It was a consequence of feudal prin ciples, that a man's lands could not be subjected to the claims of his creditors. This restraint upon what may be called involuntary alienation has been in a great degree removed by the successive enact ments which have had for their object to make a man's lands liable for his debts ; although, after a lapse of near six hundred years since the statute of Acton Burnell, the lands of a debtor are not yet completely subjected to the just demands of his creditors. This statute of Acton Burnell, passed 11 Ed. I. (1283), made the devisable burgages, or burgh tene ments, of a debtor saleable in discharge of his debts. By the Statute of Merchant, passed 13 Ed. I. (1285), called Statute 3, a debtor's lands might be delivered to his merchant creditor till his debt was wholly paid out of the profits. By the 18th chapter of the Statute of Westmin ster the Second, passed the same year, a moiety of a debtor's land (not copyhold) was subjected to execution for debts or damages recovered by judgment. But the lands are not sold : the moiety of them is delivered by the sheriff to him who has recovered by judgment, to occupy them till his debt or damages are satisfied. Finally, by the several modern statutes of bankruptcy, the whole of a bankrupt debtor's lands have become absolutely saleable for the payment of his debts. Further, by a recent act (3 & 4 Wm. IV. 0. 104), all a deceased person's estate in land, of whatever kind, not charged by his will with the payment of his debts, whether he was a trader within the bank rupt laws or not, constitutes assets, to be administered in equity, for the payment of his debts, both those on specially and those on simple contract.
An attempt had early been made to restore in part the old restraints upon voluntary alienation by the statute 13 Ed. I. c. 1, entitled De Donis Condi tionalibus,' which had for its object to enable any owner of an estate, by his own disposition, to secure its descent in perpetuity in a particular line. So far as the statute went, it was an effort to strengthen the declining power of feu dalism. The effect was to create what were called estates tail, and to free the tenant in tail from many liabilities of his ancestor to which he would be subject if he were seised of the same lands in fee simple. [ESTATE. ] The power which was thus conferredupon landholders of preventing the alienation of their lands remained in full force for nearly two centuries, till at last, in the reign of Edward IV., by the decision of the courts (A.D. 1472) the practice of barring es tates tail by a common recovery was com pletely established.
The practice of conveying estates by fine, which was of great antiquity in England, and the origin of which is by some referred to the time of Stephen or Henry II., was regulated by various statutes (among others, particularly by the 4 Henry VII.), and contributed ma terially to facilitate the transfer of lands in general, but more particularly (as regulated by the statute just mentioned) to bar estates tail. By a statute passed
in the 32 Henry VIII. c. 28, tenants in tail were enabled to make leases for three lives or twenty - one years, which should bind their issue. The 26 Hen. VIII. c. 13, also had declared all estates of inheritance, in use or possession, to be forfeited to the king upon any con viction of high treason, and thus destroyed one of the strongest inducements to the tying up of estates in tail, which hitherto had only been forfeitable for treason during the life of the tenant in tail.
Another mode by which the feudal restraints upon voluntary alienation came at length to be extensively evaded was the practice introduced, probably about the end of the reign of Edward III., of granting lands to persons to uses, as it was termed ; that is, the new owner of the land received it not for his own use, but on the understanding and confidence that he would hold the land for such per sons and for such purposes as the grantor then named or might at any time after wards name. Thus an estate in land be came divided into two parts, one of which was the legal ownership, and the other the right to the profits or the use; and this use could be transferred by a man's last will at a time when the land itself, being still bound in the fetters of feudal restraint, could not be transferred by will, except where it was devisable, as in Kent and some other parts of England, by special custom. The person who thus obtained the use or profits of the estate— the Cestui que use, as he is called in law—was finally converted into the actual owner of the land to the same amount of interest as he had in the use (A.D. 1535) by the statute of Uses (the 27 Hen. VIII. c. 10), and thus the power of devising land which had been enjoyed by the mode of uses was taken away. But this important element in the feudal system, the restraint on the disposition of lands by will, could no longer be maintained consistently with the habits and opinions then established, and ac cordingly, by stat. 32 Hen. VIII. (which was afterwards explained by the stat. 94 Hen. VIII.), all persons were allowed to dispose of their freehold lands held in fee-simple by a will in writing, subject to certain restrictions as to lands held by knight-service either of the king or any other, which restrictions were removed by the stat. 12 Chas. II. c. 24, which abolished military tenures.
Notwithstanding these successive as saults upon certain parts of the ancient feudalism, the main body of the edifice still remained almost entire. It is said that the subject of the abolition of mili tary tenures was brought before the parliament in the 18th of James I., on the king's recommendation, but at that time nothing was done in the matter. When the civil war broke out in 1641.