Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Title to Things Personal by Occupancy
WE are next to consider the title to things personal, or the various means of acquiring, and of losing, such property as may be had therein: both which considerations of gain and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one, without contemplating the other also. And these methods of acquisition or loss are principally twelve: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift. 9. By contract. 10. By bankruptcy. 11. By testament. 12. By administration.
AND, first, as in goods and chattels may be acquired by occupancy: which, we have more than once1 remarked, was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged, by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts, and contracts, testaments, legacies, and administrations have been introduced and countenanced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, where such things are found without any other owner, they for the most part belong to the king by virtue of his prerogative; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider.
1. THUS, in the first place, it has been said, that any body may seize to his own use such goods as belong to an alien enemy.2 For such enemies, not being looked upon as members of our society, are not entitled during their state of enmity to the benefit or protection of the laws; and therefore every man that has opportunity is permitted to seize upon their chattels, without being compelled as in other cases to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must in reason and justice be restrained to such captors as are authorized by the public authority of the state, residing in the crown;3 and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And therefore it has been held,4 that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized. It has also been adjudged, that if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker; unless they were retaken the same day, and the owner before sun-set puts in his claim of property.5 Which is agreeable to the law of nations, as understood in the time of Grotius,6 even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty four hours: though the modern authorities7 require, that before the property can be changed, the goods must have been brought into port, and have continued a night intra praesidia, in a place of safe custody, so that all hope of recovering them is lost.
AND, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in war;8 at least till his ransom be paid.9 And this doctrine seems to have been extended to negro-servants,10 who are purchased, when captives, of the nations with whom they are at war, and continue therefore in some degree the property of their masters who buy them: though, accurately speaking, that property consists rather in the perpetual service, than in the body or person, of the captive.11
2. THUS again, whatever moveables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have formerly seen,12 are vested by law in the king, and form a part of the ordinary revenue of the crown.
3. THUS too the benefit of the elements, the light, the air, and the water, can only be appropriated by occupancy. If I have an ancient window overlooking my neighbor’s ground, he may not erect any blind to obstruct the light: but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him, than in me. If my neighbor makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and must continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor’s prior mill, or his meadow: for he has by the first occupancy acquired a property in the current.
4. WITH regard likewise to animals ferae naturae, all mankind had by the original grant of the creator a right to pursue and take any fowl or infect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to the respective values, sometimes a criminal offense, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals, which are not expressly so reserved, are still liable to be taken and appropriated by any of the king’s subjects, upon their own territories; in the same manner as they might have taken even game itself, till these civil prohibitions were issued: there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly; but the difference, at present made, arises merely from the positive municipal law.
5. TO this principle of occupancy also must be referred the method of acquiring a special personal property in corn growing on the ground, or other emblements, by any possessor of the land who has sown or planted it, whether he be owner of the inheritance in fee or in tail, or be tenant for life, for years, or at will: which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels. They were devisable by testaments before the statute of wills,13 and at the death of the owner shall vest in his executor and not his heir: they are forfeitable by outlawry in a personal action:14 and by the statute 11 Geo. II. c. 19. though not by the common law,15 they may be distrained for rent arrere. The reason for admitting the acquisition of this special property, by tenants who have temporary interests, was formerly given;16 and it was extended to tenants in fee, principally for the benefit of their creditors: and therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distrainable for rent, they are not in other respects considered as personal chattels; and, particularly, they are not the object of larceny, before they are severed from the ground.17
6. THE doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement:18 but if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread, out of another’s grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials, which he had so converted.19 And these doctrines are implicitly copied and adopted by our Bracton,20 in the reign of king Henry III; and have since been confirmed by many resolutions of the Courts.21 It has even been held,22 that if one takes away another’s wife or son, and clothes them, and afterwards the husband or father retakes them back, the garments shall cease to be the property of him who provided them, being now annexed to the person of the child or woman.
7. BUT in the case of confusion of goods, where those of two persons are so intermixed, that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that in both laws the proprietors have an interest in common, in proportion to their respective shares.23 But, if one willfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another’s melting-pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost.24 But our law, to guard against fraud, allows no remedy in such a case; but gives the entire property, without any account, to him, whose original dominion is invaded, and endeavored to be rendered uncertain, without his own consent.25
8. THERE is still another species of property, which, being grounded on labor and invention, is more property reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke,26 and many others,27 to be founded on the personal labor of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of conveying that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given. This consent may perhaps be tacitly given, when an author permits his work to be published, without any reserve of right, and without stamping on it any marks of ownership: it is then a present to the public, like the building of a church, or the laying out a new highway: but, in case of a bargain for a single impression, or a sale or gift of the copyright, the reversion is plainly continued in the original proprietor, or the whole property transferred to another.
