As the centuries went by the proceedings became ever less substantial,
the action was always commenced by the issue of a writ in the usual
way, but most of the other steps were only taken on paper. Sir
Frederick Pollock says, that if the disentailer were a peer, a sergeant
was actually briefed to move the court in the matter: also, one must
note that lands held from the crown were never subject to this process
(nor can they now be disentailed without a special act of Parliament).
By another barefaced fiction, colonial property might be disentailed
in England. The deed roundly asserted that the island of Antigua (or
wherenot) lay in the parish of St Mary, Islington--the operation of
this geographical miracle giving jurisdiction to the Court of Common
Pleas. One would suppose that something simpler might have served; but
though laymen jeered, lawyers regarded these quaint formalities with
strange reverence. My Lord Coke mentions with solemn reprobation a
counsel named Hoord who scoffed thereat in the House of Lords, and whom
a judge gravely rebuked as not worthy to be of the profession of the
law, for that he "durst speak against common recoveries;" and as late
as 1820, Thomas Coventry, Esq., of Lincoln's Inn, concludes his learned
treatise on the subject with an eloquent if slightly confused protest
against any change, "which could know no end but an apparent confusion,
or clearing away a path for the access of some modern Pretender to
strip the ivy from the venerable oak of our boasted constitution, the
only emblem that remains of its antiquity and endurance."
And now for a word on fines. These were so called for that they made
an end of a controversy. They were simpler and even more ancient than
recoveries. A fictitious action was begun by the purchaser against the
vendor of an estate, wherein the latter soon gave in: the case was
compromised, a fine was paid to the Crown, upon the Court giving its
consent to this termination of the proceedings, and the record thereof
became the purchaser's title. They were likewise used to bar entails,
though they were not so effectual as recoveries. One of the first Acts
of the Reform Parliament of 1833 was the Statute for the Abolition of
Fines and Recoveries. It was a mere question of procedure, for the
law itself remained unaltered: but disentailment was effected by the
enrolment of a deed in Chancery. And now the dust lies thick on shelves
of text-books--a whole system of learning, full of intricate details,
the creation of centuries of perverse ingenuity.
And the land-owners? These, too, long since availed themselves of the
dark and subtle devices of the conveyancer. Sir Orlando Bridgman, a
great lawyer of the Commonwealth, and finally Chief Justice of the
Common Pleas under Charles II., invented and perfected the system of
family settlements which to-day secures the secular interests of our
great historic houses, as well as, if less directly than, any enactment
could do.
THE CUSTOM OF THE MANOR
Public-domain text, read in full here on John Shaqi.
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