.P 400
The RIGHTS of THINGS.
BOOK II.

CHAPTER THE TWENTY SIXTH.

OF TITLE TO THINGS PERSONAL
BY OCCUPANCY.

WE are next to confider the title to things perfonal, or the various means of acquiring, and of lofing, fuch property as may be had therein: both which confiderations of gain and lofs fhall be blended together in one and the fame view, as was done in our obfervations upon real property; fince it is for the moft part impoffible to contemplate the one, without contemplating the other alfo. And thefe methods of acquifition or lofs are principally twelve: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By cuftom. 5. By fucceffion. 6. By marriage. 7. By judgment. 8. By gift. 9. By contract. 10. By bankruptcy. 11. By teftament. 12. By adminiftration.

AND, firft, a p in goods and chattels may be acquired by occupancy: which, we have more than once ^a remarked, was the original and only primitive method of acquiring any property at all; but which has fince been reftrained and abridged, by the pofitive laws of fociety, in order to maintain peace and harmony among mankind. For this purpofe, by the laws of England, gifts, and contracts, teftaments, legacies, and adminiftrations have been introduced and countenanced, in order to transfer and continue that property and poffeffion in things perfonal, which

.{FS}
^a See pag. 3. 8. 258.
.{FE}
has
.P 401
The RIGHTS of THINGS.
BOOK II.
Ch. 26.
has once been acquired by the owner. And, where fuch things are found without any other owner, they for the moft part belong to the king by virtue of his prerogative; except in fome few inftances, wherein the original and natural right of occupancy is ftill permitted to fubfift, and which we are now to confider.

1. THUS, in the firft place, it hath been faid, that any body may feife to his own ufe fuch goods as belong to an alien enemy ^b. For fuch enemies, not being looked upon as members of our fociety, are not entitled during their ftate of enmity to the benefit or protection of the laws; and therefore every man that has opportunity is permitted to feife upon their chattels, without being compelled as in other cafes to make reftitution or fatisfaction to the owner. But this, however generally laid down by fome of our writers, muft in reafon and juftice be reftrained to fuch captors as are authorized by the public authority of the ftate, refiding in the crown ^c; and to fuch goods as are brought into this country by an alien enemy, after a declaration of war, without a fafe-conduct or paffport. And therefore it hath been held ^d, that where a foreigner is refident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be feifed. It hath alfo been adjudged, that if an enemy take the goods of an Englifhman, which are afterwards retaken by another fubject of this kingdom, the former owner fhall lofe his property therein, and it fhall be indefeafibly vefted in the fecond taker; unlefs they were retaken the fame day, and the owner before fun-fet puts in his claim of property ^e. Which is agreeable to the law of nations, as underftood in the time of Grotius ^f, even with regard to captures made at fea; which were held to be the property of the captors after a poffeffion of twenty four hours: though the modern authorities ^g require, that before the property can be changed, the goods muft have been brought into


.{FS}
^b Finch. L. 178.
^c Freem. 40.
^d Bro. Abr. tit. propertie. 38. forfeiture. 57.
^e Ibid.
^f de j. b. & p. l. 3. c. 6. §. 3.
^g Bynkerfh. not. 66.
.{FE}

VOL. II.

Cc c

port,

.P 402
The RIGHTS of THINGS.
BOOK II.
Ch. 26.
port, and have continued a night intra praefidia, in a place of fafe cuftody, fo that all hope of recovering them is loft.

AND, as in the goods of an enemy, fo alfo in his perfon, a man may acquire a fort of qualified property, by taking him a prifoner in war ^h; at leaft till his ranfom be paid ^j. And this doctrine feems to have been extended to negro-fervants ^I, who are purchafed, when captives, of the nations with whom they are at war, and continue therefore in fome degree the property of their mafters who buy them: though, accurately fpeaking, that property confifts rather in the perpetual fervice, than in the body or perfon, of the captive ^k.

2. THUS again, whatever moveables are found upon the furface of the earth, or in the fea, and are unclaimed by any owner, are fuppofed to be abandoned by the laft proprietor; and, as fuch, are returned into the common ftock and mafs of things: and therefore they belong, as in a ftate of nature, to the firft occupant or fortunate finder, unlefs they fall within the defcription of waifs, or eftrays, or wreck, or hidden treafure; for thefe, we have formerly feen ^l, are vefted 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 antient window overlooking my neighbour's ground, he may not erect any blind to obftruct the light: but if I build my houfe clofe to his wall, which darkens it, I cannot compel him to demolifh his wall; for there the firft occupancy is rather in him, than in me. If my neighbour makes a tan-yard, fo as to annoy