THE Roman law adjudged, that if one man wrote any thing, though never so elegantly, on the paper or parchment of another, the writing should belong to the original owner of the materials on which it was written:28 meaning certainly nothing more thereby, than the mere mechanical operation of writing, for which it directed the scribe to receive a satisfaction; especially as, in works of genius and invention, such as a picture painted on another man’s canvas, the same law29 gave the canvas to the painter. We find no other mention in the civil law of any property in the works of the understanding, though the sale of literary copies, for the purposes of recital or multiplication, is certainly as ancient as the times of Terence,30 Martial,31 and Statitus.32 Neither with us in England has there been any direct determination upon the right of authors at the common law.
But much may be gathered from the frequent injunctions of the court of chancery, prohibiting the invasion of this property: especially where either the injunctions have been perpetual,33 or have related to unpublished manuscripts,34 or to such ancient books, as were not within the provisions of the statute of queen Anne.35 Much may also be collected from the several legislative recognitions of copyrights;36 and from those adjudged cases at common law, wherein the crown has been considered as invested with certain prerogative copyrights;37 for, if the crown in capable of an exclusive right in any one book, the subject seems also capable of having the same right in another.
BUT, exclusive of such copyright as may subsist by the rules of the common law, the statute 8 Ann. c. 19. has protected by additional penalties the property of authors and their assigns for the term of fourteen years; and has directed that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: and a similar privilege is extended to the inventors of prints and engravings, for the term of fourteen years, by the statute 8 Geo. II. c. 13. Both which appear to have been copied from the exception in the statute of monopolies, 21 Jac. I. c. 3. which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof a temporary property becomes vested in the patentee.38
1. See pag. 3. 8. 258.
2. Finch. L. 178.
3. Freem. 40.
4. Bro. Abr. tit. propertie. 38. forfeiture. 57.
6. de j. b. & p. l. 3. c. 6. § 3.
7. Bynkersh. not. 66.
8. Pro. Abr. tit. propertie. 18.
9. We meet with a curious writ of trespass in the register (102.) for breaking a man’s house, and setting such a prisoner at large. “Quare domum ipsius A. apud W. (in qua idem A. quendam H. Scotum per ipsum A. de guerra captum tanquam prisonem suum, quousque sibi de centum libris, per quas idem H. redemptionem suam cum praefato A. pro vita sua salvanda fecerat satisfactum foret, detinuit) fregit, et ipsum H. cepit et adduxit, vel quo voluit abire permisit, &c.”
10. 2 Lev. 201.
11. Carth. 396. Ld. Raym. 147. Salk. 667.
12. Book I. ch. 8.
13. Perk. § 512.
14. Bro. Abr. tit. emblements. 21.5 Rep. 116.
15. 1 Roll. Abr. 666.
16. pag. 122. 146.
17. 3 Inst. 109.
18. Inst. 2. 1. 25, 26, 31. Ff. 6. 1. 5.
19. Inst. 2. 1. 25, 34.
20. l. 2. c. 2. & 3.
21. Bro. Abr. tit. propertie. 23. Moor. 20. Poph. 38.
22. Moor. 214.
23. Inst. 2. 1. 27, 28. 1 Vern. 217.
24. Inst. 2. 1. 28.
25. Poph. 38. 2 Bulstr. 325. 2 Vern. 516.
26. on Gov. part 2. ch. 5.
27. See pag. 8.
28. Si in chartis membranisve tuis carmen vel historian vel orationem Titius scripserit, hujus corporis non Titius sed tu dominus esse videris. Inst. 2. 1. 33.
29. Ibid. § 34.
30. Prol. in Eunuch. 20.
31. Epigr. i. 67. iv. 72. xiii. 3. xiv. 194.
32. Tuv. vii. 83.
33. Knaplock v. Curl. 9 Nov. 1722. Viner Abr. tit. Books, pl. 3. Baller v. Watson, 6 Dec. 1737.
34. Webb v. Rose. 24 May 1732. Pope v. Curl. 5 Jun. 1741. Forrester v. Waller. 13 Jun 1741. Duke of Queenfberry v. Sheboeare. 31 July 1758.
35. Knaplock v. Curl. before cited. Eyre v. Walker. 9 Jun. 1735. Motte v. Faulkner. 28 Nov. 1735. Walthoe v. Walker. 27 Jun. 1736. Tonson v. Walker. 12 May 1739. and 30 Apr. 1752.
36. A. D. 1649. c. 60. Scobell. 92. 13 & 14 Car. II. c. 33. 10 Ann. c. 19. § 112. 5 Geo. III. c. 12. § 26.
37. Cart. 89. 1 Mod. 257. 4 Burr. 661.
38. 1 Vern. 62.