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portance, of these qualifications, are all indeterminate: there must be somebody therefore to determine them. To allow the candidate to demand success by force, is to make him the judge of his own qualifications. You cannot do this, but you must make all other candidates the same; which would open a door to demands without number, reason, or right. In like manner, a poor man has a right to relief from the rich; but the mode, season, and quantum of that relief, who shall contribute to it, or how much, are not ascertained. Yet these points must be ascertained, before a claim to relief can be prosecuted by force. For, to allow the poor to ascertain them for themselves, would be to expose property to so many of these claims, that it would lose its value, or rather its nature, that is, cease indeed to be property. The same observation holds of all other cases of imperfect rights; not to mention, that | in the instances of gratitude, affection, reverence, and the like, force is excluded by the very idea of the duty, which must be voluntary, or cannot exist at all. Wherever the right is imperfect, the corresponding obligation is so too. I am obliged to prefer the best candidate, to relieve the poor, be grateful to my benefactors, take care of my children, and reverence my parents; but in all these cases, my obligation, like their right, is imperfect.

the original stock, as I may say, which they have
since distributed among themselves.
These are,

1. A right to the fruits or vegetable produce of the earth."

The insensible parts of the creation are incapable of injury; and it is nugatory to inquire into the right, where the use can be attended with no injury. But it may be worth observing, for the sake of an inference which will appear below, that, as God had created us with a want and desire of food, and provided things suited by their nature to sustain and satisfy us, we may fairly presume, that he intended we should apply these things to that purpose.

2. A right to the flesh of animals.

This is a very different claim from the former. Some excuse seems necessary for the pain and loss which we occasion to brutes, by restraining them of their liberty, mutilating their bodies, and, at last, putting an end to their lives (which we suppose to be the whole of their existence,) for our pleasure or conveniency.

The reasons alleged in vindication of this practice, are the following: that the several species of brutes being created to prey upon one another, affords a kind of analogy to prove that the human species were intended to feed upon them; that, if let alone, they would over-run the earth, and exclude mankind from the occupation of it; that they are requited for what they suffer at our hands, by our care and protection.

Upon which reasons I would observe, that the analogy contended for is extremely lame; since brutes have no power to support life by any other means, and since we have; for the whole human species might subsist entirely upon fruit, pulse, herbs, and roots, as many tribes of Hindoos actually do.

I call these obligations "imperfect" in conformity to the established language of writers upon the subject. The term, however, seems ill chosen on this account, that it leads many to imagine, that there is less guilt in the violation of an imperfect obligation, than of a perfect one: which is a groundless notion. For an obligation being perfect or imperfect, determines only whether violence may or may not be employed to enforce it; and determines nothing else. The degree of guilt incurred by violating the obligation, is a different thing, and is determined by circumstances altoThe two other reasons may be valid gether independent of this distinction. A man reasons, as far as they go; for, no doubt, if man who, by a partial, prejudiced, or corrupt vote, dis-had been supported entirely by vegetable food, a appoints a worthy candidate of a station in life, great part of those animals which die to furnish upon which his hopes, possibly, or livelihood, de- his table, would never have lived: but they by no pended, and who thereby grievously discourages means justify our right over the lives of brutes merit and emulation in others, commits, I am per- to the extent in which we exercise it. What suaded, a much greater crime, than if he filched danger is there, for instance, of fish interfering a book out of a library, or picked a pocket of a with us, in the occupation of their element? or handkerchief; though in the one case he violates what do we contribute to their support or preseronly an imperfect right, in the other a perfect one. vation? As positive precepts are often indeterminate in their extent, and as the indeterminateness of an obhigation is that which makes it imperfect; it comes to pass, that positive precepts commonly produce an imperfect obligation.

It seems to me, that it would be difficult to defend this right by any arguments which the light and order of nature afford; and that we are beholden for it to the permission recorded in Scripture, Gen. ix. 1, 2, 3: "And God blessed Noah and his sons, and said unto them, Be fruitful, and

Negative precepts or prohibitions, being generally precise, constitute accordingly perfect obliga-multiply, and replenish the earth: and the fear of tions.

The fifth commandment is positive, and the duty which results from it is imperfect. The sixth commandment is negative, and imposes a perfect obligation.

Religion and virtue find their principal exercise among the imperfect obligations; the laws of civil society taking pretty good care of the rest.

CHAPTER XI.

