perty 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. 685 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." The definition of the Roman Lawt was nearly the same: "Furtum est contrectatio fraudulosa, lucri faciendi causâ, vel ipsius rei, vel etiam ejus usus possessionisve." The English Law further distinguishes privately 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; as we have already seen that it makes a difference in the Right of self-defense in the two cases. 686 The crime of Theft, as above defined, includes only the cases in which the Thief furtively or violently 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 poenam irrogat ei qui testamentum aliudve instrumentum falsum scripserit, signaverit, recitaverit, sub * Blackstone, IV. 229. The definition, by some 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. Inst. IV. I. § 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, substituted, or procured to be executed a false testament or other instrument: or if he has, with like knowledge and intent, forged the sig net of another person, by carving, moulding, or impressing." jecerit; 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. 687 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. But this state of the English Law has in several instances been altered in modern times*. 688 There are some further distinctions with regard to Property, which it may be useful to notice. According to the Roman Lawyers, the power of individuals over their property, which they termed Dominium Vulgare, was subject to the power which the State, or the Sovereign had, to prescribe the conditions on which they were to hold and enjoy their possessions: this power was Dominium Eminens. The State, which defines and establishes the Rights of the Owner, always limits those Rights; either by national maxims, as in Asiatic Empires, where the Sovereign is the Proprietor of the Soil; and in Feudal Kingdoms, where the King is the Sovereign Lord of every Feet; or by cases of public necessity and convenience; as when a man is compelled by the State to part with his house, that the street may be improved. 689 Again besides Private Property, Res Singulorum, the Roman Lawyers reckoned various kinds of Public Property; thus, among Res Publica are highways, streets, bridges, the walls and gates of a city; public gardens, grounds, fields and estates; markets, courts of justice; prisons; docks and harbours; fleets and their furniture, and the artillery, arms, and carriages of public armies; also the wealth of the public Treasury; and many other kinds of property, according to the various institutions and modes of administration of different states. 690 There are other things, which are common in their use, The ultimate conclusion at which English Lawyers have arrived on this subject is, that it would be desirable to abolish the distinctions of the Law of Theft with regard to things severed and not severed from the realty. See Act of Crimes and Punishments, Chap. XVIII. Sect. I. Art. 6. In England, since the time of William the Conqueror, the king has been the sovereign lord of every fee: but in some other feudal countries there appear to have been allodial lands which the proprietor did not hold of the king. hence called Res Communes; but incapable of being appropriated, hence also called Res Nullius; as air, running water, the sea, the shore. These can be used by each person without any hurt or loss to other persons, and are hence said to be things quorum innoxia est utilitas. Yet these are not, in all cases, reckoned Res Nullius. States claim a property in their navigable rivers, and even in the sea near their shores. And by the English Law, although a person can have no property in running water, he may possess as property a lake or river, under the designation of "so many acres of ground covered with water." He may also have a property in the use of running water: but this belongs to property of another kind, which we must now notice. 691 Private property is corporeal or incorporeal. Corporeal property is such as we have mentioned, both moveable and immoveable the immoveable being lands, houses, mines, and the like. But besides these kinds of property, a man may have a property in the Use of land or its adjuncts. This is the case, for instance, when a man has a Right of way over another's lands; or has a water-mill, of which the water flows through another's estate: for he has a Right to the flow of the water; and the owner of the other estate is not allowed to stop or turn aside the stream which drives the mill. Such Limitations of the Proprietor's Right, by the Right of another to some use of the property, arising from neighbourhood (vicinage), or other relations, are called in the Roman Law, Servitutes, Servitudes or Services; and are treated with great detail and distinctness by the Roman Lawyers. Such Property is termed by English Lawyers incorporeal Property. Servitudes of a Property for the convenience of a neighbouring property are called in English Law, Easements. 