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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 man
things 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 (6).” Not that this communion of goods seems ever Communion of
goods in the (6) Justin. l. 43, c. 1.
(8) That the will of the Almighty ral reasoning, all politics, law, moraliis the ultimate source of all dominion, ty and divinity, are merely metaphyseems an identical proposition; and, sic.” Div. of Purl. ii. c. 4. (atheism or paganism apart,) that all (9) The reason and foundation of power must be finally referred to the Adam's property, gave the same title permission of God, appears to be a tru. on the same ground to all his children: ism admitting no argument. We know every man had a right (i. e. a rule imnot, however, to what “ fanciful writ- plied in consistency with the will of ers” Blackstone meant to allude: pos- God, see ante, notes (1) and (7),) to the sibly to some whose“ airy” dreams have use of the inferior creatures, by the not come down to us, and whose fancies same title Adam had; namely, by the would not be worth recovering. It is right every one had to take care of and not to be supposed, that our author provide for his own subsistence: and meant to throw a slur upon metaphy- thus men had a right in common. sical reasoners indiscriminately: he (10) See ante, note (2). could not be ignorant, that “all gene
to have been applicable, even in the earliest ages, to ought confined to the
but the substance of the thing; nor could it be extended to substance of the thing, never ex- the use of it. For, by the law of nature and reason, he, tended to the
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 sliade, or the like, acquired for the time a sort of ownership, from which it would have been un
just, and contrary to the law of nature, to have driven him [*4] 4 by force: but the instant that he *quitted the use or occupa
tion 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 But when mankind increased in number, craft, and amcaused not only the use but the bition, it became necessary to entertain conceptions of more substance also
permanent dominion; and to appropriate to individuals not to be appropriated to indivi- the immediate use only, but the very substance of the thing duals.
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.
ejus esse eum locum quem quisque occu(d) Quemadmodum theatrum, cum parit. De Fin. I. 3, c. 20. commune sit, recte tamen dici potest,
(11) But, our author, by and bye, the permanent property in the sub
“it is agreed upon all hands, stance of the earth itself." And see that occupancy gave the original right, ante, note (2). not only to the temporary use,
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 parated for his own private use from annotations upon this volume of our the common stores of nature. This author's commentaries, by denying title by occupancy, Mr. Christian says, that labour, which Blackstone thought “is agreeable to the reason and sentiwas " universally allowed to give the ments of mankind, prior to all civil fairest and most reasonable title to an establishments." But, occupancy alone exclusive property” in that upon which cannot give a better title to property, the labour had been bestowed, does give than occupancy followed by the beany such title. Mr. Christian quotes stowal of labour upon the thing occuthe following passage from Locke, pied: if, therefore, Locke has cautiouswho says, “that the labour of a man's ly made it a term of his proposition, body, and the work of his hands, we that the subject in which an exclusive may say, are properly his. Whatsoever property may be acquired by labour, then he removes out of the state na- must be one which before lay in comture hath provided and left it in, he mon to all men, Mr. Christian's crihath mixed his labour with, and joined ticism must fall to the ground. And to it something that is his own, and in the very chapter from which Mr. thereby makes it his property." Mr. Christian quotes, Locke has expressly Christian criticises this argument, and so qualified his doctrine. He says, (in says, “it seems to be a petitio princi- Treat. on Gov. book 2, c. 5, parag. 27) pii; for, mixing labour with a thing, “by removing a thing from the comcan signify only to make an alteration mon state nature hath placed it in, this in its shape or form; and if I had a labour annexes something to it, which right to the substance before any labour excludes the right of other men, was bestowed upon it, that right still at least where there is enough and as adheres to all that remains of the sub- good left for others.” Again, he restance, whatever changes it may have peats, (in parag. 45,) " Labour, in the beundergone; if the right to it before ginning, gave a right of property, wherbelonged to another, it is clear that I ever any one was pleased to employ it have none after; and we have not ad- upon what was common.” And aftervanced a single step by this demonstra- wards, (in parag. 51) he adds, “I think tion." Locke would, indeed, have de- it very easy to conceive, how labour served censure for a graver fault than could at first begin a title of property a paralogism, had he stated, that labour in the common things of nature, and gives a title to exclusive property in how the spending it upon our uses any subject whatever, upon which that bounded that title. .... Right and labour is employed, without restricting conveniency went together; for, as a the generality of the dictum, by giving man had a right to all he could emus to understand, that he only meant ploy his labour upon, so he had no it to apply to subjects which no other temptation to labour for more than he person had, by previous occupancy, se- 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 dig. ged that well (c).” And Isaac, *about ninety years afterwards, ( 6 ) reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjoy it in peace (f). All this while the soil and pasture of the earth remained Land remained
longest in comstill 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.
(f) Gen. xxvi. 15, 18, &c.
therefore, to find Mr. Christian accus- critiç himself thinks, that mere occuing Locke of begging the question, by pancy gives such title, when any thing asserting that occupancy of what pre- is separated for private use from the viously lay in common, and labour be- common stores of nature. See, on this stowed on the thing so occupied, gives subject, Heineccius, book i. c. I. a title to property therein; when the (13) See ante, note 2.