LECTURE XV.

The difference between allodial and feudal lands—The restrictions on the feudal law—The decay of these—The history of voluntary alienations.

One great and striking difference between allodial and feudal lands consisted in this, that the former entered into commerce. They were saleable or otherwise alienable, at the will of the possessor, either by act executed, and taking effect in his lifetime, or by will, to take effect after his death. They were likewise pledges to the king for the good behaviour of the owner, and therefore for his crimes forfeitable against him and his heirs. They were also security to his fellow subjects for the debts he might contract; and, therefore, by following the due course of law, attachable and saleable, to satisfy the demands of a just creditor[202].

In every one of these respects did fiefs, when they became descendible inheritances, differ from them. The possessor was but an usufructuary, and his power over his lands was checked and controlled by the interest others had therein. These were the lord and the persons descended from the first purchaser. The consent of the lord was absolutely necessary to the tenant’s alienation, to prevent the introduction of an enemy or unqualified person into the fief; but the consent of the lord alone was not sufficient, if there were in being any persons entitled to the succession. Thus if A. is himself the first purchaser of a fee, and hath a son, his alienation, even with the consent of the lord, would hold good only during his own life; but if he had aliened with the consent of the lord before issue had, this should be valid, and bind the issue born afterwards. For here the alienation was made by all the persons in being interested in the land, and the former contract is by their mutual act dissolved, nor is there any wrong done; for it is an absurdity to say that a person not in rerum natura can suffer wrong: the consent therefore of the son, or sons, if one or more of them were in being, was as necessary as the lord’s in this case.

If the lands descended from B. the first purchaser, to his son A. before the introduction of collateral descent, the law was the same; but when these were admitted, it varied for the same reason. A. could not alienate with the consent of the lord and his sons, without the consent also of all the collaterals intitled, that is, all the agnati, or male descendants of B. for this would strip them of their right of succession. If it descended from C. the grandfather, or from any more remote ancestor, the consent also of all the male descendants of the grandfather, or that remote ancestor was required, upon the same principle. By this we see, it was next to an impossibility, that an estate which had been any time in a family (so many consents were required) could be alienated at all. However, there was allowed by that law a transfer of the fief in a particular case, even without the consent of the lord. This was called refuting the fief; it was a resignation of it to the person who was next in order of succession. Here was no injury done to the lord, or the agnati, because it went in the same manner, and to the same persons, as if the refuter was absolutely dead, & quisque juri suo renunciare potest. For the same reasons no testaments of lands were allowed, except the lord, and all others concerned were present and consenting; which scarce ever happening, it became a maxim of the English law, that lands were not devisable by will.

Neither were the feudal lands originally forfeitable for the crimes of the possessor for any longer time than his own life, if there were persons entitled to the succession. But this rule of forfeiture was afterwards extended to the issue of the criminal: for as the right of succession depended much on the supposition the successor was educated in the fealty of the lord, this presumption ceased where the father had actually broke his oath of fealty. And at length, when the rule was established, that every person must claim through him that was last seized, and make himself heir to him, the delinquency of the predecessor became likewise a bar to collaterals.

Feudal estates also were not liable to the debts contracted by the feudatory. For if the creditor might have sold them for debt, a wide door for alienation had been opened, by means of fictitious debts, contracted by collusion between the creditor and vassal. Or even if they were honest ones, the lords and the heirs would have been deprived of their right. Neither could the creditor attach the profits of the land during the life of the debtor; for if he could, an improvident vassal might so impoverish himself, as to be incapable of the duties of the fief.

Such and so strong were the restrictions this old law laid on the feudatory. But as times grew more settled, and the strictness of the military system abated; as commerce increased, and with it luxury, the propensity to alienation grew up, and became at length so strong, in every country, as to be irresistable. And it is a speculation not only curious, but very useful for the students of our law, to observe and remark its progress in England[203].

