agree in this, that occupancy is the thing by which the title. was, in fact, originally gained; every man seizing to his own dorf, who maintain that the origin and inviolability of property are founded upon a tacit promise or compact, and therefore we can not invade another's property without a violation of a promise or a breach of good faith, seems equally, or more, superfluous and inconclusive. There appears to be just the same necessity to call in the aid of a promise to account for, or enforce, every other moral obligation, and to say that men are bound not to beat or murder each other because they have promised not to do so. Men are bound to fulfill their contracts and engagements, because society could not otherwise exist; men are bound to refrain from another's property, because, likewise, society could not otherwise exist. Nothing, therefore, is gained by resolving one obligation into the other. But how, or when, then, does property commence? I conceive no better answer can be given than by occupancy, or when any thing is separated for private use from the common stores of nature. This is agreeable to the reason and sentiments of mankind prior to all civil establishments. When an untutored Indian has set before him the fruit which he has plucked from the tree that protects him from the heat of the sun, and the shell of water raised from the fountain that springs at his feet; if he is driven by any daring intruder from this repast, so easy to be replaced, he instantly feels and resents the violation of that law of property which nature herself has written upon the hearts of all mankind. This universal principle we find well described in the Laws of Menu, son of Brahmá: " Sages, who know former times, pronounce cultivated land to be the property of him who cut away the wood, or who cleared and tilled it; and the antelope, of the first hunter who mortally wounded it." (3 Sir Wm. Jones, 341.)-[CHRISTIAN.] To say that a man has acquired a right to a piece of land because he has occupied it, does not, perhaps, establish or illustrate his right any better than to say that he has the right because he has bestowed labor in acquiring it; yet, if a choice is to be made between two such unsatisfactory accounts of the matter, it must be allowed that the advocates of occupancy have the best of the argument. For, where A. first takes possession of a spot by driving a few stakes round it, and B. then comes and digs every part of it and tills it, it is admitted that the property remains in A., although, did right depend on labor merely, B., having expended most labor, would have the best title; which plainly shows that priority of occupation, and not labor, is the criterion of ownership. But why such priority should confer the right of property, neither party thinks it necessary to explain, unless the saying that it is "a principle of natural equity" be an explanation. Hume, after observing that when men had perceived the necessity that property should be stable, they were naturally led, in determining what particular things should belong to particular persons, to observe what relations existed between such things and such persons; and adopted in general the most obvious relation, namely, that of prior occupancy or appropriation, proceeds: "Some philosophers account for the right of occupation by saying that every one has a property in his own labor; and when he joins that labor to any thing, it gives him the property of the whole; but, 1st, there are several kinds of occupation where we can not be said to join our labor to the object we acquire, as where we possess a meadow by grazing our cattle upon it; 2dly, this accounts for the matter by means of accession, which is taking a needless circuit; 3dly, we can not be said to join our labor to any thing but in a figurative sense. Properly speaking, we only make an alteration on it by our labor. This forms a relation betwixt us and the object, and thence arises the property according to the preceding principle." (Philosoph. Works, vol. ii., p. 278.) "After the convention concerning abstinence from the possessions of others is entered into, and every one has acquir ed a stability in his possessions, then immediately arises the ideas of justice and injustice, as also those of property, right, and obligation. The latter are altogether unintelligible without first understanding the former; our property is nothing but those goods whose constant possession is established by the laws of society, that is, by the laws of justice. Those, therefore, who make use of the words property, or right, or obligation, before they have explained the origin of justice, or even make use of them in that explication, are guilty of a very gross fallacy, and can never reason upon continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. any solid foundation. A man's property end. A legal duty, the correlative of a is something related to him: this relation is not natural, but moral, and founded on justice. 