THERE is nothing which fo generally ftrikes the imagination, and engages the affections of mankind, as the right of property; or that fole and defpotic dominion which one man claims and exercifes over the external things of the world, in total exclufion of the right of any other individual in the univerfe. And yet there are very few, that will give themfelves the trouble to confider the original and foundation of this right. Pleafed as we are with the poffeffion, we feem afraid to look back to the means by which it was acquired, as if fearful of fome defect in our title; or at beft we rest fatisfied with the decifion of the laws in our favour, without examining the reafon or authority upon which thofe laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by defcent from our anceftors, or by the laft will and teftament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a fet of words upon parchment fhould convey the dominion of land; why the fon fhould have a right to exclude his fellowcreatures from a determinate fpot of ground, becaufe his father had done fo before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain poffeffion, fhould be entitled to tell the reft of the world which of them should enjoy it after him. Thefe inquiries, it must be owned, would be ufclefs and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without ferutinizing too nicely into the reafons of making them. But, when law is to be confidered not only as matter of practice, but also as a rational fcience, it cannot be improper or ufelefs to examine more deeply the rudiments and grounds of there pofitive conftitutions of focisty.. In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man "dominion over all the earth; and over the fifh of the fea, and over the "fowl of the air, and over every living thing that moveth upon the earth ." This is the only true and iolid foun a Gen. i. .3. dation of man's dominion over external things, whatever airy metaphyfical notions may have been started by fanciful writers upon this fubject. The earth therefore, and all things therein, are the general property of all mankind, exclufive of other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reasonable to fuppofe, that all was in common among them, and that every one took from the public ftock to his own use fuch things as his immediate neceflities required. b THESE general notions of property were then fufficient to anfwer all the purposes of human life; and might perhaps ftill have answered them had it been poffible for mankind tó have remained in a state of primeval fimplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the antient method of living among the firft Europeans themfelves, if we may credit either the memorials of them preferved in the golden age of the poets, or the uniform accounts given by hiftorians of those times, wherein "erant omnia communia et indivifa "omnibus, veluti unum cunctis patrimonium effet " Not that this communion of goods feems ever to bave been applicable, even in the earlieft ages, to ought but the fubflance of the thing; nor could it be extended to the fe of it. For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of tranfient property, that lafted fo long as he was ufing it, and no longer: or, to speak with greater precifion, the right of poffeffion continued for the fame time only that the act of poffeffion lafted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined fpot of it, for reft, for shade, or the like, acquired for the time a fort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force; but the inftant that he quitted the ufe or occupation of it, another might feife it b. Juftin. 1. 43. c. I. B 2 c Barbeyr. Puff, 1. 4. c. 4. without without injustice. Thus alfo a vine or other tree might be said to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the fole property of the fruit, which he had gathered for his own repast. A doctrine well illuftrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own ". BUT when mankind increafed in number, craft, and ambition, it became neceflary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very fubftance of the thing to be used. Otherwife innumerable tumults must have arifen,. and the good order of the world be continually broken and disturbed, while a variety of perfons were striving who should get the first occupation of the fame thing, or difputing which of them had actually gained it. As human life alfo grew more and more refined, abundance of conveniences were devised to render it more eafy, commodious, and agreeable; as, habitations for shelter and fafety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an ufufructuary property in them, which was to cease the inftant that he quitted poffeffion;-if, as foon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the caseof habitations in particular, it was natural to observe, that even the brute creation, to whom every thing elfe was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young; that the birds of the air had nefts, and the beafts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would facrifice their lives to preserve them. Hence a property was foon established in every man's house. and home-ftall; which feem to have been originally mere temporary huts or moveable cabins, fuited to the defign of & Quemadmodum theatrum, cum commune fit, reɛte tamen dici poteft, ejus esse eum locum quem quifque occuparit. De Fin. là 3. 6. 20. 7 providence providence for more fpeedily peopling the earth, and fuited to the wandering life of their owners, before any extensive property in the foil or ground was established. And there can be no doubt, but that moveables of every kind became fooner appropriated than the permanent fubftantial foil: partly because they were more fufceptible of a long occupancy, which might be continued for months together without any fenfible interruption, and at length by usage ripen into an established right; but principally because few of them could be fit for use, till improved and meliorated by the bodily labour of the occupant which bodily labour, bestowed upon any fubject which before lay in common to all men, is univerfally allowed to give the fairest and most reasonable title to an exclufive property therein. THE article of food was a more immediate call, and therefore a more early confideration. Such, as were not contented with the spontaneous product of the earth, fought for a more folid refreshment in the flesh of beafts, which they obtained by hunting. But the frequent disappointments, incident to that method of provifion, induced them to gather together fuch animals as were of a more tame and fequacious nature; and to establish a permanent property in their flocks and herds, in order to fuftain themselves in a lefs precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The fupport of these their cattle made the article of water alfo a very important point. And therefore the book of Genefis (the most venerable monument of antiquity, confidered merely with a view to history) will furnish us with frequent inftances of violent contentions concerning wells; the exclufive property of which appears to have been established in the first digger or occupant, even in fuch places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a fojourner, afferting his right to a well in the county of Abimelech, and exacting an oath for his fecurity, "because he had digged that well." And Ifaac, about ninety years afterwards, reclaimed this his father's property; and, after much contention with the Philistines, was fuffered to enjoy it in peace f. ALL this while the foil and pafture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the neceflity of a fole and exclusive property in lands (for the fake of agriculture) was earlier felt, and therefore more readily complied with. Otherwife, when the multitude of men and cattle had confumed every convenience on cue fpot of ground, it was deemed a natural right to feife upon and occupy fuch other lands as would more easily fupply their neceflities. This practice is flill retained among the wild and uncultivated nations that have never been formed into civil ftates, like the Tartars and others in the eaft; where the climate itself, and the boundless extent of their territory, confpire to retain them still in the fame favage ftate of vagrant liberty, which was univerfal in the earliest ages; and which Tacitus informs us continued among the Germans till the decline of the Roman empire. We have alfo a ftriking example of the fame kind in the history of Abraham and his nephew Lot". When their joint fubftance became fo great, that paflure and otheṛ conveniences grew fcarce, the natural confequence was that a ftrife arose between their fervants; fo that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compofe: "let there be no ftrife, I pray "thee, between thee and me. Is not the whole land before "thee? Separate thyfelf, I pray thee, from me. If thou wilt "take the left hand, then I will go to the right; or if thou depart to the right hand, then I will go to the left." This plainly implies an acknowledged right, in either, to occupy whatever ground he pleafed, that was not pre-occupied by other tribes." And Lot lifted up his eyes, and beheld all "the plain of Jordan, that it was well watered every where, "even as the garden of the Lord. Then Lot chofe him all "the plain of Jordan, and journeyed eaft; and Abraham "dwelt in the land of Canaan." f Gen xxvi. 15. 18, &c. campur, ut nemus, placuit. De mor. Ger.15. Gen. c. xiii. UPON |