property, which can be conveniently enjoyed in common."

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It is the general intention of God Almighty, that the produce of the earth be applied to the use of man. This appears from the constitution of nature, or, if you will, from his express declaration; and this is all that appears at first. Under this general donation, one man has the same right as another. You pluck an apple from a tree, or take a lamb from a flock, for your immediate use and nourishment, and I do the same; and we both plead for what we do, the general intention of the Supreme Proprietor. So far all is right but you cannot claim the whole tree, or the whole flock, and exclude me from any share of them, and plead this general intention for what you do. The plea will not serve you; you must show something more. You must show, by probable arguments at least, that it is God's intention, that these things should be parcelled out to individuals; and that the established distribution, under which you claim, should be upholden. Show me this, and I am satisfied. But until this be shown, the general intention, which has been made appear, and which is all that does appear, must prevail; and, under that, my title is as good as yours. Now there is no argument to induce such a presumption, but one; that the thing cannot be enjoyed at all, or enjoyed with the same, or with nearly the same advantage, while it continues in common, as when appropriated. This is true, where there is not enough for all, or where the article in question requires care or labour in the production or preservation: but where no such reason obtains, and the thing is in its nature capable of being enjoyed by as many as will, it seems an arbitrary usurpation upon the rights of mankind, to confine the use of it to any.

If a medicinal spring were discovered in a piece of ground which was private property, copious enough for every purpose to which it could be applied, I would award a compensation to the owner of the field, and a liberal profit to the author of the discovery, especially if he had bestowed pains or expense upon the search: but I question whether any human laws would be justified, or would justify the owner, in prohibiting mankind from the use of the water, or setting such a price upon it, as would almost amount to a prohibition.

If there be fisheries which are inexhaustible, as the cod-fishery upon the banks of Newfoundland, and the herring-fishery in the British seas, are said to be; then all

those conventions, by which one or two nations claim to themselves, and guarantee to each other, the exclusive enjoyment of these fisheries, are so many encroachments upon the general rights of mankind.

Upon the same principle may be determined a question, which makes, a great figure in books of natural law, utrum mare sit liberum? that is, as I understand it, whether the exclusive right of navigating particular seas, or a control over the navigation of these seas, can be claimed, consistently with the law of nature, by any nation? What is necessary for each nation's safety, we allow; as their own bays, creeks, and harbours, the sea contiguous to, that is, within cannon-shot, or three leagues, of their coast: and upon this principle of safety (if upon any principle) must be defended the claim of the Venetian State to the Adriatic, of Denmark to the Baltic Sea, and of Great Britain to the seas which invest the island. But when Spain asserts a right to the Pacific Ocean, or Portugal to the Indian Seas, or when any nation extends its pretensions much beyond the limits of its own territories, they erect a claim which interferes with the benevolent designs of Providence, and which no human authority can justify.

3. Another right, which may be called a general right, as it is incidental to every man who is in a situation to claim it, is the right of extreme necessity; by which is meant a right to use or destroy another's property, when it is necessary for our own preservation to do so; as a right to take, without or against the owner's leave, the first food, clothes, or shelter, we meet with, when we are in danger of perishing through want of them; a right to throw goods overboard, to save the ship; or to pull down a house, in order to stop the progress of a fire; and a few other instances of the same kind. Of which right the foundation seems to be this: that when property was first instituted, the institution was not intended to operate to the destruction of any; therefore, when such consequences would follow, all regard to it is superseded. Or rather, perhaps, these are the few cases, where the particular consequence exceeds the general consequence; where the remote mischief resulting from the violation of the general rule, is overbalanced by the immediate advantage.

Restitution however is due, when in our power: because the laws of property are to be adhered to, so far as consist with safety; and because restitution, which is one of those laws, supposes the danger to be over,

D

IF you should see a flock of pigeons in a field of corn: and if (instead of each picking where and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got into a heap; reserving nothing for themselves but the chaff and the refuse; keeping this heap for one, and that the weakest, perhaps worst, pigeon of the flock; sitting round, and looking on, all the winter, whilst this one was devouring, throwing about, and wasting it; and if a pigeon more hardy or hungry than the rest, touched a grain of the hoard, all the others instantly flying upon it, and tearing it to pieces;-if you should see this, you would see nothing more than what is every day practised and established among men. Among men, you see the ninety-and-nine toiling and scraping together a heap of superfluities for one (and this one too, oftentimes the feeblest and worst of the whole set-a child, a woman, a madman, or a fool); getting nothing for themselves all the while, but a little of the coarsest of the provision, which their own industry produces; looking quietly on, while they see the fruits of all their labour spent or spoiled; and if one of the number take or touch a particle of the hoard, the others joining against him, and hanging him for the theft.

CHAPTER II.

THE USE OF THE INSTITUTION OF PROPERTY.

THERE must be some very important advantages to account for an institution, which, in the view of it above given, is so paradoxical and unnatural.

