baffled. There is no visible part, no square foot or square inch of surface that does not belong to A as much as to B, and to B as much as to A. The parts, in fact, have as yet no separate existence; they are not cognizable by the senses, they are ideal, incorporeal. The Romans had a process of law, the actio communi dividundo (the action for dividing property held in common), by which either of the joint owners might cause his part to be set off with definite boundaries. When this was done, the parts became corporeal things; but then there was no longer a joint ownership; each man became separate and sole owner of the part assigned to him. In the case just supposed, the parts were incorporeal while the whole was corporeal. But the opposite case is frequent, where the parts are corporeal but the whole incorporeal. You will probably think me paradoxical if I give as example a flock of sheep. For this seems at first view to differ only in number from the single objects that compose it, and to be like them corporeal. And this view would be a correct one, if the flock was only a collection, brought together by accident, and having no permanent character. But it is otherwise with a flock which is kept up for a length of time, so as to have a continued existence, an identity, independent of the particular individuals belonging to it, and remaining the same while these. undergo a complete change. A whole which remains the same while the material parts that compose it are all changed, cannot be entirely material; it must have an ideal element which continues through all changes and maintains the identity of the whole. This reasoning may seem rather subtile, but the correctness of the conclusion is generally admitted. So a man's estate, the total of his property relations, the aggregate of money, lands, chattels, rights, claims, and liabilities, belonging to him, was regarded by the Romans as a res incorporalis. Even if it happened to consist only of material things, money, lands, chattels, without any immaterial rights, claims, or liabilities, this was a mere accident, and the estate, as such, was still regarded as a res incorporalis. And so was the hereditas, the estate of a deceased person, the total of his property relations, which, by will of the deceased, or by course of law, became vested in the person of his heir. A third division of property is into res mobiles and immobiles (movable and immovable property). Immovable, in the fullest sense, is land alone; but buildings or structures of a permanent character erected upon it, share in this quality. The solum and res soli constitute the class of res immobiles. They are in their nature so peculiar that no law-system can fail to recognize the peculiarity. A popular writer says: "No man, be he ever so feloniously disposed, can run away with an acre of land. The owner may be ejected, but the land remains where it was; and he who has been wrongfully turned out of possession may be reinstated into the identical portion of land from which he had been removed. Not so with movable property; the thief may be discovered and punished; but if he has made away with the goods, no power on earth can restore them to the owner. All he can hope to obtain is a compensation in money, or in some other article of equal value." In the Roman law, however, this distinction between land with its fixed appurtenances and all other kinds of property was not made very prominent. So far as its nature admitted, land was put on the same footing and treated in the same way with movable property. In English law, on the other hand, this distinction is of overshadowing importance. Landed property is peculiar in the modes of creating and transferring it, in the processes for defending and reclaiming it, and indeed in the most of its incidents and relations. It is true that there has been a progressive assimilation: the differences are not so great now as they were in former centuries; but they are still so great as to demand separate treatment in the English books of law. These books all divide property law into two great departments, the law of real property and the law of personal property. They do not, like the Roman writers, give a body of principles and rules applicable to all kinds of property, and point out in connection with this the peculiarities which distinguish land and buildings. They give a complete law of real property, and a complete law of personal property, as if they were two radically distinct systems. The fact here stated finds its explanation in the feudal system, as having land for its basis and regulator. The feudal nobility was not merely a landed aristocracy, a body of large land-owners; but their relations to one another, to the common sovereign above them, and to the popular mass below them, were determined by the land. Each member of the body had his rank, his privileges, his rights, his duties, affixed to and dependent upon the land which he held as liegeman of a feudal superior, or granted as liegelord to feudal inferiors. Hence grants of land and tenures of land assumed a great variety of forms, conditions, and incidents. They were the main subjects of the early English law, in which, as already remarked, personal property, movable property, passed almost unnoticed. Personal property has since attained an importance not inferior to real; and the latter has lost many of the peculiarities which once belonged to it; but the separation between them is still much wider in English than in Roman law. Even the countries of the European Continent which have more or less fully adopted the Roman law, have been subject to the influence of feudalism, and their law-systems are in this respect less simple than the Roman. We have next to consider the ways in which property rights are created, the modes of acquiring prop erty. Of course, the most frequent way is that of transfer by sale or gift from some previous owner. The right of the new owner is in such cases founded upon and derived from that of his predecessor; it is essentially the same right, only transferred to a new person. But it is not this derived ownership that we are to consider now. It is, rather, the origination of property rights which do not depend on a predecessor, the modes of original acquisition. First, then, if a thing is without owner, any one is at liberty to take and keep it: he makes it his own by the very act of taking possession. To this mode of acquisition the Romans gave the name of occupatio, which indeed signified "taking possession." A thing might be without owner, because somebody who before owned it had voluntarily relinquished or abandoned it, had thrown it away or had given up exercising the rights of an owner. The person taking possession must be able to show by some such act or fact that the previous owner really intended to divest himself of his ownership. Again, in case of war, if, at the commencement of hostilities any Roman citizen had in his hands property belonging to a member of the hostile nation, he was entitled to keep it as his own. In an alien enemy the law recognized no right of ownership. Whatever right he before had was extinguished by the breaking out of war. The property which before belonged to him was left without owner, |