Thus the property and dominion of the inheritance absolutely vested in him in equity, with an immediate right to compel a legal transfer of it. In this manner, by the Roman law, the heir succeeded, in every case to the absolute property of the inheritance, and to all the rights and obligations of the ancestor. It should, however, be observed, that this account of the simplicity of the Roman law, with respect to the tenure, if it may be so called, of property, applies to it only, in the state of simplicity, in which it was placed, by the Trebellian and Pegasian decrees. In a further part of this annotation, we shall have occasion to mention the alteration occasioned by the introduction of fidei-commissary substitutions. These are to be considered, as a departure from the genuine spirit of the Roman law, in the doctrines respecting inheritances. See Hubert Proelectiones ad Inst. lib. 2 tit. 23. § 18. From that spirit, nothing could be more different, with respect to the tenure and modifications of property, than the regulations of the feudal law. According to these, the heir derived his title, no otherwise through his ancestor, than from the necessity of mentioning him in his pedigree. This enabled him to describe himself, as an object, to whom the succession was originally limited. Thus he was a nominee in the original grant; he took everything from the grantor, nothing from his ancestor. The consequence was that, while the absolute or ultimate ownership was supposed to reside in the lord, the ancestor and the heirs took equally as a succession of usufructuaries, each of whom, during his life, enjoyed the beneficial, but none of whom possessed, or could lawfully dispose of, the direct or absolute dominion of the property. Thus, while, by the Roman law, and the law of almost every other country, property is vested in the possessor solely and absolutely, every species of feudal property is necessarily subject to the three distinct and clashing, though concurrent, rights of the lord, the tenant and the heir. It follows, that, by the original principles of the feudal law, fiefs could neither be aliened nor charged with debts, and in direct contradiction to almost every other system of law, the feudal system of polity made land unalienable, and absolutely took it out of commerce.

VI. 6. THE VARIOUS MODES WHICH HAVE BEEN USED, IN THE COUNTRIES WHERE THE FUED HAS BEEN ESTABLISHED TO ELUDE, OR OVERTHROW, THE RESTRAINTS UPON ALIENATION, form one of the most important parts of feudal learning. The mode, by which this has been effected in England, is peculiar to itself. It has been the principal occasion of the striking difference, to be observed, in the feudal jurisprudence of England, and that of other countries. One artifice to elude the feudal restraint upon alienation, seems to have been resorted to, by every nation where the feudal policy has been established - .that of subinfeudation. Its effect in aggrandizing the vassals, and rendering them independent of the throne, has been already noticed. It also served as an indirect mode of transferring the fief. It was inhibited in England, to all but the King's vassals, by the statute quia emptores terrarum, 18 Edward 1st; and this inhibition was extended to the King's vassals, by the statute de prerogativa regis, 17 Edw. 2. c. 6. In most other countries, it is still allowed, under some restrictions. The chief of these are, 1st. That it must be a real subinfeudation, and not a sale, or other transaction, under the appearance or colour of a subinfeudation; 2d. That the sub-vassal must be of equal, or at least, of suitable rank and circumstances. And, 3dly. The conditions, so far as the lord is interested in them, must be the same, as those upon which the original investiture is granted. In other respects, the feudal history of alienation has varied. As it now stands, in almost every country, the lord's consent must be had. But in some, it still continues a matter of favour, in others, it is a matter of right, to which the tenant is always entitled, on paying certain fines to the lord. The principal of these are the quint and the lods et ventes. These the lord claims on every sale. In other cases, where the fief is transferred from one to another, the lord claims the relevium or droit de rachat, which, generally, is one year's produce of the fief. In many countries, where the tenant sells his fief, the lord has a jus retractus, or retrait feodal, by which, he has a right to become, himself, the purchaser of the fief, on reimbursing the stranger the price paid by him, for the purchase of it, and the costs attending the purchase. In many countries, also, the right of the heir is consulted by giving him the retrait lignager, by which, when a fief is sold, a relation of the vendor, within a certain degree of parentage, may entitle himself to repurchase the fief by an offer of the purchase money, interest, costs, and expenses, or as it is termed in the writ, offre de bourse, deniers, loyaux courts a parfaire. Such is the general history of alienation in foreign countries. The history of alienation in England is very different. A liberty of alienating lands of purchase, at least where the party had no son, is allowed by a law of Henry the 1st, and expressly recognized by a law of Henry the 2d. Some time afterwards, it obtained generally, with little or no limitation. The indirect mode of aliening, through the medium of subinfeudation, the restraint of it by magna charta, and its total abolition by the statutes quia emptores, and de prerogativa regis, have been already noticed.

VI. 7. But while the restraints upon alienation, so far as it was contrary to the general principles of the feudal tenure, were thus gradually removed, the policy and private views of individuals, found means to impose new restraints upon it. This was done by the introduction of conditional fees at the common law, and afterwards by the INTRODUCTION OF ENTAILS. We shall consider this species of limitation of property, with a view to the different modes of it, which have been admitted by the Roman law, and by the laws of France, Spain, Germany, Scotland, and England. With respect to the Roman law, we have already had occasion to notice its simplicity, in the inheritance of property, as it was settled by the Trebellian and Pegasian decrees, and its alteration, in this respect, by the introduction of the fidei-commissa. These gave rise to successive fidei-commissary substitutions. By multiplying these, and by prohibiting each substitute from aliening the inheritance, property was absolutely taken out of commerce, and fixed, in a settled, and invariable course of devolution, in particular families. There is reason to suppose this mode of settling property was never common, and the policy of Justinian soon interfered to check it. By the 159th Novel, he restrained fidei-commissary substitutions to four degrees, including the party himself, who instituted the substitution. With the third substitute, therefore, the power of the testator expired, the absolute dominion vesting absolutely in him. This, in some measure, restored the law to its primitive simplicity. A similar progress is discoverable in the history of French Jurisprudence respecting Substitutions. The law of France appears to have generally admitted perpetual substitutions. The ordinance of Orleans, in 1560, restrained them to two degrees, exclusive of the instituant. That ordonnance not having a retrospective operation, and the inconvenience arising from prior substitutions being greatly felt, the ordonnance of Moulins, in 1566, restrained all substitutions, anterior to the ordonnance of Orleans, to the fourth degree of the instituant. The ordonnance of 1747, fixed the law on this important branch of real property. It was framed with great deliberation by the Chancellor d'Aguesseau, after taking the sentiments of every Parliament in the kingdom, upon forty-five different questions proposed to them on the subject. These questions, and the answers of the parliaments, have been published under the title Questions concernment les Substitutions, Toulouse, 1770. The ordonnance of 1747 confined substitutions, with some exceptions, to two degrees, and directed the degrees to be computed, by the individuals, in whom the substitution vested.