Common law
The common lawso named because it was "common" to all the king's courts across Englandoriginated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, as did the universities of Oxford and Cambridge, and large landholders also held their own manorial and seigniorial courts as needed. Additionally, the Catholic Church operated its own court system that adjudicated issues of canon law.
English land law
The history of English land law can be traced into Roman times, and through the Dark Ages under Saxon monarchs where, as for most of human history, land was the dominant source of social wealth. The start of an English law of real property, however, 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. 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 Lords of the Manor. Villeins often owed as little as 4 days work in the year. Cottars or serfs, who may have composed as much as 45 per cent 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. Around 1187 Ranulf de Glanvill, King Henry II's Chief Justiciar composed the first major treatise of the common law, the "Tractatus de legibus et consuetudinibus regni Angliae", setting out the system of writs that people used to claim rights of property, and rights against one another. Glanvill himself died in the Third Crusade, and as discontent resulting from the crusades' cost grew, English barons forced King John to sign the Magna Carta 1215. This guaranteed rights of representation to the barons, but contained very little for "commoners". However, a number of clauses were extracted and expanded into the Charter of the Forest 1217, which did allow people access to common land, where people could hunt and fish for food. Over the centuries, the law expanded on the extent of common ownership. 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 all land could 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. In 1256, the second major treatise, by Henry de Bracton, "De Legibus et Consuetudinibus Angliae" set out the laws of property or "things", alongside laws of "persons" and "actions".
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. 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 go 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 bias 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 wages, and violently suppressing any uprisings, like the Peasants' Revolt in 1381. Yet this combination of factors, slowly but surely, meant that by 1485 just one per cent of the population were left in bondage. Around 1481, a judge of the Common Pleas named Thomas de Littleton produced the first treatise organised by subject rather than writs, on property law, the "Treatise on Tenures". 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." But if more people were formally free from a landlord, people's factual freedom was still constrained because they had no property themselves. More landlords were enclosing pastures that had been open for commoners to use, and destroying people's houses, especially for sheep farming. The crown, and Lord Chancellors like Sir Thomas More, had opposed this to some extent, with a series of Anti-Enclosure Acts from 1489. These required that any houses destroyed be rebuilt, but if not half the additional profits would go to the Crown. The Crown itself claimed an inherent right to any valuable metals found on land in 1568, and people who had less than four acres of land were prohibited from building homes by the Erection of Cottages Act 1588. The final, formal end of feudal land tenure in England came only after the English Civil War. When the monarchy was restored Parliament ensured with the Tenures Abolition Act 1660 that landlords' obligations of service and military provision were replaced by monetary payments and an annual payment financed by taxation.
Over the same period, behind the momentous shifts in land's social significance, legal developments in the law of property revolved around the split between the courts of common law and equity. The courts of common law (the Court of Common Pleas and the Court of the King's Bench) took a strict approach to the rules of title to land, and how many people could have legal interests in land. However, the King had the power to hear petitions and overturn cases of common law. He delegated the hearing of petitions to his Lord Chancellor, whose office grew into a court. During the crusades, landowners who went to fight would transfer title to a person they trusted so that feudal services could be performed and received. But some who survived had returned only to find that the people they entrusted were refusing to transfer title back. They sought justice with the Lord Chancellor, and his Court of Chancery determined that the true "use" or "benefit" of the land did not belong to the person on the title (or the feoffee who held seisin). Unlike the common law judges, the Chancellor held the "cestui que use", the owner in equity, could be a different person, if this is what good conscience dictated. This recognition of a split in English law, between legal and equitable owner, between someone who controlled title and another for whose benefit the land would be used, was the beginning of trust law. It was similarly useful among Franciscan friars, who would transfer title of land to others as they were precluded from holding property by their vows of poverty. Uses or trusts were also employed to avoid the payment of feudal dues. If a person died, the law stated a landlord was entitled to money before the land passed to heir, and the whole property under the doctrine of escheat if there were no heirs. Transferring title to a group of people for common use could ensure this never happened, because if one person died he could be replaced, and it was unlikely for all to die at the same time. King Henry VIII saw that this deprived the Crown of revenue, and so in the Statute of Uses 1535 he attempted to prohibit them, stipulating all land belonged in fact to the "cestui que use". However, when Henry VIII was gone, the Court of Chancery held that it had no application where land was leased. Moreover, the primacy of equity over the common law was reasserted, supported by King James I in 1615, in the "Earl of Oxford's case". The institution of the use continued, as new sources of revenue from the mercantile exploits in the New World decreased the Crown's reliance on feudal dues. By the early 18th century, the use had formalised into a trust: where land was settled to be held by a trustee, for the benefit of another, the Courts of Chancery recognised the beneficiary as the true owner in equity.
