1 Instit. lib. ii. tit. i. § 15. s Locke, Civil Government, § 38, 2 Pufendorf, De hire naturae et of Abraham: Dalrymple, Feudal gentium, lib. iv. cap. iv. § 6. Property, p. 91, of North America.
which draws everything to itself that it can without a violation of the most manifest rules of justice. In like manner seas and rivers cannot be occupied by any private person: unless [it is] particularly specified in your charter, you cannot take large fishes in a river running through your own estate '. A sea surrounded by several nations cannot be occupied by any one, but all must have a part of the jurisdiction, but any nation may hinder another from fishing in its bays, or approaching its coasts with vessels of war.
[§ 2. Second way of acquiring Property: Accession^ The right of accession is not so much founded in its utility as in the impropriety of not joining it to that object on which it has a dependence. The milk of a cow I have purchased may not be of great value, but it is very improper that another person should have a right to bring up his calf upon it. The most important accessions are in land property. Land property is founded on division or an assignation by the society to a particular person of a right to sow and plant a certain piece of ground. In consequence of this right he must also have a right to whatever it produces, trees, fruit, minerals, &c. Alluvions made by any river naturally belong to the proprietor of the adjacent territory; but when the additions are very large, as is often the case in low countries, the government claims them, and the proprietor of the adjacent estate must purchase it before he possess it 2.
The principal dispute concerning accession is, when does the principal belong to me, and the accession to another, or, if they be mixed, to whom does the whole belong? It is a maxim in law that no person be a gainer 1 The reference is to salmon* 1751-3, vol. i. p. 574. fishing in Scotland: MacDouall, 2 Pufendorf, De hire naturae et Institute of the Laws of Scotland, gentium, lib. iv. cap. vii. § 12.
PRIVATE LAW III by another's loss '. If a man build a house by mistake upon my ground, though the materials be his, it is but reasonable that I should have the house, or be indemnified for my loss. In general the accession follows the principal, though in some cases, as where the workmanship is of more value than the materials, substcvitia cedet formae. The lawyers were, however, unwilling directly to contradict their general and established maxim, and therefore evaded it by giving the principal to the proprietor of the accession when it became a new species, that is, when it received a new form and a new name. This, however, was liable to exceptions. A picture and the board on which it was painted were in Latin of the same species; each was a tabula, and therefore the picture by this amendment still belonged to the proprietor of an insignificant board. The most general rule with regard to accessions is this, when the thing can be reduced to its primitive form without lessening its value or without any great loss to the pro prietor of the accession, the proprietor of the principal may justly claim it, but when this cannot be done, the law justly favours the proprietor of the accession, and obliges him only to content the original proprietor for his property.
[} 3. Third way of acquiring Property: Prescription^ Prescription is founded on.the supposed attachment of the possessor to what he has long been possessed of, and the supposed detachment of affection in the old possessor to what has been long out of his possession. There are four things requisite to form a right by prescription. First, bona fides, for if a person be sensible that his right to a thing is bad, it is no injury -to deprive him of it, and 1 ' Nihil tritius ea sententia 9inre naturae et gentium, lib. iv. nemo debet ex alterius damno cap. xiii. § 6. lucrum capere.' Pufendorf, De the indifferent spectator can easily go along with the depriving him of the possession. Second, Justus titulus, by which is not meant a title just in all respects, for this is of itself sufficient without anything else, but a iustus titulus signifies some reasonable foundation that the person has to think a thing his own, such as [a] charter of some kind. If he claims a right without any such title, no impartial spectator can enter into his sentiments. Third, un interrupted possession is also necessary to prescription, for if the property have often been claimed of him, the former possessor has not derelinquished his right. Fourth, the time is only to be reckoned when there was a person to claim the property; and therefore the longest uninterrupted possession when the proprietor was a minor, a lunatic, or in banishment, can give no right.
A iustus titulus is a proof of bona fides, and bona fides is requisite to a iustus titulus. By the Roman law, bona fides was only required at the first taking possession, and, though afterwards you found a fault in your title, prescription took place. Nature has fixed no period for prescription, and accordingly it varies according to the stability of property in a country. At Rome, [imjmoveables once prescribed in two years, but afterwards more was required1. In our country a feudal lord, who continually had claims upon his neighbour, could scarce be brought to admit any law of this nature. He was willing to revive a claim though as old as the days of Noah, and when at last they fixed on a period, they made it as long as possible, to wit, forty years. Among the Romans, it is to [be] observed, that if anyone's possession was interrupted during the time required for prescription, by an enemy coming into the country, he had to begin anew again. By 1 ' Res ergo immobiles Romae decennio, inter absentes vicennio biennio, mobiles anno usucapie- usucapi voluit.' Heineccius,^/*!/.
bantur. Sed lustinianus...res Rom. lib. ii. tit. vi. §§ 2, 9...immobiles inter praesentes the English law nothing can interrupt prescription but a claim of the old possessor. Kings seldom ever allow their claims to prescribe l, at least they account no length of uninterrupted possession sufficient to do it. However, immemorial possession will ever carry this along with it.
[§ 4. Fourth way of acquiring Property: Succession.]
Succession is either legal or testamentary. By legal succession is meant that the law should distribute the goods of the deceased to those [to] whom it is to be presumed the person himself would have chosen that they should be given, according to some lawyers2. But this supposes that testamentary succession, or a dis tribution of the goods according to the will of the deceased, was previous to legal succession, which is contrary to experience. In a rude period a man had scarce the full property of his goods during his life time, and therefore it cannot be supposed that then he should have had a power to dispose of them after his death. In all nations the relations of the dead person succeeded long before there was any such thing as a testament. The twelve tables at Rome, and the laws of Solon at Athens, seem first to have introduced testamentary succession:5; but long before this there was legal succession in both countries. The claim of the heir of blood is always thought the preferable one, but this claim is never founded on the presumed will of the de ceased. If we consider succession in the earliest times, we shall find that it is more founded on the connexion of goods than of persons 4. As the father and sons lived 1 I.e. kings seldom allow their 3 Heineccius, Antiq. Rom. lib. claims ever to prescribe. ii. tit. x. § 5.
2 E.g. Grotius, De iure belli et 4 ' Veteres Romani in succes-/Hicis, lib. ii. cap. vii. § 3, and sione intestatorum non id agebant Pufendorf, De iure naturae et gen- ut heredes essent, quos defunctus /nini, lib. iv. cap. xi. § i. reliquis cariores habuisse videtogether, and were joint acquirers of any property they had, when the father died the children had a joint right to the goods, not so much on account of their relation to the father as on account of the labour they had bestowed on acquiring them. The mother and the children would there fore continue in possession. Among the Romans the wife was considered as a daughter, and had her share ac cordingly. If any of the children were settled out of the family or were emancipated, they had no share in the suc cession1, because they ceased to co-operate with the rest in acquiring the goods. It may be observed that when families in this manner lived together it was neces sary to prohibit marriages of cousins. When men's 2 sons and grandsons lived in the same house, if all succeeded equally it was called siicccssio secinidiiin capita, but if the grandson succeeded only to his father's part it was sccundinn stirpes. If a man had three sons who were all dead, but the oldest had left behind him one son, the second two, and [the] third three, by the former rule, on the death of their grandfather, each would have a sixth; but by the latter, the son of the oldest would have a third alone, the two sons of the second a third between them, and the three sons of the third a third among them. The grandsons were as it were the representatives of their father. The right of representation is the same with the successio secundum stirpes. Among the Romans the right of representation was introduced in favour of the strong, and in prejudice of the weak, but in Britain [it] is the contrary3.
Among the Romans a son could not succeed to the mother when she died, because, as she was considered retur, (quod principium postea. * Ibid. § 6.
lustiniano placuit) sed ut facul- 2 MS. reads ' wives.'
tates penes familiam manerent.' 3 The meaning of this possibly Heineccius, Antiq. Rom. lib. iii. corrupt passage is not easy to as a daughter of the family, everything she had belonged to the husband; if the husband died first, the wife shared with her children, and then went home to her father's house, and succeeded anew to her father. But in times of more refinement under the emperors, the mother could succeed to the son, and the son to the mother '. Anciently, when a son died, no person succeeded to him, because he and everything he had belonged to his father. Caesar first made a law that a son might possess as his own whatever he got in war, or acquired by the liberal arts2.
