The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

SUMMARY

• page
• Real Property - - - - - - -
• chapter 1.Feudalism - - - - - - - -
• chapter 2.Feudalism in England - - - - -
• chapter 3.Inheritance and Alienability - - - -
• chapter 4.Tenures and Incidents - - - - -
• chapter 5.The Rise of the Entail - - - - -
• chapter 6.The Common Law Estates down to 1540 - -
• chapter 7.Uses and the Statute - - - - -
• chapter 8.The Later Law of Real Property - - -
• chapter 9.The Mortgage - - - - - - -
• chapter 10.Conveyances - - - - - - -

REAL PROPERTY

Real property law has been the battle-ground in most of the great struggles in our history. One of the bitterest conflicts between Church and State arose out of Henry II’s determination that patronage was “lay fee”, that is to say, real property amenable to the jurisdiction of the royal courts. Even earlier, the great social revolution which created feudalism, created thereby the foundations of the law of real property, and when the equally great revolution, late in the middle ages, replaced feudalism by the beginnings of modern society, we find corresponding changes in the law of land. Public law, too, owes much to the principles first worked out in connection with land. The barons won a notable victory against King John when they established the inviolability of the freeholder’s land, and the law of freehold served the cause of freedom centuries later.

It is in terms of real property law that such social factors as the rise, and still stranger decline, of serfdom must be expressed, while the emergence of a mercantile community had important results which even went so far (as we have already seen) as the creation of peculiar mercantile estates in land. The long and obscure story of settlements and disentailing devices reflects not only social problems and the difficulty of expressing the family itself in terms of real property law, but also illustrates the growth of land as a commodity with a market value, and shows that land (especially in the eighteenth century) was now the object of intensive exploitation which required the sinking of considerable capital sums—and often this could only be achieved by selling or charging settled land. Corresponding difficulties existed even on the purely physical side, and so there came the enclosure movement which rapidly changed the face of the countryside. An economic history of the law of real property has not yet been written, and this is not the place to attempt so difficult a task; nevertheless, some reference to economic and social factors must be made in the pages that follow, even if they fail to receive all the weight to which they would be entitled in a fuller discussion.