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SECTION 1. Alienation of THE third mode of acquiring an estate by pur. Lands.
I chase, is alienation ; under which is comprised
every method whereby estates are voluntarily resigned 1 Inst. 118 b. by one person, and accepted by another. Lord Coke
says, the word alienation is derived from alienare, id est, alienum facere ; vel ex nostro dominio in alienum transferre, sive rem aliquam in dominium alterius transferre.
2. It is admitted by all our legal writers, that an unlimited power of alienation existed in England in the time of the Saxons : that upon the settlement
of the Normans, and the establishment of the feudal Wright, 154, law, all lands became unalienable ; and that, during
the reigns of William I. and his sons, the doctrine of non-alienation was, for various reasons, strictly enforced.
3. The greater part of the real property of the
kingdom had been distributed among the Norman Dissert. c. 2. barons, as strict and proper feuds ; upon condition 8 1.
of military service. And as a considerable jealousy prevailed against all those who were of Saxon origin, lest they should attempt to reinstate themselves in their ancient possessions ; great care was taken during that period, that all the vassals of the crown, who could alone be depended on, in case of any insurrection, should be in a situation to perform their military services.
4. The first step towards a liberty of alienation, was that by which the tenant was permitted to aliene, with the consent of his lord. This rule was adopted from the maxims which then prevailed on the Continent, and gave rise to fines for alienation. But in England the tenant could not dispose of his land, even with the consent of his lord, unless he had also Glany, Lib. 7. obtained the consent of his next heir : it was therefore Med Form very common, in ancient feoffments, to express that No 316. the alienation was made, with the consent of the feoftor's heir.
5. The power of alienation was farther extended by a law of Hen. I. c. 70., which allowed a man to dispose of lands purchased by himself. Emptiones vero, vel deinceps acquisitiones suas det cui magis velit. Si Bockland habeat, quam ei parentes sui dede. runt, non mittat eum extra cognationem suam.
6. Glanville has given us a very circumstantial Lib.7. c. l. account of the law, as it stood in the reign of Hen. II., respecting alienation ; from which it appears that the power of disposing of lands was then considerably enlarged; and a right of alienation seems to have been soon after extended to all lands which a person had himself acquired, provided they had been conveyed to him and his assigns; and also to a fourth part of all lands acquired by descent; without the consent of the heir.
7. There was also a particular mode of alienation, Subinfeuda. which appears to have been always allowed ; and in the tion. feudal law is called subinfeudation :- Where the pro- Dissert. c. 2. prietor of a feud granted a proportion of it, to be $ 14. held of himself. The king's chief tenants adopted this practice, immediately after the Conquest, in order that they might be able to perform their renders; for most of them held their lands by the service of several knights. .
8. Thus it appears from the Black Book of the Exchequer, published by Hearne, that in the reign of Henry II. the king's tenants had created a vast number of knights fees, to be held of themselves.
9. The practice of subinfeudation produced a grievance, much complained of in those days. The persons who held of the king's chief tenants began to grant to others still more minute estates, to be held of themselves, and were so proceeding downwards in infinitum, till the superior lords observed, that by this method they lost all their feudal profits ; which fell into the hands of these mesne or middle lords. Besides, these mesne lords were by this means less able to perform their military services.
10. This caused an article to be inserted in magna charta, prohibiting subinfeudation, unless sufficient was left to answer the services due to the superior lord. Nullus liber homo det de cetero amplius alicui, vel vendat alicui de terra sua, quam ut de residuo terræ suæ possit sufficienter fieri domino feodi servitium ei debitum, quod pertinet ad feodum illud.
11. The inconveniences which followed from the practice of subinfeudation, produced the statute of quia emptores terrarum ; which, reciting the losses sustained by the great lords,, enacted-Quod de cetero liceat unicuique libero homini terras suas seu tenementa sua, seu partem inde ad voluntatem suam vendere : ita tamen quod feoffatus teneat terram illam seu tenementum illud de capitali domino feodi illius, per eadem servitia et consuetudines, per quae feoffator suus illa prius tenuit.
12. Sir Martin Wright observes, that this statute took from the tenants of common lords the feudal liberty. they claimed, of disposing of part of their lands, to hold of themselves : and instead of it, gave them a general liberty to sell all, or any part, to hold of the next immediate lord; which they could not have done before, without consent.
2 Inst. 86. 500.
13. Neither magna charta, nor the statute of quia emptores, extended to the king's immediate tenants ; who seem to have been so strictly restrained from alienation, that they were not permitted to dispose of their lands even to their eldest sons. Thus it ap.. pears from the Rolls of Parliament, that in 18 Edw. I. Vol. 1. 54. Gilbert de Humfraville petitioned the king for licence to enfeoff his eldest son, and his wife, of the manor of Overton; to hold of the said Gilbert during his life, and after his death, of the chief lord, by the usual services; to which the king answered Rex non vult Fitz. N. B. aliquem medium, et ideo non concessit.
14. This restraint upon the king's immediate Fines for tenants is supposed to have been indirectly removed Alienation. by the statute de prerogativa regis ; by which it was 17 Edw.2. declared, that no person who held of the king in capite, C.6:
Wright, 162. by military service, should alien the greater part of the land, so that the remainder were not sufficient to answer his services, without the king's licence. In consequence of this law, the king's consent was necessary to every alienation of his tenants in capite ; and it ldem. 163. became a question, whether if such tenant aliened without licence, the land was not forfeited; or whether the king should only seize it by way of distress, till a fine should be paid for the contempt. This was settled by the statute 1 Edw. III. c. 12., by which it was enacted, that in all cases of alienations by tenants in capite, the king should not hold the land as forfeited, but should have a reasonable fine in the Chancery. - 15. It remained much longer a doubt whether the Idem, 166. king's tenants might have aliened any part of their lands, to hold of themselves; as the tenants of inferior lords might, before the statute of quia emptores. But such alienations made by tenants who held of
2 Inst. 67.
King Hen. III. or other kings before him, were at length made good by the statute 34 Edw. III. c. 15. ; saving to the king his prerogative of the time of his grandfather, and of his own time.
16. Sir Martin Wright observes, that it is extremely doubtful what prerogative was here saved to the Crown, but it is perfectly clear that fines for alienation were established by the statute 1 Edw. III. : and after this act, Lord Coke says, writs of quo titulo ingressus est, issued from the Exchequer, to help the king to his reasonable fine; whereupon the feoffee was driven to plead, to his great charge and trouble. It was therefore, upon conference with the king's officers and the judges, ordained, seeing the king's tenants could not aliene, without licence, for if they did they should pay a fine; that for a licence to be obtained, the king should have a third part of the annual value of the land, which was holden reasonable: if the alienation was without licence, then a reasonable fine, by the statute, was to be paid by the alienee ; which they resolved to be one year's value.
17. Thus continued the law till the abolition of military tenures by the statute 12 Cha. II. c. 24, which takes away all fines for alienations, seizures, and pardons for alienations, and all charges incident thereunto; saving fines for alienation due by the customs of particular manors and places ; so that all freehold estates became thereby alienable without licence or fine.
18. With respect to the different modes of alienation, or rather the legal evidences of the transmission of real property, they are called the common assurances of the realm, whereby every man's estate is assured to him; and all controversies, doubts, and difficulties are either prevented or removed.
Different Kinds of Assurances