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| Private Law. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence 
Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).
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| Private Law.
We formerly explained the nature of rights and divided them into natural and acquired. The former need no explanation; the latter are divided into real and personal. Real rights are property, servitude, pledge, and exclusive priviledge. We are first to treat of property.
Property is acquired five ways. 1st, by occupation, or the taking possession of what formerly belonged to no body. 2d, by accession, when a man has a right to one thing in consequence of another, as of a horse’s shoes along with the horse. 3d, by prescription, which is a right to a thing belonging to another arising from long and uninterrupted possession. 4, by succession to our ancestors or any other person, whither by a will or without one. 5th, by voluntary transferrence, when one man delivers over his right to another.
We shall first treat of occupation, the laws of which vary according to the periods of human society. The four stages of society are hunting, pasturage, farming, and commerce. If a number of persons were shipwrecked on a desart island their first sustenance would be from the fruits which the soil naturaly produced, and the wild beasts which they could kill. As these could not at all times be sufficient, they come at last to tame some of the wild–beasts that they might always have them at hand. In process of time even these would not be sufficient, and as they saw the earth naturally produce considerable quantities of vegetables of it’s own accord they would think of cultivating it so that it might produce more of them. | Hence agriculture, which requires a good deal of refinement before it could become the prevailing employment of a country. There is only one exception to this order, to witt, some North American nations cultivate a little piece of ground, tho’ they have no notion of keeping flocks. The age of commerce naturaly succeeds that of agriculture. As men could now confine themselves to one species of labour, they would naturaly exchange the surplus of their own commodity for that of another of which they stood in need. According to these stages occupation must vary.
Occupation seems to be well founded when the spectator can go along with my possession of the object, and approve me when I defend my possession by force. If I have gathered some wild fruit it will appear reasonable to the spectator that I should dispose of it as I please.
The first thing that requires notice in occupation among hunters is what constitutes it and when it begins, whether it be on the discovery of the wild beast or after it is actualy in possession. Lawyers have varied on this head; some give a part to the person who has formerly wounded a wild beast, tho’ <he> have given up the chace, and others do not. All agree that it is a breach of property to break in on the chace of a wild beast which another has started, tho’ some are of opinion that if another should wound the beast in it’s flight he is entitled to a share, as he rendered the taking it more easy upon the whole. Among savages property begins and ends with possession, and they seem scarce to have any idea of any thing as their own which is not about their own bodies.
Among shepherds the idea of property is further extended. Not only what they carry about with them | but also what they have deposited in their hovels is their own. They consider their cattle as their own while they have a habit of returning to them. When the generality of beasts are occupied, they consider them as their own even after they have lost the habit of returning home, and they may be claimed for a certain time after they have strayed. But property receives its greatest extension from agriculture. When it first became necessary to cultivate the earth, no person had any property in it, and the little plot which was dressed near their hovels would be common to the whole village, and the fruits would be equally divided among the individuals. There are the remains of a common land property in our own country at this day. In many places there is a piece of ground belonging equally to several persons, and after harvest cattle are in many places allowed to feed where they please. Private property in land never begins till a division be made from common agreement, which is generally when cities begin to be built, as every one would choose that his house, which is a permanent object, should be entirely his own. Moveable property may be occupied in the very first beginings of society, but lands cannot be occupied without an actual division. An Arab or a Tartar will drive his flocks over an immense country without supposing a single grain of sand in it his own.
By the laws of many countries there are some things, however, that cannot be occupied by any private person. | Treasure and derelict goods by the laws of Brittain belong to the king. This arises from that natural influence of superiours which draws every thing to itself that it can without a violation of the most manifest rules of justice. In like manner seas and rivers cannot be occupied by any private person; unless particularly specified in your charter, you cannot take large fishes in a river running thro’ your own estate. A sea surrounded by several nations cannot be occupied by any one, but all must have a part of the jurisdiction, but any nation may hinder another from fishing in it’s bays or approaching it’s coasts with vessells of war.
The right of accession is not so much founded in it’s utility as in the impropriety of not joining it to that object on which it has a dependance. The milk of a cow I have purchased may not be of great value, but it is very improper that another person should have a right to bring up his calf upon it. The most important accessions are in land property. Land property is founded on division or an assignation by the society to a particular person of a right to sow and plant a certain piece of ground. In consequence of this right he must also have a right to whatever it produces, trees, fruit, minerals, etca. Alluvians made by any river naturaly | belong to the proprietor of the adjacent territory, but when the additions are very large, as is often the case in low countries, the government claims them, and the proprietor of the adjacent estate must purchase it before he possess it.
