His first observation is, that the tenant might have made a feoffment of the whole, or a part of his tenancy, to hold of himself; and no doubt but he might. This was the usual case of subinfudation, by which the lord was in no sort prejudiced; for his seignory remained entire, and he might distrain in any part for his whole service; and in such case, if the under tenant was aggrieved, he was to have his remedy against his immediate landlord the mesne, (or middle person), as he is called in our law.
The second observation is, that the tenant could not alien in fee apart of the tenancy, to hold, not of himself, but of the lord, than which nothing could be more reasonable; for it would have been against these old rules also, for a tenant to bring in another, as immediate vassal to the lord, without his the lord’s consent. The tenant would by that means dismember the seignory, which he received, entire, and so deprive the lord of his right of distraining in the whole, and confine him merely to that part remaining in his own hands, as original tenant. For as to the part of the allienee, he could not distrain that for his service, there having been no feudal contract between them. Such alienation, therefore, unless when the lord accepted the allienee as a tenant, was a breach of fealty, and against the old feudal principles, and consequently unlawful in England.
The third observation Coke makes on this statute, is, that by the common law the tenant might have made a feoffment of the whole tenancy, to be holden of the lord. For, says he, that was no prejudice at all to the lord[415]. But though this certainly prevailed as common law, long before either Coke or Littleton wrote, I cannot help thinking, both because it was contrary to the old feudal law, and also from the words of the statute quia emptores terrarum, that it was first introduced by that act of parliament, the words of which are, de cætero liceat unicuique libero homini terras suas, seu tenementa sua vel partem, inde vendere. Here the alienating the whole is declared from henceforth lawful; which words had been nugatory, if this had been common law before.
The chapter of Magna Charta of which we are speaking, was, then, the first positive law that allowed the free alienation of lands. It, in one sense, enlarged, whilst in another it expressly restrained, the power of the tenant; whereas, before, he might alien the whole, or part of his tenancy in fee, but subject to the distress of the lord. Now, by this statute, he was confined to an alienation only for so much, that, out of what remained, the lord might have sufficient distress for his entire service, and the part conveyed was in the alienee’s hands, free from any future distress by the lord, or service due to him, fealty only excepted. But it not being specified, how much of the land was a sufficiency, though the half, or what was the half in value, was, in common estimation, reputed such, the tenants, under this pretence, would alien more; which gave occasion to many disputes and suits, and the propensity to general alienations continuing, the law called quia emptores terrarum, already mentioned, was at length made, which gave a general licence to alien the whole, or a part at pleasure, to hold of the superior lord; and this put an end, in the law of England, to subinfudation of fee simples. For, since the passing that law, if a man infeoffs another of the whole or part of his land, there is no tenure between the feoffer and feoffee, but the feoffee holds of the feoffer’s lord. But as to lower estates, as fee tail estates for life, years, or at will, subinfudation remains; because the whole estate is not out of the donor, or lessor, but a reversion remains in him; wherefore the tenure, in such case, is of the donor or lessor.
By the statute of Magna Charta, in case of alienation of part, to hold of the lord, the residue remaining in the original tenant’s hands, was to answer the services, and the alienee held of the lord, by fealty only. But now by the second chapter of the forementioned statute, the services were to be apportioned, that is, divided in proportion to the value of the lands. If half of the lands, not in extent, but value, was aliened, the alienee paid half: if one third, the like quantity. I have observed before, on this statute of quia emptores, that the king, not being named, was not bound by it. For his tenant in capite to alien without licence was a forfeiture, until, in the reign of Edward the Third, a fine for alienating was substituted in the place of the forfeiture, which fine continued until the restoration, when it was abolished.
The thirty-third chapter provides, that the patrons, that is, the heirs of the founders of abbeys, who, by title under the king’s letters patent, or by tenure, or antient possession, were intitled to the custody of temporalities, during the vacancy of the abbey, should enjoy them free from molestation of any person, or of the king, under the pretence of the prerogative[416].
The thirty-fourth chapter is relative to appeals of murder, brought by private persons. When a man is murdered, not only the king, who is injured by the loss of a subject, may prosecute the offender, but also the party principally injured, that is, the widow of the deceased, if he had one; for she, as having one person with him, stands intitled to this remedy in the first place; but if he left no widow, his heir at law might pursue it. It follows, therefore, that a female heir might, by the common law, have brought an appeal of murder, as the daughter, or the sister, if there had been neither children or brother. But this statute alters the common law, and takes away the appeal, in such case, from every woman, except the widow; so that, at this day, if a man be murdered, leaving no widow, and his next heir be a female, no appeal of murder can be brought. But this disability is personal to women; for though a daughter or sister, living, can bring no appeal, though heir, yet, if they be dead before the murder, leaving a son who is heir, he may bring it[417].