History of English land law
- Material here has been extracted from the 1911 Britannica encyclopedia.
The history of English land law derives from a mixture of Roman, Norman and modern legislative sources.
Such terms as "fee" or "homage" carry us back into feudal times. Rights of common and distress are based upon still older institutions, forming the very basis of primitive law. The conception of tenure is the fundamental ground of distinction between real and personal estate, the former only being strictly entitled to the name of estate. The division into real and personal is coincident to a great extent with that into immovable and movable, generally used by systems of law founded on the Roman (see Personal Property.) That it is not entirely coincident is due to the influence of the Roman law itself. The Greeks and the Romans of the republic were essentially nations of citizens; the Teutons were essentially a nation of land-folk; the Roman empire bridged the gulf between the two.
It is probable that the English land law was produced by the action of the policy adopted in the lower empire, finally developed into feudalism, upon the previously existing course of Teutonic custom. The distinguishing features of the Teutonic system were enjoyment in common and the absence of private ownership, except to a limited extent. The principal features of the old English land law before the Conquest, from which the modern law has developed, were
- liberty of alienation, either by will or inter vivos, of such land as could be alienated, chiefly, if not entirely, bocland, subject always to the limits fixed by the boc;
- publicity of transfer by enrolment in the shire-book or church-book;
- equal partition of the estate of a deceased among the sons, and failing sons among the daughters;
- cultivation to a great extent by persons in various degrees of serfdom, owing money or labour rents;
- variety of custom, tending to become uniform, through the application of the same principles in the local courts;
- subjection of land to the Trinoda necessitas, a burden imposed for the purpose of defence of the realm.
The rudiments of the conceptions of tenure and of the Crown as Lord Paramount were found in the old English system, and leenland was an anticipation of the limited interests which afterwards became of such importance.
The elements of feudalism so far existed in England under the Anglo-Saxon and Danish kings as to make it easy to introduce it in full at the Norman Conquest. What the Norman Conquest did was not to change all at once allodial into feudal tenure, but to complete the association of territorial with personal dependence in a state of society already prepared for it. Nulle terre sans seigneur was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to mesne lords, but the chain of seigniory was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia duties to the state, but was held of the king by knight-service. The folkland became the king's land; the soldier was a landowner instead of the landowner being a soldier. Free owners tended to become tenants of the lord, the township to be lost in the manor. The common land became in law the waste of the manor, its enjoyment resting upon a presumed grant by the lord. On the other hand, the whole of England did not become manorial; the conflict between the township and the manor resulted in a compromise, the result of which affects land tenure in England to this day. But it was a compromise much to the advantage of the privileged class, for in England more than in any other country the land law is the law of the nobility and not of the people. One reason of this is that, as England was never so completely feudalized as were some of the European continental states, the burden of feudalism was not so severely felt, and has led to less agitation for reform.
The land forfeited to the Conqueror was re-granted by him to be held by knight-service due to the king, not to the mesne lord as in European continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure or by a tenure which was originally that of a non-free inhabitant, but attached to land in the possession of a free man. Free tenure was either military tenure, called also tenure in chivalry, or socage (including burgage and petit serjeanty), or frankalmoin, by which ecclesiastical corporations generally held their land. The non-free inhabitants were called in the Domesday Book servi, cotarii, or bordarii, and later nativi or villani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all exist at the present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by copyhold.
The most important difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice was originally hereditary, it had certainly become so at the time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by knight-service as far as regarded the capital fief. The descent of socage lands or lands other than the capital fief for some time followed the old pre-Conquest rule of descent. Thus in the so-called "Laws of Henry I" The lands other than the capital fief and some socage lands were divided among all the sons equally. But by the time of Henry de Bracton the course of descent of lands held by knight-service had so far prevailed that, though it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was presumed. Relics of the old custom still remain in the case of gavelkind. The military tenant was subject to the feudal incidents, from which the tenant in socage was exempt. These additional fees and obligations were often oppressive. Alienation of lands by will, except in a few favoured districts, became impossible; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glanvill a tenant had a greater power of alienation over land which he had purchased than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. The lords were more successful. It was enacted by Magna Carta that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually diminished by subinfeudation until the passing of the Statute of Quia Emptores. Alienation by a tenant-in-chief of the crown without licence was a ground of forfeiture until 1327, when a fine was substituted.
The influence of local custom upon the land law must have become weakened after the circuits of the judges of the King's Court were established by Henry II. Jurisdiction over litigation touching the freehold was taken away from the lord's courts in 1392.
The common law as far as it dealt with real estate had in the main assumed its present aspect by the reign of Henry III. The changes which have been made since that date have been chiefly due to the action of equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of parliament. The most important influence of equity has been exercised in mortgage and trusts in the doctrine of specific performance of contracts concerning real estate, and in relief from forfeiture for breach of covenant.
Real estate legislation
The reign of Edward I is notable for three leading statutes, all passed in the interests of the superior lords. The 1279 the Statute of Mortmain was the first of a long series directed against the acquisition of land by religious and charitable corporations. In 1285 the statute De Donis Conditionalibus forbade the alienation of estates granted to a man and the heirs of his body, which before the statute usually became on the birth of an heir at once alienable, and so the lord lost his escheat. The statute Quia Emptores preserved those rights of the lords which were up to that time subject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord of the fee as the alienor. Since 1290 it has been impossible to create an estate in fee-simple to be held of a mesne lord, or to reserve a rent upon a grant of an estate in fee (unless in the form of a rent-charge), or to create a new manor. The statute, however, does not bind the crown. The practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal transaction. The writ of elegit was introduced by the Statute of Westminster II in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation.
