An Introduction to the History of the Land Law

By A. W. B. Simpson | Go to book overview

I
Tenure

EVEN today the two most striking doctrines of the land law, at least on first acquaintance, are the doctrines of tenure and of estates. Modern writers are at pains to warn the student of the comparative unimportance of tenure in the modern law, and point to a series of statutes which have eliminated from our law almost all the direct effects of the tenurial relationship of lord and tenant, and reduced the types of tenures which can still exist Indeed, so unimportant have tenures become that nobody quite knows what sorts of tenure can still exist, and in practice this matters not at all.1 But although the importance of tenures is now minimal, the basic doctrine of tenure is still with us; all land whatsoever is held, mediately or immediately, of the Crown.2 Intimately connected with this rule is the doctrine of estates, whose development, in part at least, was forced upon the common lawyers by the theoretical difficulties raised by the doctrine of tenure. The doctrine of estates too is still with us, though in a guise which would hardly be intelligible to a medieval lawyer. But although the fundamental nature of these two doctrines is avowed in the leading modern textbook on Real Property,3 estates no longer have the fascination that once they had, and tenure is little discussed. The emphasis of the modern law passes both doctrines by, and rightly so. If we go back into the history of the land law the emphasis changes. In the eighteenth and early nineteenth centuries the ablest property lawyers are concerned to work out the subtleties of the rules governing the limitation of estates;4

____________________
1
Megarry and Wade, Real Property, p. 34, note 78. Cf. Cheshire, Real Property, p. 82.
2
The doctrine that all land is owned by the Crown is a modern one; it is quite misleading. See below p. 44.
3
Megarry and Wade, Real Property, p. 15.
4
Thus the two great books of the period are Fearne's Essay on the Learning of Contingent Remainders and Executory Devises ( 1772) and Preston's An Elementary Treatise on Estates ( 1791).

-1-

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