Three classes of men may succeed, ascendants, de scendants, and collaterals, as those in an upper line may succeed to those in a lower, those in a lower to those in an upper line, or those of the same line to one another. Collateral succession at first extended only to the nearest in blood:i, and if he refused it the goods belonged to the public4, but afterwards the praetor extended it to the seventh in blood fl. When a brother died and another succeeded, it was in consequence of their connexion with the father, who is the common stock, and therefore succession of ascendants must have been prior to that of collaterals. But the right of descendants is stronger than either of these, because the son's claim on the father is evidently more strong than that of the father on the son. The principles of succession then in moveables are founded on the community of goods which took place anciently in families.
The different state of families in our country makes a considerable difference betwixt ourr> law and ihat of the Romans. The wife is among us a much more considerable person than a daughter, and accordingly succeeds to more.
1 Heineccius, Antiq. Rom. lib. 4 To the 'gentiles' or members iii. tit. iii. of the clan; ibid. § 7.
2 Ibid. lib. ii. tit. ix. § 2. 5 Ibid tit. v. § 5.
3 Ibid. lib. iii. tit. ii. § 3. 6 I.e. Scotch.
Il6 PART I: JUSTICE When the husband dies, the goods are supposed to be divided into three equal parts, one of which is supposed to belong to the deceased husband, one to the wife and one to the children: there is however this difference, that the husband can dispose of his part by testament, which the wife cannot. A forisfamiliated son is not in the same condition with an emancipated son among the Romans. He can succeed with his brothers; only if he has got a portion he must bring it into the common stock at his father's death. Grandchildren do not succeed in place of their deceased father, as among the Romans. The English law, however, admits of representation, and it prefers ascendants, if males, to collaterals.
We come now to treat of indivisible inheritance, which was introduced by the feudal law. When the nations that conquered the Roman Empire settled in the West of Europe, an inequality of fortune necessarily ensued. As the great had no way of spending their fortunes but by hospitality, they necessarily acquired prodigious influence over their vassals l. They gave out their lands merely as a maintenance to their dependents; and it is observable that the Saxon word farm signifies victuals 2.
The chieftains, from their influence, were the sole administrators of justice in their own territories. It was the interest of government to authorize this jurisdiction, as it was the only method of preserving peace, and as the superior was the leader both in peace and war. So lately as in the year 1745 this power remained in the Highlands of Scotland, and some gentlemen could bring several hundreds of men into the field3. As these lords had no other way to dispose of their lands, they gave some of them as munera, which were revocable at their pleasure, and 1 Cp. above, p. 35. pp. 413, 414, where, however, the 2 Dalrymple, Feudal Property, jurisdiction is said to be allodial, p. 33. not feudal.
3 W. of N. bk. iii. ch. iv. vol. i.
others they gave as beneficia, which continued during life and returned to the lord after their decease 1.
The benefices of the clergy seem to have been on this foundation and have retained the name. By this means the lords secured the fidelity of their vassals. As benefices were for life, the property of them naturally came to be extended to the son of the deceased tenant, and by degrees the tenures became hereditary and were called feudal; thus the tenant became more independent. When any chieftain died and left his son a minor, the king appointed a leader to the vassals during the minority, and appropriated the profits and emoluments arising from the lands to his own use. When a female succeeded, the lord had the power of disposing of her in marriage, as it was reason able that he should name the husband who was to be his own vassal. As the lord was guardian of the heir male, it was also thought unreasonable that he should marry without his consent. As the feudal lord possessed the lands during a minority, before the minor could recover his estate, he was obliged to pay what is called a relief. This was introduced by the court of the king or lord, before which the minor was obliged to swear fealty before he could recover his estate. He was also obliged to promise homage to his superior before he could enter on possession. Thus they held their lands of the superior for military service, homage, fealty, wardship, marriage, relief, &c. Allodial estates were free from all such sendees; but as it was for security of property to hold of some great man who could protect the proprietor from violence, the generality of estates became feudal. For the same reason men possessed of great estates paid feu and swore fealty to the sovereign 2.
