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John ^i^aniB




IN THE CUSTODY OF THE

BOSTON PUBLIC LIBRARY.



SHELF N?

' ADAMS




^^.^



(41



Jsiyvyx ^cLc^ny^A,



COMMENTARIES



ON THE



LAWS



O F



E N G L A



BOOK THE SECOND.

B Y
WILLIAM B L A C K S T O N E, E s f j,

SOLICITOR GENERAL TO HER MAJESTY.
THE THIRD EDITION.



OXFORD,

PRINTED AT T IT E CLARENDON PR E-S S,

M. DCC. LXVIIL

c/



^ 1



O N T E N T S.



Book II.
Of the Rights of Things.

Chap. I.
Of Property, in general. Page i.

Chap. II.

Of REAL Property; a7td^ fi^f^t ^f corporeal
Hereditaments. i6.

Chap. HI.
Of incorporeal Hereditaments. 20.

Chap. IV.
Of the F e o D A I. S Y s t e m. 4.4.

Chap. V.
Of the ci7itiefti English Tenures. 59.

a 2 Chap.



CONTENTS.

Chap. VI.
Of the mode7vi English Te n u r e s. 78.

Chap. VII.
Of freehold Estates, of Inheritance. 103.

Chap. VIII.
Of Freeholds, not of Inheritance. 120.

Chap. IX.
Of Estates, less than Freehold. 140.

Chap. X.
Of Estates upon Condition. 152.

Chap. XI.

Of Estates in Possession, Remainder, and

Reversion. 163.

Chap. XII.
Of Estates in Severalty, Joint-tenancy,

Coparcenary, «W Common. 179.

Chap. XIIL
Of the Title to Things real, in general. 195.

Chap.



CONTENTS.

Chap. XIV.
Of Title by Descent. 200.

Chap. XV.
Cy Title (^' Purchase ; a?7d, Ji?^Ji, by ^scn^ at, 241.

Chap. XVI.
Of Title by Occupancy. 258.

Chap. XVII.
Of Title /^Prescription. 263.

Chap. XVIH.
Cy Title by Forfeiture.. 267.

Chap. XIX.
Of Title by Alienation. 287.

Chap. XX..
Of Alienation'/^ Deed. 295.

Chap. XXL
Of Alienation by matter of Record. 344..

Chap. XXII.

Of Alienation by special Custom. 365,

C II a p.



CONTENTS.

Chap. XXIII.
Of Alienation hy Devise. 373.

Chap. XXIV.
Of Things personal, 384.

Chap. XXV.
Of Property hi Things personal. 389.

Chap. XXVI.
Of Title to Things personal, hy Occupancy. 40G.

Chap. XXVII.
Of Title by Prerogative, a7^d Forfeiture. 408.

Chap. XXVIII.
Of Title d^ Cu s TOM. 422.

Chap. XXIX.
Of Title hy Succession, Marriagf., afid

Judgment. 43°'

Chap. XXX.
Of Title hy Gift, Grant, and Contract. 440.

Chap. XXXI.
Of Title hy Bankruptcy. 471.

C h a p.



CONTENTS.

Chap. XXXII.
Of Title by Testament, and Admini-
stration. 489.

APPENDIX.

N". I. Vetus Carta Feoffamenti. Page i.

N°. IL A modern Cofiveyance by Lease aiid Release.

§. I. Lease, or Bargain a7td Sale, for a Tear. W,

§.2. Z)f(?^ 0/ Release. iii.

N°. IIL Afi Obligation, or Bond, ic^ith Condition
for the Paytnent of Money. xiii.

N". IV. A Yi-iiY. of Lands, fur Cognizance de Droit,
come ceo, ^c.

§. I, Writ of Covenant, (7r Praecipe. xiv.

§.2. The Licence to agree. ibid.

§.3. 'The Coyicord. ibid.

