« PreviousContinue »
his talents and various information. The present, however, is the first publication in which we have observed this practice, and we hope that Professor Browne will have encouragement and perseverance to complete his plan..
We shall present our readers with the Lecture on the Ori gin of Property and Division of Things, because it is the shortest in the collection, and because, on a topic of universal concern, it furnishes a fair specimen of the Author's abilities and knowlege.
The Civil Law does not enter into the minute and subtle disqui sitions about the natural origin of property, which have employed the peas of Grotius, Locke, and Blackstone. As far however as it has. touched upon them, it agrees, (in the opinion of Mr. Gibbon) with the Oxonian Professor, in deriving it from occupancy. To me it cemas rather to coincide with Grotius, who deduces it from an im lied compact of nations; for in fact, it speaks of occupation only. is one of the titles to property arising from natural law, i. . says ustinian, from the Law of Nations, shewing that he is not speaking of the Law of Nature universally and in the abstract, as it operates in state of nature, but only as it becomes a part of the Law of Nations., The language of Justinian in the Institute is this--that all rights to hings arise from the Law of Nature, that is the Law of Nations, or em Municipal Law *. Under the first, he reckons occupancy, acession and tradition; under the latter, prescription, donation, inhetance, &c.
Next, to the consideration of property in general, and its origin in ie Law of Nature, natural order teaches us, first to beat of the di- w sion of things, then of property in them, and lastly of the particular odes of acquiring title to them, a method which has been pursued. y the clear mind of Mr. J. Blackstone, and which I shall endeavour follow, especially as Justinian here by no means furnishes a dear odel for imitation t..
In their division of things, the Roman Jurists are much more inute, accurate and metaphysically exact than ours; things were, cording to them, either in patrimonio, capable of being possessed by
Accordingly Mr. Blackstone speaks of that rule of the Law of ations, recognized by the Laws of Rome, Quod nullius est, id ratione turali occupanti conceditur."
Justinian in his Institutes is in this respect extremely inmetheal, for in the first chapter of his second book, he begins with the ision of things then proceeds to the titles to them acquirable by 1 Law of Nature and Nations, and in the subsequent chapters of
same book returns to division of things, and to quantity of in tst in them, thereby postponing the enumeration of the other me. is of acquiring property, viz. those by municipal law, and awkdly separating these titles to property from the former, j. e. from tse arising from the Law of Nature, and Nations, by the interpon of the chapter of corporeal and incorporeal things, and of ser , usufruct and use.
single persons exclusive of others, or extra patrimonium, incapable of being so possessed.
Things extra patrimonium were common, t. e. free to all mankind; public, i. e. belonging to some nation or people; universitatis, f. e. belang ing to some certain city, society, or corporation; or fourthly, things nullius, belonging to nobody, which included all things consecrated and devoted to religious uses, which are distinguished into sacred, sanct, and religious.
This was the division of things in relation to their propertyshipwith respect to their nature, they were divided into corporeal and incorporeal-and the corporeal again into moveable and immoveable. This is the order and manner of division chosen by Justinian in the Institutes, and we shall follow it *.
Things common to all, are those which being given by Providence for general use, cannot be reduced to the nature of property; suck are the air, running water, the sea, and the shores of the sea. By short the Institutes mean up to high water mark, or (where little or ne tides as in the Mediterranean,) as high as the highest winter way washes +, but if a man by prescription, from time immemorial had the use of running water ‡, as for a mill, his case was an exception to th general rule, but he must not waste the water unnecessarily, and milk and other buildings might be erected on rivers by particular licence Vid. Digs. 48. 8.
