2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law under Hen. VIII., since made more universal by the statute of tenures under Charles II., with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign

Page 375-376

3. The construction of all common assurances should be, I. Agreeable to the intention, II. To the words, of the parties. III. Made upon the entire deed. IV. Bearing strongest against the contractor. V. Conformable to law. VI. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will VII. Mos favorable in case of a devise 379-381

CHAPTER XXIV.

OF THINGS PERSONAL.

1. THINGS personal are comprehended under the general name of chattels; which include whatever wants either the duration or the immobility attending things real 384

2. In these are to be considered, I. Their distribution. II. The property of them. III. The title to that property

384-387

3. As to the distribution of chattels; they are, I. Chattels real. II. Chattels per

sonal

386

4. Chattels real are such quantities of interest in things immovable as are short of the duration of freeholds; being limited to a time certain, beyond which they can not subsist. (See Ch. IX.) 386

.

5. Chattels personal are things movable, which may be transferred from place to place, together with the person of the owner

387

CHAPTER XXV.

OF PROPERTY IN THINGS PERSONAL.

1. PROPERTY in chattels personal is either in possession or in action

389

2. Property in possession, where a man has the actual enjoyment of the thing, is, I. Absolute. II. Qualified.

389

3. Absolute property is where a man has such an exclusive right in the thing that it can not cease to be his without his own act or default

389

4. Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist

391

5. This may arise, I. Where the subject is incapable of absolute ownership. II. From the peculiar circumstances of the owners

391-396

6. Property in action is where a man hath not the actual occupation of the thing, but only a right to it, arising upon some contract, and recoverable by an action at law

7. The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy; and to tenancy in common.

CHAPTER XXVI.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

398

1. THE title to things personal may be acquired or lost by, I. Occupancy. II. Prerogative. III. Forfeiture. IV. Custom. V. Succession. VI. Marriage. VII. Judg VIII. Gift, or grant. IX. Contract. X. Bankruptcy. XI. Testament. XII. Administration

2. Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such are, I. Goods of alien enemies. II. Things found. III. The benefit of the elements. IV. Animals feræ naturæ. V. Emblements. VI. Things gained by accession; or, VII. By confusion. VIII. Literary property

1. By prerogative is vested in the crown, or its grantees, the property of the royal revenue (See Book I., Ch. VIII.); and also the property of all game in the kingdom. with the right of pursuing and taking it

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2. By forfeiture, for crimes and misdemeanors, the right of goods and chattels may be transferred from one man to another; either in part or totally Page 420 3. Total forfeitures of goods arise from conviction of, I. Treason, and misprision thereof. II. Felony. III. Excusable homicide. IV. Outlawry for treason or felony. V. Flight. VI. Standing mute. VII. Assaults on a judge; and batteries, sitting the courts. VIII. Præmunire. IX. Pretended prophecies. X. Owling. XI. Residing abroad of artificers. XII. Challenges to fight for debts at play.

421

CHAPTER XXVIII.

OF TITLE BY CUSTOM.

1. By custom, obtaining in particular places, a right may be acquired in chattels; the most usual of which customs are those relating to, I. Heriots. II. Mortuaries. III. Heir-looms 422

2. Heriots are either heriot-service, which differs little from a rent; or heriot-custom, which is a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of lands

3. Mortuaries are a customary gift, due to the minister in many parishes death of his parishioners

422

on the

425

4. Heir-looms are such personal chattels as descend by special custom to the heir, along with the inheritance of his ancestor

427

CHAPTER XXIX.

OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT.

1. By succession the right of chattels is vested in corporations aggregate, and likewise in such corporations sole as are the heads and representatives of bodies aggregate 430 2. By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession

433

3. The wife also acquires, by marriage, a property in her paraphernalia 435 4. By judgment, consequent on a suit at law, a man may, in some cases, not only recover, but originally acquire, a right to personal property. As, I. To penalties recoverable by action popular. II. To damages. III. To costs of suit

436-439

CHAPTER XXX.

OF TITLE BY GIFT, GRANT, AND CONTRACT.

1. A GIFT, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or equivalent 440

.

2. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing; and by such contract any personal property (either in possession or in action) may be transferred.

3. Contracts may be either express or implied; either executed or executory 443 4. The consideration of contracts is, I. A good consideration. II. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias

5. The most usual species of personal contracts are, I. Sale or exchange. II. Bailment. III. Hiring or borrowing. IV. Debt

446

6. Sale or exchange is a transmutation of property from one man to another, in consideration of some recompense in value

7. Bailment is the delivery of goods in trust, upon a contract, express or implied, that the trust shall be faithfully performed by the bailee

451

8. Hiring or borrowing is a contract, whereby the possession of chattels is transferred for a particular time, on condition that the identical goods (or, sometimes, their value) be restored at the time appointed, together with (in case of hiring) a stipend or price for the use

9. This price, being calculated to answer the hazard, as well as inconvenience of lending, gives birth to the doctrine of interest or usury upon loans; and, consequently, to the doctrine of bottomry or respondentia, and insurance. 453-464

10. Debt is any contract whereby a certain sum of money becomes due to the creditor. This is, I. A debt of record. II. A debt upon special contract. III. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes Page 464-470

CHAPTER XXXI.

