All what Nelson would have had to do, before presenting his own weird interpretation, is to have a look into William S. Holdsworth, * A History of English Law *, Vol. III, section: The Power of Alienation", pp. 58-87. Holdsworth first deals with restrictions on freedom of alienation in the twelfth century. This is of little interest here. The situation was completely changed after the statutes de Donis (1285) and Quia Emptores (1290).
Before the statute de Donis (full title: "de donis conditionalibus", the "statute of conditional gifts"), the conditional gift was the most common form of enfeoffment. The basic formula of such a gift by a lord to his vassal was "to X and the heir(s) of his body" or "X and his wife and the heirs of their body." Or a similar formula.
With such gifts were connected so-called feudal incidents of tenure, rights of the lord against the tenant: 1) relief and primer seisin; at the death of the tenant, the tenure reverted to the lord; the tenant's heir had to be again seised of the land; this was called "relief" in the case of a lord and "primer seisin" if the lord was the king; 2) wardship and marriage (by far the most important incident); if at the death of the tenant, the heir was a minor, the lands returned to the lord till the heir came of age; the lord could also decide whom the ward, son or daughter, had to marry; the ward could refuse, but he had then to pay a substantial sum, specified in the statute of Merton (1235-6) and extended under Edward I (1275); 3) aids; 4) escheat and forfeiture.
Only wardship and marriage are of interest here. Both institutions survived feudalism, during which a rationale can be found for them: alliance (for instance, the daughter of the deceased tenant should not marry an enemy of her lord). In the course of time they changed their character from feudal obligations to economic assets. "The rights of wardship and marriage became definite rights of great pecuniary value both to the king and to the mesne [mean] lords." (Hold., p. 61) Such rights could be sold; the larger the ward's estates, the higher the price. That the rights of wardship and marriage "were beginning to be repugnant to the current morality even of the thirteenth and fourteenth centuries there are some signs (p. 62). If so, the question arises how they could last until the 1640s, when they were definitively abolished? The answer seems simple: because the tenants found ways to turn around them.
One way was, ironically, a typical feudal mechanism. It could be called the "feudal calculus." It was called "subinfeudation." It's simple. If A is the Lord and enfeoffs B, A can exert his rights of wardship and marriage at B's death. But in the meantime B himself could have enfeoffed C, D and E, and so on, on principle as an endless differential. The rights of wardship and marriage for those lands then migrated from the vector A-B to the vector B-C/D/E. And the value of these rights for A diminished considerably.
Another means depended on how the clause "to the heir of his body" was interpreted in the conditional gift. But often it was so interpreted that the land in question passed into the possession of the donee at the birth of an heir, regardless of whether this heir survived or not. The tenant was then free to freely sell his land and to buy it back. The lord lost all his rights, as no rights of wardship and marriage attached to purchased land.
It is to put a stop to this kind of incidents-evasion that the two statutes of Conditional Gifts (1285) and of Quia Emptores ("Forasmuch as Purchasers") (1290) were passed. The former prescribed that the intention of the donating lord had to be respected and that the right of "the heir of the tenant's body" could not be forfeited by alienation. But for how many generations was at first not clear. In the fourteenth centure a chief justice then decided it had to last for four generations; somewhat later another chief justice decided it had to last indefinitely, for all generations. It is this way that the entailed estate came into being. Entailed estates were not freely alienable. This was the first of the remaining restraints on free alienation after the statute Quia Emptores five years later (some devices were found to forgo this restriction, though).
Indeed, the Statute Quia Emptores put an end to subinfeudation. It provided that if the lord A enfeoffed B, B could without restriction enfeoff C, but C was then the lawful owner to whom lord A's rights of wardship became applicable. While the statute Quia Emptores made sure free alienability, it made not as sure the rights of wardship and marriage of the lord. It led to the creation of the use, later called trust. B could enfeoff C in "confidence and trust" (not even a written agreement was necessary) and remain the beneficial owner. It means that not only could B forgo the rights of wardship, but not being the owner at common law his lands could not be attainted in the case of felony, which precisely, during the civil war of the fifteenth century became a very useful device.
The two other restraints on free alienation were mortmain and the alienation of chief-tenancy, lands held from the Crown (not lands held from the king in person).
(To be continued)
© Robert Detobel