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are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect
" bodily labour, bestowed upon any sub- right," it might be captious to discuss, ject which before lay in common to all did not that passage in the text, which men, is universally allowed to give the gives occasion to this note, seem to infairest and most reasonable title to an vite the inquiry. Occupancy, in a state exclusive property therein." Subse- of established society, is, no doubt, goquently he tells us, "agriculture, by verned by civil or municipal laws; but, a regular connexion and consequence, the claim to permanent property, by introduced and established the idea of reason of the first occupancy thereof, a more permanent property in the soil, appears to have been derived, originalthan had hitherto been received and ly, from natural right. Our author adopted. Had not a separate property himself says, that, “in the case of hain lands, as well as moveables, been bitations in particular, it was natural vested in some individuals, the world to observe, that even the brute creation, must have continued a forest, and men to whom every thing else was in comhave been mere animals of prey." He mon, maintained a kind of permanent then repeats, that, “ necessity begat property in their dwellings; that the property," and adds, that, " although birds of the air had nests, and the beasts the writers on natural law have arrived of the field had caverns, the invasion of at the same result by various courses, which they esteemed a very flagrant still, it is agreed upon all hands, that injustice, and would sacrifice their lives occupancy gave the original right to the to preserve them.” Necessity is not a permanent property in the substance of bad argument to support an inference the earth itself, which excludes every of natural right. But our author, as one else but the owner from the use of we have seen, agrees with Heineccius, it.” Further on, he tells us, "the per- (who follows all other writers on natumanent right of property is no natural, ral law, and in the 9th chapter of his but merely a civil, right:” and, shortly first book informs us), that absolute afterwards, he says, "rights of inheri- private property was introduced, and tance and successions are all of them negative community of things abolished, creatures of the civil or municipal laws;" by necessity itself. Heineccius also and, adverting to the power of the laws maintains the right of any one to apin regulating the succession to property, propriate to himself whatever previously he intimates, "how futile every claim belonged to no other person; and his must be, that has not its foundation in commentator adds, that thing ceases the positive rules of the state."
to be no one's, which I, by personal Whether there be, or not, any dis. occupancy, have manifested an intencrepancy between the assertions, that tion of applying to my own uses, in the
occupancy gave the original right to exercise of the right granted to me by permanent property," and the declara. God; and he certainly injures me who tion, that "the permanent right of pro- interferes with my possession. No one perty is no natural, but merely a civil, disputes, what Locke has laid down, (in in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or
his Treat. on Gov. book 2, cap. 5, parag. minion was given, if no one were al50,) that, "in governments, the laws lowed to appropriate to his own use cerregulate the right of property, and the tain productions, whether entirely napossession of land is determined by tural or partly made by art or obtained positive constitutions;" but the same by labour; in all such cases, the right of authority tells us (in chap. 11, sect. 135), sole property may be fairly understood “ The obligations of nature cease not in to be implied in the general declaration society, but only in many cases are of the divine will. drawn closer, and have by human laws Rights of property, then, may be reknown penalties annexed to them, to ferred, ultimately, to a divine origin, enforce their observation. Thus, the and finally traced back to the only true law of nature stands as an eternal rule source of all dominion; but these rights to all men, legislators as well as others. have been differently modified in difThe rules that they make for other ferent stages of society, and have been men's actions must be conformable to called into operation with reference to the law of nature; i. e. to the will of different objects at several times, as ocGod, of which that law is a declara- casion required. tion."
“ The first objects of property,” (says It follows then, if, in conformity to Paley, Mor, and Pol. Phil. book 3, cap. the law of nature declaratory of the 3, following in the main, but with some will of God, occupancy really was, as qualifications, the doctrine of Locke, who Blackstone informs us all authorities had himself been preceded in the same agree it was, the first foundation of the safe track by earlier investigators), right (or rule) of property; notwith- " the first objects of property were the standing that original right may have fruits which a man gathered, and the been qualified by municipal regulations, wild animals which he caught; next to it is not “ merely a civil right." these, the tents or houses which he
Still, it is clear, rights of property built, the tools he made use of to catch were not promulgated, with respect to or prepare food; and afterwards weaall “the external things of the world," pons of war and offence. Many of the at one and the same time. The gene- savage nations of North America have ral dominion of man over the whole, advanced no farther than this yet. no doubt, has its original and founda- Flocks and herds of tame animals soon tion solely in the declared, or reason- became property. As the world was ably inferred, will of God; and, " of the peopled in the East, where there exthings which God has provided for the isted a great scarcity of water, wells use of all, he has of consequence, so probably were next made property. long as they remain in common, given Land, which is now so important a part each man leave to take what he wants;” of property, and which alone our laws and further, whenever it would defeat call real property, was probably not the purposes for which the general do- made property in any country, till long
