bird its nest, with the same resentment and the same apparent consciousness of their right; but they evidently have no notion of a general right. To the conception of a general right, something further is necessary; and this nature has furnished to man, in the perception of analogy, mentioned in a former chapter, in which brutes partake to a certain degree, and through which they discern, that the species to which they respectively belong has a common nature, on which they rely with confidence in their intercourse with each other. Hence, every man in society relies, that all others have the same conceptions of right, and the same feelings of resentment, for a violation, which he experiences in himself; and hence, all for their own ease and quiet, in time, become disposed to respect that right and those feelings generally; and such general respect is the first complete establishment of the right of property in society. To respect the right of property thus becomes a custom which is the origin of law in the primeval state. As this law, (originating in natural principles, is found by experience to be beneficial to all, so a violation of the law is equally resented by all. Thus we find, that the right of property originates in natural principles, is confirmed by them, and finally sanctioned by the principle of utility, the general interest, which is the great end of all the laws of nature.

The natural principle of the acquisition of property was adopted in the civil law, so far as respected those natural subjects, which that law had left unappropriated,—as we learn from the following passage in Justinian's Institutes. "There are various modes, by which things may become the property of individuals; of some we obtain the dominion by the law of nature; which we have said, is likewise called the law of nations, of others by the civil law; but it will be most proper to begin with the most ancient law, that law which nature established at the birth of mankind.-Wild beasts then, birds, fishes, and all animals, which are bred in the sea, the air, or upon the earth, as soon as they are taken, become, by the law of nations, the property of the captors; for natural reason gives to the first occupant, that which before had no owner."* The

*B. II. T. 1. Sec. 11. 12.

same law, in relation to the same subjects, still prevails in every country, where game laws have not been interposed in favor of certain classes of the community.

It is obvious to remark, that the right of property belongs to the same moral system, which we have been advocatingoriginates in the same first principle. It is also matured in its progress by the same moral principles, and involves the same moral obligation. In the early state of society, these principles first secured to each the quiet enjoyment of the fruits and productions of the common earth, which he had collected for the use of himself, and those who were dependent on him for support, the quiet possession of the hut he had built for shelter, and the spot of ground which it occupied. In the progress of society, the same principles appropriated to any one the animals he had taken and domesticated; and as barter and exchange always accompany the introduction of private property, the right of the first occupant was soon extended to any successor by his consent. When agriculture was introduced, the right was extended to the field which any one cultivated. Nor could it be long before the utility of a permanent occupation was perceived, and the occupant came to be considered as the exclusive owner; and the right of disposal followed of course.

As to the objection, that property in moveables, that is, in the natural fruits and productions of the earth, could not, in the state supposed, be justified beyond a competent provision for necessaries; and that land could not be divided into separate property without leaving it to the law of the country to make a division; the whole is founded in a mistake. It supposes the whole human race, few or many, previous to the introduction of private property, to have had a joint and equal right of property in the common earth and its productions; that each was an owner in common of some undivided aliquot part, so that all that was necessary to be done to make any portion of it the private property of an individual was, to make a fair division of his part to be set off to him, by the consent of all others, and until that should be done he was permitted to occupy so much as might be necessary for his immediate use and no more, lest he should exceed his right and violate the right of others.

But it is impossible to suppose, that men, before they could have any clear conceptions of the right of private property, had yet attained to the abstract and complex notion of an aggregate community consisting of the whole human race, vested with a common property in the earth and its productions; and to suppose men to be bound, or assume to act upon a right or a principle of which they had yet the means of obtaining no possible conception, is wholly absurd. The conception of a public right of property must, from necessity and the nature of things, be derived from a knowledge of the private right in an individual. Nothing, while it remains common to all men, can partake of the nature of property, nor can it become property, until it is appropriated by some individual or company of individuals occupying it to the exclusion of others. If then, we suppose a time, when all things remained common to all, neither public or private property would exist while all continued

common.