From 1290 to the reign of Henry VIII, there is no statute of the first importance dealing with real estate. The reign of Henry VIII, like that of Edward I, is signalized by three acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses, intended to provide against secrecy of sales of land. As a necessary sequel, the Statute of Enrollments required all bargains and sales of land be duly enrolled. Bargain and sale was a form of equitable transfer which had for some purposes superseded the common law feoffment. It applied only to estates of inheritance and not to terms of years. The unforeseen effect of the act of 1535, Enrolment of Bargains of Lands, etc. was to establish as the ordinary form of conveyance until 1841 the conveyance by lease and release. Uses having become legal estate by the Statute of Uses, and therefore no longer devisable, the Statute of Wills (explained by the Wills Act of 1542) was passed to remedy this inconvenience. At least as late as 1911, it remained law as to wills made before 1838.
In the reign of Elizabeth the Fraudulent Conveyances Act 1571 and 1584 avoided fraudulent conveyances as against all parties and voluntary conveyances as against subsequent purchasers for valuable consideration. Early in the reign of Charles II the Tenures Abolition Act 1660 turned most feudal tenures into tenure by free and common socage and abolished the feudal incidents. The Statute of Frauds contained provisions that certain leases and assignments, and that all agreements and trusts relating to land, should be in writing. The land registries of Middlesex and Yorkshire date from the reign of Anne. Devises (gifts by will) of land for charitable purposes were forbidden by the Charitable Uses Act of 1735. In the next reign the first general Inclosure Act, the Inclosure (Consolidation) Act 1801, was passed. In the reign of William IV fines and recoveries were abolished and simpler modes of conveyance substituted, and the laws of inheritance and dower were amended.
In the reign of Victoria there was a vast mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act 1837. The transfer of real estate was simplified by the Real Property Act of 1845 and by the Conveyancing Acts of 1881 and 1882. Additional powers of dealing with settled estates were given by the Settled Estates Act 1856, later by the Settled Estates Act 1877, and the Settled Land Act 1882. Succession duty was levied for the first time on freeholds in 1853. The strictness of the Mortmain Act was relaxed in favour of gifts and sales to public institutions of various kinds, such as schools, parks and museums. The period of limitation was shortened for most purposes from twenty to twelve years by the Real Property Limitation Act 1874. Several acts were passed dealing with the enfranchisement and commutation of copyholds and the preservation of commons and open spaces. The Naturalization Act 1870 enabled aliens to hold and transfer land in England. The Felony Act 1870, abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Acts 1883 and 1900, and other acts, gave the tenant of a tenancy within the acts a general right to compensation for improvements, substituted a year's notice to quit for the six months' notice previously necessary, enlarged the tenant's right to fixtures, and limited the amount of distress. By the Intestate Estates Act 1884 the law of escheat was extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by legislation in the 19th century may be mentioned land transfer, registration, mortgage, partition, excambion, fixtures, taking of land in execution, declaration of title and apportionment.
The Law of Property Act 1925 was meant to reduce the number of legal estates to two, and to make easier the transfer of interests in land.
The Land Registration Act 2002 replaced previous legislation governing land registration. As of 2008[update], the Act, together with the Land Registration Rules, regulates the role and practice of HM Land Registry.
- "The relation of vassalage, originally personal, became annexed to the tenure of land" (Palgrave, Rise and Progress of the English Commonwealth, vol. i. p. 505).
- It is a disputed point whether the manor organization existed before the Conquest; but its full development seems to have been later than that event.
- 1 Edw. III. st. 2, c. 12, Fritze, Ronald H.; William B. Robison (2002-03-30). Historical Dictionary of Late Medieval England, 1272-1485. Greenwood Press. ISBN 0-313-29124-1.
- 15 Ric. II. c. 12., Jenks, Edward (2002-04-15). A short history of English law, from the earliest times to the end of the year 1911. BookSurge Publishing. p. 72. ISBN 1-4212-2199-3.
- 7 Edw. I. st. 2, c. 13
- 13 Edw. I. c. 1
- 18 Edw. I. c. 1
- 27 Hen. VIII. c. 16
- 32 Hen. VIII. c. I
- 34 & 35 Hen. VIII. c. 5
- 13 Eliz. c. 5
- 27 Eliz. c. 4
- 9 Geo. II. c. 36
- 41 Geo. III. c. 109
- Fines and Recoveries Act 1833, 3 & 4 Will. IV c. 74
- Dower Act 1833, 3 & 4 Will. IV. c. 105; Inheritance Act 1833, 3 & 4 Will. IV. c. 106.
- 8 & 9 Vict. c. 106
- 44 & 45 Vict. c. 41
- 44 & 45 Vict. c. 39
- Land Registration Rules 2003, SI 2003/1417
- Land Registration (Amendment) Rules 2005, SI 2005/1766
- Land Registration (Amendment) (No.2) Rules 2005, SI 2005/1982
- A Simpson, A History of the Land Law (2nd edn OUP 1986)
- F Pollock, The Land Laws (Freeman Press) ISBN 1-4067-2805-5
- Denholm-Young, Noel (1963-12-20). Seignorial Administration in England (New edition ed.). Routledge. ISBN 0-7146-1468-8.