of property. munion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he 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; 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 Community 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 shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force; but the instant that he quitted the use or occupation of it, another might [4] seize it without injustice. 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 theater, which is common to the public, and yet the place which any man has taken is for the time his own.d C Barbeyr., Puff., 1. 4, c. 4. d Quemadmodum theatrum, cum commune sit, recte tamen dici potest, ejus were unknown to human breasts which now cause such uproar and engender such confusion. Avarice, ambition, cruelty, selfishness, were never heard of; cordial affection, compassion, sympathy, were the only movements with which the human mind was yet acquainted. Even the distinction of mine and thine was banished from that happy race of mortals, and carried with it the very notion of property and obligation, justice and injustice. esse eum locum quem quisque occupârit. in most kinds of reasoning, goes further than any of that art and philosophy with which we have been yet acquainted. They easily perceived, if every man had a tender regard for another, or if nature supplied abundantly all our wants and desires, that the jealousy of interest which justice supposes could no longer have place, nor would there be any occasion for those distinctions and limits of property and possession which at present are in use among mankind. Increase "This, no doubt, is to be regarded as to a sufficient degree the benevolence of an idle fiction, but yet deserves our at- men, or the bounty of nature, and you tention, because nothing can more evi- render justice useless by supplying its dently show the origin of those virtues place with much nobler virtues and which are the subjects of our present more valuable blessings. The selfishinquiry. I have already observed that ness of men is animated by the few pos justice takes its rise from human con- sessions we have in proportion to our ventions, and that these are intended as wants, and 'tis to restrain this selfishness a remedy to some inconveniences which proceed from the concurrence of certain qualities of the human mind with the situation of external objects. The qualities of the mind are selfishness and lim- "Here, then, is a proposition which I ited generosity; and the situation of ex- think may be regarded as certain: that ternal objects is their easy change, join- 'tis only from the selfishness and confined ed to their scarcity in comparison of the generosity of men, along with the scanty wants and desires of men. But, how- provision nature has made for their wants, ever philosophers may have been be- that justice derives her origin." (Hume, wildered in those speculations, poets Philosophical Works, vol. ii., p. 263, 266, have been guided more infallibly by a ed. Edinburgh, 1826.) certain taste or common instinct, which. that men have been obliged to separate Separate property. But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually 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 [5] and homestall; which seem to have been originally mere temporary huts or movable 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 movables 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 labor of the occupant, which bodily labor, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein. 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. 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 digged that well."e And Isaac, about ninety years after- [ 6 ] ward, reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjoy it in peace.f land. All this while the soil and pasture of the earth remained still Right to in common as before, and open to every occupant: except, perhaps, in the neighborhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience upon 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. 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 endeavored to compose: "Let there be no strife, I pray thee, between thee and me. Is not the whole land before thee? Separate thyself, I pray thee, from me. 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. "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 * Gen., xxi., 30. f Gen., xxvi., 15, 18, &c. ut campus, ut nemus placuit.-De Mor. h Gen., c. xiii. onization. plain of Jordan and journeyed east; and Abraham dwelt in the land of Canaan." [ 7 ] Upon the same principle was founded the right of migration, Right of col- or sending colonies to find out new habitations, when the mother-country was overcharged with inhabitants; which was prac ticed as well by the Phoenicians 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 defenseless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in color; 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. property in land, &c. Labor and As the world by degrees grew more populous, it daily beagriculture the principal came more difficult to find out new spots to inhabit, without source of 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 therefore became necessary to pursue some regular method of providing a constant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connection and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted. 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 labor? Had not, therefore, a separate property in lands, as well as movables, 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 [8] state 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 begat property; and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants: states, government, laws, punishments, and the public exercise of religious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labor, 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.* nally occu The only question remaining is, how this property became Title origi actually vested; or what it is that gave a man an exclusive pancy. right to retain in a permanent manner that specific land which before belonged generally to every body, but particularly to nobody. And as we before observed, that occupancy 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, 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 labor, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title; a dispute that savors too much of nice and scholastic refinement." However, both sides : result from the separate operations of (3) But it is of great importance that moral obligations and the rudiments of law should be referred to true and intelligible principles, such as the minds of serious and well-disposed men can rely upon with confidence and satisfaction. Mr. Locke says, "that the labor of a man's body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property." (On Gov., c. 5.) (2) "As it is by establishing the rule for the stability of possession that the passion of self-interest restrains itself, if that rule be very abstruse and of difficult invention, society must be esteemed in a manner accidental and the effect of many ages. But if it be found that nothing can be more simple and obvious than that rule, that every parent, in order to preserve peace among his children, must establish it, and that these first rudiments of justice must every day be improved as the society enlarges if all this appear evident, as it certainly must, we may conclude that 'tis utterly impossible for man to remain any considerable time in that savage condition which precedes society, but that his very first state and situation may justly be esteemed social. This, however, hinders not but that philosophers may, if they But this argument seems to be a petitio please, extend their reasoning to the sup- principii; for, mixing labor with a thing posed state of nature, provided they al- can signify only to make an alteration low it to be a mere philosophical fiction in its shape or form; and if I had a right which never had and never could have to the substance before any labor was any reality. Human nature being com- bestowed upon it, that right still adheres posed of two principal parts, which are requisite in all its actions, the affections and understanding, 'tis certain that the blind motions of the former, without the direction of the latter, incapacitate men for society; and it may be allowed us to consider separately the effects that to all that remains of the substance, what- The account of Grotius and Puffen |
