Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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].