The principal of these advantages are the following:

1. It increases the produce of the earth. The earth, in climates like ours, produces little without cultivation: and none would be found willing to cultivate the ground, if others were to be admitted to an equal share of the produce. The same is true of the care of flocks and herds of tame animals.

Crabs and acorns, red deer, rabbits, game, and fish, are all which we should have to subsist upon in this country, if we trusted to the spontaneous productions of the soil; and it fares not much better with other countries. A nation of North American savages, consisting of two or three hundred, will take up, and be half starved upon, a tract of land, which in Europe, and with European management, would be sufficient for the maintenance of as many thousands.

In some fertile soils, together with great abundance of fish upon their coasts, and in regions where clothes are unnecessary, a considerable degree of population may sub sist without property in land, which is the case in the islands of Otaheite: but in less favoured situations, as in the country of New Zealand, though this sort of property obtain in a small degree, the inhabitants, for want of a more secure and regular establishment of it, are driven oftentimes by the scarcity of provision to devour one another.

II. It preserves the produce of the earth to maturity.

We may judge what would be the effects of a community of right to the productions of the earth, from the trifling specimens which we see of it at present. A cherry-tree in a hedge-row, nuts in a wood, the grass of an unstinted pasture, are seldom of much advantage to any body, because people do not wait for the proper season of reaping them. Corn, if any were sown, would never ripen ; lambs and calves would never grow up to sheep and cows, because the first person that met them would reflect, that he had better take them as they are, than leave them for another.

III. It prevents contests.

War and waste, tumult and confusion, must be unavoidable and eternal, where

there is not enough for all, and where there are no rules to adjust the division.

IV. It improves the conveniency of living. This it does two ways. It enables mankind to divide themselves into distinct professions; which is impossible, unless a man can exchange the productions of his own art for what he wants from others; and exchange implies property. Much of the advantage of civilized over savage life depends upon this. When a man is from necessity his own tailor, tent-maker, carpenter, cook, huntsman, and fisherman, it is not probable that he will be expert at any of his callings. Hence the rude habitations, furniture, clothing, and implements, of savages; and the tedious length of time which all their operations require.

It likewise encourages those arts, by which the accommodations of human life are supplied, by appropriating to the artist the benefit of his discoveries and improvements; without which appropriation, ingenuity will never be exerted with effect.

Upon these several accounts we may venture, with a few exceptions, to pronounce, that even the poorest and the worst provided in countries where property and the consequences of property prevail, are 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.

CHAPTER III.

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 afterwards 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 of 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 of property, which alone our laws call real property, and regard upon all occasions with such peculiar 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 theeft 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 flocks depastured upon a neighbouring hill, no one attempted, or thought he had a 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 turn for any one that happened to succeed 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.

* Genesis xxi. 25. xxvi. 18.

CHAPTER 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.

Moralists 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 afterwards 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 suppose the question resolved, and a partition of land to have already taken place.

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, burn, 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 newdiscovered 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 waiting 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 particular 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, er 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, 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 straightest, 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 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 upon the expediency of the law which gives it to him. On one side of a brook, 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 inherit ance is equal; though the expediency of such opposite rules must necessarily be different.

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The principles we have laid down upon this subject, apparently tend to a conclusion of which a bad use is apt to be made. As the right of property depends upon the law of the land, it seems to follow, that a man has a right to keep and take every thing which the law will allow him to keep and take; which in many cases will authorize the most flagitious chicanery. If a creditor upon a simple contract neglect to demand his debt for six years, the debtor may refuse to pay it would it be right therefore to do so, where he is conscious of the justice of the debt? If a person, who is under twenty-one years of age, contract a bargain (other than for necessaries), he may void it by pleading his minority: but would this be a fair plea, where the bargain was originally just ?— The distinction to be taken in such cases is this: With the law, we acknowledge, resides the disposal of property: so long, therefore, as we keep within the design and intention of a law, that law will justify us, as well in foro conscientiæ, as in foro humano, whatever be the equity or expediency of the law itself. But when we convert to one purpose, a rule or expression of law, which is intended for another purpose, then we plead in our justification, not the intention of the law, but the words: that is, we plead a dead letter, which can signify nothing; for words without meaning or intention have no force or effect in justice; much less, words taken contrary to the meaning and intention of the speaker or writer. To apply this distinction to the examples just now proposed :-In order to protect men against antiquated demands, from which it is not probable they should have preserved the evidence of their discharge, the law prescribes a limited time to certain species of private securities, beyond which it will not enforce them, or lend its assistance to the recovery of the debt. If a man be ignorant or dubious of the justice of the demand made upon him, he may conscientiously plead this limitation: because he applies the rule of law to the purpose for which it was intended. But when he refuses to pay a debt, of the reality of which he is conscious, he cannot, as before, plead the intention of the statute, and the supreme authority of law, unless he could show, that