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A Concise History of the Common Law

Theodore Plucknett

Publication Year: 2012

As always during its long history, English common law, upon which American law is based, has had to defend itself against the challenge of civil law's clarity and traditions. That challenge to our common law heritage remains today. To that end, Liberty Fund now makes available a clear and candid discussion of common law. A Concise History of the Common Law provides a source for common-law understanding of individual rights, not in theory only, but protected through the confusing and messy evolution of courts, and their administration as they struggled to resolve real problems. Plucknett's seminal work is intended to convey a sense of historical development—not to serve merely as a work of reference.The first half of the book is a historical introduction to the study of law. Plucknett discusses the conditions in political, economic, social, and religious thought that have contributed to the genesis of law. This section is a brief but astoundingly full introduction to the study of law.The second half of the book consists of chapters introducing the reader to the history of some of the main divisions of law, such as criminal tort, property, contract, and succession. These topics are treated with careful exposition so that the book will be of interest to those just embarking on their quest in legal history while still providing enough substantial information, references, and footnotes to make it meaningful for the well-versed legal history reader.Theodore F. T. Plucknett (1897-1965) was an English legal historian. At twenty-six, he was appointed by Roscoe Pound as professor of legal history at Harvard Law School.

Published by: Liberty Fund

Title Page, Copyright

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pp. 2-5

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PREFACE TO THE FIFTH EDITION

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pp. v-vi

THE decision of the publishers to reprint this work in a larger type will have made it easier for the reader to use it, I hope; it has also made it possible to effect a good deal of revision. No new subjects have been added, however, for the object of the work has always been to treat...

CONTENTS

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pp. vii-ix

TABLE OF MEDIAEVAL CASES

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pp. xi-xv

TABLE OF MODERN CASES

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pp. xvii-xviii

TABLE OF LAWS AND STATUTES

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pp. xix-xxvi

BOOK ONE. A GENERAL SURVEY OF LEGAL HISTORY

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pp. 1-28

PART 1. THE CROWN AND THE STATE

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pp. 1-28

SUMMARY

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pp. 2-29

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A GENERAL SURVEY OF LEGAL HISTORY

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pp. 3-5

Legal history is a story which cannot be begun at the beginning. However remote the date at which we start, it will always be necessary to admit that much of the still remoter past that lies behind it will have to be considered as directly bearing upon the later history. Moreover,...

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CHAPTER 1. THE ANGLO-SAXON PERIOD: RACES AND RELIGION

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pp. 6-10

While this was happening at the heart of the Empire, many of the outskirts were witnessing a process such as went on in Britain. The conquest of Gaul inevitably drew the attention of Roman generals to Britain, whose population had intimate ties of race, language and sympathy...

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CHAPTER 2. THE CONQUEST TO HENRY II: THE BEGINNINGS OF ADMINISTRATION

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pp. 11-19

The greatest result of the Norman Conquest was the introduction of precise and orderly methods into the government and law of England. The Norse invaders who had settled in Normandy had made it in a century and a half (911-1066) the best-ruled state in Europe, and the...

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CHAPTER 3. THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION

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pp. 20-26

Henry II was followed successively by his sons Richard I (1189-1199) and John (1199-1216), and his grandson Henry III (1216-1272). During these reigns every sort of strain was placed upon the administration and upon the infant common law. It is a great tribute to his work that...

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CHAPTER 4. EDWARD I TO RICHARD II: STATUTES AND SOCIAL REVOLUTION

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pp. 27-34

We now come to a period of steady growth in the common law covering just over a century and a quarter (1272-1399). The reign of Edward I is marked by one of the greatest outbursts of reforming legislation in English history until the nineteenth century.1 The first...

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CHAPTER 5. THE FIFTEENTH CENTURY: THE PROBLEM OF ENFORCEMENT

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pp. 35-38

Henry IV, who began the line of Lancaster in 1399, together with his descendants, Henry V and Henry VI, were all under the same disability, that is to say, kings by a doubtful title. They were therefore dependent to a large extent upon the series of family alliances and political...

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CHAPTER 6. THE TUDORS: RENAISSANCE~ REFORMATION AND RECEPTION

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pp. 39-47

The house of Tudor came to the throne with the accession of Henry VII after the battle of Bosworth in 1485, and ruled England during one of its most brilliant periods, the sixteenth century, until the death of Queen Elizabeth in 1603. It was the golden age of literature,...

