ΟΝ ΤΗΕ LAWS OF ENGLAND. BOOK THE SECOND. OF THE RIGHTS OF THINGS. CHAPTER THE FIRST. OF PROPERTY, IN GENERAL, T HE former book of these commentaries having treated at large of the jura perfonarum, or such rights and duties as are annexed to the perfons of men, the objects of our inquiry in this fecond book will be the jura rerum, or, thofe rights which a man may acquire in and to fuch external things as are unconnected with his perfon. These are what the writers on natural law ftile the rights of dominion, or property, concerning the nature and original of which I fhall first premise a few obfervations, before I proceed to diftribute and confider it's feveral objects. VOL. II. A THERE THERE is nothing which so generally ftrikes the imagination, and engages the affections of mankind, as the right of property; or that fole and defpotic dominion which one 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 themfelves the trouble to confider the original and foundation of this right. Pleased as we are with the poffeffion, we feem afraid to look back to the means by which it was acquired, as if fearful of fome defect in our title; or at best we rest fatisfied with the decifion of the laws in our favour, without examining the reafon or authority upon which thofe laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by defcent from our anceftors, 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 fet of words upon parchment should convey the dominion of land; why the fon should have a right to exclude his fellowcreatures from a determinate spot of ground, because his father had done fo before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain poffeffion, fhould 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 mafs of mankind will obey the laws when made, without fcrutinizing too nicely into the reasons of making them, But, when law is to be confidered 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 pofitive conftitutions of society. In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man "dominion over "all the earth; and over the fish of the fea, and over the "fowl of the air, and over every living thing that moveth 66 upon "upon the earth ." This is the only true and folid foun dation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this fubject. The earth therefore, and all things therein, are the general property of all mankind, exclufive of other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reasonable to fuppofe, that all was in common among them, and that every one took from the public stock to his own use fuch things as his immediate neceflities required. THESE general notions of property were then fufficient to anfwer all the purposes of human life; and might perhaps ftill have answered them had it been poffible for mankind to have remained in a state of primeval fimplicity: 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 themfelves, if we may credit either the memorials of them preferved in the golden age of the poets, or the uniform accounts given by historians of thofe times, wherein "erant omnia communia et indivifa « omnibus, veluti unum cunctis patrimonium effet " Not that this communion of goods feems ever to have been applicable, even in the earliest ages, to ought but the fubftance 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 tranfient property, that lasted so long as he was ufing it, and no longer: or, to speak with greater precifion, the right of poffeffion continued for the fame time only that the act of poffeffion lafted. 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 reft, for shade, or the like, acquired for the time a fort of ownership, from which it would have been unjuft, and contrary to the law of nature, to have driven him by force; but the instant that he a Gen. i. 28. c Barbeyr. Puff. I. 4. ç. 4. Justin. 1. 43. c. I. A 2 quitted A quitted the use or occupation of it, another might seise it without injustice. Thus also a vine or other tree might be faid to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the fole property of the fruit, which he had gathered for his own repaft. A doctrine well illuftrated 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 own d. BUT when mankind increased in number, craft, and ambition, it became neceffary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very fubftance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of perfons were ftriving who should get the first occupation of the fame thing, or difputing 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 fhelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, fo long as he had only an ufufructuary property in them, which was to ceafe the inftant that he quitted poffeffion;-if, as foon as he walked out of his tent, or pulled off his garment, the next ftranger who came by would have a right to inhabit the one, and to wear the other. In the cafe of habitations in particular, it was natural to obferve, 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 their young; that the birds of the air had nefts, and the beafts of the field had caverns, the invafion of which they efteemed a very flagrant injuftice, and would facrifice their lives to preserve them. Hence a property was foon established in every man's house and home-ftail; which feem to have been originally mere ₫ Quemadmodum theatrum, cum commune fit, re&e tamen dici poteft, ejus esse eum locum quem quique occuparit. De Fin. 1. 3. c. 20. temporary temporary huts or moveable cabins, fuited to the defign of providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extenfive property in the foil or ground was established. And there can be no doubt, but that moveables of every kind became fooner appropriated than the permanent fubftantial foil: partly because they were more fufceptible of a long occupancy, which might be continued for months together without any fenfible 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, beftowed upon any subject which before lay in common to all men, is univerfally allowed to give the fairest and most reasonable title to an exclufive property therein. THE article of food was a more immediate call, and therefore a more early confideration. Such, as were not contented with the spontaneous product of the earth, fought for a more folid refreshment in the flesh of beafts, which they obtained by hunting. But the frequent difappointments, incident to that method of provifion, induced them to gather together fuch animals as were of a more tame and fequacious nature; and to establish a permanent property in their flocks and herds, in order to fuftain themselves in a lefs precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The fupport of these their cattle made the article of water also a very important point. And therefore the book of Genefis (the most venerable monument of antiquity, confidered merely with a view to history) will furnish us with frequent inftances of violent contentions concerning wells; the exclufive property of which appears to have been established in the first digger or occupant, even in fuch places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a fojourner, afferting his right to a well in the county of Abimelech, and exacting an oath for his fecurity, "because he had digged that well." And Ifaac, |