the second from Adam, was a keeper of sheep; sheep and oxen, camels and asses, composed the wealth of the Jewish patriarchs, as they do still of the modern Arabs. As the world was first peopled in the East, where there existed a great scarcity of water, wells probably were next made property; as we learn, from the frequent and serious mention of them in the Old Testament, the contentions and treaties about them, and from its being recorded, among the most memorable achievements of very eminent men, that they dug or discovered a well. Land, which is now so important a part of property, which alone our laws call real property, and regard upon all occasions with such peculiar attention, was probably not made property in any country, till long after the institution of many other species of property, that is, till the country became populous, and tillage began to be thought of. The first parti tion of an estate which we read of, was that which took place between Abram and Lot; and was one of the simplest imaginable: "If thou wilt take the left hand, then I will go to the right; or if thou depart to the right hand, then I will go to the left." There are no traces of property in land in Casar's account of Britain; little of it in the history of the Jewish patriarchs; none of it found amongst the nations of North America; the Scythians are expressly said to have appropriated their cattle and houses, but to have left their land in common. Property in im moveables continued at first no longer than the occupation; that is, so long as a man's family continued in possession of a cave, or his flock depastured upon a neighbouring hill, no hill, no one attempted, or thought he had a right, to disturb or drive them out

but when the man quitted his cave, or changed his pasture, the first who found them unoccupied, entered upon them, by the same title as his predecessor's; and made way in his turn, for any one that

Gen. xxi. 25. xxvi. 18.

happened to succeed him. All more permanent property in land, was probably posterior to civil government and to laws; and therefore settled by these, or according to the will of the reigning chief.

CHAPTER IV.

IN WHAT THE RIGHT OF PROPERTY IS FOUNDED.

WE now speak of Property in Land: and 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 justly 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 what 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 collective. ly, 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 molest him in it.

The objection to this account is, that consent can never be presumed from silence, where the person 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 suppose 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.

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 his.

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, whilst at large in the woods or water, instantly, become the property of the person who 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 strictly the property of the fowler, or fisherman, being the produce of his personal labour. For the same reason, wood or iron, manufactured into utensils, become the property of the manufacturer; because the value of the wormanship far, exceeds that of the materials. And upon a similar principle, a parcel of unappropriated ground, which a man should pare, burn, plough, harrow, and sow, for the production of corn, would justly enough" be thereby made his own. But this will hardly hold, in the manner it has been applied, of taking a ceremonious possession of a tract of land, as navigators do of new discovered islands, by erecting a standard, engraving an inscription, or publishing a proclamation to the birds and beasts; or of turning your cattle into a piece of ground, setting up a land mark, digging a ditch, or planting a hedge round it. Nor will even

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the clearing, manuring, and ploughing of a field, give the first occupier a right in perpetuity after this cultivation and all the effects of it are ceased.

Another, and in my opinion, a better account of the first right of owner-ship, is the following: that, as God has provided these 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 need 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 reason justifies property, as far as necessaries alone, or, at the most, as far as a competent provision for our natural exigences. 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 sauces, or converted into articles of superfluous 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 perfectly 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 some of the ways which

these accounts suppose; and that a regular regard had been paid. to justice in every successive transmission of them since: for if one link in the chain fail, every title posterior to it falls to the ground.

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 use of man; this intention cannot be fulfilled without establishing property; it is consistent therefore with his will, that property be established. The land cannot be divided into separate property, without leaving it to the law of the country to regulate that division; it is consistent therefore with the same will, that the law should regulate the division; and consequently, "consistent with the will of God," or, "right," that I should possess that share which these regulations assign me.

By whatever circuitous train of reasoning you at tempt to derive this right, it must terminate at last in the will of God; the straitest, 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 justice of the original acquisition; nor upon the justice of each subsequent change of possession. It is not, for instance, the less, nor ought it to be impeached, because the estate was taken possession of at first by a family of aboriginal Britons, who happened to be stronger than their neighbours; nor because the British possessor was turned out by a Roman, or the Roman by a Saxon invader; nor because it was seiz→ ed, 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 side of a brook, an estate descends to the eldest son on the other side, to all the children alike. The

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