The first step towards voluntary alienations arose from the practice of sub-infeoffing. Originally, as I observed in a former lecture, although the vassals of the king could infeoff, their vassals could not; but at the latter end of the second race in France, when the power of the crown was declined, and the great lords were in reality sovereigns, acknowledging only a nominal dependance on the king, some of them, in order to strengthen themselves, and to increase the number of their military followers, allowed this privilege not only to their immediate vassals, but to sub-vassals also, to an unlimited degree. And when this practice was once begun, the other lords, for their own security and grandeur, were obliged to follow the example. This practice of subinfeuding contributed much to the power of the lords, and therefore was by them encouraged. But though it was intended, at first, only to extend to part of the vassal’s fief, the usage of subinfeuding the whole gained ground, to the great prejudice of the heirs; when the terms of subinfeudation were no better than those of the first grant; and of the lords also, who thereby lost frequently their profitable fruits of tenure, their reliefs, wardships, and marriages; which, with respect to the lords, was remedied in the reign of Edward the First, by the statute of Quia emptores terrarum before mentioned[204].

In the mean time, free alienation was allowed in cities and boroughs; partly because many of these were old Roman towns, and their lands and houses allodial, and because those which were not so were founded by lords on the same principles for the benefit of commerce, which could never have flourished if a debtor had not full power over his property of all kinds to satisfy his creditor; and if the creditor, in case he was unwilling, had not power to compel him to sell for his just satisfaction. Alienations, however, of one kind were permitted, namely, the founding of monasteries, and endowing of churches. These, through the superstition of the times, were looked upon as being equally beneficial to the feudal society as subinfeudation, by engaging God in their interest; and even if the lords and their heirs, who suffered by these grants, were willing to dispute them, they were unable to contend with the omnipotent power of the pope and the clergy; until at length the tyranny of the first, and the avarice of the last, provoked both king and people to restrain them by the acts against Mortmain. But no other alienations were yet allowed without consent, as before mentioned[205].

In the reign of William Rufus a particular matter occurred, which opened a way for alienation without the lords consent, and occasioned a prodigious revolution in the landed property of Europe. This was the madness of engaging in crusades for the recovery of the Holy Land. A crazy friar returning from a pilgrimage to Palestine, where he saw the Christians maltreated, began to preach up this expedition as the most meritorious of works; and it is wonderful with what an epidemical contagion the enthusiasm spread through all ranks of people. These pilgrims, who assumed the cross, had no way of defraying the expence, but by the sale of their lands, which their lords, if disinclined, dared not to gainsay, or obstruct so pious a work. But indeed, most of them were conscientiously affected with the same madness, as may be seen by the great number of kings, princes, and lords, that beggared themselves in these fruitless enterprizes[206].

The pope and the kings concurred in inflaming this superstition, but from different motives. The pope did it out of ambition and avarice. The former he satisfied by declaring himself the head of the expedition, and thereby attaching to himself and his see such multitudes of redoubted warriors by the strongest of bonds, conscientious superstition. And indeed successors in that chair afterwards made very good use of this example, by preaching up crusades against such Christian kings and princes as disobliged them. But the more immediate advantage he received, was the glutting his avarice by a proper sale of dispensations to such as had rashly taken the cross, and afterwards found themselves unable, or unwilling to fulfil the obligation. The reason that induced the kings of Europe to promote this spirit, I mean such of them as were not possessed with the frenzy themselves, was the hope of abasing their too great and powerful vassals, which would naturally follow from the alienation of part of their lands, to equip them for the expedition; and a desire to facilitate the partition of these great seignories among females, when the males were so frequently and miserably slaughtered[207].

So many were the alienations of this kind, and so long were they continued, that it is no wonder that the interest of the lord and the heirs began to lose ground in the opinions of the people, which proceeded so far, as that, in the other cases, the lord, on the payment of a moderate fine, either before or after, was looked upon as obliged to consent to the alienation. Let us now see how the liberty of alienation gained ground, particularly in England.

