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 ftocking and cultivation of defert uninhabited countries, it kept ftrictly within the limits of the law of nature. But how far the feifing on countries already peopied, and driving out or maffacring the innocent and defenceless 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 inmortal by thus civilizing mankind.

As the world by degrees grew more populous, it daily became more difficult to find out new fpots 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 neceflity produced, or at leaft 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 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 must have continued á forest, and men have been mere animals of prey; which, according to fome philofophers, is the genuine ftate of nature. Whereas now (fo gracioufly has Providence interwoven

our duty and our happiness together) the refult of this very neceffity has been the ennobling of the human species, by giving it opportunities of improving it's rational faculties, as well as of exerting it's natural. Neceflity begat property: and, in order to insure that property, recourse was had to civil fociety, which brought along with it a long train of infeparable concomitants; ftates, government, laws, punishments, 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 leisure 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 also 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 infisting, 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 juftice, without any confent or compact, fufficient of itself to gain a title. A difpute that favours too much of nice and fcholaftic refinement (1)! However, both sides agree in this,

(1) But it is of great importance that moral obligations and the rudiments of laws fhould be referred to true and intelligible princi

ples,

that occupancy is the thing by which the title was in fact originally gained; every man feifing to his own continued

ples, fuch as the minds of ferious and well-difpofed men can rely upon with confidence and fatisfaction.

Mr. Locke fays, "that the labour of a man's body, and the "work of his hands, we may fay are properly his. Whatsoever "then he removes out of the state that nature hath provided and " left it in, he hath mixed his labour with, and joined to it fome"thing that is his own, and thereby makes it his property." (On Gov. c. 5.)

But this argument feems to be a petitio principii; for mixing labour with a thing, can fignify only to make an alteration in it's fhape or form; and if I had a right to the fubftance, before any labour was bestowed upon it, that right still adheres to all that remains of the fubftance, whatever changes it may have undergone: if I had no right before, it is clear that I have none after; and we have not advanced a fingle ftep by this demonstration. The account of Grotius and Puffendorf, who maintain that the origin and inviolability of property are founded upon a tacit promife or compact, and therefore we cannot invade another's property without a violation of a promife or a breach of good faith, feems equally, or more fuperfluous and inconclufive.

There appears to be juft the fame neceflity to call in the aid of a promise to account for, or enforce, every other moral obligation, and to fay that men are bound not to beat or murder each other, because they have promised not to do so. Men are bound to fulfil their contracts and engagements, because fociety could not otherwife exift; men are bound to refrain from another's property, because also society could not otherwife exift. Nothing therefore is gained by refolving one obligation into the other.

But how, or when, then, does property commence? I conceive no better answer can be given, than by occupancy, or when any thing is feparated for private ufe from the common ftores of nature. This is agreeable to the reason and sentiments of mankind, prior to all civil establishments. When an untutored Indian has fet before him the fruit which he has plucked from the tree that protects him from the heat of the fun, and the hell of water raifed from the fountain that springs at his feet; if he is driven by any daring intruder from this repaft, fo easy to be replaced, he inftantly feels and re

fents

ufe fuch fpots of ground as he found most 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 first 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 thews an intention to abandon it; for then it becomes, naturally fpeaking, publici juris once more, and is liable to be again appro priated by the next occupant. So if one is poffeffed of a jewel, and casts it into the fea or a public highway, this is fuch an expreís dereliction, that a property will be vested in the first fortunate finder that will feife it to his own ufe. But if he hides ir 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 loses or drops it by accident, it cannot be collected from thence, that he defigned to quit the poffeffion; and therefore in fuch a cafe the property till 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.

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 cal culated merely for the rudiments of civil fociety, and neceffarily ceafed among the complicated interefts and artificial refinements of polite and established 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 i See Vol. I. pag. 295.

fents the violation of that law of property, which nature herfelf has written upon the hearts of all mankind.

was

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 may be confidered either as a continuance of the original pof- [ 10 ] feffion 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 himself, but that his own right of occupancy fhall 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 fuch my intention, immediately steps in and feifes 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 (2).

THE most univerfal and effectual way of abandoning property, is by the death of the occupant: when, both the actual possession and intention of keeping poffeflion ceafing, the property which is founded upon fuch poffeffion and intention, ought also to cease 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 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 there

(2) Upon whatever principle the right to property is founded, the power of giving and transferring feems to follow as a natural confequence; if the hunter and the therman exchange the produce of their toils, no one ever difputed the validity of the contract, or the continuance of the original title. This does not seem to be aptly explained by occupancy, for it cannot be faid that in fuch a cafe there is ever a vacancy of poffeffion.