same, because the

younger brother is but of half-blood to the elder.

No man can be heir to a fee-simple by the common law but he who has sanguinem duplkatum, the whole blood, that is, both of the father and of the mother, so that the half-blood is no blood inheritable by descent; because that he who is but of the half-blood cannot be a complete heir, for that he has not the whole and complete blood, and the law in descents of fee-simple respects that which is complete and perfect.

Section 7.

Possessio

fratris.

And if a man has issue a son and a (laughter by one venter, and a son by another venter, and the son of the first venter purchases lands in fee and dies wit hon I issue, the sister shall have the land by descent as Iteir to her brother, and not the younger brother, for that the sister is of the lohole blood of her elder brother.

Section 8.

Same.

[146]

And also, where a man is seised of lands in fee-simple, and has issue a son and daughter by one venter, and a son by another venter, and dies, and the eldest son enters and dies without issue, the daughter shall have the land and not the younger son; yet the younger son is heir to the father but not to his brother. But if the eldest son does not enter into the land after the death of his father, but dies before any entry made by him, then the younger brother may enter, and shall have the land as heir to his father. But where the elder son in the case aforesaid enters after the death of his father, and has possession, there the sister shall have the land, because possessio fratris de feodo simplici facit sororera esse haeredem. But if there be two brothers by divers venters, and the elder be seised of land in fee, and dies without issue, and his uncle enters as next heir to him, and also dies without issue, now the younger brother may have the land as heir to the uncle, for that he is of the whole blood to him, albeit he be but of the half blood to his elder brother.

Thi»ruUnot Seised of lands in fee-simple.] These words exclude a seisin in

a£s btM"and tee-tai1. albeit he hath a fee-simple expectant. And therefore, if Teveraont. See lands be given to a man and his wife and to the heirs of their two

alto infra, 156. °

bodies, the remainder to the heirs of the husband, and they have issue a son, and the wife dies, and he takes another wife, and has issue a son, the father dies, the eldest son enters and dies without issue, the second brother of the half blood shall inherit; because the eldest son, by his entry, was not actually seised of the fee-simple, being expectant, but only of the estate tail. And the rule is, that possessio fratris de feodo simplici facit sororem esse havetkm; and here the eldest son is not possessed of the fee-simple, but of the estate tail.

And though Littleton speaks of lands only, yet there may be Of what then a possessio fratris of a use, of a seigniory, a rent, an advowson, and may e a *'"*' of other hereditaments.

And the eldest son enters.] These words are materially added when Eldest son must the father dies seised of lands in fee-simple, for if the eldest son mofeSMssessio does not in that case enter, then without question the youngest son fra,rj!shall be heir; because, as hath been said before, he must regularly make himself heir to the person who was last actually seised (or to the purchaser), that is to the father where the eldest son does not enter. And therefore Littleton adds, that the son is heir to the father. But when the eldest son in this case enters, then cannot the youngest son, being of the half blood, be heir to the eldest, but the land shall descend to the sister of the whole blood. Yet in many cases, albeit the son does not enter into lands descended in fee-simple, the sister of the whole blood shall inherit; and in some cases, where the eldest son does enter, yet the younger brother of the half blood shall be heir.

If the father makes a lease for years, and the lessee enters, and Possession of his [the father] dies, then if the eldest son dies during the term before i'YhatuUin'.' entry or receipt of rent, the younger son of the half blood shall not inherit, but the sister; because the possession of the lease for years is the possession of the eldest son, for he is thereby actually seised of the fee-simple; and consequently the sister of the whole blood shall be heir.

The same law is if the lands be holden by knights' service, Entry by

the eldest son being within age, and the guardian enters into the lands. And so it is if the guardian in socage enter.

guardian.

But in the case aforesaid, if the father makes a lease for life, or a Lease for life or gift in fee-tail, and dies, and the eldest son dies in the life of the te- MSMssmfra"' Bant for life or tenant in tail, the younger brother of the half blood *?.** "*J*B

'* ° eldest son receive

shall inherit; because the tenant for life or tenant in tail is seised rent.
of the freehold, and the eldest son hath nothing but a reversion ex-
pectant upon that freehold or estate tail; and therefore the youngest
son shall inherit the land as heir to the father who was last seised

of the actual freehold. And albeit a rent had been reserved upon the lease for life, and the eldest son had received the rent and died, yet it is holden by some that the younger brother shall inherit, because the seisin of the rent is no actual seisin of the freehold of the land. But 35 Ass. pi. 2. seems to the contrary, because the rent issues out of the lands, and is in lieu thereof, wherein the only question is, whether such a seisin of the rent be such an actual seisin of the land in the eldest son as the sister may in a writ of right make herself heir of this land to her brother? But it is clear, that if there be bastard eigne, and mulier puisne, and the father makes a lease for life or a gift in tail, reserving a rent and dies, and the bastard receives the rent [all his lifetime] and dies [leaving issue] this shall bar the mulier [by estoppel], for the reason of that stands upon another maxim, as shall manifestly appear in its apt place, Sect. 399.

