BEETON'S LAW BOOK.

PROPERTY.

INTRODUCTION.

DEFINITIONS.

1. True Definition.-Property has been legally defined to be the exclusive right, which the jurisprudence of a country creates, in favour of some particular person or persons, in regard to a given thing; for,

2. False Definition.-Although the word property is frequently used to designate, not the right to a thing, but the thing itself, such a designation is not correct.

3. Kinds of Property.-The English law recognizes three distinct. kinds of property; namely, real property, chattels real, and chattels personal.

REAL PROPERTY.

4. Real property includes the surface and substance of the earth, under all circumstances, whether uncovered or covered with buildings or water, and everything which is permanently fixed to the ground or incident to it, whether above it, upon it, or under it.

5. Specialities. According to the old dictum, anything similar to tolls, as the tolls of a lighthouse, were esteemed to be real property; hence,

6. Exceptional Reality.-The New River Company, being one of the first joint stock enterprises, became, like some few other similar companies, subject to decisions, which constitute its shares real property, but,

7. Shares Personal Property.—The manifest convenience of modern times has forced the law to recognize shares in canal and railway companies as personal property, though, like those of the New River Company, they issue out of the possession of land; in like manner,

8. Land of a Partnership.-Land or buildings, the joint property of a private partnership, are deemed to be personal property, so far as each partner's share therein is concerned.

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9. Separate Property in Buildings.-Though very rare in England, it is common in Scotland, and not contrary to the law of England, for the upper part of a building to be the real property of one person, and the lower part that of another.

CHATTELS REAL.

10. Most property which depends upon land for its continuance, is classed as chattels real; thus,

11. Kinds.—A lease for years (1198) is a chattel real, as also the next presentation to a church, and almost all property incorporeal (16).

CHATTELS PERSONAL.

12. Almost everything which can be moved or consumed is personal property, as money, fuel, food, cattle, &c.; and

13. Definition of Personal Property.-Personal property has been defined as anything that can be killed, eaten, stolen, broken, or burnt, and particularly "stolen," as it is pointed out that no man, however feloniously disposed, can run away with an acre of land.

HEREDITAMENTS.

14. The comprehensive term hereditaments, includes both real and personal estate, and includes everything which of right descends to the heir.

15. Corporeal.-The law recognizes a distinction in favour of all things which may be touched or handled; which things are called corporeal.

16. Incorporeal.-The expression incorporeal, is used to distinguish the difference between a benefit, and the right from which it arises; thus,

17. An annuity, a reversion, a common right, a right of way, a right of shooting or fishing, is incorporeal property; and

18. Rents, tithes, and advowsons, are incorporeal property.

19. Easements.-Rights of way are sometimes called easements, and the same term applies to all rights entitling an occupier or possessor to air, light, water, or other customary or necessary accommodation.

PROPERTY IN LAND.

20. The English law of property in land has arisen out of, and is confessedly founded upon, the customs of the northern nations of Europe, at, or about, the period of the invasion of Britain by the Romans.

21. Ancient Ownership.-Allodium.-In patriarchal times the

occupancy of land was held to be absolute ownership, Grotius and Puffendorf insisting that the right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should be the owner, and such tenure of land has received the name of allodium; but,

22. Theory of National Property in Land.—In the northern nations of Europe, in the time of the Cæsars, as recorded by Tacitus, individuals had no property in land, for all the land was deemed to be the property of the nation; and

23. Customs of the Goths.-The only right which an individual could have in the lands of the Goths, was the permissive right, derived from the nation or the tribe, to the annual occupancy of a portion, for his necessary support; and

24. Individuals only Tenants.-The whole theory of territorial authority amongst the Goths, after settling in northern and western Europe, was, that the ultimate property in land was essentially vested in the nation, and that portions dealt out for mere convenience of individual occupancy were returnable to the public, after the individual had reaped thereof the fruits of his labours; hence,

25. Allodium Superseded.—The theory of occupancy by virtue of national authority, gradually superseded what was called allodium, which was eventually supplanted entirely by the feudal system.

26. Definition of Allodium.-The word allodium is said to be derived from los, signifying lot, and appears to have arisen out of the custom of more remote and barbarous nations, who, when they conquered a territory, parcelled it out in lots, giving each man a share by lot, which he held absolutely in his own right, free from all service or public duty, a system of tenure which proved fatal to the permanence of every nation which adopted it.

FEUDAL TENURE.