The principal dispute concerning accession is, when does the principal belong to me and the accession to another, or if they be mixed to whom does the whole belong? It is a maxim in law that no person be a gainer by anothers loss. If a man build a house by mistake upon my ground, tho’ the materials be his, it is but reasonable that I should have the house or be indemnified for my loss. In generall the accession follows the principal, tho’ in some cases, as where the workmanship is of more value than the materials, substantia cedet formae. The lawyers were however unwilling directly to contradict their general and established maxim, and therefore evaded it by giving the principal to the proprietor of the accession when it became a new species, that is, when it received a new form and a new name. This however was liable to exceptions. A picture and the board on which it was painted were in Latin of the same species; each was a tabula, and therefore the picture by this amendment still belonged to the proprietor of an insignificant board. The most general rule with regard to accessions is this. When the thing can be reduced to it’s primitive form without lessening it’s value or without any great loss to the proprietor of the accession, | the proprietor of the principal may justly claim it, but when this cannot be done the law justly favours the proprietor of the accession, and obliges him only to content the original proprietor for his property.
Prescription is founded on the supposed attachment of the possessor to what he has long been possessed of, and the supposed detachment of affection in the old possessor to what has been long out of his possession. There are four things requisite to form a right by prescription. 1st, bona fides, for if a person be sensible that his right to a thing is bad it is no injury to deprive him of it, and the indifferent spectator can easily go along with the depriving him of the possession. 2d, iustus titulus, by which is not meant a tittle just in all respects, for this is of itself sufficient without any thing else, but a iustus titulus signifies some reasonable foundation that the person has to think a thing his own, such as <a> charter of some kind. If he claims a right without any such tittle no impartial spectator can enter into his sentiments. 3d, uninterrupted possession is also necessary to prescription, for if the property have often been claimed of him the former possessor has not derelinquished his right. 4th, the time is only to be reckoned when there was a person to claim the property, and therefore the longest uninterrupted | possession when the proprietor was a minor, a lunatic, or in banishment can give no right.
A iustus titulus is a proof of bona fides, and bona fides is requisite to a iustus titulus. By the Roman law bona fides was only required at the first taking possession, and tho’ afterwards you found a fault in your title prescription took place. Nature has fixed no period for prescription, and accordingly it varies according to the stability of property in a country. At Rome, <im>moveables once prescribed in two years, but afterwards more was required. In our country a feudal lord who continualy had claims upon his neighbour could scarce be brought to admit any law of this nature. He was willing to revive a claim tho’ as old as the days of Noah. And when at last they fixed on a period they made it as long as possible, to witt, forty years. Among the Romans it is to <be> observed that if any ones possession was interrupted during the time required for prescription by an enemy coming into the country, he had to begin a new again. By the English law nothing can interrupt prescription but a claim of the old possessor. Kings seldom ever allow their claims to prescribe, at least they account no length of uninterrupted possession sufficient to do it. However, immemorial possession will ever carry this along with it.
