And, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in war; (h) at least till his ransom be paid. (i) 5 And this doctrine seems to have been extended to negro-servants, (k) who are purchased, when captives, of the nations with whom they are at war, and are therefore supposed to continue in some degree the property of the masters who buy them: though, accurately speaking, that property (if it indeed continues), consists rather in the perpetual service, than in the body or person of the captives. (1)

2. Thus again, whatever moveables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall within the description of waifs or estrays, or wreck, or hidden treasure; for these, we have formerly seen, (m) are vested by law in the king, and form a part of the ordinary revenue of the crown.

3. Thus too the benefit of the elements, the light, the air, and the water, can only be appropriated by occupancy. If I have an ancient window

h Bro. Abr. tit. propertie, 18.

i We meet with a curious writ of trespass in the register (102) for breaking a man's house, and setting such his prisoner at large. "Quare domum ipsius A. apud W. (inqua idem A. quendam H. Scotum per ipsum A. de guerra captum tanquam prisonem suum, quousque sibi de centum libris, per quas idem H. re demptionem, suam cum praefato 4. pro vita sua salvanda fecerat satisfactum foret, detinuít) fregit, et ipsum H. cepit et abduxit, vel quo voluit abire permisit, &c."

k 2 Lev. 201.

I Carth. $96. Ld. Raym. 147. Salk. 667.

m Book I. ch. 8.

war, does look to the legal sentence of condemnation as one of the title deeds of the ship, it he buys a prize vessel. I believe there is no instance in which a man, having purchased a prize vessel of a belligerent, has thought himself quite secure in making that purchase, merely because that ship had been in the enemy's possession twenty-four hours, or carried infra praesidia." Sir Wm. Scott, in the case of the Flad Oyen, 1 Rob. Rep. 139. See also 3 Rob. Rep. 97. and 236, 7, 8. Goss v. Withers, 2 Burr. 683. Assievedo v. Cambridge, 10 Mod. 79. But if after the transfer of a prize to a neutral, a peace be concluded between the belligerents, the transfer becomes valid, even though there was no legal condemnation. 6 Rob. Rep. 142. The title of a neutral will not be defeated, by his subsequently becoming an enemy. 6 Rob. Rep. 45. See 1 vol. Chitty's Com. Law. 433, 4. li has been established by several acts of parliament, that among English subjects, ships or goods ta ken at sea by an enemy, and afterwards retaken, at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to the original proprietors, on payment of certain salvage. 2 Burr. 1198. and 1 Bl. Rep. 27. The statute the 43 Geo. III. c. 160. s. 39. makes an exception as to ships which have been set forth by the enemy as vessels of war; enacting, that these shall not be restored to the original owners, but belong wholly to the recaptors. And if the property recaptured, were captured first in an illegal trade, then the original right is divested, and the recaptors are not bound to restitution. 2 Rob. Rep. 77. In the case of the Santa Cruz, 1 Rob. Rep. 49., Sir Wm. Scott said, "The actual rule of the English maritime law I under stand to be this, that the maritime law of England having adopted a most liberal rule of restitution with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle: in such case it adopts their rule, and treats them according to their own measure of justice." But restitution in any case is not gratuitous, for by the 43 Geo. 1II. c. 160. certain rates of salvage are secured to the recaptors, for saving or recovering the property. One-eighth of the beneficial interest in the whole recaptured property, is given to the king's ships, and one-sixth to private ships. And the reward of salvage is given in cases of rescue, when it is effected by the rising of the captured crew against the captors. 1 Rob. Rep. 271. 4 ib. 147. 1 Edw. Rep. 68.

Chitty. (5) Ransom of ships, &c. is now illegal, unless in case of necessity, to be allowed by the admiralty, by 22 Geo. III. c. 25. 43 Geo. III. c. 160 s. 34, 35, 36. 45 Geo. III. c. 72.

