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property; and, after much contention with the Philistines, was suffered to enjoy it in peace.
All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the necellity 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 on one spot of ground, it was deemed a natural right to seise upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivate ed 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 empires. We have also a striking example of the same kind in the history of Abraham and his nephew Loth. When their joint substance became so great, that pasture and other conveniences grew scarce, the natural consequence was that a strise arose between their servants ; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose : “ let there be no strife, I pray fi 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 listed 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 plain of Jordan, and journeyed eart; and Abraham « dwelt in the land of Canaan.” f Gen xxvi. 15.18, &c.
campur, ut nemus, placuit, Demor. Ger.16. 8 Colunt discreti e divers ; *? funs, ist Gen. c. xiii.
UPON Upon the fame principle was founded the right of migration, or sending colonies to find out new habitations, when the mother-country was overcharged with inhabitants; which was practised 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 defert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or mafsacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; 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.
As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants: and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and it's 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 connexion 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 ano. ther might watch an opportunity to seise upon and enjoy the product of his industry, art, and labour ? Had not therefore a separate property in lands, as well as moveables, 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 state of nabure. Whereas now (fo 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 it's rational faculties, as well as of exerting it's 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 labour, 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.
The only question remaining is, how this property became actually vested : or what it is that gave a man an exclusive 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 Puifendorf insisting, that this right of occupancy is founded on a tacit and implied affent of all mankind, that the first occupant should become the owner; and Bar. beyrac, Titius, Mr. Locke, and others, holding, that there is no such implied affent, neither is it necessary that there Thould be ; for that the very act of occupancy, alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. A difpute that favours too much of nice and scholastic refinement (1)! However, both fides agree in this,
(1) But it is of great importance that moral obligations and the rudinients of laws should be referred to truc and intelligible princi.
that occupancy is the thing by which the title was in fact originally gained ; every man seising to his own continued
ples, such as the minds of serious and well-disposed men can rely upon with confidence and satisfaction.
Mr. Locke says, “ that the labour 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 labour with, and joined to it someor thing that is his own, and thereby makes it his property.” (On Gov. c. 5.)
But this argument seems to be a petitio principii;, for mixing labour with a thing, can signify only to make an alteration in it's shape or form ; and if I had a right to the substance, before any labour was bestowed upon it, that right ftill adheres to all that remains of the substance, whatever changes it may have undergone : if I had no right before, it is clear that I have none after; and we have not advanced a single step by this demonstration. The account of Grotius and Puffendorf, who maintain that the origin and inviolability of property are founded upon a tacit promise or compact, and therefore we cannot 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 fulîl their contracts and engagements, because society could not otherwise exist; men are bound to refrain from another's property, because also society could not otherwise cxiit. 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 commonitores of nature. This is agreeable to the reason and sentiments of mankind, prior to al civil eltabliihments. When an untutored Indian has ser b:fore bin the fruit which he lias plucked from the tree that protcus him frivin the heat of the fun, and the shell of water railed from the fountain that springs at his feet; if he is driven by any daring intruder from this repast, so easy to be replaczu, he instantly feeis and reuse such fpots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. · PROPERTY, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration 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 shews an intention to abandon it; for then it becomes, naturally fpeako ing, 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 fuch an express dereliction, that a property will be vested in the first fortunate finder that will seise 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 cannot be collected from thence, that he designed to quit the poflellion; and therefore in such a cafe the property ftill 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',
But this method, of one man's abandoning his property, and another seifing the vacant pofleflion, however weil founded in theory, could not long sublift in fact. It was calculated merely for the rudiments of civil society, and neceffarily 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
i See Vol. I. pag. 295.
sents the violation of that law of property, which nature herself has written upon the hearts of all mankind.