The General Rights of Mankind. By the General rights of Mankind, I mean the rights which belong to the species collectively;

you, and the dread of you, shall be upon every beast of the earth, and upon every fowl of the air, and upon all that moveth upon the earth, and upon all the fishes of the sea; into your hand are they delivered; every moving thing shall be meat for you; even as the green herb, have I given you all things." To Adam and his posterity had been granted, at the creation, "every green herb for meat," and nothing more. In the last clause of the passage now produced, the old grant is recited, and extended to the flesh of animals; "even as the green herb, have I given you all things." But this was not till after the flood; the inhabitants of the antediluvian world had therefore no such permission, that we know of. Whether they actually refrained from the flesh

of animals, is another question. Abel, we read, I
was a keeper of sheep; and for what purpose he
kept them, except for food, is difficult to say, (un-
less it were sacrifices:) might not, however, some
of the stricter sects among the antediluvians be
scrupulous as to this point? and might not Noah
and his family be of this description for it is not
probable that God would publish a permission, to
authorise a practice, which had never been dis-the
puted.

Wanton, and, what is worse, studied cruelty to brutes, is certainly wrong, as coming within one of these reasons.

Supreme Proprietor. So far all is right: hut you cannot claim the whole tree, or the whole flock, and exclude me from any share of them, and plead this general intention for what you do. The plea will not serve you; you must show something more. You must show, by probable arguments at least, that it is God's intention, that these things should be parcelled out to individuals; and that established distribution, under which you claim, should be upholden, Show me this, and I am satisfied.

But until this be shown, the general intention, which has been made appear, and which is all that does appear, must prevail; and, under that, my title is as good as yours. Now there is no arFrom reason then, or revelation, or from both gument to induce such a presumption, but one; together, it appears to be God Almighty's inten- that the thing cannot be enjoyed at all, or enjoytion, that the productions of the earth, should be ed with the same, or with nearly the same advanapplied to the sustentation of human life. Con-tage, while it continues in common, as when apsequently all waste and misapplication of these pro- | propriated. This is true, where there is not ductions, is contrary to the Divine intention and enough for all, or where the article in question will; and therefore wrong, for the same reason requires care or labour in the production or prethat any other crime is so. Such as, what is re-servation: but where no such reason obtains, and the thing is in its nature capable of being enjoyed by as many as will, it seems an arbitrary usurpation upon the rights of mankind, to confine the use of it to any.

lated of William the Conqueror, the converting of twenty manors into a forest for hunting; or, which is not much better, suffering them to continue in that state; or the letting of large tracts of land lie barren, because the owner cannot cultivate If a medicinal spring were discovered in a piece them, nor will part with them to those who can; of ground which was private property, copious or destroying, or suffering to perish, great part of enough for every purpose to which it could be apan article of human provision, in order to enhance plied, I would award a compensation to the owner the price of the remainder, (which is said to have of the field, and a liberal profit to the author of the been, till lately, the case with fish caught upon discovery, especially if he had bestowed pains or exthe English coast;) or diminishing the breed of pense upon the search: but I question whether any animals, by a wanton, or improvident, consump-human laws would be justified, or would justify the tion of the young, as of the spawn of shell-fish, or the fry of salmon, by the use of unlawful nets, or at improper seasons: to this head may also be referred, what is the same evil in a smaller way, If there be fisheries, which are inexhaustible, the expending of human food on superfluous dogs as the cod-fishery upon the Banks of Newfoundor horses; and, lastly, the reducing of the quanti-land, and the herring-fishery in the British seas, ty, in order to alter the quality, and to alter it generally for the worse; as the distillation of spirits from bread-corn, the boiling down of solid meat for sauces, essences, &c.

This seems to be the lesson which our Saviour, after his manner, inculcates, when he bids his disciples "gather up the fragments that nothing be lost." And it opens indeed a new field of duty. Schemes of wealth or profit, prompt the active part of mankind to cast about, how they may convert their property to the most advantage; and their own advantage, and that of the public, commonly concur. But it has not as yet entered into the minds of mankind to reflect that it is a duty, to add what we can to the common stock of provision, by extracting out of our estates the most they will yield; or that it is any sin to neglect this.

From the same intention of God Almighty, we also deduce another conclusion, namely "that nothing ought to be made exclusive property, which can be conveniently enjoyed in common.

It is the general intention of God Almighty, that the produce of the earth be applied to the use of man. This appears from the constitution of nature; or, if you will, from his express declaration; and this is all that appears at first. Under this general donation, one man has the same right as another. You pluck an apple from a tree, or take a lamb from a flock, for your immediate use and nourishment, and I do the same; and we both plead for what we do, the general intention of the

owner, in prohibiting mankind from the use of the water, or setting such a price upon it as would almost amount to a prohibition.

are said to be; then all those conventions, by which one or two nations claim to themselves, and guaranty to each other, the exclusive enjoyment of these fisheries, are so many encroachments upon the general rights of mankind.

