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enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying ..owner; not caring to reflect that accurately and strictly speaking) there is .no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land: why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him: or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reason for making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.
In the beginning of the world, we are informed by holy writ, the allbountiful Creator gave to man dominion over all the earth, and over the
fiski of the sea, and over the fowl of the air, and over every living thing *3] that moveth *upon the earth.''(a) This is the only true and solid
foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.
These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them had it been possible for mankind to have remained in a state of primeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the ancient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein “ erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.”(6)(3) Not that this communion of goods seems ever to have been applicable, even in the earliest stages, to aught but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer:(c) or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted.(4) Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to
the law of nature, to have driven him by force: but the instant that he *4] *quitted the use or occupation of it, another might seize it, without (a) Gen. i. 28. (6) Justin. 1. 43, c. 1.
(c) Barbeyr. Puff. 1. 4, c. 4.
(3) ["All things were common and undivided, as if there were but one patrimony for them all.”]
(4) When things that may become property from being appropriated are the property of nobody, the first finder may reduce them to possession, which is a good claim, and under the name of title by occupancy is regarded as the foundation of all property. Eads v. Brazelton, 22 Ark. 499, 501 (1861).
injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated 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)(5).
But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominions; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used.(6) Otherwise innumerable tumults must have arisen, and the good order of the world be continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing 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 easy, commodious, and agreeable; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession; if, as soon as he walked out of his tent, or pulled off his garments, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case 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 nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man's house and home-stall: which seem to have been originally mere *temporary huts or movable cabins, suited to the [*5 design of Providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that movables of every kind became sooner appropriated than the permanent substantial soil: partly because they were more susceptible of a long occupancy, which might be continued for months together without any sensible 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 ameliorated by the bodily labor of the occupant, which bodily labor, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.
The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments incident to that method of provision, induced them to gather together such animals as
(d) Quemadmodum theatrum, cum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occu darit. De Fin. l. 3, c. 20.
(5) According to the more recent writers, the first form of property was the ownership in common of families and tribes, from which ownership in severalty came as a later development. Personal Property, Brantly 124 (1891).
(6) The theory of the origin of private property set forth in the text, while no very definite objection can be made to it, is purely speculative. Our age is more interested in facts. The English student interested in the subject is advised to consult the works of Maine, Sir H. os., “Ancient Law," and Early Law and Custom, especially chap. vii. Lubbock, Sir Jno., “Prehistoric Times," and " Origin of Civilization.” Spencer, H., Principles of Sociology, vol. 1, part 3. Hearn, Wm. É., "The Aryan Household.” Fustel de Coulanges, “The Ancient City." Lyall, Sir A. C., Asiatic Studies."
were of a more tame and sequacious nature, and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young.
The support 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, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and
exacting an oath for his security, “because he had digged that well.”(e) *6] And Isaac, *about ninety years afterwards, reclaimed that as his father's
property, and after much contention with the Philistines was suffered to enjoy it in peace.($)
All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighborhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seize upon and occupy such other lands as would more easily supply their necessities. 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 east; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages, and which, Tacitus informs us, continued among the Germans till the decline of the Roman empire.(8) We have also a striking example of the same kind in the history of Abraham and his nephew Lot.(h) When their joint substance became so great that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their servants; so that it was no longer practicable to dwell together. This coutention Abraham thus endeavored to compose:—“Let there be no strife, 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 acknowledged right, in either, to occupy whatever ground he pleased, that was not preoccupied by other tribes. “And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered everywhere, even as the garden of the Lord. Then Lot choose him all the plain
of Jordan, and journeyed east; and Abraham dwelt in the land of Canaan.” *7] *Upon the same principle was founded the right of migration, or send
ing colonies to find out new habitations when the mother-country was overcharged with inhabitants; which was practiced as well by the Phænicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seizing on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in color; how far such a conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those who have rendered their names immortal by thus civilizing mankind. (e) Gen. xxi. 30.
ately, in different parts, as a fountain, plain, or US) Gen. xxvi. 15, 18, etc.