27. The inherent weakness of the allodial system of landed tenure, encouraged the development of the idea of national ownership, and eventually led to the systematic adoption of feudal tenure, which was introduced and permanently established in England by William of Normandy, to the entire exclusion of anything in the nature of allodial tenure.

28. Consequences of Feudal Tenure.-The wisdom of the foundation of feudal tenure, as distinguished from allodium, is proved by the fact that, while nations adhered to the latter they were perpetually breaking up into tribes and factions, from lack of any sound principle of cohesion, whereas every nation which became subject to feudal tenure has maintained a collective existence and united

power, wholly unknown before the introduction of such a mode of appropriating land.

ORIGINAL FEUDS.

29. It is universally admitted that feuds were originally voluntary and gratuitous donations, to be held at the mere will of the giver, who could resume them at pleasure.

30. Service a necessity of Feudal Tenure.-The very essence of the feudal system was, that occupancy under it implied an obligation to render adequate service, in consideration of such occupancy; and 31. Homages.-As an acknowledgment of the obligation was extremely important, it took the form of doing homage, or acknowledg ing fealty.

32. Significance of Homage.-That the object of homage was to define the relationship of the subject, in respect of the land he held, is certain, from the words which are recorded as incident to the ceremony, thus :

"I become your man from this day forward, of life and limb, and of earthly worship; and unto you shall be true and faithful, and bear you faith for the tenements which I claim to hold of you; saving the faith that I owe unto our sovereign lord the king;" and

33. Superior Homage.-While inferior holders did homage to their lords, the lords in their turn did homage to the king, and both, respectively, took an oath of fealty.

34. Form of Fealty.-Records remain of the fact that fealty was sworn by the tenant placing his hand upon a book, which he also kissed, after having pronounced the following words :

"Know you this, my lord, that I shall be faithful and true unto you, and faith to you shall bear for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do at the time assigned. So help me God and his Saints."

MILITARY TENURE.

35. The customs and services of the great original feudal tenures were, in accordance with the times, of a military nature; every great baron was bound, in time of war, to furnish a stipulated number of knights, fully equipped for the war in which the king might be engaged, and each baron usually led his own band of knights, together with their retainers and servants.

36. Knight Service.-Equally to the barons as to the king knight service was rendered, which involved the personal attendance of the knight upon his lord, in all warlike expeditions he entered into.

37. Grand Sergeantry.The ancient tenure of grand sergeantry,

was where a man held his lands of the king, by services to be done in his own proper person to the king; as, to carry the banner or the king, or his lance, or to be his marshal, or to carry his sword before him at his coronation, or to do other like services.

38. Petit Sergeantry.-There was an inferior order of tenure called petit sergeantry, where a man held his lands of the king by virtue of a yearly gift of "a bow, or a sword, or a dagger, or a knife, or a lance, or a paire of gloves of maile, or a paire of gilt spurs, or an arrow, or divers arrows, or to yield such other small things belonging to war."

SOCAGE TENURE.

39. The most numerous class of tenants were, either under the king or the barons, called "tenants in common socage," which originally implied a very inferior order of tenure, for every tenure which was not a tenure in chivalry was held to be a tenure in socage. 40. Meaning of Socage.-The word socage is said to have been derived from soca, a plough, and, as the name therefore implies, the services rendered were usually of an agricultural or manual character.

MANORS.

41. The various kinds and degrees of tenancy led to the establishment of manors, the origin of which is described as follows:"And it is to know that the beginning of a manor was, when the king gave a thousand acres of land, or a greater or lesser part, unto one of his subjects and his heirs, to hold of him and his heirs, which tenure is knight service at the least, and the donee did perhaps build a mansion-house upon parcel of the same land; and of twenty acres, parcel of that which remained, or of a greater or lesser parcel, before the statute of Quia Emptores, did enfeoff a stranger, to hold of him and his heirs, as of the same mansion-house, to plow ten acres of arable land, parcel of that which remained in his possession; and did enfeoff another of another parcel to carry his dung into the land; and did enfeoff another of another parcel thereof to go with him to war against the Scots; and so by continuance of time he made a manor.”

COMMONS.

42. The uncultivated part of an ancient manor was called the lord's waste, which served for public roads, and common pasture, for the lord's cattle, as well as for the cattle of his tenants.

43. Requisites of a Manor.-The two material requisites of a manor were demesnes and services. The demesnes comprise all that part of the land retained by the lord for his own use; and from which the other parts are dismembered. The freehold of these is vested in the lord, and they were formerly cultivated by his villeins for the maintenance of his family.