Succession is either legal or testamentary. By legal succession is meant that the law should distribute the goods of the deceased to those whom it is to be presumed the person himself would have chosen that they should be given, | according to some lawyers. But this supposes that testamentary succession, or a distribution of the goods according to the will of the deceased, was previous to legal succession, which is contrary to experience. In a rude period a man had scarce the full property of his goods during his lifetime, and therefore it cannot be supposed that then he should have had a power to dispose of them after his death. In all nations the relations of the dead person succeeded long before there was any such thing as a testament. The Twelve Tables at Rome, and the laws of Solon at Athens, seem first to have introduced testamentary succession, but long before this there was legal succession in both countries. The claim of the heir of blood is always thought the preferable one, but this claim is never founded on the presumed will of the deceased. If we consider succession in the earlyest times we shall find that it is more founded on the connection of goods than of persons. As the father and sons lived together and were joint acquirers of any property they had, when the father died the children had a joint right to the goods not so much on account of their relation to the father as on account of the labour they had bestowed on acquiring them. The mother and the children would therefore continue in possession. Among the Romans the wife was considered as a daughter and had her share accordingly. If any of the children were settled out of the family or were emancipated, they had no share in the succession, because they ceased to co–operate with the rest in acquiring the goods. | It may be observed that when families in this manner lived together it was necessary to prohibit marriages of cousins. When wives, sons, and grandsons lived in the same house, if all succeeded equally it was called succession secundum capita, but if the grandsons succeeded only to his father’s part it was secundum stirpes. If a man had three sons who were all dead, but the oldest had left behind him one son, the second two, and <the> third three, by the former rule on the death of their grandfather each would have a sixth, but by the latter the son of the oldest would have a third alone, the two sons of the second a third between them, and the three sons of the third a third among them. The grandsons were as it were the representatives of their father. The right of representation is the same with the successio secundum stirpes. Among the Romans the right of representation was introduced in favour of the strong and in prejudice of the weak, but in Brittain is the contrary.82 Among the Romans a son could not succeed to the mother when she died, because as she was considered as a daughter of the family every thing she had belonged to the husband; if the husband died first, the wife shared with her children and then went home to her father’s house and succeeded anew to her father. But in times of more refinement under the emperors, the mother could succeed to the son and the son to the mother. Anciently when a son died no person succeeded to him because he and every thing he had belonged to his father. Caesar first made a law that a son might possess as his own | whatever he got in war, or acquired by the liberal arts.
Three classes of men may succeed, ascendants, descendants, and collaterals, as these in an upper line may succeed to those in a lower, these in a lower to those in an upper line, or those of the same line to one another. Collateral succession at first extended only to the nearest in blood, and if he refused it the goods belonged to the public,83 but afterwards the praetor extended it to the seventh in blood.84 When a brother died and another succeeded, it was in consequence of their connection with the father, who is the common stock, and therefore succession of ascendants must have been prior to that of collaterals. But the right of descendants is stronger than either of these, because the son’s claim on the father is evidently more strong than that of the father on the son. The principles of succession then in moveables are founded on the community of goods which took place anciently in families.
The different state of families in our country makes a considerable difference betwixt our law and that of the Romans. The wife is among us a much more considerable person than a daughter and accordingly succeeds to more. When the husband dies, the goods are supposed to be divided into three equal parts, one of which is supposed to belong to the deceased husband, one to the wife and one to the children; there is however this difference, that the husband can dispose of his part by testament which the wife cannot. A forisfamiliated son is not in the same condition with an emancipated son among the Romans. He can succeed with his brothers. Only if he has got | a portion, he must bring it into the common stock at his father’s death. Grand children do not succeed in place of their deceased father as among the Romans. The English law however admits of representation, and it preferrs ascendants if males to collaterals.
We come now to treat of indivisable inheritance, which was introduced by the feudal law. When the nations that conquered the Roman Empire settled in the west of Europe an inequality of fortune necessarily ensued. As the great had no way of spending their fortunes but by hospitality, they necessarily acquired prodigious influence over their vassals. They gave out their lands merely as a maintenance to their dependants, and it is observable that the Saxon–word farm signifies victuals. The chieftans from their influence were the sole administrators of justice in their own territories. It was the interest of government to authorize this jurisdiction as it was the only method of preserving peace, and as the superiour was the leader both in peace and war. So lately as in the year 1745 this power remained in the Highlands of Scotland, and some gentlemen could bring several hundereds of men into the field. As these lords had no other way to dispose of their lands, they gave some of them as munera, which were revocable at their pleasure, and others they gave as beneficia, which continued during life and returned to the lord after their decease.
The benefices of the clergy seem to have been | on this foundation and have retained the name. By this means the lords secured the fidelity of their vassals. As benefices were for life the property of them naturaly came to be extended to the son of the deceased tenant, and by degrees the tenures became hereditary and were called feudal. Thus the tenant became more independant. When any chieftan died and left his son a minor, the king appointed a leader to the vassals during the minority, and appropriated the profits and emoluments arising from the lands to his own use. When a female succeeded, the lord had the power of disposing of her in marriage, as it was reasonable that he should name the husband who was to be his own vassal. As the lord was guardian of the heir male, it was also thought unreasonable that he should marry without his consent. As the feudal lord possessed the lands during a minority, before the minor could recover his estate he was obliged to pay what is called a relief. This was introduced by the court of the king or lord, before which the minor was obliged to swear fealty before he could recover his estate. He was also obliged to promise homage to his superiour before he could enter on possession. Thus they held their lands of the superiour for military service, homage, fealty, wardship, marriage, relief, etca. Allodial estates were free from all such services, but as it was for security of property to hold of some great man | who could protect the proprietor from violence, the generality of estates became feudal. For the same reason men possessed of great estates paid feu and swore fealty to the sovereign.