Upon the same principle may be determined a question, which makes a great figure in books of natural law, utrum mare sit liberum? that is, as I understand it, whether the exclusive right of navigating particular seas, or a control over the navigation of these seas, can be claimed, consistently with the law of nature, by any nation? What is necessary for each nation's safety, we allow : as their own bays, creeks, and harbours, the sea contiguous to, that is within cannon shot, or three leagues of their coast: and upon this principle of safety (if upon any principle,) must be defended the claim of the Venetian State to the Adriatic, of Denmark to the Baltic Sea, and of Great Britain, to the seas which invest the island. But, when Spain asserts a right to the Pacific Ocean, or Fortugal to the Indian Seas, or when any nation extends its pretensions much beyond the limits of its own territories, they erect a claim which interferes with the benevolent designs of Providence, and which no human authority can justify.

3. Another right, which may be called a general right, as it is incidental to every man who is in a situation to claim it, is the right of extreme necessity; by which is meant, a right to use or destroy another's property when it is necessary for

our own preservation to do so; as a right to take,
without or against the owner's leave, the first food,
clothes, or shelter, we meet with, when we are in
danger of perishing through want of them; a right
to throw goods overboard to save the ship; or to
pull down a house, in order to stop the progress of
a fire: and a few other instances of the same kind.
Of which right the foundation seems to be this:
that when property was first instituted, the insti-
tation was not intended to operate to the destruc-
tan of any; therefore when such consequences
would follow, all regard to it is superseded.
rather, perhaps, these are the few cases, where the
particular consequence exceeds the general con-
sequence; where the remote mischief resulting
from the violation of the general rule, is overba-
lanced by the immediate advantage.

Or

CHAPTER 11.

The Use of the Institution of Property. THERE must be some very important advantages to account for an institution, which, in the view of it above given, is so paradoxical and unnatural. The principal of these advantages are the following:

I. It increases the produce of the earth. The earth, in climates like ours, produces little without cultivation and none would be found willing to cultivate the ground, if others were to be admitted to an equal share of the produce. The same is true of the care of flocks and herds of tame animals.

Crabs and acorns, red deer, rabbits, game, and fish, are all which we should have to subsist upon in this country, if we trusted to the spontaneous Restitution, however, is due, when in our power; productions of the soil: and it fares not much betbecause the laws of property are to be adhered to, ter with other countries. A nation of North so far as consists with safety; and because restitu- American savages, consisting of two or three huntion, which is one of those laws, supposes the dan-dred, will take up, and be half starved upon, a ger to be over. But what is to be restored? Not the full value of the property destroyed, but what it was worth at the time of destroying it; which, considering the danger it was in of perishing, might be very little.

BOOK III.

RELATIVE DUTIES.

PART I.

OF RELATIVE DUTIES WHICH ARE DETER

MINATE.

CHAPTER I.

Of Property.

If you should see a flock of pigeons in a field of corn and if (instead of each picking where and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got, into a heap; reserving nothing for themselves, but the chaff and the refuse; keeping this heap for one, and that the weakest, perhaps worst, pigeon of the flock; sitting round, and looking on, all the winter, whilst this one was devouring, throwing about, and wasting it; and if a pigeon more hardy or hungry than the rest, touched a grain of the hoard, all the others flying upon it, and tearing it to pieces; if you should see this, you would see nothing more than what is every day practised and established among men. Among men, you see the ninety-and-nine toiling and scraping together a heap of superfluities for one (and this one too, oftentimes the feeblest and worst of the whole set, a child, a woman, a madman, or a fool:) getting nothing for themselves all the while, but a little of the coarsest of the provision, which their own industry produces; looking quietly on, while they see the fruits of all their labour spent er spoiled; and if one of the number take or touch A particle of the hoard, the others joining against bin, and hanging him for the theft.

tract of land, which in Europe, and with European management, would be sufficient for the maintenance of as many thousands.

In some fertile soils, together with great abundance of fish upon their coasts, and in regions, where clothes are unnecessary, a considerable degree of population may subsist without property in land; which is the case in the islands of Otaheite; but in less favoured situations, as in the country of New Zealand, though this sort of property obtain in a small degree, the inhabitants, for want of a more secure and regular establishment of it, are driven oftentimes by the scarcity of provision to devour one another.

II. It preserves the produce of the earth to maturity.

We may judge what would be the effects of a community of right to the productions of the earth, from the trifling specimens which we see of it at present. A cherry-tree in a hedge-row, nuts in a wood, the grass of an unstinted pasture, are seldom of much advantage to any body, because people do not wait for the proper season of reaping them. Corn, if any were sown, would never ripen; lambs and calves would never grow up to sheep and cows, because the first person that met them would reflect, that he had better take them as they are, than leave them for another.

III. It prevents contests.

War and waste, tumult and confusion, must be unavoidable and eternal, where there is not enough for all, and where there are no rules to adjust the division.

