tail[1]. For though the courts had, ſo long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected upon theſe principles[2], yet it never was carried into execution; till Edward IV obſerving[3] (in the diſputes between the houſes of York and Lancaſter) how little effect attainders for treaſon had on families, whoſe eſtates were protected by the ſanctuary of entails, gave his countenance to this proceeding, and ſuffered Taltarum's caſe to be brought before the court[4]: wherein, in conſequence of the principles then laid down, it was in effect determined, that a common recovery ſuffered by tenant in tail ſhould be an effectual deſtruction thereof. What common recoveries are, both in their nature and conſequences, and why they are allowed to be a bar to the eſtate-tail, muſt be reſerved to a ſubſequent enquiry. At preſent I ſhall only ſay, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the ſtatute de donis, which was found ſo intolerably miſchievous, and which yet one branch of the legiſlature would not then conſent to repeal: and, that theſe recoveries, however clandeſtinely begun, are now become by long uſe and acquieſcence a moſt common aſſurance of lands; and are looked upon as the legal mode of coaveyance, by which tenant in tail may diſpoſe of his lands and tenements: ſo that no court will ſuffer them to be ſhaken or reflected on, and even acts of parliament[5] have by a ſidewind countenanced and eſtabliſhed them.
This expedient having greatly abridged eſtates-tail with regard to their duration, others were ſoon invented to ſtrip them of other privileges. The next that was attacked was their freedom from forfeitures for treaſon. For, notwithſtanding the large advances made by recoveries, in the compaſs of about threeſcore years, towards unfettering theſe inheritances, and thereby ſubjecting the lands to forfeiture, the rapacious prince then reigning,
- ↑ 1 Rep. 131. 6 Rep. 40.
- ↑ 10 Rep. 37, 38.
- ↑ Pigott. 8.
- ↑ Year Book. 12 Edw. IV. 14. 19. Fitzh. Abr. tit. faux recov. 20. Bro. Abr. ibid. 30. tit. recov. in value. 19. tit. taile. 36.
- ↑ 11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 34 & 35 Hen. VIII. c. 20. 14 Eliz. c. 8. 4 & 5 Ann. c. 16. 14. Geo. II. c. 20.
