Countering this utopian view was Numa Denis Fustel de Coulanges in his essay "The Origins of Property in Land", and Frederic William Maitland who found it to be inconsistent with extant Anglo-Saxon documents from pre-Norman times.

After the Conquest, the rule became one of primogeniture inheritance, meaning the eldest surviving son became the sole heir of the baronial estate.

In return, for these privileges the lord was liable to forfeit his rights if he neglected to protect and defend the tenant or did anything injurious to the feudal relation.

At the time of the Conquest, William the Conqueror granted fiefs to his lords in the manner of a continental or feudal benefice which assured little beyond a life tenure.

Questions concerning the rights of the overlord and the other family members were frequently heard in the courts prior to Quia Emptores.

Every man, moreover, can give a certain part of his free tenement to whomsoever he will as a reward to his service, or in charity to a religious place, in such wise that if seisin has followed upon the gift it shall remain perpetually to the donee and his heirs if it were granted by hereditary right.

It is moreover generally lawful for a man to give during his lifetime a reasonable part of his land to whomsoever he will according to his fancy, but this does not apply to deathbed gifts, for the donor might then, (if such gifts were allowed) make an improvident distribution of his patrimony as a result of a sudden passion or failing reason, as frequently happens.

[16]It has been commented that this illustrates a desire in Glanvill's time to formalize the practices of the day, in which someone having a tenancy could dispose of his land before death.

This was repeated in 1205 by King John who ordered the seizure of all Lancaster serjeanties, thegnages and drengages that had been alienated since the time of Henry II of England.

In it the King asserted that it was an intolerable invasion of royal rights that men should, without his special consent, enter,[clarification needed] by way of purchase or otherwise, the baronies and fees that were holden to him in chief.

Later case law indicates jurists remained largely ignorant of this decree, which suggests the Crown was reluctant to enforce it.

Some direction toward order had been laid down in the Magna Carta, the Provisions of Oxford, and in the scanty legislation of Simon de Montfort, 6th Earl of Leicester.

The Statute of Westminster 1285 contained the clause De Donis Conditionalibus which shaped the system of entailing estates.

It is the opinion of Pollock and Maitland that in the middle of the 13th century the tenant enjoyed a large power of disposing of his tenement by act inter vivos, though this was subject to some restraints in favor of his lord.

If A enfeoffed to B to hold a knight's service, and then B enfeoffed C to hold as a rent of a pound of pepper per year; B dies leaving an heir within age; A is entitled to a wardship; but it will be worth very little: instead of being entitled to enjoy the land itself until the heir is of age, he will get a few annual pounds of pepper.

[36][37] Quia Emptores was a kind of legislative afterthought meant to rectify confusion in: It indirectly affected the practices of: The statute provided that subtenants could not be allowed to alienate land to other persons while retaining the nominal possession and feudal rights over it.

Quia Emptores mandated that when land was alienated, the grantee was required to assume all tax and feudal obligations of the original tenant, known as substitution.

It declared that every freeman might sell his tenement or any part of it, but in such a manner that the feoffee should hold the same lord and by the same services, of whom and by which the feoffor held.

[38] Nothing in the statutes addressed the King's rights, and tenants in chief of the crown continued to need royal licence to alienate their estates.

Quia Emptores ended the ancient practice of frankalmoign whereby lands could be donated to a Church organization to be held in perpetuity.

In a proclamation from 1066, William swept away the entire tradition of familial or allodial inheritance by claiming that "every child be his father's heir".

History would indicate the great lords were winners as well as the Crown, since land bought from lowly tenants had a tendency to stay within their families, as has been noted above.

In 1708, William Penn mortgaged Pennsylvania, and under his will devising the province legal complications arose which necessitated a suit in chancery.

[45] There the court record is useful in describing the nature of English feudalism: At common law a feoffment in fee did not originally pass an estate in the sense in which the term is now understood.

Under the system of English feudal tenures, all lands in the Kingdom, were supposed to be holden mediately or immediately by the King who was styled the "lord paramount", or above all.

These incidents of feudal tenure belonged to the lord of whome the lands were immediately holden, that is to say, to him of whom the owner for the time being purchased.

There, the court noted: In the early vigor of the feudal system, a tenant in fee could not alienate the feud without the consent of the immediate superior; but this extreme rigor was soon afterward relaxed, and it was avoided by the practice of subinfeudation, which consisted in the tenant enfeoffing another to hold of himself by the fealty and such services as might be reserved by the act of feoffment.

This practice was considered detrimental to the great lords, since it deprived them to a certain extent the fruits of their tenure, such as escheats, marriages, wardships and the like.

Hence by virtue of the Statute, passed in 1290, subinfeudation was abolished and all persons except the King's tenants in capite were left at liberty to alien all or any part of their lands at their own pleasure and discretion.

It was clear that no such statute was ever needed in Michigan or in any of the western states because no possibility of reverter or escheat in the party conveying an estate ever existed.