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.

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 use only, but the very fubftance of the thing to be ufed. Otherwife innumerable tumults must have arifen, and the good order of the world been continually broken and disturbed, while a variety of perfons were ftriving who fhould get the first 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 devised to render it more eafy, commodious and agreeable; as, habitations for shelter 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 cease the inftant that he quitted poffeffion;if, as foon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other.'

All this while,' he proceeds, the foil and pafture of the earth remained fill in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the neceflity of a fole and exclufive property in lands (for the fake of agriculture) was earlier felt, and therefore more readily complied with. The art of agriculture, he obferves, 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 could not produce her fruits in fufficient quantities without the affiftance of tillage: but who could be at the pains of tilling it, if another might watch the opportunity to feize 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 a - foreft, and men have been mere animals of prey; which, according to fome philofophers, is the genuine fate of nature. Whereas now (fo graciously hath providence interwoven our duty and our happinefs together) the refult of this very neceffity has been the enobling the human fpecies, by giving it opportunities of improving its rational faculties, as well as of exerting its natural.

The only remaining queftion,' he continues, 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

J

to

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 elfe but the owner from the use of it.'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 univerfal law, till such 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 to the next occupant.

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 fuch poffeffion and intention, ought alfo to cease of course. For, naturally fpeaking, the inftant a man ceases to be, he ceases to have any dominion: else, 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 therefore cease 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 almost 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 cafe he neglects to difpofe of it, or is not permitted to make any difpofition at all, the municipal law of the country steps in, and declares who fhall be the fucceffor, reprefentative, or heir of the decealed; that is, who alone fhall have a right to enter upon this vacant poffeffion, in order to avoid that confufion, which its becoming again common would occafion. 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.

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The right of inheritance, or defcent to the children and relations of the deceased, feems to have been allowed much earlier than the right of devifing by teftament. We are apt to conceive at first view that it has nature on its fide; yet we often mistake for nature what we find established by long and inveterate cuftom. It is certainly a wife and effectual, but clearly a political, establishment; fince the permanent right of property, vefted in the ancestor himself, was no natural, but merely a civil, right.'

This deduction it must be confeffed, is drawn with great skill and ingenuity. And the principles here laid down have been established by the fanction of many learned and respectable wriBut with all deference to Mr. Blackftone's judgment, we are inclined to doubt whether they are not more ingenious than juft.

ters.

It has indeed been univerfally admitted by all writers, that, in a ftate of nature, wherein all things were common, occupancy gave the original right to property; or in other words, that the first taker of any fubject, acquired an ownership in it, which it would have been unjust and contrary to the law of nature to have deprived him of. But it has never occurred to them to confider every means by which fuch occupancy may accrue.

As fuch a state of nature, from whence the writers on this fubject draw their arguments, is merely hypothetical, fo, by way of hypothefis, we may fuppofe a fituation in which occupancy alone would not give an exclufive right of poffeffion. Indeed where the fubjects which lie in common are fufficient for all claimants, here the firft occupier feems, by a kind of tacit and implied aflent, to have a right of poffeffion against all future competitors. But fhould there be a deficiency, let us fee how far that may vary the cafe.

It is admitted on all hands, that every man has a natural right to fubfiftence, and fome, have confined his right to property, in a state of nature, to fubfiftence merely. It is allowed likewife that every man's natural right is as extenfive as his wants for to adopt Cicero's Illuftration of the theatre-If a man by reafon of his extraordinary bulk requires as much room as two men of moderate fize, he has nevertheless a right to occupy a space proportioned to his magnitude. A man has not only a right to a portion of fubfiftence adapted to his neceffities, but philofophers are agreed that the prefervation of his being is a duty incumbent on him. Should therefore the fruit of the vine, or other tree, be infufficient for the ufe of more than one, and

Celui qui a des befeins plus etendus, a des droits qui y font proportioncés. Principes du droit naturel.

4

there

there fhould be feveral competitors for the poffeffion, a conteft would arife who fhould be the first taker, which must be decided by power and they will be in the fituation the poet describes, fighting proper glandem et cubilia. Thus, though the right of all is equal, yet power may give the occupancy to one alone. Now what is obtained by power can give no exclufive right; and a poffeffion fo founded can continue no longer, than fuperior force remains to fecure it against competitors of equal pretenfions.

