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COMMENTARIES
ON THE
LAWS of ENGLAND.
Book the second.
Of the RIGHTS of THINGS.
Chapter the first.
Of PROPERTY, in general.

The former book of thefe commentaries having treated at large of the jura perfonarum, or fuch rights and duties as are annexed to the perfons of men, the objects of our enquiry in this fecond book will be the jura rerum, or thofe rights which a man may acquire in and to fuch external things as are unconnected with his perfon. Thefe are what the writers on natural law ftile the rights of dominion, or property, concerning the nature and original of which I fhall firft premife a few obfervations, before I proceed to diftribute and confider it's feveral objects.

Vol. II.

A

There

.P 2
The Rights of Things.
Book II.
Ch. i.

There is nothing which fo generally ftrikes the imagination, and engages the affections of mankind, as the right of property; or that fole and defpotic dominion which one man claims and exercifes over the external things of the world, in total exclufion of the right of any other individual in the univerfe. And yet there are very few, that will give themfelves the trouble to confider the original and foundation of this right. Pleafed as we are with the poffeffion, we feem afraid to look back to the means by which it was acquired, as if fearful of fome defect in our title; or at beft we reft fatisfied with the decifion of the laws in our favour, without examining the reafon or authority upon which thofe laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by defcent from our anceftors, or by the laft will and teftament of the dying owner; not caring to reflect that (accurately and ftrictly fpeaking) there is no foundation in nature or in natural law, why a fet of words upon parchment fhould convey the dominion of land; why the fon fhould have a right to exclude his fellow creatures from a determinate fpot of ground, becaufe his father had done fo before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain poffeffion, fhould be entitled to tell the reft of the world which of them fhould enjoy it after him. Thefe enquiries, it muft be owned, would be ufelefs and even troublefome in common life. It is well if the mafs of mankind will obey the laws when made, without fcrutinizing too nicely into the reafons of making them. But, when law is to be confidered not only as matter of practice, but alfo as a rational fcience, it cannot be improper or ufelefs to examine more deeply the rudiments and grounds of thefe pofitive conftitutions of fociety.

In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man “dominion over all “the earth; and over the fifh of the fea, and over the fowl of “the air, and over every living thing that moveth upon the
“earth ^a.”
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The Rights of Things.
Book II.
Ch. i.

“earth ^a.” This is the only true and folid foundation of man's dominion over external things, whatever airy metaphyfical notions may have been ftarted by fanciful writers upon this fubject. The earth therefore, and all things therein, are the general property of all mankind, exclufive of other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reafonable to fuppofe, that all was in common among them, and that every one took from the public ftock to his own ufe fuch things as his immediate neceffities required.

These general notions of property were then fufficient to anfwer all the purpofes of human life; and might perhaps ftill have anfwered them, had it been poffible for mankind to have remained in a ftate of primaeval fimplicity: as may be collected from the manners of many American nations when frift difcovered by the Europeans; and from the antient method of living among the firft Europeans themfelves, if we may credit either the memorials of them preferved in the golden age of the poets, or the uniform accounts given by hiftorians of thofe times, wherein “errant omnia communia et indivifa omnibus, veluti unum cunctis pa- “trimonium effet ^b.” Not that this communion of goods feems ever to have been applicable, even in the earlieft ages, to ought but the fubftance of the thing; nor could be extended to the ufe of it. For, by the law of nature and reafon, he who firft began to ufe it, acquired therein a kind of tranfient property, that lafted of long as he was uting it, and no longer ^c: or, to fpeak with greater precifion, the right of poffeffion continued for the fame time only that the act of poffeffion lafted. Thus the ground was in common, and no part of it was the permanent property of any man in particular: yet whoever was in the occupation of any determinate fpot of it, for reft, for fhade, or the like, acquired unjuft, and contrary to the law of nature, to have driven him by force ; but the inftant that he quitted the ufe or occupation of it,

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^a Gen. 1. 28.
^b Juftin. L. 43. c. 1.
^c Barbeyr, Puff. 1. 4. c. 4.
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A2
another
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The Rights of Things.
Book II.
Ch. i.

another might feife it without injuftice. Thus alfo a vine or other tree might be faid to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the fole property of the fruit, which he had gathered for his own repaft. A doctrine well illuftrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own ^d.

