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Virginia, and this being a final decision, at which four fifths of all the judges constituting the court were present and concurred, it follows that the right of the accused to argue before the jury, so far as it was involved in this case, is now settled and established in that state.
ART. II.-ORIGIN OF PROPERTY-CHEROKEE TITLES.
THE origin of property is a subject of curious, and no less useful speculation. If the student, while he is yet inter juris cunabula, attains distinct ideas on this absorbing subject of his future professional life, his time will not be unprofitably spent. Should the following discussion contribute to that end, it will answer the main purpose of the writer. For he does not aspire to instruct his elders, the sages of the law, but would, for the benefit of tyros, endeavor to disembarrass a point which, to him, seems to be encompassed with obscurity.
Perhaps nothing is here advanced that is wholly new; but it ought to be considered that the new combination of old principles and well known facts, is all that our predecessors have left to employ our diligence. The merit of discovery of having been favored with the first glimpse of a thing, is, at least, equivocal. He who fixes the latitude and longitude of a place convenient for the supply of mariners, does them a more acceptable service than the circumnavigator, who reports that he saw the place, but cannot tell where. This is precisely what is here attempted; and when Locke, and Pufendorf, and Grotius have failed to give satisfaction, a new adventurer may, at least, vindicate his title to the epitaph of Phaeton, magnis tamen excidit
The question to be considered is- What is the foundation of our right to more than a competence of the things of creation? and, more especially-What is the foundation of exclusive property in the substance of the earth?
Even upon the hypothesis that man, body and soul, is the creature of certain fortuitous concretions and contextures of atoms,' he is, nevertheless, sensible to, and desirous of avoiding, the pains of heat and cold, hunger and thirst, and the thousand ills that flesh is heir to.' This sensibility and desire would im
pel him to appropriate whatever would render him free from pain; and would constitute a law of his nature, which law would be the foundation of his right to a competent portion of the goods of the world. The very zoophytes and even vegetables draw their life from things external. A succession of changes constantly takes place in them, and if external things refused to maintain those changes, they must perish. To say that this law of their nature, entitles them to their necessary subsistence, may be a solecism, as title is only predicated of intelligent beings. But on the supposition that all things, animate and inanimate, are only atoms fortuitously assembled, a right to continue this fortuitous assemblage, belongs to one no less than to the other. The tender herb in some secluded place, draws to itself, and concocts, so much of the earth, and air, and light, as is necessary to maintain its existence. But the rank weeds come, and withdraw this earth, and air, and light, and the atoms which constitute the tender herb, have their concretion and contexture dissolved. To call this injustice when spoken of an herb and weed, borders on absurdity, but a concretion of atoms in the shape of man, might say to all other such concretions, mutato nomine de te fabula narratur. When life is given, to use the language of conveyancing, the means of sustaining their vigor and comfort, pass as incidents. Were our wishes bounded by the moderate demands of nature, those means are but few, and the question now under discussion would never have provoked our curiosity. When two of us set our hearts upon possessing the same thing, we begin to grope about for arguments to justify our respective claims. Why should we expect to find these claims recognised by any precept of the law of nature? 'When
several polypi happen to fall upon the same worm, they dispute their common prey with each other. Two of them are often seizing the same worm at different ends, and dragging it in opposite directions with great force. It often happens, that while one is swallowing its respective end, the other is employed in the same manner, and thus they continue swallowing each his part, until their mouths meet together; they then rest, each for some time in this situation, till the worm breaks between them, and each goes off with his share.' If they were endued with the pertinacity of men, a new contest would now arise, for each would attempt to make the other disgorge the share that
had, by accident, fallen to its lot. 'But it often happens that a seemingly more dangerous contest ensues, when the mouths. of both are thus joined upon one common prey together: the largest polypus then gapes and swallows his antagonist; but what is very wonderful, the animal thus swallowed seems to be rather a gainer by the misfortune. After it has lain in the conqueror's body for an hour, it issues unhurt, and often in possession of the prey which had been the original cause of contention; how happy would it be for men, if they had as little to fear from each other!' The struggles for sustenance of these lowest creatures in the scale of animation, have a disgusting resemblance to those of men, not for sustenance, but for the means of luxury. This contest for the worm can be referred to the instinct of the polypus; but our contests are not justified by reason, which stands in place of brutal instinct, and we shall search through the book of nature and of God in vain for justification.
