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 pro ...

, alienation is the voluntary act of an owner of some

property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...

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 A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring their interest in the property. Under the common law such re ...

. 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 An overlord in the English feudal system was a lord of a manor who had subinfeudated a particular manor, estate or fee, to a tenant. The tenant thenceforth owed to the overlord one of a variety of services, usually military service or serje ...

. When

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family i ...

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 Joseph Story (September 18, 1779 – September 10, 1845) was an associate justice of the Supreme Court of the United States, serving from 1812 to 1845. He is most remembered for his opinions in ''Martin v. Hunter's Lessee'' and ''United States ...

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 Daniel Webster (January 18, 1782 – October 24, 1852) was an American lawyer and statesman who represented New Hampshire and Massachusetts in the U.S. Congress and served as the U.S. Secretary of State under Presidents William Henry Harrison, ...

and

James Kent James Kent may refer to: *James Kent (jurist) (1763–1847), American jurist and legal scholar * James Kent (composer) (1700–1776), English composer *James Kent, better known as Perturbator, French electronic/synthwave musician *James Tyler Kent ...

. Some objects are now regarded as being incapable of becoming property and thus termed inalienable, such as people and body parts. 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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

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

surrender Surrender may refer to: * Surrender (law), the early relinquishment of a tenancy * Surrender (military), the relinquishment of territory, combatants, facilities, or armaments to another power Film and television * ''Surrender'' (1927 film), an ...

ed. 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 Debt is an obligation that requires one party, the debtor, to pay money or other agreed-upon value to another party, the creditor. Debt is a deferred payment, or series of payments, which differentiates it from an immediate purchase. The de ...

, 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 In English common law, fee tail or entail is a form of trust established by deed or settlement which restricts the sale or inheritance of an estate in real property and prevents the property from being sold, devised by will, or otherwise alien ...

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 relativ ...

. 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