title. A dispute that savours too much of nice and scholastic refinement (18)! However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seising to his own continued *use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. [ *9] mained in him an intention to then once more mon. Property, both in lands and moveables, being thus ori- Property thus acquired by the ginally acquired by the first taker, which taking amounts first taker, reto a declaration that he intends to appropriate the thing to till he showed his own use, it remains in him, by the principles of univer- abandon it, and sal law, till such time as he does some other act which became comshows 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 seise 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 hath 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. And this, we may remember, is the doctrine of the law of England, with relation to treasure trove (i). But this method of one man's abandoning his property, and another seising 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 (i) See Vol. I. p. 295. (18) The best use, perhaps, which can be made of the two propositions, is to show that one may be resolved by the other. The disputants, probably, all meant the same thing, in substance; and would unanimously have agreed as to the source from which the right (or rule) in question was to be finally derived. Grotius and Puffendorf, there can be little doubt, assumed the tacit and implied Mutual conve nience and the interests of civil society introduced and countenanced the transfer of property by sale, grant, or conveyance. 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 proThus mutual convenience introduced commerprietor (19). cial traffic, and the reciprocal transfer of property by sale, grant, or conveyance: which may be considered either as a continuance of the original possession which the first occupant had; or as an abandoning of the thing by the present [10] owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property; the 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. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property: and Titius, being the only or first man acquainted with such my intention, immediately steps in and seises the vacant possession: thus the consent expressed by the conveyance, gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides (20). (19) After the right of property was Hic segetes, illic veniunt felicius uvæ, cunt Gramina. Nonne vides, croceos ut Tmo- India mittit ebur, molles sua thura At Chalybes nudi ferrum, virosaque Castorea, Eliadum palmas Epirus equa rum ? VIRG. 1 Georg. 54. and this was the foundation of all was carried on by barter, its convenience, although even then great, must have been infinitely less than it became after a general standard was agreed upon, as the measure of all commodities. It is marvellous, that in the present day there should be some persons desirous of seeing freedom of commercial intercourse restricted, as if it were wrong in principle. Their arguments are questionable enough, when they contend for any exceptions to the rule of free trade; but some go further, and do not hesitate to deny the soundness of that which nature herself has plainly declared to be the first principle and foundation of political economy. (20) Mr. Christian, in his note upon this passage, says, "Upon The most universal and effectual way of abandoning And also by tesproperty, is by the death of the occupant; when, both the position: whatever principle the right to property is founded, the power of giving and transferring seems to follow as a natural consequence;" and so far all his readers, probably, will be disposed to agree with him. But, what he proposes as an illustration of his doctrine, will be thought, perhaps, by some, rather to darken it.. He proceeds thus: "if the hunter and the fisherman exchange the produce of their toils, no one ever disputed the validity of the contract, or the continuance of the original title. This (he says) does not seem to be aptly explained by occupancy, for it cannot be said that in such a case there is ever a vacancy of possession." Now, in the case put, the hunter and the fisherman respectively, by occupancy of the distinct articles which were the produce of their dissimilar toils, and which articles, before such occupancy, were in common to all mankind, had acquired separate titles to a property in those several articles; and the validity of an exchange between such proprietors, it would be unreasonable to question. But, it may be fairly questioned, whether there be not some verbal ambiguity at any rate, (and verbal ambiguities are dangerous in the discussion of title,) in saying that, after such exchange, the original title still had continuance; and whether it would not have been more proper to have said, that each of the parties to the exchange acquired thereby a new title to an exclusive property in the thing which he received in exchange; a new title founded, no doubt, as every derivative title must be, upon the original title, but still actually a new one. So, when a transfer of property takes place by any other means than by exchange, it seems at least equivocal to say, the original title has continuance. Every person, no doubt, who acquires VOL. II. property which previously belonged to another, if the acquisition was made without fraud or force, has vested in him all the claims which the former proprietor has transferred; but the first and every successive transferee holds by a new title granted to himself. Evidence of the validity of the title of a former proprietor may be necessary