his body. This feud is, by the constitution of it, presumed to have
descended from some of his ancestors. To find out who is that ancestor,
it was likely to have descended from, you must look at the law of
descents: the father, in the first place, is supposed the person. His
children, that is, the brothers or sisters, or their descendants, in the
first place; if none of them, the grandfather by the father is supposed
the person; then the grandfather’s descendants. The uncles and aunts
by the father, and their descendants, succeed in the second place. If
none of them, then the great grandfather’s by the grandfather and father
descendants, the great uncles and aunts, and their posterity; and if
there are none of them, you still go a step higher in the male line,
till you can trace it no farther. But now you begin to invert the rule
of tracing up in the male ancestors, and so downwards, and trace up to
the female ancestor of the males, as supposing the estate descended from
her, or her ancestors. For instance, I have supposed the descendants of
the male line have failed in the great grandfather. His wife, therefore,
the great grandmother, is supposed the first purchaser; for, upon account
of the probability of the inheritance coming through males, I trace up
to her through the father and grandfather; her heirs, therefore, shall
succeed, first, lineal, then collateral, in the same manner as if the
estate had descended from a remote ancestor of her’s. If none such can be
found, we descend another step, namely, to the grandmother by the father,
and suppose the estate to have come from her line; and then heirs, first
lineal, then collateral, succeed according to their several ranks. If
none of these, so that there is no kindred on the side of the father, the
presumption is, that this supposed antient feud came from the mother’s
family, and therefore the heirs of her male ancestors are to be traced
up, and discovered in the same manner; and whenever they fail, the heir
of the most remote female ancestor, all through males; and failing them,
the heir of the next most remote, and so on, until the blood of the
mother is spent; and then the estate, for want of heirs, reverts to the
lord, of whom it is holden.
Such is the rule of descents of new purchases granted as if they had
been ancient inheritances; but this rule was, on the Continent, and
anciently in England, confined to such grants, and them only, wherein
this clause appeared in the investiture. But in the reign of Stephen, his
necessity of gaining adherents, and the same necessity of his competitor
Henry the Second, occasioned so many grants of this kind to be made,
some originally, and others on the surrender of old ones, that it hath
since become the common law of England, that purchases, that is, new
acquisitions, are descendible to any relation, however remote[200].
It will be necessary to say something as to _feminine feuds_, which
are a deviation from the strict principles of the ancient law, which
excluded them and their descendants entirely. They first arose from the
woman’s being the principal consideration of the grant; as when a lord
gave lands in marriage with his daughter, sister, niece, kinswoman, or
any other female: here the lands being partly given in consideration of
the female blood, it was reasonable they and their descendants should
be inheritable. But this was still an exception to the general law, and
confined to those grants wherein it was mentioned, until the number
of those grants, at length prevailed to have this order of succession
considered as the general law, and the succession of males remote,
in exclusion of a nearer female (as in case of tail male) considered
as an exception. The monarchy of France, however, and of many of the
principalities of Germany, have retained the antient feudal law, in
absolutely excluding females and their descendants.
The descent of imperial crowns to females, was of a much later date,
than that of lower fiefs: for here a manly capacity was looked upon
as indispensibly requisite. The first step was admitting a male
representative for them, a husband or a son. This began in Spain.
Pelagius, who was of the blood royal, having gathered a few of the
Spanish fugitives together, after the Moorish conquest, founded a pretty
monarchy in the mountains of Asturias. His son Favila dying without
issue, the crown was given to his daughter’s husband, and this continued
the rule for many ages, where males failed. But where the son of such
female heir was of sufficient age to mount the throne, he of course
excluded both mother and father. At length, in the thirteenth century,
Europe, for the first time, saw a woman solely invested with royalty,
Joan the first of Naples; for Henry the first of England’s project in
favour of his daughter Maud, as we have said before, had miscarried.
Margaret of Denmark, Sweden and Norway, Joan the second of Sicily, and
Isabella of Castile, followed in the next century. In the following
century came Mary and Elizabeth in England, and many since in all parts
of Europe; so that at present the monarchies of Europe are descendible
to females in general, if we except France, and several but not all of
the principalities of the empire. Bohemia and Hungary have received a
queen in the person of the present empress in this present century,
but so inveterate are old customs and opinions, that when her faithful
Hungarians resolved to assist her to the last extremity, it was by
saying, _moriamur pro rege nostro Maria Teresa_, not _pro regina_[201].
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.