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BOOK THE SECOND.
THE RIGHTS OF THINGS.
CHAPTER I.-PROPERTY IN GENERAL.
Study of Property Rights. The jura rerum are those rights which a man may acquire in and to things, unconnected with his person. These are the rights of dominion or property, which a man claims and exercises to the exclusion of all other individuals. Few men seek to investigate the foundation of these rights, being satisfied with the possession of property, inherited by them, or devised to them, the title of which they are reluctant to examine. It will be well, if the mass of mankind will obey the laws when made, without scrutinizing the reasons for making them. But when law is to be considered as a rational science, the rudiments of these positive constitutions of society become an object of study.
Everything Originally in Common. The true foundation of man's dominion over external things is derived from the gift of the creator at the inception of the human race. Probably among the early inhabitants of the world, everything was held in common among them, and every one took from the public stock, to his own use, what he actually needed.
Community of Property. Had mankind continued to live in primeval simplicity, these general notions of property would have answered the purposes of life. This communion of goods was only applicable, even in the earliest stages, to the substance of the thing, but could not be extended to the use of it. By the law of nature and reason, he who first used it, acquired therein a kind of transient property, that lasted only while he used it; in other words, the right of possession continued for the same time, as did the act of possession. Thus the ground was in common, yet whoever was in occupation of any specified part, acquired a sort of ownership, from which it would have been unjust to have forcibly ejected him, but the instant he vacated it, another man might justly seize it. Cicero compares such a world to a theatre, which is common to the public, and yet the place any man has taken is, for the time, his own.
Permanent Dominion Requisite. With the increase of population came the necessity of more permanent dominion of property, and the appropriation to individuals of the substance of the thing to be used. Otherwise contests would continually have arisen, as to the first occupancy of the same object, and its value would be but slight, if one should have but a usufructuary property therein.
Habitations of Brutes. In the case of habitations, even the brute creation, to which everything else is in common, observe a kind of permanent property in their dwellings, especially for the protection of their young, to preserve which, both beasts and birds would hazard their lives.
Property Rights Established. Hence a property was soon established in every man's house and homestead, which originally seem to have been temporary huts, suited to the wandering lives of the owners, before any property in the soil was established. Hence movables became sooner appropriated than the permanent soil, mainly because land, to be fit for use, necessitated the bodily labor of the occupant, which labor bestowed on an object gives the best title to exclusive property therein.
Pastoral Migration. A permanent property was established in flocks and herds, and also in wells of water, which were essential to the rearing of cattle. All this while, the soil and pasture remained still in common as before, except perhaps in the neighborhood of towns, where the necessity of an exclusive property in lands was first felt. When the herbage upon one tract of land was devoured, it was deemed a natural right to occupy other lands for pasture, which practice still holds among the Tartars, and other wild nations, and also existed in Germany, until the decline of the Roman empire. The withdrawal of Lot to the plain of Jordan, while his uncle, Abraham, continued to dwell in the land of Canaan, illustrated this migratory habit.
Colonies and Conquests. Upon the same principle, colonies were sent to find new habitations, when the mother country was over-crowded, as exemplified by the Phænicians and Greeks, also by the Germans and Scythians. How far the seizing of countries already peopled, and the expelling or slaying the de
fenceless natives, because they differed from the invaders in language, religion, government or color, is consonant to reason or religion, may be questioned.
Growth of Agriculture. As the world grew more populous, and uninhabited spots more difficult to discover, the spontaneous products of the earth became exhausted. It then became requisite to find means of providing regular subsistance, which promoted the art of agriculture, and introduced the idea of a more permanent property in lands. No one would till the soil, if another could seize the matured product of his industry and labor.
Origin of Government. Necessity begat property, and in order to retain that property, recourse was had to civil society, which resulted in the formation of states, government, laws, punishments, and the public exercise of religious duties. Thus connected, it was found that a part of society sufficed to provide, by their manual labor, for the necessary subsistence of all; and leisure was given to others to cultivate the mind, to invent useful arts, and to lay the foundations of society.
Possession of Land. How Acquired. The only remaining question is, how this property became actually invested; how a man obtained an exclusive right to hold in a permanent manner specific land, which belonged before to all mankind. Occupancy having given the right to the temporary use of the soil, also gave the original right to the permanent property in the substance of the earth itself. All writers on the subject agree, that the original title was gained by occupancy, every inan seizing for his own continued use, such spots of ground, as he desired, provided it had not been pre-occupied by another.
Abandonment of Possession. Property both in lands and movables, being thus originally acquired by the first taker, remains in him till such time as he indicates an intention to abandon it, when it is liable to be appropriated by the next occupant. So if one possessed of a jewel, casts it away, the finder thereof becomes its possessor. But if he hides it privately, and it is discovered, the finder acquires no property therein, nor will he be entitled to its possession, where the owner has lost it. This is the doctrine of the law of England, in relation to treasure trove.
Transfer of Possession. This voluntary abandonment of property by one man, and its subsequent occupancy by another,
was calculated merely for the rudiments of society, and soon
way of abandoning property is by the death of the occupant, when both the actual possession and the intent to retain possession
All property in a man, therefore, terminates at his death, considering man as unconnected with civil society; and in a savage state the next immediate occupant would acquire a right thereto. But under civilized governments, the almost universal law has either given a dying person a power of continuing his property, by disposing of his possessions by will, or if he neglects to make such disposition, the municipal law steps in, and declares who shall be the successor, representative or heir of the deceased.
Escheat to the State. In the absence of a last will, or of existing heirs of the deceased, the doctrine of escheat is adopted in almost every country, whereby the property becomes vested in the state, which succeeds to those inheritances to which no other title can be found.
Right of Descent. The right of inheritance, or descent, to the children and relatives of the deceased, seems to have been allowed much earlier than the right of devising by last will and testament. This appears to be the prompting of nature, yet we often mistake for nature, what we find established by long custom.
Children, as Heirs. The transmission of one's possession to posterity has an evident tendency to make a man a good citizen, and a useful member of society. It prompts a man to deserve well of the public, when he is sure the reward of his services will not die with himself, but be transmitted to those to whom he is deeply attached. The original of this right of inheritance arose, however, from a more simple principle. A man's children or nearest relatives are usually his death-bed attendants, and on his decease, the next immediate occupants. Therefore in the earliest ages, on failure of children, a man's servants, born under his roof, and present at his death, were allowed to be his heirs.