(6) Formerly it was holden that a party could not maintain an action for a nuisance to an ancient light, unless he had gained a right to the window by prescription. 1 Leon. 168. Cro. El. 118. But the modern doctrine is, that upon proof of an adverse enjoyment of lights for twenty years or upwards, unexplained, a jury may be directed to presume a right by grant or otherwise, 2 Saund. 175. a. 1 Esp. R. 148.; but if the window was opened during the seisin of a mere tenant for life, or a tenancy for years, and the owner in fee did not acquiesce in, or know of the use of the light, he would not be bound, 11 East, 372. 3 Campb. 444. 4 Campb. 616.; and where the adjoining land was glebe land in the possession of a rector, tenant for life, it was held

overlooking my neighbour's ground, he may not erect any blind to obstruct the light but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him, than in me. If my neighbour makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the [403] law will furnish me with a remedy; but if he is first in possession

of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current. 7

4. With regard likewise to animals ferae naturae, all mankind had by the original grant of the Creator a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field and this natural right still continues in every individual, unless

:

that there could be no presumption of a grant so as to preclude a purchaser thereof under 55 Geo. III. c. 147. from building and obstructing an ancient light, 4 B. & A. 579. ; but when the window has been proved to have been in existence upwards of twenty years, and its origin cannot be traced, the purchaser from the owner in fee cannot disturb it, though no evidence that the latter acquiesced in the window can be adduced. 2 Bar. & Cres. 686.4 Dowl. & R. 234. If the owner of land build a house on part, and afterwards sell the house to one person, and the rest of the land to another, the vendee of the house may maintain an action against the vendee of the land for obstructing his light, though the house was not an ancient one, because the law will not suffer the vendor, or any person claiming under him, to derogate from his own grant; and consequently less than twenty years' use of the light suffices. 1 Lev. 122. 1 Ventr. 237. 1 Price, 27. Ryan v. Moodys, Rep. 24. 2 Saund. 114. n. 4. But if an ancient window has been completely blocked up above twenty years, it loses its privilege, 3 Campb. 514.; and even the presumption of right from twenty years' undisturbed enjoyment, is excluded by the custom of London, which entitles every citizen to build upon an ancient foundation as high as he pleases. Com. Rep. 273. 2 Swanst. 333. But the circumstance of a window being built contrary to the building act, affords no defence to an action for obstructing it, 1 Marsh. 140.; and if ancient windows be raised and enlarged, the owner of the adjoining land cannot legally obstruct the passage of light and air to any part of the space occupied by the ancient window. 3 Cambp. 80. Total deprivation of light is not necessary to sustain this action, and if the party cannot enjoy the light in so free and ample manner as he did before, he may sustain the action, but there should be some sensible diminution of light or air. 4 Esp. R. 69. Chilton v. Sir T. Plumer, K. B. A. D. 1822. The building a wall which merely obstructs the prospect is not actionable. 9 Co. 58. b. 1 Mod. 55. Nor is the opening a window and destroying the privacy of the adjoining property; but such new window may be immediately obstructed, to prevent a right to it being acquired by twenty years' use. 3 Camp. 82. Chitty.

