fervices, fhould be forfeited in the fame manner as had been provided for lands alienated in mortmain. AT common law, when a tenant made a feoffment generally, without fpecifying the tenure by which the feoffee was to hold the land, it was understood, that he was to hold it of the feoffor by the fame fervices by which the latter held it of his lord (a).-When fuch alienations were firft introduced, no confiderable degree of inconvenience was felt by the lord, because the original vaffal remained still liable for the fervices, and diftrefs might be taken for them on the whole of the land: but when the rear vaffal had long poffeffed his feud, and held it of another, he began to think he had a connection only with that other, and none with the original lord. This perfuafion of the rear vaffals gained ground, and the fuperior lords came in the end to be deprived of their fervices and emoluments. To remedy this inconvenience, and to reconcile the jarring interests of lords and vaffals, while the latter were eager to affert their power of alienation, and the former complained that they were ftripped of their ancient rights, the ftatute of quia emptores (b) was made, which enacted in favour of the vaffals, that they might alienate the whole or any part of their land as they pleafed; and in favour of the fuperior lords, that the lands fo alienated fhould be held of them and not of the alienors (c). BUT it was expressly provided, that this liberty fhould not extend to alienation in mortmain (d). WHETHER the King's licence to alienate in mortmain, was originally neceffary in any cafe, but where the tenements to be alienated were held immediately of himself, (c) Vid. this fubject ably handled in Dalrymple's feudal tenures, 84, 85, &c. (d) 18 Ed. 1. c. 3, does not very clearly appear.—It is indeed prefumed, from the interest the King must have had as ultimate lord of every fee, that his licence was neceffary in all cafes, even fo early as fixty years before the Norman conquest (a). And it is faid that the neceffity of it was acknowledged by the conftitutions of Clarendon in refpect of advowfons (b): but the paffage, from which this conclufion is drawn, applies manifeftly only to the cafe of advowfons belonging to the King's immediate tenant (c). If we may judge from the tenor of the former ftatutes, it is probable, that till the 9th of Henry the third, neither the licence of the King nor of other fuperior lords was neceffary for an alienation in mortmain, in any case where it would not have been neceffary to alienate to a common perfon, except where there was an express clause of restriction in the original charter of infeoffment. The words of that ftatute feem to imply a general prohibition in favour of the immediate lord of the fee; but as every man may difpenfe with a forfeiture intended for his own benefit (d), it seems, that notwithstanding this ftatute, an alienation in mortmain was lawful, if made with the licence of the immediate lord, whether that lord was the King or a subject; and the complaint of the preamble of the next ftatute, does not extend to an alienation without the licence of any other: it complains indeed of a practice, against which the first ftatute had made no provifion, the entry of religious men into fees holden of themselves; from which it is manifeft, that the general intereft of the (a) Selden. Jan. Angl. 1. 2. f. 452 cited, Bl. Com. 269. (b) Id Ibid. (c) Ecclefiæ de feudo Domini Regis non poffint in perpetuum dari abfque affenfu et conceffione ipfius. Wilkins. 331, 323. (d) Alienatio licet prohibeatur, confenfu tamen omnium, in quorum favorem prohibita eft, poteft fieri, et quilibet poteft renunciare juri pro fe introducto. Co. Lit. 99. a. community community began to be confidered as equally endangered by these appropriations, as the particular interests of the lords. The enacting part of this fecond ftatute therefore, not only prohibits abfolutely all the practices complained of, but makes a provifion for the entry of the King in default of all the other lords.-From this time, therefore, we may fuppofe, that if an alienation in mortmain was permitted at all, it must have been in confequence of a licence not only from the immediate lord, but from all the mediate lords, and from the King.-A regular form of proceeding began now to be used in applying for this licence; and at length the ftatute of 27 Ed. 1. ft. 2, enacted, "that men of religion who would purchase lands or tenements in mortmain, fhould have writs out of chancery to enquire upon the points accustomed in all things; and that inquests of lands or tenements that were worth yearly more than twenty fhillings by extent, fhould be returned into the exchequer, and a fine made there if the inqueft paffed for the purchaser; and that it should afterwards be certified to the chancellor, or his deputy, that he should take reasonable fine, and afterwards make delivery." It is probable that, in confequence of this ftatute, the licence of the King came to be confidered as of the principal importance, and that the interefts of the mefne lords began to be overlooked, which gave rife to the ftatute 34 Ed. I. ft. 3, by which it was enacted "that where there were any mefne lords, nothing should be done in pursuanoe of the former ftatute, unless the religious perfons could fhew to the King the affent of fuch lords, under their patents, fealed with their feals, and that nothing should pass where the donor referved nothing to himself; or where inquifitions were made without warrant, that is, without the original writ being returned with the inqueft, and unless the the original writ made mention of every thing required by the new ordinance devised by the King." This new ordinance was the statute immediately preceding. THE writ to which thefe ftatutes refer, from a clause in it expreffing the object it had principally in view, was called the writ of ad quod damnum: from the words of the ftatutes, it is not improbable that it existed at common law, and that they were intended to enforce a more strict attention to all the objects of inquriy which it pointed out. It was directed to the King's efcheator for the county in which the lands or tenements lay, which were intended to be alienated in mortmain; and commanded him, by the oath of good and lawful men, diligently to enquire, whether it would or would not be to the damage or prejudice of the King or of others, that the King should grant to the person who had fued out the writ, the liberty of alienating to the particular corporation, whether fole or aggregate, to which the alienation was to be made, the particular lands or tenements described in the writ; and, if it should appear to be to the damage or prejudice of the King or of others, then to what extent; and of whom, by what tenure, and by what services the lands or tenements were holden; what was their real annual value; and who were the mesne lords between the King and the tenant who intended to alienate; what lands and tenements would remain to the tenant after the intended alienation, where they were fituated, of whom, by what tenure, and by what fervices they were held, and what was their real annual value; and if lands and tenements would remain to him, whether thefe would be sufficient to enable him to perform all the services which were due, as well for the lands and tenements intended to be alienated, as for what should remain to him after the alienation; and to fupport all the burthens which he then bore or was accustomed to bear, as in fuit of court, view of frankpledge, aids, taillages, watchings, fines, redemptions, amercements, contributions, and all other burthens whatever; and whether he could be put upon affizes, juries, and other inquifitions, in the fame manner as before the intended alienation. It then commanded that the writ fhould be returned, together with the inquifition certified, into the chancery, under the feals of the efcheator, and of the jurors by whom the inquifition was found (a). THE Course of proceeding appears to have been, that the tenant who intended to alienate in mortmain, first applied for leave from the King, to fue out the writ, and then after the return of it by the efcheator, if the inquifition was in favour of the alienation, he obtained letters patent of licence from the King and from the intermediate lords: but these could not vary from the substance of the particulars rehearsed in the writ (b). If one abbot wished to give lands or tenements in mortmain to another abbot or prior, or to any other body corporate, though they were in mortmain before, yet he could not do it without the King's licence, in confequence of the writ of ad quod damnum: but the writ was not to contain the claufe which related to the ability of the alienor to be put upon affizes, nor that which was to guard against the country being injured by the alienation (c). IF a man devised lands or rents to his executors and to their heirs, to difpofe according to his will, and afterwards made his will commanding them to give the same in (a) Vid. Reg. orig. 247, a. F. N. B. 222. (b) F. N. B. 221. O. 224. C. D. (c) F. N. B. 222. D. Reg. orig. 247, b. mortmain; 6 |