In Henry the First’s time, a man was allowed to alienate his purchase, but not an estate that came by descent. This law says, Acquisitiones suas det cui magis velit; si Bocland autem habeat, quam ei parentes sui dederint, non mittat eam extra cognationem suam [208].

This liberty of alienation of purchases is not to be understood generally, but only where the purchaser had no son; if he had any, it may be a doubt whether he could alienate any part at this time. Certain it is, he could not the whole, even in Henry the Second’s time. For thus Glanville lays down the law: Si vero questum tantum habuerit, is qui partem terræ suæ donare voluerit, tunc quidem hoc ei licet sed non totum questum, quia non potest filium suum hæredem cohæredare [209].

The practice of alienating lands by descent grew up more slowly. At this time a part only was alienable, and that not freely, to all persons, or for any consideration generally; but only in particular cases, first to the church in Frankalmoigne; secondly, to one who had done services in war, or to the fief in time of peace; thirdly, for the advancement of his family, as in Frank-marriage with his daughter, sister, niece, or cousin. But every day this liberty gained ground, until at length the interest of the heir entirely vanished, and that of the lord began, in military tenures, to be little considered, and not at all in socage. However, in Magna Charta some check was given to that kind of alienation of the whole fief, that was carried on under the pretence of subinfeudation. Nullus liber homo det de cætero amplius alicui vel vendat de terra sua quam ut de residuo terræ possit sufficienter fieri domino feudi servitium ei debitum; and this sufficiency was by practice explained to the half of the fee[210].

No provision being made in these laws for the consent of the lords, they generally, though not always, lost their fines; and a method likewise was invented to obviate their refusal, by levying fines in the king’s courts of record, in this manner. They used to suppose that the parties had covenanted to alienate; and all writs of covenant (being actions of public concern to the justice of the kingdom) were sueable only in the king’s court; and by consequence this covenant to alienate was sueable only there. The superior court then being possessed of the matter, as an adversary cause, permitted the parties (on a fine being paid to the king, in lieu of that which he would have received at the end of the suit, from the party that failed) to make an amicable agreement or end of the suit, which was done by the party sued coming in, and recognizing, that is, acknowledging in court the right of the demandant to the land. This method of conveyance by fine grew up, and still continues to be one of the common assurances of the realm. For being transacted in a court of record, it obviated the danger of future controversies between parties, or any dispute concerning the execution of a deed, or the giving of livery and seizin[211].

At length the statute of Quia emptores terrarum, already mentioned, was made, as well to remedy the mischiefs the lords complained they suffered by subinfeudation, namely, the loss of their fruits of tenure, as to settle the doubt, as to the right of the tenants to alienate. This statute entirely takes away the lords consent; for it gives the tenant free power to sell, or alien the whole, or part of his tenancy, to whom he pleased. But then, in favour of the lord, it establishes, that if the tenant parts with his whole interest in the lands, namely, the fee simple, the alienée should not hold of the alienor, but immediately from the alienor’s lord, by the same services, by which he, the alienor, had holden. Thus were the lords, in one respect secured in their rights, by the stopping the course of subinfeudations, and the tenants got a free liberty of alienation without the consent of the lord, or paying any fine to him. The king, however, not being named expressly in this act, it was construed not to bind him, as I have said before; and his consent was still required to the alienation of his tenants by military service, according to the rule of Magna Charta; that is, if more than half was alienated, so that the residue was deemed unsufficient to answer the services. And this was put out of doubt by the statute De prerogativa regis, made the 17th of Edward the Second, cap. 6.

The bent towards free alienation, however, was so strong as to occasion a further mitigation so soon after, as the first year of Edward the Third. For then it was provided, that if the king’s military tenant alienated without licence, contrary to the late act, the land so alienated should not be absolutely forfeited as before, but that the king should be contented with a reasonable fine in chancery. These compositions were sometimes dispensed with, to encourage the tenants to attendance in hazardous expeditions; but, except in those singular cases, they continued to be paid, until the reign of Charles the Second, when knight’s service being abolished, they fell of course along with it[212].

