The General Rights of ThingsJuly 28, 2022
Among the causes assigned to justify war, we may reckon the commission of injury, particularly such as affects any thing which belongs to us.
Now we establish this claim to any thing as our own either by a right COMMON to us as men, or acquired by us in our INDIVIDUAL capacity. But to begin with that which is the common right of all mankind; we may observe that it comprises what is called by legal authorities, Corporeal and Incorporeal rights.17
Things corporeal are either unappropriated, or made the subjects of private property. Now the things unappropriated, are such that it may be either possible or impossible for them to be reduced to a state of private property.18 In order therefore to understand this more clearly, it will be necessary to take a survey of the origin of property.
God gave to mankind in general, dominion over all the creatures of the earth, from the first creation of the world; a grant which was renewed upon the restoration of the world after the deluge.
All things, as Justin says, formed a common stock for all mankind, as the inheritors of one general patrimony. From hence it happened, that every man seized to his own use or consumption whatever he met with; a general exercise of a right, which supplied the place of private property. So that to deprive any one of what he had thus seized, became an act of injustice. Which Cicero has explained in his third book, on the bounds of good and evil, by comparing the world to a Theatre, in which the seats are common property, yet every spectator claims that which he occupies, for the time being, as his own.
A state of affairs, which could not subsist but in the greatest simplicity of manners, and under the mutual forbearance and good-will of mankind. An example of a community of goods, arising from extreme simplicity of manners, may be seen in some nations of America, who for many ages have subsisted in this manner without inconvenience. The Essenes of old, furnished an example of men actuated by mutual affection and holding all things in common, a practice adopted by the primitive Christians at Jerusalem, and87 still prevailing among some of the religious orders.
Man at his first origin, requiring no clothing, afforded a proof of the simplicity of manners in which he had been formed. Yet perhaps, as Justin says of the Scythians, he might be considered as ignorant of vice rather than acquainted with virtue; Tacitus says, that in the early ages of the world, men lived free from the influence of evil passions, without reproach, and wickedness; and consequently without the restraints of punishment. In primitive times there appeared among mankind, according to Macrobius, a simplicity, ignorant of evil, and inexperienced in craft: a simplicity which in the book of Wisdom seems to be called integrity, and by the Apostle Paul simplicity in opposition to subtilty. Their sole employment was the worship of God, of which the tree of life was the symbol, as it is explained by the ancient Hebrews, whose opinion is confirmed by the Book of Revelation.
Men at that period subsisted upon the spontaneous productions of the ground: a state of simplicity to which they did not long adhere, but applied themselves to the invention of various arts, indicated by the tree of knowledge of good and evil, that is the knowledge of those things which may be either used properly, or abused; which Philo calls a middle kind of wisdom. In this view, Solomon says, God hath created men upright, that is, in simplicity, but they have sought out many inventions, or, in the language of Philo, they have inclined to subtilty. In the sixth oration of Dion Prusaeensis it is said, “the descendants have degenerated from the innocence of primitive times, contriving many subtile inventions no way conducive to the good of life; and using their strength not to promote justice, but to gratify their appetites.”
Agriculture and pasturage seem to have been the most ancient pursuits, which characterized the first brothers. Some distribution of things would necessarily follow these different states; and we are informed by holy writ, that the rivalry thus created ended in murder. At length men increasing in wickedness by their evil communications with each other, the race of Giants, that is of strong and violent men appeared, whom the Greeks denominate by a title, signifying those who make their own hands and strength the measure of justice.
The world in progress of time being cleared of this race by the deluge, the savage was succeeded by a softer and more sensual way of life, to which the use of wine88 proved subservient, being followed by all the evil consequences of intoxication. But the greatest breach in the harmony of men was made by ambition, which is considered in some measure, as the offspring of a noble mind. Its first and most eminent effects appeared in the attempt to raise the tower of Babel; the failure of which caused the dispersion of mankind, who took possession of different parts of the earth.
Still after this a community of lands for pasture, though not of flocks, prevailed among men. For the great extent of land was sufficient for the use of all occupants, as yet but few in number, without their incommoding each other. In the words of the Poet, it was deemed unlawful to fix a land mark on the plain, or to apportion it out in stated limits.
But as men increased in numbers and their flocks in the same proportion, they could no longer with convenience enjoy the use of lands in common, and it became necessary to divide them into allotments for each family.
Now in the hot countries of the East, wells would be objects of great importance, for the refreshment of their herds and flocks; so that in order to avoid strife and inconvenience, all would be anxious to have them as possessions of their own.
These accounts we derive from sacred history, and they are found to agree with the opinions maintained upon this subject by Philosophers and Poets, who have described the community of goods, that prevailed in the early state of the world, and the distribution of property which afterwards took place. Hence a notion may be formed of the reason why men departed from the primaeval state of holding all things in common, attaching the ideas of property, first to moveable and next to immoveable things.
