acquired by the first taker, it remains in him, till he does some other act which shows an intention to abandon it; for then it becomes, naturally speaking, publici juris once more, and is liable to be again appropriated by the next occupant. But the practice of one man's abandoning his property, and another seizing the vacant possession, however well founded in theory, could not long subsist in fact. It necessarily ceased among the complicated interests and artificial refinements of established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another; who was ready to give in exchange for it some equivalent, that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance; which may be considered either as a continuance of the original possession which the first occupant had, or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor.

The most universal and effectual way of abandoning property, is by the death of the occupant; when both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: and then the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments, such a constitution would be productive of endless disturbances, the law of almost every nation has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased. Hence the right of inheritance or descent to the children and relations of the deceased, which seems to have been allowed much earlier than the right of devising by testament, and which we are apt to conceive at the first view has nature on its side. Yet we often mistake for nature what is merely established by long and inveterate custom. For it is obvious that a man's children or nearest relations being usually about him on his death-bed, are the earliest witnesses of his decease, and became therefore generally the next immediate occupants of his property, till at length, in process of time, this frequent usage ripened into general law. So that to municipal and not to natural law we owe not only the right of inheritance, but the right to test or bequeath by will. For while property continued only for life, as it was at first, testaments were useless and unknown: and when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law could

not be excluded by will. Till at length it was found, that so strict a rule made heirs disobedient, defrauded creditors of their debts, and prevented many provident fathers from dividing their estates as the exigence of their families required, which introduced the right of disposing of one's property, or a part of it, by will. So that the rights of inheritance and succession are all of them creatures of the civil and municipal laws, and accordingly are in all respects regu lated by them.

But, after all, there are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common. 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 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 his 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.

CHAPTER II.

OF REAL PROPERTY.

Definition of lands, tenements, and hereditaments:-Corporeal hereditaments or land- Incorporeal hereditaments, viz., advowsons-Tithes-Commons -Ways-Offices-Dignities-Franchises-Corodies-Annuities-Rents.

THE objects of property are things, as contradistinguished from persons; and things are of two kinds; things real and things personal, Things real are such as are permanent, fixed, and immovable, which cannot be carried out of their place, as lands and tenements; things personal are goods, money, and all other movables, which may attend the owner's person wherever he thinks proper to go. Things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, signifying everything 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. Thus, liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like: and as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements. But an hereditament 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, which by custom descends to the heir, is neither land nor tenement, but a mere movable; yet, being inheritable, is comprised under the general word hereditament.

Hereditaments then, 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: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

I. Corporeal hereditaments consist wholly of substantial and permanent objects, all which may be comprehended under the general denomination of land only. For land comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. Water being here mentioned as land, may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. For water is a movable, wandering thing, and must of necessity continue common by the law of nature; but the land, which that water covers, is permanent, fixed, and immovable; and of this the law will take notice, but not of the other.

Land has also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad cœlum, is the maxim of the law, therefore no man may erect any building, or the like, to overhang another's land: and downwards, whatever is in a direct line between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows.

II. 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. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the product of the annuity, is of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, and cannot be delivered over from hand to hand; and these incorporeal hereditaments are principally advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

1. Advowson is the right of presentation to a church, or ecclesiastical benefice. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, the lord, who thus built a church, and endowed it with glebe or land, had of common right a power` annexed of nominating such minister as he pleased to officiate in that church of which he was the founder, endower, maintainer, or, in one word, the patron.

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages, but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporeal> possession be had of it. If the patron takes corporeal possession of the church, the churchyard, the glebe, or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, viz., by writing under seal, which is evidence of an invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth, when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

2. Tithes are a second series of incorporeal hereditament. They are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: the first being usually called predial, as of corn, hops, and wood: the second mixed, as of wool, milk, pigs, &c., natural products, nurtured in part by the care of man: the third personal, as of manual occupations, trades, fisheries, and the like.

3

I will not put the title of the clergy to tithes upon any divine right, though such a right certainly commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. Many municipal laws have accordingly provided a liberal maintenance for their national priests or clergy. And so do the laws of England. But at what precise time tithes were first introduced here cannot be precisely ascertained. Possibly they were contemporary with the planting of Christianity among the Saxons by Augustin, about the end of the sixth century. But the first mention of them in any written English law, is in a decree, made in a synod held A.D. 786, wherein the payment of tithes in general is strongly enjoined. The next authentic mention of them is about the year 900, in the Anglo-Saxon laws, where this payment is not only enjoined but a penalty added upon non-observance: and this law is seconded by the laws of Athelstan, about the year 930.

Upon their first introduction, every man might give them to what priests he pleased, or might pay them into the hands of the bishop, for distribution by him. But, when dioceses were divided into parishes, the tithes of each were allotted to its own particular minister; first by common consent, or the appointments of lords of manors, and afterwards by the written law of the land. The first step towards this result was taken by Innocent III., about 1200, who in an epistle to the Archbishop of Canterbury, dated from the palace of the Lateran, enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited. This epistle, says Sir Edward Coke, bound not the lay subjects of this realm; but, being reasonable and just, it was allowed of, and so became lex terræ ; so that tithes are due, of common right, to the parson of the parish, unless there be a special exemption; which may be either by a real composition, or by custom or prescription.

A real composition was when an agreement was made between the owner of the lands, and the parson or vicar, that such lands should for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof.

A discharge by custom or prescription, was where time out of mind such persons or such lands had been, either partially or totally, discharged from the payment of tithes. And this immemorial usage or prescription, was either de modo decimandi, or de non decimando. A modus decimandi, commonly called by the simple name of a modus only, was where there was by custom a particular manner of tithing allowed, different from the general law of taking tithes in