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 spe- ed might, if they stood alone and uncies of property. There are no traces explained, lead to a conclusion that of property in land in Cæsar's account Paley admitted no ulterior foundation of Britain; little of it in the history of of the rules of property in land, beyond the Jewish Patriarchs; none of it the municipal regulations of particular found amongst the (aboriginal) nations governments; but, all ambiguity is reof North America. The Scythians are moved by the unequivocal explanation expressly said to have appropriated wbich he immediately subjoins, as foltheir cattle and houses, but to have left lows:-“ It is the intention of God, their land in common. (See further that the produce of the earth be applied instances of the same kind noticed by to the use of man: this intention canTurnbull in his comment upon Hein- not be fulfilled without establishing proeccius, book 1, c. 9, s. 237). In his perty: it is consistent therefore with his fourth chapter of the same book, Paley will, that property be established. The observes, “ there is a difficulty in ex- land cannot be divided into separate plaining the origin of property in land, property, without leaving it to the law consistently with the law of nature; for of the country to regulate that division: the land was once, no doubt, common; it is consistent therefore with the same and the question is, how any particular will, that the law should regulate the part of it could justly be taken out of division; and consequently consistent the common, and so appropriated to with the will of God, or right, that I the first owner, as to give him a better should possess that share which those right to it than others; and, what is regulations assign me. By whatever more, to exclude all others from it." circuitous train of reasoning you attempt
He proceeds to say, that, even “if to derive this right, it must terminate any of the different accounts given of at last in the will of God, the straightest, this matter by moralists were perfectly therefore, and shortest way of arriving unexceptionable, they would none of at this will is the best." them avail us in vindicating our pre- No one familiar with Paley's mode sent claims of property in land, unless of reasoning will suspect him, in any it were more probable than it is, that instance, of laying himself open to the our estates were actually acquired, at sarcastic observation of a shrewd confirst, in some of the ways which those troversialist, to the following purport: accounts suppose; and that a regular namely, that short cuts to final causes regard had been paid to justice, in eve- save philosophers a world of trouble, ry successive transmission of them but do not remove the intermediate since: for, if one link in the chain fail, obstacles out of the way of their disci. every title posterior to it falls to the ples. Paley was not less aware than ground. The real foundation of our right Bacon was before him, that, upon ab(he asserts) is the law of the land.” struse questions, involving the consider
The terms of the sentence last quote ation 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 cipal regulations, to their original founa chain of inductive reasoning, con- dation, the divine will. (See post, note necting, by firmly united links, known (19).) effects with their proximate causes, and (3) Few persons, probably, do imathese again with their ultimate cause; gine that there is any foundation in and that, without demonstration of the nature or in natural law, why a set of necessary connexion of the whole se- words upon parchment should convey ries, " investigatio causarum sterilis est.” the dominion of land;" most persons, But, it is one thing to take the straight. it is believed, look upon all parchment est and shortest way of arriving at a instruments and deeds of conveyance, goal, by leaping over interposing ob- merely in the light in which our austacles, leaving them still to interrupt thor, a few pages hence, intimates that all followers; and another, and very they ought to be considered; that is to different thing, to clear away all impe- say, as evidences of certain facts, esdiments, which might prevent others tablishing a legal title. If they from finding the shortest road the to reflect" upon those facts, the right most safe and practicable. The latter which the municipal law gives may is the method which Locke, Paley, and generally, by going deep enough, be other writers of their stamp, have suc- traced to some “ foundation in natural cessfully pursued; and by which they law.” have traced all rights of property, from (4) See post, note (21). their proximate declaration by muni- (5) See post, note (21).
Founded in the will of the Creator.
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 man had a right to an use of the creatures, point of view, that the consideration by the will and grant of God: for the derecommended in the text is useful. All sire, strong desire, of preserving his life legal obligations are likely to be held and being, having been planted in him as more sacred, and to obtain more will- a principle of action by God himself, reaing obedience, if the principles upon son which was the voice of God in which they rest are clearly understood, him,' could not but teach him and asand they are known to derive their au- sure him, that by pursuing the natural thority not solely from positive institu- inclination he had to preserve his betions, but are seen to be founded on a ing, he followed the will of his maker, basis of natural justice.
and therefore had a right to make use (7) “God," says the Psalmist, “has of those creatures, which by his reason given the earth to the children of men." or senses he could discover would be Psalm, cxv. 16. Locke, (in his Treat serviceable thereunto. And thus man's on Gov. book i. c. 9, parag. 86) states property in the creatures was founded the case thus: “God having made man, upon the right he had to make use of and planted in him, as in all other ani- those things that were necessary or mals, a strong desire of self preserva. useful to his being." And, in parag. 92, tion, and furnished the world with he adds, “ Property, whose original is things fit for food and raiment, and from the right a man has to use any of other necessaries of life:-God, I say, the inferior creatures for the subsisthaving made man and the world thus, ence and comfort of his life, is for the spoke to him,—that is, directed him benefit and sole advantage of the proby his senses and reason, as he did prietor; so that he may even destroy the inferior animals by their instinct. the thing that he has property in, when ..... And therefore I doubt not but need requires." Puffendorf holds sibefore the words in Genesis i. 28, 29, milar doctrines, in the 3rd chapter of were pronounced, (if they must be un- his fourth book; as does Heineccius in derstood literally to have been spoken,) the 12th chapter of his first book. and without any such verbal donation,