די

CHA P. III.

THE HISTORY OF PROPERTY.

HE firft objects of property were the fruits

he caught; next to these, the tents or houfes which he built, the tools he made ufe of to catch or prepare his food; and afterwards weapons of war and offence. Many of the favage tribes in North America have advanced no farther than this yet; for they are faid to reap their harvest, and return the produce of their markets with foreigners, into the common hoard or treasury of the tribe. Flocks and herds of tame animals foon became pro perty; Abel, the fecond from Adam, was a keeper of fheep; fheep and oxen, camels, and affes, compofed the wealth of the Jewish patriarchs, as they do ftill of the modern Arabs. As the world was first peopled in the Eaft, where there existed a great scarcity of water, wells probably were next made property; as we learn, from the frequent and ferious mention of them in the Old Teftament, the contentions and treaties about them, and from its being recorded, among the moft memorable atchievements of very eminent men, that they dug or discovered a well. Land, which is now fo important a part of property, which alone our laws call real property, and regard upon all occafions with fuch peculiar attention, was probably not made property in any country, till long after the inftitution of many other fpecies of property, that is, till the country became populous, and tillage began to be thought of. The first partition of an eftate which we read of, was that which took place between

G 2

Gen. xxi. 25. xxvi, 18.

between Abram and Lot; and was one of the fimpleft imaginable: "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." There are no traces of property in land in Cafar's account of Britain; little of it in the history of the Jewish patriarchs; none of it found amongst the nations of North America; the Scythians are exprefsly faid to have appropriated their cattle and houses, but to have left their land in common. Property in immovables continued at firft no longer than the occupation; that is, fo long as a man's family continued in poffeffion of a cave, or his flocks depaftured upon a neighbouring hill, no one attempted, or thought he had a right, to difturh or drive them out: but when the man quitted his cave, or changed his pasture, the firft who found them unoccupied, entered upon them, by the fame title as his predeceffors; and made way in his turn for any one that happened to fucceed him. All more permanent property in land, was probably posterior to civil government and to laws; and therefore fettled by thefe, or according to the will of the reigning chief.

CHAP.

CHA P. IV.

IN WHAT THE RIGHT OF PROPERTY IS

W

FOUNDED.

E now speak of Property in Land: and there is a difficulty in explaining the origin of this property, confiftently with the law of nature; for the land was once no doubt common, and the question is, how any particular part of it could juftly be taken out of the common, and fo appropriated to the firft owner, as to give him a better right to it than others; and what is more, a right to exclude all others from it.

Moralifts have given many different accounts of this matter; which diverfity alone perhaps is a proof that none of them are fatisfactory.

One tells us that mankind, when they fuffered a particular person to occupy a piece of ground, by tacit confent relinquished their right to it; and, as the piece of ground belonged to mankind collectively, and mankind thus gave up their right to the first peaceable occupier, it thenceforward became his property, and no one afterwards had a right to moleft him in it.

The objection to this account is, that confent can never be prefumed from filence, where the perfon whofe confent is required knows nothing about the matter; which must have been the cafe with all mankind, except the neighbourhood of the place where the appropriation was made. And to fuppofe that the piece of ground previoufly belonged to the neighbourhood, and that they had a just power of conferring a right to it upon whom they pleafed, is to fuppofe the queftion refolved, and a partition of land to have already taken place..

Another

Another fays, that each man's limbs and labour are his own exclufively; that, by occupying a piece of ground a man infeparably mixes his labour with it; by which means the piece of ground becomes thenceforward his own, as you cannot take it from him, without depriving him at the fame time of fomething, which is indifputably his.

This is Mr. LOCKE'S folution; and feems indeed a fair reafon, where the value of the labour bears a confiderable proportion to the value of the thing; or where the thing derives its chief ufe and value from the labour. Thus game and fish, though they be common, whilft at large in the woods or water. inftantly become the property of the perfon that catches them; becaufe an animal, when caught, is much more valuable than when at liberty; and this increase of value, which is infeparable from, and makes a great part of the whole value, is ftrictly the property of the fowler, or fisherman, being the produce of his perfonal labour. For the fame reafon, wood or iron, manufactured into utenfils become the property of the manufacturer; because the value of the workmanship far exceeds that of the materials. And upon a fimilar principle, a parcel of unappropriated ground, which a man fhould pare, burn, plow, harrow, and fow, for the production of corn, would juftly enough be thereby made his own. But this will hardly hold, in the manner it has been applied, of taking a ceremonious poffeffion of a tract of land, as navigators do of new difcovered iflands, by erecting a standard, engraving an infcription, or publishing a proclamation to the birds and beafts; or of turning your cattle into a piece of ground, fetting up a landmark, digging a ditch, or planting a hedge round it. Nor will even the clearing, manuring, and plowing of a field, give the firft occupier a right to it in perpetuity, and after this cultivation and all effects of it are ceased.

Another,

Another, and in my opinion a better account of the first right of ownership, is the following: that as God has provided these things for the ufe of all, he has of confequence given each leave to take of them what he wants; by virtue therefore of this leave, a man may appropriate what he ftands in need of to his own ufe, without afking, or waiting for the confent of others; in like manner, as when an entertainment is provided for the freeholders of a county, each freeholder goes, and eats and drinks what he wants or choofes, without having or wait-, ing for the consent of the other guests.

But then, this feafon juftifies property, as far as neceffaries alone, or, at the moft, as far as a competent provifion for our natural exigencies. For, in the entertainment we speak of (allowing the comparifon to hold in all points), although every particular freeholder may fit down and eat till he be fatisfied, without any other leave than that of the mafter of the feaft, or any other proof of that leave, than the general invitation, or the manifeft defign with which the entertainment is provided; yet you would hardly permit any one to fill his pockets or his wallet, or to carry away with him a quantity of provifion to be hoarded up, or wafted, or given to his dogs, or ftewed down into fauces, or converted into articles of fuperfluous luxury; efpecially, if by fo doing, he pinched the guests at the lower end of the table.

These are the accounts that have been given of the matter by the beft writers upon the fubject; but, were these accounts perfectly unexceptionable, they would none of them, I fear, avail us in vindicating our prefent claims of property in land, unless it were more probable than it is, that our eftates were actually acquired at firft, in fome of the ways which thefe accounts fuppofe; and that a regular regard had been paid to justice, in every fucceffive tranfmiffion of them fince for if one link in the chain fail, every title pofterior to it falls to the ground.

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