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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 uncultivated 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 consequence was, that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose: “Let there “ be no strife, I pray thee, between thee and me. Is not the
I “ whole land before thee? Separate thyself, I pray thee,
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 acknowledged 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 Canaan.
*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.
« from me.
(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 Phænicians 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.
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 sub
sistence introof providing a constant subsistence; and this necessity pro- duced agriculduced, or at least promoted and encouraged, the art of agri- tablished a per
ture, which esculture. And the art of agriculture, by a regular connexion manent proper
ty in the soil, 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).
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 be
gat property; and, in order to insure that property, recourse Civil society ne- was had to civil society, which brought along with it a long cessary for the train of inseparable concomitants: states, government, laws,
punishments, and the public exercise of religious duties (16).
(16) “ When the increase of people parag. 124.) "Mankind, notwithstandand stock, with the use of money, had ing all the privileges of a state of namade land scarce, (and so of some va- ture, being but in an ill condition while luc,) the several communities settled they remain in it, are quickly driven the bounds of their distinct territories, into society. The inconveniences that and, by laws within themselves, regu- they are exposed to in a state of nature, lated the properties of the private men by the irregular and uncertain exercise of that society, and so, by compact and of the power every man has of punishagreement, settled the property which ing the transgressions of others, make labour and industry began.” (Locke them take sanctuary under the estabon Gov. book 2, c. 5, parag. 45.) “Every lished laws of government, and therein man, by consenting with others to make seek the preservation of their property: one body politic under one government, ... and in this we have the original put himself under an obligation to eve- rise of both the legislative and execury one of that society, to submit to the tive power.” (parag. 127.) “ The powe determination of the majority, and to er which, in a state of nature, every be concluded by it: or else this origi- man has of doing whatever he thinks nal compact, whereby he with others fit for the preservation of himself and incorporates into one society, would sig- the rest of mankind, he gives up to be nify nothing, if he were no further tied regulated by laws made by the society, by any decrees of the society, than he so far forth as the preservation of himhimself thought fit, and did act self and the rest of that society shall consent to.” (Ibid. c. 8, parag. 97.) require; which laws of society in many " Whosoever therefore, out of a state things confine the liberty he had by of nature, unite into a community, must the law of nature.” (parag. 129.) “ For, be understood to give up all the power being in a state wherein he is to enjoy necessary to the ends for which they so many conveniences from the labour, unite into society, to the majority of assistance, and society of others in the the community.” (parag. 99.) The same community, as well as protection great and chief end of men's uniting from its whole strength; he is to part, into commonwealths, and putting them- also, with as much of his natural liberselves under governments, is the pre- ty, as the good, prosperity and safety servation of their property.” (cap. 9, 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 the right to the actually vested: or what it is that gave a man an exclusive permanent prou
well right to retain in a permanent manner that specific land, as to the tempowhich before belonged generally to every body, but particu- soil, became
rary use of, the larly to nobody. And, as we before observed that occu- vested by occu
pancy. pancy 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. charge, and it is fit every one who en
both sides agree in this, that occupancy is the thing by
which the title was in fact originally gained; every man [ *9 ] 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 thus Property, both in lands and moveables, being thus oriacquired by the first taker, re
ginally acquired by the first taker, which taking amounts to mained in him a declaration that he intends to appropriate the thing to his till he shewed an intention to 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 then once more became com.
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 and implied assent of all mankind to