things in com kind. airy metaphysical notions may have been started by fanciful writers upon this subject (8). The earth, therefore, and all Who gave all things therein, are the general property of all mankind, ex- mon to manclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required (9). These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them, had it been possible for mankind to have remained in a state of primeval simplicity: 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 first Europeans themselves (10), if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein "erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium natural inclination he had to preserve his being, he followed the will of his maker, and therefore had a right to make use of those creatures, which by his reason or senses he could discover would be serviceable thereunto. And thus man's property in the creatures was founded upon the right he had to make use of those things that were necessary or useful to his being." And, in parag. 92, he adds, "Property, whose original is from the right a man has to use any of the inferior creatures for the subsistence and comfort of his life, is for the benefit and sole advantage of the proprietor; so that he may even destroy the thing that he has property in, when need requires." Puffendorf holds similar doctrines, in the 3rd chapter of his fourth book; as does Heineccius in the 12th chapter of his first book. (8) That the will of the Almighty is the ultimate source of all dominion, seems an identical proposition; and, (atheism or paganism apart,) that all power must be finally referred to the permission of God, appears to be a truism admitting no argument. c. 4. (9) The reason and foundation of Adam's property, gave the same title on the same ground to all his children: every man had a right (i. e. a rule implied in consistency with the will of God, see the note to Vol. I. p. 122, and the last preceding note but one,) to the use of the inferior creatures, by the same title Adam had; namely, by the right every one had to take care of and provide for his own subsistence : and thus men had a right in common. (10) See ante, note (2). Communion of goods in the earliest ages confined to the thing, never extended to the use. esset (b)." Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to ought substance of the but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer (c): or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. 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 spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him [ *4] by force: but the instant that he quitted* the use or occupation of it, another might seize it, without injustice (11). Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated 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 (d). But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious and agreeable; as, habitations for shelter and safety, (b) Justin. 1. 43, c. 1. (11.) But, our author, by and bye, commune sit, recte tamen dici potest, ejus esse eum locum quem quisque occuparit. De Fin. 1. 3, c. 20. the permanent property in the substance of the earth itself." And see ante, note (2). * and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession ;-if, as soon 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 case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else 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 nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man's house and homestall; which seem to have been originally mere temporary * huts or moveable [ 5 ] cabins, suited to the design of Providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that moveables of every kind became sooner appropriated than the permanent substantial soil: partly because they were more susceptible of a long occupancy, which might be continued for months together without any sensible 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 subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein (12). (12) Mr. Christian commenced his annotations upon this volume of our author's Commentaries, by denying that labour, which Blackstone thought was universally allowed to give the fairest and most reasonable title to an 66 exclusive property " in that upon which the labour had been bestowed, does give any such title. Mr. Christian quotes the following passage from Locke, who says, "that the labour of a man's body, and the work of his hands, we may say, are properly his. The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments, incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature; and to establish a permanent property in their flocks and herds in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point (13). stance before any labour was bestowed upon it, that right still adheres to all that remains of the substance, whatever changes it may have undergone; if the right to it before belonged to another, it is clear that I have none after; and we have not advanced a single step by this demonstration." Locke would, indeed, have deserved censure for a graver fault than a paralogism, had he stated, that labour gives a title to exclusive property in any subject whatever, upon which that labour is employed; without restricting the generality of the dictum, by giving us to understand, that he only meant it to apply to subjects which no other person had, by previous occupancy, separated for his own private use from the common stores of nature. This title by occupancy, Mr. Christian says, "is agreeable to the reason and sentiments of mankind, prior to all civil establishments." But, occupancy alone cannot give a better title to property, than occupancy followed by the bestowal of labour upon the thing occupied; if, therefore, Locke has cautiously made it a term of his proposition, that the subject in which an exclusive property may be acquired by labour, must be one which before lay in common to all men, Mr. Christian's criticism must fall to the ground. And in the very chapter from which Mr. Christian quotes, Locke has expressly so qualified his doctrine. He says, (in Treat. on Gov. book 2, c. 5, parag. 27,)" by removing a thing from the common state nature hath placed it in, this labour annexes something to it, which excludes the right of other men ...... at least where there is enough and as good left for others." Again, he repeats, (in parag. 45,) "Labour, in the beginning, gave a right of property, whereever any one was pleased to employ it upon what was common." And afterwards, (in parag. 51,) he adds, "I think it very easy to conceive, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded that title.... Right and conveniency went together; for, as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of." It is amusing, therefore, to find Mr. Christian accusing Locke of begging the question, byasserting that occupancy of what previously lay in common, and labour bestowed on the thing so occupied, gives a title to property therein; when the critic himself thinks, that mere occupancy gives such title, whenever any thing is separated for private use from the common stores of nature. See, on this subject, Heineccius, book i. c. 9. (13) See ante, note (2). And therefore the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, “because he had digged that well (e)." And Isaac, about ninety years afterwards,* reclaimed this his father's property; and, [ *6] after much contention with the Philistines, was suffered to enjoy it in peace (ƒ). longest in com All this while the soil and pasture of the earth remained Land remained still in common as before, and open to every occupant : ex- mon. cept perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seize upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the east; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages; and which, Tacitus informs us, continued among the Germans till the decline of the Roman Empire (g). We have also a striking example of the same kind in the history of Abraham and his nephew Lat (h). When their joint substance became so great, that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose: "Let there be no strife, "I pray thee, between thee and me. Is not the whole "land before thee? Separate thyself, I pray thee, from me. (e) Gen. xxi. 30. (f) Gen. xxvi. 15, 18, &c. (g) Colunt discreti et diversi; ut fons, ut campus, ut nemus, placuit. (h) Gen. xiii. |