CHAPTER I.

OF PROPERTY IN GENERAL.

Having explained the Jura Personarum, or such Rights and Duties as are annexed to the persons of men, let us next inquire into the Jura Rerum, or those Rights which a man may acquire in and to such external things as are unconnected with his person. These are what writers on natural law style "the rights of dominion, or property." Before proceeding to classify and consider their several objects, let us make a few inquiries respecting the nature and origin of such rights.

Explain the Origin and Foundation of the Rights to Property.

There is nothing which so generally strikes the imagination, and engages the solicitude of mankind, as the right of property; or that sole and despotic dominion which a man claims and exercises over the external things of the world, in total exclusion of the right of other men; yet few consider the origin and foundation of this right. Pleased with the possession, we seem 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 rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been founded. These inquiries would be useless and even troublesome in common life, but when law is considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine the rudiments and grounds of these positive constitutions of society.

In the beginning of the world, we are informed by Holy Writ,

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the all-bountiful Creator gave to̟ man "dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth." This is the only true and solid foundation of man's dominion over external things. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator; and, while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.

As the world by degrees grew populous, it daily became 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 a 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 connection 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 movables, been vested in some individuals, the world must have continued a forest, and men have been mere, animals of prey. Whereas, now so graciously has Providence interwoven 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, as well as of exerting its natural faculties. 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 suffi

OF PROPERTY IN GENERAL.

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cient 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. Property, both in lands and movables, being originally acquired by the first taker, it remains in him, by the principles of universal law, till such time as he does some other act which shows 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 public 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 has not by this act declared any intention to abandon it, but rather the contrary; and if he loses or 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. This, in fact, is the doctrine of the law of England with relation to treasure trove.* *

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 considered either as a continuance of the original possession that 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 relinquishment by the owner, and delivering the possession to another individual, amount to a transfer of the property; the

*Money or coin found hidden in the earth or other private place, the owner being unknown, belongs to the Crown. Concealing treasure trove is punishable by fine and imprisonment.

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.

Considering men as absolute individuals, and unconnected with civil society, all property would necessarily cease at death, and 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, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased; 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 normal 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 or relations of the deceased, was allowed much earlier than the right of devising by will. It has nature on its side, and has been established by long and inveterate custom. It is certainly a wise and effectual civil institution, for 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.

Wills, therefore, and testaments, rights of inheritance, and successions, are all creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct

* See page 124.