produce which the Farmer has, after paying Rent, Wages, and other expenses, is the Profits of his Stock.

136. These various forms of the distribution of the wealth produced by the soil of each Country affect very greatly other Rights, as well as the Rights of Property (129). The Serf generally possesses in a very imperfect degree the Rights of the Person against his Lord; but against other persons, his Lord is supposed to afford him protection. In modern Europe, there prevailed, for several centuries, a System of Tenure of Land with such mutual Rights and Obligations; namely, the Feudal System. According to this system, Land was held on the conditions of Protection from the Superior, and Service from the Inferior; and according to these conditions, a series of Persons, each subordinate to the one above him, had a 'modified Property in the Land. Each such person was the Vassal of the one above him, his Superior Lord or Seignior. Each Lord had a Right to certain Payments or Dues from his Vassals; and the Vassal, being marshalled as a Soldier under his Lord, was enabled to protect himself and others. The Land thus granted by a superior to an inferior was called a Feud or Fee. None of these Feuds or Fees was an absolute Property; all were held of the Sovereign, at least in England. He was the only Landlord; and the highest Title of Ownership under the Feudal System was Tenant in Fee Simple. Besides Tenants of various kinds, there were mere Labourers who held no Fees, and were called Villeins. At first, this Cultivator in England was precisely in the situation of the Russian Serf*. In the three centuries beginning from about A.D. 1300, the unlimited Labour-Rents paid by the English Villeins for the lands allotted them were gradually commuted for definite services, still payable to the Lord. Out of this grew a legal Right of some of the cultivators to the

* Jones On Rent, p. 40.

occupation of their Lands, which were registered in a list kept by the Lord. Hence these were called Copyhold Tenures, in distinction to the usual possession of the Soil by a freeman, which was a Freehold Tenure.

137. The relations which the Tenure of Landed Property establishes among different classes continue to influence the Laws, and still more the Forms of Law, in each country, long after their original force has been lost. Two hundred years have barely elapsed since the personal bondage of the Villein ceased to exist among us. Copyhold Tenures are still familiar. The Lord of the Manor, the representative of the Feudal Seignior, has still various Rights, due to him from Copyhold Tenants: as Heriots, payable on the death of the Tenant; Fines, payable when the Land is alienated by the Tenant to another person; the Rights of pursuing Game, which are reserved to the Lord of the Manor, even in Freeholds. And the phrases used in transferring Landed Property still have many traces of the Feudal System.

138. In like manner, in the Roman Law the conditions of Property and the modes of transferring it retained to a late period traces of the earlier modes of Tenure. In the earliest known stage of the Roman Law, Lands, with the Slaves and Cattle requisite for their cultivation, were transferred by a ceremonious form called Mancipatio; and the Quirites, or original Roman citizens, could not transfer ownership in any other way. Hence arose a division of Res Mancipi, things which could be thus transferred, and Res nec Mancipi, things which could not. But though a man could not acquire Quiritarian ownership or Dominium, without this process, he might have possession and use of a thing without such ownership; and the later jurists recognized this kind of Right. They say*, There is among foreigners

* Gaius II. 40, who lived in the time of the Antonines.

only one kind of ownership (dominium), so that a man is either the owner of a thing, or he is not. And this was formerly the case among the Roman people: for a man was either the owner ex jure Quiritium, or he was not. But afterwards the ownership was split; so that now one man may be the Owner of a thing ex jure Quiritium, and yet another person may have it in his possession (in bonis). For instance, if in the case of a thing which is res mancipi, I do not transfer it to you by mancipatio, but merely deliver it to you, the thing indeed becomes your thing (in bonis tuis), but it will remain mine ex jure Quiritium, until by continued possession you have acquired a Right (donec tu eam possidendo usucapias). When that is complete, it is yours absolutely (pleno jure).

