1278. ter, a statute designed to give effect to the work begun by Statute of the inquiry of 1274 into the territorial franchises. As hereto- Gloucester, fore explained, the jurisdictions of the local courts were from the earliest times cut up and undermined by a network of territorial lordships, which were nothing more nor less than law courts in private hands, that stood as stumbling-blocks to the orderly and uniform administration of law by the king's justices. Against the existence of these private law courts Anti-feudal the anti-feudal policy of Henry II. had been vigorously di- Henry II. rected, and in furtherance of that policy the Statute of Gloucester was enacted. Under the authority of that statute the itinerant justices were directed to inquire into the right by which the several franchises, liberties, and privileges were held by the lay and spiritual lords who claimed them; and by virtue of the quo warrantos which were issued to all war was openly declared by the crown against all liberties and franchises in the kingdom. Every holder of a franchise was thus driven to maintain his warrant or title. The feudal lords, who regarded the inquiry as a dangerous assault upon their local rights, angrily resisted it; and in this spirit it was that the Earl of Warenne, when called upon to show his title, produced an old sword and exclaimed to the justices, "See, my lords, here is my warrant." 4 mortmain, The blow thus dealt at the possessors of territorial fran- Statute of chises was followed in the next year by a memorable statute 1279. devised in the interests of the feudal lords, with the king at their head, as against any "person religious or other, whatsoever he be, that will buy or sell any lands or tenements, or under the color of gift or lease, or that will receive by reason of any title, whatsoever it be, lands or tenements, or by any other craft or engine will presume to appropriate to himself under pain of forfeiture of the same, whereby such lands or tenements may anywise come into mortmain." 5 In order to Charter provision prevent the cutting off of the feudal dues and services which inadequate resulted from the conveyance of lands into the "dead hands" of religious orders, it was provided in the Great Charter that 1 Statutes of the Realm, i. p. 45. 2 See above, p. 282. 8 Reeves, Hist. Eng. Law, vol. ii. pp. 523-526. Hemingb., ii. p. 6. 5 This is a translation of the vital part of the famous statute De religiosis, commonly called the statute of mortmain.-Statutes of the Realm, i. p. 51. tical ingenuity. "it shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again, to hold of the same house. Nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom they were received to be holden." This provision of the charter was not, however, sufficiently comprehensive to compass the evil, and for that reason the statute De religiosis was passed to give to the prohibition a wider application.2 Ecclesias Ecclesiastical ingenuity proved, however, to be more than a match for the skill of the legislator. The new statute was soon evaded by the bringing of actions for land, in which "the religious men and other ecclesiastical persons" sued the tenant, who, by "suffering a recovery," aided the plaintiff to evade the statute by acquiring the land, not by gift or alienation, but by process of law. To prevent this new device a clause was introduced into the Statute of Westminster II. which provided that in such cases a jury should determine whether the claimant had a right over the land sued for Prohibition or not.3 The prohibition as to mortmain imposed by the statute could only be removed by license from the crown and the mesne lords, if any, down to the passage of the statute of 7 & 8 Will. III. c. 37, whereby it was provided that such license could be granted by the crown alone, without the consent of the mesne lords, in any form whatsoever. Exceptions have also been made in favor of certain classes of corporations by act of parliament.1 Remedy for evasions of the statute. removed by license. 1282-83. Conquest From the congenial work of legislation Edward was called of Wales, in 1282 by a renewal of the Welsh war, which, after less than a year's duration, ended in the death of Llewelyn and the annexation of the principality to the English crown. Llewelyn fell in December, 1282,5 and in the following June his brother David, who after having received an English lordship from Edward's hands had conspired against him, was captured. In an anomalous assembly or parliament which Merchants, met at Shrewsbury in September, 1283,1 David was tried and condemned as a traitor and immediately executed. A few days afterwards the king at Acton Burnell, in the irregular assembly which had gathered to witness David's trial, enacted the Statute of Acton Burnell, or, as it is generally called, the Statute of Merchants,2 in which was provided a more speedy Statute of and certain remedy for the collection of that class of press- 1283 ing demands which arise out of mercantile transactions.3 In order to render secure the results of his conquest over Wales, Edward not only provided for the settlement of English barons upon the confiscated soil which rebellion had forfeited to the overlord, but he also, by statutes published at Rhudd- Incorporaland in 1284, attempted to incorporate the principality into Wales with the body of the kingdom by introducing into the greater part England. of it the English shire system, together with the system of English legal administration. From this time began that tendency to closer union between the kingdom and the principality which finally resulted, in the reign of Henry VIII., in the complete incorporation of Wales with England, and its representation in the English parliament." tion of statutes. In 1285, the year following the settlement of the Welsh Two great conquest, were passed two great statutes the Statute of Winchester and the Statute of Westminster the Secondwhich are justly regarded not only as the highest exhibitions of Edward's constructive skill as a legislator, but also as vitally important links in the chain that binds the ancient system of customary law which prevailed in the local courts of the people to the new system of royal or official law which prevailed in the central court of the king. These statutes, in their respective spheres, not only reorganized and improved the systems of central and provincial administration, but they brought them into closer and more harmonious relations with each other. As the leading object of the second 1 Fadera, i. p. 630; Parl. Writs, vol. i. p. 16; Select Charters, pp. 463, 467. Statutes of the Realm, i. pp. 53, 54. 