justice, be restrained to such captors as are authorized by the public authority of the state, residing in the crown; 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 holdend that, where a foreigner is resident in England, and afterward 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 afterward retaken 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 sunset puts in his claim of property:e which is agreeable to the law of nations, as understood in the time of Grotius,f 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 authoritiess require that, before the [402] property can be changed, the goods must have been brought into port, and have continued a night infra præsidia, in a place of safe custody, so that all hope of recovering them was lost." (2) Modern authorities require some- f De J. B. & P., 1. 3, c. 6, § 3. Bynkersh., Quæst. Jur. Publ., i., 4 Rocc., De Assecur. Not., 66. comes valid, even though there was no legal condemnation. (6 Rob., 142.) The title of a neutral will not be defeated by his subsequently becoming an enemy. (6 Rob., 45; see 1 Chitty's Com. Law, 433-4.) It has been established by several acts of Parliament, that, among English subjects, ships or goods taken at sea by an enemy, and afterward retaken, at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to the original proprietors, on payment of cer tain salvage. (2 Burr., 1198; and 1 W. Bl., 27.) The statute 43 Geo. III., c. 160, s. 39, makes an exception as to ships which have been set forth by the enemy as vessels of war; enacting that these shall not be restored to the original owners, but belong wholly to the recaptors. And if the property recaptured were captured first in an illegal trade, then the original right is divested, and the recaptors are not bound to restitution. (2 Rob., 77.) In the case of The Santa Cruz (1 Rob., 49), Sir Wm. Scott said, "The actual rule of the English maritime law I understand to be this, that the maritime law of England having adopted a most liberal rule of restitution The same doctrine is held in 10 Johns. R., 183; and it seems that aliens resident here at the commencement of the war may sue and be sued as in time of peace.-(S. C. & 13 Ib., 1.) And as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property by taking him a prisoner in war,h at least till his ransom be paid. And this doctrine seems to have been extended to negro servantsi 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) consists rather in the perpetual service, than in the body or person of the captive.k 2. Goods found and known. 2. Thus, again, whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner unowner, are supposed to be abandoned by the last proprietor, 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 they fall within. the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have formerly seen,1 are vested by law in the king, and form a part of the ordinary revenue of the crown. water, &c. 3. Thus, too, the benefits of the elements, the light, the air, 3. Light, air, and the water, can only be appropriated by occupancy. If I have an ancient window, overlooking my neighbor's ground, he may not erect any blind to obstruct the light; but if I build my house close to his wall, which darkens it, I can not compel him to demolish his wall; for there the first occupancy is rather in him than in me. If my neighbor makes a tan-yard, so as to [403] annoy and render less salubrious the air of my house or gar h Bro. Abr., tit. Propertie, 18. We meet with a curious writ of trespass in the register (102) for breaking a man's house, and setting such his prisoner at large. "Quare domum ipsius A. apud W. (in qua idem A. quendam H. Scotum per ipsum A. de guerra captum tanquam prisonem suum, quousque sibi de centum libris, per quas idem H. redemptionem suam cum præfaro A. j 2 Lev., 201. k Carth., 396. Ld. Raym., 147. Salk., 667. 1 Book i., ch. 8. with respect to the recaptured property cue, when it is effected by the rising of (3) Ransom of ships, &c., is now illegal, unless in case of necessity, to be allowed by the Admiralty, by 22 Geo. III., c. 25; 43 Geo. III., c. 160, s. 34, 35, 36; 45 Geo. III., c. 72; 2 Doug., 649; 3 Taunt., 6. Securities for ransom in the hands of innocent holders for value, are valid. (5 & 6 Will. IV., c. 41.) 4. Animals feræ naturæ. 5 Emblements. dens, 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 nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow; for he hath by the first occupancy acquired a property in the current.