Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Property in Things Personal
PROPERTY, in chattels personal, may be either in possession; which is where a man has not only the right to enjoy, but has the actual enjoyment of, the thing: or else it is in action; where a man has only a bare right, without any occupation or enjoyment. And of these the former, or property in possession, is divided into two sorts, an absolute and qualified property.
I. FIRST then of property in possession absolute; which is where a man has, solely and exclusively, the right, and also the occupation, of any moveable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. Such may be all inanimate things, as goods, plate, money, jewels, implements of war, garments, and the like: such also may be all vegetable productions, as the fruit or other parts, when severed from the plant, or the whole plant itself, when severed from the ground; none of which can be moved out of the owner’s possession without his own act or consent, or at least without doing him an injury, which it is the business of the law to prevent or remedy. Of these therefore there remains little to be said.
BUT with regard to animals, which have in themselves a principle and power of motion, and (unless particularly confined) can convey themselves from one part of the world to another, there is a great difference made with respect to their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as are domitae , and such as wild disposition. In such as are of a nature tame and domestic, (as horses, kine, sheep, poultry, and the like) a man may have as absolute a property as in any inanimate beings; because these continue perpetually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose him property:1 in which our law agrees with the laws of France and Holland.2 The stealing, or forcible abduction, of such property as this, is also felony; for these are things of intrinsic value, serving for the food of man, or else for the uses of husbandry.3 But in animals ferae naturae a man can have no absolute property.
OF all tame and domestic animals, the brood belongs to the owner of the dam or mother; the English law agreeing with the civil, that “partus sequitur ventrem” in the brute creation, though for the most part in the human species it disallows that maxim. and therefore in the laws of England,4 as well as Rome,5 “si equam meam equus tuus pregnantem fecerit, non est tuum sed meum quod natum est.” And, for this, Pufendorf6gives a sensible reason: not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expense and care: wherefore as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case of young cygnets; which belong equally to the owner of the cock and hen, and shall be divided between them.7 But here the reasons of the general rule cease, and “cessante ratione cessat et ipsa lex” “the reason ceasing the law itself ceases”: for the male is well known, by his constant association with the female; and for the same reason the owner of the one does not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other.
II. OTHER animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property: which is such as is not in its nature permanent, but may sometimes subsist, and at other times not subsist. In discussing which subject, I shall in the first place show, how this species of property may subsist in such animals, as are ferae naturae, or of a wild nature; and then, how it may subsist in any other things, when under particular circumstances.
FIRST then, a man may be invested with a qualified, but not an absolute, property in all creatures that are ferae naturae, either per industriam, propter impotentiam, propter privilegium.
1. A QUALIFIED property may subsist in animals ferae naturae, per industriam hominis: by a man’s reclaiming and making them tame by art, industry, and education; or by so confining them within his own immediate power, that they cannot escape and use their natural liberty. And under this head some writers have ranked all the former species of animals we have mentioned, apprehending none to be originally and naturally tame, but only made so by art and custom: as, horses, swine, and other cattle; which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made domestic by use and familiarity, and are therefore, say they, called mansueta, quasi manui assueta. But however well this notion may be founded, abstractedly considered, our law apprehends the most obvious distinction to be, between such animals as we generally see tame, and are therefore seldom, if ever, found wandering at large, which it calls domitae naturae; and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically ferae naturae, though it may happen that the latter shall be sometimes tamed and confined by the art and industry of man. Such as are deer in a park, hares or rabbits in an enclosed warren, doves in a dovehouse, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of a man, than while they continue in his keeping or actual possession: but, if at any time they regain their natural liberty, his property instantly ceases; unless they have animum revertendi, which is only to be known by their usual custom of returning.8 A maxim which is borrowed from the civil law;9 “evertendi animum videntur desinere habere tunc, cum revertendi consuetudinem deseruerint“. The law therefore extends this possession farther than the mere manual occupation; for my tame hawk that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property; for he has animum
revertendi. So are my pigeons, that are flying at a distance from their home (especially those of the carrier kind) and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester: all which remain still in my possession, and I still preserve my qualified property in them. But if they stray without my knowledge, and do not return in the usual manner, it is then lawful for any stranger to take them.10 But if a deer, or any wild animal reclaimed, has a collar or other mark put upon him, and goes and returns at his pleasure; or if a wild swan is taken, and marked and turned loose in the river, the owner’s property in him still continues, and it is not lawful for any one else to take him:11 but otherwise, if the deer has been long absent without returning, or the swan leaves the neighborhood. Bees also are ferae naturae; but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature, as well as by the civil law.12 And to the same purpose, not to say in the same words, with the civil law, speaks Bracton:13 occupation, that is, hiving or including them, gives the property in bees; for, though a swarm lights upon my tree, I have no more property in them till I have hived them, than I have in the birds which make their nests thereon; and therefore if another hives them, he shall be their proprietor: but a swarm, which fly from and out of my hive, are mine so long as I can keep them in sight, and have power to pursue them; and in these circumstances no one else is entitled to take them. But it has been also said,14 that with us the only ownership in bees is ratione soli; and the charter of the forest,15 which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in consideration of the property of the soil whereon they
