and others, holding, that there is no fuch implied affent, neither is it neceffary that there should be; for that the very act of occupancy, alone, being a degree of bodily labour, is, from a principle of natural juftice, without any confent or compact, fufficient of itfelf to gain a title. A difpute that favours too much of nice and fcholaftic refinement! However, both fides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man feizing to his own continued ufe fuch fpots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one elfe. Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own ufe, it remains in him, by the principles of univerfal law, till fuch time as he does fome other act which fhews an intention to abandon it; for then it becomes, naturally fpeaking, pub. lici juris once more, and is liable to be again appropriated by the next occupant. So if one is poffeffed of a jewel, and cafts it into the fea, or a public highway, this is fuch an exprefs dereliction, that a property will be vested in the firft fortunate finder that will feize it to his own ufe. But if he hides it privately in the earth, or other fecret place, and it is difcovered, the finder acquires no property therein; for the owner hath not by this act declared any intention to abandon it, but rather the contrary and if he lofes or drops it by accident, it cannot be collected from thence, that he defigned to quit the poffeffion; and therefore in fuch cafe the property ftill remains in the lofer, who may claim it again of the finder. And this, we may remember, is the doctrine of the laws of England, with relation to treafure trove. But this method, of one man's abandoning his property, and another's feizing the vacant poffeffion, however well founded in theory, could not long fubfift in fact. It was calculated merely for the rudiments of civil fociety, and neceffarily ceafed among the complicated interefts and artificial refinements of polite and eftablished governments. In these it was found, that what became inconvenient or ufelefs to one man, was highly convenient and useful to another; who was ready to give in exchange for it fome equivalent, that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by fale, grant, or conveyance: which may be confidered either as a continuance of the original poffeffion which the first occupant had; or as, an abandoning of the thing by the prefent owner, and an immediate fucceffive occupancy of the fame by the new proprietor. The voluntary dereliction of the owner, and delivering the poffeffion to another individual, amount to a transfer of the property; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occu pancy fhall be vefted in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my having abandoned the property, and Titius, being the only or first man acquainted with fuch my intention, immediately fteps in and feizes the vacant poffeffion: thus the confent expreffed by the conveyance give's Titius a good right against me; and poffeffion, or occupancy, confirms that right against all the world befides. The moft univerfal and effectual way of abandoning property, is by the death of the occupant : when, both the actual poffeffion and intention of keeping poffeffion, ceafing, the property, which is founded upon fuch poffeffion and intention ought alfo to ceafe of courfe. For, naturally fpeaking, the inftant a man ceafes to be, he ceafes to have any dominion: elfe, if he had a right to difpofe of his acquifitions one moment beyond his life, he would alfo have a right to direct their difpofal for a million of ages after him; which would be highly abfurd and inconvenient. All property muft therefore ceafe upon death, confidering men as abfolute individuals, and unconnected with civil fociety: for then, by the principles before eftablished, the next immediate occupant would acquire a right in all that the deceafed poffeffed. But as, under civilized governments, which are calculated for the peace of mankind, fuch a conftitution would be productive of endless difturbances, the univerfal law of almoft every nation (which is a kind of fecondary law of nature) has either given the dying perfon a the dying perfon a power of continuing his property by difpofing of his poffeffions by will: or, in cafe he neglects to difpofe of it, or is not permitted to make any difpofition at all, the municipal law of the country then steps in, and declares who fhall be the fucceffor, reprefentative, or heir of the deceased; that is, who alone fhall have a right to enter upon this vacant poffeffion, in order to avoid that confufion, which its becoming again common would occafion. And farther, in cafe no teftament be permitted by the law, or none be made, and no heir can be found fo qualified as the law requires, ftill, to prevent the robuft title of occupancy from again taking place, the doctrine of efcheats is adopted in almoft every country; whereby the fovereign of the ftate, and thofe who claim under his authority, are the ultimate heirs, and fucceed to thofe inheritances, to which no other title can be formed. The right of inheritance, or defcent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devifing by teftament. We are apt to conceive at first view that it has nature on its fide; yet we often mistake for nature what we find established by long and inveterate cuftom. It is certainly a wife and effectual, but clearly a political establishment; fince the permanent right of property, vefted in the ancestor himfelf, was no natural, but merely a civil, right. It is true, that the tranfmiffion of one's poffeffions to pofterity has an evident tendency to make a man a good citizen, and a useful member of U 4 fo fociety: it fets the paffions on the fide of duty, and prompts a man to deferve well of the public, when he is fure that the reward of his fervices will not die with himself, but be tranfmitted to those with whom he is connected by the deareft and moft tender affections. Yet, reafonable as this foundation of the right of inheritance may feem, it is probable that its im mediate original arofe not from fpeculations altogether fo delicate and refined: and, if not from fortuitous circumstances, at leaft from a plainer and more fimple principle. A man's children or neareft relations are ufually about him on his death bed, and are the earliest witnesses of his deceafe. They became therefore generally the next immediate occupants, till at length, in procefs of time, this frequent ufage ripened into general law. And therefore alfo in the earliest ages, on failure of children, a man's fervants born under his roof were allowed to be his heirs; being immediately on the fpot when he died. For we find the old patriarch Abraham exprefsly declaring, that, " fince "God had given him no feed, his ❝fteward Eliezer, one born in his houfe, was his heir." While property continued only for life, teftaments were