See farther as to dominium eminens, or the right of the community to take at a fair price the property of individuals for public use, the sup plement of 1802 to the Pennsylvania compromising law respecting the Wyoming controversy. Vattel L. I. ch. 20. § 244-248. Bynkershoek, Lib. 2 ch. 15. Rousseau's social compact, ch. 9. Domat, L. 1. tit. 8. § 1. p. 381. fol. ed. De Tott's mem. the case of a Jew, whom the Grand Signor was compelled by the Mufti to purchase out: cited in Lindsay et al. v. the Commissioners, 2. Bay. South Carolina rep. 41.

13. De vulneratione. In Sutton and Moody, 1 Salk. 556. 1 Lord Ray, 250. Comyns, rep. 34. cited in Vere v. lord Cawdon, 11 East. 570, if one start a hare in my close and kill her there, it is my hare : otherwise if he hunt her into the ground of another; for then it is the hunter's. Though this indeed is not exactly the case of the text.

In Pierson v. Post, 3 Caines N. Y. rep. 175. the question is very fully discussed, with references to the civil law doctrine, and the law as laid down by Puffendorf and Barbeyrac, and Fleta, and Blackstone; and determined that wild animals, feræ naturæ (this was the case of a fox) become the subjects of occupancy, only when they are either taken, or so disabled or circumvented as to render their capture certain a and therefore, that no action will lie against B for killing such an animal, originally started and pursued by the Plaintiff A who was on the point of taking it. That a fox is always so considered is certain, see the opinion of the court, in Respublica v. Sparhawk, late above quoted. I confess I do not consider the subject exactly in the same point of view. It appears to me that the question is not merely whether the animal pursued be feræ naturæ or not, but whether it be wild and noxious, without being valuable. A fox, a bear, a stag, a beaver, a racoon, an otter, &c. are clearly wild animals; but the skin of them may be of more value than the flesh of a tame animal of equal size. If I pursue the creature for profit, I am entitled to it, if I have so conducted the chase as to put the animal in my power: any other person coming in between me and manucaption in such a case, cannot be considered as entitled to any part of the prey. Just as if a ship of war of a belligerent, pursues an enemy's vessel, and so gains upon her, being of superior force also, that the capture is certain, in such a case, another vessel of the same belligerent assisting, would not be entitled to any share of the prize money: but if the latter vessel, rendered a doubtful chance certain, and contributed to take a prize which probably would not have been taken without such assistance, then the prize cannot be claimed in toto by the first pursuer.'

But if the wild animal be pursued not for profit but extirpation,

then, any intervenient person, may as I suppose, lawfully assist; and no action lies against him for killing it, though started and chased by another as was determined in Pierson v. Post. Still, a distinction may reasonably suggest itself, when the animal is pursued not for the mere purpose of extirpation, but for the pleasure of hunting, according to the usual rules and practice of those who follow that amusement. I well remember that in my time and in my immediate neighbourhood in Cheshire in England, foxes were regularly imported from France to supply the demands of the HUNT. The sudden shooting of a fox just ran down after a day's chase, would in that part of the kingdom be regarded as an outrage upon the rights of the pursuers, and upon the rules of good manners, not tamely to be borne. But the law has hitherto it seems, refused to recognize the rights of Foxhunters.

§ 14 De Apibus, p. 72. In conformity to the doctrine here laid down, it is decided in Gillet v. Mason, 7 Johns. N. York Rep. 16, that Bees are feræ naturæ, and until hived and reclaimed, no property can be acquired in them: and that the finding a Bee-tree on the land of another, and marking it with the initials of the finder's name, is not such an appropriation as will be a substitute for the actual reclaiming of them nor can the finder maintain trespass against any other person who under these circumstances cuts down the tree, and takes the honey.

In Wallis v. Mease, 3 Binney, 546, It was determined that wild bees remaining on the tree where they have hived, not withstanding the tree is upon the land of an individual, and he has confined them in it, are not the subjects of felony. This section of Justinian is there cited and assented to by Judge Brackenridge, who enters at some length into the reason of the doctrine: see 2 Blacks. Comm. 392. Bro. Abs. title Property, 37.

