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4. All persons may make a testament, unless disabled by, I. Want of discretion. II. Want of free will. III. Criminal conduct Page 496-7

5. Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, I. Written. II. Nuncupative .... 499, 500

6. An executor is he, to whom a man by his will commits the execution thereof ....... 502

7. Administrators are, I. Durante minore state of an infant executor or administrator; or durante absentia; or pendente lite, H. Cum testamento annexo; when no executor is named, or the executor refuses to act. III. General administrators; in pursuance of the statutes of Edward III, and Henry VIII. IV. Administrators de bonis non; when a former executor or administrator dies without completing his trust . . 503—507

8. The office and duty of executors (and, in many points, of administrators also) are, I. To bury the deceased. II. To prove the will, or take out administration. III. To make an inventory. IV. To collect the goods and chattels. V. To pay debts; observing the rules of priority. VI. To pay legacies, either general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions . 508—520


Page 72, n. 19, dele the two last lines.

Vol.. II. p. 185, n. column 3, lines 15 and 16, for " it" read "teat;" and line 19, for "concludes*" read " concluded," line 9, column 4, for "it" read " war.''






A HE former book of these Commentaries having treated Rights of things,

. or rights of uo

at large of the jura personarum, or such rights (1) and duties minion,
as are annexed to the persons of men, the objects of our
inquiry in this second book will be the jura rerum, or,
those rights which a man may acquire in and to such ex-
ternal things as are unconnected with his person. These
are what the writers on natural law style the rights of do-
minion, or property; concerning the nature and original

r—■ ~■

(1) The Latin word ju», one pri- who begin their works with definition,

Mary signification of which is held would have done better if they had

to be properly expressed by our Eng- proceeded more philomphico, and had

lish word right, is " an equivocal term, distinguished before they defined."

standing for many senses, according (Elem. Civ. L. 40.) If the observa

to its different use. Some lawyers tion just cited from Dr. Taylor be

reckon up near forty; whence it fol- sound, it must be strictly applicable

lows that Justinian and his lawyers, here.

VOL. II. 11

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of which I shall first premise a few observations, before I proceed to distribute and consider its several objects.

*There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right (2). Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best

(2) our author himself instructs us, in the subsequent pages of this chapter, that the right or rule which assigns to an individual exclusive dominion over particular possessions, is not to be inferred in every instance by the same process of reasoning. He tells us, that "when mankind increased in number, craft,and ambition, it became necessary to entertain conceptions of permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world must have been continually broken and disturbed." Again, he says with respect to moveables, that "bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein." Subsequently he tells us, " agriculture, by a regular connexion and consequence, introduced and established the idea of a more permanent property in the soil than had hitherto been receivedandadopted. Had not a separate property in lands as well as moveables been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey." He then repeats, that'' necessity begat property," and adds, that "although the writers on natural law have arrived at the same result by various courses, still, it is agreed upon all hands, that occupancy gave the original right to the

permanent property in the substance of the earth itself, which excludes every one else but the owner from the use of it." Further on, he tells us, "the permanent right of property is no natural, but merely a civil, right:" and, shortly afterwards, he says, "rights of inheritance and successions are all of them creatures of the civil or municipal laws;" and, adverting to the power of those laws in regulating the succession to property, he intimates, "how futile every claim must be, that has not its foundation in the positive rules of the state." Again, in cap. 16, p. 258, he tells us, "occupancy is the true foundation of all property, or of holding things in severalty, which by the law of nature were common to all mankind;" but, in the next following page, he talks of " recurring to first principles, and calling in the law of nature to ascertain the property of land," when municipal laws do not define the ownership. So, in p. 392, he speaks of "property by the law of nature."

Whether there be, or not, any discrepancy between the assertions, that "occupancy gave the original right to permanent property," and the declaration, that " the permanent right of property is no natural, but merely a civil, right," it might be captious to discuss, did not that passage in the text, which gives occasion to this note, seem to invite the inquiry. Occupancy, in a state of established society, is, no doubt, governed by civil or municipal laws; but, the claim to permanent property, by reason of the first occupancy thereof, appears to hare been derived, originally, from natural right. Blackstone himself says, that, " in the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them." Necessity is not a bad argument to support an inference of natural right. But our author, as we have seen, agrees with Heineccius, (who, as to this matter follows all other writers on natural law, and in the 9th chapter of his first book informs us,) that absolute private property was introduced, and negative community of things abolished, by necessity itself. Heineccius also maintains the right of any one to appropriate to himself whatever previously belonged to no other person; and his commentator adds, "that thing ceases to be no one's, which I, by personal occupancy, have manifested an intention of applying to my own uses, in the exercise of the right granted to me by God; and he certainly injures me who interferes with my possession." No one disputes, what Locke has laid down (in his Treat w Got. book 2, cap. 5, parag. 50,) that, " in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions," but the same authority tells us, (in cap. 11, sect. 135,) "The obligations of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to enforce their observation.

