« PreviousContinue »
in a better situation, with respect to food, raiment, houses, and what are called the necessaries of life, than any are in places where most things remain in common.
The balance, therefore, upon the whole, must preponderate in favour of property with a manifest and great excess.
Inequality of property, in the degree in which it exists in most countries of Europe, abstractedly considered, is an evil; but it is an evil which flows from those rules concerning the acquisition and disposal of property, by which men are incited to industry, and by which the object of their industry is rendered secure and valuable. If there be any great inequality unconnected with this origin, it ought to be corrected.
The history of property. The first objects of property were the fruits which a man gathered, and the wild animals he caught ; next to these, the tents or houses which he built, the tools he made use of to catch or prepare his food ; and afterward weapons of war and offence. Many of the savage tribes in North America have advanced no farther than this yet; for they are said to reap their harvest, and return the produce of their market with foreigners, into the common hoard or treasury of the tribe. Flocks and herds ot' tame animals soon became property : Abel, the second from Adam, was a keeper of sheep; sheep and oxen, camels and asses, composed the wealth of the Jewish patriarchs, as they do still of the modern Arabs. As the world was first peopled in the east, where there existed a great scarcity of water, wells probably were next made property; as we learn from the frequent and serious mention of them in the Old Testament; the contentions and treaties about them ;* and from its being recorded, among the most memorable achievements of very eminent men, that they dug or discovered a well. Land, which is now so important a part
property, which alone our laws call real property, and regard upon all occasions with such pecu.
* Gen. xi. 25. xxvi. 18.
liar attention, was probably not made property in any country, till long after the institution of many other species of property, that is, till the country became populous, and tillage began to be thought of The first partition of an estate which we read of, was that which took place between Abram and Lot, and was one of the simplest 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 Cæsar'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 expressly said to have appropriated their cattle and houses, but to have left their land in common.
Property in immoveables continued at first no longer than the occupation : that is, so long as a man's family continued in possession of a cave, or whilst his Hocks depastured upon a neighbouring hill, no one attempted, or thought he had å right, to disturb or drive them out; but when the man quitted his cave, or changed his pasture, the first who found them unoccupied, entered upon them, by the same title as his predecessor's; and made way in his tnrn for any one that happened to suceeed him. All more permanent property in land was probably posterior to civil government and to laws ; and therefore settled by these, or according to the will of the reigning chief,
CHAP IV. In what the right of property is founded. We now speak of Property in Land: and there is a difficulty in explaining the origin of this property, .consistently with the law of nature ; for the land was once, no doubt, common; and the question is, how any particular part of it could justly be taken out of the common, and so appropriated to the first owner, as to give him a better right to it than others; and, what is more, a right to exclude all others from it.
Moraliscs have given many different accounts of
this matter; which diversity alone, perhaps, is a proof that none of them are satisfactory.
One tells us that mankind, when they suffered a particular person to occupy a piece of ground, by tacit consent relinquished their right to it; and as the piece of ground, they say, belonged to mankind collectively, and mankind thus gave up their right to the first peaceable occupier, it thenceforward became his property, and no one afterward had a right to molest him in it.
The objection to this account is, that consent can never be presumed from silence, where the person whose consent is required knows nothing about the matter; which must have been the case with all mankind, except the neighbourhood of the place where the appropriation was made. And to suppose that the piece of ground previously belonged to the neighbourhood, and that they had a just power of conferring a right to it upon whom they pleased, is to suphave already taken
place. the question resolved, and a partition of land to Another says, that each man's limbs and labour are his own exclusively; that, by occupying a piece of ground, a man inseparably 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 same time of something which is indisputably his.
This is Mr. Locke's solution; and seems indeed a fair reason, where the value of the labour bears a considerable proportion to the value of the thing; or where the thing derives its chief use and value from the labour. Thus game and fish, though they be common whilst at large in the woods or water, instantly become the property of the person that catches them; because an animal, when caught, is much more valuable than when at liberty : and this increase of value, which is inseparable from, and makes a great part of, the whole value, is strictly the property of the fowler or fisherman, being the produce of his personal labour. For the same reason, wood or iron, manufactured into utensils, becomes the property of the manufacturer; because the value of the workmanship far exceeds that of the materials. And upon a similar principle, a parcel of unappropriated
ground, which a man should pare, bura, plough, harrow, and sow, for the production of corn, would justly enough be thereby made his own. But this will hardly hold, in the manner it has been applied, of taking a ceremonious possession of a tract of land, as navigators do of new discovered islands, by erecting a standard, engraving an inscription, or publishing a proclamation to the birds and beasts: or of turning your cattle into a piece of ground, setting up a landmark, digging a ditch, or planting a hedge round it. Nor will even the clearing, manuring, and ploughing of a field, give the first occupier a right to it in perpetuity, and after this cultivation and all effects of it are ceased.
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 use of all, he has of consequence given each leave to take of them what he wants : by virtue therefore of this leave, a man may appropriate what he stands in need of to his own use, without asking, or waiting for, the consent 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 chooses, without having or wait. ing for the consent of the other guests.
But then this reason justifies property, as far as necessaries alone, or, at the most, as far as a competent provision for our natural exigencies. For, in the entertainment we speak of, (allowing the comparison to hold in all points,) although every par. ticular freeholder may sit down and eat till he be satisfied, without any other leave than that of the master of the feast, or any other proof of that leave, than the general invitation, or the manifest design 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 provision to be hoarded up, or wasted, or given to his dogs, or stewed down into sauces, or converted into articles of superfluous luxury; especially if, by so 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 best writers upon the subject; but,
were these accounts perfectly unexceptionable, they would none of them, I fear, avail us in vindicating our present claims of property in land, unless it were more probable than it is, that our estates were actually acquired, at first, in some of the ways which these accounts suppose ; and that a regular regard had been paid to justice, in every successive transmission of them since ; for, if one link in the chain fail, every title posterior to it falls to the ground
The real foundation of our right is, THE LAW OF THE LAND.
It is the intention of God, that the produce of the earth be applied to the use of man: this intention cannot be fulfilled without establishing property ; it is consistent therefore with his will, that property be established. The land cannot be divided into separate property, without leaving it to the law of the country to regulate that division; it is consistent therefore with the same will, that the law should regulate the division, and, consequently," consistent with the will of God, or right, that I should possess that share which these regulations assign me.
By whatever circuitous train of reasoning you attempt to derive this right, it must terminate at last in the will of God; the straitest, therefore, and shortest way of arriving at this will, is the best.
Hence it appears, that my right to an estate does not at all depend upon the manner or justice of the original acquisition, nor upon the justice of each subsequent change of possession. It is not, for instance, the less, nor ought it to be impeached, because the estate was taken possession of at first by a family of aboriginal Britons, who happened to be stronger than their neighbours; nor because the British possessor was turned out by a Roman, or the Roman by a Saxon invader; nor because it was seized, without colour of right or reason, by a follower of the Norman adventurer ; from whom after many interruptions of fraud and violence, it has at length devolved to me.
Nor does the owner's right depend uopn the expediency of the law which gives it to him. On one side of a book, an estate descends to the eldest son ; on the other side, to all the children alike. The right of the claimants under both laws of inheritance