Law of prop

erty neces

trary.

Wills, therefore, and testaments, rights of inheritance and sucsarily arbi- cessions, are all of them creatures of the civil or municipal laws, and, accordingly, are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid: neither does any thing vary more than the right of inheritance under different nation[13] al establishments. In England particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be that has not its foundation in the positive rules of the state. In personal estates, the father may succeed to his children; in landed property, he never can be their immediate heir, by any the remotest possiblility: in general, only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance: in real estates, males are preferred to females, and the eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires,' they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had, by nature, a right to succeed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests that, on the death of the possessor, the estate should again become common, and be open to the next occupant, unless otherwise ordered, for the sake of civil peace, by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person who, from [ 14 ] the result of certain local constitutions, appears to be the heir at law. Hence it follows that, where the appointment is regularly made, there can not be a shadow of right in any one but

(6) The law is now different. Even when the text was written it was not impossible for a father to be immediate

heir to his child, though not as father. (See post, p. 220, n., 240, n.)

(7) Two witnesses are now sufficient.

the person appointed; and, where the necessary requisites are omitted, the right of the heir is equally strong, and built upon as solid a foundation as the right of the devisee would have been, supposing such requisites were observed.8

as

But, after all, there are some few things which, notwithstand- Some things ing the general introduction and continuance of property, must still in comstill unavoidably remain in common, being such wherein noth-light, air, ing but an usufructuary property is capable of being had; and, water, &c. therefore, they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences; such, also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untamable disposition, which any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterward.

would be so

propriated,

Again: there are other things in which a permanent prop- And other erty may subsist, not only as to the temporary use, but also the things which solid substance; and which yet would be frequently found with- unless ap out a proprietor, had not the wisdom of the law provided a as wrecks, remedy to obviate this inconvenience. Such are forests and &c. other waste grounds, which were omitted to be appropriated in the general distribution of lands; such, also, are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels would frequent- [ 15 ] ly arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has, therefore, wisely cut up the root of dissension by vesting the things themselves in the sovereign of the state; or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has uni

disappointed devisee is an adopted
child, without fortune, who has been
treated and has behaved as if the
tie had been one of nature. The
heir breaks no promise, it is true, by
ruining the orphan, but few would be
disposed, after such an act, to rely on
his honesty..

(8) A strange confusion is here made of something which is called the law of nature, of positive law, and of the rules of morality; and few of his readers will agree with the commentator in concluding that an heir would always be morally justified in taking an advantage of a slip in the execution of his ancestor's will. Suppose the heir to be wealthy, distantly related to his ancestor, and (9) See this doctrine discussed in the personally a stranger to him; while the note to p. 419, post. The legislature

versally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.

has now vested the property of game, in most instances, in the occupier of the 16

land on which it is found. (Stat. 1 & 2 Will. IV., c. 32.)

CHAPTER II.

OF REAL PROPERTY; AND, FIRST, OF CORRAL HEREDITAMENTS.

al.

person

THE objects of dominion or property are things, as contra- Things dividistinguished from persons; and things are by the law of En-ded into real gland distributed into two kinds things real and things personal. Things real are such as are permanent, fixed, and immovable, which can not 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.1

Subject of

divided.

In treating of things real, let us consider, first, their several real property 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, the several sorts.

First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments.2 Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification, as will Tenement. presently appear more at large. Tenement is a word of still

Land.

greater extent, and though in its vulgar acceptation is only ap[ 17 ] plied to houses and other buildings, yet in its original, proper, and legal sense it signifies every thing that may be holden, provided it be of a permanent3 nature; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. Thus, liberum tenementum, frank tenement, or freehold, is applicable not