ment to his innocent family, and adding to their misfortunes, by plunging them into poverty. Influenced therefore, by thefe humane and benevolent fentiments, the legislature, has in one inftance only fubjected a criminal to the lofs of all his estate. This is for the crime of burning, or attempting, or conspiring to burn public magazines, or veffels, or betray public veffels to the enemy. in the time of war. This crime works a forfeiture of the offender's eftate, both real and perfonal, at the difcretion of the fuperior court. This is the only crime for which real estate can be forfeited, and this and man-flaughter are the only crimes which work a forfeiture of goods and chattels. In all other cafes, the ftatute concerning the age, ability, and capacity of perfons declares, that fuch perfons as are condemned to death, the charges of their profecution, imprisonment and execution, being firft paid out of their eftates, the remainder shall be difpofed of according to law. Where the crime is not punishable with death, the criminal holds his eftate, after paying, his fine (if that be the punishment,) and the cofts of profecution.

During the late war with Great-Britain, all perfons that were adjudged guilty of the crime, of having voluntarily joined and put themselves under the protection of the enemies of the United States, forfeited their lands to the state. But this was only intended for a temporary law.

CHAPTER TWENTY-SECOND.

OF TITLE BY ACCESSION.

THE principle of the law is to affign to every thing capable of

ownership, a certain and determinate owner; and to leave nothing to be acquired by occupancy, which is the original foundation of all property. Therefore in cafes of alluvion and dereliction of the fea and rivers, which are a gradual acceffion of property, the law has determined that the perfon who owns the thing, to which the acceffion is made, fhall be entitled to the acceffion. I have therefore confidered this as a title acquired by acceffiou, and have ventured to treat of it under that name (as it was not reducible to

* Statutes, 66

any

any former head) for the purpose of illuftrating every principle of importance, that refpects our landed property.

/ Alluvion is an imperceptible addition made to lands by the washing of the sea, or rivers, and the addition must be fo gradual that it is impoffible to ascertain how much ground is added in the fpace of each moment of time. Thus the gradual alteration of the courfe of a river, will add to one and diminish the other bank. Where this change is fo gradual, as not to be perceptible in any one period of time, the proprietor whose bank of the river is encreased is entitled to the addition. So where the sea washes up the fand, and gradually makes firm ground, the adjoining proprietor is entitled to the addition.

Dereliction is where there is gradual fubfiding of the fea, below the ufual watermark, in which cafe-if it be imperceptible at any one period of time, the adjoining proprietor is entitled to it. For the purpose of explaining this fubject, it is neceflary to confider, in whom is the property of the ocean and the rivers.

All rivers not navigable, belong to the proprietors of the land in which they flow. If their be adjoining proprietors on a river not navigable, and fuch river be the dividing line, each proprietor owns to the center of the river. This has been adjudged in cafes, where the proprietors in the original grants to them were bounded upon the river. Hence, it may be faid to be a principle of law, that all ftreams not navigable, are owned by private perfors, and that they have the fame power to exclude all perfons from the use and improvement of fuch ftreams, as they have from ufing their lands.

All rivers that are navigable, all navigable arms of the fea, and the ocean itself on our coaft, may in certain fense be confidered as common; for all the citizens have a common right to their navigation; but all adjoining proprietors on navigable rivers, and the ocean, have a right to the foil covered with water, as far as they can occupy it, that is to the channel, and have the exclufive privilege of wharfing and erecting piers on the front of their land. Any perfon therefore has a right to fail through the water, that covers the land of another, without being liable for a trespass

/ Justinian's inft. 1. ii, tit. 1, fect. 20, m 2 Black. C. 261.

trefpafs, in the fame manner, as one may pafs through the air which is above the land of another: but no man has a right to do any act in the navigable waters, upon the front of another's land, which can affect the foil, as wharfing, or crecting piers: for in this there is an exclufive property, tho there is not in the water.-Nor may adjoining proprietors erect wharves, bridges, or dams across navigable rivers fo as to obftruct their navigation.

Having confidered who are the proprietors of the fea and of rivers, I proceed to remark, that in rivers where the alteration is not gradual, as in alluvion, but is fudden as an avulfion, or where a part of one bank is violently torn away, and carried and annexed to the other, then the proprietor from whofe bank fuch land is torn, fhall continue to own it, because he is able to distinguish and afcertain his property. In all rivers not navigable, it is clear that the adjoining proprietor or proprietors fhall own all iflands that may arife. If there be two proprietors owning on each fide the river, then if the island rifes in the middle of the ftream, it fall be divided between them: if on either fide, then the proprietor to whofe bank the island is nearest fhall own it. But if a river divides itself and afterwards unites again, by which it reduces a tract of land into the form of an ifland, the land ftill continues in him to whom it before appertained.

