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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 the 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. xv."

The arguments upon this question and upon the kindred one, whether title by will, "telling the rest of the world which should enjoy it after him," as Blackstone has expressed it, or title by descent, was the primitive and natural law, would fill a library. All of them assumed that these questions must have presented themselves to the mind of the first man or his immediate successor. But it is now generally agreed, as Sir Henry Maine has shown in Ancient Law, chapter 6, that family property was the primitive custom, and that individual succession, by will or by inheritance, was probably unknown to the law until long after civil rights and institutions were formed. To this extent, at least, the view of Blackstone is approved.


(6) The doctrine of escheats, . . . . whereby the sovereign of the state, and those who claim under him, are the ultimate heirs, page 11.

The doctrine of escheats is not to be confounded with that doctrine of public law by which the state or the sovereign is the ultimus hæres of all vacant property. It took the place of that doctrine in the law of England, so far as land is concerned, but it rests in different principles and operates in a different way. Indeed it differs from it as the doctrine of feudal tenure differs from that of eminent domain, which has since taken its place. "The state steps into the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction." (4 Kent Com. 424; Hinkle's Lessee v. Shadden, 2 Swan, 46, 48.) All property belongs to the nation. Those things not divided among individuals are public property. (Arnold v. Munday, 1 Halst. 1; 10 Am. Dec. 363. See note 45 on Escheat, post, page 395.)




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.t [See note 7, page 40.]

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 it's vulgar acceptation 5 [17] is only applied to houses and other buildings, yet in it's original, proper, and legal sense it signifies everything that may be holden, provided it be of a permanent nature; whether it be of a substantial and sen5 First four editions have "it" here; omitted in the fifth, eighth, and ninth editions.

**Quoted, 20 Wend. 420.

+ Cited, 1 Ohio St. 426.

Cited as to estates, 10 Mass. 325; 5 Denio, 40; 17 Wend. 675;:11 Ind. 68.

?-? Quoted, 1 Nott & McC. 463. Cited, 1 Denio, 554.

sible, 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 like: 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 movable; yet, being inheritable, is comprized 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.a¶

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 compre

a Co. Litt. 6.

b Ibid. 19, 20.

c 1 Inst. 6.

d 3 Rep. 2.

- Quoted, 17 Wend. 676; 23 Wend. 584; 5 Conn. 518; 73 Ill. 409. Cited, I Nott & McC. 466.

+- Quoted, 23 Wend. 584.

- Quoted with omissions, 7 Cowen, 243; 46 Ind. 508. Cited, 4 Yerg. 97.

¶ Cited, 10 Mass. 325; 43 Md. 347.

** Cited, 68 N. Y. 555.



hended under the general denomination of land only. For land, says sir Edward Coke,e comprehendeth in it's legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. [18] It legally includeth also all castles, 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 solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water, by the name of water only; either by calculating it's capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general descripto, as for a pond, a water-course, or a rivulet: but I muss bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. For water is a movable, wandering thing, and must of necessity continue common by the law of nature;* so that I can only have a temporary, transient, usufructuary property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immovable: and therefore in this I may have a certain, substantial property; of which the law will take notice, and not of the other.‡

Land hath also, in it's legal signification, an indefinite extent, upwards as well as downwards.? Cujus est

e 1 Inst. 4.

f Brownl. 142.

**Quoted, 33 Ind. 406. Cited, 4 Ohio, 253, 286; 22 Am. Dec. 749.

+ Cited, 3 Cal. 253; 58 Am. Dec. 410.

Cited and commented on, 2 N. H. 258, 261, 262; 9 Am. Dec, 57, 58, 61; 5 Conn. 519; 7 Conn. 200; 4 Ga. 249; 46 Ind. 508.

? Cited, 30 Ala. 326; 68 Am. Dec. 123; 47 Ind. 110.

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