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HE former book of these commentaries having treated at large of the jura perfonarum, or such rights and duties as ate 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 uncona nected with his person. These are what the writers on na. tural law stile the rights of dominion, or property, concerne , ing the nature and original of which I shall first premise a few observations, before I proceed to distribute and confider it's several objects. VOL. II.
There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which oue man claims 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 fatisfied with the decision of the laws in our favour, 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 ances. - tors, 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 dominion of land; why the son should have a right to exclude his fellowcreatures 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 110 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 matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive conftitutions of society.
In the beginning of the world, we are informed by holy writ, tlie 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 movech <spon the earth a." This is the only true and folid foun2 Gen. i. 23. i .
dation 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 ftill 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 antient 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 effet b." Not that this communion of goods seems ever to bave been applicable, even in the earliest ages, to ought 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 fo long as he was using it, and no longer c: or, to speak with greater precision, the right of poffeflion continued for the same 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 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 seile it
b Juitia 1. 43. C, 1
e Barbeys, Puff. 1. 4. C. 4.
without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repait. A doctrine well illustrated 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 ownd.
But when mankind increafed 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 be 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 poffeffion ;-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 thein 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 flagranc. injustice, and would sacrisice their lives to preserve them. Hence a property was soon established in every man's house and home-stall; which seem to have been originally mere temporary huts or moveable cabins, suited to the design of
d Quem udmodum theatrum, cum commune fit, rifle tamen dici poteft, ejus else cum i mguem quisque occujarit. De Fin, l. 3. 6. 20,
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 moveables of every kind became sooner appropriated than the permanent subftantial 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 labour of the occupant: which bodily labour, 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, fought 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 fequacious nature; and to establish a permanent property in their locks 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, confidered 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 beenesablished 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 county of Abimelech, and exacting an oath for his security, “ because he had digged that well.” And Isaac, about ninety years afterwards, reclaimed this his father's
c Gen. xxi. 30.