"of each man's industry fhould be fo far his own, that no other "should fhare the benefit of it, without his permiffion. New ideas of property then necefiarily prefented themselves to the mind, whereby every one who poffefied himfelf of things which ❝he improved by his labour and industry, was confidered as having thereby acquired a right to retain then as his own, altho they 66 were not neceflary to his immediate ufe, and by which he acquired the power of difpofing of them at his will and pleature "to others. This laid the foundation on which exclufive property in moveable goods was established by civil law, of which the characteristic is, that others are always excluded; whereas in a communion of goods in a state of nature, others are not exclu"ded from things of which any one is poffèfied, except fo long "as they are in the actual ufe of the prefent occupier.

It is evident that the power to difpofe of property, is one of the etlential qualities of ownership, and is founded on the nature of the right. When an individual has brought to a flate of cultivation, afpot of ground, or gathered the fruits of the earth, or caught the beafts of the field, he has the power of exchanging them with another, and the perfon to whom conveyance is made, upon making fatisfactory compenfation to the original proprietor, fuc-· ceeds to his right and intereft. It is not a mere dereliction by the first occupant, and the poffeffion, or occupancy by a fucceffor that transfers the right. It is the mutual agreement and confent of the contracting parties. This power of difpofing of property, originates from the fame fource as the power of acquiring it, when it lies common to all mankind,

When a man has thus obtained an exclufive richt, to particular things, with the power to retain or difpofe of them at pleafure, It is to be confidered what thall become of them, when death feparates him from all his worldly enjoyments and pollėtions. This involuntary dereliction of property, leaves it to be occupied by fome other perfon, and according to the opinion of fome writers, it naturally reverts to its original fate, and would be fubject to be taken by the first occupant, were it not for the interpolition of pofitive law. But this opinion cannot be well founded; for when a

man has acquired an exclufive right to a certain thing, and added to the value of it by his own labour, it is confonant to nature, that he should determine who should enjoy that property which he can enjoy no longer. Every perfon will have children, relations, or friends, with whom he is connected by the strongest ties of affection and friendship. To promote their welfare, he will be prompted by the moft powerful motives that influence the mind, and the idea, that he can appropriate the fruits of his labour, to their happiness, will be the strongest incentive to industry and perfeverance in the acquifition of property. The existence of this principle in the human mind, is fufficient to evidence that mankind have by nature, the right of difpofing of their estate, in a manner correspondent to their wishes and feelings.

The fame principles apply in cafes where the owner has not determined, to whom his eftate fhall defcend after his decease. The children and relations of the deceased, have a natural right to the property, relinquished by the death of the owner for it is prefamed, that the deceased owner, would have desired that the fruit of his industry, fhould be appropriated to the benefit of thofe with whom he was connected by the ties of confanguinity, and this had naturally led mankind to the adoption of this practice. But the particular relations that fhould inherit, and the mode of diftribution, has been regulated by civil inftitutions. It is a univerfal custom among civilized nations, that the proprietor of an eftate fhall have the power of difpofing of it by will, and in case of his dying without a will, that his eftate fhall defcend to his nearest relations. The univerfality of the custom, is conclufive demonstration, that it is founded in the natural feelings of man

kind.

a

To all things, which by the nature of them, cannot be redu. ced to permanent property, mankind acquire a right by occupancy, fuch are the elements of light, air, and water, in which man can have only a temporay use: alfo all animals of a wild and untame able difpofition. These when taken and in his poffeflion, or when killed, become his property: but when wild and at liberty, they may be taken by any person whatever, of common right, but in all VOL. I. Hh things

a 2 Black 14.

things, where permanent ownership can be had, the pofitive law of fociety steps in, and affigns a certain owner.

By nature we are led to acquire property, and by the fame power, we are authorised to difpofe of it. But nature does not ftop here. By this fame principle we are as ftrongly impelled to unite in fociety, as we are to acquire property. Should a number of human beings be placed upon an uninhabited ifland, without laws and government, their first acquifition of property, must be by occupancy, but they would immediately unite in fociety, and establish laws for the government of the community, and the regulation of property. Nature has pointed the mode of acquiring a title to earthly things, and the power of difpofing of them. In the most fimple and uncorrupted ftate of mankind, no particular formality was neceffary. A verbal deed and a verbal will were equally authentic and operative with all the folemnity of figning and fealing. But mankind in the progrefs of fociety, difcovered that fuch fimple modes of conveyance, opened the door to endless frauds and deceits. Hence pofitive law introduced certain forms and ceremonies, as requifite to conftitute a deed or will, for the purpose of preventing impofition in the conveyance of property, and uncertainty, respecting the title. That a deed or will fhould be in writing, and figned and fealed by the party, is clearly an inftitution of pofitive law. That man has the right to difpofe of his eftate by deed, or will, is clearly the refult of natural law.

