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

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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 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, idéoora, 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 the course of a river. The Roman lawyers laid down various Rules according to which they assigned this land to the Proprietors of the adjacent banks. More modern writers give it to the State*.

151. In like manner, the Law determines what length of time of undisturbed possession or enjoyment of things is to be considered as conferring the Right of Property. In the early Roman Law this mode of acquiring the Right of Property is termed Usucapio. Gaiusf says, "Usucapio mobilium quidem rerum anno completur; fundi vero et ædium biennio; et ita Cap. XII. tabularum cautum est." And he gives the reason for this: "Quod ideo receptum t Gaius, II. 42.

*Grot. B. et P. 11. 8. 8. ‡ Id. 11. 44. Prescription in moveables is established by a year's pos

videtur ne rerum dominia diutius in incerto essent: cum sufficerit domino ad inquirendam rem suam anni aut biennii spatium." But this refers to the formalities of the Roman Law in its early stages. The more general term for this mode of acquiring a Right by lapse of time was Præscriptio, or Temporis Præscriptio. This is regulated by various laws; for instance*: "Præscriptione bona fide possidentes adversus præsentes annorum decem, absentes autem viginti muniuntur.” In the English Law, Prescription is made a valid source of Right by the Statutes of Limitation, that is, Acts of Parliament which limit the time within which actions for Wrongs may be brought. The period of unquestioned possession which establishes a Right is in different cases, sixty, fifty, thirty and twenty years+: And the Commentators state that the reason of these Statutes of Limitations is to preserve the peace of the kingdom, and to prevent the frauds which might ensue, if a man were allowed to bring an action for any injury committed at any distance of time. To this effect, they quote the maxim of the jurists: "Interest reipublicæ ut sit finis litium."

152. Besides the ownership of a thing, by which a person is entitled to use it, there are cases in which a person is recognized as the owner by law, and yet bound to give to another the advantage of the use of a property. Property so committed to a person is called in Latin, fidei commissum, in English, a Trust: the person to whom it is committed is fidei commissarius, a Trustee. A Trustee session; in land and house by two years. Which seems to have been made the rule in order that the ownership of property might not be longer uncertain. For one or two years was time sufficient for the owner to ascertain his property.

Cod. vII. 35. 7.

↑ Blackstone, III. 307. The last Statute of Limitations assigns twenty years as the period for land; and various periods from six years downwards are fixed as to personal actions.

It is for the public good that there be an end to lawsuits.

possesses and administers property for the benefit of others; generally, on certain conditions and according to certain rules.

153. The Right of Moveables generally implies a Right of Alienation; that is, of transferring them to another by Gift, Sale, or Barter. The Right to Immoveables does not so universally imply a Right of Alienation; for the Dominium Eminens (144) of the State or the Sovereign may come in, and may prohibit or limit such a transfer. Thus a Feudal Tenant could not alienate his Fee to another Person. The Fee must be granted by the Lord only.

154. Again; the State regulates, by special Laws and Customs, the Succession of Property; that is, the disposal of a man's property after his death, whether moveable or immoveable. It determines whether he shall have the power of disposing of the whole, or of part, by his Will and Testament. And if the man die intestate, the Law determines in what manner his property shall be assigned to the members of his family, or to other persons. In some States, as in ancient Rome, the property was equally divided among the children; in others, as in England, there is a Law of Primogeniture, by which a larger portion, or the whole (so far as landed property is concerned), is given to the eldest Such differences depend upon the different views of the relations of Families, and their Property, to the State, which prevail in different times and Countries.

son.

155. To give, or alienate Property, some external act is requisite; for we are now speaking of Laws which deal with external acts. The Law must define what Act, (including words in the term Acts) shall constitute giving or alienating. It must determine, 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.

156. 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 say*, 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 Lawt.

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‡.

* Grot. II. 2. 6. 4. + Kent's Commentaries, 11. 338. + Bl. iv. 32.