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BEing to treate in the second Book of things themselves, to which we have Right, and how we come to have right to them, It is fit to know.
That some things fall not under commerce, and so we cannot acquire any propertie in them, such as are things common, as the Ocean, (though our King has Right to our nar∣row Seas, and to all the Shoars.)
Secundo, Things publick, which are common only to a Nation or People, as Rivers, Har∣bours, and the Right of Fishing, in the saids Rivers. Tertio, res universitatis, which are common only to a Corporation or Citie, as a Theater, or the Mercat place, and the like: Quarto, Things that are said to be no Mans, but are Iuris Divini, which are either sacred, such as the Bells of Churches, for though we have no conse∣cration of things since the Re∣formation, yet some things have a Relative Holiness and Sanctity, and so fall not under Commerce, that is to say, can∣not be bought and sold by Pri∣vate Persons. Quinto, Things that are called sanctae, so called because they are guarded from the injuries of Men, by speciall
Sanctions, as the walls of Cities, Persons of Ambassadours, and Laws, Sexto, Things Religious, such as Church-Yeards.
As to those things which fall within Commerce, we may acquire right to them, either by the Law of Nature, and Nations, or by our Civil and Municipal Law, dominion or propertie is acquired by the Law of Nations either by our own fact and deed. or Secundo, by a connexion with, or dependence up∣on things belonging to us, the first by a General term is called Occupation, and the last Accession.
Occupation, is the apropriating and apprehending of those things, which formerly belonged to none. And thus we acquire propertie in wild Beasts, of which we acquire a Right how soon we apprehend them, or are in the
prosecution of them with proba∣bilitie to apprehend them, as also we retain a right to them whilst they remain in Our possession, and evenafter they have escapt, if they be yet recoverable by us. Secundo, Propertie comes by Accession, as for instance, a House Built upon, or Trees taking root in our ground, and the product also of our beasts be∣long to us, and ground that grows to our ground becomes insensibly ours, and is called, Alluvio by the Civilians. And it is a ge∣neral Rule in Law, that acces∣sorium sequitur Naturam sui prin∣cipalis; and yet a Picture drawn by a great Master upon another mans Sheet or Table, belongs to the Painter, and not to the Master of that whereon it is drawn, the meanness of the one ceding to the nobleness of the other.
There are many other wayes of acquiring Right and Property, which may be refer∣red either to Occupation, or Ac∣cession; as if a Man should make a Ship of my Wood, it would become the Makers, and would not belong to me, to whom the wood belonged, and this is called Specification, in which this is a general rule, that, if the species can be reduced to the rude masse of matter, then the Owner of the matter is also owner of the species, or thing made; As, if a Cup be made of another mans Silver, the cup belongs not to the maker, but to the owner of the Mettle; because it can be reduced to the first Mass of Silver, but if it cannot be re∣duced, then the Species will undoubtedly belong to him that made it, and not to the
owner of the matter, as Wine, and Oyl, made of anothers Grapes, and Olives, which be∣longs to the maker, seing wine, cannot be reduced to the Grapes of which it was made.
Propertie is likewise ac∣quired when two or moe Per∣sons mixe together in one, what formerly belonged to them severally, and if the mat∣terials mixed be liquid, it is called by a special name, Confusion, as when several Persons Wines are mixed and confounded toge∣ther; but if the particulars mixed, be dry and solid, so as to retain their different shapes and Forms, it is called commix∣tion, and in both cases, if the confusion, or commixtion be by consent of the Owners, the body or thing resulting from it, is common to them all; but
if the Commixtion be by chance, then if the matterials cannot be separated, the thing is yet common; as when the Graine or Corns of two persons are mixed together by chance, here there must necessarly be a community; because, the se∣paration is impossible; but if two Flocks of sheep belonging to different persons should by accident mix together, there would be no community; but every man would retain right to his own Flock, seing they can be distinctly known and separated, and these two ways of acquisition are by accerssion.
The last, and most ordi∣narie way of acquiring of pro∣perty, is by tradition, which is defyned a delivery of possession by the true owner, with a design to transfer the property to the Re∣ceiver,
and this translation, is made either by the real delivery of the thing it self, as of a horse, a cup, &c. or by a Sym∣bolick delivery. As, is the delivery of a little Earth and Stone in place of the Land it self; for, where the thing cannot be truely delivered, the Law allows some symbols, or marks of tradition, and so far is tradition necessary to the acquiring of the prorerty in such cases, that he who gets the last right, but the first tradition is still preferr'd by our Law.
If he who was once Proprie∣tar does willingly quite his Right, and throw it away, (which the Civil Law calls, pro derelicto habere,) the first finder acquirs a new Right, per inventionem, or by finding it, by which way also men ac∣quire
right to Treasures, and to Iewels lying on the Shoare; and generally to all things that belonged formerly to no man, or were thrown away by them; But it is a general Rule in Our Law, that what belongs to no man is understood to belong to the King.
Prescription, is a chief way of acquiring Rights by the Ci∣vil Law; but because, that Title comprehends many things, which cannot be here understood, I have treated that Title amongst the ways of loosing Rights, it being upon diverse considerations, modus acquirendi & amittendi.
We also acquire Right to the Fruits of those things which we possess, bona fide, if these Fruits were gathered in or uplifted, and consumed by
us, whilst we thought we had a good Right to the thing it self, for though thereafter our Right was found not to be good; yet the Law, judged it unreasonable to make us restore what we lookt upon as our own; when we spent it, and therefore, whenever this bona fides ceaseth, which may be several wayes, especially by intenting an acti∣on at the true owners instance, we become answerable for these Fruits; though there∣after they be percepti & consump∣ti, by us.