But when mankind increafed in number, craft, and ambition, it became neceffary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate ufe only, but the very fubftance of the thing to be ufed. Ohterwife innumerable tumults muft have arifen, and the good order of the world been continually broken and difturbed, while a variety of perfons were ftriving who fhould get the firft occupation of the fame thing, or difputing which of them had actually gained it. As human life alfo grew more and more refined, abundance of conveniences were devifed to render it more eafy, commodious, and agreeable; as, habitations for fhelter and fafety, and raiment for warmth and decency. But no man would be at the trouble to provide either, fo long as he had only an ufufructuary property in them, which was to ceafe the inftant that he quitted poffeffion; --- if, as foon as he walked out of his tent, or pulled off his garment, the next ftranger who came by would have a right to inhabit the one, and to wear the other. In the café of habitations in particular, it was natural of obfeive, that even the brute creation, to whom every thing elfe was in common, maintained a kind of permanent property in their dwellings, efpecially for the protection of their young; that the birds of the air had nefts, and the beafts of the field had caverns, the invafion of which they efteemed a very flagrant injuftice, and would facrifice their lives to preferve them. Hence a property was foon eftablifhed in every man's houfe and home-ftall; which feem to have been originally mere temporary huts or moveable cabins,

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^d Quemadmoaum theatrum, cum commune fit, recte tamen dici poteft, ejus effe eum locum quem quifque occuparit. Ce Fin. L. 3. c. 20.
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fuited
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The Rights of Things.
Book II.
Ch. i.

fuited to the defign of providence for more fpeedily peopling the earth, and fuited to the wandering life of their owners, before any extenfive property in the foil or ground was eftablifhed. And there can be no doubt, but that moveables of every kind became fooner appropriated than the permanent fubftantial foil: partly becaufe they were more fufceptible of a long occupancy, which might be continued for months together without any fenfible interruption, and at length by ufage ripen into an eftablifhed right; but principally becaufe few of them could be fit for ufe, till improved and meliorated by the bodily labour of the occupant; which bodily, beftowed upon any fubject which before lay in common to all men, is univerfally allowed to give the faireft and moft reafonable title to an exclufive property therein.

The article of food was a more immediate call, and therefore a more early confideration. Such, as were not contented with the fpontaneous product of the earth, fought for a more folid refrefhment in the flefh of beafts, which they obtained by hunting. But the frequent difappointments, incident to that method of provifion, induced them to gather together fuch animals as were of a more tame and fequacious nature; and to eftablifh a permanent property in their flocks and herds, in order to fuftain themfelves in a lefs precarious manner, partly by the milk of the dams, and partly by the flefh of the young. The fupport of thefe their cattle made the article of water alfo a very important point. And therefore the book of Genefis (the moft venerable monument of antiquity, confidered merely with a view to hiftory) will furfigh us with frequent inftances of violent contentions concerning wells; the exclufive property of which appears to have been eftablifhed in the firft digger or occupant, even in fuch places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a fo journer, afferting his right to a well in the country of Abimelech, and exacting an oath for his fecurity, “becaufe he had digged that well ^e.” And Ifaac, about ninety years afterwards, re-claimed this his fa-

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^e Gen. 21. 30.
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ther's
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The Rights of Things.
Book II.
Ch. i.

ther's property; and, after much contention with the Philiftines, was fuffered to enjoy it in peace ^f.

