APPEND ENDIX. No. I. Vetus Carta FEOFFAMENTI. Page i. No. II. A modern Conveyance by LEASE and RELEASE. §. 1. LEASE, or BARGAIN and SALE, for a Year. No. III. An OBLIGATION, or BOND, with CONDITION for the Payment of Money. ii. iii. xiii. No. IV. A FINE of Lands, fur Cognizance de Droit, come ceo, &c. §. 1. Writ of Covenant, or PRAECIPE. §. 2. The Licence to agree. §. 3. The Concord. §. 4. The Note, or Abftract. πίν. ibid. ibid. XV. §. 5. §. 1. Writ of Entry fur Diffeifin in the Poft; er xvi. PRAECIPE. xvii. 3. 2. Exemplification of the RECOVERY Roll. ibid. ΟΝ ΤΗΕ LAWS OF ENGLAND. BOOK THE SECOND. OF THE RIGHTS OF THINGS. CHAPTER THE FIRST. OF PROPERTY, IN GENERAL. T HE former book of these commentaries having treated at large of the jura perfonarum, or fuch rights and duties as are annexed to the persons of men, the objects of our inquiry in this fecond book will be the jura rerum, or, those rights which a man may acquire in and to such external things as are unconnected with his perfon. These are what the writers on na'tural law ftile the rights of dominion, or property, concerning the nature and original of which I fhall first premise a few obfervations, before I proceed to distribute and confider it's feveral objects. THERE THERE is nothing which fo generally ftrikes the imagina tion, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercifes over the external things of the world, in total exclufion of the right of any other individual in the universe. And yet there are very few, that will give themfelves the trouble to confider the original and foundation of this right. Pleafed as we are with the poffeffion, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest fatisfied with the decision of the laws in our favour, without examining the reafon or authority upon which thofe laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the laft will and teftament of the dying owner; not caring to reflect that (accurately and ftrictly speaking) there is no foundation in nature or in natural law, why a fet of words upon parchment should convey the dominion of land; why the fon should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done fo before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain poffeffion, fhould be entitled to tell the reft of the world which of them should enjoy it after him. These inquiries, it must be owned, would be ufelefs and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without fcrutinizing too nicely into the reasons of making them. But, when law is to be confidered not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive conftitutions of fociety. 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 fifh of the fea, and over the "fowl of the air, and over every living thing that moveth, 66 upon it upon the earth." This is the only true and folid foundation of man's dominion over external things, whatever airy metaphyfical notions may have been started by fanciful writers upon this fubject. The earth therefore, and all things therein, are the general property of all mankind, exclufive of other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reafonable to fuppofe, that all was in common among them, and that every one took from the public stock to his own use fuch things as his immediate neceffities required. THESE general notions of property were then fufficient to answer all the purposes of human life; and might perhaps. ftill have answered them, had it been poffible for mankind to have remained in a state of primaeval fimplicity: as may be collected from the manners of many American nations when firft discovered by the Europeans; and from the antient method of living among the firft Europeans themfelves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by hiftorians of thofe times, wherein "erant omnia communia et indivifa ❝omnibus, veluti unum cunétis patrimonium effet." Not that this communion of goods feems ever to have been applicable, even in the earliest ages, to ought but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reafon, he, who firft began to use it, acquired therein a kind of tranfient property, that lasted so long as he was using it, and no longer: or, to speak with greater precifion, the right of poffeffion continued for the fame time only that the act of poffeffion lafted. 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 determinate spot of it, for reft, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjuft, and contrary to the law of nature, to have driven him by force; but the inftant that he ‹ Barbeyr, Puff. L. 4. C. 4. a Gen. i, 28. |