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Occupancy, doubtless, gave the first title to property, in lands and moveables. It is the natural and original method of acquiring it; and upon the principles of *319 universal "law, that title continues so long as occupancy continues. There is no person, even in his rudest state, who does not feel and acknowledge, in a greater or less degree, the justice of this title. The right of property, founded on occupancy, is suggested to the human mind, by feeling and reason, prior to the influence of positive institutions. There have been modern theorists, who have considered separate and exclusive property, and inequalities of property as the cause of injustice, and the unhappy result of government and artificial institutions. But human society would be in a most unnatural and miserable condition, if it were possible to be instituted or reorganized upon the basis of such speculations. The sense of property is graciously bestowed on mankind, for the purpose of rousing them from sloth, and stimulating them to action; and so long as the right of acquisition is exercised in conformity to the social relations, and the moral obligations which spring from them, it ought to be sacredly protected. The natural and active sense of property pervades the foundations of social improvement. It leads to the cultivation of the earth, the institution of government, the establishment of

consisted in the supremacy of law over personal will, whether it be the will of the one, the few, or the many. So, Aristotle (Politics, b. 1.) declared that Government pertained to man in his most perfect state, and entered into the very constitution of human nature. Man could not strictly be man without it. Existence in the state was requisite to the completion of his humanity, and essential to his protection against his own wants and vices.

Grotius, Jure B. & P. b. 2. ch. 3. sec. 4. Mare liberum, ch. 5. All the writers on international law concur in the doctrine that occupancy is essential to the title to land newly discovered and vacant. Puff. Droit de la Nat. liv. 4. ch. 4. Vattel, Droit des Gens, liv. 1. ch. 15.

Quod enim nullius est id ratione naturali occupanti conceditur. Dig.

41. 1. 3.

justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erections of charity, and the display of the benevolent affections.a

*The exclusive right of using and transferring pro- *320 perty, follows as a natural consequence, from the perception and admission of the right itself. But, in the infancy and earlier stages of society the right of property depended almost entirely upon actual occupancy; and it is a general law of property in all systems of jurisprudence, that actual delivery or possession is necessary to consummate the title. Property without possession, is said to be too abstract an idea for savage life; and society had made some considerable advances towards civilization, and the improvements resulting from order and subordination must have existed to some certain extent, before the temporary right of occupancy was changed into a permanent and solid title under the sanction of positive law. Property in land was first in the nation or tribe, and the right of the individual occupant was

■ M. Toullier, in his accouut of the origin and progress of property, in his Droit Civil Francais, tom. iii. 40, insists, that a primitive state of man existed before the establishment of civil society, when all things were common, and temporary occupancy the only title; but he gives no sufficient proof of the fact. The book of Genesis, which he justly regards as the most ancient and venerable of histories, does not show any such state of the human race. The first man born was a tiller of the ground, and the second a keeper of sheep. The earliest accounts of Noah and his descendants after the flood, in Genesis, ix. x. xiii. prove that they were husbandmen, and planted vineyards, built cities, established kingdoms, and abounded in flocks and herds and gold and silver. I observe, however, with pleasure, that M. Toullier has freely and liberally followed Sir William Blackstone, in his elegant dissertation on the rise and progress of property. President Goguet, in his most learned work, De l'origine des lois, des arts, des sciences, et de leurs progres chez les anciens Peuples, b. 2. ch. 1. art. 1, considers agriculture as flourishing before the dispersion at Babel, though after that event mankind relapsed into the most deplorable barbarity.

b Grotius, b. 2. ch. 6. sec. 1.

• Ibid. b. 2. ch. 6. sec. 1. Puff. b. 4. ch. 9. sec. 8. Barbeyrac's note, ibid. Sir William Scott, case of the Fama, 5 Roh. Adm. Rep. 114.

merely usufructuary and temporary. It then went by allotment, partition, or grant from the chiefs or prince of the tribe to individuals; and, whatever may have been the case in the earliest and rudest state of mankind beyond the records of history, or whatever may be the theory on the subject, yet, in point of fact, as far as we know, property has always been the creature of civil institutions. By the ancient law of all the nations of Europe, the bona fide possessor of goods had a good title. as against the real owner in whatever way, whether by force, fraud, or accident, the owner may have been divested of the possession. It was the law in several parts of Germany so late as the middle of the last century according to Heinneccius,b that if one person should lend, or hire or deposit his goods with another, and they should come to the possession of a third person, he would be entitled to hold them as against the original owner. By the Roman law, in its early state, property stolen and sold, was lost to the real owner, and the only remedy was by an action, (conductio furtiva) against the thief. But when the Roman law advanced to maturity, it was held, that theft did not deprive a man of his title to property;

and the action of rei vindicatio was, in effect, *321 given against the *bona fide purchaser.

