Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/471

Rh ENTAIL 4f&amp;gt;] which associates the land with its hereditary owners has found expression in the well-known lines &quot; Shades that to Bacon could retreat afford Become tlie portion of a booby lord, And Hemsley, once proud Buckingham s delight, Slides to a scriv ner and a city knight.&quot; Hence, also, the various suggestions which have been made of a downward and an upward limit to the property which should be required for a lawful entail of certain dignities. In his essay on Popular Discontents Sir William Temple proposed, and Dr Johnson applauded the proposal, that every baron should have at least 4000, every earl 6000, and every duke 8000 worth of land. This idea has frequently been realized in practice. In Prussia an entail was incompetent except of subjects above 400 in net annual value; in Denmark the estate must be at least 200 tonder of hard corn, or 2000 acres in extent ; and under the Napoleonic system, the dotation of the proposed entail, whether proceeding from the Government or from the applicant himself, was always carefully fixed by the Conseil dti sceau des titres, with reference to the title or dignity which it was intended to preserve. A prince of the imperial blood or a grand dignitary was entitled to call his house a palais, princes of the empire and dukes had to content themselves with hotel, and so on. The same principle appears in the canon of construction laid down by the old Italian law, that a majoratus of such subjects as palatium, turris, castrum, and even jedificium was easily presumed. 1 Indeed, kingdoms have been the subject of entail, and thus the law of entail has supplied the key to more than one political situation. Such was the great controversy &quot; de vanitate hceredum regre- dientium,&quot; whether according to the doctrine of reversion or regredient-crben, on the failure of heirs male, and in the absence of any pactum confraternitatis taking the estate to another family, a fee-simple estate remained in the last substitute, or whether the estate returned to the heirs of the entail. This question arose in 1740 between Maria Theresa and the elector of Bavaria ; the former was victorious by force of arms against the general opinion of lawyers. It was also discussed all over Europe in the Hochsteden case. The crown of Spain was the type of the regular mayorazgo in that country the inalienable estates descending to the eldest and nearest heir by blood (natu major), with right of representation and without preference of males. Again, the relation between the crown and the entailed estates of subjects has produced a number of elaborate rules with respect to the justce causce of interference by the state, and has thus profoundly influenced the history of Europe. An Italian majoratus, for instance, might include such subjects as jus honorificum, patronatus, . commenda militaris, feudum habens administrationem : from all these monks were by the common law excluded ; and all of them were forfeited to the fisc, either absolutely or for a time, by the blasphemy, heresy, or treason of the heir in possession. The entail, therefore, has always been much more than a family settlement or a system of land tenure. In modern Europe there have not been many forms of hereditary aristocracy without some form of entail. But it by no means follows that the influence of perpetuities upon the aristocracy has been beneficial. The introduction of post obit bonds, and the law of England relating to the protection of infants against unconscionable bargains, sug gest some reflections of a different kind. It will appear in this article that public opinion has generally condemned entails, and that they are being rapidly abolished through out Europe. The speeches of Isceus and Demosthenes show that in 1 Joannis Torre, De swcessione in Majorat&us tt Primogcnituris, Paris, 1692. Greece many difficult questions had risen with regard to the power of a testator to substitute one heir after another ; but the earliest definite legal forms of entail were those which appeared under the later Roman law relating to fidei commissa, or trusts. The fidei commissum was originally a trust conveyance introduced for the purpose of evading such disabilities as the lex Voconia imposed on women to take directly under a will. The trustee, or fiduciaries, was after the time of Augustus liable in a personal action at the instance of the beneficiary, or hceres fidiiciarius. This form, however, was soon converted into a long nomination or substitution of heirs, to which clauses prohibiting alienation were added. The most common clauses were such as &quot; ne eum fundum vendatis,&quot; &quot; ne ex nomine familiae alienaretur.&quot; One well-known form also prohibited mortgages, and emphatically declared that the settled estates should remain &quot; firmas meis filiis et nepotibus per universum tempiis,&quot; and that all contrary deeds should be void and null. On this deed Scsevola expressed the opinion that a security over the rents was not a contravention. 2 For some centuries the law recognized such entails as valid in perpetuity ; but by Novel 159, 3 &quot;Ut restitutiones in uno gradu subsistant,&quot; their validity was confined to the first four generations. The jus empkyteuticum limited to hceredes sui, which wan granted to coloni, formed the type of the tenure by hereditary lease, bail hereditaire, which is still common in Europe. Among others may be mentioned the aforamento of Portugal, in which the superior is named directo senkor, and the vassal or tenant forei.ro ; the contralto di livello and beni libellari of parts of Italy ; the empliytemis transit or ia ad quoscunque expacto et providentia concedentis, the tenure of monastery lands, in the old Roman states ; the erbleihe and landsiedelgilter of Bavaria (&quot;allodified&quot; in 1848) ; the beUem-regt of Groningen. subject to the propinen, or fine, on renewal; the erb-pacht of several German districts; the qiievaises and domaine congeable of the west of France ; most of which, indeed, have become fee-simple estates, but were at one time inalienable. The differences between emphyteusis and feu are well brought out in an essay De prohibita rerum alienatione by the Dutch jurist Sande, Leovardia?, 1G57. This and the tenure on which the limitanei milites held their agri limitrophi as a sub- sidium adversus rebelles naturally introduce us to ihefeuda yentililia of the feudal law in which the benefice was granted out to a vassal and his heirs, who could not alienate without the superior s consent, because on the failure of these heirs the feu returned to the superior. Indeed, the vassal could not alter the succession ; and hence, as Sir Thomas Craig observes, &quot; sine superioris consensu vixtallias locus esse potest.&quot; 4 The principle of limitation is here of course entirely opposed to that of the Roman law, which affirmed the right of a testator to name his heirs in per petuity. It was a feudal maxim, &quot; Solus Deus potest facere hseredem :&quot; 5 and the limitations on the vassal s right arose, not from his own act, but from the reserved estate of superiority and the tenor of his charter in the lands. The feudal law also favoured male heirs, and required that one heir only should succeed. It appears from the laws of Alfred (c. 37), that entails were known before the Norman feudal law had been domesticated in England. &quot; Si quis terrain hsereditariam habeat, earn von vendat a cognatis hreredibus suis, si illi viro prohibitum sit, qui earn ab initio acquisivit, ut ita facere nequeat.&quot; These grants which could not be alienated from the lineage of the first purchaser were also known as 8 D. xxxi. De legatis et fidei commissis, tt. 69-88. C. vi. I)e fidei commissis, t. 4. 3 See a note on this Novel, Gibbon, viii. 80. 4 ii. 16, De successions tallia.ta, 12. 5 See Mr Charles Butler s note 191a to Coke on Littleton.