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society. It needs no arguments, to prove that all the civil rights, which a man in the civil state has to a remedy for every case of injury, whether direct or consequential, relating to his freedom from restraint, his life, his reputation, or his propertywhether the injury proceed from violence, from fraud neglect or breach of trust, or from the non-fulfilment of any lawful agreement, either express or implied, they relate either to his person or his property, and fall under one or the other of those primary rights.
Those rights which we have denominated political rights, are but the modified rights of self government, which belongs to natural liberty,—“That right which nature gives to all mankind, of disposing of their persons and property, after the manner they shall judge most consonant to their own happiness." Now all the laws of civil society affect either the person or property.--In every government where the people have no voice in framing the laws, whether the law of the constitution or of the municipal code, they are, so far as those laws extend, deprived of the right of self government. Where the people have a voice in framing and administering the laws, either by themselves, or by their representatives, accountable to them for their conduct, they enjoy all that right of self government, which the laws of nature permit in civil society. On a careful review of the whole, we arrive at this fair and undeniable conclusion, that the rights of man are all relative to his social nature, and that the rights of the individual exist, in a coincidence only with the rights of the whole, in a well ordered state of society and civil government.
Of the right of property.
The right of property makes so great a figure in the institutions and laws of every country, that in a work like the present, the origin of that right, and the foundation upon which it is so universally established are deserving of a very particular investigation.
Judge Blackstone observes, “there is nothing which so universally strikes the imagination, and engages the attention of mankind, as the right of property, that sole and despotic dominion which one man claims and exercises over the external things of this world, in exclusion of every other individual in the universe,” and he might have added, nothing has so much employed the labor, attention, and researches of jurists, statesmen, and legislators. The right, although under different modifications, is recognized in every state of society, from that of the rudest savage, up to the highest state of civilization and refinement. It seems then, a just conclusion, that a right, so universally acknowledged, has its foundation in the laws of Dature, in the social nature of man. Indeed it is conceded by all to be a natural right; but I think, most writers on the subject have in their researches, stopt short of the true origin.
A brief notice of the opinions of some of the principal of those writers will not be wanting in entertainment or instruction. They have generally agreed to consider occupancy, as one thing necessary to the commencement of the right of property in the thing to be appropriated; but that occupancy alone, is not sufficient for its completion. Mr. Locke maintains, that as every man's time and labor is something that is his own, he, by the very act of occupancy, mixes with the thing that something of his own, which cannot afterwards be taken from him without injustice. But it is difficult to conceive how, or by what mysterious operation a substance not mine before should become my exclusive property, on my mixing with it something that is mine. Others, as Grotius and Puffendorf, have held that the right of property by occupancy is founded on a tacit consent of mankind, that the first occupant, should become the owner. That a custom introduced and established by the tacit consent of any society is a law of that society ; which may secure the property, is true,-and when it has become a confirmed custom, that the first occupant shall be considered the owner, occupancy will become a proof of the right; but this does not account for the right among men, which must accompany or precede the custom which attaches upon it.
Judge Blackstone* derives the right of private property from occupancy ; but first derives to man a general and common right of property in every thing on which that right can attach, from an original grant of the Creator to man, that he should have dominion over all the earth, and over the fish of the sea, and over the fowls of the air, and over every living thing that moveth upon the earth.t This does not, however, assist us in the least, in solving the question, how, if all have a common property in a thing, the occupation of a part by one should sever that part from the common stock, and without the consent of the others, vest an exclusive right in the occupant. It rather enhances the difficulty ; what the author considers in a technical sense, as the grant of a common property, is to be taken as an expression of man's superiority and a declaration of the intention of the laws of nature, established at the creation, that man was to have the use of all these things in such way and manner, with such use of rights and enjoyment as shall be suited to his nature and situation, and with such regulations and modifications, as he should devise, leaving to him the discovery and application of those laws under the guidance of reason and experience.
It is not necessary to suppose, nor is it true, that all things were the common property of man ; but all were intended for his use, and capable of being appropriated, as he should find the capacity, the necessity, and the occasion. Mr. Paley has expressed himself on this subject a little differently, but from his concluding observations, it is evident that his opinion does not essentially differ from that of Judge Blackstone just recited. After stating the various opinions on this subject, he says—"A better account of this right of ownership is the following; that God has provided these things, for the use of all ; he has of consequence, given each leave to take what he wants ; by virtue therefore of this leave, a man may appropriate what he stands in need of, without waiting for the consent of others.” But he says,—“This reason justifies property as far as our necessaries alone; or at most, as far as a competent provision for our natural exigencies.” Here he is speaking of moveable property ; but with regard to property in land he says, “The real foundation of our right is in the law of the land," and bis reason is that the land cannot be divided into separate property, without leaving it to the law of the country to regulate that division."
2 Comm. p. 2.
+ Gen. j. 28.
All this does not go to the origin of the right of property ; and the notion of a formal and equal division, we shall find has no foundation in the law of nature upon this subject. Judge Blackstone observes that “the dispute concerning the origin of the right of property savors too much of nicety and scholastic refinement.”-But, replies his annotator, Mr. Christian, “ It is of great importance, that moral obligations and the rudiments of laws should be referred to true and intelligible principles, such as the minds of serious and well disposed men may rely upon with confidence and satisfaction”—and after having remarked on the insufficiency of former theories, he says,—“But how then does property commence? I conceive no better answer can be given, than by occupancy; or when a thing is separated for private use from the stores of nature, this is agreeable to reason and the 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 the law of property, which nature herself has written on the hearts of all mankind."
From an observation of this early and universal sentiment of the right of property, some have supposed that man is by nature furnished with an internal sense, by which he has a direct perception of this right, and which has been denominated a sense of property.—This seems to be nearer the truth than any of the former theories—and indeed it is the truth, but it is drawn from the stream in its course, not from the fountain head. It is a complex notion and capable of being resolved into its simple principles.
It has been already shown, that man is by nature, or rather the God of nature, furnished with a susceptibility of impressions, by which moral sentiments are excited in his mind. (By moral sentiments is meant such as in some way relate to society, to social rights and duties.) This susceptibility is, as we have seen, the point at which the social nature of man commences, and in which commence all his notions of rights and duties as a social being. The right of property is one of those social rights : it can exist in society only. An isolated being, who never had any knowledge of society, or of any person but himself, could have no conception of a right of property. For it is essential to any conception of this right, that the subject belongs to one in exclusion of all others. The isolated individual could be conscious of his power only to use the fruits, or whatever he had collected for his sustenance; but there is nothing in this situation that can suggest to his mind in the remotest degree any notion of right.-Place him in society with others, let one attempt to deprive him of the fruit he has gathered, or any thing he has collected for his sustenance, it makes an impression on his mind that at once suggests his right to the fruit or other thing, and excites a feeling of resentment against the intruder for a violation of that right in himself.
This is not, however, sufficient to establish a general notion of a right of property. It is yet an individual right, confined to himself, or rather it is but the inceptive notion of the right; and to this extent many of the brute creation appear to have a feeling of the right. The wild beast defends its cavern or any place of shelter for rest, or the protection of its young, and the