THE LAW AND CUSTOM OF PRIMOGENITURE 357 



It is impossible to fix the precise year, or even the precise 

 reign, in which primogeniture was substituted for gavelkind in 

 the common law of England. Blackstone, who regards this 

 feature of mature feudalism as introduced by the Conqueror, 

 points out that, under the so-called laws of Henry I, the eldest 

 son had no pre-eminence beyond the right of appropriating the 

 " capital fee " held by military tenure ; and that so late as the 

 reign of Henry II socage fees continued to be partible among 

 the male children. At all events, the present rule of succession 

 had become almost universal, excep,t in Kent, before the end 

 of the thirteenth century, by which time, also, the custom of 

 entailing, in its most ancient form, was already established. 

 Entails created in this form conferred no indefeasible right 

 of inheritance. When a fee was granted to a man "and the 

 heirs male of his body," it was held that, upon the birth of a 

 son, the grantee might sell the land, or charge it with incum- 

 brances, or forfeit it by treason, so as to bar the interest of his 

 own issue, though, if he did none of these acts, it would descend 

 according to the express terms of the grant. This full liberty 

 of alienation is described by Mr. Xeate, in his treatise on the 

 Law of Entail, as characteristic of true feudalism, which denied 

 the son any vested right in the estate so acquired by the father. 

 The famous statute De Donis (13 Edward I, cap. 1), by which 

 the succession of the issue and the ultimate reversion of the 

 donor on failure of issue were secured against the risk of 

 being defeated by alienation, is viewed by the same author as 

 a legislative encroachment on feudal principles. The entails 

 made under this statute for nearly two hundred years created, 

 in fact, a perpetual series of life-estates, and are stigmatised 

 in a well-known passage of Blackstone's " Commentaries" : 



Children grew disobedient when they knew they could not be set aside ; farmers 

 were ousted of their leases made by tenants-in-tail ; . . . creditors were defrauded 

 of their debts : . . . innumerable latent entails were produced to deprive pur- 

 chasers of the lands they had fairly bought : . . . and treasons were encouraged, 

 as estates-tail were not liable to forfeiture longer than for the tenant's life. 



Though it may well be doubted whether the greater part of 

 England was subject to entails under De Donis, the fact of such 