Over the 18th century, the law of real property mostly came to a standstill in legislation, but principles continued to develop in the courts of equity, notably under Lord Nottingham (from 1673–1682), Lord King (1725–1733), Lord Hardwicke (1737–1756), Lord Henley (1757–1766), and Lord Eldon (1801–1827). As national and global trade expanded, the power of a new monied class of business men was growing, and the economic and political importance of land was diminishing with it. The moral philosopher and father of economics, Adam Smith, reflected these changes as he argued in "The Wealth of Nations" that landowners position allowed them to extract rents from others in return for very little. In the 19th century, a growing liberal movement for reform produced three major results. First, there was increasing pressure to dismantle the privileges of the landed aristocracy. The most direct reform was to gradually abolition the "strict settlement", through the Settled Land Acts of 1882–1925. An owner of land could direct that property on his death would only pass down the line of his relations, thus preventing it being sold to anyone on the market. This also included the view that all land should be put on a register, so as to ease its ability to be marketed. The Land Transfer Act 1875 introduced a voluntary system, but it was not taken up. After the 1906 general election the new Chancellor of the Exchequer, David Lloyd George, in his People's Budget of 1909 introduced a tax on land to force it onto the market. This provoked a constitutional crisis, as the hereditary House of Lords vetoed it, forcing fresh elections. But the Liberal government was returned and it abolished the Lords right of veto in the Parliament Act 1911. By then, land registration reforms were a minor political issue and only really opposed by solicitors who earned sizeable conveyancing fees. Eventually, the Land Registration Act 1925 required any dealing with property triggered compulsory registration. Second, the Court of Chancery, though it may have mitigated the petty strictnesses of the common law of property, was seen as cumbersome and arcane. It was subjected to ridicule in books like Charles Dickens' "Bleak House" and his fictional case of "Jarndyce v Jarndyce", a Chancery matter that nobody understood and dragged on for years and years. Largely this was because there were only two judges administering equitable principles, so from 1873 to 1875, the common law and equity courts were merged into one hierarchy. Under the Supreme Court of Judicature Act 1875, equitable principles would prevail in case of conflict. Third, in most counties and boroughs, the ability to vote for members of parliament had been tied to possession of property in land. From the Great Reform Act 1832, to the Reform Act 1867, and the Representation of the People Act 1918, the connection between property and the vote was gradually reduced and then abolished. Together with the Parliament Act 1911, a more democratic constitution had emerged, though it was only in 1928 that the voting age for men and women became equal and only in 1948 that the double votes and extra constituencies for graduates of English and Welsh universities were removed. By the end of the First World War, the power of the old landed aristocracy had largely been broken.
Over the twentieth century, land law became increasingly social in character. First, from the Housing Act 1919 and the post war government's policy of building "homes fit for heroes" more and more houses were built, and maintained, by local governments. In private accommodation, new rights were enacted for tenants against their landlords, with some security of tenure and rent regulation, a break on unfettered "freedom of contract". The policy was halted by the Housing Act 1980, which sought to privatise properties by introducing a "right to buy" one's council home. At the same time, rights for tenants, and constraints on rental increases were reduced, albeit that tenants did retain some minima of rights, for example under the Landlord and Tenant Act 1985 and the Protection from Eviction Act 1977. Second, property was increasingly used as a source of finance for business, and similarly became source of profit for banks, mortgage lenders and real estate investment trusts. This fact drove changes in the market for mortgage regulation, while the growing financial interest in land tended to conflict with family life. As the UK came closer to gender equality, women as much as men contributed to the purchase of homes, as well as contributing to raising families and children. In 1970, in "Pettitt v Pettitt", Lord Diplock remarked that "the wider employment of married women in industry, commerce and the professions and the emergence of a property-owning, particularly a real-property-mortgaged-to-a-building-society-owning, democracy" had compelled courts to acknowledge contributions to the home and family life as potentially generating proprietary interests. However, if banks sought to repossess homes from people who had defaulted on mortgage repayments, the courts were faced with a choice of whether to prefer those economic interests over social values. The membership of the United Kingdom in the European Convention on Human Rights meant that article 8, on the right to a private and family life, could change the freedom of banks or landlords to evict people, particularly where children's stability and upbringing were at stake, though by the early twenty-first century the case law had remained cautious. Third, land use in general was subject to a comprehensive regulatory framework. The old common laws between neighbours, of easements, covenants, nuisance and trespass were largely eclipsed by locally and democratically determined planning laws, environmental regulation, and a framework for use of agricultural resources.