10 - Historical Introduction to the common law and the English "law on property".

Why no Roman law in England?

England had a centralised government and judiciary from the 12th century.

• Producing a strong customary law (common law), so Roman law wasn’t needed.

What were the legal consequences of William the Conqueror’s victory in 1066?

1. Feudal Land Tenure introduced - Structured society around land-for-service.

2. Centralised Judiciary - Uniform common law across England.

Feudalism

All land belonged to the king, and everyone else held it in exchange for services or loyalty, creating a strict legal hierarchy of land rights.

Who was the overlord in feudalism?

The person (often a king or noble) who owned the land and granted rights of use (fiefs) to vassals in exchange for loyalty, services, or military support.

Who was a vassal?

Someone who received a fief from an overlord and owed loyalty, services, or military aid.

What is a fief?

Land or a right granted by an overlord to a vassal (Not Full Ownership).

• Not full ownership, but a right to use and benefit from it.

What is a subvassal and subinfeudation? (Pyramid)

A vassal could grant part of their fief to another vassal (subvassal), creating a pyramid of feudal obligations while the original overlord retained ultimate ownership.

• A hierarchical system where all land was held from someone above, ending with the king; created legal unity and centralized control over land law.

How did a typical feudal pyramid look in practice?

A vassal held land from a superior, who held it from another lord, continuing up to the king, creating multiple layers of legal and feudal obligations.

“Nulle terre sans seigneur”

“No land without a lord.” It emphasises that every piece of land had an overlord, establishing a structured feudal legal hierarchy.

What legal rights did a vassal have over a fief? (Quasi-ownership)

Vassals could:

• Protect the land against third parties

• Enforce easements,

• Act as if they were the owner, but ultimate ownership remained with the overlord.

How did feudalism shift from a personal to a real relationship?

Initially, a personal loyalty (vassal to overlord), it evolved into a relationship tied to land (fief).

• Rights and duties attached to the land, not just the person.

Were fiefs originally permanent?

No

• They were tied to the life of the vassal; over time, many became hereditary, allowing the right of use to pass to descendants.

How did Henry II centralize the English judiciary?

By introducing traveling royal courts, expanding their powers, and establishing permanent courts in Westminster (Common Pleas, King’s Bench, Exchequer).

Why was the centralization of courts important for English property law?

Uniform application of law

• Development of common law, procedural consistency, and trial by jury.

How did common law develop and stay well-established?

1. Publication of judgements in Yearbooks

2. Training in Inns of Court

Why was equity created and what is it?

To remedy rigid or unfair common law outcomes.

• Administered by the Lord Chancellor, based on aequitas, maxims, and conscience.

Key Maxims of Equity

• Equity will not suffer a wrong to be without a remedy

• Equity will not assist a bad conscience

• Equity acts in personam

• Equity follows the law

• Equity treats as done what ought to be done

What did the Juricature Acts of 1873-1875 do?

Merged common law and equity courts into a single system.

• Courts can apply both

Role of legislation in English private law

It complements the common law, often codifies existing rules, and does not change common law unless explicitly stated.

What is the “presumption against alteration of the law”?

Statutes are assumed not to modify the common law rules unless the legislator explicitly states otherwise.

Why was there no codification of law in England?

• No “enlightened despot” central authority

• No political/legal need (common law already provided unity)

• Many reforms were already achieved in practice

In English private law, what are the sources of law?

1. Common law (judicially developed)

2. Equity (Chancery, remedies where common law fails)

3. Statutes/legislation (complementary, codifying, limited role)

Obviously remember Parliamentary Sovereignty!!

What are the main differences between Roman ownership and English common law ownership?

• Roman law: universal, absolute, clear ownership vs possession.

• English common law: split into real (land) and personal (movables) property, ownership not absolute, ownership vs possession blurred.

Why does English law split property into real and personal?

Medieval civil procedure had different legal actions:

• Real actions for land

• Personal actions for movables → fundamental split.

How did feudalism influence English real property law?

King owns all land:

• Vassals have rights of use (estates), not full ownership. Many estates exist with limited duration, except fee simple.

What is the difference between owning an estate and owning land in English property law?

You own the estate (the right of use), but not the land itself, which ultimately belongs to the Crown.