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."