'Tis very preposterous, therefore, to imagine that we can have any idea of property without fully comprehending the nature of justice, and showing its origin in the artifices and contrivance of man. The origin of justice explains that of property. The same artifice gives rise to both." (Philos. Works, vol. ii., p. 260.) The reference by Grotius of the origin of property to "a tacit and implied consent of all mankind," is more satisfactory than the nicer speculations of subsequent writers, for (apart from any consideration of the divine commands, with regard to which there is no dispute or difficulty) the evident general utility of enforcing a respect for property by public opinion and by laws, affords both a sufficient explanation of the origin of the notion of property, and a sufficient apology for the institution. And, indeed, although ethical writers differ so widely in their accounts of the origin of the various rights and their correlative duties, which are recognized among civilized nations, they generally agree in recommending them to public approval and observance on the ground of general utility solely, or on the higher ground of religious duty, which is itself chiefly enforced by arguments of a utilitarian character. The à priori reasonings and demonstrations on which these writers have wasted so much ingenuity, owe their origin to a mistaken conception of the nature of a "right," which they would have to be something as necessarily preexisting, independently of the will of man, or even of God,* as the truths of geometry, instead of being, what its etymology indicates it to be, any thing directed or ordered by a will, possessed in a greater or less degree (as the word will implies) of the means of enforcing or inducing compliance with its demands. Understand a right or a duty to originate in a command, express or implied, and the perplexity which arises from the first contemplation of the great variety of rights, as to their objects and sanctions or obligatory force, is at an It is true that most Christian moralists make the rule of right to be the will of God; but as they also, without intending to utter a truism, assert the benevo legal right, is something which is commanded by the laws, and its sanction or obligatory force consists solely in the power of the executive to enforce obedience, or to inflict a penalty for disobedience. When some writers add to this a moral or religious obligation, they cease to regard the duty in its legal aspect, and imply a moral or religious duty as an incident to every legal duty. A moral duty is, in practice, that course of conduct which is approved of by the general opinion of a community, and the observance of which is sanctioned by all those penalties which public opinion is able to inflict; in theory, it is that course of conduct which the propounders of any particular system of deontology recom mend to the approbation of mankind. A religious duty is that which is supposed to be commanded by the deity or deities of any religious system, and is sanctioned by the penalties of the hell or purgatory of that system, and recommended by the rewards of its paradise. There is still another duty insisted on by those who hold the theory of a moral sense, which they refer to the dictates of conscience-a sensation, sentiment, or passion, exalted by them to the dignity of a distinct and independent intelligence and agent. Those who do not recognize an innate moral sense refer the phenomena of conscience to that sensation of uneasiness which we always feel in reflecting upon any thing we have done against our present judg ment or wishes; a sensation which, in the cases supposed to fall under the dominion of conscience, they distinguish from other uneasy sensations by the presence of the fear of punishment from the Deity, from the laws, or from public opinion-of regret that a favorite plan or desire, namely, that of living virtuously, should have failed-of apprehension as to one's future frailty-of mortification of one's self-esteem on comparing one's self with others of a better conduct, and by the absence of any means of relief in anger against, or in seeking the punishment of another person. Of these characteristics, the most striking is that wound to one's vanity, or self-liking (to lence and moral excellence of the Deity, it is evident that they recognize a standard of morality independent of the will of God. Abandon ment of property. Property, both in lands and movables, being thus originally acquired by the first taker, which taking amounts to a declara borrow an appropriate phrase from the author of the Fable of the Bees), which is always the effect of contemplating one's own unworthiness. In the course of his strictures on the passage in which Blackstone speaks of the duty of the supreme power to make laws, Bentham gives the following ac count of rights and duties in general: "That may be said to be my duty to do (understand political duty) which you (or some other person or persons) have a right to make me do. I have, then, a duty toward you: you have a right as against me. "What you have a right to have me made to do is that which I am liable according to law, upon a requisition made on your behalf, to be punished for not doing. "I say punished, for without the notion of punishment (that is, of pain annexed to an act, and accruing on a certain account and from a certain source) no notion can we have of either right or duty. "One may conceive three sorts of duties: political, moral, and religious; correspondent to the three sorts of sanctions by which they are enforced; or the same point of conduct may be a man's duty on these three several accounts. After speaking of the one of these, to put the change upon the reader, and, without forewarning, begin speaking of another, or not let it be seen from one first which of them one is speaking of, can not but be productive of confusion. "Political duty is created by punishment, or, at least, by the will of persons who have punishment in their hands; persons stated and certain-political superiors. "Religious duty is also created by punishment: by punishment expected at the hands of a person certain-the Supreme Being. "Moral duty is created by a kind of motive which, from the uncertainty of