PART IV.

THE LAW OF PROPERTY. (a)

LECTURE XIX.

PRELIMINARY CONSIDERATIONS.

§ 122. General Explanations. In the third lecture, I described the origin of title to the American continent, and traced the history of title to that portion of it which constitutes the United States. I also gave a general account of the acquisition and disposition of that vast extent of territory which constitutes our public domain. In the fourth lecture, I described the general divisions and subdivisions of property, for municipal purposes, and defined the terms connected therewith. These it will now be useful briefly to recapitulate. 1. The term property includes every valuable thing which can be made the subject of exclusive ownership. 2. The most general division of property is into things in possession and things in expectation. Things in possession include all things which are under the present and immediate control of the owner. Things in expectation consist of rights which may require the intervention of law to render them available. To this class belong all contracts and legal obligations, which pass under the general description of choses in action. 3. Property is again divided into things real and things personal. Things real include every valuable thing of a fixed and immovable nature, and pass under the general description of lands, tenements, and hereditaments, or simply realty. Things personal include every valuable thing of an unfixed and movable nature, and pass under the general description of goods and chattels, or simply personalty; and there are certain things occupying a sort of intermediate position between

(a) On property, in general, see the 2d book of Blackstone, 2d and 3d books of Swift; and 3d and 4th volumes of Kent. On real property, see Flintoff on real property; Lomax's Digest; Hilliard's Digest; Coke upon Littleton; Cruise's Digest by Greenleaf; Washburn on the law of real property. Those curious as to the growth of rules of property among the most ancient nations, will find a learned and curious discussion of this subject in Mayne's Ancient Law.

the two, some of which are called chattels real, others heirlooms, and others fixtures. 4. Real property is again subdivided into things tangible and things not tangible. Things tangible, include land and every corporeal thing permanently connected therewith to an indefinite extent above and below the surface; and pass under the general description of corporeal hereditaments, or simply land. Things not tangible, include certain rights, privileges, or easements, annexed to land in the ownership of another, and pass under the general description of incorporeal hereditaments.

By the right of property, I understand, in the language of Blackstone, that sole and despotic dominion which one man claims. and exercises over the external things of the world, in total exclusion of every other individual." (a) This is the definition of exclusive ownership, and it has been a question of much speculation, whence this right originated; whether from nature or society. We know, as a matter of history, that in the beginning God gave to man a general dominion over the earth, and all things appertaining thereto; but this would only make the first inhabitants owners in common of the whole, and not exclusive owners of any specific part. The historical inference, therefore, is, that exclusive ownership did not commence until some subsequent period, when a division of the common property was made, either by compulsion or voluntary agreement. In other words, the right of exclusive ownership is conventional, and not divine or natural; and the same inference results from our theory of the social compact. An island or continent, for example, which no man had ever seen, would be the property of no one; but if a number of persons should be cast upon it, and take possession, they would own it in common, until some agreement should be made concerning it; after which, the nature of their ownership, whether exclusive or common, would depend upon their agreement. In either view, therefore, it would seem that the exclusive ownership of property is a social and not a natural right, though our State constitution declares the contrary. But the question is only of speculative interest; for whatever be the origin of the right of property, its efficiency and value depend upon the provisions of municipal law. Our security for the enjoyment of the right of property may be considered in two aspects, with reference to government and to each other. As before explained, we are protected against encroachments on the part of government, by the constitutional assurance, that, except in the way of regular and just taxation, private property shall not be taken for public use, without compensation to the owner; and that existing contracts shall not be impaired by legislation. And with respect to one another we are protected against encroachment by the whole remedial force of the law, which defines our rights and redresses our wrongs. The right of property is, therefore, abundantly protected; and we shall find

(a) 2 Black. Com. ch. 1; 3 Kent, Com. Lec. 50.

as we proceed, that the rules which govern the acquisition, enjoyment, transfer, and transmission of it, form the larger portion of the entire body of municipal law.

§ 123. The Feudal System. (a) There was a time when real property comprehended almost every thing of sufficient importance to be the object of municipal regulation; but that time has long since passed away. In the progress of civilization, personal property has been constantly augmenting in quantity and value, until it has probably turned the scale. At the present moment, it forms a large, if not the largest, part of the wealth of nations. And this difference is destined to be constantly growing greater; for while the basis of real property, that is, the surface of the globe, is limited by nature, so that it cannot be increased, the quantity of personal property, consisting of all the various commodities of life, and depending on the creative genius of man, can be increased to an indefinite extent. This fact in the history of the two divisions of property, has had an important influence upon the character of the law by which they are respectively regulated. The law of personalty, being almost entirely of modern origin, is characterized by the spirit of modern improvement; and as a body, it is comparatively simple, rational, and liberal. Whereas the law of realty, having acquired its form and shape in the days of darkness and barbarism, is characterized by a spirit almost directly the opposite; being, in a remarkable degree, abstruse, technical, and artificial. He who begins with the establishment of the feudal system, and traces down the history of the law of real property, will do it with mingled feelings of disgust and gratification. He cannot fail to be thoroughly disgusted with the narrow, arbitrary, and mystifying spirit which dictated all the early doctrines; nor to be equally gratified with the bold, liberal, and determined spirit which has since been manifested, to substitute new ones in their place. But it is remarkable with what a tenacious grasp the laws of real property adhere to the soil in which they have once taken root. Notwithstanding all the improvements which have hitherto been effected, with so much effort, this branch of law is still obnoxious to the charge of being complicated and cumbrous, to a degree totally at variance with the spirit of the age in other respects.