IV. It improves the conveniency of living,

This it does two ways. It enables mankind to divide themselves into distinct professions; which is impossible, unless a man can exchange the productions of his own art for what he wants from others; and exchange implies property. Much of the advantage of civilized over savage life, depends upon this. When a man is from necessity his own tailor, tent-maker, carpenter, cook, huntsman, and fisherman, it is not probable that he will be expert at any of his callings. Hence the rude habitations, furniture, clothing, and implements of savages; and the tedious length of time which all their operations require.

It likewise encourages those arts, by which the accommodations of human life are supplied, by appropriating to the artist the benefit of his discoveries and improvements; without which appro

priation, ingenuity will never be exerted with ef- | fect.

Upon these several accounts we may venture, with a few exceptions, to pronounce, that even the poorest and the worst provided, in countries where property and the consequences of property prevail, are in a better situation, with respect to food, raiment, houses, and what are called the necessaries of life, than any are in places where most things remain in common.

The balance, therefore, upon the whole, must preponderate in favour of property with a manifest and great excess.

Inequality of property, in the degree in which it exists in most countries of Europe, abstractedly considered, is an evil: but it is an evil which flows from those rules concerning the acquisition and disposal of property, by which men are incited to industry, and by which the object of their industry, is rendered secure and valuable. If there be any great inequality unconnected with this origin, it ought to be corrected.

CHAPTER III. `.

The History of Property.

THE first objects of property were the fruits which a man gathered, and the wild animals he caught; next to these, the tents or houses which he built, the tools he made use of to catch or prepare his food; and afterwards weapons of war and offence. Many of the savage tribes in North America have advanced no further than this yet; for they are said to reap their harvest, and return the produce of their market with foreigners, into the common hoard or treasury of the tribe. Flocks and herds of tame animals soon became property; Abel, 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 partition 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 Cæsar'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 immoveables continued at first no longer than the occupation: that is, so long as a

* Genesis xxi. 25; xxvi. 18.

man's family continued in possession of a cave or whilst his flocks depastured upon a neighbouring 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 predecessors; and made way in his turn for any one that 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.

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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, they say, 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 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.

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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 that 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, becomes the property of the manufacturer; because the value of the workmanship 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 newdiscovered 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 landmark, digging a ditch, or planting a hedge round it. Nor will even the clearing, manuring, and ploughing of a field, give the first occupier a right to it in perpetuity, and after this cultivation and all effects of it are ceased.

Another, and in my opinion a better, account of the first right of ownership, 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.

By whatever circuitous train of reasoning you attempt to derive this right, it must terminate at last in the will of God; the straightest 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 seized, without color 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 right of the claimants under both laws of inheritance is equal; though the expediency of such opposite rules must necessarily be different.

The principles we have laid down upon this subject apparently tend to a conclusion of which a bad use is 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 cases will authorize the most flagitious chicanery. If a creditor upon a simple contract neglect to demand his debt for six years, the debtor may refuse to pay it; would it be right therefore to do so, where he is conscious of the justice of the debt? If a person, who is under twenty-one years of age, contract a bargain (other than for necessaries,) he may avoid it by pleading his minority: but would this be a fair plea, where the bargain was originally just ?—The distinction to be taken in such cases is this: With the law, we acknowledge, resides the disposal of property: so long, therefore, as we keep within the design and intention of a law, that law will justify us as well in foro conscientiæ, as in foro humano, whatever be the equity or expediency of the law itself. But when we convert to one purpose, a rule or expression of law, which is intended for another purpose, then we plead in our justification, not the intention of the law, but the words; that is, we plead a dead letter, which can signify nothing; for words without meaning or intention, have no force or effect in justice; much less, words taken contrary to the meaning and inten tion of the speaker or writer. To apply this dis tinction to the examples just now proposed:-in order to protect men against antiquated demands, from which it is not probable they should have It is the intention of God, that the produce of preserved the evidence of their discharge, the law the earth be applied to the use of man: this in-prescribes a limited time to certain species of pritention cannot be fulfilled without establishing vate securities, beyond which it will not enforce property; it is consistent, therefore, with his will, them, or lend its assistance to the recovery of the that property be established. The land cannot debt. If a man be ignorant or dubious of the be divided into separate property, without leaving justice of the demand made upon him, he may t to the law of the country to regulate that divi-conscientiously plead this limitation; because he sion: it is consistent therefore with the same will, that the law should regulate the division; and, onsequently, "consistent with the will of God," right," that I should possess that share which these regulations assign me.

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.

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applies the rule of law to the purpose for which it was intended. But when he refuses to pay a debt, of the reality of which he is conscious, he cannot, as before, plead the intention of the statute, and the supreme authority of law, unless he could

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