« AnteriorContinuar »
E now speak of Property in Land: and V there is a difficulty in explaining the origin of this property, consistently with the law of nature; for the land was once no doubt common, and the question is, how any particular part of it could juftly be taken out of the common, and so appropriated to the first owner, as to give him a better right to it than others; and, wbat is more, a right to exclude all others from it.
Moralists have given many different accounts of this matter; which diversity alone perhaps is a proof that none of them are satisfactory.
One tells us that mankind, when they suffered a particular person to occupy a piece of ground, by tacit consent relinquished their right to it; and, as the piece of ground belonged to mankind collectively, and mankind thus gave up their right to the firct peaceable occupier, it thenceforward be. came his property, and no one afterwards had a right to moleft him in it. :
The objection to this account is, that consent can never be presumed from silence, where the per. son whose consent is required knows nothing about the matter; which must have been the case with all mankind, except the neighbourhood of the place where the appropriation was made. And to sup. pose that the piece of ground previously belonged to the neighbourhood, and that they had a just power of conferring a right to it upon whom they pleased, is to suppose the question resolved, and a partition of land to have already taken place.
The real foundation of our right is The Lar: THE LAND.
It is the intention of God, that the produce or earth be applied to the use of man; this isse: cannot be fulfilled without establishing property : : is consistent therefore with his will, that property * established. The land cannot be divided into spare property, without leaving it to the law of the coccy to regulace that division ; it is consistent thacre with the same will, that the law should regulare time division; and consequently, “ consistent with me “ will of God," or " right," that I lould po. Kas that Masę which these regulations allign me.
By whatever circuitous train of reasoning jou atempt to derive this right, it must terminare ar laz na the will of God; the straightest therefore, and thortett way of arriving at this will, is the best.
Hence it appears, that my right to an estate doa not at all depend upon the manner or justice of the originai acquisition; nor upon the justice of each fub. koueno charge of potention. It is not, for instance, the leis, por ought it to be impeached, becauie tbe ciste was taken poletion of at first by a family of aboriginai Battocs, who happened to be Itronger than their reig jours; for because the British policilor u as turned out by a Roman, or the Roman by a Surun wader; bor becaule it was seized, without cuivur um rigut or reabo, by a follower of the Norman verkarer; trom whom, after many interruptions ultravi and violence, it has at length devolv. ed to me.
Nor suks ike owner's right depend upon the expediemy of tbe law which gives it to him. On one side of a bruk, an ettare delcends to the eldest son: on the orher tide, tu all the children alike. The right of the ciamants under both laws of inheritance is cqual; bugh the expediency of such opposite rules muli nertianly be durerent. Tmin.cples wc have laid down upon this subject
Ito a conclutiva of which a bad uie is
down upon a bad ulc.be
apt to be made. As the right of property depends upon the law of the land, it seems to follow, that a man has a right to keep and take every thing, which the law will allow him to keep and take : which in many cases will authorize the most flagitious chicanery. If a creditor upon a simple contract neglect to demand his debt for six years, the debtor may refuse to pay it : would it be right therefore to do so, where he is conscious of the justice of the debt? If a person, who is under twenty-one years of age, contract a bargain (other than for necessaries), he may avoid it by pleading his minority : but would this be a fair plea, where the bargain was originally just?-The distinction to be taken in such cases is this. With the law, we acknowledge, resides the disposal of property : so long therefore as we keep within the design and intention of a law, that law will justify us, as well in foro confcientia, as in foro humano, whatever be the equity or expediency of the law itself. But when we convert to one purpose, a rule or expression of law, which is intended for another purpose; then, we plead in our justification, not the intention of the law, but the words; that is, we plead a dead letter, which can signify nothing: for words without meaning or intention have no force or effect in justice, much less words taken contrary to the meaning and intention of the speaker or writer. To apply this distinction to the examples just now proposed : in order to protect men against antiquated demands, from which it is not probable they should have preserved the evidence of their discharge, the law prescribes a limited time to certain species of private securities, beyond which, it will not enforce them, or lend its assistance to the recovery of the debt. If a man be ignorant, or du. bious of the justice of the demand made upon him, he may conscientiously plead this limitation; because be applies the rule of law to the purpose for wbich it was intended. But when he refuses to pay a debt, of the reality of which he is conscious, he cannot, as before, plead the intention of the statute, and the
they be cabour. Thusos chicf use and
Another says, that each man's limbs and labour are his own exclusively; that, by occupying a piece of ground a man inseparably mixes his labour with it; by which means the piece of ground becomes thenceforward his own, as you cannot take it from him, without depriving him at the same time of something, which is indisputably bis.
This is Mr. Locke's solution; and seems indeed a fair reason, where the value of the labour bears a considerable proportion to the value of the thing; or where the thing derives its chief use and value from the labour. Thus game and fish, though they be common, whilft at large in the woods or water, instantly become the property of the person that catches them; because an animal, when caught, is much more valuable than when at liberty; and this increase of value, which is inseparable from, and makes a great part of the whole value, is strict. ly the property of the fowler, or fisherman, being the produce of his personal labour. For the same reason, wood or iron, manufactured into utenlils become the property of the manufacturer ; because the value of the workmanship far exceeds that of the materials. And upon a similar principle, a par. cel of unappropriated ground, which a man should pare, buro, plow, harrow, and low, for the production of corn, would justly enough be thereby inade his own. But this will hardly hold, in the manner it has been applied, of taking a ceremonious pofletlion of a tract of land, as pavigators do of new discovered islands, by erecting a standard, engrav. ing an infcription, or publishing a proclamation to the birds and beasts; or of turning your cattle into a piece of graund, setting up a landmark, digging a ditch, or planting a hedge round it. Nor will even the vicaring, manuring, and plowing of a field, give the first occupier a right to it in perpetuity, and alter this culuivation and all effects of it are ceaicd
Another, Another, and in my opinion a better account of the first right of ownership, is the following: that, as God has provided thefe things for the use of all, he has of consequence given each leave to take of them what he wants; by virtue therefore of this leave, a man may appropriate what he stands in Deed of to his own use, without asking, or waiting for the consent of others; in like manner, as when an entertainment is provided for the freeholders of a county, each freeholder goes, and eats and drinks what he wants or chooses, without having or waiting for the consent of the other guests. .
But then, this season justifies property, as far as necessaries alone, or, at the most, as far as a competent provision for our natural exigencies. For, in the entertainment we speak of (allowing the comparison to hold in all points), although every particular freeholder may sit down and eat till he be satisfied, without any other leave than that of the master of the feast, or any other proof of that leave, than the general invitation, or the manifest design with which the entertainment is provided ; yet you would hardly permit any one to fill his pockets.or his wallet, or to carry away with him a quantity of provision to be hoarded up, or wasted, or given to his dogs, or stewed down into fauces, or converted into articles of fuperfluous luxury; especially, if by so doing, he pinched the guests at the lower end of the table."
These are the accounts that have been given of the matter. by the best writers upon the subject; but, were these accounts perfe&tly unexceptionable, they would none of them, I fear, avail us in vindicating our present claims of property in land, unless it were more probable than it is, that our estates were actually acquired at first, in fume of the ways which these accounts suppose, and that a regular regard had been paid to justice, in every succeslive transmislion of them since ; for if one link in the chain fail, every title posterior to it falls to the ground.
accounts fat first, in fome hat our estates