Statutes of Mortmain - Alienation Prior To The Statute Quia Emptores

Alienation Prior To The Statute Quia Emptores

It is the opinion of Pollock and Maitland that in the middle of the 13th century the tenant enjoyed a large power of disposing of his tenement by act inter vivos, though this was subject to some restraints in favor of his lord. Other opinions have been expressed. Coke regarded the English tradition as one of ancient liberty dictated by custom. The tenant had relative freedom to alienate all or part of his estate. Blackstone was of a differing conclusion. The “learning of feuds” started with the inalienability of the fief as a starting point. Gradually, the powers of the tenant grew at the expense of the lord. Pollock and Maitland believe Coke’s opinion to be the more valid one. Both views may have been true. Modern scholars may have given more weight to the written and declared law of the Normans than existed in reality.

For some time, two kinds of alienation had been occurring. These were “substitution” and “subinfeudation”. In the former, the tenant would alienate his land, and the attendant duties owed to the lord. After alienation, the tenant expected nothing from the new tenant, other than the price of the alienation. In subinfeudation, the new tenant would become a serf owing feudal duties to the person who alienated. The previous tenant would become the lord to the new tenant. Both these practices has the effect of denying the great lord of the land his rights of feudal estate. The bond of homage was between lord and servant. It was difficult for the medieval mind to think of this in any terms other than as a personal bond. The idea that a feudal bond could be bought or sold was repugnant to the ruling class. All the same, the practice of alienation of rights to the land had been going on in England for some centuries. A tenant who was accepted in homage by the lord could “subinfeudate” to one or more under tenants. It was difficult or impossible for the overlord to extract any services (such as knight service, rent, homage ) from the new tenants. They had no bond to the overlord. Pollock and Maitland give the following example: In the case of subinfeudation, the old tenant was liable for services to the lord. If A enfoeffed to B to hold a knight's service, and then B enfoeffed C to hold as a rent of a pound of pepper per year; B dies leaving an heir within age; A is entitled to a wardship; but it will be worth very little: instead of being entitled to enjoy the land itself until the heir is of age, he will get a few annual pounds of pepper. Instead of enjoying the land by escheat, he will only receive a trifling rent. The Statute Quia Emptores, 1290 ended all subinfeudation and made all alienation complete. Once a sale of land was made, the new owner was responsible for all feudal incidents.