which the lands were held upon condition of personal military service; and which required their descent according to the principle of primogeniture, the very rule which, as had been recognized in Saxon times, involved a restriction on alienation of the land without the consent of the feudal lord, at least unless the new tenant would be equally able to render such services. And in the reign of Henry II, Granville thus lays the law down:

"Every freeman possessed of land may give a certain part of it with his daughter or any other woman in marriagehood, whether he has any heir or not, or whether his heir, if he have one, consent to such a disposition or not. Every one may also give a certain part of his freehold estate to any person he chooses, in remuneration of his services, or to a religious establishment, in free alms: and if seisin follow the donation, the land shall perpetually remain to the person to whom it is given, and his heirs, if the terms of the gift go to that extent. But if such a donation should not be followed up by seisin, nothing can, after the death of the donor, be claimed with effect in virtue of it, contrary to the will of the heir; because such a disposition is usually interpreted by the law of the realm rather as a naked promise, than as a real promise or donation. Though it is thus, generally speaking, lawful for a man in his lifetime freely to dispose of the reasonable part of his land, in such a manner as he may feel inclined, yet the same permission is not allowed to any one on his death-bed, because the distribution would pro

towards the close of his reign, as the Saxon Chronicle states, an invasion was apprehended from Denmark, and the consequence was a great council at Salisbury, at which the feodal system was rigidly established; and it was ordained that all the barons and knights should hold themselves always ready to serve in arms, whenever necessary, according to the duty they owed in respect of their several fees. The fees were granted for ever (whence the phrase in fee), and the male heirs alone succeeded, of the blood of the first holder. So essential was it to secure the feudal services, that, though originally all the sons succeeded, yet, as this was found to weaken the strength of the feudal tenure, by dividing the services, they were ultimately held to descend according to the rule of primogeniture. Of course it was a natural incident of the system, for the same reason, that the feudatory could not aliene or dispose of his feud, whether by grant or by devise, without the consent of his lord; for the very reason of conferring the feud, and the essential condition on which it was held, was the personal ability of the "tenant in fee" to serve in war; and it was not fit that he should transfer it to others who might be less able. There were several species of tenure under the system, of which the first and most universal was that of "knight service", created by general gift or grant of land, without any express condition. So that, under the feudal system, gifts of land ordinarily involved feudal service, unless to ecclesiastics: as to which, see post.

bably then be imprudent. Hence it is to be presumed that, if a man labouring under a mental disease should then for the first time set about making a disposition of his land,—a thing never thought of by him in the hour of health,—the act is rather the result of the mind's insanity than its deliberation. But yet a gift of this description, if made to any one by the last will, shall be valid, if with the consent of the heir, and confirmed by his acquiescence in it."

It will be remarked, that the restriction upon death-bed dispositions applies to all such dispositions, whether to religious houses, or to relatives, or others; and it obviously, indeed, was intended to apply especially to the latter, by reason of the feudal rule respecting alienation of the land (without the lord's consent) either from the tenant or from his heir; to whom, according to the law of primogeniture, it was required to descend, so that the lord might have those services, on condition of rendering which the land was held. It is to be observed also, that the law as thus laid down applied only to feudal lands, to which alone the reason was applicable, and which comprised only a portion of the lands of the country; for instance, not including the lands held by "gavelkind", that is, the old Saxon tenure, under which lands were divided among all the children, and were devisable under the restriction before referred to; nor, again, did the feudal law apply to the lands or tenements in borough towns, held on "burgage" tenure (i. e. payment of rentservice), and, as one of the privileges conferred on boroughs by reason of their monastic origins,* devisable by will, even when the general law was altered so as to preclude such disposition. Again it is to be observed, that the law, as laid down by Glanville, refers repeatedly to a "certain" or "reasonable" portion of the lands as alienable for different, and this meant, such as was reasonable either, on the one hand, with reference to the requisitions of the feudal system, or to the proper provision for relations on the other. If the lands were held on feudal tenure, they could not be alienated at any time; or to any parties, or for any purposes so as to deprive the tenant or his heir of the power of rendering the feudal services; and whether so held or not, the law of Catholic England, in conformity with the law of the Church, recognized it as the first duty of a parent to provide for

*See Swinburne on Wills.

his children; and only re-enacted or confirmed the law of the Church by establishing this principle both with respect to real property and personal, by requiring a 'reasonable part' to descend to the heir, the widow, or the next of kin. Hence, the law as already cited with respect to land; and hence a similar law as respected personalty, which prevailed more or less until after the Reformation.* And, as the law with respect to real property, as it existed either before or after the Conquest, so far from having been dictated by any jealousy of the Church or her religious orders, displayed a disposition quite the reverse; so as respected personalty, the same disposition was strikingly exhibited in the law which provided, that if a party died intestate his personal property should be administered by the bishop, because (says an old legal author, one of our most valued), "the law assumed, that spiritual persons had a better conscience than laymen, and had better knowledge of what was for the good of the deceased's soul";† and, though modern writers, ever anxious for a sneer or a sarcasm on the Church, have represented, that it was considered best for the deceased's soul, to dispose of all his property to pious uses; the law had been laid down in the Saxon times recognizing and re-enacting the law of the Church, that it should be divided among the widow, children, and next of kin ; which was construed by Magna Charta to mean a reasonable portion, and whether there was a will or not.§ And it was afterwards laid down, in strict conformity with the law of the Church, which makes payment of debts an obligation precedent to every other duty, that the bishop should pay the debts first, paying the reasonable parts of the relations out of the residue, and so remained the law, as to personalty.

