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.
As to signing, it is insignificant where the signature is, whether at the bottom, or the top, or in the context of the will, the name of the testator, written by his own hand, in any place, being sufficient. And the putting his seal to the will, though without his writing, has been judged sufficient; for his seal is as much his mark, or sign, as his handwriting. As to the attestation, the statute requires it to be in the testator’s presence; but it is absolutely necessary, that he should look on and see it done. Therefore, if it is attested in the room where he lies sick in bed, with his curtains undrawn, this is a good attestation; or if it is attested in a neighbouring room, and the door open, so that he might possibly see it done, this is in his presence. But if the door be shut, or the place so situated that he could not by any means see the attestation, the will is void.
I shall next proceed to involuntary alienation of lands, namely, for payment of debts; and then give an account of the origin and progress of estates tail, which were introduced to restrain this power of alienation, and to restore, in some degree, the old law of keeping estates in the blood of the first purchaser.