Possessio fratris Seised of lands.] But in this case, if the eldest son enters, doner. 'and gets an actual possession of the fee-simple, yet if the wife of the father be endowed of the third part, and the eldest son dies, the younger brother shall have the reversion of the third part, notwithstanding the elder brother's entry; because his actual seisin which he got thereby was by the endowment defeated. But if the eldest son had made a lease for life, and the lessee had endowed the wife of the father, and tenant in dower had died, the daughter should have the reversion, because the reversion was changed and altered by the lease for life, and the reversion is now expectant on a new estate for life.

Entry into part Enter.] Hereupon the question grows, whether if the father be suffiaen . seised of divers parcels of land in one county, and after the death

of the father the son enters into one parcel generally, and before any actual entry into the other, dies, whether the general entry into [156] part shall not vest in him an actual seisin in the whole, so that the sister shall inherit the whole? And some take a diversity when an entry shall vest or divest an estate, that there must be several entries into the several parcels, but that where the possession is in no man, but the freehold in law is in the heir that enters, there the general entry into one part reduces all into his actual possession. And therefore if the lord enters into a parcel generally for a mortmain, or the feoffor for a condition broken, [without saying in the name of the whole] or the disseisee into a parcel generally, the entry shall not vest nor devest in those or the like cases, only for that parcel. But when a man dies seised of divers parcels in possession, and the freehold in law is by the law cast upon the heir, and the possession is in no man, there the entry into parcel generally seems to vest the actual possession in him of the whole. But if his entry in that case be special, viz. that he enter only into that parcel, and no more, then that parcel only is reduced into actual possession.

A man seised of lands.] What then is the law of rent, advowson, Posnessio frairii or such things that lie in grant? If a rent, or an advowson, „„(/*"*"'' descend to the eldest son, and he dies before he has seisin of the rent, or present to the church, the rents or advowson shall descend to the youngest son, for that he must make himself heir to his father, as hath been oftentime said before. The like law is of offices, courts, liberties, franchises, commons of inheritance, and such like. And this case differs from the case of tenant by the Curtesy. curtesy; for there if the wife dies before the rent day, or the church becomes void, the law in respect of the issue begotten by him will give him an estate by the curtesy of England, because there was no laches or default in him, nor could he possibly get seisin. But the case of the descent to the youngest son stands upon another reason, viz. to make himself heir to him that was actually seised, as hath been said.

In fee-simple.] For half blood is not respected in estates tail, n,djbi0odap~ because the issues claim by descent per formam doni, and the issue p,''",'.',"

J r J ' estates tutt.

in tail is ever of the whole blood to the donee.

Possessio fratris de feodo simplici facit sororem esse hteredem.] Four ruin to Hereupon four things are to be observed, every word being almost j^s operative and material. First, that the brother must be in actual possession; for possessio est quasi pedis positio. 2dly. de feodo simplici excludes estates in tail. 3dly. facit sororem esse hecredem. So that soror est hares facta, and therefore some act must be done to make her heir, and the younger son is hares natus if no act be done to the contrary. And albeit the words be facit sororem esse heeredem, siutr's.«««. yet this extends to the issue of the sister, &c. who shall inherit before the younger brother. 4thly. Of dignities, whereof no other No possessio possession can be had but such as descends to a man and his heirs, ,",," ''s'" (as to be a duke, marquis, earl, viscount, or bavon) of which there can be no possession of the brother to make the sister inherit; but the younger brother, being heir (as Littleton says) to the father, shall inherit the dignity inherent to the blood as heir to him who was first created noble.