To return, however, to the law as to real property; it will have been observed, that Glanville recognizes the right of the feudal tenant of land to alienate a reasonable portion of it, in remuneration of services, that is to be held of himself, on the

* See Bracton, 1. ii, c. 26.

Perkins, sec. 486.

Sive quis fuerit intestates mortuus possessiones uxori, liberis, et cognatione proximis pro suo cuique jure distribuantur. (Laws of K. Canute, c. 68.) § Omnia catalla cedunt defuncto salvi uxori ipsius et pueros suis rationabilibus partibus suis. (9 Henry III, c. 18.)

13 Edward I.

same tenure as that on which he had received it; all feudal land being at once received as a reward for past, and held on condition of future services. This system of sub-infeudation, or subdivision of the soil, could be no substantial detriment as to the main object of feudal tenure, but rather a benefit, since the tenant had the military services of his sub-tenant to bring to his lord, as well as his own. But it made a great difference as to the incidents of feudal tenure,* especially the fines receivable on marriages, wardships, or reliefs. For the chief lord could only assess these on the value of the land retained by his tenant, who received from his sub-tenant the fines arising in respect of the land held under the sub-infeudation. Still, as the incidents were only accessory to the principal, which were military service and feudal fealty, it was some time before any attempt was made, on the part of the chief lords, to put a stop to this; and, when the attempt was made, it was under a false pretext. In Magna Charta, in the reign of Henry III, it was enacted, "That no freeman shall, henceforth, give or alien any more of his land, but so that of the residue the lord of the fee may have the service done unto him, which belongeth to the fee." Here, the word "service" is used in a sense ambiguous or equivocal, as embracing not only the feudal service, but its oppressive and lucrative incidents. On precisely the same policy, and perhaps with better reason, another clause was inserted in the Charter. The purpose of the former one was precisely the same as the law of primogeniture-to prevent the feudal lords from being weakened, by division of their services among too many. Under this law, it is obvious that the tenant might give or share as much of his land as he pleased to a religious house, provided he performed the same services. At that time, however, tenure

* The incidents of this service were seven: Aids, reliefs, premier seisin, wardship, marriages, fines for alienation and escheat. Aids were contributions to the lords in times of difficulty or distress. Reliefs were fines on the death of a feudal tenant. Premier seisin was a fine on the descent to the heir, if he were of full age. Wardship was the right of receiving the rents and profits of a fee, when it had descended to a heir who was under age. Marriages were fines on marriage of a feudal tenant. Fines on alienation were for the lord's consent to a transfer of the fee. And escheats were equivalent to forfeitures of the fees.

under the Church was so much less burdensome, that it was a common saying, "it is better to live under the crosier than under the lance"; and there was, consequently, a distinct tendency and temptation to evade the feudal services, thus: by giving the fee to a religious house, and then taking it back again to hold of such religious house, the result of which of course was, that the tenant retained his land, while the lord lost his tenant; and the Churches acquired not the land, but the lordship. Of course this was not an alienation of land to religious houses, it was simply an evasion of the lord's rights; it was an arrangement of convenience and advantage, not a gift of charity and piety. The Church gained a little—the incidental profits of lordship; but the tenant gained most, and lost nothing; and, while he gave little, what he gave was not his own, but his lord's.

Hence, there was a clause in the next edition of the great Charter in 1225, commonly and erroneously imagined to have been a clause against alienations of land to religious houses, but really against an evasion of the feudal rights of the lord, by a transfer of the lordship:-" It shall not be lawful, from henceforth to any, to give his land to any religious house, to take the same land again to hold of the same house; nor shall it be lawful for a religious house so to take the land of any one, and to give the same to him, to be held by him from whom it was received; and if any, henceforth, shall so give his land to a religious house, the gift shall be void, and the land accrue to the lord of the fee.” This clearly implies, as does the previous clause already alluded to, that the tenant could (at least under the restriction of that clause) "give his land to a religious house"; and does not at all prohibit his so doing, but only precludes a colourable gift for the purpose of a retransfer, and the creation of a new tenancy. The clause is not, that he shall not give his land, but, shall not so give it, as to take it again as tenant to the religious houses; yet modern writers always not only avoid all allusion to the previous clause in pari materiâ, but omitting the previous portion of this latter clause, and the word of reference to it "so," give the latter part of the clause by itself, as if it read thus,* "If any

* The clause is mistranslated in the most approved editions of the Statutes: