whatever principle the right to property is founded, the power of giving and transferring seems to follow as a natural consequence ;" and so far all his readers, probably, will be disposed to agree with him. But, what he proposes as an illustration of his doctrine, will be thought, perhaps, by some, rather to darken it. He proceeds thus: "if the hunter and the fisherman exchange the produce of their toils, no one ever disputed the validity of the contract, or the continuance of the original title. This (he says) does not seem to be aptly explained by occupancy, for it cannot be said that in such a case there is ever a vacancy of possession." Now, in the case put, the hunter and the fisherman respectively, by occupancy of the distinct articles which were the produce of their dissimilar toils, and which articles, before such occupancy, were in common to all mankind, had acquired separate titles to a property in those several articles; and the validity of an exchange between such proprietors, it would be unreasonable to question. But, it may be fairly questioned, whether there be not some verbal ambiguity at any rate, (and verbal ambiguities are dangerous in the discussion of title,) in saying that, after such exchange, the original title still had continuance; and whether it would not have been more proper to have said, that each of the parties to the exchange acquired thereby a new title to an exclusive property in the thing which he received in exchange; a new title founded, no doubt, as every derivative title must be, upon the original title, but still actually a new one. So, when a transfer of property takes place by any other means than by exchange, it seems at least equivocal to say, the original title has continuance. Every person, no doubt, who acquires

VOL. II.

property which previously belonged to another, if the acquisition was made without fraud or force, has vested in him all the claims which the former proprietor has transferred; but the first and every successive transferee holds by a new title granted to himself. Evidence of the validity of the title of a former proprietor may be necessary to support the title of a new purchaser, and in that doubtful sense the old title may be said to have, for that purpose, a continuance. It is painful to offer such verbal criticisms, to which the present writer is sensible no one is likely to be more open than himself; and perhaps, though he has found difficulty in understanding Mr. Christian's note above cited, (and particu larly the latter part of it,) others may find none. The following are the observations of another annotator upon this same passage of the text. "When political communities are once formed, it seems then superfluous to account for the due alienation of property, either by calling it a continuation of the former occupancy, or a dereliction of which the successor has the first notice, and takes immediate advantage. Without the help of this refinement, the effectual transfer and transmutation of property may well be referred to the force of civil institutions, ultimately founded on antecedent general principles of natural law." (Wooddeson's 19th Vin. Lect. p. 2.)

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(21) Where no kindred of a deceased person are to be found, there we see the possessions of a private man revert to the community, and so in politic societies come into the hands of the public magistrate; but, in the state of nature, become again perfectly common, no body having a right to inherit them, nor can any one have a property in them, otherwise than in other things common by nature." (Locke on Gov. book i. c. 9, parag. 90.)

The doctrine of escheats is adverted to more fully hereafter in the 5th and 15th chapters of this volume, and the notes thereto.

(22) Cicero, it will be recollected, says, "Omni in re, consensio omnium gentium lex naturæ putandum est;" and a philosopher of equal distinction in our own literature, thus discusses the doctrine stated in the text: "If any one had begun and made to himself a property in a particular thing, that thing, if he disposed not otherwise of it by his positive grant, descended naturally to his children, and they had a right to succeed to it, and possess it. If common consent had established this right, it would make but a positive, and not a natural right; but where the practice is universal, it is reasonable to think the cause is natural, The ground, then,

I think to be this: God planted in men a strong desire of propagating their kind, and continuing themselves in their posterity; and this gives children a title to share in the property of their parents, and a right to inherit their possessions. Men are not proprietors of what they have, merely for themselves; (see Vol. I. p. 447.) their children have a title to part of it, and have their kind of right (joined with their parents') in the possession, which comes to be wholly theirs, when death, having put an end to the parents' use of it, hath taken them from their possessions; and this we call inheritance: men being by a like obligation bound to preserve what they have begotten, as to preserve themselves, their issue come to have a right in the goods they are possessed of. That children have such a right is plain from the laws of God. For, children being by the course of nature born weak, and unable to provide for themselves, they have, by the appointment of God himself, who hath thus ordered the course of nature, a right to be nourished and maintained by their parents; nay, a right not only to a bare subsistence, but to the comforts and conveniences of life, as far as the con ditions of their parents can afford it. Hence it comes that, when parents leave the world, and so the care due

It is certainly

to their children ceases, yet its effects are to extend as far as possible, and the provisions the parents have made in their life-time, are understood to be intended, as nature requires they should, for their children, whom, after themselves, they are bound to provide for though the parents, by express words, declare nothing about them, nature appoints the descent of their property to their children, who thus come to have a title and natural right of inheritance to their father's goods, which the rest of mankind cannot pretend to." (Locke on Gov. book i. c. 9, parag. 87, 88, 89.) "The right a son has to be maintained and provided with the necessaries and conveniences of life out of his father's stock, gives him a right to succeed to his father's property for his own good." (Ibid. parag. 94.) "I think it clear, that a right to the use of the creatures was founded originally in the right a man has to subsist and enjoy the conveniences of life, and that the natural right children have to inherit the goods of their parents, is founded in the right they have to the same subsistence and commodities of life out of the stock of their parents, who are taught by natural law and tenderness to provide for them, as a part of themselves." (Ibid. parag. 97.)

Locke, then, appears to have viewed this question, as to a child's right of inheritance, in a totally different light from our author. Mr. Christian, though holding opinions on the subject similar to those of Locke, probably had forgotten him, at the moment when he said, (in his note on this pas"all writers upon sage of the text,) general law maintain, that children have no better claim by nature to succeed to the property of their deceased parents than strangers."

Mr. Roberts, in his Treat. on Wills,

Vol. I. p. 3, observes, "The succession to the heirs of the body, and in the case of the defect of such representatives, to the next in proximity of blood, if not a law of nature, seems so to correspond with its dictates, that history hardly carries us back to a time when the notion and admission of this claim did not prevail among mankind. The suggestions of a common feeling appear, therefore, to have made this a universal rule of transmission, and to have established it in communities widely separated by time and place. Thus, the representation in the channel of blood and proximity seems to have had its foundation higher than any positive institutions, though to positive institutions we must of course refer the modifications of this rule of succession." And see, to a similar purport, the 3rd of Lord Kaimes's Law Tracts, p. 109.

Paley seems to have held a middle course; not denying that the claim of lineal descendants, to inherit their ancestor's property, may have some foundation in the law of nature; but not appearing to think it a claim entitled to very great consideration. In the 23d chap. of the 3d book of his Mor. and Polit. Phil. he says, "Succession to intestates must be regulated by positive rules of law, there being no principle of natural justice whereby to ascertain the proportion of the different claimants; not to mention that the claim itself, especially of collateral kindred, seems to have little foundation in the law of nature."

Observe, he does not venture to deny that the claim may have some natural foundation, even in the case of collaterals, and he plainly intimates that it has more in the case of lineal descendants. On the whole, therefore, Paley's opinion can by no means be cited as in perfect accordance with