§. 4. The Note, or AbflraEl. xv,

§.5. The Foot, Chirograph, or Indentures of the Vim. ibid,

§.6. Proclamations, enJo>fed upon the Fin e, according to the

Statutes. xvi.

N". V. A common Recovery of Lands, with double Voucher.

§. I. Writ of Entry (nr Y}\\T€\i\n in the Yo^ ; cr Praecipe, xvii.
§. 1. Exeinplificaticn of the Recovery RcH, ibid..



COMMENTARIES

ON THE

LAWS OF ENGLAND.

Book the second.
Of the rights of THINGS.

•Chapter the first.
Of property, in general.



The former book of thefe commentaries having
treated at large of the jura perfotiarutn, or fuch
rights and duties as are annexed to the perfons of
men, the objedts of our enquiry in this fecond book
will be the jura rerum, or, thofe rights which a man may ac-
quire in and to fuch external things as are unconnecfled with his
perfon. Thefe are what the writers on natural law flile the rights
of dominion, or property, concerning the nature and original of
which 1 fhall firft premife a few obfervations, before I proceed to
diftribute and confider it's feveral objeds.

Vol. II. A There



2 Tloe Rights Book II.

There is nothing which fo generally ftrikes the imagination,
and engages the aftedlions of mankind, as the right of property;
or that fole and defpotic dominion which one man claims and ex-
ercifes over the external things of the world, in total exclulion of
the right of any other individual in the univerfe. And yet there
are very few that will give themfelves the trouble to confider the
original and foundation of this right. Pleafed as we are with the
pofieflion, we feem afraid to look back to the means by which it
was acquired, as if fearful of fome defed: in our title ; or at bed
we refl fatisfied with the decifion of the laws in our favour, with-
out examining the reafon or authority upon which thofe laws
have been built. We think it enough that our title is derived by
the grant of the former proprietor, by defcent from our ancef-
tors, or by the laft will and teftament of the dying owner; not
caring to refleft that (accurately and ftridly fpeaking) there is no
foundation in nature or in natural law, why a fet of words upon
parchment fliould convey the dominion of land ; why the fon
fhould have a right to exclude his fellow creatures from a deter-
minate fpot of ground, becaufe his father had done fo before
him ; or why the occupier of a particular field or of a jewel,
when lying on his death-bed and no longer able to maintain
poffefTion, fliould be entitled to tell the reft of the world which
of them fhould enjoy it after him. Thefe enquiries, it muft be
owned, would be ufelefs and even troublefome in common life.
It is well if the mafs of mankind will obey the laws when made,
without fcrutinizing too nicely into the reafons of making them.
But, when law is to be confidered not only as matter of practice,
but alfo as a rational fcience, it cannot be improper or ufelefs
to examine more deeply the rudiments and grounds of theTe po-
fitive conftitutions of fociety.

In the beginning of the world, we are informed by holy
writ, the all-bountitul creator gave to man *< dominion over all
" the earthj and over the fifh of the fea, and over the fowl of
" the air, and over every living thing that moveth upon the

" earth \"



Ch. I. of T H I N G s. 3

*' earth "." This is the only true and foUd foundation of man's
dominion over external things, whatever airy metaphylical no-
tions may have been ftarted by fanciful writers upon this fubjed:.
The earth therefore, and all things therein, are the general pro-
perty of all mankind, exclufive of other beings, from the imme-
diate gift of the creator. And, while the earth continued bare of
inhabitants, it is reafonable to fuppofe, that all was in common
among them, and that every one took from the public flock to
his own ufe fuch things as his immediate necefTities required.