18. De occupatione eorum, p. 73. Found-means, not merely discovered, but taken up. Dig. 41. 2. 1. 1.

19. De fætu animalium, p. 73. That is by accession: which is 1st by increment of stock. 2ly By alluvion. 3ly An article manufactured out of materials belonging to us. 4ly By the annexation or junction to our property, of something belonging to another.

20. De alluvione, p 74. This doctrine of alluvion is the law of England also: See 2 Black. Comm. 261. Adams v. Frothingham 3 Massach. Rep. 352.

21. De vi fluminis, p. 74. Dig. 41. 1. 7. 1. Dig. 39. 2. 9. 2. But if I leave it till it can no more be separated, I have a right to nothing

but an action for the value. Dig. 6. 1. 23. 3. and 6. 1. 5. 3. Dig. 41. 1. 9. Lord Ray. 737 Waterman v. Soper.

§ 22. De insula, p. 74. The law of England is different, by which it belongs to the king. 2 Black. Comm. 261. Some of the principles on this subject are touched in Carson v. Blazer. 2 Binn. 485.

§ 23 De alveo, p. 75. Dig. 43. 12. 1. 7. Dig. 7. 4. 24.. Dig. 41.

1. 7. 5.

$25, De specificatione p. 75. Sabinianorum et Proculianorum.] The two sects of Sabinians and Proculians took their rise in the reign of Augustus, but were not distinguished by any particular appellation, till long afterwards: for the Sabinians obtained their name from Sabinus, who was a favourite of the emperor Tiberius; and the Proculians were so called from Proculus, who flourished under Vespsian. It is generally held, that Atteius Capito, who lived in the Augustan age, and was a person remarkable for his great attachment to precedents and old customs, was the chief of the Sabinians; and that Antistius Labeo, his cotemporary, who did not confine himself wholly to rules, but followed principally the dictates of reason and his own understanding, was the head of the Proculian sect. These sects continued in vogue to the reign of Marcus Aurelius, till which time, the students of the law generally attached themselves to either the one or the others But the lawyers of that reign affected neither party in particular; for at different times they dispassionately approved the opinions of either sect, as they judged them more or less agreeable to justice and right reason and they generally endeavoured by an equal temperature, to avoid the absurdities, into which both parties, by reason of their great dislike and opposition to each other, had frequently fallen. ff. 1. de origine juris. Hist. du droit Romain, par Claude Ferriere.

These lawyers (who from their conduct were denominated. Ercis-' cundi, from the old verb erciscere to divide) are the persons, hinted at by Justinian in this paragraph; as observing a just mean between the two parties. (Harris.)

This is somewhat like the old question of the schools, an forma, dat esse rei: which Proculus determined in the affirmative. Dig. 41. | 1. 7. 7. See on this subject Tonson v. Collins, 1 sir W. Bl. 307 and the referrences to Puffend. and Selden's Mare clays.

§ 26. De accessione, p. 77. Dig. 6. 1. 23. 5 and 6. 1, 26. 1 Dig. 34. 2. 19. 13.

The Condictio lies against the heirs of the purloiner; Dig. 13. 1. 5. Against other possessors, the action ad exhibendum lies, to ascertain whether the two materials can be separated. Dig. 10. 4. 6 and 7.

Dig. 6. 1. 23. If it cannot, then the action triticaria lies: Dig. 13. 3. 1 or the action on the case (in factum) Dig. 6. 1. 5.

$27 De confusione, p. 77. Electrum, seems to be Amber in 4 Plin. 16 and 37. Plin. 2. But in 33. Plin. 9. it is a metal, as it is here. Platina? See Thompson's Chemistry, Platina.

§ 29. De his qui solo cedunt, p. 78. Dig. 41. 1. 7. 10. Dig. 6. 1.7. 11 and 6. 1. 23. ult. Dig. 41. 2. 30. Dig. 41. 3. 24. As to the action de Tigno juncto, see Dig. 41. 1. 7. 10. Dig. 6. 1. 23. 6. Dig. 47. 3. 1. and 47. 3. 2.

§ 30. De ædificatione ex sua materia, p. 78. Dig. 41. 7. 12. Dig. 6. 1. 7. et seq. L. 2 and 5. Cod. eod. Dig. 6. 1. 38. Dig. 50. 17.203.

§ 31. De Plantatione, p. 79. But the owner of the tree may recover its value. Dig. 6. 1. 5. 3. and 6. 1. 23. 5.

