Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Whether it be reasonable, that he who is seized of Lands in Fee-simple, to him and his Heirs, by descent, or gift, should have the absolute di∣sposing

power of the whole, and to disinherit his Heirs.

I Do acknowledge the Law to be, that he may dispose of the whole at his pleasure, and that a condition annexed to restrain him from it, is nought. For it is against the ab∣solute purity of a Fee-simple, that he should not have power to alien it. Litt. Sect. 360. for if such condition should be good saith Litt. then it ousts him of all the power which the Law gave him, which should be against reason, and therefore the condition is void. But if the condition were such, that the Feoffee shall not alien to such a one, naming his name, or to any of his Heirs, or of the issues of such a one, &c. or the like, which con∣ditions do not take away all the powr of alienation, such condition is good. Another reason that such condition

is nought, is, because that he, who hath departed with all his Estate to another, and hath no hopes of re∣verter, may not in reason annex such a condition to restrain the Feoffee or alienee from such alienation.

This I allow to be the Law; yet I beseech you give but leave to exa∣mine these things according to right reason, and judge according to that which may make most for the good of the Common-wealth, and then I conceive it will be thought very hard, that any man should have an absolute disposing power of the whole, and disinherit his Heirs.

I intend this onely of a Fee-simple descended from an Ancestor to ano∣ther, or of a gift to a man and his Heirs; for in case where a man, through his own labour and indu∣stry, hath purchased such an inherit∣ance, it seems more reasonable for

him to have the absolute disposal of it as he shall think fit; for I know no reason, but that he who bought, may sell; but where Land descended to me, or was given to me and my Heirs, in such case, for me to rob my Heir of all that I never laboured for, and to give it to a stranger, seems to me unreasonable.

I say, that he should have an ab∣solute disposing power of the whole, seems unreasonable, but that he should have power to dispose 2 parts seems to stand with reason, so he leave the third part to descend; for otherwise he shall be utterly unable to make a joyncture for his wife, to advance his children in marriage, or to pay his debts; all which, a man is bound in conscience to do: therefore it were very unreasonable that he should be so fettered and bound in his Estate, that he were not able to perform them.

I am not ignorant, that when I give Lands to a man & his Heirs, the Law saith, that the word [Heirs] is by way of limitation, not of pur∣chase; yet when an Estate so de∣scends, or is given as aforesaid, the Heir by the intention of the Ance∣stor, and the donor, ought to have an Estate in point of interest, as also in conscience, after the death of his Fa∣ther. For if a man should demand of such a one who intends to leave his Lands to descend to an Heir, or of the donor, whether he intended that his Heir, or the donor should sell or give away the Estate so de∣scended or come, through their goodness, care, and providence, to a stranger, I know their answer would be, that they intended not a disinhe∣rison of the Heir, but that the Estate should descend & go to their Heirs▪ with the same freedom it descended

or came to them; but I would not be-mistaken, for I intend onely a third part to descend, for the reason aforesaid.

But now let us examine the reason of the Law afore-said; and where the inconvenience lies. The reason is, that 'tis against the purity and abso∣luteness of a Fee-simple, not to have such disposing power; where lies the inconvenience, that it is against a Maxim of Law; nothing of preju∣dice either to the publick, or to any private or particular person.

And then examine the reason of the other side, why such a Tenant in Fee-simple should have power onely to dispose of two parts, and leave the third to descend to his Heir: be∣cause, it would agree with the inten∣tion of the Ancestor, and likewise prevent the beggering of the Heir, a thing too common with profuse and

prodigal Ancestors in these daies. So that I conceive it is evident to you, that the inconvenience lies on this side, and whether it is better to continue a Maxim without reason; or to alter it upon good grounds, I leave to the consideration of our Sages; and of this onely thus much; the next thing I have to treat of is, common Recoveries; concerning which I shall propound this short case and question.