T HE former book of thefe commentaries having treated at large of the jura perfonarum, or fuch rights and duties as are annexed to the perfons of men, the objects of our inquiry in this fecond book will be the jura rerum, or, thofe rights which a man may acquire in and to fuch external things as are unconnected with his perfon. These are what the writers on natural law ftile the rights of dominion, or property, concerning the nature and original of which I fhall firft premife a • few obfervations, before I proceed to distribute and confider it's feveral objects. VOL. II. B THERE THERE is nothing which fo generally ftrikes the imagination, and engages the affections of mankind, as the right of property; or that fole and defpotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the univerfe. 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 feem afraid to look back to the means by which it was acquired, as if fearful of fome defect in our title; or at best we rest fatisfied with the decifion of the laws in our favour, without examining the reason 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 anceftors, or by the laft will and teftament 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 fet of words upon parchment fhould convey the dominion of land; why the fon fhould have a right to exclude his fellowcreatures from a determinate spot of ground, becaufe 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 ufeless 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 thefe pofitive 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 fish of the fea, and over the "fowl of the air, and over every living thing that moveth the earth." This is the only true and solid foun upon a Gen. i. 28. dation of man's dominion over external things, whatever airy metaphysical 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 reasonable 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 primeval fimplicity: as may be collected from the manners of many American nations when firft difcovered by the Europeans; and from the antient method of living among the firft Europeans themselves, if we may credit either the memorials of them preferved in the goldent age of the poets, or the uniform accounts given by hiftorians of thofe times, wherein "erant omnia communia et indivifa ❝ omnibus, veluti unum cunctis patrimonium effet " Not that this communion of goods feems ever to bave been applicable, even in the earlieft ages, to ought but the fubftance 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 tranfient property, that lafted fo long as he was using it, and no longer: or, to fpeak with greater precision, the right of poffeffion continued for the fame time only that the act of possession lasted. 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 determined fpot of it, for reft, for fhade, or the like, acquired for the time a fort 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 quitted the ufe or occupation of it, another might feife it Justin 1. 43. c, I. Barbeys, Puff. 1. 4. c. 4. B 2 without without injustice. Thus alfo a vine or other tree might be faid to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the fole property of the fruit, which he had gathered for his own repaft. A doctrine well illuftrated by Cicero, who compares. the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own. BUT when mankind increafed in number, craft, and ambition, it became neceffary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate ufe only, but the very fubftance of the thing to be used. Otherwife innumerable tumults must have arifen, and the good order of the world be continually broken and difturbed, while a variety of perfons were ftriving who should get the first occupation of the fame thing, or difputing which of them had actually gained it. As human life alfo grew more and more refined, abundance of conveniences were devifed to render it more eafy, commodious, and agreeable; as, habitations for fhelter and fafety, and raiment for warmth. and decency. But no man would be at the trouble to provide either, fo long as he had only an ufufructuary property in them, which was to cease the inftant that he quitted poffeffion;-if, as foon as he walked out of his tent, or pulled off his garment, the next franger who came by would have a right to inhabit the one, and to wear the other. In the cafe 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 nefts, and the beafts of the field had caverns, the invafion of which they esteemed a very flagrant. injuftice, and would facrifice their lives to preferve them. Hence a property was foon established in every man's house and home-ftall; which feem to have been originally mere temporary huts or moveable cabins, fuited to the defign of ₫ Quemadmodum theatrum, cum commune fit, reße tamen dici poteft, ejus esse eum um quem quifque occuparit. De Fin, l. 3. c. 20. 7 providence providence for more speedily peopling the earth, and fuited to the wandering life of their owners, before any extensive property in the foil or ground was established. And there can be no doubt, but that moveables of every kind became fooner appropriated than the permanent fubftantial foil: partly because they were more fufceptible of a long occupancy, which might be continued for months together without any fenfible 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 labour of the occupant: which bodily labour, bestowed upon any fubject which before lay in common to all men, is univerfally allowed to give the fairest and most reasonable title to an exclufive property therein. THE article of food was a more immediate call, and therefore a more early confideration. Such, as were not contented with the spontaneous product of the earth, fought for a more folid refreshment in the flesh of beafts, which they obtained. by hunting. But the frequent difappointments, incident to that method of provifion, induced them to gather together fuch animals as were of a more tame and fequacious nature; and to establish a permanent property in their flocks and herds, in order to sustain themselves in a lefs precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The fupport of these their cattle made the article of water alfo a very important point. And therefore the book of Genesis (the most venerable monument of antiquity, confidered merely with a view to hiftory) will furnish us with frequent inftances of violent contentions concerning wells; the exclufive property of which appears to have beenestablished in the first digger or occupant, even in fuch places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a fojourner, afferting his right to a well in the county of Abimelech, and exacting an oath for his fecurity, "because he had digged that well." And Ifaac, about ninety years afterwards, reclaimed this his father's |