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justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erections of charity, and the display of the benevolent affections.a
*The exclusive right of using and transferring pro- *320 perty, follows as a natural consequence, from the perception and admission of the right itself. But, in the infancy and earlier stages of society the right of property depended almost entirely upon actual occupancy; and it is a general law of property in all systems of jurisprudence, that actual delivery or possession is necessary to consummate the title. Property without possession, is said to be too abstract an idea for savage life ; and society had made some considerable advances towards civilization, and the improvements resulting from order and subordination must have existed to some certain extent, before the temporary right of occupancy was changed into a permanent and solid title under the sanction of positive law. Property in land was first in the nation or tribe, and the right of the individual occupant was
• M. Toullier, in his account of the origin and progress of property, in his Droit Civil Francais, tom. iii. 40, insists, that a primitive state of man existed before the establishment of civil society, when all things were common, and temporary occupancy the only title ; but he gives no sufficient proof of the fact. The book of Genesis, which he justly regards as the most ancient and venerable of histories, does not show any such state of the human race. The first man born was a tiller of the ground, and the second a keeper of sheep. The earliest accounts of Noah and his descend. ants after the flood, in Genesis, ix. x. xiii. prove that they were husband. men, and planted vineyards, built cities, established kingdoms, and abounded in flocks and herds and gold and silver. I observe, however, with pleasure, that M. Toulier has freely and liberally followed Sir William Blackstone, in his elegant dissertation on the rise and progress of property. President Goguet, in his most learned work, De l'origine des lois, des arts, des sciences, et de leurs progres chez les anciens Peuples, b. 2. ch. 1. art. 1, considers agriculture as flourishing before the dispersion at Babel, though after that event mankind relapsed into the most deplorable barbarity.
Grotius, b. 2. ch. 6. sec. 1. • Ibid. b. 2. ch. 6. sec. 1. Puff. b. 4. ch. 9. sec. 8. Barbeyrac's note, ibid. Sir William Scott, case of the Fama, 5 Rob. Adm. Rep. 114.
merely usufructuary and temporary. It then went by allotment, partition, or grant from the chiefs or prince of the tribe to individuals ; and, whatever may have been the case in the earliest and rudest state of mankind beyond the records of history, or whatever may be the theory on the subject, yet, in point of fact, as far as we know, property has always been the creature of civil in. stitutions. By the ancient law of all the nations of Europe, the bona fide possessor of goods had a good title as against the real owner in whatever way, whether by force, fraud, or accident, the owner may have been divested of the possession. It was the law in several parts of Germany so late as the middle of the last century according to Heinneccius,b that if one person should lend, or hire or deposit his goods with another, and they should come to the possession of a third person, he would be entitled to hold them as against the original owner. By the Roman law, in its early state, property stolen and sold, was lost to the real owner, and the only remedy was by an action, (conductio furtiva) against the thief. But when the Roman law advanced to maturity, it was held, that theft did not deprive a man of his title to property ;
and the action of rei vindicatio was, in effect, *321 given against the *bona fide purchaser. The
law of the twelve tables, by which the possession of one year, was a good title by prescription to moveables, shows that a feeble and precarious right was attached to personal property out of possession.
The ancient laws of Europe confiscating stolen goods, on conviction of the thief, without paying any regard to the right of the real owner, is another instance to prove the prevalence of a very blunt sense of the right of pro
Cæsar de Bel. Gul. lib. 4. ch. 2. Ib. lib. 6. ch. 20. o Opera, tom. v. part 2. 180, 181.
. This was by the perpetual edict extending the actio metus, which differed in nothing but in name from the rei vindicatio. Inst. 2. 6.2 Lord Kames' Historical Law Tracts, tit. Property.
perty distinct from the possession. The English doctrine of wrecks was founded on this imperfect notion of the right of property, when it had lost the evidence of possession. By the common law, as it was laid down by Sir William Blackstone,« goods wrecked were adjudged to belong to the king, and the property was lost to the owner. This, he admits, was not consonant to reason and humanity ; and the rigor of the common law was softened by the statute of West. I. 3 Edw. I. ch. 4., which declared, that if any thing alive escaped the shipwreck, be it man or animal, it was not a legal wreck, and the owner was entitled to reclaim his property within a year and a day. Upon this statute the legal doctrine of wrecks has stood to this day. St. Germain, the author of the Doctor and Student, did not seem to think, that even the law under this statute, stood with conscience, for why should the owner forfeit the shipwrecked goods, though it should happen, that no man, dog, or cat, (to use the words of the statute,) should come alive unto the land out of the ship? The only rational ground of the claim on the part of the crown is, that the true owner cannot be ascertained. The imperial edict of the Emperor Constantine was more just than the English statute, for it gave the wrecked goods, in every event, to the owner ;c and *Bracton, who wrote before the statute *322 of 3 Edw. I., and who was acquainted with the edict of Constantine, lays down the doctrine of wreck upon perfectly just principles.d He makes it to depend, not upon the casual escape of an animal, but upon the absence of all evidence of the owner. The statutes of New-York, Massachusetts, and other American states, are like the edict of Constantine, and the declaration of Bracton ; for they declare, that nothing that shall be cast by
• Com. vol. 1. p. 290, 291.
