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of external things. His title is indisputable, whether its muniments be recorded in the book of nature or of revelation. As men multiplied, it became necessary, pari passu, to replenish the earth, by their care, with things needful for them, and to subdue it by cultivation; and this necessity gave rise to exclusive property in the temporary use of the soil.1

To the law of nature then is to be referred

1. Exclusive property in the substance of such things as are consumed by the use.

2. Exclusive property in the temporary use of the soil. But to the law of the land alone should we look for 3. 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.'

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Can there be the least controversy concerning the reason why the law of nature gives an exclusive property in the substance of such things as are consumed by the use; or in the temporary use of the soil; or why the law of the land gives an exclusive permanent property in the substance of the earth itself?

We shall see this account of the origin of property manifestly confirmed, upon comparing it with the early regulations of nations upon the subject. Exclusive property in the temporary use of the soil exists in all nations however uncivilized and rude. That degree of property owes its origin, as we have endeavored to show, to the necessities of the species, and commences before the institution of civil society, and beginning of states. It is to secure this natural property, that political associations are organized. Property in land never becomes more permanent, till governments acquire stability and firmness. Or, to speak with greater accuracy, permanent property in the substance of the earth itself, and permanent government, are not only inseparable concomitants, but they are simultaneous; and were we not destitute of the necessary chronicles, we could mark, with exact precision, the corresponding gradations of each. If we possessed an unbroken series of the laws of any people from the period when all property was common, to that when it became several, we should behold the idea of exclu

1 Genesis, i. 28, 29.

sive property in the substance of the earth emerge out of temporary use of the soil, and advance with a slow, but uninterrupted progression. We do, perchance, possess some fragments of such a faithful chronicle, and they are exceedingly curious and interesting.

The conduct of their scanty agriculture was an affair of state among the Germans at the periods when Cæsar and Tacitus describe their manners and institutions. But it was not their policy to protect, and improve it, but rather to discourage it. Rapine was their business agriculture an avocation to which they submitted with reluctance. That they might always be at leisure to rob and plunder, they were freed by law as much as possible from domestic employments. Lest any one should be diverted from his proper occupation, more permanent estates in land than an annual possession, were prohibited. No individual or family was permitted to occupy the same place longer than a year at one time. And at the end of that period, the princes and chiefs made a new allotment to all the members of the tribe. Thus all their regulations of that necessary and indispensable property in land, the temporary use of it, were studiously provided, that the idea of an exclusive right to the substance of the earth itself, might not occur. The temporary use of the soil being a natural right, and ratified by the express gift of Almighty God, cannot, therefore, be taken away by the laws of society. But permanent property in the soil itself, with its concomitants, descent, devise, partition and alienation, being creatures of civil polity, may be regulated as to the legislature in each state may seem convenient. Accordingly, having the Germans faithfully represented to us at a time when no permanent property in the soil existed among them, we behold them legislating to prevent its acquisition. What better proof do we want to show that this degree of property is derived from the law of the land? The heirs of an intestate possessor of land among us, look to the law of descents as the foundation of their title, not to the fact of the earliest occupation after the death of their ancestor, or last possessor. It may be said that when the Germans first allowed of a several permanent property in the substance of the earth, they must have given it of course to the occupants, and so occupancy is, at last, the foundation of such property. With equal cogency might

the children of an intestate possessor among us, say that filiation is the foundation of their title, not the law of descents. Filiation is a fact, on proof of which, the law allows the claimant a portion, or the whole of his ancestor's property. So occupancy is a fact which may have been the criterion fixed by law, for the original distribution of the soil among individuals.

In short, among the most refined nations, it is not occupancy to which the citizen refers as the beginning of his title, but the law by which the public domain was distributed, or of alienations, or descents, or wills. In like manner, among the rudest nations, the savage never presumes to exclude his fellow from a particular place, after the necessity has ceased of his holding it, and that necessity is the ground of his claim to its temporary occupation and use; and what is that necessity but the law of nature?