Therefore it does not seem to be true that occupancy alone does in all cafes give an exclufive right to property. But, admitting fuch an exclufive right of poffeffion to be once eftablished in the occupant, there appears to be no foundation for contending that fuch right is not tranfmiffable, or in other words that the children of the occupant have not a derivative title from their ancestor. When it is faid that the permanent RIGHT of the anceftor himself is not a natural, but a civil right, the right and the remedy feem to be confounded*. It must be admitted that the remedy to enforce and maintain a permanent right is of civil inftitution, but the right itself is derived from nature. Many, who deny the derivative rights of children, allow that the anceftor, apprehending the event of his death, may make donations to his friends, to take place in cafe fuch event shall happen. If therefore he may make a difpofition of his property in his life time, to take effect on the event of his death, why, in cases where he is filent, fhould not the voice of nature be attended to, and the fucceffion preferved for the benefit of his children? To fay, that in fuch case his property becomes common again, and that the next immediate occupant has a right to feize it, feems to be repugnant to the feelings of nature, which lay it on the confcience of thofe who get poffeffion to keep it as a truft for the children, who have a natural claim to the fucceffion, however unable they may be to affert and fupport it.

At the fame time it may be admitted without prejudice to the argument that the right of inheritance, taking the word in a technical fenfe, is of civil inftitution; for, technically speaking, the word inheritance may be used to denote the mode of defcent or fucceffion: And whether the property fhall descend to the eldest fon, or whether all the fons, or all the children fhall fucceed equally is unquestionably of positive inftitution: but the derivative rights of children are founded on the law of nature, however they may be modified and enforced by municipal

The word right feems to be well defined by Puffendorf, who faysIt is most frequently taken for that moral quality by which we juftly exercise dominion over per ons or things, or by virtue of which something is due to us.

REV. Nov. 1766.

law, which, as the learned writer obferves, is but a secondary law of nature.

It will be admitted that parents are under an obligation of providing for their children, and when they are, no longer in being to furnish them with the means of fupport, they are equally under an obligation of leaving to them the fund out of which that provision arofe, or in other words of tranfmitting to them the fucceffion to their property: and as all others were under an obligation not to difturb the poffeffion of the ancestor, or first occupant, fo they are, by the law of nature, under the like obligation not to prevent the children's claim of fucceffion. Now an obligation from one to another, creates a right in him to whom the obligation is due *.

This derivative right has been acknowledged in all ages and in all countries and is confirmed by the fanction of authorities both facred and profane. In 2 Cor. xii. 14. it is faid- For the children ought not to lay up for the fathers, but the fathers for the children-And again Rom. viii. 17. For if we are children, we are alfo heirs.'

Some have regarded this right fo ftrictly, that they have not fuffered parents to bequeath their property from the children, as we learn from Ifæus, who fays The law gives the poffef fions of the father to the child, and does not fuffer him who has legitimate children to make a will' t-And farther, he fays It is not lawful for any one to bequeath or transfer his property, without the confent of his daughters, if he leaves any, who are legitimate, behind him 1. And even in this country, as the learned writer obferves, when property became inheritable, the inheritance was long indefeafible, and the children or heirs at law were incapable of exclufion by will.

Upon the whole, therefore, as every man may, in a state of nature, occupy as many vacant fubjects as he can ufe, without prejudice to others; and as no one can, without injuftice, deprive him of what he has fo taken, fo they are under the like obligation, not to deprive his children of thofe fubjects at his death. Indeed if men were born only for themselves, it would be enough that they exercifed a dominion over their property while they lived: But as the natural affections of mankind extend to their off pring, why fhould not the dominion over property be eo-extenfive to anfwer thofe purpofes? Surely no propofition

* L'obligation precede le droit avant que de concevoir aucun droit, il faut toujours fuppofer quelque obligation, fans l'existence de Laquelle, il n'y auroit point de droit. Principes du droit n turel.

† Ο νόμος αποδίδωσι τογει τα τε πατρός, και εδε διαθέσθαι εα οτωανωσι παίδες

γνησιοι.

1 ετώνας διαθέσθαι, ετε δέναι εδινα εδεν ε εσι των εαυτώ ανευτών θυγατέρων, εάντις κατελιπων γνησία; τελευτα.

can