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CHAPTER 7. THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW

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pp. 48-64

The seventeenth century was an age when conscious and deliberate political theory entered the arena of practical politics. At the same time there were undoubtedly important economic factors which played a large part in the conflict. Religion also added endless complications...

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CHAPTER 8. THE EIGHTEENTH CENTURY: INDUSTRIAL REVOLUTION

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pp. 65-72

The eighteenth century is the great dividing line in English economic development between mediaeval and modern times. The central point in its history is usually referred to as the industrial revolution, which was rather, in point of fact, a long and slow process which began to accelerate...

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CHAPTER 9. THE NINETEENTH CENTURY: LIBERALISM AND REFORM

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pp. 73-76

At length, the end of the Napoleonic war brought some relief from the political tension, and a wave of constitutional and legal reform swept away many ancient institutions which had long survived their usefulness....

PART 2. THE COURTS AND THE PROFESSION

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pp. 77-104

SUMMARY

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pp. 78-105

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THE COURTS AND THE PROFESSION

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pp. 79-82

Compared with the courts of Westminster the local tribunals of the county and the hundred are centuries more ancient, and have a past stretching back to pre-Conquest days. Into the great questions of the ultimate origin of the county and the hundred courts, which in the...

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CHAPTER 1. THE COMMUNAL COURTS

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pp. 83-94

Beginning at the very bottom of the scale, the lowest institution we find is the vill or township.1 It is moreover the most complicated and obscure. Its history was possibly different in different parts of the country and is extremely difficult to disentangle from that of certain...

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CHAPTER 2. SEIGNORIAL JURISDICTION

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pp. 95-100

Besides all this there is the second aspect of the courts we have just described, namely, the effect upon them of the local territorial magnate. Here we come to an extremely obscure and difficult subject. The sources of the authority of a great lord or baron can usually be traced...

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CHAPTER 3. THE CROWN AND LOCAL COURTS

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pp. 101-105

For all that, the Anglo-Saxon Crown did begin a policy of establishing connections with local institutions, and, as far as circumstances permitted, of exercising some sort of control over them. The shire or county, as we have said, frequently represented an ancient petty kingdom...

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CHAPTER 4. THE JURY

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pp. 106-138

It is in this complicated interplay of royal and local institutions that the origins of the jury are to be sought; so we can now appropriately tum from the study of the vill and the hundred to the growth of the system of presentment which was so prominent a part of their constitution,...

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CHAPTER 5. THE ORIGINS OF THE CENTRAL COURTS

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pp. 139-156

During the Anglo-Saxon age there was nothing which could be described as a central royal court of law, although there were certainly central royal institutions. Their formation is the product of two elements, the one being the royal household and the other the national...

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CHAPTER 6. THE ELABORATION OF THE JUDICIAL SYSTEM: 1307-1509

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pp. 157-169

The last chapter has briefly told the beginning of a long story. When once the superior courts had come into existence there still remained the question whether they would continue upon the course which they had begun....

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CHAPTER 7. THE TUDORS AND THE COMMON LAW COURTS

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pp. 170-175

As the last chapter has shown, the fourteenth and fifteenth centuries were devoted to consolidating the monopoly enjoyed by the common law courts. In criminal justice alone did they allow developments to take place outside the system, and no doubt the reason was that the...

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CHAPTER 8. THE RISE OF THE PREROGATIVE COURTS

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pp. 176-190

The previous chapter has told only half the story of Tudor reform in the sphere of law, for besides the common law courts the Tudors also inherited a group of institutions which modern historians describe as prerogative courts. The ancient common law courts had been consecrated...

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CHAPTER 9. PREROGATIVE, EQUITY AND LAW UNDER THE STUARTS

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pp. 191-198

Many different movements contributed to the great crisis which dominates the Stuart period, and not all of them can be considered here. Economic movements enhanced the cost of government, although the revenue of the Crown was much less elastic. A fiscal crisis was therefore...

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CHAPTER 10. PARLIAMENT AND THE PRIVY COUNCIL

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pp. 199-206

The seventeenth and eighteenth centuries saw little change in the judicial system after the Restoration. The year 1660 was reckoned the twelfth year of the reign of Charles II. which theoretically began with the execution of Charles I. The stormy period of the Interregnum...

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CHAPTER 11. THE COURTS IN THE NINETEENTH CENTURY

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pp. 207-214

The nineteenth century is occupied almost continuously with changes in the judicial system, many of them individually of slight extent, and in the earlier half uncertain of their ultimate aim. In the middle of the century the experience obtained was sufficiently definite to make it...