All this while the foil and pafture of the earth remained ftill in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the neceffity of a fole and exclufive property in lands (for the fake of agriculture) was earlier felt, and therefore more readily complied with. Otherwife, when the multitude of men and cattle had confumed every convenience on one fpot of ground, it was deemed a natural right to feife upon and occupy fuch other lands as would more eafily fupply their neceffities. This practice is ftill retained among the wild and uncultivated nations that have never been formed into civil ftates, like the Tartars and others in the eaft; where the climate itfelf, and the boundlefs extent of their territory, confpire to retain them ftill in the fame favage ftate of vagrant liberty, which was univerfal in the earlieft ages; and which Tacitus informs us continued among the Germans till the decline of the Roman empire ^g. We have alfo a ftriking example of the fame kind in the hiftory of Abraham and his nephew Lot ^h. When their joint fubftance became fo great, that pafture and other conveniences grew fcarce, the natural confequence was that a ftrife arofe between their fervants; fo that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compofe: “let there be no ftrife, “I pray thee, between thee and me. Is not the whole land be- “fore thee? Separate thyfelf, I pray thee, from me. 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.” This plainly implies an acknowleged right, in either, to occupy whatever ground he pleafed, that was not pre-occupied by other tribes. “And Lot lifted up his eyes, and beheld all the plain of Jordan, “that it was well watered every where, even as the garden of the “Lord. Then Lot chofe him all the plain of Jordan, and jour- “neyed eaft; and Abraham dwelt in the land of Canaan.”

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^f Gen. 26. 15, 18 &c.
^g Colunt difcreti et diverfi; ut fons, ut campus, ut nemus placuit. De mor. Germ. 16
^h Gen. c. 13.
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Upon
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The Rights of Things.
Book II.
Ch. i.

Upon the fame principle was founded the right of migration, or fending colonies to find out new habitations, when the mother country was overcharged with inhabitants; which was practifed as well by the Phaenicians and Greeks, as the Germans, Scythians, and other northern people. And, fo long as it was confined to the ftocking and cultivation of defart uninhabited countries, it kept ftrictly within the limits of the law of nature. But how far the feifing on countries already peopled, and driving out or maffacring the innocent and defencelefs natives, merely becaufe they differed from their invaders in language, in religion, in cuftoms, in government, or in colour; how far fuch a conduct was confonant to nature, to reafon, or to chriftianity, deferved well to be confidered by thofe, who have rendered their names immortal by thus civilizing mankind.

As the world by degrees grew more populous, it daily became more difficult to inhabit, without encroaching upon former occupants; and, by conftantly occupying the fame individual fpot, the fruits of the earth were confumed, and it's fpontaneous produce deftroyed, without any provifion for a future fupply or fucceffion. It therefore became neceffary to purfue fome regular method of providing a conftant fubfiftence; and this neceffity produced, or at leaft promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connexion and confequence, introduced and eftablifhed the idea of a more permanent property in the foil, than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in fufficient quantities, without the affiftance of tillage: but who would be at the pains of tilling it, if another might watch an opportunity to feife upon and enjoy the product of his induftry, art, and labour? Had not therefore a feparate property in lands, as well as moveables, been vefted in fome individuals, the world muft have continued a foreft, and men have been mere animals of prey; which, according to fome philofophers, is the genuine ftate of nature. Whereas now (fo gracioufly
has
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The Rights of Things.
Book II.
Ch. i.

has providence interwoven our duty and our happinefs together) the refult of this very neceffity has been the ennobling of the human fpecies, by giving it opportunities of improving it's rational faculties, as well as of exerting it's natural. Neceffity begat property; and, in order to infure that property, recourfe was had to civil fociety, which brought along with it a long train of infeparable concomitants; ftates, government, laws, punifhments, and the public exercife of religious duties. Thus connected together, it was found that a part only of fociety was fufficient to provide, by their manual labour, for the neceffary fubfiftence of all; and leifure was given to others to cultivate the human mind, to invent ufeful arts, and to lay the foundations of fcience.

