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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. (1)

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 dif[ 13 ]ferent national establishments. In England particularly, this diversity is carried to such a 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: 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

(1) See post, 375.

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 go to some particular person, who, from the result of certain local constitutions, appears to be the heir at law. [ 14 ] 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 ferae naturae, or of a wild and untameable disposition; which any man may seise 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 seise and enjoy them afterwards. (2)

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

(2) See post, 402.

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 about the acquisition of this species of property by first occupancy, [15] the law has therefore wisely cut up the root of dissension, by vesting the things themselves in the sovereign of the state: or else in his representatives appointed and authorised by him, being usually the lords of manors. (3) 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)

(3) See post, 410.

(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 satisfactorily 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 of what is meant by natural rights, or rights founded in the law 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 almost all civil societies have, as it were, by general consent recognised 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. See the early part of the Considerations on the Law of Forfeiture.

13

CHAPTER THE SECOND.

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 immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other moveables; which may attend the owner's person wherever he thinks proper to go.

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 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 extent, and though in its vulgar acceptation it is only applied to houses and other buildings, yet in [ 17 ] it's 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. 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 likea: 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. But an hereditament, says sir Edward Coke, 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 an house, is neither land, nor tenement, but a mere moveable: 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". (1)

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, comprehendeth in it's legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally

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(1) By a condition is here meant a qualification or restriction annexed to a conveyance of lands, 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 infeoffed B of an acre of ground upon condition that if his heir should pay the feoffee 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. 201. 214. b.

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