Probably an idea of the necessity of a division of the land, to be made by law, was suggested by the situation of the common, or as generally called, public lands, in all modern governments, in which the right of property to such lands is vested in the state by their institutions. The state, indeed, parcels out these lands; not however, by a division, but by a sale and transfer to individuals, in such portions, and on such terms, as is deemed most for the public good. But such was not the original state of things. The earth was not given in property to man; but was, with all it contains, provided and designed to become the subject of property, by the separate occupation of individuals, as we have already shown, to be possessed and enjoyed under such regulations, and in such way and manner as men, in the progress of society, should find most conducive to the general interest.

The laws of nature do not, in making a division for the purpose of vesting a right of private property, descend, as seems to be supposed, to such minute calculations, or such useless, and I may add, in the primitive state, impracticable formalities; but have submitted, nay I may say, enjoined as the most useful, and in the state supposed, the only practicable mode, that the division, or rather separation be made, by each

taking into his private occupation, such portion as he should judge convenient for his own use. Nor have the laws of nature in this case any regard to equal quantities in the division, but to a sufficiency for each. Whether any choose to make a more or less ample provision, no one is injured, no right infringed. The declaration of nature in the primitive state is, "There is ample provision for all-come and select what portion you choose, with these only restrictions, that you interfere not with prior selections, and that you make no unnecessary waste."

From what has been said of the origin and progress of the right of property in society, it will be evident to every reflecting mind, that all just conceptions of the legitimate rights of man, natural, civil, and political, are the genuine offspring of the same natural principle, a susceptibility of moral impression. All social rights are founded alternately in the same principles, and, consequently, all the duties corresponding to those rights are enforced by the same moral obligations.

As the end and design of all the laws of nature is general utility or the promotion of the general interest and happiness of social man, the sure test of any rule set up as a law of nature is its general tendency to promote that end. If the test fail, the rule must at once be pronounced spurious. The execution of those laws, and the means of enjoying their benefit, and the means that may be employed to that end, are submitted to the same test, their tendency to promote the general interest. Among enlightened nations, the end sought is first proposed, and, with the means of attaining it, made a matter of deliberation. In the early and inexperienced state of mankind, they generally act with no remote views; but, by following the suggestions of present interest and convenience, they not unfrequently arrive at the same important end without having seen the final result. So intimately have the laws of nature, if simply pursued, united individual with the general interest, present interest with the future.

We have traced the right of property, in its progress from its commencement, in natural principles by occupancy, through the modes of acquisition by barter, and exchange or bargain, until it has become a permanent right. We may still trace

those principles in the modifications which the right has received in the progress of society, and show more particularly their connection with hereditary right and a right of testamentary disposition; but these are reserved for another chapter. The modes of acquisition, although all proceed from the same principles, are found to be very various according to the state and varying interest of society. In the earliest stages of society, the objects of property are few, and the modes of acquisition as few and simple. The objects of property are those things only that are necessary to support existence. The modes of acquisition are mostly confined to occupancy; The simple mode of gift and exchange are soon added. In the progress of society men learn to apply to their use, either for their necessities, or their pleasure, most of the productions of nature. By the assistance of art, as the powers of the human mind are expanded, new productions, considered either necessary, convenient, or agreeable, are multiplied without end. In proportion as men extend their views of what is useful or agreeable, the hoarding appetite gains strength; they become eager of the present, and provident of the future, and the objects of property become equally numerous with the objects of desire. In such a state of society the modes of acquisition are greatly diversified, and made the subject of a great variety of regulations.

The whole business of property now appears to be an artificial system; but the mode of acquisition and the tenure and use only, are the subjects of artificial regulations. The right of property itself, still remains founded in natural principles; the modes of acquisition serve only to bring the subjects of property within those principles. In this, which appears to be the only correct view of the origin of the right of property, it is not true as asserted by many writers, that it is merely a creature of the civil law; and the consequences, which they have drawn from that position, on a dissolution of government all property is annihilated, and that every revolution or radical reformation of government is destructive of the right itself, are wholly groundless. In such case, civil protection only is lost, the secure enjoyment is endangered,