T HE former book of thefe 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, those rights which a man may acquire in and to such 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 firft premise a few obfervations, before I proceed to distribute and confider it's feveral objects. VOL. II. 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 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 poffeffion, we seem afraid to look back to the means by which it was acquired, as if fearful of fome defect in our title; or at beft we rest fatisfied with the decifion of the laws in our favour, without examining the reafon or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, 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 fellow creatures 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 reft of the world which of them should enjoy it after him. These inquiries, it must be owned, would be ufelefs and even troublesome in common life. It is well if the mass 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 positive conftitutions 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 sea, and over the "fowl of the air, and over every living thing that moveth 66 прод "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 such things as his immediate neceffities required. THESE general. notions of property were then fufficient to anfwer all the purposes of human life; and might perhaps still have answered 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 antient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historian's of those 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 substance of the thing; nor could it 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 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 determinate spot of it, for reft, for fhade, or the like, acquired for the time a fort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force; but the inftant that he a Gen. i. 28. c Barbeyr. Puff. 1. 4. c. 4. b Juftin. 1. 43% 6. 1. A 2 quitted |