property law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual prope ...

, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity for a piece of property or a

property right The right to property, or the right to own property (cf. ownership) is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically h ...

to be sold or otherwise transferred from one party to another. Most property is alienable, but some may be subject to restraints on alienation. In England under the

feudal system Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structur ...

, land was generally transferred by

subinfeudation In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands. The tenants were termed m ...

, and alienation required license from the overlord. When William Blackstone published ''Commentaries on the Laws of England'' between 1765-1769, he described the principal object of English real property laws as the law of inheritance, which maintained the cohesiveness and integrity of estates through generations and thus secured political power within families. In 1833, Justice Joseph Story in his ''Commentaries on the Constitution of the United States'' linked landowners' jealous watchfullness of their rights and spirit of resistance in the

American Revolutionary War The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was a major war of the American Revolution. Widely considered as the war that secured the independence of t ...

with the system of American institutions which recorded and clarified land title and expanded landed markets. Other early American legal commentators who praised the simple and relatively inexpensive conveyancing system in the new United States included Zaphaniah Swift, Daniel Webster and James Kent. Some objects are now regarded as being incapable of becoming property and thus termed inalienable, such as people and body parts.

Aboriginal title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...

is one example of inalienability (save to

the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...

) in common law jurisdictions. A similar concept is non-transferability, such as tickets. Rights commonly described as a licence or permit are generally only personal and are not assignable. However, they are alienable in the sense that they can generally be surrendered. English common law traditionally protected freehold landowners from unsecured creditors. In 1732, the

Parliament of Great Britain The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a new unified Kingdo ...

passed legislation entitled “The Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America”, sometimes known as the Debt Recovery Act of 1732, which required all land and slave property in

British America British America comprised the colonial territories of the English Empire, which became the British Empire after the 1707 union of the Kingdom of England with the Kingdom of Scotland to form the Kingdom of Great Britain, in the Americas from 16 ...

to be treated as chattel for debt collection purposes. It thus removed the shield from creditors which had protected large, landed estates (and which continued to protect those estates in Britain). However, the Act was amended within a decade to allow colonial legislatures, particularly in the southern American colonies, to again protect real estate transferred in fee tail or inherited through

primogeniture Primogeniture ( ) is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relative ...

. Thus, colonies which relied on enslaved labor adopted legislation which promoted the liquidity of slave property. Although Virginia repealed laws supporting primogeniture and the fee tail in 1776, it refused to extend the Debt Recovery Act after the American Revolution, and passed further legislation which protected real estate from creditors. Other states adopted similar legislation (some specifically protected homesteads from creditors), but the recording systems adopted throughout the new American states led to the more commodified and transferable development of American property law. In 1797, Parliament repealed the Debt Recovery Act with respect to slaves in the remaining colonies. Nonetheless, by 1806, abolition pamphleteers in Britain continued to criticize as cruel the Act's sanction of slave auctions to satisfy a slaveowner's secured as well as unsecured debts.Preist p. 9

References

Property law {{Law-term-stub

See also

References