vested by charter or act of parliament, in a body corporate, the shares of the individual corporators in it are in the nature of personalty; for such shares are merely the rights which each individual possesses, as a partner, to a share in the surplus profit derived from the employment of the capital, which is always a mixed fund, consisting in part at least of personal chattels, as well as land and fixtures (b). II. As to our second head, of things personal which partake of the qualities of things real. They consist of the following subjects: 1. Certain kinds of chattels ranked as parcel of the freehold by the general law of the realm as [necessary to the well-being of the inheritance (c).] Of these we have already noticed one species, when treating in a former chapter of animals feræ naturæ (d), which, when confined upon a man's estate but not domesticated, fall, upon the death of the terretenant, under the same law of succession with the land itself, so as to pass, if he were seised of an estate of inheritance, to his heir or devisee; if possessed for a term of years, to his executor or administrator (e). But the same kind of animals, when tamed, become goods and chattels, and belong in every instance, on the death of the owner, to his personal representative (f). [Charters likewise and deeds, court rolls and other evidences of the land, together with the chests in which they are contained, shall pass together with the land, to the heir, and shall not go to the executor (g);] though where such deeds are depo(b) See Phillips v. Phillips, 1 Myl. & K. 649; Bligh v. Brent, 2 Y. & Col. 268; Bradley v. Holdsworth, 3 Mee. & W.422; Humble v. Mitchell, 11 Ad. & El. 205. The shares in companies constituted under the Joint Stock Companies Act, 19 & 20 Vict. c. 47, are by its express provision (sect. 15) "personal" and not real "estate." (c) 2 Bl. Com. 427. (e) Co. Litt. 8 a; Off. Ex. 53; (g) 2 Bl. Com. 428, cites Bro. Ab. tit. Chattels, 18; et vide Co. Litt. 6a; Com. Dig. Biens, B., Charters, posited by the owner as a security for money lent, they are chattels in the hands of the lender, and his special property in them will pass on his decease to his personal representative (h). And in addition to those which have been enumerated, [other personal chattels there are, which also descend to the heir, as antient family pictures (i), or a monument or tombstone (j) in a church, or the coat armour of his ancestor there hung up, with the pennons and other ensigns of honour suited to his degree.] We say chattels personal, because though monuments and the like are fixed to the realty, they are fixtures of a peculiar kind, and, contrary to the common rule, combine for no other purpose whatever with the subject real to which they are attached, which is in this case the freehold of the rector or vicar, to whom the insignia in question can in no sense accrue. And accordingly it is laid down, that [in this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away, or deface them, but is liable to an action from the heir (k). 2. Heir-looms, which are such personal chattels as go, by the special custom of a particular place, to the heir, along with the inheritance of the messuage or land with the occupation of which they are connected, -the termination of loom being [of Saxon original (7), in which language it signifies a limb or member (m), so that an heir-loom is nothing else but a limb or member of the inheritance.] Under this denomination, carriages, utensils, and other household implements, may be included; but the custom A. Blackstone adds here, that they pass in the nature of heir-looms; but heir-looms, as we shall presently see, depend on local custom. (h) Shep. Touch. 469. (i) Corven's case, 12 Rep. 105; Francis v. Ley, Cro. Jac. 366. (j) Spooner v. Brewster, 3 Bing. (k) 2 Bl. Com. 429, cites 12 Rep. 105; Co. Litt. 18 b. (1) 2 Bl. Com. 427; Co. Litt. 18 b; Termes de la Ley. It is said in 14 Vin. 291, that they are such things as have continually gone by special custom with the capital messuage. (m) Spelm. Gloss. 277. of the particular place, by which they are liable to be so ranked, requires to be strictly proved (n): the general rule being, that no chattel interest whatsoever shall go to the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor (o). These heirlooms, [though mere chattels, yet cannot be devised away from the heir, by will,] except in connection with the inheritance; [but such devise is void, even by a tenant in fee-simple. For though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased, yet they being at his death,] unless the devise has extended to the inheritance, [instantly vested in the heir,] by the custom, [the devise of them (which is subsequent, and not to take effect till after his death,) shall be postponed to the custom whereby they have already descended (p).] The term of heir-looms is often applied in practice to the case where certain chattels, for example, pictures, plate or furniture, are directed by will or settlement to follow the limitations thereby made, of some family mansion or estate. But the word is not here employed in its strict and proper sense, nor is the disposition itself, beyond a certain point, effectual; for the articles will in such case belong absolutely to the first person who, under the limitations, would take a vested estate of inheritance in them, supposing them to be real estate; and if he dies intestate, will pass to his personal representative, and not to his heir (q). (n) 2 Bl. Com. 428; Co. Litt. 18, 185. The antient jewels of the crown are also said to be heirlooms; 2 Bl. Com. 428; Co. Litt. 18; but as this does not depend on local custom, they would seem more properly to rank under the first subdivision of the present head. (0) Co. Litt. 388. (p) Co. Litt. 185 b. The law, as here laid down on the authority of Lord Coke and Blackstone, is supported by many other authorities, though it has been questioned in Woodd. Vin. Lect. vol. ii. p. 380. (q) Gower v. Grosvenor, Barnard. Ch. Rep. 54; Co. Litt. by Harg. 18 b, n. (7). BOOK III. OF RIGHTS IN PRIVATE RELATIONS. CHAPTER I. OF MASTER AND SERVANT. HAVING thus commented on the rights of persons individually considered, the method marked out (a) now leads us to consider the rights of persons in their private relations. [The three great relations in private life are:- First, That of master and servant; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. Secondly, That of husband and wife; which is founded in nature, but modified by civil society; the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. Thirdly, That of parent and child, which is consequential to that of marriage, being its principal end and design.] But since the children require, during their infancy, to be protected and educated, and that not only in the lifetime of their parents, but after their death, in case of their being snatched away before their duty is performed, therefore the law has provided a fourth relation, (a) Vide sup. vol. 1. p. 138. which is that of guardian and ward. Of all these in their order. [In discussing the relation of master and servant, we shall first consider the several sorts of servants, and how this relation is created and destroyed; secondly, the effect of this relation with regard to the parties themselves: and, lastly, its effect with regard to other persons. I. As to the several sorts of servants]:- It is known to every reader, that slavery, or, in other words, that civil relation in which one man possesses absolute power over the life, liberty, and fortune of another, does not and cannot subsist in England. [And indeed it is repugnant to reason and the principles of natural law, that such a state should subsist anywhere. The three origins of the right of slavery assigned by Justinian (b), are all of them built upon false foundations (c). As first, slavery is held to arise, “jure gentium," from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive; and having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy; he has only a right to kill him in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons; much less can it give a right to kill, torture, abuse, plunder, or even to enslave an enemy, when the war is over. Since therefore the right of making slaves by captivity depends on a supposed right of slaughter, that foun (b) "Servi aut fiunt aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris." - Inst. 1, 3, 4. (c) Montesq. Sp. L. xv. 2. |