It appears from this that it must have been a very difficult matter to secure property, especially if it was small, in those early times, and therefore nothing could have a worse consequence than the division of estates. The consequences of dividing the kingdom of France were sufficiently experienced, and the case would have been still worse in private estates. However, on account of the opposition from the rest of the sons it was long before the right of primogeniture or the indivisibility of estates could be introduced, and in Germany it did not fully take place before the last century. But as the circumstances necessarily required it, estates were at last made indivisible, and since a single person was to be preferred the oldest son would naturaly be the person. This legal preference must be given for some quality that is altogether indisputable. If it were to be given to wisdom or valour there might be great disputes, but among brothers there can be noq contest who is the oldest. In the beginings of society age itself is very much respected, and to this day among the Tartars the king is not succeeded by his son, but by that one of the royal family who is oldest.
| Primogeniture when introduced would naturaly occasion succession by representation, for the following reason. The younger brothers at first would think it hard that their older brother should be preferr’d to them, and if he died they would still think it harder that his son, an infant, should come in before them. Accordingly in many places this has been disputed in single combat. Bruce and Baliol disputed on this account. According to our notions Baliol had the best right for he was descended from the oldest daughter, tho’ Bruce was a step nearer the common stock. The difficulty of introducing this at first gave rise to a new species of succession, by which when a father died his estate went to his eldest son, but if he died while his children were minors, or if he died while his father was alive, his brother, not his son’s, succeeded. This was attended with one inconvenience, that on the death of the youngest his sons were preferred to those of the other brothers. By the Roman law a grandson succeeded only to his father’s part; he might succeed as a son but not as an oldest son. The brothers naturaly thought that they were nearer the father than any grandson he could have, but as this was a hardship to the brother’s claim so it was also a hardship to cut ofr the reasonable expectation which the grandson had if his father had lived. This last circumstance after gave occasion to lineal succession. | When this difficulty is got over there is little dispute about collateral succession. In feudal lordships a woman could not succeed, as she was incapable of performing military services, but they could succeed to lands where there was required any other kind of service.
Of fiefs there are two kinds, masculine and feminine. France, to the crown of which no woman can succeed, is an instance of the former, and England of the latter.
There are some niceties whimsical enough in the Scotch law with regard to succession of collatorals.85 If the second brother has an estate and dies it goes to the third and not to the oldest, who is supposed to have been sufficiently provided for. Conquest on the contrary ascends, but it does not go to the oldest but to the immediately older brother. By the English law the old brother excludes the whole blood from one half of the estate by conquest, in other countries the preference is not so great.
We must observe that the right of primogeniture hinders agriculture. If the whole estate were divided among the sons, each one would improve his own part better than one can improve the whole. Besides, tenants never cultivate a farm so well as if it were their own property. Primogeniture is also hurtfull to the family, for while it provides for one | it suffers all the rest in a few generations to be reduced to beggary. In succession to a monarchy, however, it has one evident advantage, that it prevents all dangerous rivalships among the brothers.
There are some other kinds of succession that take place, or have taken place in several countries. Thus in some countries the youngest son succeeds to the father. There is something like this among our tenants to this day; the older sons as they grow up are provided for, and the youngest remaining with the father succeeds to him.
So much for legal succession. We come next to testamentary. It is to be observed that there is no extension of property so great as this, and therefore it was long before it could be introduced; it was very natural to give a man a right to dispose of his property while he lived, but a testament supposes him to dispose of a right when properly speaking he can have none himself. He cannot be said to transferr his right, for the heir has no right in consequence of the testament till after the testator himself have none. Puffendorf whimsicaly accounts for this from the immortality of the soul. At Rome the right of making testaments was introduced gradually. At first it was only allowed, and that too after the consent of the fellow citizens was asked and obtained, to childless people. This was much the same with adopting children. | When a person died and wanted to leave his estate to a son in exile, he would naturaly request his neighbours not to take it from him after his own death. This request would be regarded, not so much on account of its being his will as from a kind of piety for the dead. We naturaly find a pleasure in remembring the last words of a friend and in executing his last injunctions. The solemnity of the occasion deeply impresses the mind. Besides, we enter as it were into his dead body, and conceive what our living souls would feel if they were joined with his body,86 and how much we would be distressed to see our last injunctions not performed. Such sentiments naturaly enclined men to extend property a little farther than a man’s lifetime.
