ON

THE HISTORY OF PROPERTY.

PROPERTY is the right or lawful power, which a person has to a thing. Of this right there are three different degrees. The lowest degree of this right is a right merely to possess a thing. The next degree of this right is a right to possess and to use a thing. The next and highest degree of this right is a right to possess, to use, and to dispose of a thing.

This right, in all its different degrees, may be vested in one, or it may be vested in more than one man. When this right is vested in more than one man, it may be vested in them either as a number of individuals, or as a body politic.

Concerning the origin and true foundation of property, or the right of persons to things, many opinions have been formed and entertained. With regard to property in land, Mr. Paley declares, that the real foundation of it is municipal law.1 Others consider property as a natural right; but as a right, which may be extended or modified by positive institutions.2

The general property of man in animals, in the soil, and in the productions of the soil, is the immediate gift of the bountiful Creator of all. "God created man in his own image; in the image of God created he him: male and 11 Paley, 133, 138.

2 Ins. 21. 11 El. Jur. 15.
483

female created he them. And God blessed them; and God said unto them, be fruitful and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth." Immediately after the deluge, the great charter of general property was renewed. "God blessed Noah and his sons, and said unto them, be fruitful and multiply, and replenish the earth. And the fear of you and the dread of you shall be upon every beast of the earth, and upon every fowl of the air, and upon all that moveth upon the earth, and upon all the fishes of the sea; into your hand are they delivered. Every moving thing that liveth shall be meat for you; even as the green herb have I given you all things."

2

The information which is expressly revealed is congenial to those inferences, which may be drawn by sound and legitimate reasoning. Food, raiment, and shelter are nec

essary and useful to us. Things proper for our food, raiment, and shelter are provided around us. It is natural to conclude, that those things were provided to supply our wants and necessities. The same train of reasoning will apply to the enjoyments, as well as to the necessities of

man.

While men were few, and the supplies of every thing were abundant, it is probable that many things were possessed and used in common. With regard to the possession and use of some things, however, this could never be strictly the case. In the fruit plucked or gathered by one for his subsistence; in the spot which he occupied for his shelter or repose; in the bow which he has made for ensuring his safety, or procuring his subsistence; in the skin which he has obtained by his skill and swiftness in the chase, and which covers his body from the inclemency of the weather, he gains a high degree of exclusive right; and of this

1 Gen. i. 27, 28.

2 Gen. ix. 1, 2, 3.

right he cannot be dispossessed without a proportioned degree of injustice. "A public theatre," says Cicero,1 with his usual luminous propriety, "is common to all the citizens; but the seat which each occupies may, during the entertainment, be denominated his own." But, in the early period of society, concerning which we now speak, things, in general, would be viewed as belonging equally to all; in other words, to those who should first have occasion to use or possess them.

In this situation, we have reason to believe, society continued after the deluge, while "the whole earth was of one language and of one speech."2 On the confusion of languages, and the dispersion of families, when mankind dwelt no longer in "the same plain," this general society was dissolved, and no one subject of property could, in this new situation, be reasonably deemed as belonging equally to all. The different families and associations, however, who diverged from the common centre of emigration, would still consider many things, and particularly the country in which they commenced their new settlements, as common to each family or association.

The things most immediately necessary to the subsistence of life would become the first objects of exclusive property. The next objects would be such as ministered to its conveniency and comfort. Personal property, or property in movables, would become separate; while real property, or property in land, would continue common. When the association became too numerous, and the personal property of its members became too large, to subsist or live commodiously together; then a separation of landed possessions necessarily took place. Of these remarks we

1 De fin. 1. 3, c. 20.

2 Gen. xi. 1. Erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset. Just. 1. 43, c. 1.

3 Gen. xi. 2.

have a strong and striking illustration in the history of Abram and Lot. "Abram was very rich in cattle: Lot also had flocks, and herds, and tents. And the land was not able to bear them that they might dwell together; for their substance was great. And there was a strife between the herdmen of Abram's cattle and the herdmen of Lot's cattle. And Abram said unto Lot, let there be no strife, I pray thee, between thee and me, and between my herdmen and thy herdmen; for we be brethren. Is not the whole land before thee? Separate thyself, I pray thee, from me if thou wilt take the left hand, then will I go to the right or if thou depart to the right hand, then I will go to the left. And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered everywhere. Then Lot chose him all the plain of Jordan and they separated themselves the one from the other."1

Even after agriculture became known and was practised in some imperfect degree, still the land continued to be the common property of the association. Cecrops, who emigrated from civilized Egypt, was the first to teach the wandering hunters or shepherds of Attica to unite in villages of husbandmen. After their union, their agricultural labors were carried on in common; and the soil, together with its immediate productions, corn, and wine, and oil, were regarded as a common property.2 Agreeably to the same spirit and the same policy, we are told, that during the heroic ages of Greece, when a tribe sallied from its woods and mountains to take possession of a more fertile territory, the soldiers fought and conquered, not for their leaders, but for themselves-that the land acquired by their joint valor was their common right-and that it was cultivated by the united labor and assiduity of all the members of the tribe.3

In this stage of society, land was considered as the

1 Gen. xiii. 2, 5-11.

21 Gill. 8.

3 Id. 48.

property of the community, rather than of individuals; and the inhabitants were connected with the country which they inhabited, only as members of the same association.1 In this view of things, the famed establishment of a community of property, which Lycurgus made at Sparta, may be deemed nothing more than a renewal of their primitive institutions, of which some traces probably remained among the simple Spartans.2

The Scythians, it is well known, appropriated their cattle and tents, but occupied their land in common. Such, to this day, are the laws and customs of the Tar

tars.

Of the Suevi, the largest and most powerful tribe of the ancient Germans, we are informed by Cæsar, that they had no private or separate property in their land; that, every year, they sent out a proportion of their warriors in order to make war; while the rest remained at home, and cultivated the ground for all; that these warlike enterprises and peaceful occupations were pursued, in alternate years, by the different divisions of the warriors; that the tribe continued only one year in the same place; that they used corn very little; but lived chiefly on milk and flesh; and were much employed in hunting. From the pen of Tacitus we have nearly the same de

11 Gill. 68.

2 Id. 96.

3 Suevorum gens est longe maxima et bellicosissima Germanorum omnium-privati ac separati agri apud eos nihil est-quotannis singula millia armatorum, bellandi causa, suis ex finibus educunt : reliqui domi manent; pro se atque illis colunt. Hi rursus invicim anno post in armis sunt illi domi remanent-neque longius anno remanere uno in loco, incolendi causa, licet; neque multum frumento, sed maximam partem lacte atque pecore vivunt, multumque sunt in venationibus. Cæs. 1. 4, c. 1. 1, 6, c. 21.

4 Agri pro numero cultorum ab universis per vices occupantur, quos mox inter se secundum dignationem partiuntur. Facilitatem partiendi camporum spatia prestant. Arva per annos mutant; et superest ager. Tac. de mor. Ger. c. 26.