These general notions of property were then fufficient to
anfwer all the purpofes of human life ; and might perhaps ftill
have anfwered them, had it been pofTible for mankind to have
remained in a ftate of primaeval iimplicity : as may be collecSled
from the manners of many American nations when firft difco-
vered by the Europeans ; and from the antient method of living
among the firft Europeans themfelves, if we may credit either
the memorials of them preferved in the golden age of the poets,
or the uniform accounts given by hiftorians of thofe times, wherein
*' efa/2f omjiia commiinia et mdmifa omnibus, veliiti loium cunBis pa~
" trimonium eff'et ^." Not that this communion of goods feems
ever to have been applicable, even in the earlieft ages, to ought
but the fubjiance of the thing ; nor could be extended to the ufe
of it. For, by the law of nature and reafon, he who firft began
to ufe it, acquired therein a kind of tranfient property, that lafted
fo long as he was ufmg it, and no longer " : or, to fpeak with
greater precilion, the right of pofTefTion continued for the fame
time only that the aB of pofTefilon lafted. Thus the ground was
in common, and no part of it was the permanent property of any
man in particular : yet whoever was in the occupation of any
determinate fpot of it, for reft, for fhade, or the like, acquired
for the time a fort of ownerfliip, from which it would have been
unjuft, and contrary to the law of nature, to have driven him by
force ; but the inftant that he quitted the ufe or occupation of it,

' Gen. I. 28. c Baibeyr. Puff. 1. 4. c. 4.

'' Juftin. /. 43. c.l.

A 2 another



4 The Rights Book II.

another might feife it without injuftice. Thus alfo a vine or other
tree might be faid to be in common, as all men were equally en-
titled to it's produce ; and yet any private individual might gain
the fole property of the fruit, which he had gathered for his own
repaft. A doftrine well illuftrated by Cicero, who compares the
world to a great theatre, which is common to the public, and yet
the place which any man has taken is for the time his own ''..

But when mankind increafed in number, craft, and ambi-
tion, it became necefTary to entertain conceptions of more per-
manent dominion ; and to appropriate to individuals not the im-
mediate ufe only, but the very Jubjlance of the thing, to be ufed»
Otherwife innumerable tumults muft have arifen, and the good
order of the world been continually broken and difturbed, while
a variety of perfons were ftriving who fliould get the firft occu-
pation of the fame thing, or difputing which of them had ac-
tually gained it. As human life alfo grew more and more refined,
abundance of conveniences were devifed to render it more eafy,
commodious, and agreeable ; as, habitations for fhelter and fafety,
and raiment for warmth and decency. But no man would be at
the trouble to provide either, fo long as he had only an ufufruc-
tuary property in them, which was to ceafe the inftant that he
quitted polTeffion ; — if, as foon. as he walked out of his tent, or
pulled off his garment, the next ftranger who came by would
have a right to inhabit the one, and to wear the other. In the cafe
of habitations in particular, it was natural to obferve, that even
the brute creation, to whom every thing elfe was in common,
maintained a kind of permanent property in their dwellings, ef-
pecially for the protedion of their young ; that the birds of the
air had nefts, and the beafts of the field had caverns, the invafion
of which they efleemed a very flagrant injuftice, and would fa-
crifice their lives to preferve them. Hence a property was foon
ertablifhed in every man's houfe and home-ftall ; which feem to
have been originally mere tempoi'ary huts or moveable cabins,

"' ^emadmodum theatrum, cum commune fit, re^e tameii did ptrieji, ejus eJJ'e aim locum quern
qui/que occufarit. De Fin. /. 3. c. 20.

fuited



Ch. I. of T H I N G 3. 5

fuited to the defign of providence for more fpeedily peopling the
earth, and fuited to the wandering life of their owners, before
any extenlive property in the foil or ground was eftablifhed. And
there can be no doubt, but that moveables of every kind became
fooner appropriated than the permanent fubftantial foil : partly
becaufe they were more fufceptible of a long occupancy, which
might be continued for months together without any fenfible in-
terruption, and at length by ufage ripen into an eftablifhed right ;
but principallv becaufe few of them could be fit for ufe, till im-
proved and ineliorated by the bodily labour of the occupant :
which bodily labour, beftowed upon any fubjedt which before
lay in common to all men, is univerfally allowed to give the fair-
cfb and mofl reafonuble title to an exclufive property therein.