This seems to have been the foundation of testamentary succession. It was a sort of impiety not to comply with the father’s desire, tho’ it was no injury to deprive the heir of the estate as there was no law established in his favour, and as his being in exile cut off all reasonable expectation of succeeding. The injury is conceived to be done to the dead person, as we enter into what would be his sentiments were he to live again.
It is to be observed that this practice is a considerable refinement in humanity, and never was practised in a rude nation. | Before the Twelve Tables no Roman had a right to make a will. Our Saxon ancestors had no right to dispose of their lands by testament, and in the history of the Old Testament we hear of no such practice. Piety for the dead could take place only with regard to the immediate successor, and therefore at first the right of making testaments extended no further, unless in case the person in whose favour it was made should refuse to succeed, in which case another might be appointed. This was a further extent of the right. Again, if a man died and left his sisters son heir to him, that the estate might not go to forreign relations the testator was allowed to say that if the pupil die at a certain age the estate shall go to such another person. This was called popular succession.87 Thus property was still further extended.
The greatest of all extensions of property is that by entails. To give a man power over his property after his death is very considerable, but it is nothing to an extension of this power to the end of the world. In the beginings of society the state of families is very different from what it is at present. As the wife was subject to the husband, and at the best only on the footing of a daughter, she seldom made any addition to the husband’s estate unless by her own industry. But when female succession took place, and woemen came to be possessed of fortunes, | they would not marry without a previous capitulation by which they insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death. By this arose a new species of marriage from agreement which rendered the parties equally independant. This great alteration in domestic affairs would naturally at first be complained off, and as the ultimate cause of it was the succession of females they would endeavour to prevent their opulence. On this account a law was made at Rome bringing matters to their ancient footing, called the Vaccinians law. To elude this law a fide<i> com<m>issum was invented, by which, when a man had a mind to leave his estate to a person whom the law would not allow, <?he left it to another person> and took his solemn promise that he would transferr it to the person for whom he intended it. Augustus made a law obliging the trustee always to restore it, and appointed a fide<i> commissaryt praetor for that purpose. The person for88 whom the estate was left was called haeres fiduciarius, and the person to whom it was to be restored was called fide<i> commissarius. Thus property was extended beyond the first successor, and when this step was gained they easily advanced further and introduced entails.
Entails were first introduced into the modern law by the ecclesiastics, whose education made them acquainted with the Roman customs. As they were the preachers of this doctrine they naturaly became the explainers and executors of wills, till Theodosius Valentinus89 took it from them. | In England William the Conqueror restored it to the ecclesiastics.
By the customs of our country a man if he leave a wife and children can dispose only of a third by testament, and if he leave a wife without children only a half. Lands after the introduction of the feudal system could only be disposed <of> by testament in the same way with military services, by the consent of the superiour. Originally in England there were no entails by will but by tenure. A man held an estate for himself and his heirs, but if he had no heirs he could not alienate it, it returned to the superiour. But if he had heirs he could alienate it, and thus the lord was deprived of his right of reversion. A law was afterwards made to secure this.
Upon the whole nothing can be more absurd than perpetual entails. In them the principals of testamentary succession can by no means take place. Piety to the dead can only take place when their memory is fresh in the minds of men. A power to dispose of estates for ever is manifestly absurd. The earth and the fulness of it belongs to every generation, and the preceeding one can have no right to bind it up from posterity. Such extension of property is quite unnatural. The insensible progress of entails was owing to their not knowing | how far the right of the dead might extend, if they had any at all. The utmost extent of entails should be to those who are alive at the person’s death, for he can have no affection to those who are unborn.
Entails are dissadvantageous to the improvement of the country, and these lands where they have never taken place are always best cultivated. Heirs of entailed estates have it not in their view to cultivate lands and often they are not able to do it. A man who buys land has this entirely in view and in general the new purchase<r>s are the best cultivaters.