8 Reeves, Hist. Eng. Law, vol. ii. p. 452. Statutes of the Realm, i. pp. 55-68. 5 "They were intended to assimilate the administration of Wales to that of England, a principle which Edward had in vain attempted to enforce in his Welsh territories before he became 6 Green, Hist. Eng. People, vol. i. p. "If the Statute of Westminster represents the growth and defined stature of the royal jurisdiction, the Statute of Winchester shows the permanence and adaptability of the ancient popular law." ·Stubbs, Const. Hist., vol. ii. p. 118. Statute of Winchester, 1285. Statute of Westminster II., 1285. ceptions. Statute of Westminster was to readjust and perfect the new system of legal administration which had sprung from the curia regis, so the leading purpose of the Statute of Winchester1 was to revive and strengthen the ancient system of police which had immemorially existed in the organization of the hundred, and the ancient military system which had im memorially existed in the organization of the fyrd.2 The statute last named recites that all kinds of crime are more frequently committed for the want of a proper enforcement of existing law; and in order to remedy the special evil resulting from the concealment of crime, provision is made that "hue and cry" shall be made in all public gatherings, so that no one by pleading ignorance shall shield himself from doing his duty in the arrest of criminals.3 The provisions of the Statute of Westminster the Second fall into two broad divisions: first, those which relate to the organization of the king's itinerant courts, and to the genera! administration of justice therein; second, those that relate to the tenure and transfer of land. Under the first head the most important single provision is perhaps that one which Bill of ex- grants to suitors the right to a bill of exceptions, whereby all matters of exception occurring at the trial can be reëxamined. upon a writ of error, whether appearing upon the face of the record or no.5 Under the second head, by far the most important provision is that one contained in the first chapter of the act, which chapter is generally known as the statute De donis conditionalibus. In order to clearly illustrate the bearings of this statute, designed as a feudal restraint upon alienation, it will be necessary to briefly review the other leading restraints upon alienation which precede and follow it. De donis conditionalibus. Restraints ation. In the review heretofore made of the system of Old-Engupon alien- lish land law as it existed in the pre-Norman period, the fact was drawn out that the village community or township was originally subdivided into family estates, and that the family estate consisted of house-lands in the village, the allotment 1 Statutes of the Realm, i. pp. 96-98. 8 Reeves, Hist. Eng. Law, vol. ii. fyrd and the assize of arms is contained in cap. vi. Statutes of the Realm, i. pp. 71-95. Coke, Inst., ii. p. 426; Reeves, Hist. Eng. Law, vol. ii. pp. 487-490 and notes, Finlason ed. in favor of of the family in the arable fields, together with the common rights in the waste lands appurtenant thereto. As the family tie weakened, and as the communal system fell into decay, the "alod" of the free townsman, embracing both houselands and arable in severalty, ultimately arose out of the primitive family estate. But even under this changed condition of things the influence of family organization lingered in Restraints the restraints which it imposed upon the right of alienation. the family. The family estate was primarily an estate of inheritance, and as such inalienable. This principle first yielded to the doctrine that lands were alienable within the limits and with the consent of the family. Then, when wills were introduced by the church, family land became subject to devise, the validity of the will originally depending upon family consent.1 With these beginnings, the doctrine that the lands of the family were alienable gradually widened as the idea of individual ownership and the use of written instruments in the alienation of land became more firmly established. As the primitive method of transfer by actual delivery gave way to the new method of transfer by book or charter, whereby absolute estates were generally created, the term "book-land" became nearly if not quite coextensive in meaning with "alodial;" in that way the "alod" disappeared in the book-land.2 But even after this change in the evidence of title, traces of the family influence still survived. As a general rule, the grantee under A grantee a book or charter had an absolute right of alienation by vir- land. tue of the terms of the book itself. In the absence, however, of the grant of such a power in the charter, the customary law stepped in and declared that the property of the family could not be wholly alienated. This restraint upon alienation in favor of the heir, which survived as a relic of primitive custom down to the time of Glanvill, had disappeared by the time of Bracton. With the growth of feudal ideas the primitive restraints upon alienation, based upon the duties of the ancestor to the heir, were succeeded by a new system of restraints which grew out of the duties due from the tenant 1 Upon this whole subject see above, p. 137. 2 See above, p. 140. 8 "Si bocland autem habeat, quam ei parentes sui dederint, non mittat eam extra cognationem suam."- Leg. • Digby, Law of Real Property, pp. of book |