XI. Alienation (5)

The third restraint on free alienation, besides the estate tail and mortmain, concerned alienation of crown lands.

"Magna Carta... drew no distinction between the capacity of the mesne tenant and the tenant in chief to alienate their lands. But between 1217 and the end of Edward I's reign a wide distinction in respect of freedom of alienation was drawn between them. In 1256 the king issued an ordinance which forbade all tenants in chief to alienate without his licence and ordered the sheriff to seize all lands so alienated. The reason assigned for the ordinance was that by reason of such alienations the king lost his incidents of tenure, and that his tenants were so impoverished that they could not perform their due services." (Holdsworth, p. 83).

The king "clearly had an indefinite right at the beginning of the fourteenth century to prevent his tenants in chief from freely alienating their lands. The extent of the right was gradually settled by statute. It was enacted in 1327 that lands held of the king * ut de honore * should be freely alienable, and that, if lands held of the king * ut de corona * were alienated without the king's licence, he would not hold the lands forfeit, but would exact only a reasonable fine." (pp. 83-4). That this came to be called "a pardon of alienation" had most probably to do with the earlier ordinance of Edward I or Henry III (factually Edward I acted as king, though nominally Henry III still reigned till 1272) which considered alienation of crown land a crime to be punished with forfeiture. In fact, one could also call it an ex-post licence or the homologation of an alienation.

"Ut de corona" and "ut de honora" is probably the same distinction pointed out by Ernst Kantorowicz ("The King's Two Bodies", PUP 1997, first edition 1957, p. 167). "The two Laws, Roman and Canon, were certainly contributive factors in making the idea of inalienability of state property articulate; but the essential factor was that Henry II created a * de facto * inalienable complex of rights and lands which later, in the thirteenth century, came to be known as the 'ancient demesne' ... a suprapersonal compound of rights and lands which was separate from the individual king and definitely not his private property... The officers of Henry II were compelled to distinguish administratively 'between lands falling into the monarchy by feudal right, and lands which were more properly the royal demesne of the king, or of the Crown." "Ut de corona" referred to the crown lands or "ancient demesne." "Ut de honora" to such land which held from the king as individual lord, by reason of feudal right.

It is with this type of alienation subject to royal license (like alienation in mortmain) for which Nelson has found his own special (and absurd) definition.

And how does Nelson's struggle with all this end up? "Ut corona", "held from the Crown"  and not from the king or "tenant in chief" Nelson renders as following: "Since the Crown often had an interest acquired over time by an earldom". No, the alienation of any tenancy from the Crown was subject to a licence. At first, under Edward I, there was no pardon when a tenant-in-chief alienated his land: the lands were forfeited. This regulation was mitigated under Edward III and the alienation could be sanctioned by a fine, a "pardon".

Nelson's nonsense : "Alienations fall into two categories: a 'licence to alienate', granted for a fee, results from permission secured in advance; a 'pardon of alienation', accompanied by a fine, occurs when the seller has not secured a licence."

So we have, according to Nelson, two "alienations", the one called "licence to alienate", the other called "pardon of alienation". In the former case the "alienation" is a license, in the latter it is a "pardon".

Is this an expert? A professional?

I forgot about the opening sentence of Nelson's teaching: "To follow the disposition of property in Elizabethan England requires an elementary understanding of sales, alienations, leases, and mortgages."

This Nelson undertook to impart to us.

Laugh or weep. Or better, laugh till tears come.

© Robert Detobel