From thefe obfervations, it appears that the laws of nature are the ground work of civil eftablishment, and that pofitive inftitutions were introduced to guard, protect, and defend the natural rights of mankind. Thefe regulations have now fuperfeded the dictates of fimple nature, and in the acquifition of property, we pay no reguard to them, but are wholly governed by the directions of the pofitive laws of fociety. Thefe to counteract the fraud, and wickedness of individuals in different periods, during the progreffive improvement of jurifprudence, have now become fo numerous and complicated, that great skill and learning are requifite to afcertain the political regulations, that controul, reftrain, aud go. vern the conduct of the citizens of the ftate, every day of their lives.

НАР.

CHAPTER SECOND.

OF THE SEVERAL KINDS OF THINGS.

THE word things, is a very extenfive term, and comprehends

whatever cannot be predicated of a perfon, or human being. There are many things which are subject to the property and dominion of man; and in that light, they are to be confidered in this book of our enquiries.

Property in its strict and literal fenfe, is only that right and dominion, which a man has by law in things. But by a very common figure, this term is used to fignify the thing itself, in which a man has property. The word property, therefore, fignifies things, over which, man is in the immediate exercife of power and dominion. The word things is a naked defcription without any reference, or relation to ownership by man.

Things are naturally divided into real and perfonal. Things real, are permanent and substantial. They are immoveable as to place, and perpetual as to duration. Things perfonal, may proper ly be alfo called moveable. They are the reverfe of things real, the owner can remove them from place to place, their duration is uncertain, and they are subject to change and to perifh. Such is the natural divifion of things, and it compleatly comprehends every fpecies. But the inftitutions of civil fociety have inade neceffary other divifions of property, for the purpofe of regulating its improvement and enjoyment: and this being the point of view, in which we are to confider things, I fhall make fuch diftinctions and divifions as have been introduced and established by law. In addition to this general divifion, we find there is a fpecies of property denominated incorporeal, which is defined to be an ideal right, exifting in contemplation of law, and iffuing out of fubftantial, corporeal property, either real or perfonal. Perfonal things have been fubdivided into chattels real, and chattels perfonal. Chattels real, have been defined to be a compound of real and perfonal things, poffeffing the immobility of the one, and the limited duration of the other, as an eftate for years in lands, the land being immoveable, but the term to expire in a limited period. Chattles Hh 2 perfonal

perfonal, are comprised in the ufual definition of things perfonal. In treating of thefe different kinds of property, I propofe in the first place to confider things real as being the most important to mankind. With this fubject, I muft confider chattels real, because they refult from and are an appendage of real property.

In the next place, I fhall fully explain the fubject of perfonal property; and shall close with a few observations upon things incorporeal, as they are the fruits of the other kinds of property. On this subject, "I fhall be very concise, as there can hardly be said to be a neceffity of introducing this divifion of property into a treatise upon our laws; but as it is known to the common law, it may be proper to explain it, for the purpose of affifting the reader in acquiring a knowledge of the common law.

CHAPTER THIRD.

OF THINGS REAL.

THINGS real have already been defined to be fixed, permanent,

and fubftantial. In obferving upon this fubject, no better method can be pointed out, than the one adopted by Sir. William Blackstone, in his commentaries on the laws of England. To define in the first place the nature of real property, in the fecond place, the tenure, in the third, the different estates that may be had in it, and lastly, the various titles to it, and the manner in which they may be acquired or loft. This chapter will confider the first of thefe divifions and define the nature and extent of real property.

It is generally faid, that things real confift of lands, tenements, and hereditaments. Land in its legal and molt extenfive fignification, comprehends every kind of real property. It includes any ground, foil, or earth whatever, as arable, meadows, pastures, woods, moors, waters, marshes, furfes, and heath. It also in its legal meaning comprehends all honfes and buildings whatever, ftanding on the land for they confift of two things, the ground being the foundation, and the ftructure thereon; of course, if the land, or ground be conveyed, the building being annexed to it is transferred with it.

b Co. Lit. 4.

2 Black. Com. 17.

Land