admission of the right itself." But, in the infancy and earlier stages of society, the right of property depended almost entirely upon actual occupancy. Property, without possession, is said to be too abstract an idea for savage life; and society had made some considerable advances towards civilization, before there was an admission of a right or title to property distinct from the possession. By the ancient law of all the nations of Europe, the bona fide possessor of goods had a good title as against the real owner, in whatever way, whether by force, fraud, or accident, the owner may have been devested of the possession. It was the law, in several parts of Germany, so late at least as the middle of the last century, according to Heineccius, that if one person should lend, or hire, or deposit his goods with another, and they should come to the possession of a third person, he would be entitled to hold them as against the original owner. By the Roman law, in its early state, property stolen and sold was lost to the real owner, and the only remedy was by an action (conductio furtiva) against the thief. But when the Roman law advanced to maturity, it was held, that theft did not deprive a man of his title to property, and the action of rei vindicatio was, in effect, given against the bona fide purchaser. The law of the twelve tables, by which the possession of one year was a good title by prescription to moveables, shows what a feeble and precarious right was attached to personal property out of possession. The ancient laws of Europe confiscating stolen goods, on conviction of the thief, without paying any regard to the right of the real owner, is another instance to prove the prevalence of a very blunt sense of the right of property a Grotius, b. 2. c. 6. s. 1. b Opera, tom. 5. part 2. p. 180, 181. c This was by the perpetual edict extending the actio metus, which differed in nothing, but in name, from the rei vindicatio. Lord Kames' Historical Law Tracts, tit. Property. Inst. 2. 6. 2. distinct from the possession. The English doctrine of wrecks was founded on this imperfect notion of the right of property, when it had lost the evidenee of possession. By the common law, as it was laid down by Sir Wm. Blackstone, goods wrecked were adjudged to belong to the king, and the property was lost to the owner. This, he admits, was not consonant to reason and humanity, and the rigour of the common law was softened by the statute of Wm. I. 3 Edw. 1. c. 4. which declared, that if any thing alive escape the shipwreck, be it man or animal, it was not a legal wreck, and the owner was entitled to reclaim his property within a year and a day. Upon this statute the legal doctrine of wrecks has stood to this day. St. Germain, the author of the Doctor and Student, did not seem to think, that even the law, under this statute, stood with conscience, for why should the owner forfeit the shipwrecked goods, though it should happen, that no man, dog, or cat. (to use the words of the statute,) should come alive unto the land out of the ship? The only rational ground of the claim on the part of the crown is, that the true owner cannot be ascertained. The imperial edict of the Emperor Constantine was more just than the English statute, for it gave the wrecked goods, in every event, to the owner; and Bracton, who wrote before the statute of 3 Edw. 1., and who was acquainted with the edict of Constantine, lays down the doctrine of wreck upon perfectly just principles. He makes it to depend, not upon the casual escape of an animal, but upon the ab-→→ sence of all evidence of the owner. The statute of this state is like the edict of Constantine, and the declaration of Bracton, for it declares, that nothing that shall be cast by the sea upon the land, shall be adjudged wreck, but the goods shall be kept safely for the space of a year and a Com vol. i. 290, 291. b Dr. and Stu. p. 267, 268. c Code, 11. 5. 1. d Lib. 3. p. 120. s. a day for the true owner, to whom the same is to be delied on his paying reasonable salvage; and if the goods be not reclaimed by that day, they shall be sold, and the proceeds accounted for to the state. In the case of Hamilton and Smyth v. Davis, the very question arose in the K. B., whether the real owner was entitled to reclaim his shipwrecked goods, though no living creature had come alive from the ship to the shore. The grantee under the crown claimed the goods as a wreck, because was Te shin totally lost, and no living animal was saved; and his very distinguished counsel, consisting of Mr. Dunning, (afterwards Lord Ashburton,) and Mr. Kenyon, (afterwards Lord Ch. J. of the K. B,) insisted, that, according to all the writers, from the Mirror to Blackstone inclusive, it was a lawful wreck, as no living creature had come to the shore, and that Bracton stood unsupported by any