Ten. 158. Statute infeudation of part of the land was prohibited, unless fufficient was left to anfwer the fervices due to the fuperior lord.-Nullus liber homo det de cetero amplius alicui, vel vendat alicui de terra fua, quam ut de refiduo terra fua poffit fufficienter fieri domino feodi fervitium ei debitum, quod pertinet ad feodum illud. § 7. Sir Martin Wright obferves that the words de cetero in this ftatute, do not suppose that the tenant might before have lawfully aliened or given the whole of his land to hold of himself, because then this chapter, prohibiting it for the future would have been a restraint upon the tenant's liberty at common law. But they plainly fuppofe fuch gifts or alienations to have been unlawful, which are therefore reftrained merely in confirmation of the common law. § 8. Hitherto the right of alienation was confined to fubinfeudations conformably to the principles of the feudal law. But in 18 Edw. 1. an act was made called the statute of Quia Emptores Terrarum, which, reciting the inconvenience of feoffments, to hold of the feoffors and not of the fuperior lords, enacted— Quod de cetero liceat unicuique libero homini terras fuas feu tenementa fua, feu partem inde ad voluntatem fuam vendere. Ita tamen quod feoffatus teneat terram illam feu tenementum illud, de capitali domino feodi illius, per eadem fervitia et confuetudines, per qua, feoffator fuus illa prius tenuit. Wright 161. S 9. This ftatute took from the tenants of common lords the feodal liberty they claimed of difpofing of part part of their lands to hold of themfelves, and instead of it, gave them a general liberty to fell all or any part, to hold of the next immediate lord; for that is the sense of the words de capitali domino, which they 2 Inft. 501. could not have done before, without the consent of the lord. § 10. Neither Magna Charta nor the statute of Quia Emptores, extended to the King's immediate tenants; who seem to have been fo ftrictly restrained from alienation, that they were not permitted to dif pofe of their lands, even to their eldest fons. N° 101. § 11. Thus it appears from the Rolls of Parliament Vol. 1. 54. that in 18 Edw. 1. Gilbert de Humfravill petitioned the king for licence to enfeoff his eldest fon and his wife of the manor of Overton, to hold of the faid Gilbert during his life, and, after his death, of the chief lord by the ufual fervices. To which the king anfwered-Rex non vult aliquem medium, et ideo non nce fit. § 12. This restraint upon the king's immediate Fines for tenants is supposed to have been indirectly removed by Alienation. the ftatute De Prerogativa Regis, 17 Edw. 2. c. 6. But the king's confent being neceffary to every aliena tion of his tenants in capite, it became a question Wright 165 whether if fuch tenant aliened without licence, the land fo aliened was not forfeited, or whether the king fhould only seise it by way of distress, until a fine fhould be paid for the contempt; but this question was fettled by the statute 1 Edw. 3. c. 12. by which Wright 166. Wright 167. 2 Iuft. 67. it was enacted, that in all cafes of alienations by tenants in capite, the king fhould not hold the land as forfeited, but should have a reasonable fine in the Chancery, to be levied by due process. § 13. It remained much longer a queftion whether the king's tenants might have aliened any part of their lands, to hold of themselves, as the tenants of common lords might before the ftatute Quia Emptores: But fuch alienations, made by tenants who held of Hen. 3. or other kings before him, were at length made good by the ftatute 34 Edw. 3. c. 15. faving to the king his prerogative of the time of his grandfather, father, and of his own time. § 14. It is extremely doubtful what prerogative is here faved to the crown; but it is perfectly clear that fines for alienation were established by the ftatute 1 Edw. 3. and after this act Lord Coke fays, writs of quo titulo ingreffus eft iued from the office of the Remembrancer of the Exchequer, to help the king to his reasonable fine; whereupon the feoffee was driven to plead, to his great charge and trouble; and therefore, upon conference with the king's officers and the judges, it was ordained that, seeing the king's tenant could not alien without licence, for if he did he fhould pay a fine; that for a licence to be obtained, the king should have a third part of the value of the land, which was holden reasonable. And if the alienation was without licence, then a reasonable fine by the ftatute was to be paid by the alienee, which they refolved to be one year's value. § 15. Thus § 15. Thus continued the law until the abolition of military tenures by the ftatute 12 Cha. 2. c. 24. which converted all the ancient tenures into free and common focage; and took away all fines for $1. alienation, feizures, and pardons for alienation, and all incidents thereto; faving fines for alienation due by particular custom of particular manors, other than § 6, fines for alienation of lands and tenements holden immediately of the king in capite. § 16. With refpect to the different modes of Different alienation, or rather the legal evidences of the tranf Kinds of Afsurances. fer of real property, they are called the common affurances of the realm, whereby every man's eftate 2 Comm.294. is affured to him, and all controversies, doubts, and difficulties, are either prevented or removed. § 17. There are four kinds of common affurances by which lands may be aliened. 1° Deeds or matters in pais, which are affurances tranfacted between two or more private perfons in pais; in the country, that is, (according to the old common law) upon the very fpot or piece of land to be transferred. 2° Matters of record or affurances tranfacted only in the king's public courts of record. 3° Affurances deriving their effect from special custom, obtaining in fome particular places and relating only to fome particular species of property. 4° A devise contained in a person's last will and teftament; which does not take effect until after his death. 18. A deed Of a Deed or § 18. A deed is a writing on parchment or paper, 1 Inft. 35 b. fealed and delivered, to prove and testify the agreement of the parties, whofe deed it is, to the things therein contained. It is fometimes called a charter, charta, from its materials, but most usually, when applied to the transactions of private perfons, it is called: a deed, in Latin factum, because it is the most folemn and authentic act that a man can perform, in the difpofal of his property. Mad. Form. Mad. Form. 283. § 19. It is probable that every alienation was very foon accompanied with some written evidence, though in the time of the Saxons a legal transfer might be made of lands by certain ceremonies, without any charter, or writing. Thus, Ingulphus, in his history of the abbey of Croyland, fays," Conferebantur "multa prædia nudo verbo, abfque fcripto vel charta, "tantum cum domini gladio, galea, vel cornu, vel "cratera, et plurima tenementa cum calcari, cum ftrigili, cum arcu, et nonulla cum fagitta.".. § 20. Deeds or charters were notwithstanding in ufe at this time: these were generally called gewrite or writings, and the particular deed by which a free estate might be conveyed was called landboc, libellus de terra, a donation or grant of land, and the land thus granted was called bockland. § 21. Upon the introduction of the Norman cuftoms, the folemn and public delivery of the poffeffion, in imitation of the feudal inveftiture, became effen |