the persons to apply it, and of the species and degree in which it will be applied, has hardly yet got the name of punishment: by various mortifications resulting from the ill-will of persons uncertain and variable-the community in general; that is, such individuals of that community as he whose duty is in question shall happen to be connected with. "When, in any of these three senses, a man asserts a point of conduct to be a duty, what he asserts is the existence, actual or probable, of an external event, viz., of a punishment issuing from one or other of these sources in consequence of a contravention of the duty; an event extrinsic to, and distinct from as well the conduct of the party spoken of as the sentiment of him who speaks. If he persists in asserting it to be a duty, but without meaning it should be understood that it is on any one of these three accounts that he looks upon it as suchall he then asserts is his own internal sentiment; all he means, then, is, that he feels himself pleased or displeased at the thoughts of the point of conduct in question, but without being able to tell why. In this case he should even say so, and not seek to give an undue influence to his own single suffrage by delivering it in terms that purport to declare the voice either of God, or of the law, or of the people.' "Now which of all these senses of the word our author had in mind, in which of them all he meant to assert that it was the duty of supreme governors to make laws, I know not. Political duty is what they can not be subject to; and to say that a duty, even of the moral or religious kind to this effect, is incumbent on them, seems rather a precipitate assertion. "In truth, what he meant was neither more nor less, I suppose, than that he should be glad to see them do what he is speaking of; to wit, make laws: that is, as he explains himself, spread abroad the knowledge of them. Would he so? So, indeed, should I; and if asked why, what answer our author would give I know not; but I, for my part, have no difficulty. I answer, because I am persuaded that it is for the benefit of the community that they (its governors) should do so. This would be enough to warrant me in my own opinion for saying that they ought to do it. For all this I should not, at any rate, say that it was their duty in a political sense. more should I venture to say it was in a moral or religious sense, till I was satisfied whether they themselves thought the measures useful and feasible, and whether they were generally supposed to think so. No "Were I satisfied that they themselves thought so, God then, I might say, knows they do. God, we are to suppose, will punish them if they neglect pursuing it. It is, then, their religious duty. Were I satisfied that the people supposed they thought so, the people, I might say, tion that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act, which shows 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 seize 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 can not 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* conveyan ances. But this method of one man's abandoning his property, and Origin of another seizing the vacant possession, however well founded ces, wills. in theory, could not long subsist in fact. It was calculated and inheritmerely 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 convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance; which may be considered either as [ 10 ] a continuance of the original possession which the first occupant had, or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and 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 i See vol. i., p. 285. in case of such neglect-the people, by der the title of "The Province of Juris- An able discussion of the subject of this note will be found in Mr. Austin's lectures on jurisprudence, pu1 lished un (4) As to the abandonment of incorporeal rights, or easements, see Moore v. Rawson, 3 B. & Cr., 332; Liggins V. Inge, 7 Bingh., 693. man acquainted with such my intention, immediately steps in and seizes 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." The most universal and effectual way of abandoning property is by the death of the occupant; when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease, of course; for, naturally speaking, the instant a man ceases to be, he ceases to have any dominion; else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him, which would be highly absurd and inconvenient. All property must, therefore, cease upon death, considering men as absolute individuals, and unconnected with civil society; for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to [ 11 ] make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion.k And further, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be formed. The right of inheritance, or descent to the children and re It is principally to prevent any vacancy of possession that the civil law considers father and son as one person; so that, upon the death of either, the (5) The giving of the property to another being a mode of enjoyment, the right of giving seems to be implied in the right of property, rather than to depend on the artificial reasoning in the text. Or it is founded, like the right of property itself, on the general consent inheritance does not so properly descend, as continue in the hands of the survivor.—(Ff., 28, 2, 11.) of society and the perception of its utility; as in particular communities it is restrained on considerations of utility by particular laws; in England, for instance, by the laws against perpetuities, charitable devises, &c. |