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CHA P. IV.

IN WHAT THE RIGHT OF PROPERTY IS

W

FOUNDED.

E now speak of Property in Land: and there is a difficulty in explaining the origin of this property, confiftently 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 fo appropriated to the first owner, as to give him a better right to it than others; and, what is more, a right to exclude all others from it.

Moralifts have given many different accounts of this matter; which diverfity alone perhaps is a proof that none of them are fatisfactory.

One tells us that mankind, when they fuffered a particular person to occupy a piece of ground, by tacit confent relinquished their right to it; and, as the piece of ground belonged to mankind collectively, and mankind thus gave up their right to the first peaceable occupier, it thenceforward became his property, and no one afterwards had a right to moleft him in it.

The objection to this account is, that confent can never be prefumed from filence, where the perfon whose consent is required knows nothing about the matter; which must have been the cafe with all mankind, except the neighbourhood of the place where the appropriation was made. And to fuppose that the piece of ground previously belonged to the neighbourhood, and that they had a juft power of conferring a right to it upon whom they pleased, is to fuppofe the queftion refolved, and a partition of land to have already taken place.

Another

The real foundation of our right is THE LAW OF

THE LAND.

It is the intention of God, that the produce of the earth be applied to the ufe of man; this intention cannot be fulfilled without establishing property; it is confiftent therefore with his will, that property be established. The land cannot be divided into feparate property, without leaving it to the law of the country to regulate that divifion; it is confiftent therefore with the fame will, that the law fhould regulate the divifion; and confequently, confiftent with the "will of God," or "right," that I should poffels that share which thefe regulations aflign me.

By whatever circuitous train of reafoning you attempt to derive this right, it must terminate at laft in the will of God; the ftraightest therefore, and shortest way of arriving at this will, is the best.

Hence it appears, that my right to an estate does not at all depend upon the manner or juftice of the original acquifition, nor upon the juftice of each fubfequent change of poffeffion. It is not, for inftance, the lefs, nor ought it to be impeached, because the eftate was taken poffeffion of at first by a family of aboriginal Britons, who happened to be stronger than their neighbours; nor becaufe the British poffeffor was turned out by a Roman, or the Roman by a Saxon invader; nor because it was feized, without colour of right or reason, by a follower of the Norman adventurer, from whom, after many interruptions of fraud and violence, it has at length devolved to me.

Nor does the owner's right depend upon the expediency of the law which gives it to him. On one fide of a brook, an eftate defcends to the eldest fon; on the other fide, to all the children alike. The right of the claimants under both laws of inheritance is equal; though the expediency of fuch oppofite rules must neceffarily be different.

The principles we have laid down upon this fubject apparently tend to a conclufion of which a bad ufe is

apt

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 cafes will authorize the most flagitious chicanery. If a creditor upon a fimple contract neglect to demand his debt for fix years, the debtor may refuse to pay it would it be right therefore to do fo, where he is confcious of the juftice of the debt? If a perfon, who is under twenty-one years of age, contract a bargain (other than for neceffaries), he may avoid it by pleading his minority: but would this be a fair plea, where the bargain was originally juft?-The diftinction to be taken in fuch cafes is this. With the law, we acknowledge, refides the difpofal of property: fo long therefore as we keep within the defign and intention of a law, that law will justify us, as well in foro confcientia, as in foro bumano, whatever be the equity or expediency of the law itfelf. But when we convert to one purpose, a rule or expreffion of law, which is intended for another purpofe; then, we plead in our juftification, not the intention of the law, but the words; that is, we plead a dead letter, which can fignify nothing for words without meaning or intention have no force or effect in juftice, much less words taken contrary to the meaning and intention of the speaker or writer. To apply this diftinction to the examples juft now propofed in order to protect men against antiquated demands, from which it is not probable they fhould have preferved the evidence of their discharge, the law prefcribes a limited time to certain species of private fecurities, beyond which, it will not enforce them, or lend its affiftance to the recovery of the debt. If a man be ignorant, or dubious of the juftice of the demand made upon him, he may confcientiously plead this limitation; because be applies the rule of law to the purpose for which it was intended. But when he refufes to pay a debt, of the reality of which he is confcious, he cannot, as before, plead the intention of the ftatute, and the G

fupreme

Another fays, that each man's limbs and labour are his own exclufively; that, by occupying a piece of ground a man infeparably 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 fame time of fomething, which is indifputably bis.

This is Mr. LOCKE's folution; and feems indeed a fair reason, where the value of the labour bears a confiderable proportion to the value of the thing; or where the thing derives its chief ufe and value from the labour. Thus game and fifh, though they be common, whilft at large in the woods or water, inftantly 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 infeparable from, and makes a great part of the whole value, is ftrictly the property of the fowler, or fisherman, being the produce of his perfonal labour. For the fame reafon, wood or iron, manufactured into utenfils become the property of the manufacturer; becaufe the value of the workmanship far exceeds that of the materials. And upon a fimilar principle, a parcel of unappropriated ground, which a man fhould pare, burn, plow, harrow, and fow, 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 poffeflion of a tract of land, as navigators do of new difcovered iflands, by erecting a standard, engraving an infcription, or publishing a proclamation to the birds and beafts, or of turning your cattle into a piece of ground, fetting up a landmark, digging a ditch, or planting a hedge round it. Nor will even the clearing, manuring, and plowing of a field, give the first occupier a right to it in perpetuity, and after this cultivation and all effects of it are cealed

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 ufe of all, he has of confequence given each leave to take of them what he wants; by virtue therefore of this leave, a man may appropriate what he ftands in need of to his own ufe, without asking, or waiting for the confent 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 choofes, without having or waiting for the confent of the other guests.

But then, this feafon juftifies property, as far as neceffaries alone, or, at the moft, as far as a competent provifion for our natural exigencies. For, in the entertainment we speak of (allowing the comparison to hold in all points), although every particular freeholder may fit down and eat till he be fatisfied, without any other leave than that of the mafter of the feast, or any other proof of that leave, than the general invitation, or the manifeft defign 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 provifion to be hoarded up, or wasted, or given to his dogs, or stewed down into fauces, or converted into articles of fuperfluous luxury; efpecially, if by fo 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 beft writers upon the fubject; but, were thefe accounts perfectly unexceptionable, they would none of them, I fear, avail us in vindicating our prefent claims of property in land, unless it were more probable than it is, that our eftates were actually acquired at firft, in fome of the ways which thefe accounts fuppofe; and that a regular regard had been paid to juftice, in every fucceflive tranfmiflion of them fince: for if one link in the chain fail, every title pofterior to it falls to the ground.

The

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