Things public. Among things public, Justinian principally ne tices, harbours, banks, and rivers, and the right of fishing in then By the Civil Law, the rivers were public; of exclusive rights fishing the Romans had no notion, any more than of Gart
The order adopted by the famous Roman lawyer, Caius, at apparently approved in the Digests, is somewhat different: he fit distinguishes things into those of divine and those of human righ things of divine right he separates into sacred, sanct, and religious those of human into things in patrimonio, and extra patrimonium, al under the res nullius, a sub-division of the latter, considers not of holy things, but those which tho' not consecrated wanted a mast、' such as the hæreditas jacens. Justinian confines the res nullius > things of divine right.'
Notwithstanding this position of the sea being common, m nations in modern times have claimed dominion over parts of it, ase Venetians over the Adriatic, the King of Denmark over the Sop, and the King of Great Britain over the four seas. The learned 1. den even contends that the sea is as capable of becoming propertis the land. Undoubtedly where nations have taken upon themselvese burden of freeing the sea from pirates, or erecting light house dangerous coasts, they have a right to reimburse themselves by des upon passing ships, nor is it to be understood that foreign natu have a right to use the shore of the country against the will of the. habitants, except from inevitable distress."
By Magna Charta the appropriating running water, whic seems unnatural to restrain, was prohibited, consequently the ri fenced at that time were directed to be laid open?
Laws, and the inhabitants of the waters became the property of the, first occupant; nor was any obstruction or diversion of a river allowed. See Dig. Lib. 43.
A bank of a river might have been private property, but it was. so far publick that all persons had a right to come upon it for certain purposes; for instance, for a towing path +.
Res Universitatis, or Things belonging to cities or bodies politic. Such things belonging to the Corporation or body politic in respect of the property of them, but as to their use they appertain to all those persons that are of the Corporation or body politic; such may be theatres, market-houses and the like .
Res Nullius, or Things which are not the goods or property of any person or number of men, are principally those of divine, right; they were of three 6 sorts-things sacred, things religious, things sanct. Things sacred were those which were duly and publicly consecrated to God by the priests, as churches and their ornaments, their chalices, books, &c.
Things religious were those places which became so by burying in them a dead body, even tho' no consecration of these spots by a priest had taken place.
Things sanct were those which by certain reverential awe arising. from their nature-sometimes augmented by the addition of religious ceremonies, were guarded and defended from the injuries of men; such were the gates and walls of a city, offences against which were capitally punished.
It is their peculiar praise, says Gibbon. With us by the Feodal Polity, the Prince claimed a right of granting franchises of free fishery in rivers, which by an odd perversion of language means exclusive fishery; but these rights of fishery in consequence of Magna Charta, must be as old as Henry II's time. Probably very few of our present fisheries could boast such antiquity, or are really legal, bat, being proved to have existed longer than the memory of the oldest, men living, are presumed to have been from Hen. II's time, no proof appearing to the contrary. Many Gentlemen in Ireland support their titles to fisheries by grants from Charles II. but such grants convey nothing, being directly contrary to Magna Charta, and are only corroborating evidence of the rights being from time immemorial. A subject may have by prescription a right to a several fishery in an arm of the sea, 4 T. R. 437
This rule of the Civil Law, adopted also by our Bracton,, was much insisted on in the case of Ball v. Herbert, 3 Term Reports, when however it was determined that by the Common Law of Engkend, the public are not entitled to tow on the banks of navigable
They differ from things public, the latter belonging to a nation." For tho' Caius in his division of things, makes them to con sist of derelicts, treasure trove, the hæreditas jacens, or an inheritance lying before it be entered on or appropriated, yet as these are, of private nature, and capable of proprietorship, Justinian more properly. Confines the res nullius to things of divine right.
We have now done with things extra patrimonium, and must remind the reader that things in patrimonio are divided into corporeal and incorporeal, and the corporeal again into moveable and inmoveable.
Corporeal things are these which are visible and tangible, as lands, houses, jewels, &c. Incorporeal are not the object of sensation, but are the creatures of the mind, being rights issuing out of a thing corporeal, or concerning or exercisable within the same.
Corporeal things are either moveable, as silver, gold, houshold goods or immoveable, as lands and houses*.