(7) Running water is originally publici juris, and an individual can only acquire a right to it by applying so much of it as he requires for a beneficial purpose, leaving the rest to others, who, if they acquire a right to it by subsequent appropriation, cannot lawfully be disturbed in the enjoyment of it. But where the plaintiff alleged that defendant had erected one dam above plaintiff's premises, and widened another, and thereby prevented the water from running in its usua! course, and in its usual calm and smooth manner, to the plaintiff's premises, and thereby the water ran in a different channel, and with greater violence, and injured the banks and premises of plaintiff, but did not allege any injury from the want of a sufficient quantity of water, and the jury found that plaintiff's premises were not injured, but were of opinion that defendant had no right to stop the water, or keep it pent up in the summer time, held that the plaintiff could not recover damages for the erection of the dam, but was bound to allege and prove that he had sustained an injury from the want of a sufficient quantity of water. 2 B. & C. 910. 4 Dowl, & Ryl. 583. S. C. The owner of land through which a river runs, cannot by enlarging a channel of certain dimensions, leading out of the river through which the water had been used to flow, before any appropriation of it, by another, divert more of it to the prejudice of any other landowner lower down the river, who had at any time before such enlargement appropriated to himself the surplus water which did not escape by the former channel. 6 East, 208. And the occupier of a mill may maintain an action for forcing back water and injuring his mill, although he has, within a few years previous, erected a wheel requiring less water than the one he previously used. 1 B. & A. 258. But where the defendant erected a dam above the mill of the plaintiff, by which the water was diverted from its accustomed channel, but to which it returned long before it reached the plaintiff's mill; which diversion affected the regularity of the supply, though it produced no waste of water, it was held that the plaintiff was entitled to recover. 7 Moore, 345. As to the pleadings, see 1 Price Rep. 1. and 2 Chitty on Pl. 788, Chitty, (8) Com. Dig. Biens, and 1 Chitty's Game L. VOL. I. 88

where it is restrained by the civil laws of the country. And when a man has once so seised them, they become while living his qualified property, or if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aërial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals which are not expressly so reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they might have taken even game itself, till these civil prohibitions were issued: there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly but the difference, at present made, arises merely from the positive municipal law.

9

5. To this principle of occupancy also must be referred the method of acquiring a special personal property in corn growing on the ground, or

other emblements, 10 by any possessor of the land who hath sown or [404] planted it, whether he be owner of the inheritance, or of a less

estate which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels. They were devisable by testaments before the statute of wills, (m) and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action: (n) and by the sta tute 11 Geo. II. c. 19. though not by the common law, (o) they may be distreined for rent arrere. 11 The reason for admitting the acquisition of this special property, by tenants who have temporary interests, was formerly given; (p) and it was extended to tenants in fee, principally for the benefit of their creditors: and therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels ; and particularly they are not the object of larceny before they are severed from the ground. (q)

6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as By the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the orim Perk. § 512. n Bro. Abr. tit, emblements, 21. 5 Rep. 116. q 3 Inst. 109.

o i Roll. Abr. 666.

P page 122, 146.

(9) See this controverted in page 419. note.

(10) "The right to emblements does not seem to be aptly referred to the principle of occu pancy; for they are the continuation of an inchoate, and not the acquisition of an original, right." Mr. Christian's edit. See the law as to emblements, ante 122. note 4.

(11) But by the 56 Geo. III. c. 50. no sheriff or other officer shall sell or carry off from any lands any straw, chaff, or turnips, in any case, nor any hay or other produce, contrary to the covenant or written agreement made for the benefit of the owner of the land; but the tenant must give previous notice to the sheriff, &c. of the existence of such covenaut, &c. But the produce, &c. may be so sold, subject to an agreement to expend it on the land. And landlords are not to distrain for rent on purchasers of crops severed from the soil, or other things sold subject to such agreement; nor shall the sheriff self or dispose of any clover, rye-grass, or any artificial grass whatsoever, which shall be newly sown and be growing under any crop of standing com See sections 6 & 7.

Chitty.

ginal owner of the thing was entitled by his right of possession to the property of it under such its state of improvement: (r) but if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials which he had so converted. (s) 12 And these doctrines are implicitly copied and adopted by our Bracton, (t) and have since been confirmed by many resolutions of the courts. (u) It hath even [405] been held, that if one takes away and clothes another's wife or son,

and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman. (w)

7. But in the case of confusion of goods, 13 where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that in both laws the proprietors have an interest in common, in proportion to their respective shares. (x) But if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manmer into another's melting pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost. (y) But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain without his own consent. (z)

8. There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, (a) and many others, (b) to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary composition so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a [406] right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it,

r Inst. 2. 1. 25, 26. 31. Ff. 6. 1. 5.
u Bro. Abr. tit. propertie, 23.
x Inst. 2. 1. 27, 28. 1 Vern. 217.

s Inst. 2. 1. 25. 34. Moor. 20. Poph. 38.

t l. 2. c. 2 & S.
w Moor. 214.
y Inst. 2. 1. 28.

z Poph. 38. 2 Bulstr. 325. 1 Hal. P. C. 513. 2 Vern. 516.
a on Gov. part. 2. cli. 5.
b See pag. 8.

