nesses 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 (29). 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 go to some particular person, who from the result of certain local constitutions,* appears to be the heir [ 14 ] at law. Hence it follows, that where the appointment is regularly made, there cannot be a shadow of right (30) 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. and animals feræ such wherein usufructuary had, remain But, after all, there are some few things which, notwith- Light, air, water, standing the general introduction and continuance of pro- nature, being perty, must still unavoidably remain in common; being such nothing but an wherein nothing but an usufructuary property is capable of property can be being had; and therefore they still belong to the first occu- common. pant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light (31), air, and water (32); 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 (29) But see ante, note (2); and the conclusion of the note to p. 10. (30) If the author takes his stand upon the legal right, his position is impregnable; as to the question of natural right, see ante, the notes to (31) See post, p. 395, n. Forests, waste lands, &c. 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 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 [15] about the *acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension (33), 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 (34). 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. (33) At the present day, it affords matter for melancholy reflection, to think how much Blackstone was mistaken, when he held, that, by giving the property in game to the lords of manors, the wisdom of the law had "cut up the root of dissension" as to this matter. The amount of crime (and consequently of misery) arising out of this state of things, it would, however, be invidious to expatiate upon, now that a reform of the system, grounded upon full details of its incidental enormities, is under the consideration of the legislature. Since this note was first published, the property in game is, by the statute of 1 & 2 Gul. IV. c. 32, vested in the occupiers of the land on which it is found; unless the property in such game has been reserved by, or to, the landlord, lessor, or some other per son. (34) See post, pp. 39, 403, 411. CHAPTER II. OF REAL PROPERTY; AND, FIRST, OF CORPO- THE objects of dominion or property are things, as contra- The objects of distinguished from persons: and things are by the law of property. England distributed into two kinds; things real and things personal. Things real are such as are permanent (1), fixed, Real. and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, Personal. and all other moveables; which may attend the owner's person wherever he thinks proper to go (2). (1) Mr. Preston, referring to the passage in the text, says, "In the language of Mr. Justice Blackstone, nothing is a tenement which is not of a permanent nature. The term, whether applied to the subject or the interest therein, is equally vague; perhaps it is not too much to add, erro neous. A rent-charge is not, in any respect, necessarily more permanent than an annuity; yet one is a tenement, and the other is not. (See post, p. 113, n.) These contrasted examples prove, that the epithet may be omitted, and that the definition which excludes it will, if not more certain and precise, be at least open to less objection." (Essay on Est., part 1, p. 10.) See post, p. 40, n. and Vol. III. c. 10, p. 167. (2) When he comes to the 24th chapter of this volume, (p. 385,) the reader will be taught, by Blackstone himself, that the definition of things Forests, waste lands, &c. 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 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 [ *15] about the *acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension (33), 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 (34). 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. 16 CHAPTER II. OF REAL PROPERTY; AND, FIRST, OF CORPO 0 ilso Inay 1. -po or ì, perixed. THE objects of dominion or property are things, as non- Laments two kinds, real and oreal. *rent When rally which thout f pron rela word |