to support the title of a new purchaser, and in that doubtful sense the old title may be said to have, for that purpose, a continuance. It is painful to offer such verbal criticisms, to which the present writer is sensible no one is likely to be more open than himself; and perhaps, though he has found difficulty in understanding Mr. Christian's note above cited, (and particularly the latter part of it,) others may find none. The following are the observations of another annotator upon this same passage of the text. "When political communities are once formed, it seems then superfluous to account for the due alienation of property, either by calling it a continuation of the former occupancy, or a dereliction of which the successor has the first notice, and takes immediate advantage. Without the help of this refinement, the effectual transfer and transmutation of property may well be referred to the force of civil institutions, ultimately founded on antecedent general principles of natural law." (Wooddeson's 19th Vin. Lect. p. 2.) The only objection which at present occurs to this short way of putting the case, is, that, when investigating principles of justice, it is not always sufficient to state merely the immediate and the final reason upon which they rest; because, as Heineccius and his commentator Turnbull observe, (book i. c. 4, s. 108,) "some precepts of the law of nature flow immediately from clear principles of reason, others are C tamentary dis or, if the dying person made no such disposition, the law declared [ *11 ] : actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him, which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society for then, by the principles before established, 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, or is not permitted to make any disposition *at all, 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 (k). And farther, in case no testament be permitted (*) It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon the death of derived from principles of reason by either, the inheritance does not so properly descend, as continue in the hands of the survivor. Ff. 28. 2. 11. of property were established by positive law, disorders and violence would inevitably ensue, destructive of human happiness. But the Creator, doubtless, willed the happiness of his creatures; therefore, municipal laws, which have a tendency to that result, are founded on general principles of natural law; by which phrase is meant (where the person who utters it has any precise meaning) they are in conformity with the will of God. (See ante, the note to p. 13, and Vol. I. pp. 43, 54, 122.) by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust 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 (21). heritance recog than the right We to devise. The right of inheritance, or descent to the children and The right of inrelations of the deceased, seems to have been allowed nised earlier much earlier than the right of devising by testament. are apt to conceive at first view, that it has nature on its side (22); yet we often mistake for nature what we find (21) Where no kindred of a deceased person are to be found, there we see the possessions of a private man revert to the community, and so in politic societies come into the hands of the public magistrate; but, in the state of nature, become again perfectly common, no body having a right to inherit them, nor can any one have a property in them, otherwise than in other things common by nature." (Locke on Gov. book i. c. 9, parag. 90.) The doctrine of escheats is adverted to more fully hereafter in the 5th and 15th chapters of this volume, and the notes thereto. (22) Cicero, it will be recollected, says, "Omni in re, consensio omnium gentium lex naturæ putandum est;" and a philosopher of equal distinction in our own literature, thus discusses the doctrine stated in the text: "If any one had begun and made to himself a property in a particular thing, that thing, if he disposed not other wise of it by his positive grant, descended naturally to his children, and they had a right to succeed to it, and possess it. If common consent had established this right, it would make but a positive, and not a natural right; but where the practice is universal, it is reasonable to think the cause is natural. The ground, then, I think to be this: God planted in men a strong desire of propagating their kind, and continuing themselves in their posterity; and this gives children a title to share in the property of their parents, and a right to inherit their possessions. Men are not proprietors of what they have, merely for themselves; (see Vol. I. p. 447.) their children have a title to part of it, and have their kind of right (joined with their parents') in the possession, which comes to be wholly theirs, when death, having put an end to the parents' use of it, hath taken them from their possessions; and this we call inheritance: men being by a like obligation bound to preserve what they have begotten, as to preserve them. selves, their issue come to have a right in the goods they are possessed of, That children have such a right is plain from the laws of God, For, children being by the course of nature born weak, and unable to provide for themselves, they have, by the appointment of God himself, who hath thus ordered the course of nature, a right to be nourished and maintained by their parents; nay, a right not only to a bare subsistence, but to the comforts and conveniences of life, as far as the con. ditions of their parents can afford it, Hence it comes that, when parents leave the world, and so the care due |