C. I.

Forasmuch as purchasers of lands and tenements of the fees of great men and other lords have many times heretofore entered into their fees, to the prejudice of the lords, to whom the freeholders of such great men have sold their lands and tenements to be holden in fee of their feoffors and not of the chief lords of the fees, whereby the same chief lords have many times lost their escheats, marriages, and wardships of lands and tenements belonging to their fees, which thing seems very hard and extreme unto those lords and other great men, and moreover in this case manifest disheritance: our lord the King in his parliament at Westminster after Easter the eighteenth year of his reign, that is to wit in the quinzine of Saint John Baptist, at the instance of the great men of the realm, granted, provided, and ordained, that from henceforth it should be lawful to every freeman to sell at his own pleasure his lands and tenements or part of them, so that the feoffee shall hold the same lands or tenements of the chief lord of the same fee, by such service and customs as his feoffor held before.

c. ii. And if he sell any part of such lands or tenements to any, the feoffee shall immediately hold it of the chief lord, and shall be forthwith charged with the services for so much as pertaineth or ought to pertain to the said chief lord, for the same parcel, according to the quantity of the land or tenement so sold; and so in this case the same part of the service shall remain to the lord, to be taken by the hands of the feoffee, for the which he ought to be attendant and answerable to the same chief lord according to the quantity of the land or tenement sold for the parcel of the service so due.

c. iii. And it is to be understood that by the said sales or purchases of lands or tenements, or any parcel of them, such lands or tenements shall in no wise come into mortmain, either in part or in whole, neither by policy ne craft, contrary to the form of the statute made thereupon of late. And it is to wit that this statute extendeth but only to lands holden in fee simple, and that it extendeth to the time com

ing. And it shall begin to take effect at the Feast of Saint Andrew the Apostle next coming.

LIT., § 360. Also, if a feoffment be made upon this condition, that the feoffee shall not alien the land to any, this condition is void, because when a man is infeoffed of lands or tenements, he hath power to alien them to any person by the law. For if such a condition should bee good, then the condition should oust him of all the power which the law gives him, which should bee against reason, and therefore such a condition is voide.

Co. LIT., 223, a. And the like law is of a devise in fee upon condition that the devisee shall not alien, the condition is voide, and so it is of a grant, release, confirmation, or any other conveyance whereby a fee simple doth passe. For it is absurd and repugnant to reason that he that hath no possibility to have the land revert to him should restrain his feoffee in fee simple of all his power to alien. And so it is if a man bee possessed of a lease for years, or of a horse, or of any other chattell reall or personall, and give or sell his whole interest or propertie therein upon condition that the donee or vendee shal not alien the same, the same is void, because his whole interest and propertie is out of him, so as he hath no possibilitie of a reverter, and it is against trade and traffique, and bargaining and contracting betweene man and man; and it is within the reason of our author that it should ouster him of all power given to him. Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem.

A man before the statute of quia emptores terrarum might have made a feoffment in fee, and added further, that if he or his heires did alien without license, that he should pay a fine, then this had been good. And so it is said, that the lord might have restrained the alienation of his tenant by condition, because the lord had a possibilitie of reverter;

and so it is in the king's case at this day, because he may reserve a tenure to himselfe.

DIGBY, HIST. REAL PROP., Ch. III., § 14. It appears that about the time of the passing of the provisions quoted above from Magna Carta, strenuous attempts were made in the interest of the great lords to prevent a tenant alienating any part of his land. These attempts, however, were not successful. The provision in Magna Carta given above appears to be the only restraint upon alienation of lands in fee simple ever recognized by law in the interests of the lord. When lands were held of a mesne lord, the effect of this provision seems to have been that if the lands were alienated contrary to the statute the heir of the alienor might enter upon the alienee and defeat his estate. This it was hoped would prevent alienations of portions of the land to the damage of the interests of the lord. The law as to alienation in the case of lands held immediately of the king was different. The subject is very obscure, but it appears probable, as is asserted by Sir E. Coke in his notes on the passage of Magna Carta, that before the reign of Henry III. there was no greater restraint on the alienation of lands held in fee of the Crown than in the case of lands held of a mesne lord; that about this time it was established (whether by this provision of Magna Carta, as Sir E. Coke thinks, or not, is doubtful) that the lands held immediately of the king could not be alienated without incurring liability to a fine for a license of alienation. It continued for a long time to be a question whether such an alienation of lands without license was a cause of forfeiture to the Crown, or whether the king could only distrain for the fine. This doubt was set at rest by 1 Edward III., stat. 2, c. 12, by which it was provided that an alienation without license of lands held of the king in chief should not be a cause of forfeiture, but a reasonable fine should be taken in the Chancery by due process. Henceforth for a license of alienation by a tenant in capite the king was held to be entitled to a third part of the yearly