grove pleased them.) (9) Colunt discreti e diversi ; ut fons, ut campus, ut (h) Gen. c. xiii. nemus placuit. De mor. Germ. 16. (They dwelt separ
As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants: and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and its spontaneous produce destroyed, without any provision for future supply or succession. It therefore became necessary to pursue some regular method of providing a constant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connection and consequence, introduced and established the idea of a more permanent property in the soil than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities without the assistance of tillage; but who would be at the pains of tilling it, if another might watch an opportunity to seize upon and enjoy the product of his industry, art, and labor? Had not therefore a separate property in lands as well as movables been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey, which, according to some philosophers, is the genuine state of nature. *Whereas now (so graci. [*8 ously has Providence interwoven our duty and our happiness together) the result of this very necessity has been the ennobling of the human species, by giving it opportunities of improving its rational faculties, as well as of exerting its natural. Necessity begat property; and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants, --states, government, laws, punishments, and the public exercise of religious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labor, for the necessary subsistence 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 invested, or what it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to everybody, but particularly to nobody. And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands, that occupancy gave also the original right to the permanent property in the substance of the earth itself;(7) which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labor, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;-a dispute that savors too much of nice and scholastic refinement.(8)
(7) Kuntz v. Niagara District Fire Insurance Co. 16 U. C. C. P. 573, 582 (1866).
(8) 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.” On Govt. c. 5.
But this argument seems to be a petitio principii; (Begging the question) for mixing labor with a thing can signify only to make an alteration in its shape or form; and if I had a right to the substance before any labor was bestowed upon it, that right still adheres to all that remains of the substance, whatever changes it may have undergone. If I had no right before, it is clear that I have none after; and we have not advanced a single step by this demonstration.
However, both sides agree in this, that occupancy is the thing by which the
title was in fact originally gained; every man seizing to his own con] *9) tinued *use such spots of ground as he found most agreeable to his
own convenience, provided he found them unoccupied by any one else.(9)
Property, both in lands and movables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shows an intention to abandon it;(10) for then it becomes, naturally speaking, publici juris(11) 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 seize it to his own use.(12) 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)(13)
(i) See book i. p. 295.
The account of Grotius and Puffendorf, who maintain that the origin and inviolability of property are founded upon a tacit promise or compact, and therefore we cannot invade another's property without a violation of a promise or a breach of good faith, seems equally, or more, superfluous and inconclusive.
There appears to be just the same necessity to call in the aid of a promise to account for or enforce every other moral obligation, and to say that men are bound not to beat or murder each other because they have promised not to do so. Men are bound to fulfil their contracts and engagements, because society could not otherwise exist; men are bound to refrain from another's property, because likewise society could not otherwise exist. Nothing therefore is gained by resolving one obligation into the other.
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. This is agreeable to the reason and sentiments of mankind prior to all civil establishments. When an untutored Indian has set before him the fruit which he has plucked from the tree that protects him from the heat of the sun, and the shell of water raised from the fountain that springs at his feet,-if he is driven by any daring intruder from this repast, so easy to be replaced, he instantly feels and resents the violation of that law of property which nature herself has written upon the hearts of all mankind.-CHRISTIAN.
Those who wish to read more modern works treating of this subject may obtain much information from Holmes on the Common Law and Pollock on Possession.
(9) All the writers on international law concur in the doctrine that actual occupancy is essential to perfect the title to land newly discovered and vacant. Puff. 1. 4, c. 4. Vat. 1. 1, c. 15. Grotius, 1. 2, c. 3. It is important to remark that, so far at least as regards land, the first discoverer and occupant acquires no title to himself, but to the nation to which he belongs or under whose flag, he sails. All private property in land is derived from the sovereign of the country, either directly or remotely. Among the aboriginal inhabitants of North America there was no private property in land; but the territory or hunting-grounds belonged to the tribe, who alone had the power to dispose of them. In the confederacy of the Six Nations, this power was vested in the general council-fire, so that the separate tribes had no right to sell or transfer. Something like this is discoverable in the earliest accounts we have of the laws of the savage inhabitants of ancient Europe. Property in land was first in the nation or tribe, and the right of the individual occupant was merely usufructuary and temporary. 2 Kent's Com. 320.-SHARSWOOD,
(10) 1 Pingrey on Real Property, 28 (1895).
(13) The finder of anything casually lost is its rightful occupant against all but the true owner. Eads v. Brazleton, 22 Ark. 499, 501 (1861).