PRINCIPLES

OF THE

LAW OF REAL PROPERTY.

INTRODUCTORY CHAPTER.

OF THE CLASSES OF PROPERTY.

In the early ages of Europe, property was chiefly of a Property at first chiefly substantial and visible, or what lawyers call, a corporeal corporeal. kind. Trade was little practised (a), and consequently debts were seldom incurred. There were no public funds, and of course no funded property. The public wealth consisted principally of land (b), and the houses and buildings erected upon it, of the cattle in the fields, and the goods in the houses. Now land, which is Land indeimmoveable and indestructible, is evidently a different structible. species of property from a cow or a sheep, which may be stolen, killed, and eaten; or from a chair or a table, which may be broken up or burnt. No man, be he ever so feloniously disposed, can run away with an acre of land. The owner may be ejected, but the land remains where it was; and he, who has been wrongfully turned out of possession, may be reinstated into the identical portion of land from which he had been removed.

(a) 3 Hallam's Middle Ages, 367-369.

Not

(b) 1 Hallam's Middle Ages,

158.

structible.

Moveables de- so with moveable property; the thief may be discovered and punished; but if he has made away with the goods, no power on earth can restore them to their owner. All he can hope to obtain is a compensation in money, or in some other article of equal value.

Moveable and immoveable.

The Norman conquest.

Moveable and immoveable (c) is then one of the simplest and most natural divisions of property in times of but partial civilization. In our law this division has been brought into great prominence by the circumstances of our early history.

By the Norman conquest, it is well known a vast number of Norman soldiers settled in this country. The new settlers were encouraged by their king and master; and whilst the conquered Saxons found no favour at court, they suffered a more substantial grievance in the confiscation of the lands of such of them as had opposed the Conqueror (d). The lands thus confiscated were granted out by the Conqueror to his followers, nor was their rapacity satisfied till the greater part of the lands in the kingdom had been thus disposed of (e). In these grants the Norman king and his vassals followed the custom of their own country, or what is called the feudal system (f). The lands granted were not given freely and for nothing; but they were given to hold of the king, subject to the performance of certain military duties as the condition of their enjoyment (g). The king was still considered as in some sense the proprietor, and was called the lord paramount (h); while the services

(c) Quandoque res mobiles, ut cattalla, ponuntur in vadium, quandoque res immobiles, ut terræ, et tenementa, et redditus. Glanville, lib. x. c. 6. See also lib. vii. c. 16, 17.

(d) Wright's Tenures, 61, 62;

2 Black. Com. 48.

(e) 2 Hallam's Middle Ages,

424.

(f) Wright's Tenures, 63. (g) 1 Hallam's Middle Ages, 178, 179, note.

(h) Coke upon Littleton, 65 a.

to be rendered were regarded as incident or annexed to the ownership of the land; in fact, as the rent to be paid for it.

system.

This feudal system of tenures, or holding of the king, Introduction was soon afterwards applied to all other lands, although of the feudal they had not been thus granted out, but remained in the hands of their original Saxon owners. How this change was effected is perhaps a matter of doubt. Sir Martin Wright (i), who is followed by Blackstone (k), supposes that the introduction of tenures, as to lands of the Saxons, was accomplished at a stroke by a law (7) of William the Conqueror, by which he required all free men to swear that they would be faithful to him as their lord. "The terms of this law," says Sir Martin Wright, "are absolutely feudal, and are apt and proper to establish that policy with all its consequences." Mr. Hallam, however, takes a different view of the subject; for while he considers it certain that the tenures of the feudal system were thoroughly established in England under the Conqueror (m), he yet remarks that by the transaction in question an oath of fidelity was required, as well from the great landowners themselves as from their tenants, "thus breaking in upon the feudal compact in its most essential attribute, the exclusive dependence of a vassal upon his lord" (n). The truth appears to be that Norman

(i) Wright's Tenures, 64, 65. (k) 2 Black. Com. 49, 50. (1) The 52nd. Statuimus ut omnes liberi homines foedere et sacramento affirment, quod intra et extra universum regnum Angliæ Wilhelmo regi domino suo fideles esse volunt; terras et honores illius omni fidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere.

(m) 2 Hallam's Middle Ages,

429.

(n) 2 Hallam's Middle Ages, 430. Mr. Hallam refers to the Saxon Chronicle, which gives the following account: Postea sic itinera disposuit ut pervenerit in festo Primitiarum ad Searebyrig (Sarum), ubi ei obviam venerunt ejus proceres; et omnes pradia tenentes, quotquot essent notæ me

customs, and their upholders and interpreters, Norman lawyers, were the real introducers of the feudal system of tenures into the law of this country. Before the conquest, landowners were subject to military duties (o); and to a soldier it would matter little whether he fought by reason of tenure, or for any other reason. The distinction between his services being annexed to his land, and their being annexed to the tenure of his land, would not strike him as very important. These matters would be left to those whose business it was to attend to them; and the lawyers from Normandy, without being particularly crafty, would, in their fondness for their own profession, naturally adhere to the precedents they were used to, and observe the customs and laws of their own country (p). Perhaps even they, in the time of the Conqueror, troubled themselves but little about the laws of landed property. The statutes of William are principally criminal, as are the laws of all half-civilized nations. Life and limb are of more importance than property; and when the former are in danger, the security of the latter is not much regarded. When the convulsions of the conquest began to subside, the Saxons felt the effects of the Norman laws, and cried out for the restoration of their own; but they were the weaker party, and could not help themselves. By this time the industry of the lawyers had woven a net from which

lioris per totam Angliam, hujus viri servi fuerunt, omnesque se illi subdidere, ejusque facti sunt vassali, ac ei fidelitatis juramenta præstiterunt se contra alios quoscunque illi fidos futuros.-Sax. Chron. anno 1085.

(0) Sharon Turner's AngloSaxons, vol. ii. app. iv. c. 3, 560; 2 Hallam's Mid. Ages, 410.

(p) The Norman French was

introduced by the Conqueror as the regular language of the courts of law. See Hume's History of England, vol. ii. 115, appendix ii. on the Feudal and Anglo-Norman government and manners. A specimen of this language, which was often curiously intermixed by our lawyers with scraps of Latin and pure English, will be given in a future note.