The

law of the twelve tables, by which the possession of one year, was a good title by prescription to moveables, shows that a feeble and precarious right was attached to personal property out of possession.

The ancient laws of Europe confiscating stolen goods, on conviction of the thief, without paying any regard to the right of the real owner, is another instance to prove the prevalence of a very blunt sense of the right of pro

Cæsar de Bel. Gul. lib. 4. ch. 2. Ib. lib. 6. ch. 20.

Opera, tom. v. part 2. 180, 181.

This was by the perpetual edict extending the actio metus, which differed in nothing but in name from the rei vindicatio. Inst. 2. 6. 2. Lord Kames' Historical Law Tracts, tit. Property.

perty distinct from the possession. The English doctrine of wrecks was founded on this imperfect notion of the right of property, when it had lost the evidence of possession. By the common law, as it was laid down by Sir William Blackstone, goods wrecked were adjudged to belong to the king, and the property was lost to the owner. This, he admits, was not consonant to reason and humanity; and the rigor of the common law was softened by the statute of West. I. 3 Edw. I. ch. 4., which declared, that if any thing alive escaped the shipwreck, be it man or animal, it was not a legal wreck, and the owner was entitled to reclaim his property within a year and a day. Upon this statute the legal doctrine of wrecks has stood to this day. St. Germain, the author of the Doctor and Student, did not seem to think, that even the law under this statute, stood with conscience, b for why should the owner forfeit the shipwrecked goods, though it should happen, that no man, dog, or cat, (to use the words of the statute,) should come alive unto the land out of the ship? The only rational ground of the claim on the part of the crown is, that the true owner cannot be ascertained. The imperial edict of the Emperor Constantine was more just than the English statute, for it gave the wrecked goods, in every event, to the owner; and *Bracton, who wrote before the statute of 3 Edw. I., and who was acquainted with the edict of Constantine, lays down the doctrine of wreck upon perfectly just principles. He makes it to depend, not upon the casual escape of an animal, but upon the absence of all evidence of the owner. The statutes of New-York, Massachusetts, and other American states, are like the edict of Constantine, and the declaration of Bracton; for they declare, that nothing that shall be cast by

*322

Com. vol. 1. p. 290, 291.
Dr. and Stu. 267, 268.
Code, 11. 5. 1.

Lib. 3. 120. sec. 5.

the sea upon the land, shall be adjudged a wreck, but the goods shall be kept safely for the space of a year for the true owner, to whom the same is to be delivered on his paying reasonable salvage; and if the goods be not reclaimed within that time, they shall be sold, and the procceds accounted for to the state. In the case of Hamilton & Smith v. Davis, the very question arose in the K. B., whether the real owner was entitled to reclaim his shipwrecked goods, though no living creature had come alive from the ship to the shore. The grantee under the crown claimed the goods as a wreck, because the ship was totally lost, and no living animal was saved; and his very distinguished counsel, consisting of Mr. Dunning, (afterwards Lord Ashburton,) and Mr. Kenyon, (afterwards Lord Chief Justice of the K. B.,) insisted, that according to all the writers, from the Mirror to Blackstone inclusive, it was a lawful wreck, as no living creature had come to the shore, and that Bracton stood unsupported by any other writer. But Lord Mansfield, with a sagacity and spirit that did him infinite honor, reprobated the doctrine urged on the part of the defendant, and declared that there was no case adjudging that the goods were forfeited, because no *dog, or cat, or other animal, came alive to the shore; that any such determination would be contrary to the principles of law and justice; that the very idea was shocking; and that the coming ashore of a dog, or a cat, alive, was no better proof of ownership, than if they should come ashore dead; that the whole inquiry was a question of ownership; and that if no owner could be discovered the goods belonged to the king, and not otherwise;

*323

■ N. Y. Revised Statutes, vol. i. p. 690. Mass. Revised Statutes, 1835, part 1. tit. 14. ch. 57. sec. 12. The colony laws of Massachusetts also Preserved all wrecks for the owner, and did not follow the English law. Dana's Abr. vol. iii. 144. Probably the statute law of other states is equally just. The acts of North Carolina, of 1801, 1805, 1817, 1818, on this subject, are founded, said Mr. Justice Story, in 5 Mason's Rep. 477, on the principles of justice and humanity.

5 Burr. Rep. 2732.

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