Neither posses- And you shall understand that concerning descents there is a

sio fratris nor

half blood hold law, parcel of the laws of England, called jus corona, and differs a» t crown. in many things from the general law concerning the subject. As for example, if the king has issue a son and a daughter by one venter, and a son by another venter, and purchases lands and dies; and the eldest son enters and dies without issue, the daughter shall not inherit these lands, nor any other fee-simple lands of the crown, but the younger brother shall have them. Wherein note that neither possessio fratris holds of lands of the possessions of the crown, nor is half blood an impediment to the descent of the lands of the crown, as it fell out in experience after the decease of king Edward the sixth to queen Mary, and from queen Mary to queen Elizabeth, both of whom were of the half blood, and yet inherited not only the lands which king Edward or queen Mary purchased, but the ancient lands parcel of the crown also.

Descent of land* A man, who is king by descent of the part of his mother, purpunhasedby chases lands to him and his heirs, and dies without issue, this land ■'"•'''"""'• shall descend to the heir of the part of the mother; but in the case of a subject, the heir of the part of the father shall have them. So king Henry the eighth purchased lands to him and his heirs, and died, having issue two daughters, the lady Mary and the lady Elizabeth; after the decease of king Edward, the eldest daughter queen Mary did alone inherit all his lands in fee-simple. For the eldest daughter or sister of a king shall inherit all his feesimple lands. So it is if the king purchase lands of the custom of gavelkind, and dies leaving issue divers sons, the eldest son only shall inherit these lands. And the reason is, for that the quality of the person does in these and many other like cases alter the descent, so that all the lands and possessions whereof the king is seised in jure corona, shall secundum jus corona attend upon and follow the crown, and therefore to whomsoever the crown descends, these lands and possessions descend also; for the crown and the lands whereof the king is seised in jure corona, are con[16a] comitantia. If the right heir of the crown be attainted of treason, crown cures at- yet shall the crown descend to him, and eo instante (without any other reversal) the attainder is utterly avoided, as it fell out in the case of Henri/ the seventh. And if the king purchase lands to him and his heirs, he is seised thereof in jure corona; a fortiori, when he purchases land to him, his heirs and successors.

tainder.

But hereof this little taste shall suffice.

Section 9.

And it is to wit, that this word (inheritance) is not only intended Inheritance where a man has lands or tenements by descent of inheritage, but also every fee-simple or tail which a man has by his purchase may be called an inheritance, because his heirs may inherit him.

There be some that have an inheritance, and have it neither by Nuenarxet to descent, nor properly by purchase, but by creation; as when ^"«T ur/f the king creates any man a duke, a marquis, earl, viscount, or <""' '«""*

. . . . . patent.

baron to him and his heirs, or to the heirs male of his body, &c.

he has an inheritance therein by creation. A man may have

an inheritance in title of nobility and dignity three ways; that

is to say, by creation, by descent, and by prescription. By [166]

creation two manner of ordinary ways (for I will not speak of a

creation by parliament), by writ, and by letters patent. Creation

by writ is the more ancient way ; and here it is to be observed,

that a man shall gain an inheritance by writ. King Richard the

second created John Beauchampe de Holte baron of Kidderminster

by his letters patent, bearing date the 10th October, anno regni

sui 11, before whom there was never any baron created by letters

patent, but only by writ. And it is to be observed, that if he

be called generally by writ to parliament, he has a fee-simple in

the barony without any words of inheritance; but if he be created

by letters patent, the estate of inheritance must be limited by apt

words, else the grant will be void. If a man be called by writ

to parliament and the writ is delivered to him, and he dies

before he comes and sits in parliament, [it becomes a question]

whether he was a baron or no? And it is to be answered that he

was no baron, for the direction and delivery of the writ to him

makes him not noble; for this writ has no operation or effect until

he sit in parliament, and thereby his blood is ennobled to him and

his heirs lineal, and thereupon a baron is called a peer of parlia

ment. And if issue be joined in any action, whether he be a baron, &c. or no, it shall not be tried by jury, but by the record of parliament, which could not appear unless he were of the parliament. Therefore a duke, earl, &c. of another kingdom, are not to be sued by those names here, for they are not peers of parliament. And albeit the creation by writ is the more ancient; yet the creation by letters patent is the surer, for he may be sufficiently created by letters patent and made noble albeit he never sit in parliament.

Of nobility bu marriage.

And it is to be observed, that nobility may be granted for term of life by act in law without any actual creation; as if a duke take a wife, by the intermarriage she is a duchess in law; and so of a marquis, an earl, and the rest, and in some other cases. And there is a diversity between a woman that is noble by descent, and a woman that is noble by marriage. For if a woman, that is noble by descent, marry one that is under the degree of nobility, yet she remains noble still; but if she gain her nobility by marriage, she loses it if she marry under the degree of nobility, and so is the rule to be understood, si mulier nobilis nupserit ignobili desinit esse nobilis. But if a duchess by marriage marries a baron of the realm, she remains a duchess and loses not her name, because her husband is noble, et sic de cxteris.

