such property is rightly employed, as might otherwise have descended to the visitor himself; but if the founder has appointed any other person, then his assignee is invested with the founder's power in exclusion of his heir. With regard to hospitals, if it be spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was abridged by 2 Hen. Year Book. 5, c. 1, but in part restored by 14 Eliz. c. 5, which directs the bishop to visit such hospitals only where no visitor is appointed by the founders; and all the hospitals founded by 39 Eliz. c. 5, are to be visited by such persons as shall be nominated by the respective founders. 8 Edw. 3, c. 28. 2 Inst. 725. Colleges are lay corporations, though sometimes totally composed of ecclesiastical persons; and the right of visitation does not arise from any principles of the canon law, but was created by the common law. In case of the dissolution of a corporation, which is its civil Corporations, death, their lands revert to the person, or his heirs, who granted Co. Litt. 13. them, and their debts are totally extinguished. A corporation may be dissolved by act of parliament; by the natural death of all its members, in case of an aggregate corporation; by surrender of its franchises into the hands of the king; or by forfeiture of its charter, through negligence or abuse of its franchises; in which cases the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void; and the regular course is to bring an information in nature of a writ of quo warranto, to inquire by what warrant the members now exercise their corporate power. how dissolved. H BOOK THE SECOND. OF THE RIGHTS OF THINGS. Origin of the Barbeyr. Puff. 1. 4. ch. 4. CHAPTER I. OF PROPERTY IN GENERAL. THE earth, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. We learn, from the book of Genesis, that in the beginning of the world the Creator gave to man "dominion over all the earth, and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth." This, therefore, is the only true and solid foundation of man's dominion over external things. By the law of nature and reason, he who first began to use a thing acquired therein a kind of transient property, lasting so long as he was using it and no longer, or the right of possession continued for the time only that the act of possession lasted. When, however, mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals, not the immediate use only, but the very substance of the thing to be used, which exclusive property having originally been acquired by the occupation and bodily labour of the first taker, continued in him by the principles of universal law (a), till he did some act shewing an intention of abandoning it, when it became publici juris once more, and liable to be again appropriated by the next occupant. But this method of one man's abandoning his property, and another seizing the vacant possession, however well founded in theory, or calculated for the rudiments of civil society, necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found that what became inconvenient or useless to (a) The original right of property can only be justified by the accident or merit of prior occupancy, and on this foundation it is wisely established by the philosophy of the civilians.-Institut. 1, 2, tit. 1, 2; Gibbon, R. E. ch. 44. transfer of property. one man was convenient and useful to another, who was ready to give in exchange for it some equivalent equally desirable to the former proprietor. Thus mutual convenience introduced Origin of the commercial traffic and the reciprocal transfer of property by sale, grant, or conveyance. Considering men as absolute individuals, unconnected with civil society, all property must necessarily cease upon death; but as under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person the power of continuing his property by disposing of his possessions by will; or in case he neglects to dispose of it, or is not permitted to make any disposition, the municipal law of the country then steps in and declares who shall be the occupier, representative, or heir of the deceased (b); and in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still to prevent the robust title of Occupancy from again taking place, the doctrine of escheats is adopted in almost every country whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be formed. The right of inheritance or descent to the children and relations of the deceased seems to have been allowed much earlier than the right of devising by testament. While property continued only for life, testaments were useless and unknown; and when it became inheritable the inheritance was long indefeasible, and the children or heirs-at-law were incapable of exclusion by will, till it was found that so strict a rule of inheritance made heirs disobedient, defrauded creditors of their just debts, and prevented fathers from dividing or charging their estates as the exigence of their families required. This introduced the right of disposing of property by testament, that is, by written or oral instructions (c) properly witnessed or authenticated according to the pleasure of the deceased, which we therefore emphatically style his will. But there are some things which must still remain in common; being such wherein (6) The personal title of the first proprietor must be determined by his death; but the possession, without any appearance of change, is peaceably continued in his children, the associates of his toil and the partners of his wealth. This natural inheritance has been protected by the legislators of every climate and age.—Gibbon, R. E. ch. 44. (c) Every will must now be in writing, and signed in the presence of two witnesses; 7 Wm. 4 and 1 Vict. c. 26, s. 9. nothing but an usufructuary property is capable of being had, as the elements of light, air, and water, which a man may occupy by means of his windows, gardens, mills, and other conveniences. Such are also the generality of those animals which are said to be feræ naturæ, or of a wild untameable disposition, which any man may seize upon and keep for his own use. There are other things in which a permanent property may subsist, not only as to the temporary use but also as to the solid substance; and which yet would be frequently found without a proprietor, had not the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds which were omitted to be appropriated in the general distribution of lands; such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the appellation of game; the law has, therefore, vested these in the sovereign of the state, or in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has promoted the ends of civil society, and the peace and security of individuals, by assigning to every thing capable of ownership a legal and determinate owner. CHAPTER II. OF REAL PROPERTY. OF CORPOREAL HEREDITAMENTS. The objects of THE objects of dominion real property. distinguished from persons. Things real. 1 Inst. 6. or property are things as contraThings are, by the law of England, distributed into two kinds; real and personal. Things real are such as are permanent, fixed, and immoveable, as lands and tenements; things personal are goods, money, and all other moveables. Things real consist of lands, tenements, or hereditaments. Land comprehends all things of a permanent substantial nature. Tenement signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind, and is applicable, not only to lands and other solid objects, but also to advowsons, offices, rents, commons, or other property of the like unsubstantial kind. An hereditament includes not hereditaments. Legal defini only lands and tenements, but whatsoever may be inherited, Co. Litt. 19, 20. whether corporeal, or incorporeal, real, personal, or mixed. Corporeal hereditaments are such as affect the senses, and 3 Rep. 2. may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, but are creatures of the mind, and exist only in contemplation. Corporeal hereditaments consist wholly of substantial and per- Corporeal manent objects; all of which may be comprehended under the general denomination of land only. Land in its legal signification includes any ground, soil, or earth whatsoever, as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath; and also houses and other buildings: so that if I convey the land the structure or building passes with it. Water is a species of land, such being the language of the law: for I cannot bring an action to recover possession of a piece of water by the name of water only, or by a general description, as for a watercourse or a rivulet; but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered tion of "land." 1 Inst. 4. with water. Land has also, in its legal signification, an indefinite Brownl. 142. extent upwards, as well as downwards. It includes not only the face of the earth, but every thing under it or over it. So that if a man grants all his lands, he grants thereby all his mines, woods, waters and houses, as well as his fields and meadows; not but the particular names of the things are equally sufficient to pass them, except in the instance of water, by a grant of which nothing passes but the right of fishing; but the Co. Litt. 4. distinction is this, that by the name of a castle, messuage, toft, or croft, nothing else will pass except what falls with the utmost propriety under the term made use of; but by the name of land which is nomen generalissimum, every thing terrestrial will Co. Litt. 4, 5, pass. 6. CHAPTER III. OF INCORPOREAL HEREDITAMENTS. An incorporeal hereditament is a right issuing out of a thing Incorporeal corporate (whether real or personal) or concerning, or annexed hereditaments. to, or exerciseable within the same. Though its effects and Co.Litt. 19, 20, profits may be frequently objects of our senses, its existence |