139. Upon the conditions of tenure of land, depend the Title or evidence of ownership; the modes of Conveyance or Transfer by Contract; the modes of Succession on the death of the Proprietor, whether by his Testament, or ab intestato: the judicial Remedies for Wrongs: and the like. A person's landed property so much determines his condition, that we commonly speak of his land as his Estate. The possesssion of a house, or habitation, is important to man in his social condition, not only as a means of shelter and bodily comfort, but also as giving him a fixed local position in the Community. By such possession, he is a Householder; and for many important purposes the State or City is considered as consisting of Householders. The place, neighbourhood, city, or country in which a person has his habitation, is his Domicile (Domicilium). A person's Domicile, for the most part, places him under the Laws of the State in which it is situated.

140. As Property in Land, and in the fruits produced by the cultivation of the Land, is established and realized by

the Laws and Customs of each country; in like manner is established Property in other objects, which can be distributed and assigned to special persons; for instance, in flocks and herds, and their produce; in the produce of the interior of the earth, as mines; in all that we fabricate by fashioning into a new form the materials thus produced, wood, stone, metal, and the parts of plants and of animals. With regard to all these, and other forms of material or corporeal Property, the Law in every Country recognizes certain modes of acquiring, possessing, and transferring them, as conferring Rights.

141. The Wrongs, or Injuries by which the Rights of Property are violated, are distinguished and classed by the Law according to their circumstances. The Command, Thou shalt not steal, is the basis of all Laws on this subject. The definition of Stealing, or Larceny (Latrocinium), in the English Law*, is "the felonious taking and carrying away the goods of another." was nearly the same.

The definition of the Roman Lawt "Furtum est contrectatio fraudulosa, lucri faciendi causâ, vel ipsius rei, vel etiam ejus usus possessionisve." The English Law further distinguishes prioately Stealing, as for instance, picking the pocket; and open and violent Larceny, which is Robbery; this the Roman Law § calls Bona vi rapta. Another crime against property is Burglary (Burgi Latrocinium), or nocturnal Housebreaking; for the Law considers the crime if committed by night as much more heinous than the like act committed by day;

* Blackstone, Iv. 229. The more exact definition, by modern lawyers, of Theft is, a taking or removing of some Thing; being the Property of some other Person and of some value; without due Consent (to be separately defined); with intent to despoil the owner, and fraudulently appropriate the thing.

+ Instit. IV. 1.

The distinction of privately stealing is now done away as an aggravation. § Dig. XLVII. 8.

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as we have already seen that it makes a difference in the Right of self-defence in the two cases.

142. The crime of Theft, as above defined, includes only the cases in which the Thief touches and takes the material object: but besides these, a person may be despoiled of his property by Fraud; as for instance, when an Order to deliver goods is fabricated or forged by some one who has no Right to give such Order. This is Forgery. In the Roman Law* it was Crimen Falsi. "Lex Cornelia de falsis pœnam irrogat ei qui testamentum aliudve instrumentum falsum scripserit, signaverit, recitaverit, subjecerit; vel signum adulterinum fecerit, sculpserit, expresserit, sciens, dolo malo." We need not here attempt to enumerate the various forms of fraud and deception by which a person may be deprived of his property. They are all included in the term Cheating.

143. According to the English Law, Larceny applies only to moveable Property; for landed Property, by its nature, cannot be taken and carried away. And even of things that adhere to the Land, as Corn, Grass, Trees, and the like, no Larceny can be committed by the Common Law of England. The Severance of these from their roots is an Injury against the real Estate, which is termed a Trespass.

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Inst. Iv. 18. 7. "The Law of Forgery appoints a punishment for a man, if knowingly, and with fraudulent intent, he has written, sealed, recited, or substituted a testament or other instrument: or if he has, with like knowledge and intent, forged the signet of another person, by marking, or other way of expressing." The English Law is, "Whosoever by means of any false Seal, Signature, Stamp, Impression, or Mark, deceptively used to obtain undue credit, &c. or by means of any Machine, Instrument, or Thing, artfully contrived and fraudulently used for the purpose of Deception, or by the false and deceptive Use of any other Instrument or Thing by Sleight of Hand or other Device, or by any false Personation, shall cheat or defraud any other Person of any Property, shall incur Penalties, &c.