Th e article of food was a more immediate call, and there-
fore a more early conlideration. Such, as were not contented with
the fpontaneous produtl of the earth, fought for a more folid re-
frefhment in the flefh of beafts, which they obtained by hunting.
But the frequent difappointments, incident to that method of pro-
vifion, induced them to gather together fuch animals as were of
a more tame and fequacious nature -, and to elfablifli a perma-
nent property in their flocks and herds, in order to fuflain them-
felves in a lefs precarious manner, partly by the milk of the
dams, and partly by the flefh of the young. The fupport of
thefe their cattle made the article of water alfo a very important
point. And therefore the book of Genefis (the moft venerable
monument of antiquity, confidered merely with a view to hif-
tory) will furnifh us with frequent inftances of violent corrten-
tions concerning wells j the exclufive property of which appears
to have been efliabliflied in the firil digger or occupant, everr
in fuch places where the ground and herbage remained yet in
common. Thus we find Abraham, who was but a fojourner, af-
ferting his right to a well in the country of Abimelech, and ex-
acting an oath for his fecurity, *' becaufe he had digged that well ^"
And Ifaac, about ninety years afterwards, re-claimed this his fa-

" Gen. 21. 30.

thej's.



6 The Rights Book II.

ther's property ; and, after much contention with the Philiftines,

was futl'eied to enjoy it in peace ^

All this while the foil and pafture of the earth remained flill
in common as before, and open to every occupant : except per-
haps in the neighbourhood of towns, where the neceffity of a
fole and exclufive property in lands (tor the fake of agriculture)
was earlier felt, and therefore more readily complied with. Other-
wife, when the multitude of men and cattle had confumed every
convenience on one fpot of ground, it was deemed a natural right
to feife upon and occupy fuch other lands as would more eafily
fupply their neceffities. This pradlice is ftill retained among the
wild and uncultivated nations that have never been formed into
civil flates, like the Tartars and others in the eaft ; where the
climate itfelf, and the boundlefs extent of their territory, con-
fpire to retain them ftiil in the fame favage ftate of vagrant li-
berty, which was univerfal in the earlieft ages ; and which Ta-
citus informs us continued among the Germans till the decline
of the Roman empire ^. We have alfo a ftriking example of the
fame kind in the hiflory of Abraham and his nephew Lot*".
When their joint fubftance became fo great, that pafture and
other conveniences grew fcarce, the natural confequence was
that a ftrife arofe between their fervants ; fo that it was no
longer pradlicable to dwell together. This contention Abra-
ham thus endeavoured to compofe ; " let there be no ftrife,
" I pray thee, between thee and me. Is not the whole land be-
" fore thee ? Separate thyfelf, I pray thee, from me. If thou
" wilt take the left hand, then will I go to the right ; or if thou
" depart to the right hand, then will I go to the left." This
plainly implies an acknowleged right, in either, to occupy what-
ever ground he pleafed, that was not pre-occupied by other tribes.
'• And Lot lifted up his eyes, and beheld all the plain of Jordan,
" that it was well watered every where, even as the garden of the
" Lord. Then Lot chofe him all the plain of Jordan, and jour-
" neyed eaft 3 and Abraham dwelt in the land of Canaan."

' Gen. 26. 15. 18, £i?f. campus, ut nemiis placuit. De mor. Germ. i6.

s Colunt dijcreti et di'verfi ; ui fans, ut ^ Gen. c. 13. UpON



Ch. I. ^Things. 7

Upon the fame principle was founded the right of migration,
or fending colonies to find out new habitations, when the mother-
country was overcharged with inhabitants ; v/hich was pradlifed
as well by the Phaenicians and Greeks, as the Germans, Scy-
thians, and other northern people. And, fo long as it was confi-
ned to the flocking and cultivation of defart uninhabited coun-
tries, it kept ftridtly within the limits of the law of nature. But
how far the feifing on countries already peopled, and driving out
or maffacring the innocent and defenceleis natives, merely becaufe
they differed from their invaders in language, in religion, in cuf-
toms, in government, or in colour ; how far fuch a condud: was
confonant to nature, to reafon, or to chriflianity, deferved well to
be confidered by thofe, who have rendered their names immortal
by thus civilizing mankind.