* 4. With regard, likewise, to animals feræ naturæ, all mankind had, by the original grant of the Creator, a right to pursue 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 property, is, according to their respective values, sometimes a criminal offense, sometimes only a civil injury. The restrictions which are laid upon this right by the laws of England 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. To this principle of occupancy, also, must be referred the method of acquiring a special personal property in corn growing on the ground, or other emblements, by any possessor of the [404] land who hath sown or planted it, whether he 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. They (4) The subject of this paragraph does not belong to the head of personal property. Rights to light, air, &c., are not of a personal nature, but are incidents to the enjoyment of real estate; and even easements annexed to the person, or in gross, are real property. Vide ante, p. 36, n. (46).) (5). As to this, see post, p. 419, note. (6) The right to emblements does not seem to be aptly referred to the principle of occupancy; for they are the continuation of an inchoate, and not the ac quisition of an original right.-[CHRIST IAN.] (Vide ante, p. 122.) m were devisable by testament before the Statute of Wills, 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;" and by the statute 11 Geo. II., c. 19, though not by the common law, they may be distrained 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 distrainable 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. sion. 6. The doctrine of property arising from accession is also 6. By acces grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterward an accession by natural or 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; 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. And these doc m Perk., § 512. a Bro. Abr., tit. Emblements, 21. 5 Rep., 116. 1 Roll. Abr., 666. P Pages 122, 146. 9 3 Inst., 109. r Inst., 1, 25, 26, 31. Ff., 6, 1, 5. whatsoever, which shall be newly sown (7) But by the 56 Geo. III., c. 50, no sheriff or other officer shall sell or carry off from any lands any straw, chaff, turnips, or manure, in any case, nor any hay or other produce, contrary to any (8) This also has long been the law covenant or written agreement for the of England; for it is laid down in the benefit of the owner of the land; but the year-books that, whatever alteration of tenant must give previous notice to the form any property has undergone, the sheriff, &c., of the existence of such cov- owner may seize it in its new shape, if enant, &c. The produce, &c., may be he can prove the identity of the original sold, subject to an agreement to expend materials; as, if leather be made into it on the land. And landlords are not shoes, cloth into a coat, or if a tree be to distrain for rent on purchasers of squared into timber, or silver melted or crops severed from the soil, or other beat into a different figure. (5 Hen. things sold subject to such agreement; VII., fo. 15; 12 Hen. VIII., fo. 10.)nor shall the sheriff sell or dispose of any [CHRISTIAN.]† clover, rye grass, or any artificial grass * So, by statute, they are subject to distress in New York.-(2 R. S., 501, § 10.) So trover lies for the recovery of boards or plank made out of saw logs, and the enhanced value may be claimed ---(7 Cowen, 95; 8 Wendell, 505.) VOL. II.-HÍ 481 [405] trines are implicitly copied and adopted by our Bracton,t and have since been confirmed by many resolutions of the courts." It hath even been held that if one takes away and clothes another's wife or son, and afterward they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman.w 1. Confusion an intermixture of goods. 8. Copyright in books. 7. But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that, in both laws, the proprietors have an interest in common, in proportion to their respective shares. But if one willfully intermixes his money, corn, or hay with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting-pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavored to be rendered uncertain, without his own consent.z9 10 8. There is still another species of property, which (if it subsists by the common law), being grounded on labor and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke,a and many others, to be founded on the personal labor of the occupant. And this is the right which an author may be supposed to have in his own original literary composi tions; so that no other person, without his leave, may publish or make profit of the copies. When a man, by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made 1406] of it appears to be an invasion of that right. Now the identi (9) See 2 Camp., 576; 15 Ves., 442. y Inst., 2, 1, 28. * Poph., 38. 2 Bulstr., 325. 1 Hal., P. C., 513. 2 Vern., 516.* a On Gov., part 2, ch. 5. b See page 8. and, though partially founded on the notion of protecting the public from fraud (10) The right to the exclusive use of (3 Myl. & Cr., 338; 8 Sim., 477), is an particular distinctive trade marks, or of example of a right much more evident. a particular partnership firm (7 Sim., ly arising out of occupancy. (See 3 421), for enabling the public to know if it Dougl., 293; 3 B. & Cr., 541; 2 Ves. & is dealing with, or buying the manufac- B., 218; 2 Keen, 213; 3 Myl. & Cr., 1 tures of, a particular person, is some- 338; 5 Scott, N. R., 562. what analogous to literary copyright, |