LAWS RELATING TO REAL PROPERTY AND CONVEYANCING. Real property is distinguished from per sonal property by the fact that the conception of tenure is ap plicable only to the former. This conception, and the distinc tion founded upon it, can only be understood by an outline of the history of English land law.
The characteristic features of the Teutonic system were enjoy ment in common and the absence of private ownership except to a limited extent. The principal features of the old English land law before the Conquest were (I) liberty of alienation, either by will or inter vivos, of such land as could be alienated (chiefly, if not entirely, bocland), subject always to the limits fixed by the boc ; (2) publicity of transfer by enrolment in the shire-book or church-book ; (3) equal partition of the estate of a deceased among the sons, and failing sons among the daughters; (4) cul tivation to a great extent by persons in various degrees of serf dom, owing money or labour rents; (5) variety of custom, tending to become uniform through the application of the same principles in the local courts; and (6) subjection of land to the trinoda necessitas (i.e., the obligations of military service, repair of bridges and maintenance of fortifications). From the earliest times the ownership of land was the basis of political privilege and conferred some territorial jurisdiction upon the land-owner. In relation to folkland this jurisdiction, as well as the administra tion of the criminal law, became vested in the king as ultimate arbiter, and he in many cases delegated his powers to the great land-owners. Rudiments of the conception of tenure can thus be found in Anglo-Saxon times.
The effect of the Norman Conquest was not all at once to change allodial into feudal tenure, but to complete the associa tion of territorial with personal dependence in a state of society already prepared for it. "Nulle terre sans seigneur" was one of the fundamental axioms of feudalism. The land forfeited to the Conqueror was regranted by him to be held by military service due to the king, not to the mesne lord as in Continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the Crown. There might be any number of infeudations and subinfeudations to mesne lords, but the chain of seigniory was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia duties to the State, but was held of the king by military service of a more onerous nature. The folkland be came the king's land ; free owners tended to become tenants of the lord, the township to be lost in the manor; the common land became in law the waste of the manor, its enjoyment resting upon a presumed grant by the lord. On the other hand, the whole of
England did not become manorial; the conflict between the town ship and the manor resulted in a compromise.
In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure (liberum tenementum, franktenement) or by a tenure which although originally that of a non-free inhabitant, remained attached to the land. Franktenement was either (I) military tenure, called also tenure in knight service or chivalry (including barony, the highest tenure known to the law, grand serjeanty and the special forms of escuage, castle-guard, cornage and others), or (2) socage (including burgage and petit serjeanty), or (3) frankalmoign (libera eleemosyna, divine service), by which ecclesiastical corporations generally held their land'. The non-free inhabitants were in Domesday Book servi, cotarii or bordarii, later nativi or villani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all existed until 1926, though, as will appear later, the military tenures had shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures were until 1926 represented by copyhold (q.v.). The most im portant difference between the military and socage tenures was the mode of descent. Land held by military service descended as to the capital fief to the eldest son; but socage lands and lands other than the capital fief for some time followed the old pre Conquest rule of descent, and if anciently partible (antiquitus divisum) were divided among all the sons equally. But by the time of Bracton (Henry III.) the course of descent of lands held by military service had so far prevailed, that although it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was presumed. Relics of the old rule remained until 1926 in the cus tom of gavelkind. The military tenant was subject to the feudal incidents, from which the tenant in socage was exempt; and these incidents, especially wardship and marriage, were often oppres sive. Alienation of lands by will, except in a few favoured dis tricts, became impossible ; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glanvill a tenant had a greater power of alienation over land which he had purchased (terra acquietata) than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. It was enacted by Magna Carta that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually 'Frankalmoign was not always regarded as a distinct tenure. Thus Littleton (s. 118) says that all that is not tenure in chivalry is tenure in socage.