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and established governments. In these it was found, that what became incon-
venient or useless to one man, was highly convenient and useful to another;
who was ready to give in exchange for it some equivalent, that was equally
desirable to the former proprietor. Thus mutual convenience introduced com-
mercial traffic, and the reciprocal transfer of property by sale, grant, or convey-
ance: which may be considered either as a continuance of the original
[*10]
possession which the first occupant had; or as an abandoning of the thing
by the present owner, and an immediate successive occupancy of the same by
the new proprietor. The voluntary dereliction of the owner, and delivering the
possession to another individual, amount to a transfer of the property: the pro-
prietor declaring his intention no longer to occupy the thing himself, but that
his own right of occupancy shall be vested in the new acquirer. Or, taken in
the other light, if I agree to part with an acre of my land to Titius, the deed of
conveyance is an evidence of my intending to abandon the property: and Titius,
being the only or first man acquainted with such my intention, immediately
steps in and seizes the vacant possession: thus the consent expressed by the
conveyance gives Titius a good right against me; and possession, or occupancy,
confirms that right against all the world besides.

The most universal and effectual way of abandoning property, is by the death
of the occupant: when, both the actual possession and intention of keeping
possession ceasing, the property which is founded upon such possession and
intention ought also to cease of course. For, naturally speaking, the instant a
man ceases to be, he ceases to have any dominion: else if he had a right to dis-
pose of his acquisitions one moment beyond his life, he would also have a right
to direct their disposal for a million of ages after him: which would be highly
absurd and inconvenient. All property must therefore cease upon death, con-
sidering men as absolute individuals, and unconnected with civil society: for,
then, by the principles before established, the next immediate occupant would
acquire a right in all that the deceased possessed. But as, under civilized gov-
ernments which are calculated for the peace of mankind, such a constitution
would be productive of endless disturbances, the universal law of almost every
nation (which is a kind of secondary law of nature) has either given the dying
person a power of continuing his property, by disposing of his possessions by
will; or, in case he neglects to dispose of it, or is not permitted to make any
[*11]
disposition at all, the municipal law of the country then steps in, and
declares who shall be the successor, representative, or heir of the deceased;
that is, who alone shall have a right to enter upon this vacant possession, in
order to avoid that confusion which its becoming again common would occa-
sion. (k) And farther, in case no testament be permitted by the law, or none be
made, and no heir can be found so qualified as the law requires, still, to prevent
the robust title of occupancy from again taking place, the doctrine of escheats is
adopted in almost every country; whereby the sovereign of the state, and those
who claim under his authority, are the ultimate heirs, and succeed to those
inheritances to which no other title can be formed.

The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil right. (2) It is true, that the transmission

(k) It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon the death of either, the inheritance does not so properly descend, as continue in the hands of the survivor. Ff. 28, 2. 11.

(2) [I cannot agree with the learned commentator, that the permanent right of property vested in the ancestor himself (that is, for his life), is not a natural, but merely a civil, right.

I have endeavored to show (Note 1) that the notion of property is universal, and is suggested to the mind of man by reason and nature, prior to all positive institutions and civil

of one's possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society: it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that its immediate original arose not from speculations altogether so delicate and refined, and, if not from fortuitous circumstances, at least from a plainer and more simple principle. A man's children or nearest relations are usually about him on his *death-bed, and are the earliest witnesses of his [*12] decease. They become therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law. And therefore also in the earliest ages, on failure of children, a man's servants born under his roof were allowed to be his heirs; being immediately on the spot when he died. For, we find the old patriarch Abraham expressly declaring, that "since God had given him no seed, his steward Eliezer, one born in his house, was his heir." (7)

While property continued only for life, testaments were useless and unknown: and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing of one's property, or a part of it, by testament; that is, by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased, which we therefore emphatically style his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of one-third of his movables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the Eighth; and then only of a certain portion: for it was not till after the restoration that the power of devising real property became so universal as at present.

