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damages, but that when such damages amount to two thirds the value of his interest, the reversioner may have judgment of forfeiture and eviction. But the power of forfeiture seems to be only a single application of the broader power discussed in recent books under the title of the police power, which is itself only a branch of the power of eminent domain in the wider sense of the words, though to be carefully distinguished from the power of taking private property for public use (eminent domain in narrower sense) inasmuch as the police power is not dependent in its exercise upon the payment of compensation. It is the power which every government possesses to regulate the use of all private property, so as to prevent each citizen from making his own a means of injury to his neighbor or to the whole community. When this is done by tak ing away the property as a punishment for misuse, it is a case of forfeiture: when restrictions are imposed in advance upon its use, or when infractions of ordinary private rights become necessary to the public welfare, such cases are included under the general term of "police power." (Cooley's Constitutional Limitations, ch. 16, pp. 472-597; Sedgwick's Statutory and Constitutional Law, 2d ed. pp. 434-441; Dillon on Municipal Corporations.) The power belongs to the states of the Union and cannot be assumed by the federal government. (U. S. v. De Witt, 9 Wall. 41; License Cases, 5 How. 504; Passenger Cases, 7 How. 283; License Tax Cases, 5 Wall. 471.) See remarks on this subject by Judge Cooley, Constitutional Limitations, p. 574.

A military commander may under circumstances of necessity take the private property of the citizen with out being liable personally, in which case the owner must look to the government for compensation. The necessity must be actual and urgent; and its existence is for the jury to determine. (Holmes v. Sheridan, 1 Dill. 351, citing, Mitchell v. Harmony, 13 How. 115, 135;

Williams v. Wickerman, 44 Mo. 484.) Police regulations of this character are uniformly held legal and binding, because they are for the general benefit, and do not proceed to the length of impairing any private right in the proper sense of that term. The sovereign power in a community may prescribe the manner of exercising individual rights over property. They may prohibit the erection of wooden buildings, the keeping of gun-powder and other dangerous combustibles for sale within the city in greater than specified quantities, fix market places and regulate the times when they shall be open, and prohibit the sale of market produce at other places; and, on the same principles and for the same reasons, may establish and regulate wharves and landings, regulate the anchorage of all boats, rafts, or other vessels landing within its limits, and as a necessary incident to this power, may prohibit the landing of such boats and rafts at any other places than are prescribed in the ordinances or by-laws made for that purpose. The powers rest upon the implied right and duty of the supreme power to protect all by statutory regulations, so that, on the whole, the benefit of all is promoted. (Vanderbilt v. Adams, 7 Cowen, 349; Bertholf v. O'Rielly, 74 N. Y. 519; 30 Am. Rep. 323; also in 18 Am Law Reg. 111; Commonw. v. Alger, 7 Cush. 84; State v. Paul, 5 R. I. 185.)


OF TITLE BY ALIENATION. [See note 55, page 464.]

* The most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in it's limited sense: under which may be comprized any method wherein estates are voluntarily resigned by one man, and accepted by another: whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.*

This means of taking estates, by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law,a a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated, and evaded. And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent, or

a See pag. 57.

b Feud. l. 1. t. 27.

**Quoted, 12 Me. 48; 28 Am. Dec. 151; 26 Cal. 103. Cited, 29 Me. 295. Ref. to chapter, 24 N. H. 558; 57 Am. Dec. 302.

presumptive heir.* And therefore it was very usual in antient feoffments to express, [288] that the alienation was made by consent of the heirs of the feoffor: or sometimes for the heir apparent himself to join with the feoffer in the grant. And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vassal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clan. This consent of the vassal was expressed by what was called attorning,' or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchasor, and to become his tenant, the grant or contract was in most cases void, or at least incomplete: which was also an additional

clog upon alienations.

But by degrees this feodal severity is worn off, and ‡experience hath shewn, that property best answers the purposes of civil life, especially in commercial countries, when it's transfer and circulation are totally free and c Co. Litt. 94. Wright. 168.

d Madox, Formul. Angl. no. 316. 319. 427. e Gilb. Ten. 75.

f The same doctrine and the same denomination prevailed in Bretagne.-possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo item domino acquirenti obstringebat; idque jussu auctoris. D'Argentre Antiq. Consuet. Brit. apud. Dufresne. i. 819, 820.

g Litt. 551,

* Cited, Addis. 199.

† Cited, 5 Yerg. 126; 17 Mich. 364.

unrestrained.* The road was cleared in the first place by a law of king Henry the first, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power, than over what had been transmitted to him in a course of descent from his ancestors: [289] á doctrine which is countenanced by the feodal constitutions themselves: but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate. Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not impowered to aliene:1 and also he might part with one fourth of the inheritance of his ancestors without the consent of his heir. By the great charter of Henry III." no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land. But these restrictions were in general removed by the statute of quia emptores, whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion. And even these tenants in cap

h Emptiones vel acquisitiones suas det cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam. LL. Hen. I. c. 70.

1 Feud. 1. 2. t. 39.

k Si questum tantum habuerit is, qui partem terræ suæ donare voluerit, tunc quidem hoc ei licet; sed non totum quæstum, quia non potest filium suum hæredem exhæredare. Glanvil. 7. 7. c. 1.

1 Mirr. c. 1. 23. This is also borrowed from the feodal law. Feud 1. 2. t. 48.

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