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AN INTRODUCTION

TO

THE HISTORY

OF THB

LAW OF REAL PROPERTY

WITH ORIGINAL AUTHORITIES

BY

KENELM EDWARD DIGBY, M.A.,

Of Lincoln's Inn, Barrister-at-Law,
Late Yinerian Reader in English Law, and formerly Fellow of Corpus Christi College
in the University of Oxford

SECOND EDITION

AT THE CLARENDON PEESS

M DCOO LXXVI

V \

[All rights reserved]

PEEFACE TO THE FIEST EDITION.

My object in undertaking this work was to attempt in some degree to supply a want which at present greatly impedes the study of English law at the Universities. There is no really elementary work on the English law of real property adapted for the use of students who have not and may never have any practical experience in the working of the law. Almost all elementary books have been written from the professional rather than the educational point of view; excellent as many of them are as introductions to a practical knowledge, of law, they are scarcely available for purposes of legal education at an University. Blackstone's treatise stands almost alone in adequately satisfying both demands. It has been the fashion of late to dwell on the defects rather than on the merits of that great work, and there are obvious reasons why it fails to satisfy the requirements of the present time. Nevertheless Blackstone still remains unrivalled as an expositor of the law of his day. Throughout the following pages his work is referred to as at once the most available, and the most trustworthy authority on the law of the eighteenth century.

In considering the mode in which the elementary principles of the important branch of English law, which is the subject of this treatise, can best be dealt with, there can be little question that it is necessary to begin by sketching the history and development of rights over land. Hardly one of the main classifications of these rights which is recognised at the present day—the distinction, for instance, between the legal and the equitable interest, the notion of an estate in lands with its consequences, as distinct from property in things personal, the distinction between freehold, leasehold, and copyhold tenure—can be explained without tracing if possible the origin, at all events the development, of the conceptions on which they are based. It seems therefore necessary to start from the earliest elements of English law, and to trace the development by the action of the tribunals and of legislation of the germs which are found in- our earliest authorities, till we are at last enabled to give something like a systematic classification of the congeries of ancient custom and mediaeval and modern innovation called the law of real property. It seems best, in the first instance, to trace the growth of the law chronologically till the period is reached at which the structure has attained its permanent features, when an attempt may be made to arrange its various branches systematically; it being always borne in mind that the nature and attributes of the various classes of rights are to be accounted for by reference rather to their history than to any principles of jurisprudence. This stage in the history of English law appears to me to have been reached before the reign of Henry VIII. I have attempted in the Appendix to Part I, Tables I, II, and III, to arrange systematically the main branches of the law of land as it stood at the commencement of this reign. It will be seen that much of this classification is taken from Blackstone, who followed one of the greatest of English lawyers, Sir Matthew Hale.

In the arrangement summarised in Table I, as will be seen, I am largely indebted to Mr. John Austin's Lectures on Jurisprudence. The remarkable analysis of juristic conceptions which he instituted, but unfortunately left incomplete, is, as it seems to me, a KTtjpa is ael; it is, in great part, work done which must enter largely into the basis of any attempt to recast English law on true principles of systematic arrangement.

Part II of this work treats mainly of the growth of the two branches of the law of real property which are of the greatest importance in modern law, the history and development of Uses and Trusts, and of Wills of land. The former is perhaps the most curious and important chapter in the history of the law of land. The extreme technicality of our modern law, the mysteries of conveyancing, and the anomalous opposition of Equity and Law, are mainly due to the unhappy piece of legislative reform called the Statute of Uses. It is this Statute, with the marvellous interpretations to which its provisions have been subjected, which renders any real simplification of the law of real property impossible, without a more thorough rebuilding of the whole structure from its foundations, and entire substitution of a systematic or scientific for a historical classification, than is at all likely to be undertaken at present. Here, therefore, it is necessary to pursue the same method as in Part I, and to attempt first to trace the development of the law, and then to summarise and arrange it under the principal classes which are due to the historical causes whose action has been discussed. This I have attempted to do in the last chapter on 'Titles.'

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