.{FS}
^h Pro. Abr. tit. propertie. 18.
^I We meet with a curious writ of trefpafs in the regifter (102.) for breaking a man's houfe, and fetting fuch a prifoner at large. “Qquare domum ipfius A. apud W. (in “qua idem A. quondam H. Scotum per ipfum “A. de Guerra captum tanquam prifonem fuum, “qucufque fibi de centum libris, per quas idem “H. redemptionem fuam cum praefato A. pro “vita fua falvanda fecerat, fatisfactum foret, “detinuit) fregit, et ipfum H. cepie et abduxit, “vel quo voluit abire permifie, &c.”
^j 2 Lev. 201.
^k Carth. 396. L^d Raym. 147. Salk. 667.
^l Book I. ch. 8.
.{FE}
and
.P 403
The RIGHTS of THINGS.
BOOK II.
Ch. 26.
and render lefs falubrious the air of my houfe or gardens, the law will furnifh me with a remedy; but if he is firft in poffeffion of the air, and I fix my habitation near him, the nufance is of my own feeking, and muft continue. If a ftream be unoccupied, I may erect a mill thereon, and detain the water; yet not fo as to injure my neighbour's prior mill, or his meadow: for he hath by the firft occupancy acquired a property in the current.

4. WITH regard likewife to animals ferae naturae, all mankind had by the original grant of the creator a right to purfue and take any fowl or infect of the air, any fifh or inhabitant of the waters, and any beaft or reptile of the field: and this natural right ftill continues in every individual, unlefs where it is reftrained by the civil laws of the country. And when a man has once fo feifed them, they become while living his qualified property, or, if dead, are abfolutely his own: fo that to fteal them, or otherwife invade this property, is, according to the refpective values, fometimes a criminal offence, fometimes only a civil injury. The reftrictions which are laid upon this right, by the laws of England, relate principally to royal fifh, as whale and fturgeon, and fuch terreftrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclufive right of the prince, and fuch of his fubjects to whom he has granted the fame royal privilege. But thofe animals, which are not expreffly fo referved, are ftill liable to be taken and appropriated by any of the king's fubjects, upon their own territories; in the fame manner as they might have taken even game itfelf, till thefe civil prohibitions were iffued: there being in nature no diftinction between one fpecies of wild animals and another, between the right of acquiring property in a hare or a fquirrel, in a partridge or a butterfly; but the difference, at prefent made, arifes merely from the pofitive municipal law.

5. TO this principle of occupancy alfo muft be referred the method of acquiring a fpecial perfonal property in corn growing on the ground, or other emblements, by any poffeffor of the land
C c c 2
who
.P 404
The RIGHTS of THINGS.
BOOK II.
Ch. 26.
who hath fown 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 diftinct from the real eftate in the land, and fubject to many, though not all, the incidents attending perfonal chattels. They were devifable by teftaments before the ftatute of wills ^m, and at the death of the owner fhall veft in his executor and not his heir: they are forfeitable by outlawry in a perfonal action ⁿ: and by the ftatute 11 Geo. II. c. 19. though not by the common law ^o, they may be diftreined for rent arrere. The reafon for admitting the acquifition of this fpecial property, by tenants who have temporary interefts, was formerly given ^p; and it was extended to tenants in fee, principally for the benefit of their creditors: and therefore, though the emblements are affets in the hands of the executor, are forfeitable upon outlawry, and diftreinable for rent, they are not in other refpects confidered as perfonal chattels; and, particularly, they are not the object of larceny, before they are fevered from the ground ^q.

6. THE doctrine of property arifing from acceffion is alfo grounded on the right of occupancy. By the Roman law, if any given corporeal fubftance received afterwards an acceffion by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the converfion of wood or metal into veffels and utenfils, the original owner of the thing was intitled by his right of poffeffion to the property of it under fuch it's ftate of improvement ^r: but if the thing itfelf, by fuch operation, was changed into a different fpecies, 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 fatisfaction to the former proprietor for the materials, which he had fo converted ^s. And thefe doctrines are implicitly copied and adopted by our Bracton ^t, in the reign of king Henry III; and have fince been confirmed by many refolutions of the

.{FS}
^m Perk. §. 512.
ⁿ Bro. Abr. tit. emblements. 21.5 Rep. 116.
^o 1 Roll. Abr. 666.
^p pag. 122. 146.
^q 3 Inft. 109.
^r Inft. 2. 1. 25, 26, 31. Ff. 6. 1. 5.
^s Inft. 2. 1. 25, 34.
^t l. 2. c. 2. & 3.
.{FE}
courts ^u.
.P 405
The RIGHTS of THINGS.
BOOK II.
Ch. 26.
Courts ^u. It hath even been held, that if one takes away another's wife or fon, and cloaths them, and afterwards the hufband or father retakes them back, the garments fhall ceafe to be the property of him who provided them, being now annexed to the perfon of the child or woman.

7. BUT in the cafe of confufion of goods, where thofe of two perfons are fo intermixed, that the feveral portions can be no longer diftinguifhed, the Englifh law partly agrees with, and partly differs from, the civil. If the intermixture be by confent, I apprehend that in both laws the proprietors have an intereft in common, in proportion to their refpective fhares ^x. But, if one willfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowlege, or cafts gold in like manner into another's melting-pot or crucible, the civil law, though it gives the fole property of the whole to him who has not interfered in the mixture, yet allows a fatisfaction to the other for what he has fo improvidently loft ^y. But our law, to guard againft fraud, allows no remedy in fuch a cafe; but gives the intire property, without any account, to him, whofe original dominion is invaded, and endeavoured to be rendered uncertain, without his own confent ^z.

