about ninety years afterwards, reclaimed this his father's property; and, after much contention with the Philiftines, was fuffered to enjoy it in peace f. ALL this while the foil and pasture 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 exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise when the multitude of men and cattle had confumed every convenience on one spot 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 states, like the Tartars' and others in the eaft; where the climate itself, and the boundless extent of their territory, confpire to retain them still 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. We have also a striking example of the same kind in the hiftory of Abraham and his nephew Lot 1. When their joint fubftance became fo great, that pasture and other conveniences grew fearce, 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 before "thee? Separate thyself, 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 acknowledged right, in either, to occupy whatever ground he pleased, 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 chose him all "the plain of Jordan, and journeyed eaft; and Abraham "dwelt in the land of Canaan." f Gen. xxvi. 15. 18, &c. * Colunt difcreti et diverfi; ut fons, ut campus,ut nemus, placuit. De mor.Ger.16. Gen. c. xiii. UPON UPON the fame principle was founded the right of migra→ tion, or fending colonies to find out new habitations, when the mother-country was overcharged with inhabitants; which was practifed as well by the Phoenicians and Greeks, as the Germans, Scythians, and other northern people. And, fo long as it was confined to the stocking and cultivation of defert uninhabited countries, it kept strictly 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 defenceless natives, merely because they differed from their invaders in language, in religion, in cuftoms, in government, or in colour; how far fuch a conduct was consonant to nature, to reason, or to christianity, deserved well to be confidered by those, who have rendered their names immortal by thus civilizing mankind. As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants: and, by conftantly occupying the fame individual spot, the fruits of the earth were confumed, and it's fpontaneous produce destroyed, without any provision for a future fupply or fucceffion. It therefore became neceffary to pursue some regular method of providing a constant subsistence; and this neceffity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connexion and confequence, introduced and established 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 affistance 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 vested in some individuals, the world must have continued a foreft, and men have been mere animals of prey; which, according to fome philofophers, is the genuine ftate of naA 4 ture. ture. Whereas now (so graciously has Providence interwoven our duty and our happiness 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, recourse was had to civil society, which brought along with it a long train of infeparable concomitants; ftates, government, laws, punishments, and the public exercise 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 useful arts, and to lay the foundations of science. THE only question remaining is, how this property became actually vested or what it is that gave a man an exclufive right to retain in a permanent manner that specific 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 itself; which excludes every one else but the owner from the use of it. There is indeed fome difference among the writers on natural law, concerning the reafon why occupancy should convey this right, and inveft one with this abfolute property: Grotius and Puffendorf infifting, that this right of occupancy is founded on a tacit and implied affent of all mankind, that the first 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 natural justice, without any confent or compact, fufficient of itself 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 feifiag to his own continued ufe ufe fuch spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. PROPERTY, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till fuch time as he does fome other act which fhews an intention to abandon it; for then it becomes, naturally speaking, 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 sea or a public highway, this is fuch an express dereliction, that a property will be vested in the first fortunate finder that will seise it to his own use. But if he hides it privately in the earth or other fecret place, and it is discovered, 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 designed to quit the poffeffion; and therefore in such a case the property still 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 treasure trove i. BUT this method, of one man's abandoning his property, and another feifing the vacant poffeffion, however well founded in theory, could not long fubfift in fact. It was calculated merely for the rudiments of civil society, and necesfarily ceased among the complicated interefts and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another; who was ready to give in exchange for it some equivalent, that was equally defirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by fale, grant, or conveyance: which iSee Vol. I. pag. 295. may may be confidered either as a continuance of the original po feffion which the first occupant had; or as an abandoning of the thing by the present owner, and an immediate successive 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 himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property and Titius being the only or firft man acquainted with such my intention, immediately steps in and seises the vacant poffeffion: thus the confent expreffed by the conveyance gives Titius a good right against me; and poffeffion, or occupancy, confirms that right against all the world befides. THE most 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 such poffeffion and intention, ought alfo to ceafe of course. For, naturally fpeaking, the instant a man ceases to be, he ceases to have any dominion: elfe, if he had a right to dispose of his acquifitions one moment beyond his life, he would also have a right to direct their difpofal for a million of ages after him; which would be highly abfurd and inconvenient. All property must 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 endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying perfon a power of continuing his property, by difpofing of his poffeffions by will; or, in cafe he neglects to difpofe of it, or is not permitted to make any disposition |