The only queftion remaining is, how this property became actually vefted; of what it is that gave a man an exclufive right to retain in a permanent manner that fpecific land, which before belonged generally to every body, but particularly to nobody. And, as we before obferved that occupancy gave the right to the temporary ufe of the foil, fo it is agreed upon all hands that occupancy gave alfo the original right to the permanent property in the fubftance of the earth itfelf; which excludes every one elfe but the owner from the ufe of it. There is indeed fome difference among the writers on natural law, concerning the reafon why occupancy fhould convey this right, and inveft one with this abfolute property: Grotius and Puffendorf infifting, that this right of occupancy is founded upon a tacit and implied affent of all mankind, that the firft occupant fhould become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding, that there is no fuch implied affent, neither is it neceffary that there fhould be; for that the very act of occupancy, alone, being a degree of bodily labour, is from a principle of nature juftice, without any confent or compact, fufficient of itfelf to gain a title. A difpute that favours too much of nice and fcholaftic refinement ! However, both fides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man feifing to this own continued ufe fuch fpots of ground as he found moft
agreeable
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The Rights of Things.
Book II.
Ch. i.

agreeable to his own convenience, provided he found them unoccupied by any one elfe.

Property, both in lands and moveables, being thus originally acquired by the firft taker, which taking amounts to a declaration that he intends to appropriate the thing to his own ufe, it remains in him, by the principles of univerfal law, till fuch time as he does fome other act which fhews an intention to abandon it: for then it becomes, naturally fpeaking, publici juris once more, and is liable to be again appropriated by the next occupant. So if one is poffeffed of a jewel, and cafts it into the fea or a public highway, this is fuch an exprefs dereliction, that a property will be vefted in the firft fortunate finder that will feife it to his own ufe. But if he hides it privately in the earth, or other fecret place, and it is difcovered, the finder acquires no property therein; for the owner hath not by this act declared any intention to abandon it, but rather the contrary: and if he lofes or drops it by accident, it cannot be collected from thence, that he defigned to quit the poffeffion; and therefore in fuch cafe the property ftill remains in the lofer, who may claim it again of the finder. And this, we may remember, is the doctrine of the law of England, with relation to treafure trove ⁱ.

But this method, of one man's abandoning his property, and another's feifing the vacant poffeffion, however well founded in theory, could not long fubfift in fact. It was calculated merely for the rudiments of civil fociety, and neceffarily ceafed among the complicated interefts and artificial refinements of polite and eftablifhed governments. In thefe it was found, that what became inconvenient or ufelefs to one man was highly convenient and ufeful to another; who was ready to give in exchange for it fome equivalent, that was equally defirable to the former proprietor. This mutual convenience introduced commercial traffic, and the reciprocal transfer of property by fale, grant, or conveyance: which may be confidered either as a con-

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ⁱ See Book I. pag. 285.
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Vol. II.

B

tinuance

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The Rights of Things.
Book II.
Ch. i.

tinuance of the original poffeffion which the firft occupant had; or as an abandoning of the thing by the prefent owner, and an immediate fucceffive occupancy of the fame by the new proprietor. The voluntary dereliction of the owner, and delivering the poffeffion to another individual, amount to a transfer of the property; the proprietor declaring his intention no longer to occupy the thing himfelf, but that his own right of occupancy fhall be vefted in the new acquirer. Or, taken in the other light, if I agree to part with an acre of by having abandoned the property, and Titius, being the only or firft man acquainted with fuch my intention, immediately fteps in and feifes the vacant poffeffion: thus the confent expreffed by the conveyance gives Titius a good right againft me; and poffeffion, or occupancy, confirms that right againft all the world befides.

