Forms of Voluntary Alienation.

TH

HE property being now vefted in the vaffal by charter and fafine, duly registered, we are next to inquire into the methods by which the fame property can be alienated by the vaffal in favour of another. The methods in our law are two, viz. by refignation and confirmation. Refignation is of two kinds, either in favour of the superior himself, termed refignation ad remanentiam, or in favour of a third party, called refignation in favorem. We shall examine these in their natural order. Suppofing that the fuperior chooses to repurchase his property from the vaffal, and the vaffal agrees, the method of diffolving their feudal contract, is by refigning the lands, or, properly speaking, the dominium utile thereof, into the hands of the fuperior, to remain with him forever, ad perpetuam remanentiam. As the charter and fafine are the deeds which conftitute a feudal right, by the confent of the fuperior or vaffal, fo the refignation is the method of diffolving that confent, of extinguishing the grant, and returning the whole property to the fuperior in the fame fituation it was at firft. We are firft to inquire how this matter was managed of old, and then there will be little difficulty in understanding the principles of the later form.

We have already explained the ancient, and the original, meaning of refignation. We showed, that neither the form nor the language belonged to the Syftem of the Feus, but exifted among the Romans of Gaul at the irruption of the Barbarians into the Western Empire, and

was

was only afterwards appropriated to the feudal cuftoms, to which they were of themselves excellently accommodated. We mentioned, that the feftuca, the rod, or bafton, was the ancient fymbol of the delivery of lands in fales by the Roman inhabitants, and that, de facto, it is not a feudal fymbol. When a proprietor chose to fettle the fucceffion of his eftate, or to convey it effectually to another, he refigned it to his Sovereign, or other great man, in order that his, the refigner's, heirs, or the purchaser from him, might enjoy the property in virtue of a grant from the Prince, which was esteemed a firmer and better right than could be got from any private man.

Upon the establishment of the feudal law, this form coincided with the principles and ideas of that fyftem. The property of the land was held as remaining in the fuperior, and the ufe or poffeffion of it conveyed by the grant to the vaffal. The vaffal could not alienate his lands, or substitute another perfon in his own place, without the consent of the fuperior; and, when he did consent to receive a new vaffal, it behoved that vassal to take the lands from no other perfon but the fuperior himself. At the fame time, the fuperior could not give the lands to another, until his connection with the former vaffal should be diffolved, and his right to the land extinguished. Nothing, then, could be more fimple, than that, for this purpose, the vaffal should return the subject of his grant to the superior who gave it; and a better form could not be devised than what the ancient practice fuggefted, viz. the refignation by the rod or bafton. The ceremony of doing this gave an opportunity to the vaffal of performing an act of great reverence and humility to his lord; and, confequently, the pride of the latter was highly flattered upon the occafion. As the first grant was termed the fafine, fo this refignation came to be termed the diffafine. If the refignation was made merely to diffolve the connection of the parties, and extinguish the former grant, the vassal instantly quitted the poffeffion, and the business was at an end: But, if the refignation was made for the purposes of the fubftitution of another vaffal, the fuperior delivered the rod or baf

ton

ton to the new vaffal, and put him into the immediate poffeffion. It is always to be remembered (fays that celebrated French lawyer Thaumaffiere), that, according to our ancient law, no poffeffion can be acquired unless the diffafine has been made into the hands. of the lord by the feller, and that the lord has given new fafine to 'the purchaser.' 'Alius emptor puniendus erit tanquam fur et clam domino ingrediens, et fubtrahens ei debitum honorem *.' The honour of the ceremony was a capital object to ancient fuperiors; and, befides, it behoved the new vaffal to give his oath of homage before entering upon the lands.

This method by refignation came to be univerfal upon the Continent, and was introduced into Britain with the other ufages of the feudal law. As fafine was at first given in the court of the superiors by the lord to the tenant before the pares curiae, fo the vaffal gave up or refigned the lands again in the fame manner. Thus Walter de Leites quitclaimed to the Earl of Pembroke, Reddidi et quiete clamavi, de me et haeredibus meis, per fuftem et per baculum Do'mino Willielmo Marefcallo, Comiti Pembroke, in curia fua totam terram †,' &c. The English call this a furrender, from the words furfum redditio; and it will be noticed, that the fymbols are the fame as on the Continent, the staff and bafton, which we fhall, once for all, obferve, should certainly be per fuftem aut baculum, instead of et baculum; for we know little difference between the ftaff and the bafton. These fymbols are feldom mentioned in the English deeds, except in the furrender to great men, fuch as the one mentioned to the Earl of Pembroke. We fhall confider two of these ancient furrenders from the Formulare Anglicanum, both made by vaffals or tenants to their fuperiors †. As land came very early into commerce VOL. II. E e

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Sciant praefentes et futuri quod ego Laurentius Seiman de Leiceftria, anno gratiae millefimo, ducentefimo, trigefimo nono, remifi et refignavi et quietam clamavi Rogero, filio Simonis de Belegrave, pro me et haeredibus meis, fibi et haeredibus fuis

et

in England, the real eftate, in cafes where the property had been purchased, was held to be in the vaffal; and the right of the fuperior to be no more than a refervation of the fervices. Accordingly, what we continue to call the reddendo of a charter, is, with them,. termed the refervation. Hence the refigner, in the foregoing deed, calls them My lands; and, what proves this idea, he converts his quondam fuperior into a vaffal, by reserving to himself an annual payment out of the lands refigned *. The method of effectuating, the business was to return the charter formerly given. This appears. from the following deed of furrender by a vaffal to his fuperiors, the monks of Bordeflie †.

