quitted the use or occupation of it, another might seise it without injuftice. Thus also a vine or other tree might be faid to be in common, as all men were equally entitled to it's 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 d. 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 use only, but the very fubftance of the thing to be used. Otherwife innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of perfons were striving who should get the first occupation of the fame thing, or difputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more eafy, commodious, and agreeable; as, habitations for fhelter and fafety, and raiment for warmth and decency. But no man would be at the trouble to provide either, fo long as he had only an ufufructuary property in them, which was to cease the instant that he quitted poffeffion; - if, as foon as he walked out of his tent, or pulled off his garment, the next stranger 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 observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young; that the birds of the air had nefts, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would facrifice their lives to preserve them. Hence a property was foon established in every man's house and home-stall; which feem to have been originally mere Quemadmodum theatrum, cum commune fit, rette tamen dici poteft, ejus effe eum lacum quem quifque occuparit. De Fin. 1. 3. 6, 20. temporary temporary huts or moveable cabins, fuited to the design of providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extenfive 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 fubftantial foil: partly because they were more fufceptible of a long occupancy, which might be continued for months together without any fenfible interruption, and at length by usage ripen into an established right; but principally because few of them could be fit for use, till improved and meliorated by the bodily labour of the occupant which bodily labour, bestowed upon any fubject which before lay in common to all men, is univerfally allowed to give the fairest and most reasonable 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 spontaneous product of the earth, fought for a more folid refreshment in the flesh of beafts, which they obtained by hunting. But the frequent disappointments, 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 themselves in a lefs precarious manner, partly by the milk of their dams, and partly by the flesh of the young. The fupport of these their cattle made the article of water also a very important point. And therefore the book of Genesis (the most venerable monument of antiquity, confidered merely with a view to history) will furnish 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 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, reclaimed this his father's property; and, after much contention with the Philistines, was fuffered to enjoy it in peace f. ALL this while the foil and pasture of the earth remained till in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the neceffity of a fole and exclusive 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 spot of ground, it was deemed a natural right to feife upon and occupy fuch other lands as would more eafily fupply their neceffities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the eaft; where the climate itself, 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 also a striking example of the fame kind in the hiftory of Abraham and his nephew Lot 1. When their joint fubftance became fo great, that pafture and other conveniences grew fcarce, the natural confequence 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 thyself, 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 acknowleged right, in either, to occupy whatever ground he pleased, 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 journeyed east; and Abraham "dwelt in the land of Canaan." f Gen. xxvi. 15. 18, &c. campus, ut nemus placuit. De mor. Ger. 16, h Gen, c. xiii. UPON UPON the fame principle was founded the right of migration, or fending colonies to find out new habitations, when the mother-country was overcharged with inhabitants; which was practised as well by the Phaenicians and Greeks, as the Germans, Scythians, and other northern people. And, fo long as it was confined to the stocking and cultivation of defart uninhabited countries, it kept strictly within the limits of the law of nature. But how far the feifing 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 customs, in government, or in colour; how far fuch a conduct was confonant to nature, to reafon, or to chriftianity, deferved well to be confidered by those, who have rendered their names immortal by thus civilizing mankind. As the world by degrees grew more populous, it daily be came more difficult to find out new spots to inhabit, without encroaching upon former occupants; and, by constantly occupying the fame individual spot, the fruits of the earth were confumed, and it's fpontaneous produce destroyed, without any provifion for a future fupply or fucceffion. It therefore became neceffary to pursue some regular method of providing a constant subsistence; 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 established the idea of a more permanent property in the foil, than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in fufficient quantities, without the affistance of tillage but who would be at the pains of tilling it, if another might watch an opportunity to feife upon and enjoy the product of his industry, art, and labour? Had not therefore a separate property in lands, as well as moveables, been vested in some individuals, the world must have continued a foreft, and men have been mere animals of prey; which, according to some philofophers, is the genuine ftate of na ture. Whereas now (so graciously has providence interwoven our duty and our happiness together) the result of this very neceffity has been the enobling of the human fpecies, by giving it opportunities of improving it's rational faculties, as well as of exerting it's natural. Neceffity begat property: and, in order to insure that property, recourse was had to civil fociety, which brought along with it a long train of inseparable concomitants; ftates, government, laws, punishments, and the public exercise of religious duties. Thus 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 leisure was given to others to cultivate the human mind, to invent useful arts, and to lay the foundations of science. 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 specific 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 ufe of the foil, fo it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed fome difference among the writers on natural law, concerning the reason why occupancy should convey this right, and inveft one with this abfolute property: Grotius and Puffendorf infifting, that this right of occupancy is founded upon a tacit and implied affent of all mankind, that the first occupant should become the owner; and Barbeyrac, Titius, Mr Locke, and others, holding, that there is no fuch implied affent, neither is it neceffary that there should be; for that the very act of occupancy, alone, being a degree of bodily labour, is from a principle of natural justice, without any confent or compact, fufficient of itself to gain a title. A difpute that favours too much of nice and fcholaftic refinement! However, both fides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man feifing to his own continued ufa |