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CHAPTER 12. THE LEGAL PROFESSION

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pp. 215-230

It is very difficult to say at what date professional lawyers first appear in the common law system. We could hardly expect to find them until there was a settled jurisdiction with regular courts; and, as we have seen, it took some time before these elementary conditions were reached....

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CHAPTER 13. THE GROWTH OF THE JUDICIARY

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pp. 231-251

Amid all these changes, one thing remained constant, and that was the immense influence exercised by the judges, which was all the greater in view of the fact that before reaching the bench they had already achieved distinction at the bar, either as serjeants or barristers and...

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CHAPTER 14. PROFESSIONAL LITERATURE

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pp. 252-289

"Legal precepts and legal institutions are far from being all with which we have to do. Indeed, in the everyday administration of justice, along with legal precepts, the traditional art of the lawyer's craft-the traditional mode of selecting, developing, and applying the received legal materials, the ttaditional technique of...

PART 3. SOME FACTORS IN LEGAL HISTORY

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pp. 291-318

SUMMARY

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pp. 292-319

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SOME FACTORS IN LEGAL HISTORY

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pp. 293-320

In Part I of this general survey we have placed the law in its environment of national life as a whole. We have seen its early dependence on the crown, its gradual separation from royal administration, and its final assumption of an independent position in the state, as a result of...

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CHAPTER 1. THE CIVIL LAW OF ROME

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pp. 294-300

For twenty-five centuries Roman law has had a continuous history of which only a relatively small portion lay in the middle ages or influenced English legal development. Into this complicated story we cannot enter. As Vinogradoff said, "The story I am about to tell is,...

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CHAPTER 2. THE CANON LAW OF THE CHURCH

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pp. 301-306

We have already casually referred to the growth of Church organisation which accompanied the decline of the Roman Empire.1 For a time it seemed as though the Church was the only body which could carry on the ancient tradition of universal law. The sources, both...

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CHAPTER 3. CUSTOM

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pp. 307-314

The conditions of society, and men's attitude towards them, are slowly but constantly changing, and the law must do its best to keep in harmony with contemporary life and thought. The law, too, must therefore change, and one of the most instructive aspects of legal history...

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CHAPTER 4. LEGISLATION

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pp. 315-341

At the present day the most powerful instrument for legal change in the hands of the State is legislation. Every modern nation possesses one or more legislatures--in America, over four dozen--which are all extremely active. Immense quantities of statute law are produced every...

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CHAPTER 5. THE PRINCIPLE OF PRECEDENT

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pp. 342-350

The common law in its ultimate origin was merely the custom of the King's courts; the regular routine which they developed in the administration of justice became settled and known, and therefore served as the basis upon which people could forecast with some certainty the future...

BOOK TWO. SPECIAL PART

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pp. 351-378

PART 1. PROCEDURE

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pp. 351-378

SUMMARY

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pp. 352-379

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CHAPTER 1. THE FORMS OF ACTION

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pp. 353-378

The forms of action are in themselves a proof that the King's Court only intended to intervene occasionally in the disputes of his subjects. It was no doubt possible to argue with perfect justice that the country was well provided with competent courts for all ordinary purposes,...

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CHAPTER 2. CIVIL PROCEDURE

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pp. 379-398

It is universally observed that in old legal systems the place of procedure is especially prominent. In general, this is true. In repeating that statement, however, it should be added that procedure is by no means negligible even in modern law, and that if the observation is to be...

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CHAPTER 3. PLEADING

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pp. 399-418

In the well-known words of Littleton1 in his advice to bis son, " it is one of the most honourable, laudable. and profitable things in our law to have the science of well pleading in actions real and personal; and therefore I counsel thee especially to employ thy courage and care to...

PART 2. CRIME AND TORT

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pp. 419-446

SUMMARY

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pp. 420-447

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CRIME AND TORT

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pp. 421-423

The distinction between cdminal and civil law has been a commonplace with English lawyers for over seven hundred years. Glanvill began his treatise with the remark that " some pleas are criminal. and some are civil ".1 Already, then, the distinction in practice is of a procedural...

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CHAPTER 1. CRIMINAL PROCEDURE

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pp. 424-441

In very general terms, the history of criminal procedure seems to follow this course. First, it is almost entirely in the hands of the injured party and his opponent, and takes place in local courts. Then the influence of the Crown makes itself felt, beginning with a cautious list of...

