rege tenuit libere in allodio. Hurscarlus is a Danish word for servant, hidal is a Spanish word for gentleman. Some hold, that they are allodia, quia minime indigent laude; but it cometh from a German word, importing land free from taxes. Rhenanus, being no lawyer, holds, allodia are lands entailed and inseparably united to a family: Ægidius and Molinæus, although land be allodia, yet it is not exempted from the supreme sort of justice; and though the oath of fealty, where Cicero de L. Agrar. intimates the Romans had three sorts of prædia, optimo jure, libera, servilia; at this day in England, I fancy, the land in fee-simple, which is held in soccage, may be esteemed optimo jure prædia, contrary to the ancient nature and privileges militum, of soldiers; the fee-simple of knights'-service land, libera prædia; copyhold land, servilia prædia. By the civil law, the propriety, freehold, or allodium of land cannot be sold except a man have a good right to it; the common law is contrary.

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MAJORATUS, or the Spanish primogenia, an estate tail male inalienable, being a late invention; as may appear by Gomez; as land which came from the crown, which as long as it continues in a posterity, makes their minds as valorous as the prime founder of their fortune, their ancestor's. On this behalf Pindarus calls Pluto the god of riches; as they do increase, so will a man's stomach evidently; these majoratus resemble the appennages given out to the heir male of the royal blood in France, or the . . which semper stirpi adhæret, and agreeth with the Bockland estate of perpetuity, mentioned by king Alured, or our estate tails created to the heirs males of the body by the statute of Westminster 2 in Edw. I. time, which likewise but remained indissoluble in the blood, until lately in king Edw. IV. time, by the judges of the common place, a common recovery was suffered to cut them off. Doctor Cowel, who in Tertullian's phrase, scintillas conflabat, blows up the sparks, writes it to be considered, with what conscience the judges have invented these recoveries to cut off estates tail, to the end they may rub their teeth

were

with the powder and water Tertullian and Hippolitus write of, and hereafter have a sweet mouth; who take upon them to examine the consciences of judges, who have as much preeminency by their virtue and wisdom, (as Nazianzen writes of Athanasius,) by their dignity and degrees, (as a Greek father writes of Basil,) their words are thunder, their lives lightning, that is, so pure.

may

I shall deliver reasons, that it is fit perpetuities in estate tail be cut off by recoveries: my reasons I shall collect out of foreign laws, and out of the common law: as I am to produce some of the former, I think of the close rolls of the tower, where it is commanded, that those who come from beyond sea, and bring liquors with them, should be forced first to taste of their new liquors; in this place voluntarily I have done it; wherefore I may set them on sale; but, (as Horace saith, mea sum pauper in arte,) if a man, by this trespassing, act against the statute, may lawfully forfeit the estate tail barr, which is at present and the ancient policy of states, as in other countries more at large I shall unfold, by as good reason by the legal act is to have power in him to dispose of his inheritance.

In Spain they allow it for good law, that the house where false money is shall be forfeited unto the exchequer, although the owner were ignorant thereof; but this is an hard law: anciently, two foreign lawyers, Caius and Barbatias, affirm, perpetuities weed out virtue and industry, by taking away their reward, and they sow the seed of idleness and contempt. Again, it is lawful for a man by foreign examples to disinherit his son; by better reason one may sell his own estate: to instance it out of profane and divine stories.

For profane; Themistocles was disinherited by his father; (as. writes,) he thought the boy would prove prodigal; so Pompeius Rheginus by Valerius Maximus was disinherited of his brother; yet if a man were unjustly, as Terentius was by some, there Piso, præfectus urbis, did not only put Terentius in possession of the lands and goods, but would [not] suffer the heir or legatary to bring any action for his right by Valerius; for the last

point the common law is contrary; the king cannot hinder the subject from bringing this action.

In the divine law; not to speak of David's disinheriting an elder son of a kingdom; by the text, it appeareth generally in the tribes of Israel, the father whilst he lived ruled the family, and left, of course, his power to his eldest son; yet he might disinherit him, as is to be gathered out of 1 Chron. xxvi. 10. in the case of Simri of the family of Merari, who was not the eldest son, yet his father made him head of the family: but as the [xxi.] of Deutr. imports, without cause the father would not disinherit his son.

In the parliament rolls, 1 Hen. IV. it appears, the commons of England put up a petition, that our own commodities and goods should be laden in our own ships and bottoms; and so is the law of England at this day, although practice be against it; I obey our laws and the succeeding

reasons.

