The history of English land law can be traced back to Roman times. Throughout the Early Middle Ages, where England came under rule of post-Roman chieftains and Anglo-Saxon monarchs, land was the dominant source of personal wealth. English land law transformed further from the Anglo-Saxon days, particularly during the post-Norman Invasion feudal encastellation and the Industrial Revolution. As the political power of the landed aristocracy diminished, modern legislation increasingly made land a social form of wealth, subject to extensive social regulation such as for housing, national parks and agriculture.
Roman law
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.
Anglo-Saxon law
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 England was an anticipation of the limited interests which afterwards became of such importance."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).
Such terms as "fee" or "homage" derive from 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.
Norman feudalism
The formal start of an English law of real property came after the Norman Invasion of 1066 when a common law was built throughout England. The new king, William the Conqueror, started standardising England's feudal rules, and compiled a reference for all land and its value in the Domesday Book of 1086. This was used to determine taxes, and the feudal dues that were to be paid. Feudalism meant that all land was held by the monarch. Estates in land were granted to lords, who in turn parcelled out property to tenants. Tenants and lords had obligations of work, military service, and payment of taxation to those up the chain, and ultimately to the Crown. Most of the peasantry were bonded to their masters. Serfs, cottars or slaves, who may have composed as much as 88% of the population in 1086, were bound by law to work on the land. They could not leave without permission of their Lords. But also, even those who were classed as free men were factually limited in their freedom, by the limited chances to acquire property. The Commons Act 1236 allowed the Lord of a Manor to enclose any manorial land that had previously been common, and the Statute of Westminster 1285 formalised the system of entail so that land would only pass to the heirs of a landlord. The Statute Quia Emptores Terrarum 1290 allowed alienation of land only by substitution of the title holder, halting creation of further sub-tenants. The civil liberties of the Magna Carta of 1215, and its reissue in 1297, were only meant for barons and lords, while the vast majority of people were poor, subjugated and dispossessed.
Breakdown of serfdom
Feudalism had not always been a part of English society, rather than being positively imposed by the monarchs prior to the Norman Invasion. However, from 1348 everything changed as the Black Death swept through Europe, killing a third of the population. People like the poet Geoffrey Chaucer had seen subservience as part of a natural social order, ordained by God.G Chaucer, The Canterbury Tales (1400) The Parson's Tale, §68 But if landowners had themselves survived the plague, the peasants' labour on the land had become very scarce. Ironically, the surviving peasants were in a greater position of economic power, in claims or bargaining for wages. Feudalism began to break down. First, serfs could undergo "commutation", where the lord simply agreed to accept money rents from tenants instead of labour services. This did not mean freedom itself, but abandoning forced labour and payments in kind to landlords meant the open evidence of servility was concealed. In disputes, royal courts were increasingly biased toward declaring a peasant was free. Second, through an act of manumission lords could voluntarily grant freedom and this was increasingly done, after the plague, if the serf or a relative made a payment of money. Third, the common law stated that if a serf lived on free soil, as in a chartered town or Royal demesne land, for a year and a day, they would become free. The nobility and the King reacted to the rising bargaining power of the peasantry by fixing wagesOrdinance of Labourers 1349 and Statute of Labourers 1351. See UK labour law. and violently suppressing any uprisings, like the Peasants' Revolt in 1381.J. Froissart, The Chronicles of Froissart (1385) translated by G. C. Macaulay (1895), pp. 251–252 Yet this combination of factors, slowly but surely, meant that by 1485 just one percent of the population were left in bondage.A. Abram, Social England in the Fifteenth Century (1909), p. 76. Formal subservience was increasingly seen as a social scar. In 1523 Justice Anthony Fitzherbert wrote that the remainder of bondmen was "the greatest inconvenience that now is suffred by the lawe".A. Fitzherbert, Surueyenge (1546), p. 31. "Howe be it in some places the bondmen continue as yette, the whiche me semeth is the greatest inconvenience that nowe is suffred by the lawe. That is to have any christen man bounden to an other, and to have the rule of his body, landes, and goodes, that his wyfe, children, and servantes have laboured for, all their life tyme, to be so taken, lyke as it were extorcion or bribery."
Feudal tenures By the time of the Norman Conquest, elements of feudalism existed in England from the rule of the Anglo-Saxon and Danish kings to the degree that it was easy to introduce it in full. 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. 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.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. 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 , , or , and later or , the last name being applied to both free men and serfs. All these were in a more or less dependent condition. though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures were to a certain extent represented by copyhold in later centuries until final abolition in 1925.