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

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].