A s the world by degrees grew more populous, it daily became
more difficult to find out new fpots to inhabit, without encroach-
ing upon former occupants ; and, by conftantly occupying the
fame individual fpot, the fruits of the earth were confumed, and
it's fpontaneous produce deflroyed, without any provifion for a
future fupply or fuccelfion. It therefore became neceffary to pur-
fue fome regular method of providing a conftant fubfiflence ; and
this neceffity produced, or at leaf! promoted and encouraged, the
art of agriculture. And the art of agriculture, by a regular con-
nexion and confequence, introduced and eflablifhed the idea of a
more permanent property in the foil, than had hitherto been re-
ceived and adopted. It was clear that the earth would not pro-
duce her fruits in fufficient quantities, without the afliflance of
tillage : but who would be at the pains of tilling it, if another
might watch an opportunity to feife upon and enjoy the product
of his induftry, art, and labour ? Had not therefore a feparate
property in lands, as well as moveables, been vefted in fome in-
dividuals, the world muft have continued a foreft, and men have
been mere animals of prey ; which, according to fome philofo-
phers, is the genuine flate of nature. Whereas now (fo gracioufly

has



S The Rights Book II.

has providence interwoven our duty and our happinefs together)
the refult of this very neceflity has been the enobhng of the human
fpecies, by giving it opportunities of improving it's rational fa-
culties, as well as of exerting it's natural. Neceffity begat pro-
perty ; and, in order to infure that property, recourfe was had to
civil fociety, which brought along with it a long train of infepa-
rable concomitants ; llates, government, laws, punifhments and
the public exercife of religious duties. Thus connected together,
it was found that a part only of fociety was fufficient to provide,
by their manual labour, for the neceflary fubfiftence of all ; and
leifure was given to others to cultivate the human mind, to invent
tifeful arts, and to lay the foundations of fcience.

The only queftion remaining is, how this property became
actually veiled ; or what it is that gave a man an exclufive right
to retain in a permanent manner that fpecific land, which before
belonged generally to every body, but particularly to nobody.
And, as we before obferved that occupancy gave the right to the
temporary ufe of the foil, fo it is agreed upon all hands that oc-
cupancy gave alfo the original right to the permanent property ia
the Jubjla?ice of the earth itfelf; which excludes every one elfe
but the owner from the ufe of it. There is indeed fome diffe-
rence among the writers on natural law, concerning the reafon
why occupancy fhould convey this right, and invefl: one with this
abfolute property : Grotius and PufFendorf infifting, that this
right of occupancy is founded upon a tacit and implied affent of
all mankind, that the firfl occupant fhould become the owner ;
and Barbeyrac, Titius, Mr Locke, and others, holding, that there
is no fuch implied affent, neither is it neceffary that there fhould
be ; for that the very adl of occupancy, alone, being a degree of
bodily labour, is from a principle of natural juftice, without any
confent or compadt, fufhcient of itfelf to gain a title. A difpute
that favours too much of nice and fcholaftic refinement ! How-
ever, both fides agree in this, that occupancy is the thing by
which the title was in fadl originally gained j every man feifing
to his own continued ufe fuch fpots of ground as he found mofl

agreeable



Ch. I. o/* Things. o

agreeable to his own convenience, provided he found them un-
occupied by any one elfe.

