right to seize upon and occupy such other lands as would more easily sup ply their necessities. This practice is still retained among the wild and uncultivated 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 empire. (g) We have also a striking example of the same kind in the history of Abraham and his nephew Lot. (h) When their joint substance became so great, that pasture and other conveniences grew scarce, the natural consequence was, that a strife 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 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 lifted 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 east; and Abraham "dwelt in the land of Canaan."

[ 7 ]

Upon the same 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 Phonicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seizing on countries already peopled, and driving out or massacring 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 become 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 its spontaneous produce destroyed, without any provision for 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 another might watch an opportunity to seize 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 Colunt ducreti et divern, utfoni, ut campus, ut nemus placuit. Demer. Ger 16.

1. See an attempt to trace the progress of ag culture, and consequent appropriation of land, Patty's Com. L. 1 to 4.

must have continued a forest, and men have been mere animals of prey; which, according to some philosophers, is the genuine state of nature. Whereas now (so graciously has Providence interwoven [ 8 ] 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 its rational faculties, as well as of exerting its 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, governments, 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 gives 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 Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind, that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding, that there is no such implied assent, neither is it necessary that there should 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 dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by

(2) 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 b's labour with, and joined to it something that is his own, and thereby makes it his property." (On Gov. c. 5.)

This universal principle we find well described in the Laws of Menu, Son of Brahma : “ Sages, who know former times, pronounce cultivated land to be the property of him who cut away the wood, or who cleared and tilled it, and the antelope, of the first hunter who mortally wounded it." 3 Sir Wm. Jones, 341.

We find many illustrations of this principle established by the law of nations, and recognised by our law. Thus by the custom of the whale fishery among the Gallipago Islands, he who strikes a whale with a loose harpoon is entitled to receive half the produce from another person who may follow and kill it. Fennings v. Ld. Grenvill, 1 Tannt. Rep. 241. See further instances post chap. 16 and 26. relating to tities to things real and personal by occupancy.

To determine the foundation of the right of property, many writers, whose power of intellect and profound knowledge justly entitle them to the rank of philosophers, have employed them selves with various success, but no one has given such a clear and convincing answer to the inquiry, as to preclude all further speculation on the subject. It is not disputed that the guts ca nature-the earth and its ever recurring provision for the support and comfort of man, were originally the portion, equally, of all mankind. Nor is the abstract proposition dissented from, that no time can render sacred or infuse the principle of justice into a claim of right which began in ursurpation upon the general rights of all, establishing itself in the commencement by force or frand, and continued by the supineness or insensibility of the injured to their wrongs, of the means of redress. The answer, therefore, of the possessor of thousands of acres to hun whose portion being insufficient to sustain him, de mands to know why the division je so unequal, that his ancestors to the remotest antiquity enjoyed them before him, is nugatory, or rather it only serves to disclose the fact, that the same injustice of which he complaias, has been milicted upon each screeding generation, from the first to the last in the series

Admitting that occupancy was properly the thing by which the title to prop, ety was origins'

which the title was in fact originally gained, every man seizing to [ 9 ] his own continued use such spots 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 speaking, 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 pub lic highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seize 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

gained, yet it must be conceded, that an individual's necessities, and his ability to use that winch he assumes to occupy, and not his ambition, should be the limit of his occupancy; and therefore the right of the lord of extensive domains, derives no colour or support from this argument. Besides, in trying the question upon first principles, it must be borne in mind, that those principles are immutable, and always the same; and that every new member that is ushered into society brings with him the saine right to participate in the general stock of the means of subsistence, as those who have preceded him; at least this may be taken for granted for the purposes of this question, though Mr. Malthus has promulgated a widely different doctrine in his researches into the remedies for extended pauperism.

