Page images
PDF
EPUB

Wills therefore and testaments, rights of inheritance and fucceflions, 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 national establithments. In England particularly, this di- [ 131 versity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the fucceffion to property, and how futile every claim must be, that has not it's 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 pollibility: in general only the eldest fon, 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 uisu. ally 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 relinquishi 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 fucceffion of

foration were converted into focage tenure, all lands became devisable, some copyholds excepted. P. 375.

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 fociety. The positive law of society, which is with us the municipal law of England, directs it to vest in fuch 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 the result of certain local constitutions, appears to be the heir at law, Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed : and, where the necessary requisites are omitted, the right of the heir is equally strong and built upon as folid a foundation, as the right of the devisee would have been, supposing such requisites were observed.

[merged small][ocr errors]

But, after all, there are some few things, which, noto withstanding the general introduction and continuance of property, muft still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had : and 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 : fuch also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition : which any man may feise upon and keep for his own use or pleasure. All these things, so long as they remain in poffeffion, 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 seise and enjoy them afterwards.

AGAIN; there are other things, in which a permanent property may subGft, not only as to the temporary use, but

also

also the folid substance ; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and 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 frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, [ 15 ] the law has therefore wifely cut up the root of difienfion, by vesting the things themselves in the sovereign of the state : or else in his representatives appointed and authorised by him, being usually the lords of manors(5). And thus the legislature of England has universally 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.

[ocr errors]

1-) The learned Judge has frequently repeated in his commentaries, that all the game belongs to the king, or to his grantees, being usually the lords of manors. This is a dotirine which the editor is obliged to controvert. His reasons and authorities will be stated at large in a note to page 419.

Vol. II.

CHAPTER THE SECOND.

OF REAL PROPERTY; AND, FIRST, OF

CORPOREAL HEREDITAMENTS.

THE objects of dominion or property are things, as con

1 tradistinguished from persons : and things are by the law of England distributed into two kinds ; things real, and things personal. Things real are such as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other movcables ; which may attend the owner's person wherever he thinks proper to go.

In treating of things real, let us confider, first, their sem veral 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, with regard to their several sorts or kinds, things real are usually said to conäft in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification, as will presently appear more at large. Tenement is a. word of still greater extent, and though in its vulgar accept

ation

[ocr errors]

ation it is only applied to houses and other buildings, yet in it's original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubItantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, .commons, and the like : and, as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements b. But an bereditament, says fir Edward Coke, is by much the largest and most comprehensive expression : for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus an heir-loom, or implement of furniture which by custom descends to the heir together with an house, is neither land, nor tenement, but a mere moveable: yet, being inheritable, is comprized under the general word hereditament: and so a condition, the benefit of which may defcend to a man from his ancestor, is also an hereditament,

HEREDITAMENTS then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

CORPOREAL hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says for Edward Coke", comprehendeth in it's legal signification any ground, soil, or earth whatsoever ; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath.

a Co. Litt. 6. b Ibid. 19, 20. ci Inft. 6.

d 3 Rep. 2. e z Int. 4.

« PreviousContinue »