tensive. He not only can alienate the fee, but he may commit any kind of waste at his pleasure. And yet, with a strange kind of inconsistency in the law, he is not, any more than a tenant for life, bound to discharge incumbrances on the estate. He is not obliged even to keep down the interest on a mortgage, as a tenant for life is bound to do. If, however, he discharges incumbrances or the interest, he is presumed to do it in favour of the inheritance; for he might acquire the absolute ownership by a recovery, and it belongs to his representatives to disprove the presumption. On the other hand, the tenant cannot affect the issue in tail, or those in remainder or reversion, by his forfeitures or engage*19 ments. They are *not subject to any of the debts or

incumbrances created by the tenant in tail, unless he comes within the operation of the bankrupt law, or creates the mortgage by fine.c

Entails, under certain modifications, have been retained in various parts of the United States, with increased power over the property, and greater facility of alienation. The desire to preserve and perpetuate family influence and property is very prevalent with mankind, and is deeply seated in the affections.d

This propensity is attended with many beneficial effects. But if the doctrine of entails be calculated to stimulate exertion and economy, by the hope of placing the fruits of talent

■ Moseley, 224. Cases temp. Talbot, 16.

b Lord Talbot, in Chaplin v. Chaplin, 2 P. Wms. 235. Amesbury v. Brown, 1 Vesey, 477. Earl of Buckinghamshire v. Hobart, 3 Swanston, 186.

• Jenkins v. Keymes, 1 Lev. 237.

Ch. J. Crew, of the K. B., in the great case concerning the earldom of Oxford, in which that house, under the name of De Vere, was traced up through a regular course of descent to the time of William the Conqueror, observed, that "there was no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it." (Sir W. Jones' Rep. 101. 1 Charles I.) But the lustre of families and the entailments of property are like man himself, perishable and fleeting; and the Chief Justice, in that very case, stays for a moment the course of his argument, and moralizes on such a theme with great energy and pathos. "There must be," he observes, "an end of names and dignities, and whatsoever is terrene. Where is Mowbray? Where is Mortimer? Nay, which is more and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality."

and industry in the possession of a long line of lineal descendants, undisturbed by their folly or extravagance, it has a tendency, on the other hand, to destroy the excitement to action in the issue in tail, and to leave an accumulated mass of property in the hands of the idle and the vicious. Dr. Smith insisted, from actual observation, that entailments were unfavourable to agricultural improvement. The practice of perpetual entails is carried to a great extent in Scotland, and that eminent philosopher observed, half a century ago, that one third of the whole land *of the country was loaded *20 with the fetters of a strict entail; and it is understood. that additions are every day making to the quantity of land in tail, and that they now extend over half, if not nearly two thirds, of the country. Some of the most distinguished of the Scotch statesmen and lawyers have united in condemning the policy of perpetual entails, as removing a very powerful incentive to persevering industry and honest ambition. They are condemned as equally inexpedient and oppressive; and Mr. Bell sincerely hoped that some safe course might ere long be devised, for restraining the exorbitant effects of the entail law of Scotland, and for introducing some limitations, consistent with the rules of justice and public policy. Entailments are recommended in monarchical governments as a protection to the power and influence of the landed aristocracy; but such a policy has no application to republican establishments, where wealth does not form a permanent distinction, and under which every individual of every family has his equal rights, and is equally invited, by the genius of the institutions,

• Smith's Wealth of Nations, vol. i. 383, 384. Edin. Review, vol. xi. 359. vol. lii. 360. Miller's Inquiry into the Present State of the Civil Law of England, 407. Bell's Com. on the Laws of Scotland, vol. i. 44. In Spain, private entails prevailed for ages, and one of the Spanish lawyers contends that they have been prejudicial to the agriculture and population of the nation. But since the Spanish revolution, the future creation of them has been prohibited. Institutes of the Civil Law of Spain, by Asso & Manuel, b. 2. tit. 5. ch. 1. n. 6. And in the Austrian states, north of the Danube, as Bohemia, Moravia and Gallicia, according to a late and very intelligent traveller, the feudal tenure of land prevails, with its rigorous feudal restrictions; and in Hungary it exists in the greatest severity; while in the Austrian states, south of that river, feudality has mainly abated, and equality of descent and freedom of alienation have succeeded. Turnbull's Austria, vol. ii, ch. 3.

to depend upon his own merit and exertions. Every family, stripped of artificial supports, is obliged, in this country, to repose upon the virtue of its descendants for the perpetuity of its fame.

The simplicity of the civil law is said, by Mr. Gibbon, to have been a stranger to the long and intricate system of entails; and yet the Roman trust settlements, or fidei commissa, were analogous to estates tail. When an estate was left to an heir in trust, to leave it at his death to his eldest son, and so on by way of substitution, the person substituted corresponded in a degree to the English issue in tail. One of the novels

of Justiniana seems to have assumed that these entailed *21 settlements could not be carried beyond the limit *of

four generations. This is the construction given to that law by some of the modern civilians, though Domat admits that the novel is expressed in a dark, ambiguous manner, and he intimates that it was introduced by Tribonian from corrupt views. It is also termed, by Mr. Gibbon, a partial, perplexed, declamatory law, which, by an abuse of the novel, stretched the fidei commissa to the fourth degree. In France, entails were not permitted formerly to extend beyond the period of three lives; but in process of time they gained ground, and trust settlements, says the ordinance of 1747, were extended not only to many persons successively, but to a long series of generations. That new species of succession or entailment was founded on private will, which had usurped the place of law, and established a new kind of jurisprudence. It led to numerous and subtle questions, which perplexed the tribunals, and the circulation of property was embarrassed. Chancellor D'Aguesseau prepared the ordinance of 1747, which was drawn with great wisdom, after consultation with the principal magistrates of the provincial parliaments, and the superior councils of the realm, and receiving exact reports of the state of the local jurisprudence

Novel, 159. c. 2.

b Browne's View of the Civil Law, vol. i. 189.

