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we cannot invade another's property without a violation of a promise or a breach of good faith, seems equally, or more, superfluous and inconclusive.
"There appears to be just the same necessity to call in the aid of a promise to account for or enforce every other moral obligation, and to say that men are bound not to beat or murder each other because they have promised not to do so. Men are bound to fulfill their contracts and engagements, because society could not otherwise exist; men are bound to refrain from another's property, because likewise society could not otherwise exist. Nothing, therefore, is gained by resolving one obligation into the other.
"But how or when, then, does property commence? I conceive no better answer can be given than by occupancy, or when anything is separated for private use from the common stores of nature. This is agreeable to the reason and sentiments of mankind prior to all civil establishments. When an untutored Indian has set before him the fruit which he has plucked from the tree that protects him from the heat of the sun, and the shell of water raised from the fountain that springs at his feet, if he is driven by any daring intruder from this repast, so easy to be replaced, he instantly feels and resents the violation of that law of property which nature herself has written upon the hearts of all mankind." (Christian.)
Judge Sharswood, on the other hand, seems to trace the right of property to the positive command or institution of the state.
"All the writers on international law concur in the doctrine that actual occupancy is essential to perfect the title to land newly discovered and vacant. (Puff. 1. 4, c. 4; Vat. 1. 1, c. 15; Grotius, 1. 2, c. 3.) It is important to remark that, so far at least as regards land, the first discoverer and occupant acquires no title to himself, but to the nation to which he belongs or under
whose flag he sails. All private property in land is derived from the sovereign of the country, either directly or remotely. Among the aboriginal inhabitants of North America there was no private property in land; but the territory or hunting grounds belonged to the tribe, who alone had the power to dispose of them. In the confederacy of the Six Nations, this power was vested in the general council-fire, so that the separate tribes had no right to sell or transfer. Something like this is discoverable in the earliest accounts we have of the laws of the savage inhabitants of ancient Europe. Property in land was first in the nation or tribe, and the right of the individual occupant was merely usufructuary and temporary. 2 Kent Com. 320." (Sharswood.)
In all these discussions it seems to be taken for
granted that the right of possession of external things is identical with the right of property; and that if the former is natural, the latter must be so also. But Blackstone has seen more clearly that property as now recognized by law contains an element not found in primitive law. See Professor Christian's criticism on his view of the law of succession in the following note (5), on page 33.
The growth of the conception of individual ownership in land among our own ancestors is not difficult to trace, and the principal stages of it can be distinctly marked, although much remains to be investigated in regard to details. It is safe to say that among the Germanic tribes described by Cæsar and Tacitus there was no abstract right of property in land such as we now possess. The territory controlled by the whole tribe or community was common property, so far as property could be predicated of it in any sense. Its enjoyment was parceled out among the families or members of the tribe from time to time, with a constant tendency to more definite and permanent several possession.
This possession was recognized as a legal right under the title of gewere-the seisin of later times. This may be defined as the right to repel by force every attack on the objects in possession, guaranteed by the approval of the community, and if needful, by their joint force. It would, of course, be exercised by the family under the direction of their head, or pater familias, and thus gave rise to the conception of family ownership. It embraced the land in possession of each family with the persons and chattels found thereon. But as possession can never be altogether physical, there would be a natural extension of the gewere to that which had once been in possession and never formally abandoned, or abandoned only with the intent of resuming. Hence the conception of an ideal possession. We find this extension going on throughout the Anglo-Saxon period of our law. But it may be doubted whether the abstract idea of property as distinct from and opposed to possession was ever formed in our law down to the time when the whole doctrine of the title to land was modified by feudal and Roman notions.
It has been a fruitful theme of controversy how these changes were to be accounted for or expressed in the form of a principle; what new element has been added to possession, actual or ideal, to form our present notion of property (right over things external whether possessed or not) unknown to the early Germanic law. The principal theories by which these phenomena have been accounted for may be stated thus: (1) That rights in rem were unknown to the early Germanic law and only personal rights recognized; (2) that a peculiar kind of property right, known as the gewere or seisin, was then the only form of right to external things recognized, the distinction of possession and property being as yet unknown, and both confounded under the one term; (3) that possession was the only right to things recognized, and that the notion of property was
yet unformed. (4) There remains possibly still a fourth hypothesis: that the only rights known to early English law, or to Germanic law generally, were rights to outward objects, possessory only, and that it was the later recognition of rights in personam, borrowed from the Roman law, directly or indirectly, that formed the new element of proprietary rights. Less obvious than either of the others, this seems to explain the historical facts more completely than any of them.
Blackstone has discussed none of these questions. They lay outside of his task, for they were no part of the existing law when he wrote. The distinction of rights in rem and in personam he has studiously ignored, no doubt because he thought it not acknowledged by English law, which was indeed the common opinion of English lawyers in the eighteenth century, and until Mr. Austin, fresh from the German schools, introduced it again. (Lectures on Jurisprudence, I. 46–59, et seq.; App. Table II.) Gewere is a term unknown to the Anglo-Saxon law though familiar to the kindred systems on the continent; and in the French and English form of seisin it had become appropriated to real property only, and its connection with property in general thus disguised. How completely the connection with chattels had been forgotten is shown by Mr. Maitland's rediscovery of its use in that sense in his articles on the Mystery of Seisin, 2 L. Q. R. 481, October, 1886, and Seisin of Chattels, July, 1885. But it is worth noticing that in Blackstone's analysis of a "complete title" (book 2, ch. 13, pp. 195–199) he has severed the right of property entirely from the right of possession, in a manner which the English law of his own time could never have suggested (as above mentioned), while in his two elements of "possession" and "right of possession " he has exactly accounted for all the phenomena that are found in the Anglo-Saxon law as distinct from that after the conquest. He has not indeed expressed the distinction
between the two rights in an exhaustive way, for he has taken no notice of the effect of contract between the parties in modifying either. But there is at least some reason to think that he saw correctly the nature of the change made at, or about, the conquest, even if he could not explain the reasons for it or the causes that produced it historically.
(5) There is no foundation in natural law the son should have a right to exclude his fellow-creatures from a spot of ground because his father had done so before him, page 2.
Professor Christian, believing that property in its full sense, independent of possession, is a natural right, of course differs with the author here.
"I cannot agree with the learned commentator that the permanent right of property vested in the ancestor himself (that is, for his life) is not a natural, but merely a civil, right. [Quoting Blackstone's words on page 11 of text.]
"I have endeavored to show (note 1) that the notion of property is universal, and is suggested to the mind of man by reason and nature, prior to all positive institutions and civilized refinements. If the laws of the land were suspended, we should be under the same moral and natural obligation to refrain from invading each other's property as from attacking and assaulting each other's persons. I am obliged, also, to differ from the learned judge, and all writers upon general law, who maintain that children have no better claim by nature to succeed to the property of their deceased parents than strangers, and that the preference given to them originates solely in political establishments. I know no other criterion by which we can determine any rule or obligation to be founded in nature than its universality, and by inquiring whether it is not, and has not been, in all countries and ages, agreeable to the