IN all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a property, that may be destroyed if they resume their ancient wildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become ferae naturae again; and are free and open to the first occupant that has ability to seize them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly mine: and an action will lie against any man that detains them from me, or unlawfully destroys them. It is also as much felony by common law to steal such of them as are fit for food, as it is to steal tame animals:16 but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots and singing birds;17 because their value is not intrinsic, but depending only on the caprice of the owner:18 though it is such an invasion of property as may amount to a civil injury, and be redressed by a civil action.19 Yet to steal a reclaimed hawk is felony both by common law and statute;20 which seems to be a relic of the tyranny of our ancient sportsmen. And, among our elder ancestors the ancient Britons, another species of reclaimed animals, viz. cats, were looked upon as creatures of intrinsic value; and the killing or stealing one was a grievous crime, and subjected the offender to a fine; especially if it belonged to the king’s household, and were the custos horrei regii, for which there was a very peculiar forfeiture.21 And thus much of qualified property in wild animals, reclaimed per industriam.
2. A QUALIFIED property may also subsist with relation to animals ferae naturae, ratione impotentiae, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their nests or burrows in my land, and have young ones there; I have a qualified property in those young ones, till such time as they can fly, or run away, and then my property expires:22 but, till then, it is in some cases trespass, and in others felony, for a stranger to take them away.23 For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests a property in him of the young ones, in the same manner as it does of the old ones if reclaimed and confined: for these cannot through weakness, any more than the others through restraint, use their natural liberty and forsake him.
3. A MAN may, lastly, have a qualified property in animals ferae naturae, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in exclusion of other persons. Here he has a transient property in these animals, usually called game, so long as they continue within his liberty;24 and may restrain any stranger from taking them therein: but the instant they depart into another liberty, this qualified property ceases. The manner, in which this privilege is acquired, will be shown in a subsequent chapter.
THE qualified property which we have hitherto considered, extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property. It may subsist in the very elements, of fire or light, of air, and of water. A man can have no absolute permanent property in these, as he may in the earth or land; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one obstructs another’s ancient windows,25 corrupts the air of his house or gardens,26 fouls his water,27 or unpins and lets it out, or if he diverts an ancient watercourse that used to run to the other’s mill or meadow;28 the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession: for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.
THESE kinds of qualification in property depend upon the peculiar circumstances of the subject matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. As in case of bailment, or delivery, of goods to another person for a particular use; as to a carrier to convey to London, to an innkeeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered: for the bailor has only the right, and not the immediate possession; the bailee has the possession, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in case the goods be damaged or taken away: the bailee on account of his immediate possession; the bailor, because the possession of the bailee is, mediately, his possession also.29 So also in case of goods pledged or pawned upon condition, either to repay money or otherwise; both the pledgor and pledgee have a qualified, but neither of them an absolute, property therein: the pledgor’s property is conditional, and depends upon the performance of the condition of re-payment, etc; and so too is that of the pledgee, which depends upon its non-performance.30 The same may be said of goods distrained for rent, or other cause of distress: which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distrainor, or party distrained; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant, who has the care of his master’s goods or chattels, as a butler of plate, a shepherd of sheep, and the like, has not any property or possession either absolute or qualified, nut only a mere charge or oversight.31
HAVING thus considered the several divisions of property in possession, which subsists there only, where a man has both the right and also the occupation of the thing; we will proceed next to take a short view of the nature of property in action, or such where a man has not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by a suit or action at law: from whence the thing so recoverable is called a thing or chose, in action.32 Thus money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it, whereby I suffer damage; the recompense for this damage is a chose in action: for though a right to some recompense vests in me, at the time of the damage done, yet what and how large such recompense shall be, can only be ascertained by verdict; and the possession can only be given me by legal judgment and execution. In the former of these cases the student will observe, that the property, or right of action, depends upon an express contract or obligation to pay a stated sum: and in the latter it depends upon an implied contract, that if the covenanter does not perform the act he engaged to do, he shall pay me the damages I sustain by his breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either express or implied; which are the only regular means of acquiring a chose in action, and of the nature of which we shall discourse at large in a subsequent chapter.