Property, both in lands and moveables, being thus origi-
nally acquired by the firft taker, which taking amounts to a de-
claration that he intends to appropriate the thing to his own ufe,
it remains in hitn, by the principles of univerfal law, till fuch
time as he does fome other adl which fhews an intention to
abandon it : for then it becomes, naturally fpeaking, publici juris
once more, and is liable again to be appropriated by the next oc-
cupant. So if one is poffefTed of a jewel, and cafts it into the
fea or a public highway, this is fuch an exprefs dereliftion, that
a property will be vefted in the firft fortunate finder that will feife
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 j for the owner hath not by this adt declared
any intention to abandon it, but rather the contrary : and if he
lofes or drops it by accident, it cannot be colledted from thence,
that he defigned to quit the poffeffion j 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 doc-
trine of the law of England, with relation to treafure ti'ove '.

But this method, of one man's abandoning his property,
and another's feifing the vacant pofTeifion, however well founded
in theory, could not long fubfift in fafl. It was calculated
merely for the rudiments of civil fociety, and neceflarily cea-
fed among the complicated interefts and artificial refinements of
pohte and eftablifhed governments. In thefe it was found, that
what became inconvenient or ufelefs to one man was highly con-
venient and ufeful to another j who was ready to give in ex-
change for it fome equivalent, that was equally defirable to the
former proprietor. Thus mutual convenience introduced com-
mercial traffic, and the reciprocal transfer of property by lale,
grant, or conveyance : which may be confidered either as a con-

' See book I. pag. 285.

Vol. II. B tinuance



lo T'he Rights Book II.

tinuance of the original poflefiion which the firft occupant had i
or as an abandoning of the thing by the prefent owner, and an
immediate fucceffive occupancy of the fame by the new proprie-
tor. The voluntary derelid:ion of the owner, and delivering the
poffefiion to another individual, amount to a transfer of the pro-
perty ; the proprietor declaring his intention no longer to occupy
the thing himfelf, but that his own right of occupancy fliall be
veiled 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 firft man acquainted with fuch my
intention, immediately fteps in and feifes the vacant pofl'effion :
thus the confent exprelled by the conveyance gives Titius a good
right againft me ; and pofTeffion, or occupancy, confirms that
right againfl all the world befides.

The moft univerfal and effedtnal way, of abandoning pro-
perty, is by the death of the occupant : when, both the adlual
pofleffion and intention of keeping pofTeffion ceafing, the pro-
perty, which is founded upon fuch pofleffion and intention, ought
alfo to ceafe of courfe. For, naturally fpeaking, the inftant a
man ceafes to be, he ceafes to have any domijiion : elfe, if he
had a right to difpofe of his acquifitions one moment beyond his
life, he would alfo have a right to dired: their difpofal for a mil-
lion of ages after him j which would be highly abfurd and in-
convenient. All property mufl: therefore ceafe upon death, con-
lidering men as abfolute individuals, and unconnected with civil
fociety : for then, by the principles before eftablifhed, the next
immediate occupant would acquire a right in all that the deceafed
poflefl^ed. But as, under civilized governments which are calcu-
lated for the peace of mankind, fuch a confl;itution would be
produftive of endlefs difturbances, the univerfal law of almoft
every nation (which is a kind of fecondary law of nature) has
either given the dying perfon a power of continuing his property,
by difpofing of his pofleflions by will ; or, in cafe he neglefts to
difpofe of it, or is not permitted to make any difpofition at all,

the



Ch. I. of Things. h

the municipal law of the country then fteps in, and declares who
{hall be the fucceflbr, reprefentative, or heir of the deceafed ;
that is, who alone fliall have a right to enter upon this vacant
pofleffion, in order to avoid that confufion, which it's becoming
again common would occafion-". And farther, in cafe no tefta-
ment 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 ro-
buft title of occupancy from again taking place, the dodtrine of
efcheats is adopted in almoil every country ; whereby the fove-
reign of the ftate, and thofe who claim under his authority, are



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