OF TITLE BY BANKRUPTCY.

1. BANKRUPTCY (as defined in Ch. XVIII.) is the act of becoming a bankrupt 471 2. Herein may be considered, I. Who may become a bankrupt. II. The acts whereby he may become a bankrupt. III. The proceedings on a commission of bankrupt. IV. How his property is transferred thereby

471

3. Persons of full age using the trade of merchandise, by buying and selling, and seeking their livelihood thereby, are liable to become bankrupts, for debts of a sufficient amount

473

4. A trader who endeavors to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit a bankruptcy

478

5. The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, I. Petition. II. Commission. III. Declaration of bankruptcy. IV. Choice of assignees. V. The bankrupt's surrender. VI. His examination. VII. His discovery. VIII. His certificate. IX. His allowance. X. His indemnity 479-485

6. The property of a bankrupt's personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees; and they, when they have collected, distribute the whole by equal dividends among all the creditors. 485-488

CHAPTER XXXII.

OF TITLE BY TESTAMENT AND ADMINISTRATION.

1. CONCERNING testaments and administrations, considered jointly, are to be observed, I. Their original and antiquity. II. Who may make a testament. III. Its nature and incidents. IV. What are executors and administrators. V. Their office and duty 489

2. Testaments have subsisted in England immemorially, whereby the deceased was at liberty to dispose of his personal estate, reserving anciently to his wife and children their reasonable part of his effects 491

3. The goods of intestates belonged anciently to the king, who granted them to the prelates, to be disposed in pious uses; but, on their abuse of this trust, in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law

493

4. All persons may make a testament unless disabled by, I. Want of discretion. II. Want of free will. III. Criminal conduct

496, 497 5. Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, I. Written. II. Nuncupative

499, 500 6. An executor is he to whom a man by his will commits the execution thereof 502 7. Administrators are, I. Durante minore ælate of an infant executor or administrator; or durante absentiâ; or pendente lite. II. Cum testamento annexo; when no executor is named, or the executor refuses to act. III. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. IV. Administrators de bonis non; when a former executor or administrator dies without completing his trust

503-507

8. The office and duty of executors (and, in many points, of administrators also) are, I. To bury the deceased. II. To prove the will, or take out administration. III. To make an inventory. IV. To collect the goods and chattels. V. To pay debts; observing the rules of priority. VI. To pay legacies, either general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions

508-520

COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE SECOND.

OF THE RIGHTS OF THINGS.

CHAPTER I.

OF PROPERTY IN GENERAL.

THE former book of these Commentaries having treated at large of the jura personarum, or such rights and duties as are annexed to the persons of men, the objects of our inquiry in this second book will be the jura rerum, or those rights which a man may acquire in and to such external things as are unconnected with his person. These are what the writers on natural law style the rights of dominion, or property; concerning the nature and original of which I shall first premise a few observations, before I proceed to distribute and consider its several objects.

Ofthe rights

to property in general

of such

There is nothing which so generally strikes the imagination, [ 2 ] and engages the affections of mankind, as the right of proper- The nature ty; or that sole and despotic dominion which one man claims and origin and exercises over the external things of the world, in total ex- rights. clusion of the right of any other individual in the universe; and yet there are very few that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or, at best, we rest satisfied with the decision of the laws in our favor, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law why a set of words upon parchment should convey the VOL. II.-A

1

dominion of land; why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it can not be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.

In the beginning of the world, we are informed by Holy Writ, the all-bountiful Creator gave to man "dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth."a [3] This is the only true and solid foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required. These general notions of property were then sufficient to answer all the purposes of human life; and might, perhaps, still have answered them, had it been possible for mankind to have remained in a state of primeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the ancient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein "erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.”b1 Not that this com

State of nature.

a Gen., i., 28.

(1) "This state of nature of the philosophers is to be regarded as a mere fiction, not unlike that of the golden age which poets have invented; only with this difference, that the former is described as full of vice, violence, and injustice; whereas the latter is pointed out to us as the most charming and most peaceable condition that can possibly be imagined. The seasons, in the first age of nature, were so temperate, if we may

b Justin., 1. 43, c. 1.

believe the poets, that there was no necessity for men to provide themselves with clothes and houses as a security against the violence of heat and cold. The rivers flowed with wine and milk, the oaks yielded honey, and nature spontaneously produced her greatest delicacies. Nor were these the chief advantages of that happy age. The storms and tempests were not alone removed from nature, but those more furious tempests