But every one is ready to exclaim, have the men of wealth, then, really no title to more of their possessions than a bare competence? Yes - but we should not seek it where it is not to be found. We should not refer it to a source, which the man whose lot has been cast in hard places, manifestly sees to be corrupt. He whose offspring starve while his neighbor's riot in luxury, is not to be put off by being told that in a general scramble for what was once common property, his neighbor's prowess enabled him to seize and keep all that he has. Every man of property, I trust, would wish to place his claims upon a less exceptionable basis. But if you consult those who have philosophised upon this subject, and who seem to enjoy their opinions with some complacency, to know What is the origin of property in necessaries? What is the origin of property in the use of any spot of earth? What is the origin of property in the substance of the earth itself?—you will get this pithy anoccupancy. And if any one, perchance, seems to doubt this resolution, and endeavors to produce reasons pro and con, he is deemed unreasonably fastidious, and his inquiry is pronounced quite too nice and scholastic.
"There is indeed some difference of opinion,' says Blackstone, among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one with
this absolute property, a dispute that savors too much of nice and scholastic refinement.' Christain, in his note on this passage, after condemning Locke's resolution of the question as a petitio principii, and that of Grotius and Pufendorf as 'superfluous and inconclusive,' continues -But how or when then does property commence? I conceive no better answer can be` given than by occupancy, or when any thing is separated for private use from the common stores of nature.' Here occupancy is made equipollent with separating any thing from the common stores of nature for private use.' What is gained of expressive force, by substituting a phrase in place of a single word? Does not the question recur as readily as at first? The very fact that the question may be reasonably asked, proves at once that the foundation of property lies deeper. Were I to answer it, upon compulsion, I should say,- Because the labor I have bestowed in occupying the thing, or, if you please, in separating it from the common stores of nature, was mine, this labor is now inseparably connected with the thing, therefore the thing itself is mine. This is Mr. Locke's answer. But they say it is a petitio principii; with what justice, we shall see, by inquiring into the meaning of the word occupancy. Does it mean, then, any thing different from the labor and pains employed to maintain a permanent possessio pedis? or, is it not simply an abstract term invented to express our notion of such possession, and the whole train of circumstances by which such possession is acquired and maintained? The lexicographers say that, occupancy and occupation are words which derive their meaning from the different acceptations of the primitive verb occupy; the former being used to express the state of holding or possessing any object; the latter to express the act of taking possession of, or in keeping in possession.' Occupancy, then, is a state of holding or possessing, and the 'state is said of that which is stable or established.' The paring, burning, ploughing, harrowing, and sowing of a piece of ground from season to season, and from year to year, would be a state of holding or possessing, and would be briefly expressed by, occupancy. But occupancy is not some mysterious tertium quid different from these. Those, then, who substitute occupancy in place of Mr. Locke's resolution of the question, fall into the identical error they fancy they are avoiding. Mr. Locke
says, 'that the labor of a man's body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property.' Those who controvert this say, that occupancy gave the original right to the permanent property in the substance of the earth itself.' Instead of saying whatever he mixes his labor with, is his; they say, whatever he occupies is his, whatever he separates for his private use from the common stores of nature is his. The only difference between them is, that Mr. Locke expresses himself in the concrete, they in the abstract. For it is impossible to mix one's labor with the substance of the earth, without at the same time occupying it; or to occupy it, without mixing one's labor with it in a greater or less degree.
It is fair then to ask the question-why occupancy gave the original right to the permanent property in the substance of the earth itself? — nice and scholastic as it may have seemed to the learned commentator: I deny that it did, and repeat that if it did, the question itself would be absurd.
Paley says it is the law of the land' to which we owe our title to exclude all others from a particular spot of earth, and this puts the matter upon a principle at once intelligible to all men, and completely satisfactory to every good citizen.
What gave the original right to a competent provision of the things of the earth for our exigencies? The law of nature. For, why was man created naked, yet sensible to heat and cold; why placed upon the earth teeming with products fit for his sustenance, and made to feel the keen appetites of hunger and thirst, if the law of nature did not guaranty to him the right to crop a portion of the fruits of earth competent for him, and to exclude all others from the use of them.
In short, whether in speculating on the origin of man, we follow the crude imaginings of Democritus and Leucippus, or place ourselves on the firm basis of the Mosaic philosophy, we cannot vary his natural rights as they regard external things. Whether he is indeed a fortuitous concretion and contexture of atoms, or the handy work of God, the law of his nature, in other words, the necessities of his mode of existence, remain the unanswerable testimonial of his right to a competent portion