English Legal History and its Materials
Plunkett writes on pg. 141 - "It was also a peculiarity of feudalism that these matters of public law— the prerogative of the Crown, the rights and duties of the baronage, the means of extraordinary taxation and so on—were intimately connected with land."

I thought it was interesting that what we now think of as public government powers were viewed as private property rights under English Medieval Law. I was wondering if the answers team could try to come up with examples of property rights in Medieval England that are no longer recognized as private property today and maybe discuss how these property rights came to be superseded.

-- MichaelCoburn - 09 Sep 2014

I think that Plucknett’s point was less that there were actual property rights that we no longer recognize, but that before the rise of the modern State, people in Medieval England conceived of the rights and privileges that inhered in various positions in society as pieces of private property tied up with the possession of land, rather than as the prerogatives of the office-holder divorced from the person in office. Plucknett makes this point when he observes that political rights and privileges were treated like incorporeal hereditaments (which is to say, the rights and privileges which can travel with land, as distinguished from the land itself, but which are so intimately tied up with land as to be treated as almost the thing itself) (page 142).

For example, Blackstone, looking back at the history of incorporeal hereditaments, observes that the right of advowson (the right of presentation to a church) had its roots in the time “when lords of manors first built churches on their own demesnes,” and thereby “had of common right a power annex to nominating such minister as he pleased . . . to officiate in that church of which he was the founder, endower, maintainer, or, in one word, the patron.” (Blackstone, Commentaries on the Laws of England, Book 2, Chapter 3, Of Incorporeal Hereditaments). This it so say, that although the original donor who endowed a Church no longer had the right to use or possession of the grounds, he retained the right to empower others to take possession of them through his right of advowson, which is intimately connected to his or his ancestors’ prior possession and gift of land. (Id). To the modern eye, as Plucknett points out, the right to present or demand a candidate for a church position seems to be a strange thing to regard as something akin to private property which rides upon the land. Indeed, the Church came to mimic the modern State in that it chafed against the practice as an interference with the prerogatives of the Church all the way from the time of Becket, eventually leading to the virtual destruction of the advowson. (Id). This is not to say, however, that the power of presentation in a church no longer exists, but merely that we no longer conceive of it as a right which is connected to the land and capable of being passed on like private property, but as a right which inheres in a particular officeholder (the Pope, presumably, in the case of advowson).

Other rights of a public character (ie. those governing the relationship between Crown and Parliament and the theory of taxation, as Plucknett identifies) were discussed from the perspective of a real property lawyer as late as the Fifteenth Century. (Plucknett, 142). Both the Crown and Parliament still undoubtedly possess certain inherent rights, but it is merely the case that we no longer talk about them as pieces of real property – that mode of discourse no longer suits us. Plucknett identifies the rise of the modern State and its accompanying theory as the reason for this evolution in viewpoint, but only gives a tentative explanation as to why it ceased or the societal role it may have played, other than to say that its rigidity may have played an “important [role]” during “times of stress.” (Plucknett 142).

I think that what Plucknett means to say in the passage you highlight is that certain matters of public law were treated as if they were private property, because of their close connection with the possession of land and because of a certain preference for analogizing to real property, rather than that they were, in fact, pieces of private property. The rights and privileges did not disappear, merely the conceptualization of them as rights of private property.

-- JimParks - 16 Sep 2014



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r2 - 16 Sep 2014 - 07:52:40 - JimParks
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