value of the land, and for a fine upon alienation without license to one year's value. These fines upon alienation were abolished by 12 Car. II., c. 24.

ID., Ch. IV., § 2. It appears that the provision in Magna Carta,1 was construed as an absolute prohibition against granting lands to religious houses. The prohibition is now extended so as to prevent any alienation of lands "per quod ad manum mortuam deveniant." Lands were said to come into a dead hand" when they were held not by an individual tenant, but by a corporation or body. This expression was probably first applied to the holding of lands by religious bodies or persons who, being "professed," were reckoned dead persons in law. It then came to be applied to the holding of lands by corporations as opposed to individuals, whether the corporation were ecclesiastical or lay, sole or aggregate.

Several exceptions have been introduced in favor of particular corporations or classes of corporations by Act of Parliament, as, for instance, the Universities and Colleges. of Oxford and Cambridge, limited companies, and many others. When, however, no license has been obtained from the Crown or been conferred by Act of Parliament, the old rule of law still prevails.

ID., Ch. IV., § 5. It seems that before the passing of this statute [Quia Emptores], where A. held land in fee simple of B., A. might have granted to C. the whole of those lands to be held of B.; and such a grant would operate to create a tenancy between C. and B. This relation, however, could not at the common law (that is, independently of the statute presently to be mentioned) have been effected by a grant by A. to C. of part of the lands held by A. At common law, a feoffment made by A. to C. of a portion of his lands would in every case have created anew the relation of lord and tenant, with all the incidents attaching to that relation, as between A. and C.

In this case there would be

no immediate relation of lord and tenant between the chief

1Cap. 43, ed. 1217; page 61, supra.—ED.

lord and C. The advantageous rights of the lord over the land would consequently be diminished. The land thus aliened would not escheat to the chief lord on the failure of the heirs of the alienee, nor would the lord be the guardian of the lands or of the body of the heir.

To preserve these rights it was in the eighteenth year of Edward I. enacted that every alienation in fee simple, whether of the whole or of a part of the land, should have the effect of substituting the alience for the alienor in relation to the chief lord; the alienee simply stepping into the place of the alienor, and being subject to all the duties and obligations under which he held the land of his lord. The primary object of this enactment was to prevent the loss arising to the lords of manors from subinfeudation, or subdivision of the tenements held of them. Consequently, whenever at the present day a freehold tenant in fee simple holds of a mesne lord, the separation of the freehold from the domain must have occurred at a date anterior to the eighteenth year of Edward I. From this time forward every alienation of land in fee simple presents the characteristics of a complete out-and-out transfer, the transferee stepping for all purposes into the place of the transferor. Gradually by successive alienations the tie between the chief lord and the freeholder becomes weakened. In socage tenure, when no rent was payable and no value attached to the service, there. was no motive for keeping up the empty ceremony of fealty, and thus in many cases the relation of lord and tenant became altogether obliterated. Finally, when all the valuable incidents attaching to knight-service were abolished, and the tenure itself converted into socage by the Statute of Charles (12 Car. II., c. 24), the relation between the freeholder and his lord fell into abeyance, and the freeholder became for all practical purposes owner of the soil. Thus at the present day in the great majority of cases no intermediate lord is recognized between the freeholder and the Crown, except where the freehold is within the known precincts of a manor, and the relation between the freeholder and the