Dignity for lift. And as an estate for life may be gained by marriage, so may the king create either man or woman noble for life, but not for years; because then it might go to executors or administrators. The true division of persons is, that every man is either noble, that is, a lord of parliament of the upper house, or under the degree of nobility, that is, amongst the commons, as knights, esquires, citizens, and burgesses of the lower house of parliament, who are commonly called the House of Commons; and he who is not of the nobility, is by intendment of law among the commons.

Section 10.

Demesne as of An D of such things whereof a man may have a manual occupation, possession or receipt, as of lands, tenements, rents, and such like, there a man shall say in his count and plea, that such a one teas seised in his demesne as of fee. But of things which do not lie in such manual occupation, &c. as of an advowson of a church and such like, then he shall say, that lie was seised as of fee, and not in his demesne as of fee.

Seised.'] Seisitus, comes of the French word seisin, i. e. possessio, Seited und po>saving that in the common law, seised or seisin is properly applied g'ZheJ!"' to the freehold, and possessed or possession properly to goods and chattels; although sometimes the one is used instead of the other.

In his demesne as of fee.] In dominico suo ut infeodo. Dominicum Lands in deis not only that inheritance wherein a man has proper dominion or TM"TM^j*n.'n" ownership, as it is distinguished from the lands which another S""*"*holds of him in service, but that which is manually occupied, manured, and possessed, for the necessary sustenance, maintenance, and support, of the lord and his household, and savours de domo of the house, either ad mensam, for his or their board or sustenance, or is manually received, (as rents) for bearing and defraying of necessary charges public or private. And in Domesday demesne land is called inland; as for example, quatuor bovatas terra de inland, et decern bovatas in servilio.

In such manual occupation, fyc] There is nothing in our author utiieton's Ac but is worthy of observation. Here is the first (#c.) and there is [17 b] no (#c.) in all his three books (there being as you shall perceive very many), but it is for two purposes. 1st. It implies some other necessary matter. 2dly. That the student may, together with that which our author has said, inquire what authorities there be in law that treat of that matter, which will work three notable effects. l6t. It will make him understand our author the better. 2dly. It will exceedingly add to the reader's invention: and lastly, it will fasten the matter more surely in his memory.

As of an advowson.] Wherein a man hath as absolute an ownership Advomm. and property as he hath in land or rents, yet he shall not plead that ^J^TcTnoe he is seised in dominico suo ut de feodo, because that inheritance, derived from it. savouring not de domo, cannot either serve for the sustenance of him and his household, nor can any thing be received from the same for defraying its charges. And therefore he cannot say that he is seised thereof in dominico suo ut de feodo; whereby it appears how the common law detests simony and all corrupt bargainsfor

presentation to any benefice, and intends that the person presented for discharge of the cure should be presented freely without expectation of any thing; nay, so cautious is the common law in this point, that the plaintiff in a quare impedit could recover no damages for the loss of his presentation until the statute of W. 2. c. 5. And 7B.&C. ISO. that is the reason why a guardian in socage shall not present to an advowson, because he can take nothing for it, and by consequence he cannot account for it, for by law he can meddle with nothing that he cannot account for. And in a writ of right of advowson, the patron shall not allege the esplees or taking of the profits in himself but in his incumbent.

Advowson of a Advowson.] There is this difference between an advowson of the

moitty and

moiety (i/ ad- moiety of a benefice [which is an entire thing] and the moiety of gutihed." an advowson [which is only part]. The advowson of a moiety is,

[18a] when there are several patrons and two several incumbents in one church, the one of the one moiety thereof, and the other of the other moiety, and one part as well of the church as of the parish allotted to the one, and the other part thereof to the other j and in that case each patron if he be disturbed shall have a quare impedit, ad medietatem tcclesia. But if there be two coparceners, and they agree to present by turn, each of them in truth has but a moiety of the advowson, but since there is but one incumbent, if either of them be disturbed, she shall have a quare impedit, ad ecclesiam. But in the case of the two coparceners, one of them may have a writ of right of advowson de medietate advocationis; for in truth she has but a right to a moiety; but in the other case, where there are two patrons and two incumbents in one church, each of them may have a writ of right of advowson de advocatione medietatis. And as there may be two several parsons in one church,(as hath been said) so there may be two who may make but one parson in a church. And Fitzh. says, that two prebendaries may be one parson of a church, who shall join in a juris utrum, so that one rectory may be annexed to two prebends, and then both of them will make but one parson.

