the oath of fealty. The mesne lords, on their subinfeudations, also demanded homage and fealty, and it was held the bond of allegiance was mutual, each being bound to defend and protect the other. From this flowed the doctrine that the tenant could not transfer his feud without his lord's consent, nor the lord his seignory without his tenant's consent, although the tenants (even of the crown it should seem) might grant subinfeudations (i. e. to hold of themselves) without licence. It was further held, the tenant could not subject his lands to his debts by execution of law, for if he could, he might have effected that circuitously, which he could not by direct means have accomplished. Nor, if the lands came to him by descent, could he alien them without the consent of the next collateral heir (g). By these restraints on alienation, mortgages of land must have been nearly extinguished (h).

A further considerable obstacle to mortgages arose and long continued from the prejudice of the times ; for in analogy to the Jewish law (i), which forbade profit to be made on the loan of money from Jew to Jew, but not so on a loan from a Jew to a stranger, it was held to be usury for Christians to lend money at interest(k), and (in case on inquest after death it was found that a man had died an usurer) the offence

(g) Wright's Tenures, 168.

(h) "Feudalia, invito domino, aut agnatis, non rectè subjiciuntur hypothecæ, quamvis fructus posse esse, receptum est." Corvin. 268.

(i) Deut. chap. 23.

(k) 3 Inst. 88; Glanville, lib. 7, cap. 16.

was punishable by forfeiture of his lands, goods, and chattels (1). The consequence was, that the Jews became the great money-lenders of Europe; and in compliance with the subsisting prejudice, the common law of England held, that if lands were enfeoffed to the creditor, and the rents and profits were ad interim received by him, and not applied in reduction of the principal of his debt, it was a species of usury which, although not prohibited by the king's court, was punishable by the forfeiture of the lands and chattels of the creditor, if he died possessed of the pledge. And this, according to Glanville (m), was the original meaning of the term mortuum vadium, or mortgage, and not the meaning subsequently attached to the word by Littleton and others, as hereafter explained.

The improving spirit of the age struggled hard against the fetters on alienation, and at length the statute of Quia Emptores Terrarum (n), passed in the reign of a monarch deservedly stiled the English Justinian, gave a general licence of free alienation to all, except the immediate tenants of the crown, at the same time that it abolished the power of subinfeudation; thus at once simplifying the tenure, and giving freedom to the alienation of the land of the realm.

(1) When our old writers speak of an usurer, we must understand one who lent money at interest. It was not until the 37 of Hen. 8, cap. 9, that loans at interest were declared legal, if not exceeding 101. per cent.

(m) Glanville, De Leg. lib. 10, cap. 6, cap. 8.

(n) 18 Edw. 1.

On the removal of the restrictions, which impeded the circulation of landed property, mortgages became general. Of these we shall treat in the following chapters.

Fines on alienation by tenants in capite were not abolished until the 12 Car. 2, cap. 24, put an end to the remaining feudal burthens.

CHAPTER II.

OF MORTGAGES AT COMMON LAW.

THE Common law recognized two kinds of landed security, viz. vivum vadium and mortuum vadium. The vivum vadium and also the mortuum vadium (according to Glanville), as at first known, were determinable or base fees, with a right of reverter in the feoffor and his heirs, on the payment of a given sum. The mortuum vadium, or mortgage ultimately known at the common law, was an absolute fee, with a condition annexed, making void the feoffment on payment of a given sum, which the common law allowed, if reserved to the feoffor or his heirs. The difference between the estates was striking. In the first instances, the creditor took an estate, which, as soon as his debt was satisfied, ipso facto ceased, and the feoffor might re-enter and maintain ejectment; in the latter instance the feoffee took the whole estate, subject to be defeated, but which, on the non-fulfilment of a certain engagement, became his own by an indefeasible title. In the first case the defeasibility was an inherent quality of the estate; in the other case the determination was collateral to the estate.

The vivum vadium consisted of a feoffment to the creditor and his heirs, until out of the rents and profits he had satisfied himself his debt; the creditor took actual possession of the estate, and received the rents, and applied them from time to time in liquidation of the debt. When it was satisfied, the debtor

might, as before observed, re-enter and maintain ejectment; and it is said to have been called vivum vadium, because neither debt nor estate was lost.

This mode of security was probably never general: it is ill adapted to the purpose of a pledge, whose object is the repayment of the loan in one entire sum at a given time, and not a repayment by small instalments, which in fact is eating out the debt piecemeal; and it seems now to have entirely ceased. A security in land, bearing a remote resemblance to the vivum vadium, may be considered as subsisting under the appellation of Welch mortgage; but there is this distinction between the securities, viz. that in the vivum vadium, the rents were applied in satisfaction of the principal, and in Welch mortgages they are received in satisfaction of the interest, while the principal remains undiminished. In one respect they agree, the estate is never forfeited. The Welch mortgage seems in fact pretty closely to resemble the ancient mortuum vadium.

The mortuum vadium, or mortgage, is mentioned by Littleton, Coke, and others, as so called because on breach of condition the estate was rendered indefeasible in the mortgagee, and absolutely lost to the mortgagor. In this light it is placed by Lord Coke, in contradistinction to the vivum vadium, and such seems to be the opinion generally adopted. But Glanville, as has been observed (a), gives a different meaning to the origin of the term. He says, "Mor

(a) Lib. 10, cap. 6.