In voluntary transferrance two things are required:
1st, a declaration of the intention both of the person who transferrs and of him to whom it is transferr’d.
2d, the actual delivery of the thing.
In most cases the first of these is not binding without the latter because there is no right without possession. If a man indeed have borrowed a thing and afterwards purchase it there is no need of delivery, for it is already in his possession. Before possession you can have no right to the thing, tho’ you may have a right to make the man keep his promise or contract. If I buy a horse from a man and before delivery he sell him to a third person, I cannot demand the horse from the possessor but only from the person who sold him. | But if he has been delivered I can claim him from any person. Property therefore cannot be transferred without tradition or delivery. Grotius indeed justly observes that in the transferrance of a pledge there is no need of delivery, because in this case the thing is already in the man’s possession. In France, if a man declare his purpose to make a donation, and die before delivery, the donation goes to the heir. This was also a custom among the Wisigoths.
In transferring the property of lands and other large objects, what gives possession is not so easy to determine. As there cannot be an actual delivery, in our country a symbolical delivery is used. An ear or sheaf of corn signifies the whole field, a stone and turf the estate to the center of the earth, and the keys of the door, the house. By the Scotch law if there be a transferrance of several estates the purchaser must be infeft in each; by the English law infeftment in one serves for all when done in presence of the county court. In Scotland it must be done on the land; it is enough in England if it be done in view of it. Besides delivery, a charter or writing shewing on what terms the transferrence was made is also requisite for security. Till the custom was abolished by a late statute, no vassal or possessor had a right of alienating his estate without the consent | of the superiour, as he held it for military service. It was requisite that the estate should be resigned to the superiour, who resigned it to the purchaser, as it was proper that his vassal should be of his own chusing. Afterwards however it became necessary to accept of creditors, and this was often used as a handle to elude the law. The seller gave a bond for a sum of borrowed money without any mention that it was a sale, by which means the lands were adjudged to the creditor, and the lord was obliged to accept of him as his vassal. In like manner, as the tenant was liable to oppression from a new superiour the lord could not dispose of his estate without consent of his vassal. If therefore either of them alienated any part of their estates without the others consent his right was forfeited.
The duty of vassals to their lords continued [in] longer in Scotland than in England, which may be accounted for from the difference of their government, for that <of> England all along favoured democracey, and that of Scotland aristocracey. After society was fully established there was no occasion for mutual consent, because the tenant was protected by law, whatever the lord was.
In the time of the civil wars a new sort of delivery took place. When a person transferred his estate to another for his own use it was not affected by forfeiture. The person to whom it was transferred was considered as the bailliff, and took possession in the others name.
| The second species of real rights is servitudes, or burthens which one man has on the property of another. These rights were at first personal, as they were entered into by a contract between the persons. It is necessary that I should have a road to the market town. If a man’s estate lye between me and it, I must bargain with him for the priviledge of a road thro’ it. This contract produces only a personal right, tho’ I should bind him not to sell this estate without the burthen. But here was an inconveniencey, for if the land were sold and the new proprietor refused the road, I could not sue him on a personal right upon the former proprietor. Before I can come at the new purchaser I must pursue the person from whom I had the right, who must pursue him to whom he sold it. If the land has gone thro’ several hands this is very tedious and inconvenient. The law, to remedy this, made servitudes real rights, demandable a quocumque possessore. Servitudes were rusticae, such as the right of a road to the town, or to the river, and of feeding so many cows on another man’s pasture grounds; or urbanae, such as the right of leaning the beams of my house on your gabel, the right of obliging him who is proprietor of the under story to make his wall strong enough to support mine, and the like. These are all naturaly personal rights and are only made real by lawyers. Life rents on estates and many other things are also servitudes, and are properly personal. Feudal burthens wre only persons rights | and therefore every new vassal must renew his homage and the promise of fealty.
