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authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former
after the institution of many other species of property. There are no traces of property in land in Cæsar's account of Britain; little of it in the history of the Jewish Patriarchs; none of it found amongst the (aboriginal) nations of North America. The Scythians are expressly said to have appropriated their cattle and houses, but to have left their land in common. (See further instances of the same kind noticed by Turnbull in his comment upon Heineccius, book 1, c. 9, s. 237). In his fourth chapter of the same book, Paley observes, "there is a difficulty in explaining the origin of property in land, consistently with the law of nature; for the land was once, no doubt, common; and the question is, how any particular part of it could justly be taken out of the common, and so appropriated to the first owner, as to give him a better right to it than others; and, what is more, to exclude all others from it."
He proceeds to say, that, even "if any of the different accounts given of this matter by moralists were perfectly unexceptionable, they would none of them avail us in vindicating our present claims of property in land, unless it were more probable than it is, that our estates were actually acquired, at first, in some of the ways which those accounts suppose; and that a regular regard had been paid to justice, in every successive transmission of them since: for, if one link in the chain fail, every title posterior to it falls to the ground. The real foundation of our right (he asserts) is the law of the land."
ed might, if they stood alone and unexplained, lead to a conclusion that Paley admitted no ulterior foundation of the rules of property in land, beyond the municipal regulations of particular governments; but, all ambiguity is removed by the unequivocal explanation which he immediately subjoins, as follows:-" It is the intention of God, that the produce of the earth be applied to the use of man: this intention cannot be fulfilled without establishing property: it is consistent therefore with his will, that property be established. The land cannot be divided into separate property, without leaving it to the law of the country to regulate that division: it is consistent therefore with the same will, that the law should regulate the division; and consequently consistent with the will of God, or right, that I should possess that share which those regulations assign me. By whatever circuitous train of reasoning you attempt to derive this right, it must terminate at last in the will of God, the straightest, therefore, and shortest way of arriving at this will is the best."
No one familiar with Paley's mode of reasoning will suspect him, in any instance, of laying himself open to the sarcastic observation of a shrewd controversialist, to the following purport: namely, that short cuts to final causes save philosophers a world of trouble, but do not remove the intermediate obstacles out of the way of their disciples. Paley was not less aware than Bacon was before him, that, upon abstruse questions, involving the consider
The terms of the sentence last quotation of original principles, no conclusion
proprietor, by descent from our ancestors, or by the last will and testament 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 set of words upon parchment should convey the dominion of land (3); why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him (4): or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him (5). These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as matter of practice, but also as a rational science, it cannot be improper or useless
can be made safe, unless by the aid of a chain of inductive reasoning, connecting, by firmly united links, known effects with their proximate causes, and these again with their ultimate cause; and that, without demonstration of the necessary connexion of the whole series, "investigatio causarum sterilis est." But, it is one thing to take the straight est and shortest way of arriving at a goal, by leaping over interposing obstacles, leaving them still to interrupt all followers; and another, and very different thing, to clear away all impediments, which might prevent others from finding the shortest road the most safe and practicable. The latter is the method which Locke, Paley, and other writers of their stamp, have successfully pursued; and by which they have traced all rights of property, from their proximate declaration by muni
cipal regulations, to their original foundation, the divine will. (See post, note (19).)
(3) Few persons, probably, do imagine that there is any "foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land:" most persons, it is believed, look upon all parchment instruments and deeds of conveyance, merely in the light in which our author, a few pages hence, intimates that they ought to be considered; that is to say, as evidences of certain facts, establishing a legal title. If they care to reflect" upon those facts, the right which the municipal law gives may generally, by going deep enough, be traced to some "foundation in natural law."
(4) See post, note (21).
Founded in the will of the Cre
to examine more deeply the rudiments and grounds of these positive constitutions of society (6).
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 fish of the sea, and over the "fowl of the air, and over every living thing that moveth "*upon the earth (a)." This is the only true and solid foundation of man's dominion over external things (7), whatever airy metaphysical notions may have been started by (a) Gen. i. 28.
(6) It is not merely in a scientific point of view, that the consideration recommended in the text is useful. All legal obligations are likely to be held more sacred, and to obtain more willing obedience, if the principles upon which they rest are clearly understood, and they are known to derive their au thority not solely from positive institutions, but are seen to be founded on a basis of natural justice.
(7) "God," says the Psalmist, "has given the earth to the children of men." Psalm, cxv. 16. Locke, (in his Treat. on Gov. book i. c. 9, parag. 86) states the case thus: "God having made man, and planted in him, as in all other animals, a strong desire of self preservation, and furnished the world with things fit for food and raiment, and other necessaries of life:-God, I say, having made man and the world thus, spoke to him, that is, directed him by his senses and reason, as he did the inferior animals by their instinct. ..... And therefore I doubt not but before the words in Genesis i. 28, 29, were pronounced, (if they must be understood literally to have been spoken,) and without any such verbal donation,
man had a right to an use of the creatures, by the will and grant of God: for the desire, strong desire, of preserving his life and being, having been planted in him as a principle of action by God himself, reason which was the voice of God in him,' could not but teach him and assure him, that by pursuing the 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.
fanciful writers upon this subject (8). The earth, therefore, Who gave all and all things therein, are the general property of all man- mon to manthings in comkind, exclusive of other beings, from the immediate gift of kind. 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 esset (b)." Not that this communion of goods seems ever Communion of
(b) Justin. l. 43, c. 1.
goods in the
ty and divinity, are merely metaphy-
(8) That the will of the Almighty ral reasoning, all politics, law, moraliis 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. We know not, however, to what "fanciful writers" Blackstone meant to allude: possibly to some whose "airy" dreams have not come down to us, and whose fancies would not be worth recovering. It is not to be supposed, that our author meant to throw a slur upon metaphysical reasoners indiscriminately: he could not be ignorant, that "all gene
(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 ante, notes (1) and (7),) 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).
earliest ages confined to the substance of the
tended to the
to have been applicable, even in the earliest ages, to ought but the substance of the thing; nor could it be extended to thing, never ex- 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 necessity caused not only the use but the
substance also to be appropriated to individuals.
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
(c) Barbeyr. Puff. l. 4, c. 4.
(d) Quemadmodum theatrum, cum commune sit, recte tamen dici potest,
ejus esse eum locum quem quisque occuparit. De Fin. 1. 3, c. 20.
(11) But, our author, by and bye, tells us, "it is agreed upon all hands, that occupancy gave the original right, not only to the temporary use, but to
the permanent property in the substance of the earth itself." And see ante, note (2).