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Civil society necessary for the

protection of property.

of nature. Whereas now (so graciously has Providence interwoven our duty and our happiness together,) the result of this very necessity has been the ennobling of the human species, by giving it opportunities of improving its rational faculties, as well as of exerting its natural. Necessity begat property; and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants: states, government, laws, punishments, and the public exercise of religious duties (16).

(16) "When the increase of people and stock, with the use of money, had made land scarce, (and so of some value,) the several communities settled the bounds of their distinct territories, and, by laws within themselves, regulated the properties of the private men of that society, and so, by compact and agreement, settled the property which labour and industry began." (Locke on Gov. book 2, c. 5, parag. 45.) “Every man, by consenting with others to make one body politic under one government, put himself under an obligation to every one of that society, to submit to the determination of the majority, and to be concluded by it: or else this original compact, whereby he with others incorporates into one society, would signify nothing, if he were no further tied by any decrees of the society, than he himself thought fit, and did actually consent to." (Ibid. c. 8, parag. 97.) "Whosoever therefore, out of a state of nature, unite into a community, must be understood to give up all the power necessary to the ends for which they unite into society, to the majority of the community." (parag. 99.) "The great and chief end of men's uniting into commonwealths, and putting themselves under governments, is the preservation of their property." (cap. 9,

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parag. 124.) "Mankind, notwithstanding all the privileges of a state of nature, being but in an ill condition while they remain in it, are quickly driven into society. The inconveniences that they are exposed to in a state of nature, by the irregular and uncertain exercise of the power every man has of punishing the transgressions of others, make them take sanctuary under the established laws of government, and therein seek the preservation of their property: ..... and in this we have the original rise of both the legislative and execu tive power." (parag. 127.) The power which, in a state of nature, every man has of doing whatever he thinks fit for the preservation of himself and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself and the rest of that society shall require; which laws of society in many things confine the liberty he had by the law of nature." (parag. 129.) "For, being in a state wherein he is to enjoy so many conveniences from the labour, assistance, and society of others in the same community, as well as protection from its whole strength; he is to part, also, with as much of his natural liberty, as the good, prosperity and safety of the society shall require: which is

Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labour, for the necessary subsistence of all; and leisure was given to others to cultivate the human mind, to invent useful arts, and to lay the foundations of science.

The only question remaining is, how this property became actually vested: or what it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to every body, but particularly to nobody. And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself (17); which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind, that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding, that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy, alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. A dispute that savours too much of nice and scholastic refinement (18)! However,

not only necessary, but just." (parag. 130.) "The preservation of property being the end of government, men in society have such a right to the goods which by the law of the community are theirs, that no body hath a right to take their substance, or any part of it from them, but by their own consent; without this they have no property at all." (parag. 138.) "It is true, governments cannot be supported without great

charge, and it is fit every one who en-
joys his share of protection, should pay
out of his estate his proportion for the
maintenance of it. But still it must be
with his own consent, i. e. the consent
of the majority, given either by them-
selves, or the representatives chosen by
them." (parag. 140.)

(17) See ante, note (2).

(18) The best use, perhaps, which can be made of the two propositions, is

The right to the permanent pro

perty in, as well

as to the temposoil, became rary use of, the vested by occu


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Property thus acquired by the

first taker, remained in him till he shewed

an intention to

then once more became com


both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seising to his own continued *use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.

Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, abandon it, and till such time as he does some other act which shews an intention to abandon it; for then it becomes, naturally speaking, publici juris once more, and is liable to be again appropriated by the next occupant. So, if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seise it to his own use. But if he hides it privately in the earth or other secret place, and it is discovered, the finder acquires no property therein; for the owner hath not by this act declared any intention to abandon it, but rather the contrary: and if he loses or drops it by accident, it cannot be collected from thence, that he designed to quit the possession; and therefore in such a case the property still remains in the loser, who may claim it again of the finder. And, this we may remember, is the doctrine of the law of England, with relation to treasure trove (i).

But this method of one man's abandoning his property, and another seising the vacant possession, however well founded in theory, could not long subsist in fact. It was

(i) See vol. i. p. 295.

to shew that one may be resolved by
the other. The disputants, probably,
all meant the same thing, in substance;
and would unanimously have agreed as
to the source from which the right (or
rule) in question was to be finally de-
rived. Grotius and Puffendorf, there
can be little doubt, assumed the tacit

and implied assent of all mankind to be a consequence necessarily flowing from that principle of natural justice, which Barbeyrac, Titius and Locke (going back one step further), hold to be the foundation of the title acquired by occupancy.

calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another; who was ready to give in exchange for it some equivalent, that was equally desirable to the former proprietor. Thus Mutual convemutual convenience introduced commercial traffic, and the nience and the reciprocal transfer of property by sale, grant, or convey

interests of civil

society intro

duced and countenanced the

perty by sale, grant, or con

ance: which may be considered either as a continuance of the original possession which the first occupant had; or as transfer of proan abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new veyance. proprietor. The voluntary dereliction of the owner, and [10] delivering the possession to another individual, amount to a transfer of the property; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property: and Titius, being the only or first man acquainted with such my intention, immediately steps in and seises the vacant possession: thus the consent expressed by the conveyance gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides (19).

(19) Mr. Christian, in his note upon this passage, says, "Upon 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,

And also by testamentary disposition:

The most universal and effectual way of abandoning property, is by the death of the occupant: when, both the

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were in common to all mankind, had acquired separate titles to a property in those several articles; and the va lidity 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 deri. vative 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 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

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difficulty in understanding Mr. Christian's note above cited, (and particularly 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).

The only objection which at present occurs to this short way of putting the case, is, that, when investigating principles of justice, it is not always sufficient to state merely the immediate and the final reason upon which they rest; because, as Heineccius and his commentator Turnbull observe, (bock i. c. 4, s. 108), "some precepts of the law of nature flow immediately from clear principles of reason, others are derived from principles of reason by many intermediate steps, and are more difficultly understood." (See ante, note (2), ad finem). It would be unfair, however, to Mr. Wooddeson, not to add, that although he does not fully develope the connexion and harmony between municipal laws, regulating rights of property, and the laws of natural justice, he intimates, intelligibly enough, the accordance of his

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