Corporeal things may be unoccupied; or held for life, or lesser term, or in inheritance; in the second case, the English Law cal's them tenements, in the third hereditaments. So incorporeal rights may be tenements or hereditaments, as they are to exist for the life of the individual or to descend to his posterity. The Civil Law does not make use of these terms, but yet, like the English, in the division of things, pays more peculiar attention to those of an incorporeal nature, which we may if we please, to keep up the analogy. call hereditaments.
We take leave of this work with recommending it to the attention of those young men who are beginning their law studies, whether they may mean to dedicate their future exertions to the Courts of Doctors Commons, or to those of Westminster-Hall.
ART. X. The select IVorks of Antony Van Leeuwenhoek, containing
HE name and the discoveries of Leeuwenhoek are well known to those who are engaged in the pursuits of natural philosophy: yet we believe that this is the first English translation of that author; and, judging from the specimen before us, the edition promises to be a very handsome one.
* Moveables and immoveables are more usually and technically called by our Law, things real and personal; thus Mr. Blackstone defines in the second chapter of his second book, things real to be such as are fixed and immoveable; things personal to be goods, money, and other moveables; yet in his twenty-fourth chapter he is forced to depart from this definition, and to acknowledge that things personal include something more than moveables, viz. what we call chattels real, (as leases for years,) which he says are of a Such awkward effects arise from our mongrel, amphibious nature. distinctions of real and personal property, and so much superior is the simplicity of the Civil Law.'
From the time of the sects of the Peripatecians and Epicuteans *, the controversy of the divisibility of matter has been agitated, and is not hitherto determined.
The discoveries of Boyle and Leeuwenhoek have been urged by the advocates for the divisibility of matter, as a confirmation of their opinion on this subject. Mr. Boyle demonstrated the practicability of dividing a grain of gold into 1800,occo visible parts. He likewise dissolved a grain of copper in spirit of sal ammoniac, and, mixing it so dissolved with a certain quantity of water weighing 28,534 grains, a blue tincture was given to the water in every part. He inferred, then, that there must be in every visible part of the water a small particle of copper. Now the water measured 105,57 cubic inches, and in a cubic inch there are 21,600,0000 visible parts; consequently, a grain of copper was divided into 2,278.800,0000 small visible parts.-Leeuwenhoek discovered in some water three kinds of animalcules, of which the diameters were to one another as the numbers, 1, 10, and 50; the diameter of a common grain of sand was to that of the smallest of these animalcules as 1000:1; and consequently its magnitude as 100,000,0000: 1. Moreover, these animalcules were seen to swim in the water, had muscles, nerves, blood-vessels, &c. Of what an inconceiveable smallness, then, must a globule of their blood be! We may describe its magnitude compared to that of some other object by means of numbers, but we cannot form any idea of it Mr. Addison expresses himself on this subject, in the Spectator, with great elegance and perspicuity; as quoted by the present translator:
"Let a man try to conceive the different bulk of an animal, which is twenty, from another which is a hundred times less than a mite, or to compare in his thoughts, a length of a thousand diameters of the earth, with that of a million, and he will quickly find that he has no different measures in his mind, adjusted to such extraordinary degrees of grandeur or minuteness. The understanding, indeed, opens an infinite space on every side of us; but the imagination, after a few faint efforts, is immediately at a stand, and finds herself swallowed up in the immensity of the void that surrounds it our reason can pursue a particle of matter through an infinite variety of divisions; but the fancy soon loses sight of it, and feels in itself a kind of chasm, that wants to be filled with matter of more sensible bulk. We can neither widen, nor contract the faculty to the dimen sions of either extreme. The object is too big for our capacity, when we would comprehend the circumference of a world; aid dwindles into nothing, when we endeavour after the idea of an atom.' • SPECTATOR, No. 420."
* See Lucretius, first book.
The translator says that the sand was of that sort called sekaverin
REV. Aug. 1799.