Dr. and Stu. 267, 268. • Code, 11. 5. 1.
Lib. 3. 120. sec. 5.
the sea upon the land, shall be adjudged a wreck, but the goods shall be kept safely for the space of a year for the true owner, to whom the same is to be delivered on his paying reasonable salvage ; and if the goods be not reclaimed within that time, they shall be sold, and the procceds accounted for to the state. In the case of Hamilton 8. Smith v. Davis, b the very question arose in the K. B., whether the real owner was entitled to reclaim his shipwrecked goods, though no living creature had come alive from the ship to the shore. The grantee under the crown claimed the goods as a wreck, because the ship was totally lost, and no living animal was saved ; and his very distinguished counsel, consisting of Mr. Dunning, (afterwards Lord Ashburton,) and Mr. Kenyon, (afterwards Lord Chief Justice of the K. B.,) insisted, that according to all the writers, from the Mirror to Blackstone inclusive, it was a lawful wreck, as no living creature had come to the shore, and that Bracton stood unsupported by any other writer. But Lord Mansfield, with a sagacity and spirit that did him infinite honor, reprobated the doctrine urged on the part of the defendant, and declared that there was
no case adjudging that the goods were forfeited, be*323
cause no *dog, or cat, or other animal, came alive to
the shore; that any such determination would be contrary to the principles of law and justice; that the very idea was shocking ; and that the coming ashore of a dog, or a cat, alive, was no better proof of ownership, than if they should come ashore dead ; that the whole inquiry was a question of ownership; and that if no owner could be discovered the goods belonged to the king, and not otherwise;
· N. Y. Revised Statutes, vol. i. p. 690. Mass. Revised Statutes, 1835, part 1. tit. 14. ch. 57. sec. 12. The colony laws of Massachusetts also preserved all wrecks for the owner, and did not follow the English law. Dana's Abr. vol. iii. 144. Probably the statute law of other states is equally just. The acts of North Carolina, of 1801, 1805, 1817, 1818, on this subject, are founded, said Mr. Justice Story, in 5 Mason's Rep. 477, on the principles of justice and humanity.
15 Burr. Rep. 2732.
and that the statute of 3 Edw. I. was not to receive any construction contrary to the plain principles of justice and humanity.
After reading this interesting case, it appears rather surprising that any contrary opinion should have been seriously entertained in Westminster hall, at so late a period as the year 1771 ; and especially that Sir Wm. Blackstone should have acquiesced, without any difficulty, in a different construction of the statute of Westm. 1.
But to return to the history of the law of property. The title to it was gradually strengthened, and acquired great solidity and energy, when it came to be understood, that no man could be deprived of his property without his consent, and that even the honest purchaser was not safe under a defective title.
The exceptions to this rule grew out of the necessities and the policy of commerce; and it was established as a general rule, that sales of personal property in market overt, would bind the property even against the real owner. The markets overt, in England, depend upon special custom, which prescribes the place, except that, in the city of London, every shop in which goods are exposed publicly to sale, is market overt for those things in which the owner professes to trade. If goods be stolen, and sold openly in such a shop, the sale changes the property. But if the goods be not sold strictly in market overt, or if there be not good faith in the buyer, or there be any thing unusual or irregular in the sale, it will not affect the validity of it as *against the title of the real own- *324 er. The common law, according to Lord Coke, b held it to be a point of great policy, that fairs and markets overt should be well furnished; and to encourage
• 5 Co. 83. 12 Mod. Rep. 521. Beacon's Use of the Law, 157. Com. Dig. tit. Market, E. Sh v. Ford, 5 Carr. f Payne, 313. Markets overt were derived from the Saxon laws, which would not allow a transfer of goods to be valid uuless made before witnesses.
1 2 Inst. 713.