right to patrimonial poffeffions after the death of the parent, where the father makes no declaration of his mind, that they should not fucceed to his property.

Is is admitted by those who argue against derivative rights, that a father, apprehending his end, may, in a State of Nature, make a conditional gift, or what the civilians call a donatio mortis causa.

A

However this inquiry may at first fight appear foreign to the subject of Criminal Laws, yet it will be proper to examine it with particular attention, as the reasoning in the enfuing sheets, with respect to forfeitures in Criminal Cafes, will depend altogether on the determination of this question.

OME, whofe judgment deferves to be highly refpected, have argued, that, in a State of Nature, on the death of the firft occupant, the fubject reverts to the common ftock, and confequently lies open to the claim of the next occupant.

a But this argument feems to confider Man in a State of Nature, as a creature governed altogether by appetite, without. any rational fenfe of right and wrong. But confidering Man as a compound of reafon, as well as of paffion, the very nature of his compofition will afford an anfwer to the argument; for men, even in a State of Nature, will, by the light of reafon, perceive and acknowledge the rights which children derive from their parents,

parents, though the fanction of civil Laws is neceffary to protect those rights, and tranfmit them in a courfe of peaceable fucceffion. call eft muid

It has been argued, however, that, in a State of Nature, the end of property is fubfiftence; that we cannot affume more than we can use, nor hold it longer than we live, and are capable of ufing it, That no alteration arifes from circumftances of improvement, but that it is enough that the thing improved becomes more advantageous to ourselves,

To this it may be objected, that fuch an abfolute State of Nature is here prefumed, as in truth never exifted. Men are here; confidered in fuch a deplorable ftate, as the Poet figures them when he describes them fighting propter glandem & cubilia. L Ha

But even admitting fucha ftate, yet when we fay," that the end of property is "fubfift

“subsistence that we cannot therein af fume more than we can ufe," do not we argue inconclusively? For where hall we draw the line and determine the quantum of this fubfiftence? What will be a copious fuftenance for one man, will be a feanty provifion for another, who perhaps requires and can use a double portion.

To take up Cicero's illuftration, as in a theatre which lies in common, though one man of extraordinary bulk may require as much room as two, yet he has as good a right to the place he occupies, as another who covers but half that space. So, in fuch a State of Nature, wherein all things are common, a man who can ufe a double portion of fubfiftence, has as good a rightto his fhare, as another who can ufe but half the quantity has to his moiety.

Every man's natural rights are as extenfive as his wants. Therefore, the end of property, when confined to mere fubfiftence, can have no rules for no one can determine

if

determine how much another can use; and every man is allowed to judge for himself, he may affume whatever he pleafes, under pretence of neceffity.

b

But, in truth, the very terms of the foregoing propofitions, admit, while they feem to deny, that there is a degree of property in a State of Nature, beyond what is neceffary for fubfiftence. pfelb

By fubfiftence is here to be understood, that provifion which is abfolutely requifite for the fupport of life; without, refpect to conveniences which render it agreeable.

When it is faid, therefore," that we 66 cannot affume, more than we can use, σε nor hold it longer than we live, and that "it is enough that the thing improved be"comes more advantageous to ourselves," it may be asked, what do the relative pronoun, it, and the words thing improved, refer to? Certainly to fome other fubjects, of,

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property