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CHAPTER 2. THE FELONIES

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pp. 442-454

Even in Anglo-Saxon times, as we have seen, the Crown began to establish a list of pleas over'which it had particular rights. Some of these became, after the Conquest, felonies. Not all of them, however; the breach of the King's peace, for example, became steadily less serious...

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CHAPTER 3. MISDEMEANOURS, TRESPASS AND TORT

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pp. 455-462

Anglo-Saxon law knew neither felony or misdemeanour. In so far as it classified crimes at all, it was into " emendable" and "botless " crimes, and the latter became in most cases the felonies of later law. Even after the Conquest the idea of hatless crimes still flourished, and...

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CHAPTER 4. LIABILITY, CIVIL AND CRIMINAL

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pp. 463-482

For reasons we have already mentioned, it is impracticable to speak of our early law in terms of a distinction between crime and tort. This observation becomes necessary once more in tracing the history of liability, for such few principles as there were had been derived from...

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CHAPTER 5. DEFAMATION

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pp. 483-502

There are few chapters in our legal history which illustrate so many different aspects of historical development as does the history of defamation. Germanic elements, Roman elements, the rise and fall of courts, constitutional conflicts, mechanised printing, and later still mechanised...

PART 3. REAL PROPERTY

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pp. 503-530

SUMMARY

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pp. 504-531

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REAL PROPERTY

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pp. 505-532

Real property law has been the battle-ground in most of the great struggles in our history. One of the bitterest conflicts between Church and State arose out of Henry II's determination that patronage was " lay fee ", that is to say, real property amenable to the jurisdiction of...

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CHAPTER 1. FEUDALISM

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pp. 506-515

It is universally admitted that the great historical feature of our law of real property is its feudal character, and that in order to understand the reasons which brought about a good many doctrines of real property law it is necessary to regard the matter from the feudal point of view....

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CHAPTER 2. FEUDALISM IN ENGLAND

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pp. 516-520

These, then, were the general features of feudal development on the continent, subject, it will be understood, to an infinite variety in detail as one passes from district to district. Life was as varied then as now, perhaps even more so, and every local territory pursued its own history...

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CHAPTER 3. INHERITANCE AND ALIENABILITY

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pp. 521-530

Numerous attempts have been made to discover the origin of property in land, but unfortunately they have in many cases been prompted by political or economic prepossessions, with the result that the discussions upon this subject are by no means always good examples of scientific...

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CHAPTER 4. TENURES AND INCIDENTS

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pp. 531-545

As feudalism progressed. attempts were made to introduce some sort of order into the immense variety which had so far prevailed, and so a large number of different characteristics which owed their rise to local or peculiar circumstances were finally classified, with the result that there...

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CHAPTER 5. THE RISE OF THE ENTAIL

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pp. 546-557

As we have seen,1 it was possible under Anglo-Saxon law to impose limitations upon bookland which resemble the entail rather closely. There is no evidence, however, that this practice survived much later than the Conquest, or that it was used to any considerable degree even...

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CHAPTER 6. THE COMMON LAW ESTATES DOWN TO 1540

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pp. 558-574

In the preceding chapters we have seen that a fee simple was inheritable by primogeniture since about 1200; that it was alienable without the consent of presumptive heirs since about the same date; and that nearly a century later it became freely alienable without the lord's consent as a...

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CHAPTER 7. USES AND THE STATUTE

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pp. 575-587

English lawyers are apt to believe that the use, and later the trust, are the peculiar inventions of English law. It is perfectly true that they were developed independently and along original lines, but it is interesting to observe that other legal systems have reached something like the same...

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CHAPTER 8. THE LATER LAW OF REAL PROPERTY

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pp. 588-602

Bacon, in a well-known passage, declared that the Statute of Uses was " the most perfectly and exactly conceived and penned of any law in the book . . . the best pondered in all the words and clauses of it of any statute that I find". Anyone who reads the statute will be led...

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CHAPTER 9. THE MORTGAGE

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pp. 603-609

The development of the mortgage is an interesting example of the interplay between legal doctrine and conveyancing custom. The gage, which is the root idea of the transaction, is really a relic of the days when credit was not yet in existence.1 It has been conjectured that in its oldest...

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CHAPTER 10. CONVEYANCES

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pp. 610-623

The Anglo-Saxon form of conveyance was at first extremely elaborate and was imitated from continental models.1 Whether, like them, it acted as a conveyance, that is to say, transferred the complete title without the requirement of any further ceremonies, it is very difficult to...

