pancy of title by profcription; of title by forfeiture of title by alienation; of alienation by deed; of alienation by matter of record; of alienation by special custom; of alienation by devife; of things perfonal; of property in things perfonal; of title to things perfo. nal, by occupancy; of title by prerogative, and forfeiture of title by cuftom; of title by fucceffion, marriage, and judgment; of title by gift, grant, and contract; of title by bankruptcy; of teftament, and adminiftration.

Thefe divifions will, we apprehend, be found to be what the author intended them, neither too large nor comprehenfive on the one hand, nor too trifling or minute on the other; both circumftances equally productive of confufion. It must be added, that no book perhaps was ever published, that brought down the matter of which it treated fo near the time of publication, without the affistance of notes, as this does.

It now remains that we give fome specimens of the work. The judicious and elegant account he gives of the nature and origin of property, is fo curious, that we need make no apology for inferting it at length."

"There is nothing which fo ge. nerally frikes the imagination, and engages the affections of man kind, as the right of property; or that fole and defpotic dominion which one man claims and exercifes over the external things of the world in total exclufion 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. Pleafed as we are with the VOL. X.

poffeffion, we feem 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 reft 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 de. fcent from our ancestors, or by the laft will and teftament of the dying owner; not caring to re flect that (accurately and ftrictly fpeaking) there is no foundation in nature or in natural law, why a fet of words upon parchment fhould convey the dominion of land; why the fon fhould have a right to exclude his fellow-creatures from a determinate fpot of ground, becaufe 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 poffef fion, should be entitled to tell the reft of the world which of them should enjoy it after him. Thefe enquiries, it must be owned, would be useless and even troublefome in common life. It is well if the mafs of mankind will obey the laws when made, without fcrutinizing too nicely into the reafons of making them. when law is to be confidered not only as matter of practice, but alfo as a rational fcience, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive conftitu. tions of fociety.

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

"over the fowl of the air, and "over every living thing that "moveth upon the earth." This is the only true and folid foundation of man's dominion over external things, whatever airy metaphyfical notions may have been ftarted 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 reafonable to fuppofe, that all was in common among them, and that every one took from the public ftock to his own ufe fuch things as his immediate neceflities required.

Thefe general notions of peoperty were then fufficient to anfwer all the purposes of human life; and might perhaps ftill have anfwered them, had it been poffible for mankind to have remained in a state of primaeval fimplicity as may be collected from the manners of many American nations when firft difcovered by the Europeans; and from the ancient method of living among the firft 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 hiftorians of thofe times, wherein "erant omnia com"munia et indivifa omnibus, veluti unum cunctis patrimonium fet:" Not that this communion of goods feems ever to have been applicable, even in the earlieft ag s, to aught but the fubftance of the thing; nor could be extended to the use of it. For, by the law of nature and reafon, he who firft

began to use it, acquired therein a kind of tranfient property, that lafted fo long as he was ufing it, and no longer: or, to fpeak with greater precifion, the right of pof. feffion 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 determinate fpot of it, for reft, for fhade, 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 inftant that he quitted the ufe or occupation of it, another might feize it without injuftice. Thus alfo a vine or other tree might be faid to be in common, as all men were equally entitled to its 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.

But when mankind increafed in number, craft, and ambition,' it became neceffary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate fe only, but the very fubftance of the thing to be used. Otherwife innumerable tumults must have arifen, and the good order of the world been continually broken and disturbed, while a variety of perfons were ftriving who fhould get the first occupation of the fame

thing, or difputing which of them had actually gained it. As human life alfo grew more and more refined, abundance of conveniences were devised to render it more eafy, commodious, and agreeable; as, habitations for fhelter and fafe. ty, and raiment for warmth and decency. But no man would be at the trouble to provide either, fo long as he had only an ufufructu-, ary property in them, which was to cease 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 elfe was in common, maintained a kind of permanent property in their dwel. lings, efpecially for the protection of their young; that the birds of the air had nefts, and the beasts of the field had caverns, the invafion of which they esteemed a very flagrant injustice, and would facrifice their lives to preferve them. Hence a property was foon eftablished in every man's houfe and home-ftall; which feem to have been originally mere temporary huts or moveable cabins, fuited to the defign of Providence for more fpeedily peopling the earth, and fuited to the wandering lite , of their owners, before any exten. 'five 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 fubtantial foil: partly because they were more fufceptible of a long oc

cupancy, which might be continued for months together without any fenfible interruption, and at length by ufage ripen into an eftablifhed right; but principally becaufe few of them could be fit for ufe, till improved and meliorated by the bodily labour of the occupant which bodily labour, beftowed upon any fubject which before lay in common to all men, is univerfally allowed to give the fairest and most reafonable 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 fpontaneous 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 themfelves in a lefs precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The fubport of thefe their cattle made the article of water alfo a very important point. And therefore the bock of Genefis (the most venerabie monument of antiquity, confidered merely with a view to hif tory) will furnifh us with frequent inftances of violent contentions concerning wells; the exclufive property of which appears to have been established in the firft digger or occupant, even in fuch places where the ground and herbage remained yet in common. Thus . U 2

we

we find Abraham, who was but a fojourner, afferting his right to a well in the country of Abimelech, and exacting an oath for his fecurity," because he had digged "that well." And Ifaac, about ninety years afterwards, re-claim. ed this his father's property; and, after much contention with the Philistines, was fuffered to enjoy it in peace.

