There are reasons to suppose that that proceeding was the only process approaching an act of testation which the Anglo Saxons brought to England. But we must remember that Eng land had been a Roman province subject to Roman law for centuries before the Anglo-Saxons arrived. It is, therefore, quite possible that after their arrival the Roman law of wills continued to be observed as a special custom in many highly Romanized dis tricts. That, however, there was any general law of wills in a country which was still in the main a congeries of semi-barbarous tribes each with its own primitive customs is frankly incredible. The Norman Conquest altered all that and rapidly turned the Anglo-Saxon tribes into the English nation. The general law of wills dates from the Plantagenets.
After the Norman Conquest there were two great forces which shaped English law. The first was the barons; the second the priests. The first stood for barbaric custom ; the second for Roman law. The first fiercely insisted that barbaric custom should control the ownership of land, which belonged chiefly to them. The second contrived to get Roman law applied to goods and chattels which belonged chiefly to their friends, the farmers and townsmen. Hence arose the artificial distinction between real and personal property. The history of later English law is simply a narrative of the struggles between the law of realty and the law of personalty which seems now to have ended in the definite victory of the law of personalty. Since 1925 the whole feudal conception of land owning may be said to have disappeared, as many of its incidents had done generations ago.
So far as wills are concerned the difference between the law of realty and the law of personalty was this : realty could not be disposed of (technically devised) by the will of its owner, while the owner of personalty could dispose of (technically bequeath) it subject to limitations somewhat similar to the limitations on the Roman power of testation. Thus, if he left behind him a widow and children the testator could dispose freely only of a third part of it. The common law estates in land which were not devisable were fees simple, fees conditional (after the Statute de Donis Conditionalibus, 1225, turned into fees tail) and life estates. Later, other interests in land were recognized by the law such as leases for years ; but these were not treated as parts of the common law ownership of land but merely hirings of it and as such personalty and bequeathable by will.
The chancellor who was a priest could not make these common law estates devisable but he invented a system under which the beneficial interests in them could be freely disposed of by the owner's will. All the owner had to do was to convey by livery of seisin (or in the case of fees tail by fine or recovery) the com mon law estate to a friend to hold in trust for (or as the original phrase was to the use of) the owner's will. When this was done then on the death of the owner the trustee (or feofee to uses as he was called) was compelled by the chancellor to allow the persons for whom the deceased owner directed the use or benefits of the land to go to receive the rents and profits.
This state of the law continued till Henry VIII. in 1538 forced through parliament the Statute of Uses, so called because it abolished uses. At that time England was as Shakespeare de scribed it, a "many slotted land." In other words, it was the age of small landowners, which intervened between the fall of the ancient landowning aristocracy through the Wars of the Roses and the rise of the modern landowning aristocracy through the confiscation of the lands of the priests and the commons of the people. These small landowners resented furiously the deprivation of their right to provide for their younger children out of the only property they possessed and accordingly Henry found it advisable to have another act passed restoring this privilege. The Statute of Wills I54c) allowed owners in fee-simple holding under tenure of common socage to devise all, and those holding under military tenure to devise two-thirds, of their land. By the Mili tary Tenures Act 1662, military tenures were abolished and so fees simple became fully devisable.
But neither act enabled a tenant in fee-tail and a tenant pur autre vie—i.e., for the life of another person than the tenant himself—to devise his estate. The Statute of Frauds made estates pur autre vie devisable. Fees tail did not become devisable till the year 1926 (Law of Property Act 1925).
The restrictions on the right to bequeath personalty gradually had become obsolete except in some places where they survived as local customs. The Wills Act 1837 abolished all such customs.