I copy out of the statute of Hen. VIII. c. 27. about uses, and Chudleigh's case; and the rest adjudged against the perpetuities; yet I also agree unto our chancellor, sir Thomas More the maxims or reasons of the common law, in foreign matters, or pleas, have not the same force as when they are used in the courts of Westminster, when custom giveth the grace.

Out of our printed cases and statutes, I infer, these recoveries against estates tail stand both with reason and conscience in that, to embrace a vain and titulary conceit of land continuing a name, intimateth paganism rather than Christianity if by law the father could not disinherit his son upon any reason, or dispose of his own land, the parents would be least regarded of their children, and many men die in prison for want of means to defray their necessary occasions; and children, be they drunken, (as Bracton discovereth,) or madmen, or bastards, in deed, though not in law, to the unconscionable grief of the parents, must succeed them, when other children are more virtuous; although they be perpetual Lucifers, they must always be angels, and live in plenty.

Again; if these recoveries be not justifiable in foro con

scientiæ, then it will be good conscience, that the tenant shall be evicted of leases by the heirs of the grantor, the lord should be defeated of wardships, and the king lose his escheats in case of high treason. A further motive to justify the act of the judges in Edw. IV. was, in that although their common recoveries shewed themselves more frequently, and with more allowance than before, yet ever since the making of the statute of Westm. 2. recoveries I take it were had, and were upon ancient titles; for all the judges know this may be in some fashion collected out of the parliament rolls of the 17 Edw. III.; wherein the commons desire to have it explained, in what degrees the alienation of tenant in tail bindeth the issue, and when not; the king answered, the laws used for the degrees are to be observed.

Dr. Cowel treats only of the conscience, not of the power of the judges, else I might have been subject to a further labour for these reasons; I doubt but the perpetuities recited by me in the Saxon times, and the perpetuities in the civil law, mentioned in the Digests, and in the 119 and in the 120 Novels, might be cut off, as well as any perpetuities in the common law, although not by the party's own private act, yet by judicial recoveries: and the opinion in a printed treatise called, An Addition to Doctor and Student, "if a "statute were made, there should be no sale of land in "England, that is a good statute;" questionless it is a void statute. I may say also in . . . words, who dedicated his works to Carolus Crassus; these things as it were by excess be remembered, ad cognominalem vestrum Carolum, jam Olienus accedebat notatus, for Olerinus notatus, is in respect of last mention rather than the voice.

Dion Prusæensis writes, those sail quickliest, and safeliest arrive at the haven, who look upon the lights of the watchtower; with more speed and credit I shall accomplish my designs, if I direct my course to the so much admired dominium.

The civilians and French lawyers say, there is plenum, et non plenum dominium, of such land where is utile, and

directum [dominium] the several owners in that case have not plenum dominium: and by Bartolus it is properly of corporal things, or right: but as in the common law we have no such difference of plenum et non plenum dominium, so a man hath as much dominium, or interest, or right 'descendible in incorporate things, as in tithes, rents, offices, and the like, as in corporate things; and herein the common law resembles divinity, for God is as much Dominus, and hath dominium over angels, which are incorporate, as over men, which are corporate. Dominium in the common law, as it is sometimes taken for the seignory, or right in possession, which a man hath in any thing corporate or incorporate, so anciently dominium and domanium with us being one, it signifieth the land a man kept in his own hands in demesne for the present nourishment of his family, as it may appear by Doomsday and Ingulphus. At this day in pleading it is called dominicum, which is the phrase of Simonius the monk.

Theodorus Balsa

The Frenchmen call it domanium. mon calls it dominium; translationis dominium in synodo Laodiceno, et sexto synodo in Trullo, is the place where dominica vasa are kept, which is our vestry; more often dominic...is taken for the church titulus or martyrium.

Locatio and conductio is but the letting of land under the space of ten years, and needeth not much resemblance.

By Feronius, if the tenant have a lease in writing he is to be called properly libellarius, because libello scribitur contractus; by Gregory the ninth, in the Decretals, in respect of the barrenness, or fruitfulness of the year, the rent is abated; our law was never so.

In Spain, if one buy the king's lands, and a subject, and give not the half value thereof, the sale is not good; but by if one take a lease of the king of Spain's land, or take it as a farmer, although he gain half in half, yet the lease shall stand for pure contracts or leases came in by the law of nations, whereby in this kind it was lawful for any to deceive one another: but this reason is against the former part of the Spanish law, which agreeth with the