Wills, therefore, and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies. and requisites to make a testament completely valid; neither does any thing vary more than the right of inheritance under different *national establishments. In England, particularly, this diversity is carried to such a [*13]

(2) Gen. xv, 3.

ized refinements. If the laws of the land were suspended, we should be under the same moral and natural obligation to refrain from invading each other's property as from attacking and assaulting each other's persons. I am obliged also to differ from the learned judge, and all writers upon general law, who maintain that children have no better claim by nature to succeed to the property of their deceased parents than strangers; and that the preference given to them originates solely in political establishments. I know no other criterion by which we can determine any rule or obligation to be founded in nature, than its universality; and by inquiring whether it is not, and has not been, in all countries and ages, agreeable to the feelings, affections, and reason of mankind. The affection of parents towards their children is the most powerful and universal principle which nature has planted in the human breast; and it cannot be conceived, even in the most savage state, that any one is so destitute of that affection and of reason, who would not revolt at the position, that a stranger has as good a right as his children to the property of a deceased parent.

Hæredes successoresque sui cuique liberi, seems not to have been confined to the woods of Germany, but to be one of the first laws in the code of nature; though positive institutions may have thought it prudent to leave the parent the full disposition of his property after his death, or to regulate the shares of the children, when the parent's will is unknown.

In the earliest history of mankind we have express authority that this is agreeable to the will of God himself; and behold the word of the Lord came unto Abraham, saying, this shall not be thine heir; but he that shall come out of thine own bowels shall be thine heir. Gen. c. 15. CHRISTIAN.

length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be, that has not its foundation in the positive rules of the state. In personal estates the father may succeed to his children; in landed property he never can be their immediate heir, by any the remotest possibility: (3) in general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance: in real estates males are preferred to females, and the eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that, if a will of lands be attested by only two witnesses, instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had by nature a right to succeed to his father's lands: or, as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas, the law of nature suggests, that, on the death of the possessor, the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall, by will, attended with certain requisites, appoint; and, in defect of such appointment, to [*14] go to some particular person, who, from the result of certain local constitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed; and, where the necessary requisites are omitted, the right of the heir is equally strong, and built upon as solid a foundation, as the right of the devisee would have been, supposing such requisites were observed. But, after all, there are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had; and, therefore, they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such, also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition; which any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but, if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards.

Again; there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands; such, also, are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the

(3) That is, as father he could not be such heir; but he might nevertheless sustain such relation to the child in a collateral way as to entitle him to the inheritance.

And since the statute 3 and 4 William IV, c. 106, the lineal ancestor may be heir to his issue in preference to collaterals, where there is a failure of lineal descendants. Šimilar statutes exist in the United States.

rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels *would frequently arise among individuals, contending about the acquisition of this species of property by [*15] first occupancy, the law has therefore wisely cut up the root of dissention by vesting the things themselves in the sovereign of the state; or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim of assigning to every thing capable of ownership a legal and determinate owner. (4)

CHAPTER II.

OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.

THE objects of dominion or property are things, as contradistinguished from persons: and things are, by the law of England, distributed into two kinds; things real and things personal. Things real are such as are permanent, fixed and immovable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other movables; which may attend the owner's person wherever he thinks proper to go. (1)

In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and fourthly, the title to them, and the manner of acquiring and losing it.

First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements or hereditaments. Land comprehends all things

(4) [It is not very easy, as the author seems to be aware, for the minds of readers who have been born and bred up in all the habits and with the feelings of civil society, to admit the truth of this reasoning on the acquisition and transmission of property. The subject is too wide a one to be discussed in a note; but two observations may be made as important in forming a sound opinion on the whole matter. First, we should have a clear notion what is meant by natural rights, or rights founded in the laws of nature, as far as regards this subject. When we say that a right to devise property of our own acquisition, or to inherit that left undisposed of by our fathers, is a right founded on the law of nature, we commonly mean, a right founded on those conclusions of natural reason and justice which men in all civil societies have, as it were, by general consent, recognized and established. But it is obvious that the law of nature, thus understood, presupposes the formation, nay, even in some measure, the maturity of civil society, and of course along with it the existence of the right of property. Whereas, strictly considered, the law of nature relates to a time anterior to this, and provides for a state of things independent of civil compact. In this point of view it seems correct to say that inheritance and devise are not founded on the law of nature.

