An Introduction to the History of the Land Law

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

V
Incorporeal Things

ANALYSTS have always been unhappy about the propertylawyer's classification of hereditaments into corporeal and incorporeal; their unhappiness is quite misplaced, for the classification represents a perfectly sensible distinction, though perhaps the distinction could be better expressed, and indeed more fully elaborated. But different writers have adopted different criteria for drawing the distinction, and thus the subject is beset with difficulty.1 The basis of the subtle analyses of later theorists is to be found in Bracton, who took the distinction between res corporales and res incorporales from Roman writers, and attempted to use it to provide a framework for describing a heterogeneous collection of rights which were recognized in contemporary law. The difficulty which confronted him may best be seen if we consider the content of some of these rights.


Examples of Incorporeal Things

A person might have the right to present a clerk to a vacant church -- this was an advowson. A person might have a seignory as lord of land of which another man was seised in demesne, and this seignory comprised a whole bundle of rights to services, to feudal incidents, and to jurisdiction. A person might have a right to sustenance from a religious institution -- this was called a corody. A person might have a right, in common with others, to pasture his beasts upon the land of another -- a common of pasturage. This by no means completes the list.2 Now contemporaries, and the lawyers who had to develop some law about these valuable rights, talked and thought of them as things, rather than as rights. No doubt they were quite conscious that

____________________
1
For discussions see Challis, Real Property, Ch. V, and the note by Sweet at p. 52; cf. Williams, Real Property, pp. 30-32, and Megarry and Wade, Real Property, pp. 751-6.
2
See Pollock and Maitland, II, pp. 124-49.

-97-

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