All this while the foil and pafture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the neceffity of a fole and exclufive property in lands (for the fake of agriculture) was earlier felt, and therefore more readily complied with. Otherwife, when the multitude of men and cattle had confumed every convenience on one fpot of ground, it was deemed a natural right to feize upon and occupy fuch other lands as would more eafily supply their neceffities. This practice is ftill retained among the wild and uncultivated nations that have never Leen formed into civil ftates, like the Tartars and others in the caft; where the climate itfelf, and the boundless extent of their territory, confpire to retain them ftill in the fame favage ftate of vagrant liberty, which was univerfal in the earliest ages; and which Tacitus informs us continued among the Germans till the decline of the Roman empire. We have alfo a triking example of the fame kind in the hiftory of Abraham and his nephew Lot. When their joint fubftance became fo great, that pafture and other conveniences grew fcarce, the natural confe.

quence was that a ftrife arose between their fervants; fo that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compofe: "let there be no ftrife, I pray "thee, between thee and me. Is not the whole land before thee? "Separate thy felf, 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 pleafed, 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 chofe him all the "plain of Jordan, and journey"ed eaft; and Abraham dwelt "in the land of Canaan."

Upon the fame principle was founded the right of migration, or fending colonies to find out new habitations, when the mothercountry was overcharged with inhabitants; which was practifed as well as by the Phenicians and Greeks, as the Germans, Scythians, and other northern people. And, fo long as it was confined to the ftocking and cultiva tion of defart uninhabited countries, it kept ftrictly within the limits of the law of nature. how far the feizing on countries already peopled, and driving out or maffacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in cuf. toms, in government, or in co

But

lour;

lour; how far fuch a conduct was confonant to nature, to reafon, or to chriftianity, deferved well to be confidered by thofe, who have rendered their names immortal by thus civilizing mankind.

As the world by degrees grew more populous, it daily became more difficult to find out new fpots to inhabit, without encroaching upon former occupants; and, by conftantly occupying the fame individual spot, the fruits of the earth were confumed, and its fpontaneous produce deftroyed, without any provifion for a future fupply or fucceffion. It therefore be came neceffary to purfue fome regular method of providing a constant fubfiftence; and this neceffity produced, or at leaft promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connexion and confequence, introduced and eftablished the idea of a more permanent property in the foil, than had hitherto been received and a dopted. It was clear that the earth would not produce her fruits in fufficient quantities without the affiftance of tillage; but who would be at the pains of tilling it, if another might watch an opportunity to feize upon and enjoy the product of his induftry, art, and labour? had not therefore a feparate property in lands, as well as moveables, been vefted in fome individuals, the world must have continued a foreft, and men have been mere animals of prey; which, according to fome philofophers, is the genuine ftate of nature. Whereas now (fo graciously has Providence interwoven our duty and our happinefs together) the refult of this very neceffity has

been the enobling of the humau fpecies, by giving it opportunities of improving its rational faculties, as well as of exerting its natural. Neceffity begat property; and, in order to infure that property, recourfe was had to civil fociety, which brought along with it a long train of infeparable concomitants; ftates, government, laws, punishments, and the public exercife of religious duties. connected together, it was found that a part only of fociety was fufficient to provide, by their manual labour, for the neceffary fubfiftence of all; and leifure was given to others to cultivate the human mind, to invent ufeful arts, and to lay the foundations of fcience.

Thus

The only question remaining is, how this property became actually vefted; or what it is that gave a man an exclufive right to retain in a permanent manner that fpecific land, which before belonged generally to every body, but particularly to nobody. And, as we before obferved that occupancy gave the right to the temporary fe of the foil, fo it is agreed upon all hands that occupancy gave alfo the original right to the permanent property in the fubftance of the earth itself; which excludes every one elfe but the owner from the ufe of it. There is indeed fome difference among the writers on natural law, concerning the reafon why occupancy fhould convey this right, and inveft one with this abfolute property: Grotius and Puffendorff infifting, that this right of occupancy is founded upon a tacit and implied affent of all mankind, that the first occupant fhould become the owner; and Barbey rac, Titius, Mr. Locke,

U 3

and