It appears from this that it must have been a very difficult matter to secure property, especially if it was 1 Dalrymple, Feudal Property, 2 This paragraph is a summary p. 199. See above, p. 37, n. 2. of pp. 36 39 above.
Il8 PART I: JUSTICE small, in those early times, and therefore nothing could have a worse consequence than the division of estates. The consequences of dividing the kingdom of France were sufficiently experienced, and the case would have been still worse in private estates. However, on account of the opposition from the rest of the sons, it was long before the right of primogeniture or the indivisibility of estates could be introduced, and in Germany it did not fully take place before the last century; but as the circumstances necessarily required it, estates were at last made indivisible, and since a single person was to be preferred, the oldest son would naturally be the person. This legal preference must be given for some quality that is altogether indis putable. If it were to be given to wisdom or valour, there might be great disputes, but among brothers there can be [no] contest who is the oldest. In the beginnings of society age itself is very much respected; and to this day, among the Tartars, the king is not succeeded by his son, but by that one of the royal family who is oldest.
Primogeniture, when introduced, would naturally occa sion, succession by representation for the following reason: the younger brothers at first would think it hard that their older brother should be preferred to them, and if he died they would still think it harder that his son, an infant, should come in before them; accordingly in many places this has been disputed in single combat l. Bruce and Balliol disputed on this account. According to our notions, Balliol had the* best right, for he was descended from the oldest daughter, though Bruce was a step nearer the common stock. The difficulty of introducing this at first gave rise to a new species of succession, by which, when a father died, his estate went to his eldest son, but if he died while his children 1 ' Non minus agitatum etiam teriori sit praeferendus.' Grotius, bellis et pugnis singularibus, an De iure belli et pads, lib. ii. cap. vii. nepos ex filio priore filio pos- § 30.
were minors, or if he died while his father was alive, his brother, not his sons, succeeded. This was at tended with one inconvenience, that on the death of the youngest his sons were preferred to those of the other brothers. By the Roman law a grandson succeeded only to his father's part: he might succeed as a son, but not as an oldest son. The brothers naturally thought that they were nearer the father than any grandson he could have; but as this was a hardship to the brother's claim, so it was also a hardship to cut off the reasonable expectation which the grandson had if his father had lived. This last circum stance after [wards] gave occasion to lineal succession. When this difficulty is got over there is little dispute about collateral succession. In feudal lordships a woman could not succeed, as she was incapable of performing military services; but they could succeed to lands where there was required any other kind of service l. Of fiefs there are two kinds, masculine and feminine. France, to the crown of which no woman can succeed, is an instance of the former, and England of the latter.
There are some niceties whimsical enough in the Scotch law with regard to succession of collaterals. If the second brother has an estate and dies, it goes to the third and not to the oldest, who is supposed to have been sufficiently provided for. Conquest ~ on the contrary ascends, but it does not go to the oldest, but to the immediately older brother. By the English law the old brother excludes the whole blood from one half of the estate by conquest, in other countries the preference is not so great 3.
1 Dalrymple, Feudal Property, heir praeceptione hereditatis or pp. 229-231. otherwise.' MacDouall, Institute 2 'Conquest that falls to the heir of the Laws of Scotland, vol. ii.
of conquest is all heritable rights p. 297.
whereupon infeftment did or s This sentence is evidently might follow, acquired by the corrupt. See Craig, IKS feudale, deceased upon singular titles, i.e. ed. J. Baillie, 1732, pp. 334-336. to which he did not succeed as We must observe that the right of primogeniture hinders agriculture \ If the whole estate were divided among the sons, each one would improve his own part better than one can improve the whole; besides, tenants never cultivate a farm so well as if it were their own property. Primo geniture is also hurtful to the family, for, while it provides for one, it suffers all the rest in a few generations to be reduced to beggary 2. In succession to a monarchy, however, it has one evident advantage, that it prevents all dangerous rivalships among the brothers.
There are some other kinds of succession that take place, or have taken place in several countries. Thus in some countries the youngest son succeeds to the father. There is something like this among our tenants to this day: the older sons as they grow up are provided for, and the youngest, remaining with the father, succeeds to him.