ufelefs and unknown; and when it became inheritable, the inheritance was long inde feasible, and the children or heirs at law were incapable of exclufion by will. Till at length it was found, that fo ftrict a rule of inheritance made heirs difobedient and headstrong, . defrauded creditors of their juft debts, and prevented many pro vident fathers from dividing or charging their eftates as the exigence of their families required. This introduced pretty generally the right of difpofing one's property, or a part of it, by tef tament; that is, by written or oral inftructions, properly witnessed and authenticated, according to the pleasure of the deceased; which we therefore emphatically style his will. This was established in fome countries much later than in others. With us in England, till modern times, a man could only difpofe of one third of his moveables from his wife and children: and, in general, no will was permitted of lands till the reign of Henry the Eighth; and then only of a certain portion: for it was not till after the restoration that the power of devifing real property became fo univerfal as at prefent. Wills therefore and testaments, rights of inheritance and fucceffions, are all of them creatures of the civil or municipal laws, and accordingly are, in all refpects, regulated by them; every diftin&t country having different ceremonies and requifites to make a teftament completely valid: neither does any thing vary more than the right of inheritance under different national eftablishments. In England, particularly, this di verfity is carried to fuch a length, as if it had been meant to point out the powers of the law in regulating the fucceffion to property, and how futile every tale muft be that has not its foundation in the pofitive rules of the state. In perfonal eftates the father may fucceed to his children; in landed pro property, he never can be their immediate heir, by any the remoteft poffibility in general only the eldest fon, in fome places only the youngest, in others all the fons together, have a right to fucceed to the inheritance in real es ftates males are preferred to females, and the eldest male will ufually exclude the reft; in the divifion of perfonal eftates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed. This one confideration may help to remove the fcruples of many well-meaning perfons, who fet up a mistaken confcience in oppofition to the rules of law. If a man difinherits his fon, by a will duly executed, and leaves his e. ftate to a stranger, there are many who confider this proceeding as contrary to natural juftice: while others fo fcrupuloofly adhere to the fuppofed intention of the dead, that if a will of lands be attefted by only two witneffes inftead of three, which the law requires, they are apt to imagine that the heir is bound in confcience to relinquish his title to the devifee. But both of them certainly proceed upon very erroneous principles: as if, on the one hand, the fon had by nature a right to fucceed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the fucceffion of his property after his Whereas the law own decease. of nature fuggefis, that on the death of the poffeffor the eftate fhould again become common, and be open to the next occupant, unless otherwife ordered for the fake of civil peace by the pofitive Such But, after all, there are fome few things, which, notwithstanding the general introduction and continuance of property, muft ftill unavoidably remain in common; be ing fuch wherein nothing but an unfufructuary property is capable of being had; and therefore they ftill belong to the first occupant, during the time he holds poffeffion of them, and no longer. (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 conveniencies: fach alfo are the generality of those animals which are faid to be ferae naturae, or of a wild and untameable difpofition; which any man may feize upon and keep for his own ufe or pleasure. All these things, fo long as they remain in poffeffion, every man has a right to enjoy enjoy without difturbance; but if once they efcape from his cuftody, or he voluntarily abandons the ufe of them, they return to the common flock, and any man elfe has an equal right to feize and enjoy them afterwards. Again; there are other things, in which a permanent property may fubfift, not only as to the temporary ufe, but also the folid fubtance; 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 wafte grounds, which were omitted to be appropriated in the general diftribution of lands: fuch alfo are wrecks, eftrays, and that fpecies of wild animals, which the arbitrary conftitutions or pofitive law have diftinguished from the reft by the well-known appellation of game. With regard to thefe and fome others, as difturbances and quarrels would frequently arife among individuals, contending about the acquifition of this fpecies of property by firft occupancy, the law has therefore wifely cut up the root of diffenfion, by vefting the things themselves in the fovereign of the ftate; or elfe in his reprefentatives, appointed and authorized by him, being ufually the lords of manors. And thus the legiflature of England has univerfally promoted the grand ends of civil fociety, the peace and fecurity of individuals, by fteadily purfuing that wife and orderly maxim, of affigning to every thing capable of ownership a legal and determinate owner." We fhall conclude with the account which our learned writer gives of the Feodal Syftem; which, though a fubject often handled, appears new in his hands. It is impoffible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its landed property, without fome general acquaintance with the nature and doctrine of feuds, or the feodal law; a fyftem fo univerfally received throughout Eu rope, upwards of twelve centuries ago, that Sir Henry Spelman does not fcruple to call it the law of nations in our weftern world. This chapter will be therefore dedicated to this inquiry. And though, in the courfe of our ob fervations in this and many other parts of the prefent book, we may have occafion to fearch pretty highly into the antiquities of our English jurifprudence, yet furely no induftrious ftudent will imagine his time mif-employed, when he is led to confider that the obfolete doctrines of our laws are frequently the foundation, upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a fcholar-like fcientifical manner, without having recourfe to the ancient. Nor will these researches be altogether void of rational entertainment as well as ufe as in viewing the majeftic ruins of Rome or Athens, of Balbec or Palmyra, it adminifters both pleasure and inftruction to compare them with the draughts of the fame edifices, in their priftine proportion and fplendor. The conftitution of feuds had its original from the military policy of the northern or Celtic nations, the Goths, the Hunns, the Franks, |