In the begining of the feudal law, if the proprietor did not perform his duty in every article he forfeited his feu. In like manner, if the tenant encroached on his lord’s grounds what he had feued returned to the superiour. The right of the vassal is founded on the charter of the superiour, and every article of it must be fullfilled, and every new possessor must renew the obligation. When tenants became independant and had a real property they were said to have the dominium directum, not the dominium utile.90
Pledges and mortgages are certain securities for the payment of debts. At first they could not be claimed as real rights, tho’ afterwards the law considered them as such. Pledges properly regard moveable subjects and mortgages immoveable. If a pledge be not redeemed at a certain time it is forfeited. As people in bad circumstances are naturaly slothfull, the negligence of debtors among the Romans gave occasion to the Lex Com<m>issaria by which the creditor was impowered to seize the pledge and return the overplus if there was any. By the English law, if no day be named the pledge falls to the pawntaker on the death of the pawner.91 In immoveables lands are mortgaged but not delivered, and in case of failure they are forfeited. The Roman law and ours are much the same on this head. If payment be not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred, but his property is not secure without long possession, for the proprietor has a power of redeeming it | within a reasonable time. But as upon redemption much trouble must be occasioned in examining old accompts and the like, the law has made 20 years the stated time in England for redeeming mortgages.
Hypothecs are another kind of pledges realy arising from contract, but made real rights by the civil law. By them anciently the landlord was impowered to detain the furniture and whole stock of the tenant if he turned bankrupt, and could claim them a quocumque possessore. This arose from the practice of keeping tenants by steelbow, by which the whole stock in the farm was the landlords. At present the landlord has only a right of preference, and we have not so many hypothecs as the Romans had. All pledges are naturally personal rights, and are only made real by the civil law.
Exclusive priviledges are the last division of real rights. Among these is the right of inheritance, which is not a creature of the civil law but arises from nature. The heir, previous to any other person, has a priviledge of demanding what belonged to the deceased, and after he is admitted heir it is his real property. Again, if a person start a wild beast he has an exclusive priviledge of pursuing, and whatever person comes in upon the chace is liable to punishment not <?for breach of property but> because he breaks in upon his exclusive priviledge.92 In the year 1701 an English man–of–war engaged with a French merchant fleet under convoy which was just about to fall into their hands, when a Scotch privateer came and carried off the prize. A lawsuit commenced and the Scotch privateer was declared guilty of breach of property. | But upon strict inquiry we shall find that it was only breach of priviledge.
Tho’ these and some other exclusive priviledges arise from nature, they are generaly the creatures of the civil law. Such are monopolies and all priviledges of corporations, which tho’ they might once be conducive to the interest of the country are now prejudicial to it. The riches of a country consist in the plenty and cheapness of provisions, but their effect is to make every thing dear. When a number of butchers have the sole priviledge of selling meat, they may agree to make the price what they please, and we must buy from them whether it be good or bad. Even this priviledge is not of advantage to the butchers themselves, because the other trades are also formed into corporations, and if they sell beef dear they must buy bread dear. But the great loss is to the public, to whom all things are rendered less comeatible, and all sorts of work worse done. Towns are not well inhabited and the suburbs are encreased. The priviledge however of vending a new book or a new machine for 14 years has not so bad a tendencey. It is a proper and adequate reward for merit. A right to servitudes and exclusive priviledges, it is to be observed, may be acquired by prescription.
So much for the different kinds of real rights. We proceed now to personal rights, which arise either from contract, quasicontract, or delinquencey.
[82 ]The meaning of this sentence will be clearer if a comparison is made with the corresponding passage in LJ(A) i.98, above.
[83 ]To the gens, or members of the deceased’s clan: Twelve Tables, V.5.
[84 ]Heineccius, III.5.5.
[q]Inserted by a second (eighteenth–century) hand
[85 ]Stair, III.4.33. Conquest was land acquired otherwise than by inheritance.
[86 ]Cf. TMS I.i.1.13: our imagined idea of the feelings of the dead arises ‘from our lodging, if I may be allowed to say so, our own living souls in their inanimated bodies’.
[87 ]Pupillary substitution: cf. LJ(A) i.154, above.
[s]Emended in pencil by a later hand to ‘Voconian’
[t]The copyist wrote ‘commissary’; ‘fide’ has been added in the margin by another hand
[88 ]Reporter’s or copyist’s error for ‘to’.
[89 ]No doubt Theodosius and Valentinian, emperors respectively of the eastern and western Roman Empire in the early fifth century, are intended. But if the reference is to the ruling of the Fourth Council of Carthage in 398 (cf. p. 68 above), that was in the reign of their predecessors, Arcadius and Honorius.
[90 ]Directum and utile should be transposed.
[91 ]M. Bacon, New Abritlgement of the Law, s.v. Bailment, I.239.
[92 ]Cf. LJ(A) i.28–9, above.