Section 11.

And note, that a man cannot Iiave a more large or greater Fee-simple,the estate of inheritance than a fee-simple. largest estate.

This extends as well to fee-simples conditional and qualified, as to fee-simples pure and absolute. For our author speaks here of the ampleness and greatness of the estate, and not of the perdurableness of the same. And he who has 'a fee-simple conditional or qualified, has as ample and great an estate, as lie who has a feesimple absolute; and hence a diversity appears between the quantity and quality of the estate.

From this estate in fee-simple, estates tail, and all other particular estates are derived; and therefore worthily our author begins his first book with tenant in fee-simple, for a principalioribus seu dignioribus est inchoandum.

Cannot have a more large or greater estate 6fc] For this cause Hence fee urm two fee-simples absolute cannot be of one and the self-same land. If **"' the king make a gift in tail, [whereby a reversion is left in himself] and the donee is attainted of treason, in this case the king has not two fee-simples in him, viz. the ancient reversion in fee and a feesimple determinable upon the dying without issue of tenant in tail, but both of them are consolidated and conjoined together. And so it is if such a tenant in tail conveys the land to the king his heirs and successors, the king has but one estate in fee-simple united in him, and the king's grant of one estate is good, and so was it adjudged in the court of Common Pleas.

And yet by act of law, there may be in several persons a qualified Qualified fee fee-simple in one, and a fee-simple determinable in another by ^compatible if matter ex post facto; as if a gift in tail be made to a villein, [who ra"ed°y act"f anciently could take nothing except to his lord's use] and the lord enters, the lord has a fee-simple qualified, [that is determinable on the failure of his villein's issue] and the donor has a reversion in fee. But if the lord infeoff the donor, now both fee-simples are nnited, and he has but one fee-simple in him. But one fee-simple cannot depend upon another by grant of the parties; as if lands

be given to A. [and his heirs] so long as B. has heirs of his body, with remainder over in fee, the remainder is void, [but the grantor has a possibility of reverter which he may grant away.]

Section 12.

Purchase in- Also, purchase is called the possession of lands or tenements that otherStitle but a man hath by his deed or agreement, unto which possession he comes descent. ^f jy tfffe oj descent from any of his ancestors, or of his cousins,

but by his own deed.

[18&] A purchase is always intended by title and most properly by

some kind of conveyance, either for money or some other consideration, or freely of gift, for that is in law also a purchase. But a descent, because it comes merely by act of law, is not said to be a purchase; and accordingly the makers of the act of parliament in 1 Hen. 5. cap. 5, speak of those who have lands or tenements be purchase or descent of inheritance.

Tenant by escheat, curtesy or dower, are in by purchase, contra of disseisor.

And so it is of an escheat or the like, because the inheritance is cast upon, or a title vested in the party by act of law, and not by his own deed or agreement, as our author here says. Like law of the estate of tenant by the curtesy, tenant in dower, or the like. But such as acquire lands by mere injury or wrong, as by disseisin, intrusion, abatement, usurpation, &c. cannot be said to come in by purchase, no more than robbers, burglars, pirates, or the like, can justly be termed purchasers.

Tombmonu- If a nobleman, knight, esquire, &c. be buried in a church, and

("utcheon, be- have his coat-armour and pennons with his arms, and such other long to heir, but ensigns of honour as belong to his degree or order, set up in the

executor has also ° ° ° 'r

aright of action church, or if a gravestone or tomb be laid or made, &c. for a monuthtm. ment of him, in this case, albeit the freehold of the church be in

the parson and these things be annexed to the freehold, yet cannot the parson [or any other person] take or deface them, without being subject to an action by the heir and his heirs in the honour and memory of whose ancestor they were set up. And some hold that the wife or the executors who first set them up may have an action in that case also against those that deface them in their time.

And note, that chattels which are constituted heir-looms fsuch as BmrUom,

v heirs action Jor.

the best bed, table, pot, pan, cart, or other dead moveable chattel) may go to the heir, and the heir then may have an action for them at the common law, and shall not be obliged to sue in the ecclesiastical court; but heir-looms are made so by custom, not by common law. And the ancient jewels of the crown are heirlooms, and shall descend to the next successor, and are not devisable by testament.