If there be a fudden dereliction of the fea, by which a large tract of firm land is formed, or if iflands appear in the ocean, or in navigable streams, fuch lands and fuch iflands, are the property of the public, because they spring out of the ocean, and navigable rivers, which are public property. By the Roman law fuch Mands arifing in the fea, would belong to the firft occupant; and the islands arifing in navigable rivers to the adjoining proprietors, in like manner, as by our common law in ftreams not navigable. This is the only material difference between the common and the Romau law, and it is apparent that the principles of the common law refpecting alluvion was borrowed from the Roman code.

If a river not navigable fhould fuddenly change its channel, the deferted bed of the river would be the property of the adjoining

" Juftinian's Inft. L. II. Tit. I. Sect. 21, 22. 2 Black. Com. 262. Juftinian's Inft. L. II. Tit. I. Scết. 22. 2 Black. 361.

gluid.

joining proprietors, in like manner as they own the river but if a navigable ftream fhould fuddenly defert its channel, and form a new, it would be reafonable that the proprietors of the land through whofe land the new channel is made, fhould have the old channel, as a compenfation for the lofs of their land, which becomes public property by the flowing of the river through it.

Having confidered the right of property in the ocean, and in the Rivers, it may not be improper in this place to confider the righ. of fishery.

The right of fishery muft clearly follow the right of property in rivers, and feas. In all rivers and arms of the fea, not navigable, the adjoining proprietors have unquestionably the exclufive right of fishery. Tho they cannot be faid to have a property in the fil fwimming in the ftream, and before they are caught, yet they have the exclufive right to take them, and whoever difturbs that right is a trefpaffer. Of courfe if a perfon takes fifh in a river not navigable, without going on to the land of the adjoining proprietor, he is a trefpafter; and this principle is neceflary to establish exclufive property in individuals, to prevent the inconveniences which will neceflarily arife from the operation of that erroneous opinion that fishing is common.

Tho it may be confidered as a general princple, that in navigable rivers, and the ocean, the right of fishery is common, yet it is under this restriction, that every proprietor is deemed to have the exclufive right of fishery in rivers, and feas adjoining his land, fo far as he has the right of the foil, that is, to the channel; and that no perfon may take oyfters, or any fhell-fish from their beds,

r

the front of another's land, or draw a fein for other fith within the limits above defcribed, tho he does not for that purpofe, enter upon the lands of the adjoining proprietor. In an action of trefpafs for fifhing, by drawing a fein in a navigable river, upon the front of another's land, tho it appeared that no entry was made upon the land of the adjoining proprietor, yet it was held, that the action was fuftainable in his favour.

The taking of fish in this ftate, is regulated by a great variety of

Adgate vs, Storey, S. C. 1790.

ftatutes

ftatutes, in fuch a manner as to give to the proprietors adjoining on rivers the fiairest and most equal chance of fishing, upon all parts of the rivers, but they are too numeroue to be explained in in this place.

CHAPTER TWENTY-THIRD.

OF THINGS PERSONAL.

THINGS perfonal, are of a moveable nature, and may be tranf

ported by the owner wherever he pleases. They alfo include a fpecies of property already mentioned, which is of a real as well as perfonal nature, comprehending the immobility of the one, and the limited duration of the other, as eftates for years. This might with propriety be considered, as a distinct species of property, but has ever by writers on the law, been treated as a branch of things perfonal. To obtain a clear understanding of this fubject, we muft confider that things perfonal are also called goods and chattels. Chattels are divided into chattels real and chattels perfonal.

Chattels real, are faid to concern or favour of the realty. They are a kind of an estate which may be had in things real, inferior to a freehold fuch are estates for years, at will, and by fufferance. They are interefts annexed to, and iffying out of real estates. They poffefs the immobility of things real, which has given them the denomination of real, but as they are of a limited duration, they are confidered as partaking of a quality of moveable things, and of course they are called chattels real. This fubject we have fully handled in the foregoing part of our enquiries, and it is mentioned here only, to difplay the connexion between the different branches of our fyftem of jurifprudence.

Chattels perfonal, are properly things moveable. They contain all thofe things in which a man can have property, that are capable of being removed, from place to place, and attend the owner wherever he goes. But we must here obferve, that there are many things annexed to the freehold, which are capable of being severed and transferred from place to place, as corn and fruits of