date

21 August 1804. Procedure Note
21 August 1804.

Procedure

Note Coke

Ch. non-homologation

Should any one, reading the passage at this time of day[?] stand up and say /observe/ - they but restraints upon alienation are really contrary to the principle of utility pregnant with pernicious public consequences - I answer it /the answer/ may be so: but no such consequences are here alluded to. Neither in Littleton's term was the law in its definitions /were lawyers in their decisions/ in this behalf guided by the contemplation of these consequences. For a conveyance in fee tail were just as lawful as a conveyance in fee simple, and of an estate in fee tail the characteristic property was that the owner could not alienate. At present he can, by converting it into a fee simple: viz; by the species of judicial fraud called a Common Recovery: but in Littleton's time that fraud had not as yet got into use.

Therefore we see nothing but bad logic /the logic of a simpleton/: a proposition given in other words in the character of a reason for itself. But Littleton goes on, and he gives us no [...?], through from mere wrongheadedness, a notorious /palpable/ untruth. "For" (says he) if such a condition should be good, then the condition should omit him of all the power which the law gives him, which should be against reason, and therefore such a condition is void. Thus far Littleton. This power of using a thing is one power: the power of transferring /alienating/ it is another. So bland is the sage that the first named of these powers is overlooked by him, though the most obvious as well as the most valuable. As to the reason of the use of the case, in the case of the species of estate, above already mentioned, and herald of by Littleton himself - an Estate in fee tail, it is of the species of the estate to include such a condition and in point of fact such condition whether against or not against reason neither is now, nor in Littleton's time was, used. The tenant of an Estate in fee tail, this omitted by that same condition of so much of the power which the law permits to be given, was he omitted of " all the power which the law gives him."
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  • Title: [21 August 1804 Procedure Note]
    Description: 21 August 1804

    Procedure

    Note Coke

    Ch. Non-homologation

    To warrant the enumeration and classification thus given of the functions of the Common Law as drawn from by his Sage, he has taken the trouble to give us references to the sections in which they are reputively exemplified. On [...?] to these examples, it appears /[...?]/ that the words that carry the appearance of pointing to the principle of utility as a guide to judicature, are mere stark [...?] words without a meaning.

    1. The example of his argumentation ab [...?] is as follows: it is taken /presented by/ '' D 87 when the purpose who does homage to his feudal lord for an estate is a male he is to pronounce a form of words beginning with I become your man (votre homme) but when the person by whose the like concerning is performed is a woman she is not to say I become your woman (votre femme) because it is not convenient that she should use the word femme (which in French signifies wife as well as woman) in addressing herself to a man who is not her husband.

    2. For an example of the argumentation ab inutile /which it/ are referred to D 360. The purpose of this section is to inform us that if a man, in the conveyance of an estate by fulfilment, annexes to it a condition, forbidding the [...?] to whom to any body else, this condition is void, void? for what reason? - however because it is so: "because (says Littleton) when a man is [...?] of lands and tenements he hath power to abandon them to any person by the law.

    Likewise[?] the example of the pretended argument from utility neither is any such word understood, nor is there /does the purpose/ any the smallest /more distant/ allusion to the consequences of the regulation in question in relation to human happiness.
  • Title: [24 July 1804. In a grant of lands]
    Description: 24 July 1804.

    In a grant of lands to a corporation aggregate, the words "successors" is not necessary, though usually inserted: for, albeit such simple grant be strictly only an estate for life, yet, as that corporation never dies, such estate for life is perpetual, or equivalent to a fee simple, & therefore the law allows it to be one. II 109

    2 In the case of the king, a fee simple will rest in him, without the words "heirs" or "successor" in the grant ... because the king in judgment of laws never dies. II 109

    3 The general rule is that the word "heirs" is necessary to create an estate of inheritance. II 109.

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    5 As the word heirs is necessary to create a fee, so the word body, or some other words of procreation, are necessary to make it o a fee tail, and ascertain to what heirs in particular the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man & his issue of his body, to a man and

    & his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs. So, on the other hand, a gift to a man, & his heirs male, or female, is an estate in fee-tail; for there are no words to ascertain the body out of which they shall issue. II 115

    6 Common- recoveries are ....fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de denis. II 117.

    7 Of...estates ... for life only...some are...merely legal, or created by construction & operation of law. II 120

    8 In case an estate be granted to a man for his life, generally, it may also determine by his civil death; as, if he enters into a monas- -tery, whereby he is ahead in law: for which reason in conveyances the grant is usually made "for the term of a "man's natural life"; which can only deter- -mine by his natural death. II 121.

    9 A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties; even though the donees be each of them a hundred years old. II 125.

    Requisite...to make a tenanty by the curtesy ...the issue must...be born during the life of the mother: for, it the mother dies in labour, & the Caesarean operation is performed, the husband in this case shall not be tenant by the curtesy: because at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child, which he was yet in the mother's womb. II 128.

    By the antient law the wife of a person attainted of treason or felony could not be endowed; to the intent says Stamford, that if the love of a mom's own life cannot restrain him from such atrocious acts, the love of his wife & children may. tho' Britton gives; viz. that it is presumed the wife was privy to her husband's crime. II 120

    If the lean be but for half a year, or a quarter or any less time, this lessee is respited as a tenant for years, & is stiled so in some legal proceedings; a year being the shortest term which the law in this can take notice of. II 140

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  • Title: [20 July 1804 10 It is an ancient maxim]
    Description: 20 July 1804 10

    It is an ancient maxim of the law, that no title is completely good, unless the right of possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit. II 199

    2

    It seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. II 210.

    3

    3 All rules of succession to estates are creatures of the civil polity, & juris positivi merely. The right of property which is gained by occupancy, extends naturally no farther than the life of the present possessor; after which the land by the law of nature would again become common & liable to be seized by the next occupant .... There is certainly therefore no injutice done to individuals, whatever be the path of descent marked out by the municipal law. II 211.

    4

    This then is the great & general principle, upon which the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to

    the blood of the first purchasor, or, that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have, originally descended. II 223. 229

    5

    If I give land freely to another, he is in the eye of the law a purchasor; & falls within Littleton's definition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man who has his father's estate settled upon him in tail before he is born, is also a purchasor, for he takes quite another estate than the law of descents would have given him. Nay even if the ancestor divises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descent would direct, such heir shall take by purchase. II 241.

    6

    When a man takes an estate by purchase ... he takes it at feudum antiquum, as a feud of indefinite antiquity. II 243.

    Escheat ... denotes an obstruction of the course of descent ... in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee. II 244.

    7

    The law of escheats is founded upon this single principle, that the blood of the person last seized in fee-simple is .... utterly extinct and gone. II 245.

    8

    Aliens ... are incapable of taking by descent or inheriting: for they are not allowed to have any inheritable blood in them. II. 249.

    9

    Sir Edw d Coke also holds that if an alien cometh into England, & there hath issue two sons, who are thereby natural born subjects; & one of them purchases land & dies; yet neither of these brethren can be heir to the other. For the commune vinculum or common stock of their consanguinity is the father; &, as he had to inheritable blood in him, he could communicate none to his sons; and when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other. II 250. Since overruled

    10

    The only feodul foundation upon which newly purchased land can possibly descend to a brother, is the supposition & fiction of law, that it descended from some one of his ancestors. II 260

    11

    By attainder ... for treason or other felony, the blood of the person attainted is so corrupted as to be rendered no longer inheritable. II 281.