Confinium. The Romans required five feet to be left between farm and farm as a boundary: or rather, between the trees of your neighbour and your own; except in the case of an olive or a fig, when they required a space of nine feet between: agreeable to a law of Solon, quoted Dig. 10. 1. 13.

§ 32. De satione, p. 80. Dig. 6.1. 23. 3. Dig. 41. 3. 25. Dig. 41. 1. 9. § 33. De scriptura, p. 80. I apprehend this would not now be considered as law, the value of the paper being so much more easily paid than the writing; conformably to the principle of the next section de pictuHerein agreeing with the argument of Sir. W. Blackstone against Thurlow in the great case of literary property; Tonson v. Collins, 1. Sr. W. Bl. 324. 307.

ja.

§ 35. De fructibus bona fide perceptis, p. 82. Dig. 41. 3. 45. Dig. 41. 1. 4. Dig. 41. 3. 4. 19.

§ 37. Quæ sunt in fructu, p. 83. Dig. 22. 1. 38. 5. Dig. 41. 3. 28. 1. Dig. 7. 1. 68.

But although the child may not strictly be called fructus, which is applied rather to natural productions by way of accession, and a female slave cannot be said naturally to be destined to produce bond children Dig. 21. 1. 44, such offspring is nevertheless a species of revenue, Dig. 41. 3. 8, and 14. Dig. 35. 2. 24. 1. Dig. 30. 1. 91. 7.

§ 38. De officio fructuarii, p. 83. A flock is a noun aggregate, and therefore must be restored as a flock by the usufructuary; but if each sheep of the flock had been specifically bequeathed in usufruct, the usufructuary would not be bound to replace those who died. Dig. 7. 1. 70. 3. See some observations on usufructuary rights in Wylic, 8 Johns. N. Y. Rep. 433,

Putnam v.

§ De inventione Thesauri, p. 83. By a treasure is meant something of which the owner is absolutely unknown, else Revendication would attach. Dig. 6. 1. 6. Dig. 10. 4. 15. Treasure trove, under some of the Emperors, belonged entirely to the treasury, Lib. 15. Tacit. Annal. L. 1. Cod. Theodos. de Thesaur. Adrian (according to his life by Spartian) gave the treasure exclusively to the finder, if found on his own grounds, or in any religious or sacred place. But if found on another man's ground, it was divided between the finder and the owner of the ground.

Marcus Antoninus and Verus, directed, that if found in a fiscal, religious, or sacred place, one half should go to the treasury. Dig. 49. 14. 3 penult. Leo, decided according to the opinion cf Hadrian (Adrian) L. un. Cod. Thesaur, and so did Justinian in the present section.

As to mines. Formerly the owner of the land had the exclusive right. Dig. 7. 1. 13. 5. latterly the emperor exacted a toll. L. 1 and 2. Cod. de metall.

1

Thesauros] Treasures naturally belong to the finder; that is, to him, who moves them from the place where they are, and secures them; yet nothing forbids but that the laws and customs of any country may ordain otherwise. Plato was desirous, that notice should be given to the magistrates, and that the oracle should be consulted: and Apollonius, looking upon a treasure found as a particular blessing from heaven, adjudged it to the best man. The Hebrews gave it to the owner of the ground where it was found, as may be gathered from Christ's parable, Matt. xiii. 44. and, that the Syrians did the same, we may infer from a story in Philostratus, lib. vi. cap. 16. The laws of the Roman emperors are very various upon this subject, as appears partly from their constitutions, and partly from the histories of Lampridius, Zonarus and Cedrenus. The Germans awarded treasures found, and indeed all other adicara (ie. things without an owner) to their prince; which is now grown so common, that it may pass for the law of nations; for it is now observed in Germany, France, Spain, Denmark, and England; where treasure-trove is understood to be any gold or silver, in coin, plate or bullion, which hath been of ancient time hidden; and wheresoever it is found, if no person can prove it to be his property, it belongs to the king, or his grantee. A concealment of treasure-trove is now only punished by fine and imprisonment; but it appears from Glanville and Bracton, that occultatio thesauri inventi fraudulosa was formerly an offence punishable with death. 3. Co. inst. 132, 133. Custum. de Norm. cap. 18. Grot. de jur. bell. et pac. 1.2. cap. 8. sect. 7. Harris.