Woon's Inst. of the Civil Law, But Pothier, very loosely, and

189. Domat's Civil Law, b. 5. tit. 3. Proeme. without any reference to authority, says, that the Roman law allowed entails to an indefinite extent. Traité des Substitutions, sec. 7. art. 4.

• Hist. vol. viii. 80.

on the subject. It limited the entail to two degrees, counted per capita, between the maker of the entail and the heir; and, therefore, if the testator made A. his devisee for life, and after the death of A. to B., and after his death to C., and after his death to D., &c., and the estate should descend from A. to B., and from B. to C., he would hold it absolutely, and the remainder over to D. would be void. But the Code Napoleon annihilated the *mitigated entailments *22 allowed by the ordinance of 1747, and declared all substitutions or entails to be null and void, even in respect to the first donee.b

Pothier, Traité des Substitutions, sec. 7. art. 4. Toullier, tome v. 27. 29. Repertoire de Jurisprudence, tit. Substitution Fidei Commissaire, sec. 9. art. 2. b Code Napoleon, art. 896, but see infra, p. 268. So by the Civil Code of Louisiana, art. 1507, substitutions and fidei commissa are prohibited, and consequently every disposition by which the donee, the heir or legatee, is charged to preserve for, or to return a thing to a third buyer, is null; and by the Roman law, a portion of the testator's property might be retained by the instituted heir, when he was charged with a fidei commissa, or fiduciary bequest, but this is no longer the law in countries where trusts are abolished. See the Code of Louisiana, art. sup. ed. New-Orleans, 1838, with annotations by Upton & Jennings. In monarchical governments, which require the establishment and maintenance of hereditary orders in power and dignity, it may be very questionable whether the entire abolition of entails be wise or politic. As they are applied to family settlements, in England, and modified according to circumstances, they are found, according to a very able and experienced lawyer, Mr. Parke, to be extremely convenient, and to operate by way of mutual check. Thus, if the father, being tenant for life, wishes to charge the estate beyond his own life, to meet the wants of the junior branches of the family, and provide for their education and marriage, and settlement in life, and his eldest son being the tenant in tail, stands in need, on arriving to majority, of some independent income, they can do nothing without mutual consent. It is, therefore, a matter of daily occurrence, in respect to estates among the principal families belonging to the landed aristocracy, to open the entail, and resettle it, by the joint act of the father and son, to their mutual accommodation. New arrangements are repeated at intervals, as new exigencies arise, and all improvident charges and alienations are checked by these limitations of estates of inheritance, by way of particular estate in the father for life, with a vested remainder in the son in tail; for the father cannot charge beyond his life, nor the son convey the remainder during the father's life, without mutual consent. That consent is never obtained, but for useful or salutary family purposes; and by this contrivance estates are made to subserve such purposes; while their entirety is permanently preserved. The Massachusetts Revised Statutes of 1835, part 2. tit. 1. c. 59. sec. 4, follow this policy, for they declare, that where lands are held by one person for life, with a vested remainder in tail to another, they both may, by a joint deed, convey the same in fee-simple.

LECTURE LV.

OF ESTATES FOR LIFE.

AN estate of freehold is a denomination which applies equally to an estate of inheritance and an estate for life.a Liberum tenementum denoted anciently an estate held by a freeman, independently of the mere will and caprice of the feudal lord; and it was used in contradistinction to the interests of terms for years, and lands in villenage or copyhold, which estates were originally liable to be determined at pleasure. This is the sense in which the terms liberum tenementum, frank treatment or freehold, are used by Bracton, Fleta, Littleton and Coke; and, therefore, Littleton said, that no estate below that for life was a freehold. Sir William Blackstonec confines the description of a freehold estate simply to the incident of livery of seisin, which applies to estates of inheritance and estates for life; and as those estates were the only ones which could not be conveyed at common law

without the solemnity of livery of seisin, no other es*24 tates were properly freehold estates. But *this crite

rion of a freehold estate, as being one in fee, or for life, applies as well to the estates created by the operation of the statute of uses, as to those which are conveyed by livery of

This is even made a matter of legislative declaration, in the New-York Revised Statutes, vol. i. 772. sec. 5.

b Fuerunt in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia, vel per liberas consuetudines. Bracton, lib. 1. p. 7. Liberum tenementum non habuit, qui non tenuit nisi ad terminum annorum. Fleta, lib. 5. c. 5. sec. 16. Litt. sec. 57. Co. Litt. 43. b. In the French law, the liberi, or freemen, were defined to be celles qui ne recognoissent superieure en Feidalité. So, in Doomsday, the liberi were expressed to be qui ire poterant quo volebant. Dalrymple on Feudal Property, 11.

• Com. vol. ii. 104.