CHAPTER II. Section 13.

FEE-TAIL.

Origin of en- Tenant in fee-tail is by force of the statute of W.2. cap. \,for before that statute, all inheritances were fee-simple: for all the gifts which are specified in that statute were fee-simple conditional at the common law, as appears by the rehearsal of the same statute. And now by this statute, tenant in tail is in two manners, that is to say, tenant in tail general, and tenant in tail special.

[19«] The statute of W. 2.] This statute was made in 13 E. 1. [A.D.

1285], and is called West. 2, because the parliament was holden at Westminster, and to distinguish it from a statute called Westminster the first. And albeit many parliaments were afterwards holden at Westminster besides these, yet these two only, propter excellentiam, were called the statutes of Westminster. And the cause of making this statute was to preserve the inheritance in the blood of those to whom the gift was made.

Of conditional Before the said statute all inheritances were fee-simple.~\ Here fee

estates in nature ....... .... „ ....

of estates mil at simple is taken in its large sense, including as well conditional or common u. qualified, as absolute fees, to distinguish them from estates in tail since the said statute. Before which statute de donis conditionalibus, if land had been given to a man, and to the heirs male of his body, the having issue female was no performance of the condition; but if he had issue male and died, the issue male would have inherited, yet he had not a fee-simple absolute; for if he had died without issue male, the donor might have entered as in his reverter. By having issue, the condition was performed for three purposes: 1st, to alien; 2d, to forfeit; 3d, to charge with rent, common, or the like. But the course of descent was not altered by having issue, for if the donee had issue and died, and the land had descended to his issue, yet if that issue had died (without any alienation made) without issue, his collateral heir should not have inherited, because he was not within the form of the gift, viz. heir of the body of the donee. Lands were given before the statute in frank-marriage, and the donees had issue and died, and afterwards the issue died without issue; it was adjudged, that his collateral issue shall not inherit, but the donor shall reenter. So note, that the heir in tail had no fee-simple absolute at the common law, though there were divers descents. If lands had been given [at the common law] to a man and to his heirs male of his body, and he had issue two sons, and the eldest had issue a daughter, the daughter was not inheritable to the fee-simple, but the younger son per formam doni. And so if land had been given at common law to a man and the heirs female of his body, and he had issue a son and daughter, and died, the daughter should have inherited this fee-simple at the common law. If the donee in tail Of the donee's had issue before the statute, and the issue had died without issue, fore an(i „«„,. the alienation of the donee at the common law, having no issue at **""had' that time, had not baired the donor. If donee in tail at the common law had not aliened before any issue had, and afterwards had issue, this alienation had barred the issue, because he claimed a fee-simple; yet if that issue had died without issue, the donor might re-enter, for that he aliened before any issue, at which time he had no power to alien to bar the possibility of the donor. But if feme tenant in tail had taken husband, and had issue, and the husband and wife had aliened in fee by deed before the statute [without matter of record], the issue might have [recovered the land in ?i\formedon in descender; for the alienation was not lawful: but otherwise it is, if it had been by fine. And these things, though they seem ancient, are necessary notwithstanding to be known, as well for the knowledge of the common law, as for annuities and such like inheritances as cannot be entailed within the said statute, and therefore remain at common law. If the king [196] before the statute de donis conditionalibus had made a gift to a man, and to the heirs of his body begotten, the donee after issue born might have aliened as well as in the case of a common person. But if the donee had no issue, and before the statute had aliened with warranty, and died, and the warranty had descended upon the king, this should not have bound the king of his reversion without assets; but otherwise it was in the case of a common person. On the other hand, if lands had been given to the king and to the heirs of his body, he could not before issue have aliened in fee, but only to have barred his issue as a common person might have done, but not to have barred the reversion, for that should have been a wrong in the case of a subject, and the king's prerogative cannot alter his case, nor make it greater than the donor gave unto him; and it is a maxim in law, that the king can do no wrong. 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 seigniories: 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 teaches us.

Statutes. Effect of preamble.

As appears by the rehearsal of the same statute.] Here, by the authority of our author, the rehearsal or preamble of a statute is to be taken for truth; for it cannot be thought, that a statute, which is made by authority of the whole realm, as well of the king, as of the lords spiritual and temporal, and of all the commons, will recite a thing against the truth.

No use raisable on seisin in tail.