Thus, the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions must be conformable to the law of nature; i. e. to the will of God, of which that law is a declaration."

It follows then, if, in conformity to the law of nature declaratory of the will of God, occupancy really was, as Blackstone informs us all authorities agree it was, the first foundation of the right (or rule) of property; notwithstanding that original right may have been qualified by municipal regulations, it is not "merely a civil right." And see the 1st volume of these Commentaries, p. 138,whereour author distinctly admits that, "the original of private property is probably founded in nature." If so, its infringement must be an offence against natural, as well as against social rights. And, indeed, our author (in Vol. I. p. 54,) after telling us that "the rights, which God and nature have established, need not the aid of human laws to be more effectually investedineverymanthantheyare," and adding that,"neither do divine or natural duties receiveanystronger sanction from being declared to be duties by the law of the land," subjoins, " the case is the same as to crimes and misdemeanors that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature: for that legislature in all these cases acts only in subordination to the great lawgiver, transcribing and publishing his precepts." So Stillingfieet, (in the 3rd vol. of his collected works, p. 614, foL edit.) speaking of the origin of "particular property," says, "the law of nature did not prescribe the way and method of partition, but left that to occupancy or compact;" but he adds, "although this division of property was not made by any antecedent law, yet being once made, and so useful to mankind, the violation of it, by taking that which is another's right, is a manifest violation of the law of nature."

we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which

Still, it is clear, rights of property were not promulgated, with respect to all "the external things of the world," at one and the same time. The general dominion of man over the whole, no doubt, has its original and foundation solely in the declared, or reasonably inferred, will of God; and, "of the things which God has provided for the use of all, he has, of consequence, so long as they remain in common, given each man leave to take what he wants;" but, whenever it would defeat the purposes for which the general dominion was given, if no one were allowed to appropriate to his own use certain productions, whether entirely natural or partly made by art or obtained by labour; in all such cases, the right of sole property may be fairly understood to be implied in the general declaration of the divine will.

Rights of property, then, may be referred, ultimately, to a divine origin, and finally traced back to the only true source of all dominion ; but these rights have been differently modified in different stages of society, and have been called into operation with reference to different objects at several times, as occasion required.

"The first objects of property," (says Paley, Mor. and Pol. Phil, book 3, cap. 3, following in the main, but with some qualifications, the doctrine of Locke, who had himself been preceded in the same safe track by earlier investigators,) "the first objects of property were the fruits which a man gathered, and the wild animals which he caught; next to these, the tents or

houses which he built, the tools he made use of to catch or prepare food; and afterwards weapons of war and offence. Many of the savage nations of North America have advanced no farther than this yet. Flocks and herds of tame animals soon became property. As the world was peopled in the East, where there existed a great scarcity of water, wells probably were next made property. Land, which is now so important a part of property, and which alone our laws call real property, was probably not made property in any country, till long after the institution of many other species of property. There are no traces of property in land in Caesar's account of Britain; little of it in the history of the Jewish Patriarchs; none of it found amongst the (aboriginal) nations of North America. The Scythians are expressly said to have appropriated their cattle and houses, but to have left their land in common." (See further instances of the same kind noticed by Turnbull in his comment upon Heineccius, book 1, c. 9, s. 237.) In his fourth chapter of the same book, Paley observes, " there is a difficulty in explaining the origin of property in land, consistently with the law of nature; for the land was once, no doubt, common; and the question is, how any particular part of it could justly be taken out of the common, and so appropriated to the first owner, as to give him a better right to it than others; and, what is more, to exclude all others from it."

He proceeds to say, that, even " if any of the different accounts given of this matter by moralists were perfectly unexceptionable, they would none of them avail us in vindicating our present claims of property in land, unless it were more probable than it is, that our estates were actually acquired, at first, in some of the ways which those

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