So much for legal succession. We come next to testamentary. It is to be observed that there is no extension of property so great as this, and therefore it was long before it could be introduced; it was very natural to give a man a right to dispose of his property while he lived, but a testament supposes him to dispose of a right when, properly speaking, he can have none himself. He cannot be said to transfer his right, for the heir has no right in consequence of the testament till after the testator himself have none. Puffendorf whimsically accounts for this from the immortality of the soul3. At Rome the right of making testaments was introduced gradually. At first it was only allowed, and that too after the con- 1 W. of N. bk. iii. ch. ii. vol. i. § 4), who gives this explanapp. 386-389. tion. Pufendorf says ' quod 2 Ibid. p. 388. autem comminiscitur auctor 3 It is not Pufendorf but Leib- novae methodi iurisprudentiae nitz, quoted by him (De iure p. m. 56 id nescio an cordati sint naturae et gentium, lib. iv. cap. x. adprobaturi.'
sent of the fellow citizens was asked and obtained, to childless people. This was much the same with adopting children l. When a person died and wanted to leave his estate to a son in exile, he would naturally request his neighbours not to take it from him after his own death. This request would be regarded, not so much on account of its being his will, as from a kind of piety for the dead. We naturally find a pleasure in remembering the last words of a friend and in executing his last injunctions, the solemnity of the occasion deeply impresses the mind; besides, we enter as it were into his dead body, and conceive what our living souls would feel if they were joined with his body, and how much we would be distressed to see our last injunctions not performed2. Such sentiments naturally inclined men to extend property a little farther than a man's lifetime.
This seems to have been the foundation of testamentary succession. It was a sort of impiety not to comply with the father's desire, though it was no injury to deprive the heir of the estate, as there was no law established in his favour, and as his being in exile cut off all reasonable expectation of succeeding. The injury is conceived to be done to the dead person, as we enter into what would be his sentiments were he to live again. It is to be observed that this practice is a considerable refinement in humanity, and never was practised in a rude nation. Before the twelve tables no Roman had a right to make a will 3. Our Saxon ancestors had no right to dispose of their lands by testament4, and in the history of the Old Testament we hear of no such practice. Piety for the dead could take 1 Lord Kames, Law Tracts, vol. * This too absolute assertion is i. pp. 186-7 > Dalrymple, Feudal probably a rash inference from Property, p. 152; Heineccius, Dalrymple's history of the alien-Antiq. Rom. lib. ii. tit. x. § 2. ation of land-property by will in 2 Dalrymple, Feudal Property, Feudal Property, ch. iii. sect. 3, place only with regard to the immediate successor, and therefore at first the right of making testaments extended no further, unless in case the person in whose favour it was made should refuse to succeed, in which case another might be appointed. This was a further extent of the right. Again, if a man died and left his sister's1 son heir to him, that the estate might not go to foreign relations, the testator was allowed to say that if the pupil die at a certain age, the estate shall go to such another person. This was called pupillar substitution2. Thus property was still further extended.
The greatest of all extensions of property is that by entails. To give a man power over his property after his death is very considerable, but it is nothing to an exten sion of this power to the end of the world. In the begin nings of society the state of families is very different from what it is at present. As the wife was subject to the husband, and at the best only on the footing of a daughter, she seldom made any addition to the husband's estate unless by her own industry; but when female succession took place, and women came to be possessed of fortunes, they would not marry without a previous capitulation by which the}^ insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death. By this arose a new species of marriage from agreement which rendered the parties equally independent 3. This great alteration in domestic affairs would naturally at first be complained of, and, as the ultimate cause of it was the succession of females, they would endeavour to prevent their opulence. On this account a law was made at Rome bringing matters to their ancient footing, called the Voconian law. To elude this law ayfafejY] commissum was invented, by which, when 1 A mistake. The pupil must 2 MS. reads 'popular sucbe a descendant in the power of cession.' the testator. 8 Above, p. 77.
a man had a mind to leave his estate to a person whom the law would not allow, [he left it to someone else] and took his solemn promise that he would transfer it to the person for whom he intended it. Augustus made a law obliging the trustee always to restore it, and appointed a [fidei-]commissary praetor for that purpose \ The person to 2 whom the estate was left was called hercs fiduciarius, and the person to whom it was to be restored was called fide\i~\ commissaries: thus property was extended beyond the first successor, and when this step was gained they easily advanced further and introduced entails.
