of another." The definition of the Roman Law* 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 Stealingt, as for instance, picking the pocket; and open and violent Larceny, which is Robbery; this the Romam 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-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 fal * Instit. IV. + The distinction of privately stealing is now done away as an aggravation. Dig. XLVII. 8. 66 § 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. sum scripserit, signaverit, recitaverit, subjecerit; vel signum adulterium 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 Prop. erty, 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*. 144. 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 Fee; 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. 145. Again: besides Private Property, Res *The ultimate conclusion at which English Lawyers have arrived on this subjest 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 reality. See Act of Crimes and Punishments, Chap. xvi. Sect. 1. Art. 6. Singulornm, 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. 146. There are other things, which are common in their use, 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. 147. 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 land; 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 urn aside 8 VOL. I.-K Such Limitations the stream which drives the mill. of the Propritor'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. : 148. The Feudal System in England gave to the Tenant an ownership charged with several Services, as homage, ward, marriage, relief, and (in the principal Tenures) with the Service of following the Lord to the wars. As wars became of less conse. quence in the internal condition of the nation, and property of more, this kind of Tenure became very burdensome and at length, at the Restoration of Charles the Second, all these Military Tenures, as they were called, were abolished; and were reduced by Act of Parliament to the Tenures which were called Free Socage, and Freehold. This implies a Tenure by certain and determinate services of no degrading kind. 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). 149. There are some things, with regard to which the Definition of Law, as to whether they are private property or common things, are very various. Tame animals, animalia domitæ 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, do, by the Roman Law, cease to be our property as soon as they go away from us. Wild birds and wild beasts, when they quit my land, cease to be my property; and even while they continue there, are mine only by the Right which I have of pursuing them. The Roman Law gives a Right of taking such creatures, 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 rationi sole. But this state of the Right was interfered with by royal and other privileges. A license 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. 150. The property of things which have no apparent owner, adéσñora, has been variously assigned by the Laws of various Countries: such things, for instance, as Treasure found by accident, which is called in the English Law Treasure Trove, and is given to the King, or the Person to whom he grants it. Another instance is, land left dry by some alteration in |