BOOK TIE SECOND.

OF THE RIGHTS OF THINGS.

CHAPTER I.

OF PROPERTY IN GENERAL.

THE objects of our next inquiry are the jura rerum, or those rights which a man may acquire in or to such external things as are unconnected with his person; or what the writers on natural law style the rights of dominion, or property; concerning the nature and origin of which I shall premise a few observations.

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property. And yet few give themselves the trouble to consider its origin and foundation. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will of the dying owner; not caring to reflect that, strictly speaking, there is no foundation in nature, why words upon parchment should convey the dominion of land; why the son should exclude his fellows from a spot of ground, because his father had done so before him; or why the occupier of a particular field or of a jewel, when on his death-bed and no longer able to maintain possession, should tell the rest of the world which of them should enjoy it after him. But when law is to be considered as a rational science, it cannot be useless to examine more deeply the rudiments and grounds of these positive constitutions of society.

· In the beginning of the world, as we are informed, the Creator gave to man" dominion over all the earth: and over the fish of

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the sea, and over the fowl of the air, and over every living thing that moveth upon the earth." The earth, therefore, and all things therein, are the general property of mankind, from the immediate gift of the Creator. And, while it continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that each one took from the public stock such things as his immediate necessities required. But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise tumults must have arisen, and the good order of the world been continually 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 grew more refined, conveniences were devised to render it more commodious and agreeable; as habitations for shelter, and raiment for warmth. But no man would provide either, so long as he had only an usufruct in them, which was to cease the instant he quitted possession; if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by had a right to inhabit the one, or to wear the other. Hence a property was soon established in every man's house, before any right to the soil itself was created.

The article of food was a more early consideration. Such as were not contented with the spontaneous produce of the earth, sought for the flesh of beasts, which they obtained by hunting; until the frequent disappointments incident thereto, led them to gather together such animals as were of a more tame and sequacious nature; and to establish a permanent property in their flocks and herds in order to sustain themselves, partly by the milk of the dams, and partly by the flesh of the young.

All this while the soil and pasture of the earth remained in common as before, open to every occupant; so that when men and cattle had consumed every convenience on one spot, it was deemed a natural right to occupy such other lands as supplied their necessities. This practice is still retained among those

nations that have never been formed into civil states; and upon this principle alone is founded the right of sending colonies to find out new habitations, when the mother-country is overcharged with inhabitants.

As the world grew more populous, it became more difficult to find out new spots to inhabit, without encroaching upon former occupants; and, by constantly occupying the same spot, the fruits of the earth were consumed, and its spontaneous produce destroyed, without any provision for a future supply. It therefore became necessary to pursue some regular method of providing a constant subsistence; and this necessity produced the art of agriculture. And 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 till, if another might seize upon and enjoy the produce of his labour? Necessity thus 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, and punishments. It was then found that a part only of a society was sufficient to provide, by their labour, for the subsistence of all; and leisure was given to others to cultivate the mind, to invent useful arts, and to lay the foundations of science.

The only question remaining is, how property became actually vested; or what it is that gave a man an exclusive right to retain in a permament 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; which excludes every one else but the owner from the use of it.

Property, both in lands and movables, being thus originally acquired by the first taker, it remains in him, till he shows an intention to abandon it; for then it becomes, naturally speaking, liable to be again appropriated by the next occupant. But such a practice, however well founded in theory, could not long subsist in fact. It necessarily ceased among the complicated

interests of established governments; especially when it was found, that what became inconvenient or useless to one, was highly convenient and useful to another; who was ready to give for it some equivalent, equally desirable to the former proprietor. Thus convenience introduced traffic, and the transfer of property by sale, grant, or conveyance; which may be considered either a continuance of the original possession, or as an abandonment of the thing by the present owner, and an immediate successive occupancy by the new proprietor.

The most effectual way of abandoning property, is by the death of the occupant; whereupon considering men as absolute individuals and unconnected with civil society, the next occupant would acquire a right in all that the deceased possessed. But as, under civilized governments, such a constitution would produce endless disturbances, the law of every nation either gives the dying person a power of continuing his property, by disposing of it by will; or, in case he neglects to do so, steps in, and declares who shall be the representative or heir of the deceased. Hence the right of inheritance in the relatives of the deceased, which seems to have been allowed much earlier than the right of devising by will; and which we are apt to conceive at the first view has nature on its side. Yet we often mistake for nature what is merely inveterate custom. For a man's children or near relations being usually about him on his death-bed, are the earliest witnesses of his decease, and became therefore the next occupants of his property, till at length, in process of time, this usage ripened into law. So that to municipal and not to natural law we owe not only the right of inheritance, but the right to bequeath by will. For while property continued only for life, as at first, testaments were unknown: when it became inheritable, the inheritance was long indefeasible, and the heirs could not be excluded by will; and when at length it was found, that this rule made heirs disobedient, defrauded creditors of their debts, and prevented provident fathers from dividing their estates as the exigence of their families required, the right of disposing by will was introduced. So that the rights of inheritance and succession are creatures of the municipal law, and in all respects regulated by it.

Some few things, however, must unavoidably remain in

common. Such are light, air, and water; which a man may occupy by means of his windows, his gardens, and his mills; such also are animals of a wild and untameable disposition; which any man may seize upon and keep for his own pleasure. All these, so long as they remain in his possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, they return to the common stock, and any man has an equal right to seize and enjoy them afterwards.

CHAPTER II.

OF REAL PROPERTY.

THE objects of property are things, as contradistinguished from persons; and things are of two kinds; things real and things personal. Things real are such as are permanent, fixed, and immovable, which cannot be carried out of their place, as lands and tenements; things personal are goods, money, and all other movables, which may attend the owner's person wherever he thinks proper to go. Things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; tenement is a word of still greater extent, signifying everything that may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus, liberum tenementum, frank tenement, or freehold, is applicable not only to lands but also to offices, rents, and the like: and as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements. But a hereditament is by much the most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus, an heir-loom, which by custom descends to the heir, is neither land nor tenement, but a mere movable; yet, being inheritable, is comprised under the general word hereditament.

Hereditaments then are of two kinds, corporeal and incor