As the eftate of the tenant flowed from the lord, the deed by which he gives back the lands is termed a Jurrender; because in this fense the superior's estate in the land is confidered as the original;. but, in regard it is one eftate in which both are concerned, no fafine is neceffary. On the other hand, if the fuperior was to give up his estate to the vaffal, the deed is termed a releafe, because it clears the other of the burdens incumbent upon it, or the reservation out of it;. and the tenant being already in poffeffion, needs no further fafine.. These are plain, obvious principles, perfect in theory, and easy in

the

et affignatis fuis, in perpetuum, totam terram meam in Belgrave quam ego de eodem Rogero tenui, cum omnibus fuis pertinentiis in toftis et croftis, in pratis et pafcuis et aliis, (exceptis duabus acris colendis, quas Galpidus Blundus de me tenet): Et ego Laurentius et haeredes mei iftam refignationem et quietam clamationem predicto Rogero et haeredibus fuis et affignatis, contra omnes mortales warrantizabimus.'

Pro hac vero refignatione et quieta clamantia et warrantizatione, dedit michi dictus Rogerus viginti et octo mercas fterlingorum, et dabit annuatim ipfe vel haere-des, vel affignati fui michi et haeredibus meis unum obolum in vigilia Pentecoftes.' + Sciant praefentes et futuri, quod ego Willielmus Reston reddidi et omnino quie tam clamavi de me et haeredibus meis, monachis de Bordeflia Dominis meis, totam • terram quam de ipfis tenui apud Warewicum extra portam del Weft, pro falute animae meae et antecefforum, et haeredum meorum. Et quoniam cartam illam quam de

• eadem terra de monachis habui, fimul cum terra, reddere non potui, nolo ut contra predictos monachos aliquem locum habeat fi quis per eam in pofterum predictam ter ram calumpniatus fuerit.'

the application. Such was our own ancient law, and fuch were our ancient refignations. Attend to the ftyle of the following refignation by Robert, the fon of Edmund, to Robert of Bonekill, anno 1247*. This deed is dated about the fame time with the English furrenders; and it perfectly agrees in the words of the ftyle and principles of the form. To this we fhall add a burgh refignation in favours of a fuperior, which we conjecture to be of one hundred years later date †. In both these cafes, the eftates are refigned, not as burdens or fervitudes upon the fuperiority, but as feparate and principal eftates, in the fame manner as the English. There is nothing faid of their remaining ad perpetuam remanentiam,

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* Omnibus Chrifti fidelibus prefens fcriptum vifuris vel audituris Robertus filius "Rogeri filii Eadmundi Epifcopi, falutem. Noverit Univerfitas veftra me anno gratiae millefimo ducentefimo quadragefimo feptimo, in craftino Sti. Petri ad vincula apud Rokisburc, in curia Domini Regis Scotorum, coram Domino Laud de Lindefay tunc ལྟ་་ Jufticiario Laodoniae, reddidiffe per fuftem et baculum, et quietum clamaffe de me haeredibus meis Ranulfo de Bonekil et haeredibus fuis totum jus et clameum quod ' habui, vel habere potui in duabus carrucatis terrae in territorio de Bonekil, de quibus ego dictum Ranulfum de Bonekil, per preceptum Domini Regis Scotiae, et Dmi 'Laud de Lindefey, tunc Jufticiarii Laodonia, in comitatu de Berwic, implacitavi,' &c. + Noverint univerfi per prefentes me Andream Parkar, burgenfem burgi de Dun'de, non vi aut metu ductum, nec errore lapfum, fed mea libera et spontanea voluntate 'melioribus modo et forma quibus poffum, furfum reddere, pureque fimpliciter per terram et lapidem, ut moris eft in burgo, refignare, ac tenore prefentium refigno, pu'reque, et fimpliciter, per terram et lapidem furfum reddo, in manibus nobilis et potentis viri Domini Johannis Scrymgeour, conftabularii de Dunde militis, Dominique mei fuperioris, totam et integram partem occidentalem, viz dimidietatem totius et integri tenementi mei, jacen. infra burgum de Dunde, in Vico Sanctae Mariae, ex parte auftrali ejufdem vici, inter terram Johannis Scrymgeour de Henryfton fenioris, • ad occidentalem ex parte una, et aliam dimidietatem dicti tenementi mei ad orientalem ex parte altera, quam quidem occidentalem dimidietatem de eodem Domino ◄ conftabulario teneo in capite, ac totum jus et clameum quod in dicta dimidietate oc'cidentali, tenementi predicti cum pertinentiis, habui, habeo, vel quovis modo habere 'potero, pro me haeredibus meis et fuccefforibus quibufcunque, quietum clamo in per* petuum, fic quod vos domini mi conftabulari de dicta dimidistate prefati tenementi 'difponere valeatis pro veftro libero voluntate.'

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