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The nature

The former book of these Commentaries having treated at or the rights large of the jura personarum, or such rights and duties as are in preoperaty annexed to the persons of men, the objects of our inquiry in this second 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 person. These are what the writers on natural law style the rights of dominion, or property; concerning the nature and original of which I shall first premise a few observations, before I proceed to distribute and consider its several objects.

There is nothing which so generally strikes the imagination, [ 2 ] and engages the affections of mankind, as the right of proper- and originecor ty; or that sole and despotic dominion which one man claims such rights. and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe; and yet there are

very few that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, 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 satisfied with the decision of the laws in our favor, without examining the reason or authority upon which those 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 last will and testament of the dying owner ; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law why a set of words upon parchment should convey the Vol. II.-A


dominion of land ; why the son should have a right to 'exclude his fellow-creatures from a determinate spot of ground, because his father had done so 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 possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it can not be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.

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 fish of the sea, and over the fowl of the

air, and over every living thing that moveth upon the earth." [ 3 ] This is the only true and solid foundation of man's dominion

over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of 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.

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 ancient method of living among the first Europeans themselves, 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."b1 Not that this com

bl a Gen., i., 28.

• Justin., l. 43, c. 1.

State of na'ture.

(1) “This state of nature of the phi- believe the poets, that there was no nelosophers is to be regarded as a mere cessity for men to provide themselves fiction, not unlike that of the golden age with clothes and houses as a security which poets have invented; only with against the violence of heat and cold. this difference, that the former is de. The rivers flowed with wine and milk, scribed as full of vice, violence, and in- the oaks yielded honey, and nature sponjustice; whereas the latter is pointed taneously produced her greatest delicaout to us as the most charming and most cies. Nor were these the chief advantapeaceable condition that can possibly be ges of that happy age. The storms and imagined. The seasons, in the first age tempests were not alone removed from , of nature, were so temperate, if we may nature, but those more furious tempests

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;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 Community

of property. 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 à 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. e Barbeyr., Puff., 1. 4, c. 4.

esse eum locum quem quisque occupárit. d Quemadmodum theatrum, cum com- - De Fin., 1. 3, c. 20. mune sit, recte tamen dici potest, ejus


were unknown to human breasts which in most kinds of reasoning, goes further now cause such uproar and engender than any of that art and philosophy with such confusion. Avarice, ambition, cru- which we have been yet acquainted. elty, selfishness, were never heard of; They easily perceived, if every man had cordial affection, compassion, sympathy, a tender regard for another, or if nature were the only movements with which the supplied abundantly all our wants and human mind was yet acquainted. Even desires, that the jealousy of interest the distinction of mine and thine was ban- which justice supposes could no longer ished from that happy race of mortals, have place, nor would there be any ocand carried with it the very notion of prop- casion for those distinctions and limits of erty and obligation, justice and injustice. property and possession which at pres

“This, no doubt, is to be regarded as ent are in use among mankind. Increase an idle fiction, but yet deserves our at- to a sufficient degree the benevolence of tention, because nothing can more evi- men, or the bounty of nature, and you dently show the origin of those virtues render justice useless by supplying its which are the subjects of qur present place with much nobler virtues and inquiry. I have already observed that more valuable blessings. The selfishjustice takes its rise from human con- ness of men is animated by the few posventions, and that these are intended as sessions we have in proportion to our a remedy to some inconveniences which wants, and 'tis to restrain this selfishness proceed from the concurrence of certain that men have been obliged to separate qualities of the human mind with the themselves from the community, and to situation of external objects. The qual- distinguish between their own goods and ities of the mind are selfishness and lim- those of others. ited generosity; and the situation of ex- “Here, then, is a proposition which I ternal objects is their easy change, join- think may be regarded as certain ; that ed to their scarcity in comparison of the 'tis only from the selfishness and confined wants and desires of men. But, how- generosity of men, along with the scanty ever philosophers may have been be- provision nature has made for their wants, wildered in those speculations, poets that justice derives her origin.” (Hume, have been guided more infallibly by a Philosophical Works, vol. ii., p. 263, 266, certain taste or common instinct, which, ed. Edinburgh, 1826.)

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