Whatever it is, in any state of society, which determines the quantity of estate in land, which each individual may enjoy, alien, devise, forfeit, or leave to descend to his children, that is the origin of his property therein. The quantity of estate that the law of nature allows to each individual, is the temporary exclusive use of as much as his necessities demand. In like manner, the law of the land determines the quantity of each citizen's estate; how devisable, how descendible, and .how alienable. In no country, how refined and complicated soever its system of real property may be, has the government a more despotic control over the quantity of estate its citizens may acquire in land, than belonged to the imperfect government of the ancient Germans. In none can the citizen say with greater certainty than the ancient German could, it is the law of the land by which I hold my estate. I cultivate the place where I now am by permission of the law, and, for the time, the law excludes all other persons. As there is no civilized country where the law of the land does not prescribe the quantity of estate the citizen shall have in the earth, so there is no uncivilized country, where there are municipal laws at all, in which the individual does not acknowledge them as the origin of his title. And where there is no municipal law, no legislature, the law of nature regulates the division.

A most curious illustration of this subject will be found in the case of gavelkind in Sir John Davies's Irish Reports. At the

period of that case, 1606, 'the lands possessed by the mere Irish, were divided into several territories or countries, and the inhabitants of every Irish country were divided into several septs or lineages. In every Irish territory there was a lord or chieftain, and a tanist, who was his successor apparent. And of every Irish sept or lineage there was also a chief, who was called. a canfiny or caput cognationis. All the possessions within these Irish territories, ran always, either in a course of tanistry, or in


course of gavelkind. Every seignory or chiefry, with the portion of land which passed with it, went, without partition, to the tanist, who always came in by election or strong hand, and not by descent; but all the inferior tenancies were partible between the males in gavelkind. Yet the estate which the lord had in the chiefry, or which the inferior tenant had in gavelkind, was not an estate of inheritance, but a temporary or transitory possession. For as the next heir of the lord or chieftain was not to inherit the chiefry, but the oldest and worthiest of the sept, who was often removed and expelled by another who was more active and strong than he, so the lands of the nature of gavelkind were not partible amongst the next heirs male of him who died seized, but amongst all the males of the sept in this manner: The canfiny, or chief of the sept—who was commonly the most ancient of the sept—made all the partitions at his discretion; and after the death of any tenant who had a competent portion of land, assembled all the sept, and having thrown all their possessions into hotchpot, made a new partition of all; in which partition he did not assign to the son of him who died, the portion which his father had, but allotted to each of the sept, according to his seniority, the better or greater portion. These portions or purparties, being so allotted and assigned, were possessed and enjoyed accordingly, until a new partition was made, which, at the discretion or will of the canfiny, was to be made on the death of each inferior tenant. And so by reason of these frequent partitions and removals or translations of the tenants from one portion to another, all the possessions were uncertain; and the uncertainty of the possessions was the very cause, that no civil habitations were erected, no inclosure or improvement was made of the lands, especially in Ulster, which seemed to be all one wilderness.' 'As no man,' says Hume, ch. 46, ‘by reason of this custom, enjoyed the fixed property of any land,

to build, to plant, to enclose, to cultivate, to improve, would have been so much labor lost.'

In this case all the judges declared that the customs of tanistry and gavelkind were void, and adjudged that all lands should descend according to the course of the common law. Will any one pretend, that while the custom was in force, the members of an Irish sept regarded occupancy as the origin of their title to their respective portions? Or, after it was abolished, and the common law established in its room, would the rules of that law or occupancy be regarded as the origin of title to land?

In our own time, we have enjoyed the rare opportunity of beholding the progress of a community, namely, the Cherokees, from a state of perfect rudeness to one of comparative civilization.

The first of their printed laws was passed by the Chiefs and Warriors of the National Council, on the 11th of September, 1808. It provides for the organization of 'regulating parties,' who were, amongst other things, 'to give their protection to children as heirs to their father's property,' and to secure her 'share' to the wife with whom the deceased cohabited at the time of his death. But it is declared that she is not entitled to any property that her husband might leave by will, substantiated' by one or more disinterested witnesses, to any child of a former wife. This law is understood to relate both to realty and personalty, and it tacitly recognises a right to dispose of it by will, and a customary law of descent. It seems also that there was yet lingering among them an idea that the next immediate occupant would acquire a right in all that the deceased possessed; for it is against the exercise of some such right or claim, that the 'regulating parties' were to protect children in their inheritances.


On the 6th of May, 1817, a fundamental law was passed by a convention of the chiefs and warriors of fifty-four towns and villages. By this law they committed the affairs of the nation' to a 'standing committee' of thirteen members elected biennially. But the acts of this body,' it was provided, 'should not be binding on the nation as to their common property, without the unanimous consent of the members and chiefs of the council,' to whom any proposition of the committee relating thereto,

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