the eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles; as if, on the one hand, the son had by nature a right to succeed to his father's lands; or, as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor, the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society. The positive law of society, which is, with us, the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person, who, from the result of certain local constitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed: and, where the necessary requisites are omitted, the right of the heir is equally strong, and built upon as solid a foundation, as the right of the devisee would have been, supposing such requisites were observed.

But after all, there are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such, among others, are the elements of light, air, and water; which a man may occupy by means of

his windows, his gardens, his mills, and other conveniences, such also are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition: which any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards.

Again; there are other things, in which a permanent property may subsist, not only as to the temporary use, but also the solid substance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands; such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels would frequently arise among individuals contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension, by expressly designating those to whom such things are to belong. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.

QUESTIONS.

What is the only true and solid foundation of man's dominion over external things?

How did Cicero illustrate the early state of the world with regard to the origin of property, in particular parts of the earth?

What was the earliest subject of exclusive property?

On what ground did Abraham claim a well in the country of Abimilech?

What led to the dispute between Abraham and Lot-and how does it illustrate the history of the growth of property?

On what principle is founded the right of emigration?

What led to the invention of agriculture?

What was it that gave the original right to the permanent property in the substance of the earth itself?

What led to traffic-and the reciprocal transfer of property? What effect had death, in early times, on the right of property? What is meant by escheats?

Which was first allowed-the right of inheritance, or of willing away property?

What led to the right of disposing of property by will?

When was the willing away of lands first permitted in this country? On what grounds is a father justified in disinheriting his son, and giving his property to a stanger?

What kind of right has a man in the light, air, water, &c.?

REAL AND PERSONAL PROPERTY.

THE objects of dominion or property are things, as contradistinguished from persons: and things are by the law of England distributed into two kinds; things real, and things personal. Things REAL are such as are permanent, fixed, and immoveable, which cannot be carried out of their place as lands and tenements :-things PERSONAL goods, money, and all other moveables; which may attend the owner's person wherever he thinks proper to go.

are

Real property consists in lands, tenements, or hereditaments. "Land" comprehends all things of a permanent substantial nature; being a word of a very extensive signification. "Tenement" is a word of still greater extent; and though, in its vulgar acceptation, it is only applied to houses and other buildings, yet in its original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. An hereditament, says sir Edward Coke, is, by much the largest and most comprehensive expression for it includes, not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus an heir-loom or implement of furniture, which, by custom, descends to the heir together with a house, is neither land, nor tenement, but a mere moveable: yet, being inheritable, is comprised under the general word hereditament.

Hereditaments, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body; incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

Corporeal hereditaments consist wholly of substantial

and permanent objects-all which may be included under the general denomination of land only.

An incorporeal hereditament is a right issuing out of a thing corporate, whether real or personal, or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office, relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which adhere to and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them, An annuity, for instance, is an incorporeal hereditament: for though the money which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So, tithes, if we consider theproduce of them, as the tenth sheaf, or the tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments; for they, being merely a contingent springing right, collateral to, or issuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till severed, capable of being shown to the eye, nor of being delivered into bodily possession.

QUESTIONS.

What are the two species of property?

Explain the significations of the words "lands,"

and "hereditaments."

What is the distinction between the two kinds of hereditaments ? How would a logician describe them?