8. THERE is ftill another fpecies of property, which, being grounded on labour and invention, is more property reducible to the head of occupancy than any other; fince the right of occupancy itfelf is fuppofed by Mr. Locke ^a, and many others ^b, to be founded on the perfonal labour of the occupant. And this is the right, which an author may be fuppofed to have in his own original literary compofitions: fo that no other perfon without his leave may publifh 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 difpofe of that indentical work as

.{FS}
^u Bro. Abr. tit. propertie. 23. Moor. 20. Poph. 38.
^w Moor. 214.
^x Inft. 2. 1. 27, 28. 1 Vern. 217.
^y Inft. 2. 1. 28.
^z Poph. 38. 2 Bulftr. 325. 2 Vern. 516.
^a on Gov. part 2. ch. 5.
^b See pag. 8.
.{FE}
he

.P 406
The RIGHTS of THINGS
BOOK II.
Ch. 26.
he pleafes, and any attempt to take it from him, or vary the difpofition he has made of it, is an invafion of his right of property. Now the identity of a literary compofition confifts intirely in the fentiment and the language; the fame conceptions, cloathed in the fame words, muft neceffarily be the fame compofition: and whatever method be taken of conveying that compofition 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 fo conveyed; and no other man can have a right to convey or transfer it without his confent, either tacitly or expreffly given. This confent may perhaps be tacitly given, when an author permits his work to be publifhed, without any referve of right, and without ftamping on it any marks of ownerfhip: it is then a prefent to the public, like the building of a church, or the laying out a new highway: but, in cafe of a bargain for a fingle impreffion, or a fale or gift of the copyright, the reverfion 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 fo elegantly, on the paper or parchment of another, the writing fhould belong to the original owner of the materials on which it was written ^c: meaning certainly nothing more thereby, than the mere mechanical operation of writing, for which it directed the fcribe to receive a fatisfaction; efpecially as, in works of genius and invention, fuch as a picture painted on another man's canvas, the fame law ^d gave the canvas to the painter. We fine no other mention in the civil law of any property in the works of the underftanding, though the fale of literary copies, for the purpofes of recital or multiplication, is certainly as antient as the times of Terence ^e, Martial ^f, and Statitus ^g. Neither with us in England hath there been any direct determination upon the right of authors at the common law.

.{FS}
^c Si in chartis membranifve tuis carmen vel hiftoriam vel orationem Titius fcripferit, hujus corporis non Titius fed tu dominus effe videris. Inft. 2. 1. 33.
^d Ibid. §. 34.
^e Prol. in Eunuch. 20.
^f Epigr. i. 67. iv. 72. xiii. 3. xiv. 194.
^g Tuv. vii. 83.
.{FE}
But
.P 407
The RIGHTS of THINGS
BOOK II.
Ch. 26.
But much may be gathered from the frequent injunctions of the court of chancery, prohibiting the invafion of this property: efpecially where either the injunctions have been perpetual ^h, or have related to unpublifhed manufcripts ⁱ, or to fuch antient books, as were not within the provifions of the ftatute of queen Anne ^k. Much may alfo be collected from the feveral legiflative recognitions of copyrights ^l; and from thofe adjudged cafes at common law, wherein the crown hath been confidered as invefted with certain prerogative copyrights ^m; for, if the crown in capable of an exclufive right in any one book, the fubject feems alfo capable of having the fame right in another.

BUT, exclufive of fuch copyright as may fubfift by the rules of the common law, the ftatute 8 Ann. c. 19. hath protected by additional penalties the property of authors and their affigns for the term of fourteen years; and hath directed that if, at the end of that term, the author himfelf be living, the right fhall then return to him for another term of the fame duration: and a fimilar privilege is extended to the inventors of prints and engravings, for the term of fourteen years, by the ftatute 8 Geo. II. c. 13. Both which appear to have been copied from the exception in the ftatute 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 fole working or making of the fame; by virtue whereof a temporary property becomes vefted in the patentee ⁿ.

.{FS}
^h Knaplock v. Curl. 9 Nov. 1722. Viner Abr. tit. Books, pl. 3. – Baller v. Watfon, 6 Dec. 1737.
ⁱ Webb v. Rofe. 24 May 1732. – Pope v. Curl. 5 Jun. 1741. – Forrefter v. Waller. 13 Jun 1741. – Duke of Queenfberry v. Sheboeare. 31 July 1758.
^k Knaplock v. Curl. before cited. – Eyre v. Walker. 9 Jun. 1735. – Motte v. Faulkner. 28 Nov. 1735. – Walthoe v. Walker. 27 Jun. 1736. – Tonfon v. Walker. 12 May 1739. and 30 Apr. 1752.
^l A. D. 1649. c. 60. Scobell. 92. 13 & 14 Car. II. c. 33. 10 Ann. c. 19. §. 112. 5 Geo. III. c. 12. §. 26.
^m Cart. 89. 1 Mod. 257. 4 Burr. 661.
ⁿ 1 Vern. 62.
.{FE}