An Introduction to the History of the Land Law

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

II
The Real Actions

THE Common law of land grew up around the forms of action1 which brought litigation concerning land before the Royal justices, and thus enabled them to begin to impose a uniform system of rules of landholding upon the whole realm; eventually in this century the Legislature has completed the task, and local customary departures from the common law have been all but totally extinguished. In the period immediately following the Conquest the scope of Royal jurisdiction, and therefore of the common law, was probably extremely narrow. Amongst the duties of the feudal lord was the duty to hold a court for his tenants, in which their disputes could be determined. What was a duty was also conceived to be a right; the administration of justice was a profitable business, and to deprive a lord of his court was to usurp a property right which he would not wish to lose. Primarily, then, it was the duty of the King to hold a court for his tenants, the tenants in chief, and not to usurp their functions by meddling with the disputes of lesser tenants.

Had this theory (if one can call it such) been maintained there could have been no common law as we know it. The earliest inroad into it is first stated by Glanvil.2 He states as a customary rule the principle that no man need answer in any court for his freehold land unless commanded to do so by the King's writ.3 This rule was probably based upon two vague but

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1
For an elementary account see Maitland, Foms of Action. The early history of the writ system has been greatly illuminated by R. C. Van Caenegem's Royal Writs in England from the Conquest to Glanvil, Selden Society, Vol. 77, which has superseded much earlier work on the subject.
2
Glanvil's Tractatus de Legibus et Consuetudinibus Regni Angliae was written c. 1187. The only modern edition (untranslated) is by Woodbine; a new edition with translation is in course of preparation. Those who need a translation should use that of Beames, published in 1812, which is available in some libraries. For an account of the book see Plucknett, Early English Legal Literature, Ch. 2.
3
For the scope and history of this rule see Selden Society, Vol. 77, pp. 212-31. The rule was enacted in the Provisions of Westminster ( 1259), c. 18, and again in the Statute of Marlborough ( 1267), c. 22.

-24-

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