The moft univerfal and effectual way, of abandoning property, is by the death of the occupant; when, both the actual poffeffion and intention of keeping poffeffion ceafing, the property, which is founded upon fuch poffeffion and intention, ought alfo to ceafe of courfe. For, naturally fpeaking, the inftant a man ceafes to be, he ceafes to have any dominion: elfe, if he had a right to difpofe of his acquifitions one moment beyond his life, he would alfo have a right to direct their difpofal for a million of ages after him; which would be highly abfurd and inconvenient. All property muft therefore ceafe upon death, confidering men as abfolute individuals, and unconnected with civil fociety: for then, by the principles before eftablifhed, the next immediate occupant would acquire a right in all that the deceafed poffeffed. But as, under civilized governments which are calculated for the peace of mankind, fuch a conftitution would be productive of endlefs difturbances, the univerfal law of almoft every nation (which is a kind of fecondary law of nature) has either given the dying perfon a power of continuing his property, by difpofing of his poffeffions by will; or, in café he neglects to difpofe of it, or is not permitted to make any difpofition at all,
the
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The Rights of Things.
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Ch. i.

the municipal law of the country then fteps in, and declares who fhall be the fucceffor, reprefentative, or heir of the deceafed; that is, who alone fhall have a right to enter upon this vacant poffeffion, in order to avoid that confufion, which it's becoming again common would occafion ⁱ. And farther, in cafe no teftament be permitted by the law, or none be made, and no heir can be found fo qualified as the law requires, ftill, to prevent the robuft title of occupancy from again taking place, the doctrine of efcheats is adopted in almoft every country; whereby the fovereign of the ftate, and thofe who claim under his authority, are the ultimate heirs, and fucceed to thofe inheritances, to which no other title can be formed.

The right of inheritance, or defcent to the children and relations of the deceafed, feems to have been allowed much earlier than the right of devifing by teftament. We are apt to conceive at firft view that it has nature on it's fide; yet we often miftake for nature what we find eftablifhed by long and inveterate cuftom. It is certainly a wife and effectual, but clearly a political. Eftablifhment; fince the permanent right of property, vefted in the anceftor himfelf, was no natural, but merely a civil, right. It is true, that the tranfmiffion of one's poffeffion to pofterity has an evident tendency to make a man a good citizen and a ufeful member of fociety: it fets the paffions on the fide of duty, and prompts a man to deferve well of the public, when he is fure that the reward of his fervices will not die with himfelf, but be tranfmitted to thofe with whom he is connected by the deareft and moft tender affections. Yet, reafonable as this foundation of the right of inheritance may feem, it is probable that it's immediate original arofe not from fpeculations altogether fo delicate and refined; and, if not from fortuitous circumftances, at leaft from a plainer and more fimple principle. A man's children or neareft relations are ufually about him on his death-bed, and are the

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1. It is principally to prevent any vacancy of poffeffion, that the civil law confiders father and fon as one perfon; fo that upon the death of either the inheritance does not fo properly defcend, as continue in the hands of the furvivor. Ff, 28. 2. 11.
   

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B2
earlieft
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Ch. i.

earlieft witneffes of his deceafe. They became therefore generally the next immediate occupants, till at length in procefs of time this frequent ufage ripened into general law. And therefore alfo in the earlieft ages, on failure of children, a man's fervants born under his roof were allowed to be his heirs; being immediately on the fpot when he died. For we find the old patriarch Abraham expreffly declaring, that “fince God had given him no “feed, his fteward Eliezer, one born in his houfe, was his heir ^k.”

While property continued only for life, teftaments were ufelefs and unknown; and, when it became inheritable, the inheritance was long indefeafible, and the children or heirs at law were incapable of exclufion by will. Till at length it was found, that fo ftrict a rule of inheritance made heirs difobedient and headftrong, defrauded creditors of their juft debts, and prevented many provident fathers from dividing or charging their eftates as the exigence of their families required. This introduced pretty generally the right of difpofing one's property, or a part of it, by teftament; that is, by written or oral inftructions properly witneffed and authenticated, according to the pleafure of the deceafed; which we therefore emphatically ftile his will. This was eftablifhed in fome countries much later than in others. With us in England, till modern times, a man could only difpofe of one third of his moveables from his wife and children: and, in general, no will was permitted of lands till the reign of Henry the eighth; and then only of a certain portion : for it was not till after the reftoration that the power of devifing real property became fo univerfal as at prefent.