When the inhabitants of the earth began to acquire a taste for more delicate fare than the spontaneous productions of the ground, and to look for more commodious habitations than caves, or the hollow of trees, and to long for more elegant cloathing than the skins of wild beasts, industry became necessary to supply those wants, and each individual began to apply his attention to some particular art. The distance of the places too, into which men were dispersed, prevented them from carrying the fruits of the earth to a common stock, and in the next place, the WANT of just principle and equitable kindness would destroy that equality which ought to subsist both89 in the labour of producing and consuming the necessaries of life.
At the same time, we learn how things passed from being held in common to a state of property. It was not by the act of the mind alone that this change took place. For men in that case could never know, what others intended to appropriate to their own use, so as to exclude the claim of every other pretender to the same; and many too might desire to possess the same thing. Property therefore must have been established either by express agreement, as by division, or by tacit consent, as by occupancy.
For as soon as it was found inconvenient to hold things in common, before any division of lands had been established, it is natural to suppose it must have been generally agreed, that whatever any one had occupied should be accounted his own. Cicero, in the third book of his Offices says, it is admitted as an universal maxim, not repugnant to the principles of natural law, that every one should rather wish himself to enjoy the necessaries of life, than leave them for the acquisition of another.
Which is supported by Quintilian, who says, if the condition of life be such, that whatever has fallen to the private use of any individual, becomes the property of such holder, it is evidently unjust to take away any thing which is possessed by such a right. And the ancients in styling Ceres a law-giver, and giving the name of Thesmophoria to her sacred rights, meant by this to signify that the division of lands had given birth to a new kind of right.
Some things are impossible to be reduced to a state of property. An example is the Sea,
Some are willing to make this concession with regard to individuals, but not with regard to nations, the position advanced in the beginning of this section may be proved from the following moral argument, that as in this case the reason no longer subsists why men should hold all things in common, the practice ceases also.
For the magnitude of the sea is such, as to be sufficient for the use of all nations, to allow them without inconvenience and prejudice to each other the right of fishing, sailing, or any other advantage which that element affords. The same may be said of air as common property, except that no one can use or90 enjoy it, without at the same time using the ground over which it passes or rests. So that the amusement of fowling cannot be followed, except by permission, without trespassing upon the lands of some owner, over which the birds fly.
The same appellation of COMMON may be given to the sand of the shore, which being incapable of cultivation, is left free to yield its inexhaustible supplies for the use of all.
There is a natural reason also, which renders the sea, considered in the view already taken, incapable of being made property: because occupancy can never subsist, but in things that can be confined to certain permanent bounds. From whence Thucydides gives the name of infinite space to unoccupied lands, and Isocrates speaking of that occupied by the Athenians calls it that which has been measured by us into alloted parts. But fluids, which cannot be limited or restrained, except they be contained within some other substance, cannot be occupied. Thus ponds, and lakes and rivers likewise, can only be made property as far as they are confined within certain banks.
But the ocean as it is equal to, or larger than the earth, cannot be confined within the land: so that the ancients said the earth was bounded in by the sea like a girdle surrounding it. Nor can any imaginable division of it have been originally framed. For as the greatest part of it was unknown, it was impossible that nations far removed from each other could agree upon the bounds to be assigned to different parts.
Whatever therefore was the common property of all, and after a general division of all other things, retained its original state, could not be appropriated by division, but by occupancy. And the marks of distinction and separation by which its different parts were known, followed such appropriation.
The next matters to be noticed are those things, which though not yet made property, may be reduced to that condition. Under this description come waste lands, desert islands, wild beasts, fishes, and birds. Now in these cases there are two things to be pointed out, which are a double kind of occupancy that may take place; the one in the name of the Sovereign, or of a whole people, the other by individuals, converting into private estates the lands which they have so occupied.
The latter kind of individual property proceeds rather from91 assignment than from free occupancy. Yet any places that have been taken possession of in the name of a sovereign, or of a whole people, though not portioned out amongst individuals, are not to be considered as waste lands, but as the property of the first occupier, whether it be the King, or a whole people. Of this description are rivers, lakes, forests, and wild mountains.
The sovereign of the respective lands, or waters where they are found, has a legal right to prohibit any one from taking wild animals, and thereby acquiring a property in them.
A prohibition extending to foreigners, as well as subjects. To foreigners; because by all the rules of moral law they owe obedience to the sovereign, for the time during which they reside in his territories. Nor is there any validity in the objection founded on the Roman Law, the Law of nature, or the Law of nations, which, it is said, declare such animals to be beasts of chace free to every one’s hunting.
This is only true, where there is no civil law to interpose its prohibition; as the Roman law left many things in their primitive state, which by other nations were placed upon a very different footing. The deviations therefore from the state of nature, which have been established by the civil law, are ordained by every principle of natural justice to be obeyed by mankind.
For although the civil law can enjoin nothing which the law of nature prohibits, nor prohibit any thing which it enjoins, yet it may circumscribe natural liberty, restraining what was before allowed; although the restraint should extend to the very acquisition of property, to which every man AT FIRST had a right by the law of nature.