Such was the progress the alienation of land made by conveyance inter vivos; but the bequeathing lands by last will did not keep equal pace with it. The first step made thereto was by laying hold of the doctrine of uses, which about the time of Richard the Second was invented by the clergy, to elude the statutes of Mortmain, by which their advance from time to time was checked. As in every feudal grant there were two estates, the absolute propriety in the lord, a qualified property, namely, the possession and profits, in the tenant; now that they were prohibited from taking the real tenancy, they cunningly devised a means of subdividing the tenancy, by separating the profits from the possession. When, therefore, a man had a mind to alienate to the church, as he could not do it directly, he infeoffed a person to the use of such a monastery. Here the feoffee and his heirs were, in the construction of the common law, the proprietors, but, in fact, were bare trustees for the monastery, for the use of which they received the profits. But it may be asked, if the trustee or his heirs would not suffer them so to do, where was their remedy. The courts of common law allowed of no such division of estates at that time, nor would they have suffered such necessary laws to be defeated by such collusion, though they had been acquainted with these divided interests. They had recourse, therefore, to chancery, where, it being always, to the time of Henry the Eighth, filled with a churchman, they were sure to meet favour; and this court claiming an equitable power to enforce persons conscientiously to fulfil their engagements, compelled the trustee to support and maintain the uses.

These uses, once introduced, were applied to other purposes, particularly to that I am now upon, the enabling persons to dispose of their lands by will. The manner was thus: A. aliens his lands to B. to the use of A. himself for his life, and, after his death, to such uses as he A. should, by his last will and testament, appoint. B. was then compellable in chancery, not only to suffer A. to take the profits during life, but after his death to execute the directions of the will, and to stand subject to the use of such persons as he appointed, and make such estates as he directed. This method gained ground every day, as many persons chose to retain their power of alienation in their own hands, to the last moment of their lives, and to keep their heirs, or other expectants, in continual dependance. And it at length grew so common, that in Henry the Eighth’s time, it was thought proper to give leave, without going through this round-about method, to dispose of lands directly and immediately by will; of the whole of their socage lands, and of two thirds of the lands holden by knight’s service. And this latter tenure being, after the Restoration, turned into common socage, all lands, not particularly restrained by settlement, are since become devisable; whereas, before these laws, they were only so in particular places, by local custom. But the statute that gives this power, in order to prevent frauds, expressly orders such will to be in writing; whence arose a distinction, as to the validity of wills of land, according as these lands had, or had not, been before devisable by custom. For those that were so before, continued devisable by will nuncupative, or without writing[213].

But the reduction of the will into writing was not found sufficient to prevent forgery and perjury, and therefore the statute of frauds and perjuries has added other solemnities, as requisite to pass lands by will. It requires that it shall be signed by the testator, or some other by his direction, and attested by three witnesses in his presence.

As to signing, it is insignificant where the signature is, whether at the bottom, or the top, or in the context of the will, the name of the testator, written by his own hand, in any place, being sufficient. And the putting his seal to the will, though without his writing, has been judged sufficient; for his seal is as much his mark, or sign, as his handwriting. As to the attestation, the statute requires it to be in the testator’s presence; but it is absolutely necessary, that he should look on and see it done. Therefore, if it is attested in the room where he lies sick in bed, with his curtains undrawn, this is a good attestation; or if it is attested in a neighbouring room, and the door open, so that he might possibly see it done, this is in his presence. But if the door be shut, or the place so situated that he could not by any means see the attestation, the will is void.

I shall next proceed to involuntary alienation of lands, namely, for payment of debts; and then give an account of the origin and progress of estates tail, which were introduced to restrain this power of alienation, and to restore, in some degree, the old law of keeping estates in the blood of the first purchaser.