The best defence which can be offered of the unequal distribution of property lies more upon the surface, and is more practical and satisfactory than these attempts to resolve the inquiry into a discussion of abstract principles. Wealth, and extended possessions, are the legitimate result of successful enterprise, industry, and talents; and the protection afforded to the enjoyment of them operates as a powerful stumulus to the developement and exercise of those energies which dignify the nation, and diffuse a general prosperity among the people. The present arrangement of property, therefore, being most conducive to the public welfare, has the surest foundation in the true principles of political economy, and the maxims of practical justice; and baving grown up with the habits of the people, and entwined itself with their affections, must be permanent in its duration, and prosperous in its course. Chitty

But it is of great importance that moral obligations and the rudiments of laws should be referred to true and intelligible principles, such as the minds of serious and weli 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 something 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 its shape or form; and if I had a right to the substance, before any labour was bestowed upon it, that right still 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 Pufendorf, 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, seemas equally, or more, subertluons 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 and murder each other, because they have promised not to do so. Men are bound to fulfil their contracts or engagements, because society could not otherwise exist; men are bound to refrain from ano ther's property, because likewise society could not otherwise exist. Nothing therefore is gained by resolving one obligation into the other.

But how, or when, then does property cominence? I conceive no better answer can be given, than by occupancy, or when any thing is separated for private use from the common stores of nature. This is agreeable to the reason and sentiments of mankind, prior to all civil establish ments. When an untutored Indian has set before him the fruit which he has plucked from the tree that protects him from the heat of the sun, and the shell of water raised from the fountain that springs at his feet; if he is driven by any daring intruder from this repast, so easy to be reced, he instantly feels and resents the violation of that law of property, which nature hersel?” veritten upon the hearts of all mankınd Christian

drops it by accident, it cannot be collected from thence, that he designed to quit the possession; and therefore in such a case the property still 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. (i)

But this method of one man's abandoning his property, and another seizing the vacant possession, however well founded in theory, could not long subsist in fact. It was calculated merely for the rudiments of civil society, and necessarily 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 was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance: which may be consider [10] ed either as a continuance of the original possession which the first occupant had or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property and Titius, being the only or first man acquainted with such my intention, immediately steps in and seizes the vacant possession: thus the consent expressed by the conveyance gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides. 3

The most universal and effectual way of abandoning property, is by the death of the occupant: when, both the actual possession and intention of keeping possession ceasing, the property which is founded upon such possession and intention ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him: which would he highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for, then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any dis- [11] position at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased;

i See Book I. p. 295.

(3) Upon whatever principle the right of property is founded, the power of giving and transferring seems to follow as a natural consequence; if the hunter and the fisherman exchange the produce of their toils, no one ever disputed the validity of the contract, or the continuance of the original title. This does not seem to be aptly explained by occupancy, for it cannot be said that in such a case there is ever a vacancy of possessica Christian VOLI. 51

that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would (*) occasion. And farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be formed. The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil right. It is true, that the transmission of one's possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society: it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that its immediate original arose not from speculations altogether so delicate and refined, and, if not

from fortuitous circumstances, at least from a plainer and more sim[12] ple principle. A man's children or nearest relations are usually about

him on his death-bed, and are the earliest witnesses of his decease. They become therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law. And therefore also in the earliest ages, on failure of children, a man's servants born under his roof were allowed to be his heirs; being immediately on the spot when he died. For, we find the old patriarch Abraham expressly declaring, that "since God given him no seed, his steward Eliezer, one born in his "house, was his heir." (?)

While property continued only for life, testaments were useless and unknown: and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing of one's property, or a part of it, by testament; that is, by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased, which we therefore emphatically style his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of onethird of his moveables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the Eighth; and then only of a certain portion: for it was not till after the Restoration that the power of devising real property became so universal as at present.

It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon the death of either, the inheritance does not so property descend, as continue in the hands of the survivor. Ff. 21. 2. 11.

1 Gen. xv. J.

4) By 32 Hen. VIII c. 1. all socage lands were made devisable, and two-thirds of lands