For the origin of the law of realty, we go back to the feudal system, and although, for reasons which will be hereafter mentioned, we feel the influence of this system but slightly in this State; yet even here this branch of law cannot be fully understood without some knowledge of the law of feuds. I shall merely mention some of the leading features. The feudal system in its origin was purely a military establishment, founded by conquerors.

(a) On the feudal system and the doctrine of tenure, see 2 Black. Com. ch. 4, 5, 6; 3 Kent, Com. lec. 53; Sullivan's Lectures; Dalrymple on Feudal Property; Wright on Tenures; Gilbert on Tenures; the Histories of English Law by Reeve, Hale, and Crabbe; Hallam's Middle Ages, ch. ii.

The title to the whole conquered territory vested at once in the commander in chief as the ultimate owner, who was called the lord paramount. By him it was apportioned, in the first place, among his principal officers, who held it of him on certain terms of tenure, but did not absolutely own it. By such holding, they became his vassals; their interest in the land thus held was called a feud, fief, or fee; and the ultimate right still remaining in the lord, was called his seigniory. These principal officers again apportioned their respective feuds in a similar manner among their inferior officers, and they among theirs, until, by repeated subinfeudations, the feuds became small enough for the purpose of cultivation. Even the lowest feudatories, however, did not labor upon the soil. This was the lot of the vanquished inhabitants, who were held in the most abject servitude, and called serfs or villeins. Thus the feudal system may be properly compared to a stupendous pyramid, of which the lord paramount was the vertex, and whose base rested on slaves. The most important feature in the law of feuds, was that of tenure, as distinguished from absolute ownership. The terms by which vassals held their feuds, whatever link they formed in the chain of subinfeudation, were chiefly two, fealty and service. Fealty consisted in the obligation of fidelity to the lord; and from certain words used in the ceremony, the assumption of this obligation was called doing homage. This is supposed to be the origin of the oath of allegiance. Service was the recompense made to the lord for the use of the land, and consisted in attending him in his court during peace, and in his army during war. The mode, manner, and quantity of service were settled at the time of creating the feud; and when scribes could be found, were reduced to writing. This was the origin of the deed of feoffment. But the creation of the feud was not complete, until there had been what was called a corporeal investiture; which consisted in a symbolical delivery of possession, by the lord to the vassal, in sight of the land, and in presence of the neighboring vassals. This gave rise to the modern ceremony, called livery of seisin, which will be described hereafter. Originally, feuds were only granted for the life of the feudatory; but, in process of time, they began to be granted to the feudatory and his heirs, and thus became hereditary. As they were granted upon personal considerations, and created a very intimate and confidential relation between the lord and the vassal, it was a fundamental doctrine that they were unalienable, without mutual consent. That is, the lord could not tranfer his seigniory without the consent of his vassal; nor could the vassal transfer the feud without the consent of the lord. Such were some of the leading features of the feudal system, while it retained its purely military character; and nowhere was that system more firmly established than in England. The progress of civilization, however, for eight centuries, has effected many important changes. The original military tenures gradually gave place to civil tenures, such as grand sergeanty, petit sergeanty,

free socage, villein socage, and divers other tenures, designated by equally euphonious names. But it would be a waste of time to dwell on these tenures, because they are now obsolete. It is sufficient in this connection to observe, that the mighty revolution which has gradually been effected in the law of realty, may be traced to two fundamental innovations upon the original law of feuds. The first relates to hereditary estates, and consists in substituting absolute ownership in the place of holding upon terms of tenure. The second relates to estates not hereditary, and consists in substituting a pecuniary compensation or rent in the place of personal service.

$124. Slight traces of it here. It was necessary to present this brief sketch of the feudal system, in order to account for the exceedingly technical character of the law of realty, and to explain the several existing doctrines to which reference must hereafter be made. At the same time it is unnecessary to give a detailed account of that system, because very few traces of it are perceptible in our law. In this respect, the citizens of the new States are much more fortunate than those of the original States, to which the principles of the English law were directly transplanted. For although no feudal conquerors parcelled out the American territory among their victorious followers, yet, as we have before seen, the first settlers brought with them, as their birthright, the general doctrines of the English common law, and among them those feudal principles which time had not been able there to eradicate. But our historical summary has shown that this region was settled under happier auspices. The ordinance of 1787, by a few sweeping provisions, respecting the title, descent, and transfer of land, effectually prevented many of those feudal doctrines, which still cumber the land laws of the older States, from attaching themselves here. The author of the ordinance has himself said "that the titles which were planted by this ordinance, in 400,000 square miles of territory, are more purely republican, and more completely divested of feudality, than any titles in the Union were at that time." (a) In fact, the ancient notions of tenure do not exist here even in theory, as they do in some of the older States. (b) Our citizens hold of no superior. What they own, they own absolutely and independently. All estates are in the broadest sense of the word allodial. The only provision in our law which bears the most remote analogy to the doctrine of holding of a superior is, that the people of the State, in their collective and sovereign capacity, have an ultimate right to all land within their jurisdiction, when it so happens that there is no other legal owner; in which case, the law makes it escheat to them; and this right of escheat bears some resemblance to that of the lord paramount.

(a) Dane's Abr. App. 77.

(b) The right of eminent domain is by some jurists based on the principle of the feudal tenure, and by others on sovereignty or public necessity. West River Bridge Co. v. Dix, 6 How. 532, 533, 539; 2 Parsons on Contracts, 519.