AT present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured in case of non-performance; to compel the wrongdoer to do justice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or its equivalent, remains in suspense, and the injured party has only the right and not the occupation, it is called a chose in action; being a thing rather in potentia than in esse : though the owner may have as absolute a property of such things is action, as of things in possession.
AND, having thus distinguished the different degree or quantity of dominion or property to which things personal are subject, we may add a word or two concerning the time of their enjoyment, and the number of their owners; in conformity to the method before observed in treating of the property of things real.
FIRST, as to the time of enjoyment. By the rules of the ancient common law, there could be no future property, to take place in expectancy, created in personal goods and chattels; because, being things transitory, and by many accidents subject to be lost, destroyed, or otherwise impaired, and the exigencies of trade requiring also a frequent circulation thereof, it would occasion perpetual suits and quarrels, and put a stop to the freedom of commerce, if such limitations in remainder were generally tolerated and allowed. But yet in last wills and testaments such limitations of personal goods and chattels, in remainder after a bequest for life, were permitted:33 though originally that indulgence was only shown, when merely the use of the goods, and not the goods themselves, was given to the first legatee;34 the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded:35 and therefore if a man either by deed or will limits his books or furniture to A for life, with remainder over to B, this remainder is good. But, where an estate-tail in things personal is given to the first or any subsequent possessor, it vests in him the total property, and no remainder over shall be permitted on such a limitation.36 For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail; and therefore the law vests in him at once the entire dominion of the goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estate.
NEXT, as to the number of owners. Things personal may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates. They cannon indeed be vested in coparcenary; because they do not descent from the ancestor to the heir, which is necessary to constitute coparceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements.37 And, in like manner, if the jointure be severed, as by either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship.38 So also if 100£ be given by will to two or more, equally to be divided between them, this makes them tenants in common;39 as, we have formerly seen,40 the same words would have done, in regard to real estates. But, for the encouragement of husbandry and trade, it is held that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property; and there shall be no survivorship therein.41
1. 2 Mod. 319.
2. Vinn. In Inst. l. 2. tit. 1. § 15.
3. 1 Hal. P. C. 511, 512.
4. Bro. Abr. tit. Propertie. 29.
5. Ff. 6. 1. 5.
6. L. of N. l. 4. c. 7.
7. 7 Rep. 17.
8. Bracton. l. 2. c. 1. 7 Rep. 17.
9. Inst. 2. 1. 15.
10. Finch. L. 177.
11. Crompt. of courts. 167. 7 Rep. 16.
12. Puf. l. 4. c. 6. § 5. Inst. 2. 1. 14.
13. l. 2. c. 1. § 3.
14. Bro. Abr. tit. Propertie. 37. cites 43 Edw. III. 24.
15. 9 Hen. III. c. 13.
16. 1 Hal. P. C. 512.
17. Lamb. Eiren. 275.
18. 7 Rep. 18. 3 Inst. 109.
19. Bro. Abr. tit. Trespass. 407.
20. 1 Hal. P. C. 512. 1 Hawk. P. C. c. 33.
21. “Si quis felem, horrei regii custodem, occiderit vel furto abstulerit, felis summa cauda suspendatur, capite aream attingente, et in eam grana tritici effundantur, usquedum summitas caudae tritico co-operiatur.” Wotton. LL. Wall. l. 3. c. 5. § 5. An amercement similar to which, Sir Edward Coke tells us (7 Rep. 18.) there anciently was for stealing swans; only suspending them by the beak, instead of the tail.
22. Carta de forest. 9. Hen. III. c. 13.
23. 7 Rep. 17. Lamb. Eiren. 274.
24. Cro. Car. 554. Mar. 48. 5 Mod. 376. 12 Mod. 144.
25. 9 Rep. 58.
26. Ibid. 59. Lutw. 92.
27. 9 Rep. 59.
28. 1 Leon. 273. Skinn. 389.
29. 1 Roll. Abr. 607.
30. Cro. Jac. 245.
31. 3 Inst. 108.
32. The same idea, and the same denomination, of property prevailed in the civil law. “Rem in bonis nostris habere intelligimur, quotiens ad recuperandum eam actionem habeamus.” (Ff. 41. 1. 52.) And again; “Aeque bonis adnumerabitur etiam, si quid est in actionibus, petitionibus, persecutionibus. Nam et haec in bonis esse videntur.” (Ff. 50. 16. 49.)
33. 1 Equ. Cas. abr. 360.
34. Mar. 106.
35. 2 Freem. 206.
36. 1 P. Wms. 290.
37. Litt. § 282. 1 Vern. 482.
38. Litt. § 321.
39. 1 Equ. Cas. abr. 292.
40. pag. 193.
41. 1 Vern. 217. Co. Litt. 182.