PART 4. CONTRACT

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pp. 625-652

SUMMARY

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pp. 626-653

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CONTRACT

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pp. 627-654

It is remarkable that, in spite of the numerous foreign influences which were at work in the field of contract, the common law was so little affected by them. The Church very early took a strong view of the sanctity of contractual relationships, insisting that in conscience the......

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CHAPTER 1. ORIGINS

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pp. 628-632

In the Anglo-Saxon period a law of contract would have been a luxury. The enforcement of public order and the elementary protection of life and property were as much as the Anglo-Saxon states could undertake with any hope of success. We therefore find that the Anglo-Saxon...

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CHAPTER 2. THE FOURTEENTH CENTURY

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pp. 633-636

In this chapter we shall describe the forms of action which might be used in contractual matters from the days of Bracton until the general use of the action of assumpsit, which only becomes common at the beginning of the fifteenth century....

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CHAPTER 3. ASSUMPSIT TO SLADE'S CASE

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pp. 637-646

The King's court was not very fond of contract, but it showed some interest in tort, and it is in the action of trespass that the quickest progress was made. In a number of cases it is possible to regard a particular situation from either point of view, and it was the treatment of such...

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CHAPTER 4. CONTRACT AFTER SLADE'S CASE

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pp. 647-656

It is not surprising that the results of this momentous decision appeared more and more important as the years passed. From a strict point of view, it was merely the settlement of a pleading point upon which two courts had differed. To settle the matter that an assumpsit...

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CHAPTER 5. LAW MERCHANT AND ADMIRALTY

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pp. 657-670

We have several times mentioned the law merchant, particularly in connection with the history of contract, and so a brief account of its origin and progress must be included here. in spite of the great difficulty of dealing with an international subject with many bewildering ramifications....

PART 5. EQUITY

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pp. 671-698

SUMMARY

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pp. 672-699

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EQUITY

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pp. 673-674

Equity is often spoken of as a supplement or an appendix to the common law; a mediaeval lawyer would perhaps have caught our meaning better if we were to say that it is a sort of gloss written by later hands around an ancient and venerable text. Law books were particularly...

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CHAPTER 1. THE EARLY HISTORY OF EQUITY

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pp. 675-684

Of the institutional aspects of equity we have already spoken. 'Thus we have seen fourteenth-century parliaments occasionally dispensing remedies which late! were typical of equity;1 the council, moreover, was so flooded with petitions of every sort that it was there that these new...

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CHAPTER 2. THE FORMATIVE PERIOD

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pp. 685-694

During the middle ages we do not hear very much of "equity". although chancery and council are constantly mentioned. It can hardly be said that the modern idea of equity appears at all commonly in the sources until the sixteenth century, when we find a formal theory in...

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CHAPTER 3. THE WORK OF THE CHANCELLORS

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pp. 695-707

Originally a strictly household office, it separated much slower than the exchequer.1 Some of the twelfth-century holders became powerful enough to withstand the King, but their power was not yet derived from the office; on the contrary, it seems that it was they who conferred...

PART 6. SUCCESSION

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pp. 709-736

SUMMARY

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pp. 710-737

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SUCCESSION

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pp. 711-738

The law of succession is an attempt to express the family in terms of property. To historians of early societies this branch of law has always been of exceptional interest and importance, for it states in predse terms the structure of the most significant of early institutions. Other branches...

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CHAPTER 1. INHERITANCE

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pp. 712-724

During most of the Anglo-Saxon period the law of succession must have been customary. Surviving written sources give us only occasional glimpses, and the lack of genealogical material prevents us drawing any safe conclusions from its actual results in family history. Holders of...

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CHAPTER 2. INTESTACY

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pp. 725-731

As we have seen, our mediaeval law expected that the devolution of land would be left to follow the course laid down for it in the common law. Deep suspicion was felt of those attempts to direct the destination of decedents' land which nevertheless were made from time to time....

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CHAPTER 3. WILLS

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pp. 732-746

The history of the will as an institution of English law is a long and very complicated story.1 A number of different expedients were used at different dates by persons who wished to direct the future enjoyment of their property after their own day: some of them left marks which...

INDEX

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pp. 747-802


E-ISBN-13: 9781614878902
E-ISBN-10: 1614878900
Print-ISBN-13: 9780865978072

Page Count: 828
Publication Year: 2012

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Subject Headings

  • Common law -- Great Britain -- History.
  • Law -- Great Britain -- History.
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