Such is the origin that we are disposed to assign to property itself, and to the power of transferring or transmitting property, considered in the abstract. However, it is clear that all proprietory rights, as we now find them established in any country, rest on the municipal law as their immediate basis-being indeed some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty; and, like those relative to life and limb, they have always been guarded by the laws of England with peculiar vigilance, and have been frequently recognized in distinct and emphatic terms by the legislature. Thus [the Great Charter (o) has declared, that no freeman shall be disseised or divested of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of antient statutes (p) it is enacted, that no man's lands or goods shall be seized into the king's hands against the Great Charter and the law of the land; and that no man shall be disinherited, nor put out of his franchise or freehold, unless he be duly brought to answer and be forejudged by course of law; and if anything be done to the contrary, it shall be redressed and holden for none.]

Even for the general good of the whole community, no unnecessary violation of the rights of property is, in any instance, allowed by our law. If a new road, for example, is to be made through the grounds of a private person, in a case where it would be extensively beneficial to the public, the legislature never permits itself to do this without consent of the owner of the land, or at least without securing to him a complete indemnification. In vain may it be urged that the good of the individual ought to yield to that of the community. The true principle applicable to all such cases is one to which we have had occasion already to refer, and which is constantly borne in view by the English law, viz. that the private interest of the in(0) C. 29.

(p) See 5 Edw. 3, c. 9; 25 Edw.3, st. 5, c. 4; 28 Edw. 3, c. 3.

dividual is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance (q). [The public, therefore, is considered in all such transactions as an individual treating with an individual, for an exchange. All that the legislature does is to oblige the owner to alienate his possession for a reasonable price; and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform (r).]

Nor is this the only instance in which the law of the land has postponed the public interest to the sacred and inviolable rights of private property. [For no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent or that of his representatives in parliament. By the statute 25 Edw. I. (cc. 5 and 6,) it is provided, that the king shall not take any aids or tasks but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. st. 4, c. 1 (s), which enacts, that no talliage or aid shall be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land; and again by 14 Edw. III. st. 2, c. 1, the prelates, earls, barons, and commons, citizens, burgesses, and merchants, shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes, by (9) Vide sup. p. 149.

(r) See 8 & 9 Vict. c. 18 (called "The Lands Clauses Consolidation Act, 1845"), for consolidating into one act the provisions usual in acts authorizing the taking of lands for undertakings of a public nature, 23 & 24 Vict. c. 106 (for amending the same) and 22 & 23 Vict. c. 59, s. 9.

(s) See however the introduction to the Great Charter (edit. Oxon.), sub anno 1297; wherein it is shown that this statute, (called De tallagio non concedendo,) supposed to have been made in 34 Edw. 1, is in reality nothing more than a sort of translation into Latin of the Confirmatio cartarum, 25 Edw. 1, which was originally published in the Norman language.

[compulsory loans, and benevolences extorted without a real and voluntary consent, it was made an article in the Petition of Right, 3 Car.. I., that no man shall be compelled to yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 Will. & Mary, st. 2, c. 2, it is declared, that levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, or for longer time or in other manner than the same is or shall be so granted, is illegal.]

PART I.

OF THINGS REAL.

THE subjects of dominion or property, in the law of England, are things, as contradistinguished from persons; and things are distributed into two kinds, things real, and things personal. Things real, (otherwise called realty,) consist of things substantial and immoveable, and of the rights and profits annexed to or issuing out of these.

Things personal, (otherwise called personalty,) consist of goods, money, and all other moveables, and of such rights and profits as relate to moveables (a).

The First Part of the present Book will consequently relate to things Real, and the Second to things Personal.

be fairly open to the objection that has been sometimes made to it, of not being extensive enough to comprise chattels real. For it is more correct and convenient to keep separate the idea of the subjects in which property may be acquired, from the idea of the estate or interest that may be acquired in these subjects. A chattel real is, properly speaking, not a thing personal, but rather a particular kind of estate in a thing real. It is, however, for many purposes, properly designated as personal estate. This is a matter that we shall have occasion to notice more fully hereafter.

CHAPTER I.

OF THE DIVISIONS OF THINGS REAL.

THINGS real are usually said to consist in lands, tenements, or hereditaments. [Land, says Sir Edward Coke (a), comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes and heath. It legally includeth also all castles, houses, and other buildings: for they consist, saith he, of two things; land, which is the foundation, and structure thereupon: so that if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem as 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; either by calculating its capacity, as for so many cubical yards; or by superficial measure, for twenty acres of water; or by general description, as for a pond, a water-course, or a rivulet: 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 (b).] And so if I grant a certain water, though the right of fishing passes, yet the soil does not (c). [For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein: wherefore, if a body of water runs out of my

(a) Co. Litt. 4a; and see Ewer v. Hayden, Cro. Eliz. 476; Cooke v. Yates, 4 Bing. 90.

(b) Challoner v. Thomas, Brownl.

142.

(c) Co. Litt. 4 b.