By this statute the land is as it were appropriated to the tenant in tail and to the heirs of his body, therefore if an estate be made, either before or since the statute of uses, 27 H. 8. c. 10. to a man and the heirs of his body, either to the use of another and his heirs, or to the use of himself and his heirs, this limitation of use is utterly void. For before the said statute of 27 Hen. 8. he could not have executed the estate to the use [and what he could not do before the statute he cannot do since. But this opinion has been controverted, and it seems that a use in fee may be raised on a seisin in tail, subject to determination on failure of the seisin, 1 Sand. Uses.]

Section 14, 15.

Tail general. Tenant in tail general is, where lands or tenements are given to a man, and to his heirs of his body begotten. In this case it is called general tail, because whatsoever woman such tenant takes to wife (if he has many wives, and by every of them has issue), yet every one of these issues by possibility may inherit the tenements by force of the gift; because every one of such issue is of his body engendered. In the same manner it is, where lands or tenements are given to a woman, and to the heirs of her body; albeit that she has divers husbands, yet the issue which she may have by every husband, may inherit as issue in tail by force of this gift; and therefore such gifts are called general tails.

Land.'] In its general and legal signification, (as hath been said Land includes before) includes not only all kind of grounds, as meadow, pasture, wood &c. but houses and all edifices whatsoever. In a more restrained sense it is taken for arable ground.

Tenements.] This is the only word which the said statute of What aud W.2. that created estates tail, uses; and it includes, not only all ?'"" '""J/'"*

'' 'J be entailed.

corporate inheritances which are or may be holden, but also all inheritances issuing out of any of those [corporeal] inheritances, or TM , concerning, or annexed to, or exercisable within the same, though they lie not in tenure; therefore all these without question may be entailed. As rents, estovers, commons, or other profits whatsoever granted out of land; or uses, offices, dignities which concern lands or certain places, may be entailed within the said statute, because all these savour of the realty. So a right of nomination to a benefice may be entailed for the same reason. But if the grant be of an inheritance merely personal, or to be exercised about chattels, and is not issuing out of land, nor concerning any land, or some certain place, such inheritances cannot be entailed, because they savour nothing of the realty. As if I grant to a man and to the heirs of his body, to be keeper of my hounds, or master of my horse, or to be my falconer, or such like, with a fee therefore, these cannot be entailed within the said estate, for that they be not issuing out of tenements, nor annexed to, or exercisable within, or concerning lands or tenements of freehold or inheritance, but concerning chattels, and savour nothing of the realty. And so it Annuity. is, if I by my deed for me and my heirs grant an annuity to a man, and the heirs of his body, for that this only charges my person, and concerns not land, nor savours of the realty. In all these cases he has a fee conditional as they were before the statute, and the grantee by his grant or release may bar his heir, as he might have done at the common law, for that in these cases he is not restrained by the said statute.

And to his heirs of his bodti begotten.] In gifts in tail these words VHiat words

#!_• • » «. , n • essential to cre

(heirs) are as necessary as in feoffments and grants; for seeing ate estate tan u

2 deed'.

every estate tail was a fee-simple at the common law, and at the common law no fee-simple could be in feoffments and giants without these words (heirs), and that an estate in fee-tail is but a cut or restrained fee, it follows, that in gifts in a man's life-time no estate can be created without these words (heirs), unless it be in case of frankmarriage, as hereafter shall be shewn. And where Littleton says (heirs), yet (heir) in the singular number in a special case may create an estate tail, as appears by 39 Ass. p. 20. hereafter mentioned. And yet if a man give lands to A. and the heirs of his body, the remainder to B. in form aforesaid, this is a good estate tail to B. for that in form aforesaid includes the other. If a man lets lands to A. for life, the remainder to B. in tail, the remainder to C. in form aforesaid, this remainder is void for the uncertainty. But if the remainder had been, the remainder to C. in the same form, this had been a good estate tail; for idem semper proximo antecedenti refertur. If a man give lands or tenements to a man and his seed, or the issues or children of his body, he has but an estate for life; for albeit that the statute provides, that the will of the giver according to the form of the deed of gift manifestly expressed shall be observed, yet that will and intent must agree with the rules of law. And of this opinion was our author himself, as it appeared in his learned reading upon this statute, where he holds, if one gives land to a man and the issues of his body lawfully begotten or to his seed, he has but an estate for life, for that there wants words of inheritance.

What words of

procreation

necessary.