But secondly, in the former sense it may be equally true, that the industrious acquirer of property has a natural right to transmit it to whomsoever he pleases, and that the child has a natural right to inherit what his ancestor shall not have transmitted specially to any other person; that is to say, the wisest persons in all societies have agreed that, by the establishment of these two rights, certain great purposes of civil union are best answered.]

(1) The reader will be careful to note here that the learned commentator is speaking of things real, and not of the estate or interest which one may have in those things. We shall see hereafter that an estate in the most permanent species of property may be of such character and duration, that the law does not regard it as real property, but classifies it for most purposes, as respects its control, assignment, and transmission on the death of the owner, with things personal. Nevertheless, when such estates exist, there is always a higher estate in the same things real, vested in some other person, and which is designated as real estate. The nature of the thing itself, therefore, does not determine the character of any particular estate that may exist in it, whether real or personal, but the extent and duration of the estate, as will be hereaf ter explained.

VOL. I.-43

337

of a permanent substantial nature; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater [*17 ] extent, and though, in its vulgar *acceptation, it is only applied to houses and other buildings, yet, in its original, proper and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. (2) Thus, liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like: (a) and, as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements. (b) But an hereditament, says Sir Edward Coke, (c) is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal or mixed. Thus, an heir-loom, or implement of furniture which, by custom, descends to the heir, together with a house, is neither land nor tenement, but a mere movable; yet being inheritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament. (d) (3)

Hereditaments, then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says Sir Edward Coke, (e) comprehendeth, in its legal signification, any ground, soil or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes and heath. *It legally includeth, also, all castles, [*18] houses and other buildings: for they consist, saith he, of two things; land, which is the foundation, and structure thereupon; so that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of

(a) Co. Litt. 6.

(b) Ibid. 19, 20.

(c) 1 Inst. 6.

(d) 3 Rep. 2.

(e) 1 Inst. 4.

(2) [Therefore, in an action of ejectment, which, with the exception of tithe and common appurtenant, is only sustainable for a corporeal hereditament, it is improper to describe the property sought to be recovered as a tenement, unless with reference to a previous more certain description. 1 East, 441; 8 id. 357, By the general description of a messuage, a church may be recovered. 1 Salk. 256, The term close without stating a name or number of acres, is a sufficient description in ejectment. 11 Coke, 55. In common acceptation it means an enclosed field, but in law it rather signifies the separate interest of the party in a particular spot of land, whether enclosed or not. 7 East, 207; Doct. and Stud. 30. If a man make a feoffment of a house "with the appurtenances," nothing passes by the words with the appurtenances, but the garden, curtilage, and close adjoining to the house, and on which the house is built, and no other land, although usually occupied with the house; but by a devise of a messuage, without the words "with the appurtenances," the garden and curtilage will pass, and where the intent is apparent, even other adjacent property. See cases, 2 Saund. 401, note 2. 1 Bar. and Cres. 350; see further as to the effect of the word "appurtenant," 15 East, 109; 3 Taunt. 24, 147; 1 B. and P. 53, 55; 2 T. R. 498, 502; 3 M. and S. 171. The term farm, though in common acceptation it imports a tract of land with a house, out-buildings, and cultivated land, yet in law, and especially in the description in an action of ejectment, it signifies the leasehold interest in the premises, and does not mean a farm in its common acceptation. See post, 318.]

(3) [By a condition is here meant a qualification or restriction annexed to a conveyance of land, whereby it is provided that in case a particular event does or does not happen, or a particular act is done or omitted to be done, an estate shall commence, be enlarged or defeated. As an instance of the condition here intended, suppose A to have enfeoffed B of an acre of ground upon condition, that if his heir should pay the feoffor 20s. he and his heir should re-enter; this condition would be an hereditament descending on A's heir after A's death, and if such heir after A's death should pay the 20s. he would be entitled to re-enter, and would hold the land as if it had descended to him. Co. Litt. 211, 214 b.]

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