Page:The American Cyclopædia (1879) Volume V.djvu/154

 150 COMMON LAW Jewish or canonical rule, which allowed a double portion to the eldest, but gave to the others also a share of the estate. Thus in the reign of Henry I. it appears that the eldest son took only the primum patris fadum (the prin- cipal manor), the rest being left to descend to the other sons ; but this rule was of short dura- tion, for in the reign of Henry II. the eldest son was considered the sole heir of the whole inheritance. This related to lands held by mili- tary tenure or knight's service; socage lands (which were held by other services, and finally for a mere pecuniary compensation), even as late as the reign of Henry II., descended to all the sons, but the eldest was entitled to the capital messuage. This was not, however, uni- versal. The doctrine of representation was not entirely settled, and Glanville (who wrote in that reign) says that it was a question, when a man left a younger son, and a grandson by an elder son, which should succeed ; and he ex- presses the opinion that if the elder son had been provided for by an appointment of land during his life, the grandson should have no claim against the uncle for the remainder, though perhaps the eldest son might himself have done so had he survived. Gradually, however, all lands became subject to the strict feudal rule of primogeniture, except in certain places, where, by special custom which had been unbroken, it was otherwise. As to per- sonal property and contracts, how extensively the rules of the civil law were adopted may be seen in the treatise of Bracton, De Legibus et Consuetudinibus Anglia, which was published in the reign of Henry III. The arrangement of the subject is similar to that of Justinian's Institutes, and many principles are extracted from the Pandects, sometimes in the very lan- guage of the original. But Bracton was no servile copyist. He had a great legal mind, and he selected and applied the rules of law, from whatever sources derived, with much dis- crimination, and defined and explained them with precision. Such was his adaptation of le- gal principles to the peculiar circumstances and habits of the English people, that it was not understood by his contemporaries how largely he had drawn upon the civil law. During a long period, down even to the time of Coke, he held much the same relation to the common law that in later times Pothier had to the French law, with only this difference, that Bracton was also profoundly versed in the practice of the courts and forms of proceeding. As our object is simply to develop the primitive sources of the common law, and the general principle or pro- cess of its formation, it will be unnecessary to trace minutely the successive changes, from its earlier form to the later and more compli- cated system. It will be sufficient to refer summarily to some of the important incidents. 1 . The relaxation of the feudal principle of non- alienation, until all restriction was removed by the statute Quia emptores, 18 Edward I., and other acts ; then the introduction of conditional fees, or estates tail, which, by the statute De Donis, 13 Edward I., were restricted from alien- ation, and the evasion of the statute by new forms of conveyance, viz., fines and common recoveries. 2. The prohibition of conveyances to religious houses and persons. This was first by the Magna Charta of Henry III., which was construed to relate to religious houses only; and in consequence the act De Religiosis, V Ed- ward I., commonly called the statute of mort- main, was passed, by which the prohibition was extended to all persons holding for similar pur- poses; and in the statute Quia emptores, above referred to, which gave general liberty of alien- ating lands, a proviso was inserted that this should not authorize any kind of alienation in mortmain. Common recoveries were resorted to by the ecclesiastics to avoid the effect of these disabling statutes; but this device was checked by statute 13 Edward I., which pro- vided that the fiction should be disregarded, and the real right should be tried, and if not found in the religious corporation, the land should be forfeited. Next the ingenuity of the clergy de- vised a form of conveyance, by which, instead of the fee, the use only was given to the reli- gious beneficiary, while the seisin remained in a nominal feoffee ; and courts of equity, which were then under the direction of the clergy, held that the feoffee was bound in conscience to account to the cestuy que use for the profits of the estate. This device was, however, de- feated by the act 15 Richard II., which enacted that uses should be subject to the statutes of mortmain as well as the lands. When the statute relating to wills, 32 Henry VIII., was passed, devises to corporations were excluded. By a subsequent act, 43 Elizabeth, a devise to a corporation for a charitable use was allowed, and this is now the sole right which religious corporations have for the acquisition of real estate either by deed or will. 3. The intro- duction of uses, as before mentioned, gave rise to a complicated part of the English law of real property. Great landed proprietors, for the purpose of perpetuating estates in their fami- lies, and to prevent alienation, resorted to the expedient which had been invented by the clergy, of conveying the use instead of the fee, and in the court of chancery such conveyance was held binding for any length of time. This gave rise to the statute of uses, 27 Henry VIII. , by which the use was transferred into posses- sion, or in other words, the estate vested in the cestuy que use. By a narrow construction of the act, its operation was to a great extent evaded by the substitution of trusts for uses, and under that denomination conveyances have been introduced which are enforced in chan- cery, but with some important modifications in regard to their legal effect. (See BAKGAIN AND SALE.) 4. The various provisions of law in re- lation to personal liberty and rights. This is perhaps the most important part of the com- mon law, but it would greatly exceed our lim- its to attempt to give even a summary of its