1. Of the goods of an alien enemy;

things are found without any other owner, they for the most part belong to the king by virtue of his prerogative; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider.

1. Thus, in the first place, it hath been said, that any body may seize to his own use such goods as belong to an alien enemy (6). For such enemies, not being looked upon as members of our society, are not entitled, during their state of enmity, to the benefit or protection of the laws; and, therefore, every man that has opportunity, is permitted to seizeupon their chattels, without being compelled, as in other cases, to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must, in reason and justice, be restrained to such captors as are authorized by the public authority of the state, residing in the crown (c); and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And, therefore, it hath been holden (d), that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized. It hath also been adjudged, that, if an enemy take the goods of an Englishman, which are afterwards re-taken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker, unless they were retaken the same day, and the owner before sun-set puts in his claim of property (e). Which is agreeable to the law of nations, as understood in the time of Grotius ($), even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours; though the modern authorities (g) require, that, before the property can

(6) Finch, L. 178.
(c) Freem. 40.

(d) Bro. Abr. tit. Propertie, 38. For.
feiture, 57.

(e) Ibid.
(f) De j. b. & p. 1. 3, c. 6, s. 3.

(g) Bynkersh. quæst. jur. publ. I. 4, Rocc. de Assecur, not. 66.

be changed, the goods must have been brought into port, and have continued a night intra præsidia, in a place of safe custody, so that all hope of recovering them was lost. And, as in the goods of an enemy, so also in his person, or of his person,

by taking him a a man may acquire a sort of qualified property, by taking prisoner in war. him a prisoner in war (h); at least till his ransom be paid (1). And this doctrine seems to have been extended to negro servants (k), who are purchased when captives, of the nations with whom they are at war, and are, therefore, supposed to continue, in some degree, the property of their masters who buy them: though, accurately speaking, that property (if it indeed continues (1)), consists rather in the perpetual service, than in the body or person of the captive (1).

2. Thus again, whatever moveables are found upon the 2. Of unclaimed surface of the earth, or in the sea, and are unclaimed by

moveables found

upon the surany owner, are supposed to be abandoned by the last pro- face of the earth,

or in the sea; prietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless save waifs, esthey fall within the description of waifs, or estrays, or hidden treasure,

trays, wrecks, or wreck, or hidden treasure; for these, we have formerly which are vested

in the king. seen (m), are vested by law in the king, and form a part of the ordinary revenue of the crown.

3. Thus, too, the benefit of the elements, the light, the 3. Of the eleair, and the water, can only be appropriated by occupancy. and water;":

ments, light, air, (h) Bro. Abr. tit. Propertie, 18. per quas idem H. redemptionem suam

(i) We meet with a curious writ of cum prefato A. pro vita sua salvantrespass in the register (102), for break- “ da fecerat, satisfactum foret, detinuit) ing a man's house, and setting such his 'fregit, et ipsum H. cepit et abduxit, prisoner at large, " Quare dumum ip- “ vel quo voluit abire permisit, &c." “sius A. apud W. (in qua idem A. (k) 2 Lev. 201. “ quendam H. Scotum per ipsum A. de (1) Carth. 396. Ld. Raym. 147.

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If I have an antient window, overlooking my neighbour's ground, he may not erect any blind to obstruct the light (2): but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the

first occupancy is rather in him, than in me. If my neigh[ *403 ) bour *makes a tan-yard, so as to annoy and render less sa

lubrious the air of my house or gardens, the law will furnish me with a remedy; but, if he is first in possession of the air, and I fix my habitation near him, the nusance is of my own seeking, and may continue (3). If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour's prior mill, or his meadow: for he hath by the first occupancy acquired a pro

perty in the current (4) +. 4. Of animals fe- 4. With regard likewise to animals feræ naturæ, all manre natura, with kind had by the original grant of the Creator a right to pur

sue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this

certain tions.

(2) See ante, p. 395, note (1) to chapter 25.

(3) See ante, note (2) to chap. 25. (4) See ante, note (3) to chap. 25.

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+ Mr. Christian observes, that “since sentence in the text. the immense extension of the woollen Any one may build a mill, and may and cotton manufactures by machi- detain or divert the water to supply it, nery, a stream of water in many situa- provided he leaves sufficient for all the tions is become of great value to the beneficial purposes to which it had owners of the grounds through which been previously applied below, and it flows. But, though actions respecto provided he does not throw it back ing injuries to mills, and the right to upon another's ground, or upon a predam or divert the water in a stream, existent mill above, so as to lessen the are now extremely frequent in the fall upon its wheel, and thereby to dicountry, yet the whole law upon the minish the effect of his neighbour's subject seems to be comprised in the machinery."

а

property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of Eng. land, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals which are not expressly so reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they might have taken even game itself, till these civil prohibitions were issued: there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly: but the difference at present made, arises merely from the positive municipal law (5). 5. To this principle of occupancy also must be referred 5. Of growing

corn, or other the method of acquiring a special personal property in corn emblements. growing on the ground, or other emblements, by any possessor *of the land who hath sown or planted it, whether he [ * 404 ] be owner of the inheritance, or of a less estate; which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels t. They were devisable by testament before the statute of wills (m), and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action (n): and by the statute 11

(m) Perk, s. 512.

(1) Bro. Abr. tit. Emblements, 21.

5 Rep. 116.

(5) See ante, pp. 14 and 15 with note (30) to chapter 1.

† Mr. Christian observes, that “the tion of an inchoate, and not the acquiright to emblements does not seem to sition of an original, right.” [See ante, be aptly referred to the principle of p. 10, with note (19) to chap. 1.-Ed.] occupancy; for they are the continua.

6. Of property arising from accession.

Geo. II. c. 19, though not by the common law (0), they may be distreined for rent arrere. The reason for admitting the acquisition of this special property by tenants who have temporary interests, was formerly given (p); and it was extended to tenants in fee, principally for the benefit of their creditors: and, therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels; and particularly they are not the object of larceny, before they are severed from the ground (9).

6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement (r)t: but if the thing itself, by such operation, was changed into a different species, as, by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator, who was only to make a satisfaction to the former proprietor for the materials which he had so converted (s). And these doctrines are implicitly copied and adopted by our Bracton(1), and have since been

(0) 1 Roll. Abr. 666.

(p) Pag. 122, 146: (with note (6) to chap. 8, and note (12) to chap. 9.]

(9) 3 Inst. 109.

(r) Inst. 2. 1. 25, 26. 31. Ff. 6. 1. 5.
(s) Inst. 2. 1. 25, 34.
(1) 1. 2. c. 2 & 3.

Mr. Christian observes, that “this prove the identity of the original maalso has long been the law of England; terials; as, if leather be made into for it is laid down in the Year-books, shoes, cloth into a coat, or if a tree be that whatever alteration of form any squared into timber, or silver melted or property has undergone, the owner may beat into a different figure. (5 Hen.VII. seize it in its new shape, if he can fo. 15. 12 Hen. VIII. fo. 10.)"