Sivut kuvina

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, 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 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 uni

[ *5 ]

versally 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 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. Whatsoever then he removes out of the state nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property." Mr. Christian criticises this argument, and says, "it seems to be a petitio principii; for, mixing labour with a thing, can signify only to make an alteration in its shape or form; and if I had a right to the substance 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, se

parated 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, wherever 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,


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). 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 (c)." And Isaac, *about ninety years afterwards, reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjoy it in peace (ƒ).

All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake

(e) Gen. xxi. 30.

(ƒ) Gen. xxvi. 15, 18, &c.

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Land remained

longest in com


therefore, to find Mr. Christian accusing Locke of begging the question, by asserting 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 occu-
pancy gives such title, when 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.

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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 unculti-
vated 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
Lot (h). When their joint substance became so great, that
pasture and other conveniences grew scarce, the natural con-
sequence was, that a strife arose between their servants; so
that it was no longer practicable to dwell together. This con-
tention 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.
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 acknowledg-
ed right in either, to occupy whatever ground he pleased,
that was not pre-occupied by other tribes (14). "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 chose him all the plain of Jordan, and
"journeyed east; and Abraham dwelt in the land of Ca-


*Upon the same principle was founded the right of mi(g) Colunt discreti et diversi; ut fons, ut campus, ut nemus, placuit. De mor. Ger. 16. (h) Gen. c. xiii.

(14) Who could dispute the right, potentially in the preoccupation of any if the land was neither actually nor one else?

gration, or sending colonies to find out new habitations, when the mother country was overcharged with inhabitants; which was practised as well by the Phoenicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seizing on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to christianity, deserved well to be considered by those who have rendered their names immortal by thus civilizing mankind.

sistence intro

ture, which es

duced agricultablished a permanent property in the soil,

As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants; and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and its spontaneous produce destroyed, without any provision for a future supply or succession. It The necessity of therefore became necessary to pursue some regular method providing subof providing a constant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connexion and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted (15). It was clear that the earth would not produce her fruits in sufficient quantities, without the assistance of tillage: but who would be at the pains of tilling it, if another might watch an opportunity to seize upon and enjoy the product of his industry, art, and labour? Had not therefore a separate property in lands, as well as moveables, been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey; which, according to some philosophers, is the genuine state

(15) See ante, note (2).

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