(12) This also has long been the law of England; for it is laid down in the Year books, that whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials; as if leather be made into shoes, cloth into a coat, or if a tree be squared into timber, or silver melted or beat into a different figure. 5 Hen. VII. fo. 15. 12 Hen. VIII. fo. 10. The cases referred to, Bro. Ab Propertie, 23. Moor. 20. Poph. 38. are very explicit; see also 2 Campb. 576. Com. Dig. Pleader, 3. M. 28. Bac. Ab. Tresp. E. 2. Christian.

(13) See Com. Dig. Pleader, 3. M. 28. Bac. Ab. Trespass, E. 2. 2 Campb 576.

This consent may per

especially for profit, without the author's consent. haps be tacitly given to all mankind, when an author suffers his work to be published by another hand without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway; but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to mul tiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is brought for admission to an opera or a concert ; and that, in the other, the whole property, with all its exclusive rights, is perpetually transferred to the grantee. On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet, from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate. The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of

the blank materials: (c) meaning thereby the mechanical opera[407] tion of writing, for which it directed the scribe to receive a sa

tisfaction; for in works of genius and invention, as in painting on another man's canvas, the same law (d) gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purpose of recital or multiplication is certainly as ancient as the times of Terence, (e) Martial, (ƒ) and Statius. (g) Neither with us in England hath there been (till very lately) any final (h) determination upon the right of authors at the common law. 44

c Si in chartis membranisve tuis carmen vel historiam vel orationem Titius scripserit, hujus corporis non Titius sed tu dominus esse videris. Inst. 2.1.33. See pag. 404.

d lbid. § 34.

f Epigr. i. 67. iv. 72. xiii. 3. xiv. 194.

e Prol. in Eunuch, 20.
g Juv. vii. 83.

h Since this was first written, it was determined in the case of Miller v. Taylor, in B. R. Pasch. 9 Geo. III. 1769, that an exclusive and permanent copyright in authors subsisted by the common law. But afterwards, in the case of Donaldson v. Becket, before the house of lords, 22 Febr. 1774, it was held that no copyright now subsists in authors, after the expiration of the several terms created by the statute of queen Anne.

(14) Whether the productions of the mind could communicate a right of property or of exclusive enjoyment in reason and nature; and if such a moral right existed, whether it was recog nised and supported by the common law of England; and whether the common law was intended to be restrained by the statute of queen Anne; are questions, upon which the learning and talents of the highest legal characters in this kingdom have been powerfully and zealously exerted.

These questions were finally so determined that an author has no right at present beyond the limits fixed by the statute. But as that determination was contrary to the opinion of lord Mansfield, the learned Commentator, and several other judges, every person may still be permitted to indulge his own opinion upon the propriety of it, without incurring the imputation of arrogance Nothing is more erroneous than the common practice of referring the origin of moral rights, and the system of natural equity, to that savage state, which is supposed to have preceded civilised establishments; in which literary composition, and of consequence the right to it, could have no existence. But the true mode of ascertaining a moral right I conceive is to inquire, whether it is such as the reason, the cultivated reason, of mankind must necessarily assent to.

No proposition seems more conformable to that criterion, than that every one should enjoy the reward of his labour, the harvest where he has sown, or the fruit of the tree which he has planted.

And if any private right ought to be preserved more sacred and inviolable than another, it is that where the most extensive benefit flows to mankind from the labour by which it is acquired. Literary property, it must be admitted, is very different in its nature from a property in substan