Of his body.] These words are not so strictly required but that they may be expressed by words that amount to as much: for the example that the statute of W. 2. puts hath not these words, "of his body," but the word " heirs," viz. " when any one gives land to a man and his wife and the heirs of this man and woman begotten," &c . If lands be given to B. and his heirs of his first wife lawfully begotten, this is a good estate. in special tail (albeit he hath no wife at that time) without these words "of his body." So it is if lands be given to a man and to his heirs which he shall beget of his wife, or to a man and the heirs of his flesh, or to a man and the heirs of him. In all these cases these are good estates tail, and yet these words " of his body" are omitted.

Entail may be It is holden by some opinions, that if there be grandfather,

to other than J f' o

the donee's issue, father, and son, and lands are given to the grandfather and to his

tenses.

heirs begotten by the father, and the father and grandfather die, oouer. the son is in as heir to the grandfather begotten upon [or by] the i

body of his father, and [then] the wife of the grandfather [shall] I

in that case be endowed. But certain it is, that in some cases one shall have the land performam doni who is not issue of the body of the donee, which see, Section 30.

Begotten,'] "Procreatis." This word may in many cases be Begotten in omitted or expressed by the like, and yet the estate tail is good: as and'future' "heirs of his flesh," "heirs of him," " heirswhich shall happen" &c. as is aforesaid; and where the word of Littleton is "engendered," or " begotten," procreatis, yet if the word be procreandis, (being begotten) or quos procreaverit, (which shall be begotten) the estate tail is good; and as procreatis extends to the issues begotten afterwards, so procreandis extends to the issues begotten before.

Section 16.

Tenant in tail special is, where lands or tenements are given to a Special tail

man and to his wife, and to the heirs of their two bodies begotten.

In this case none shall inherit by force of this gift, but those that

be engendered between the two. And it is called special tail,

because if the wife dies, and he takes another wife, and have issue,

the issue of the second wife shall not inherit by force of this gift,

nor the issue of the second husband, if the first husband die.

To a man and his wife.] Then put the case that lands are given To man and to a man and a woman unmarried and the heirs of their two rM.""" bodies: for the apparent possibility to marry, they have an estate tail in them presently. So it is where lands are given to the husband of A. and to the wife of B. and the heirs of their bodies, they have presently an estate tail, in respect of the possibility. [Infra, sec. 25.]

But put the case that the premises and the habendum are in other What if hubenmanner than Littleton has put, and let us see what the law in „,""/„"«.resuch cases is. As if a man in the premises give lands to another and P"S"a"jthe heirs of his body, habendum to him and his heirs for ever; it lias been holden that in this case he hath an estate tail, and a fee

Xo gift in fee direct.

simple expectant. And so (it is said) vice versa, if lands be given to a man and to his heirs in the premises, habendum to him and the heirs of his body, that he hath an estate tail, and a fee-simple exba- pectant. But it was otherwise resolved in 8 Co. Lit. 150. If land* be given to B. and his heirs, to have and to hold to B. and his heirs, if [i. e. provided] B. have heirs of his body, and if he dies without heirs of his body, that it shall revert to the donor, this is adjudged an estate tail, and the reversion in the donor. For the will of the donor in this deed of gift manifestly expressed shall be observed: and therefore in the case next precedent, if these or the like words be added (and if he dies without heirs of his body that the lands shall revert to the donor), then the habendum shall by authority of divers books be construed upon the whole deed, to be a limitation or a declaration what heirs are meant in the premises to inherit, and that in that case the reversion is in the donor.

Two deeds of same land, one in fee other in tail, how construed.

If a man make a charter of feoffment of an acre of land to A. and his heirs, and another deed of the same acre to A. and the heirs of his body, and deliver seisin according to the form and effect of both deeds, in this case A. cannot take a fee-simple only, as some hold, for that livery was made according to the deed in tail, as well as to the charter in fee, neither can the livery enure only to the deed of estate tail with a fee-simple expectant, for that livery was made as well upon the deed in fee- simple, as the deed in tail. Therefore others hold, that in that case it shall enure by moieties, that is, to have an estate tail in the one moiety, with the fee-simple expectant, and a fee-simple in the other moiety; and so the livery shall work immediately upon both deeds.

Section 17.

Frank-marriage. Ex pro vi.

In the same manner it is, where tenements are given by one man to another with a wife (who is the daughter or cousin to the giver) in frank-marriage, this gift hath an inheritance by these words (frank-marriage) annexed unto it, although it be not expressly said or rehearsed in the gift that the donees shall have the tenements to them and to their heirs between tlie two begotten. And this is called special tail, because the issue of the second wife may not inherit.

To a man with