other writer. But Lord Mansfield, with a sagacity and spirit that did him infinite honour, reprobated the doctrine urged on the part of the defendant, and declared, that there was no case adjudging that the goods were forfeited, because no dog, or cat, or other animal, came alive to the shore; that any such determination would be contrary to the principles of law, justice, and humanity; that the very idea was shocking; and that the coming ashore of a dog, or a cat, alive, was no better proof of ownership, than if they should come ashore dead; that the whole inquiry was a question of ownership; and that if no owner could be discovered, the goods belonged to the king, and not otherwise; and that the statute of 3 Edw. I. was not to receive any a Laws of N. Y. sess, 10. ch. 28. The colony laws of Massachusetts also preserved all wrecks for the owner, and did not follow the English law. Dane's Abr, vol. 3. 144. Probably the statute law of other states is equally just. b. 5 Burr. 2732. construction contrary to the plain and clear principles of justice and humanity. After reading this interesting case, it appears rather surprising that any contrary opinion should have been seriously entertained in Westminster Hall, at so late a period as the year 1771; and especially that Sir Wm. Blackstone should have acquiesced, without any difficulty, in a different construction of the statute of Westminster the first. But to return to the history of the law of property. The title to it was gradually strengthened, and acquired great solidity and energy, when it became to be understood, that no man could be deprived of his property without his consent, and that even the honest purchaser was not safe under a defective title, The exception to this rule grew out of the necessities and the policy of commerce; and it was established as a general rule, that sales of personal property in market overt, would bind the property even against the real owner. The markets overt in England depend upon special custom, which prescribes the place, except that, in the city of London, every shop in which goods are exposed publicly to sale, is market overt for those things in which the owner professes to trade. If goods be stolen, and sold openly in such a shop, the sale changes the property. But if the goods be not sold strictly in market overt, or if there be not good faith in the buyer, or there be any thing unusual or irregular in the sale, it will not affect the validity of it as against the title of the real owner." The common law, according to Lord Coke, held it to be a point of great policy, that fairs and markets overt should be well furnished, and to encourage them it did ordain, that all sales and contracts of any thing vendible in markets overt, should bind those who had right; but, he adds that the a 5 Co. 83. 12 Med. 521. Bacon's Use of the Law, p. 157. Inst. 713. Com. Dig. tit. Market, En rule had many exceptions, and he proceeds to state the several exceptions, which show the precision and caution with which the sale was to be conducted so as to bind the property. It is the settled English law, that a sale out of market overt, or not according to the usage and regulations of the market overt, will not change the The property as against the real owner. Thus, we find, in the case of Wilkinson v. King," that where the owner of goods had sent them to a wharf in the borough of Southwark, where goods of that sort were usually sold, and the wharfinger, without any authority, sold the goods to a bona fide purchaser, this was considered not to be a sale in market overt so as to change the property, but a wrongful conversion; and the purchaser was held liable in trover to the true owner. It is understood that this English custom of markets overt does not apply to this country; and the general principle applicable to the law of personal property throughout civilized Europe is, that nemo plus juris in alium transferre potest quam ipse habet. This is a maxim equally of the common, and of the civil law ; and a sale ex vi termini, imports nothing more than that the bona fide purchaser sueceeds to the rights of the vendor. It has been frequently held in this country, that the English law of markets overt had not been adopted, and, consequently, as a general rule the title of the true owner cannot be lost without his own free act and consent. How far that consent, or a due authority to sell, is to be inferred, in many cases, for the encouragement and safety of commerce, may be discussed in our future inquiries. My object at present is, only to show a 2 Campb. N. P. 335. b Co. Lill. 309. Vente, p. 1. n. 7. C Dig. 41. 1. 20. Pothier's Traile du Contrat de c Dame v. Baldwin, 8 Mass. Rep. 518. Wheelwright v. De Peyster, 1 Johns. Rep. 480. Hosack v. Weaver, 1 Yeates, 478. Easton v. Worthington, 5 Serg. & Rawle, 130. |