Entails were first introduced into the modern law by the ecclesiastics, whose education made them acquainted with the Roman customs 3. As they were the preachers of this doctrine, they naturally became the explainers and executors of wills till Theodosius and Valentinian4 took it from them. In England William the Conqueror restored it to the ecclesiastics5.
By the customs of our country6 a man, if he leave a wife and children, can dispose only of a third by testament; and if he leave a wife without children, only a half. Lands after the introduction of the feudal system could only be disposed [of] by testament in the same way with military services, by the consent of the superior. Origin ally in England there were no entails by will, but by 1 Heineccius,^////#. Rom. lib. ii. to meddle with wills; Cod. lib. i. tit. xxiii. §§ 2-4. tit. iii. § 40 (41).
2 MS. reads 'for.' 8 Perhaps a rash inference from:f The Roman origin of entails statements to the effect that is denied in W.ofN. bk. iii. ch. ii. anciently the probate of wills vol. i. p. 388. was in the county court, where 4 MS. reads 'Theodosius Valen- the bishop and sheriff sat together, tinus.' It is difficult to account and that William the Conqueror for the statement in the text, divided the ecclesiastical from the which exaggerates enormously civil jurisdiction: see Bacon, the powers of the ecclesiastics. New Abridgement of the Law, s. v.
Justinian considered it manifestly Courts ecclesiastical, vol. i. p. 618.
absurd that they should attempt tf I.e. Scotland.
tenure. A man held an estate for himself and his heirs, but if he had no heirs he could not alienate it, it returned to the superior. But if he had heirs he could alienate it, and thus the lord was deprived of his right of reversion. A law 1 was afterwards made to secure this.
Upon the whole nothing can be more absurd than perpetual entails. In them the principle of testamentary succession can by no means take place. Piety to the dead can only take place when their memory is fresh in the minds of men: a power to dispose of estates for ever is manifestly absurd. The earth and the fullness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity -; such exten sion of property is quite unnatural. The insensible progress of entails was owing to their not knowing how far the right of the dead might extend, if they had any at all. The utmost extent of entails should be to those who are alive at the person's death, for he can have no affection to those who are unborn. Entails are disadvantageous to the improvement of the country, and those lands where they have never taken place are always best cultivated: heirs of entailed estates have it not in their view to cultivate lands, and often they are not able to do it. A man who buys land has this entirely in view, and in general the new purchasers are the best cultivators.
1 Stat. Westm. II, 13 Ed. Leap. i. to the earth and to all that it De donis conditionalibus. possesses; but that the property 2 'In the present state of Europe of the present generation should...nothing can be more completely be restrained and regulated absurd [than entails]. They are according to the fancy of those founded upon the most absurd of who died perhaps 500 years ago.' all suppositions, the supposition W. of N. bk. iii. ch. ii. vol. i. that every successive generation p. 388. ' Absurd ' occurs twice, of men have not an equal right as in the text above.
[$5. Fifth way of acquiring Property: Voluntary Transference?^ In voluntary transference two things are required: first, a declaration of the intention both of the person who transfers, and of him to whom it is transferred: second, the actual delivery of the thing. In most cases the first of these is not binding without the latter, because there is no right without possession. If a man indeed have borrowed a thing and afterwards purchase it, there is no need of delivery, for it is already in his possession. Before possession you can have no right to the thing, though you may have a right to make the man keep his promise or contract. If I buy a horse from a man, and before delivery he sell him to a third person, I cannot demand the horse from the possessor, but onl\-from the person who sold him. But if he has been delivered I can claim him from any person. Property therefore cannot be transferred without tradition or delivery. Grotius indeed justly observes that in the transference of a pledge there is no need of deliver}-, because in this case the thing is already in the man's possession *. In France, if a man declare his purpose to make a donation, and die before the delivery, the donation goes to the heir. This was also a custom among the Wisigoths. In transferring the property of lands and other large objects, what gives possession is not so easy to determine. As there cannot be an actual delivery, in our country a symbolical delivery is used;