Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/8

Rh property, are, when coupled with possession, but the indicia, the visible manifestation of invisible rights, "the evidence of things not seen."

Property, then, in a determinate object, is composed of certain constituent elements, to wit: The unrestricted right of use, enjoyment, and disposal, of that object.

In connection with the ambiguities latent in the term "property", it seems well to observe that similar looseness of thought and expression lurks in the supposed (but false) contrast between "corporeal" and "incorporeal" property. The second passage above quoted from Pollock and Maitland exhibits one phase of this matter. For further striking illustration, reference may be made to Blackstone's well-known discussion of corporeal and incorporeal hereditaments. Thus, the great commentator tells us: "But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed." It is clear that only legal interests as such can be inherited; yet in the foregoing quotation there is inextricable confusion between the physical or "corporeal" objects and the corresponding legal interests, all of which latter must necessarily be "incorporeal," or "invisible," to use the expression of Mr. Justice Sherwood. This ambiguity of thought and language continues throughout Blackstone's discussion; for a little later he says: "Hereditaments, then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled; are creatures of the mind, and exist only in contemplation." Still further on he says: An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same. * * *

Incorporeal hereditaments are principally of ten sorts: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.