A Concise History of the Common Law

CHAPTER 8. THE LATER LAW OF REAL PROPERTY

CHAPTER 8 THE LATER LAW OF REAL PROPERTY SUMMARY After the Statute ofUm The Attitude ofthe Common LawYer! Legal Contingent Remainder!USe ! Executed andExecutory Executory DeJlius The Rule against Perpetuities The Rise of the Trost The Uu upon a Uu -, Tyrrel's Cafe Sambach v. Dalston AFTER THE STATUTE OF USES PAGE 588 589 590 592 594 595 598 599 600 601 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 to the same conclusion. An act of wide-sweeping scope, it is worded with care; after the fashion of the time, it contains a clear expose de motifs in the preamble indicating its general objects; the first section enacts II. clear and general rule, based on a tendency long apparent in legislation; this rule is unencumbered with exceptions and provisos, and (unlike previous acts) extends to all uses possible at that time. and executes them for all purposes; succeeding clauses foresee, and provide for, the situations arising under the operation of clause one. No statute before 1536 shows such evident signs of thoughtful care, and such clear and logical arrangement. The objects of the act were obvious. First, it aimed at combining equitable and legal ownership and abolishing the screen offeoffees to use. In this it succeeded. No use, at this time, could subsist save upon the seisin offeoffees, and the statute successfully executed all uses. Secondly, it aimed at restoring publicity in dealings with land. The Statute of Enrolmentsl was passed because it was realised that the use on a bargain and sale in favour of the bargainee who had paid the purchase money would be executed by the statute; to prevent this being employed as a secret conveyance, such bargains and sales were to be enrolled. Other conveyances were at common law and required livery of seisin. It is 127 Hen. VIII, c. 16 (1536). 588 THE LATER LAW OF REAL PROPERTY 589 true that under the statute it was possible for legal estates to spring and shift in various ways but the general aim of publicity was attained, for it was no longer possible for a person in apparent enjoyment of land to escape the legal consequences of ownership by saying that the legal title was elsewhere. Once again, the statute attained its object. Two other aims were also realised, although later legislation decided that they were in fact undesirable. The virtual prevention of the devise of land was in fact an attempt to put the clock back a century or more, and the statute of wills soon recognised that this was impossible. The preservation of the incidents of tenure, achieved by the statute, had over a century of extended life; they, too, were abandoned in 1660.1 THE ATTITUDE OF THE COMMON LAWYERS The common lawyers had a difficult situation before them, but one rich with possibilities. For something like a century after the statutes of uses and wills they could draw upon several bodies of law, and had the opportunity of welding them into a coherent and reasonable system. It was the great disaster of the sixteenth century that they failed to do so. The long reign of Elizabeth was occupied by a succession of judges who had great gifts of dialectic, and a taste for artificial refinement. The sweeping victory of the profession, as exemplified in the Statute of Uses, put them above the reach of criticism. The flood ofnew wealth released by the dissolution of the monasteries created a new and prosperous landed class, closely attached to the Crown, which could afford to tolerate a mass of real property law which steadily grew more fantastic. The legal profession became even more deeply entrenched in the House of Commons, and the excitement of religious and political controversy seems to have left no desire to raise the issue of law reform. The materials available were, first of all, the common law itself. Litdeton's immortal work shows clearly that the mediaeval law of land was comparatively simple, reasonable and capable ofexpression in concise and orderly form. The one disturbing factor was the feudal incidents and the attempts to escape them. The law of estates was, apart from this, clear and simple. Secondly, there was the law of uses. The creation of...