692 Before the statute of the twelfth year of Charles the Second (the first year after the Restoration, the years of the Commonwealth not being reckoned) the tenures of land in England, as derived from the Feudal System, were free or not free. The principal free tenures were knight service and common socage; the principal tenure that was not free was copyhold. The free tenures were charged with several services, as homage, ward, marriage, relief, and military service: but this latter, the service of following the lord to the wars, was usually commuted for an uncertain or varying pecuniary payment (escuage). In socage the payment was certain. The statute of Charles II. converted knight service into socage, and abolished the burdensome incidents which had accompanied knight service. Socage lands are now commonly called freehold, to distinguish them from copyhold. Yet even freehold Proprietors still owe certain Services to the Lord of the Manor, who now stands in the place of the Feudal Lord. Services, due from land, and other kinds of Incorporeal Property, are capable of being inherited, and are termed in English Law, Incorporeal Hereditaments. Such incorporeal property must necessarily be an adjunct to corporeal property: it must have a corporeal subject, land, or something else, in which it inheres. For Property is of the nature of a Thing (45). 693 There are some things, with regard to which the Definitions of Law, as to whether they are private property or common things, are very various. Tame animals, animalia domita naturæ, as horses, cattle, and sheep, are the subjects of direct Property. But wild animals, animalia feræ naturæ, as fish, and several kinds of birds which are not housed or domesticated, are not my property by the Roman Law, except I exercise upon them some act of appropriation. Wild birds and wild beasts, when they quit my land, are not my property; and even while they continue there, are mine only by the Right which I have of pursuing them. The Roman Law gives me a Right to such creatures, when taken even in another man's land*: "Occupanti conceditur: nec interest, quod ad feras bestias et volucres attinet, utrum in suo fundo aliquis capiat an in alieno." The Jurists appear to have given such Rules, from a wish to exemplify their doctrine, that there are things which become property by the act of taking them. Such a Rule would be very inconvenient in a well-cultivated country. Accordingly, later commentators (as Heineccius) add† ❝modo non prohibeamur ingressu fundi a domino." By the ancient law of England, the Game, so long as it is on the land, belongs to the owner of the land ratione soli. But this state of the Right was interfered with by royal and other privileges. A licence from the State was required to kill game; and at one period, none were allowed to do so without the qualification of possessing certain property. The Right of taking the game still remains, in many instances, not a Property commonly transferred with the land, but a Service under the control of the Lord of the Manor; and in our Game Laws, we have a laborious system of Enactments for the purpose of protecting this Right. "It is made the property of him who takes possession of it; and, as regards wild beasts and birds, it makes no difference whether a person take them on his own land, or on another's." "Provided we are not forbidden to come upon the land by the landlord." mine, for instance, whether Words of Transfer be sufficient for this purpose; and if so, with what publicity they must be uttered, in order to be valid; or whether some Act of Delivery be also requisite. The latter was the case in the Roman and in the English Law; at least in the most formal kinds of transfer. Also an Act of Acceptance on the other part is requisite; for it would be intolerable that a person should, without my consent, have the power of giving me what might be in the highest degree burdensome or troublesome; as if he were to give me a wild beast*. And the act of acceptance must also be defined by Law. 700 Questions have been discussed among Jurists as to the Rule which is to be followed when the Right of Property comes in conflict with the Needs of Personal Safety. For instance; When, in a ship, the common stock of provisions fails, is it allowable for the Passengers to use that which belongs to one of them in spite of his will? When a fire is raging in a town, is it allowable, in order to stop it, to pull down a house without consent of the owner? When a ship runs foul of the cables of other ships, is it allowable for the captain to cut these cables, if his ship cannot otherwise be extricated? In such cases, it has been decided by the Roman Law, and its Commentators, that the Right of Property must give way. Necessity, they sayt, overrules all Laws. But this is to be required only in extreme cases, and when all other courses fail. To which is added, by most Jurists, that when it is possible, restitution is to be made for the damage committed. A like Rule is recognized in the English Law ‡. It has been held, by some English Lawyers, that a starving man may justifiably take food; but others deny that such necessity gives a right; inasmuch as the poor are otherwise provided for by Law §. Perhaps the reason why an act of acceptance is necessary might be given in a more juristical form by referring to the general principle that my condition or Status can never be affected except by my own act or that of the State. The act of another individual or of other individuals (res inter alios acta) cannot make my con- Kent's Commentaries, II. 338. |