(o) Sharon Turner's Anglo-Saxons, 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.
(q) 2 Hallam's Middle Ages, 468.
The system of tenure could evidently only exist as to lands and things immoveable (r). Cattle and other moveables were things of too perishable and insignificant a nature to be subject to any feudal liabilities, and could therefore only be bestowed as absolute gifts. No duty or service could well be annexed as the condition of their ownership. Hence a superiority became attached to all immoveable property, and the distinction between it and moveables became clearly marked; so that, whilst lands were the subject of the disquisitions of lawyers (s), the decisions of the Courts of justice (t) and the attention of the legislature (u), moveable property passed almost unnoticed (x).
Lands, houses, and immoveable property, - things capable of being held in the way above described,- were called tenements or tilings held (y). They were also denominated hereditaments, because, on the death of the owner, they devolved by law to his heir (z). So that the phrase, lands, tenements and hereditaments, was used by the lawyers of those times to express all sorts of property of the first or immoveable class; and the expression is in use to the present day.
The other, or moveable class of property, was known by thc name of goods or chattels. The derivation of the word chattel has not been precisely ascertained (a). Both it and the word goods are well known to be still in use as technical terms amongst lawyers.
Lands, tenements and hereditaments.
Goods and chattels.
(r) Co.Litt. 191a, n. (1),II. 2.
(s) See Treatises of Glanville, Bracton, Britton, and Fleta; the Old Tenures, and the Old Nature Brevium.
(t) See the Year-Books.
(u) See the Statutes.
(x) 2 Black. Com. 384.
(y) Constitutions of Clarendon, Art. 9; Glanville, lib. ix. cap. 1, 2, 3, passim; Bracton, lib. 2, fol. 26 a; stats. 20 Hen. III. c. 4; 13 Edw. I. c. 1; Co. Litt. 1 b; Shep. Touch. 91.
(z) Co. Litt. 6 a; Shep. Touch.
So great was the influence, of the feudal system, and so important was the tenure or holding of lands, whether by the vassals of the crown, or by the vassals of those vassals, that for a long time immoveable property was known rather by the name of tenements than by any other term more indicative of its fixed and indestructible nature (b). In time, however, from various causes, the feudal system began to give way. The growth of a commercial spirit, the rising power of towns, and the formation of an influential middle class, combined to render the relation of lord and vassal anything but a reciprocal advantage; and at the restoration of King Charles II. a final blow was given to the whole system (e). Its form indeed remained, but its spirit was extinguished. The tenures of land then became less burdensome to the owner, and less troublesome to the law student; and the Courts of law, instead of being occupied with disputes between lords and tenants, had their attention more directed to controversies between different owners. It became then more obvious that the essential difference between lands and goods was to be found in the remedies for the deprivation of either; that land could always be restored, but goods could not; that, as to the one, the real land itself could be recovered; but as to the other, proceedings must be had against the person who had taken them away. The two great classes of property accordingly began to acquire two other names more characteristic of their difference. The remedies for the recovery of lands had long been called real actions, and the remedies for loss of goods personal actions (d). But it was not until the feudal system had lost its hold, that lands and tenements were called real ■property, and goods and chattels personal property (e).
(a) Sec 2 Black. Com. 385. (b) It is the only word used in the important statute De Donis, 13 Edw. I. c. 1; sec Co. Litt. 19 b. (c) By statute 12 Car. II. c. 24.
It appears then, that lands and tenements were designated, in later times, real property, more from the nature of the legal remedy for their recovery than simply because they are real things; and, on the other hand, goods and chattels were called personal property because the remedy for their abstraction was against the person who had taken them away. Personal property has been described as that which may attend the owner's person wherever he thinks proper to go (f), but goods and chattels were not usually called things personal till they had become too numerous and important to attend the persons of then owners.
The terms real property and personal property are now more commonly used than the old terms tenements and hereditaments, goods and chattels. The old terms were, indeed, suited only to the feudal times in which they originated; since those times great changes have taken place, commerce has been widely extended, loans of money at interest have become common (g), and the funds have engidfed an immense mass of wealth. Both classes of property have accordingly been increased by fresh additions; and within the new names of real and personal many kinds of property are now included, to which our forefathers were quite strangers; so much so that the simple division into immoveable tenements and moveable chattels is lost in the many exceptions to which time and altered circumstances have given rise. Thus, shares in canals and railways, which are sufficiently immoveable, are generally personal property (h); funded property is personal; whilst a dignity or title of honour, which one would think to be as locomotive as its owner, is not a chattel but a tenement (i). Canal and railway shares and funded property are made personal by the different acts of parliament under the authority of which they have originated. And titles of honour are real property, because in ancient times such titles were annexed to the ownership of various lands (k).