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land or who allows the feoffor to come back into the house, even as a guest, while the feoffment is yet new.
“We are told that at a yet remote time this elaborate 'mode of assurance' began to dissolve into its component parts, some of which could be transacted away from the land. It is not always very convenient for the parties to visit the land. In particular is this the case when one of them is a dead saint. One may indeed, if need be, carry the reliquary that contains him to the field that he is to acquire; but some risk will thus be run; and if the saint cannot come to the field, the field must come to the saint. In miniature it can do so, turf and twig can be brought from it and placed with the knife upon the shrine; the twig can be planted in the convent garden. And then it strikes us that one turf is very much like another, and since the bishop, who has just preached a soul-stirring sermon, would like to secure the bounties of the faithful while compunction is still at work, a sod from the church-yard will do, or a knife without any sod, or a glove, or indeed any small thing that lies handy, for the symbolical significance of sods and knives and gloves is becoming obscure, and the thing thus deposited is now being thought of as a gage or wed (vadium) by which the donor can be constrained to deliver possession of the land. When, under Roman influence, the written document comes into use, this also can be treated as a symbol; it is delivered in the name of the land; the effectual act is not the signing and sealing, but the delivery of the deed, and the parchment can be regarded as being as good a representative of land as a knife or a glove would be. Just as of old the sod was taken up from the ground in order that it might be delivered, so now the charter is laid on the ground and thence it is solemnly lifted up or 'levied' (levatio cartae). Englishmen hereafter will know how to 'levy a fine.' And lastly, there are, as we shall see hereafter, advantages to be gained by a conveyance made before a court of law after some simulated litigation; and one part of the original ceremony can be performed there; the donor or vendor can, in court, go through the solemnity of surrendering or renouncing the land; the rod or festuca can be passed from hand to hand in witness of this surrender.” 2
SECTION 4. SCOPE OF THIS SUBJECT. Following out the plan in this work of avoiding repetition, in the treatment of the subject of real property, many topics generally treated under this title have been passed over with a mere reference. The practical questions relative to conveyancing and the examination of abstracts will be found discussed in the succeeding subject of Abstracts in this volume. Equitable estates have been reserved for treatment under the subject of Equity Jurisprudence and Trusts. Testamentary estates are treated under the subject of Wills.5
The present article has been mainly devoted to the historical definition of the law of real property, and the treatment of the various kinds of estates and titles.
SECTION 5. AUTHORITIES. The subject of real property is one of the oldest branches of the law, and had become fully developed before the birth of some other branches of the law which have attained prominence at the present time. · Pollock & Maitland, pages 82 to • Vol. 7, Subject 21. 84 and 85 to 86.
• Vol. 10 Subject 32. • Vol. 7, Subject 20.
On many topics under this subject, little development or addition has been made to the law for several centuries. This is particularly true of the subject of the creation and classification of estates.
The two writers upon whose works all subsequent works of real property have been mainly based were Thomas Littleton and Sir Edward Coke. On account of the important places occupied by these writers in the field of real property, references have in the main been made to these writings from which a number of quotations have been taken.
“Littleton was a judge of the common pleas in the reign of Edward IV, and composed his book of Tenures for the use of his son, to whom it is addressed. It contains three books; the first upon estates; the second upon tenures and services, which two were designed to explain more at large the principal subject of the old book of tenures; the third discourses of several incidents and consequences of tenures and estates. This little treatise has acquired more notice than any other book in the law; which is to be ascribed partly to the nature of the subject, partly to the manner in which it is treated, and partly to the great character of the writer when a judge.
"The learning of real property had in the reign of Edward III been cultivated with a minute attention; the period which had elapsed from that reign to the time when our author wrote, had produced many additions and modifications of it, till this branch had grown into a very refined system, constituting, in every respect, the most intricate part of our jurisprudence. These later determinations had rendered the old treatises of the law in a great degree obsolete. Bracton, though more full than any of the rest, being more ancient, afforded no light in that sort of questions which were now usually canvassed and many of which had originated entirely since his time; still less was to be expected from Fleta, Britton, and The Mirror, though of a later age. In this state of things, it was an undertaking much to be wished, that some should explain in a methodical way the new learning that had arisen on the subject of tenures and estates. This our author has done, with a felicity which has placed him in a rank above all writers on the English law.
"If we inquire what is the excellence which has entitled this writer to so high a character, it will be found to be a particular kind. It is not an accurate arrangement of his subject; not a remarkably apt division of his matter; not a strict adherence even to his own plan, by preserving a close connection between the matter and title of a chapter; in all which he is sometimes more defective than writers of inferior note; the excellence of Littleton seems to consist in the great depth of his learning and simplicity of his manner; in a comprehensive way of thinking, and a happy method of explaining; with a certain plainness, yet significance of style that is always clear and expressive.
"This author usually quotes no authority for what he advances. In this, however, he does not differ much from his contemporaries, who, even in their arguments and opinions delivered in court, had not got into that practice of vouching authorities which has obtained so much since. Whenever he has a point to handle which is not thoroughly settled, he generally states the different opinions on it, and then gives his own reasons for differing or agreeing with either; and where he does not deliver an opinion declaredly his own, the last is supposed to be that which he is inclined to adopt. This open and candid way of discussing, added to the known abilities of the author acquired him great confidence with posterity; anything out of Littleton has been usually taken upon that authority alone. Thus, the want of references, which at first might seem a want of authenticity, has in the end administered to the fame of this writer; as opinions which otherwise might be vouched from an adjudged case are now wholly rested on the words of Littleton.
“The undiminished reputation which this author still possesses is owing principally to the choice of his subject. The law of tenures and estates, as understood in the time of Littleton, is at this day the best introduction to the knowledge of real property; and though great part of this volume is not now law, yet so intimately was the whole of that system connected that what remains of tenures cannot be understood without a knowledge of what is abolished; and therefore the parts of Littleton which are now obsolete, are studied both with profit and pleasure. We may still say what the author pronounced of his work in another respect: 'Though certain things which are moved and specified in the said book are not altogethe law, yet such things shall make them more apt and able to understand and apprehend the arguments and reasons of the law.
“Besides this, the law of tenures and estates has always been thought the most natural entrance into the study of the law in general; this small volume, therefore, became the first book which was put into the hands of the student; and while it was considered by practisers and the court as a work of the highest authority, it was at the same time the introduction