Wills therefore and teftaments, rights of inheritance and fucceffions, are all of them creatures of the civil or municipal laws, and accordingly are in all refpects regulated by them; every diftinct country having different ceremonies and requifites to make a teftament completely valid :neither does any thing vary more that the right of inheritance under different national eftablifh-

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^k Gen. 15. 3.
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ments
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ments. In England particularly, this diverfity is carried to fuch a length, as if it had been meant to point out the power of the laws in regulating the fucceffion to property, and how futile every claim muft be that has not it's foundation in the pofitive rules of the ftate. In perfonal eftates the father may fucceed to his children; in landed property he never can be heir, by any the remoteft poffibility :in general only the eldeft fon, in fome places only the youngeft, in others all the fons together, have a right to fucceed to the inheritance : in real eftates males are preferred to females, and the eldeft male will ufually exclude the reft; in the divifion of perfonal eftates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

This one confideration may help to remove the fcruples of many well-meaning perfons, who fet up a miftaken confcience in oppofition to the rules of law. If a man difinherits his fon, by a will duly executed, and leaves his eftate to a ftranger, there are many who confider this proceeding as contrary to natural juftice :while others fo fcrupuloufly adhere to the fuppofed intention of the dead, that if a will of lands be attefted by only two witneffes inftead of three, which the law requires, they are apt to imagine that the heir is bound in confcience to relinquish his title to the devifee. But both of them certainly proceed upon very erroneous principles :as if, on the one hand, the fon had by nature a right to fucceed to his father's lands; or as if, on the other hand, the owner was by nature intitled to direct the fucceffion of his property after his own deceafe. Whereas the law of nature fuggefts, that on the death of the poffeffor the eftate fhould again become common, and be open to the next occupant, unlefs otherwife ordered for the fake of civil peace by the pofitive law of fociety. The pofitive law of fociety, which is with us the municipal law of England, directs it to veft in fuch perfon as the laft proprietor fhall by will, attended with certain requifites, appoint; and, in defect of fuch appointment, to go to fome particular perfon, who, from the fefult of certain local
confti-
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The Rights of Things.
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Ch. i.

conftitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a fhadow of right in any one but the perfon appointed :and, where the neceffary requifites are omitted, the right of the heir is equally ftrong and built upon as folid a foundation, as the right of the devifee would have been, fuppofing fuch requifites were obferved.

But, after all, there are fome few things, which notwithftanding the general introduction and continuance of property, muft ftill unavoidably remain in common; being fuch wherein nothing but an ufufructuary property is capable of being had ;and therefore they ftill belong to the firft occupant, during the time he holds poffeffion of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences : fuch alfo are the generality of thofe animals which are faid to be ferae nature, or of a wild and untameable difpofition; which any man may feife upon and keep for his own ufe or pleafure. All thefe things, fo long as they remain in poffeffion, every man has a right to feife and enjoy them afterwards.

Again ;there are other things, in which a permanent property may fubfift, not only as to the temporary ufe, but alfo the folid fubftance ;and which yet would be frequently found without a proprietor, had not the wifdom of the law provided a remedy to obviate this inconvenience. Such are forefts and other wafte grounds, which were omitted to be appropriated in the general diftribution of lands :fuch alfo are wrecks, eftrays, and that fpecies of wild animals, which the arbitrary conftitutions of pofitive law have diftinguifhed from the reft by the well-known appellation of game. With regard to thefe and fome others, as

diftur-
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difturbances and quarrels would frequently arife among individuals, contending about the acquifition of this fpecies of property by firft occupancy, the law has therefore wifely cut up the root of diffenfion, by vefting the things themfelves in the fovereign of the ftate; or elfe in his reprefentatives, appointed and authorized by him, being ufually the lords of manors. And thus the legiflature of England has univerfally promoted the grand ends of civil fociety, the peace and fecurity of individuals, by fteadily purfuing that wife and orderly maxim, of affigning to every thing capable of ownerfhip a legal and determinate owner.