property without possession is a conception too abstract for a savage, or for any person who has not studied the principles of law." *

With this remark I cannot agree; because I think the right of property is founded on a natural sentiment, which must be felt in full force in the lowest state of society. The sentiment I allude to is that of a moral connexion between labor and a right of exclusive enjoyment to the fruits of it. This connexion it will be proper to illustrate more particularly.

Let us suppose, then, a country so fertile as to produce all the necessaries and accommodations of life without any exertions of human industry; it is manifest, that in such a state of things no man would think of appropriating to himself any of these necessaries or accommodations any more than we in this part of the globe think of appropriating air or water. As this, however, is not in any part of the earth, the condition of man, doomed as he is, by the circumstances of his birth, to eat his bread in the sweat of his brow, it would be reasonable to expect, a priori, that nature would make some provision for securing to individuals the fruits of their industry. In fact, she has made such a provision in the natural sentiments of mankind, which lead them to consider industry as entitled to reward, and in particular, the laborer as entitled to the fruit of his own labor. These, I think, may be fairly stated as moral axioms, to which the mind yields its assent, as immediately and necessarily as it does to any axiom in mathematics or metaphysics.

How cruel is the mortification we feel when we see an industrious man reduced by some unforeseen misfortune to beggary in old age! We can scarcely help complaining of the precarious condition of humanity, and that man should be doomed to be the sport of accident: And we feel ourselves called on, as far as we are able, to repair, by our own liberality, this unjust distribution of the goods of fortune. On the other hand, it is difficult to avoid some degree of dissatisfaction when we see

the natural and deserved reward of industry acquired all at once by a prize in the lottery or by gaming, although in this instance the uneasiness (as might be expected from the natural benevolence of the human mind) is trifling in comparison of what it is in the other case. Our dissatisfaction in particular instances is much greater when we see the laborer deprived by accident of the immediate fruit of his own labor;-when, for example, he has nearly completed a complicated machine, and some delicate part of it gives way and renders all his toil useless.

If another person interferes with the fruit of his industry, our dissatisfaction and indignation are still more increased. We feel here a variety of sentiments. 1. A dissatisfaction that the laborer does not enjoy that reward to which his industry entitled him. 2. A dissatisfaction that another person, who did not labor, should acquire the possession of an object of value. And 3. An indignation against the man who deprived the laborer of his just reward.

This sentiment, "that the laborer deserves the fruit of his own labor," is the chief, (or rather abstracting from positive institution) the only foundation of the sense of property. An attempt to deprive him of it is a species of injustice which rouses the indignation of every impartial spectator; and so deeply are these principles implanted in our nature, that we cannot help feeling some degree of remorse when we deprive even a hive of bees of that provision which they had industriously collected for their own use.

The writers, indeed, on natural law ascribe in general the origin of property to priority of occupancy, and have puzzled themselves in attempting to explain how this act should appropriate to an individual what was formerly in common. Grotius and Puffendorff insist that this right of occupancy is founded upon a tacit but understood assent of all mankind, that the first occupant should become the owner. And Barbeyrac, Locke, and others, that the very act of occupancy alone, being a degree of bodily labor, is, from a principle of natural justice, without any compact, a sufficient foundation of property.

Blackstone, although he thinks that the dispute about the manner in which occupancy conveys a right of property, savours too much of scholastic refinement, expresses no doubt about its having this effect independent of positive institutions.*

Some later philosophers have founded the right of property on the general sympathy of mankind with the reasonable expectation which the occupant has formed of enjoying unmolested the object he has got possession of, or of which he was the first discoverer; and on the indignation felt by the impartial spectator when he sees this reasonable expectation disappointed. This theory (which I have been assured from the best authority was adopted by Mr. Smith in his lectures on Jurisprudence) seems to have been suggested by a passage in Dr. Hutcheson's Moral Philosophy, in which he says, that "it is immoral, when we can support ourselves otherwise, to defeat any innocent design of another; and that on this immorality is founded the regard we owe to the claims of the first occupant." In this theory, too, it is taken for granted that priority of occupancy founds a right of property, and that such a right may even be acquired by having accidentally seen a valuable object before it was observed by any other person.

In order to think with accuracy on this subject, it is necessary to distinguish carefully the complete right of property which is founded on labor, from the transient right of possession which is acquired by mere priority of occupancy. Thus, before the appropriation of land, if any individual had occupied a particular spot for repose or shade, it would have been unjust to deprive him of the possession of it. This, however, was only a transient right. The spot of ground would again become common the moment the occupier had left it; that is, the right of possession would remain no longer than the act of possession. Cicero illustrates this happily by the similitude of a theatre. "Quemadmodum theatrum, cum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occupârit." †

See his Comm. Book. ii. Chap. 1.

† De Finibus, L. iii. c. 20.

The general conclusions which I deduce from the foregoing observations are these:

1. That in every state of society labor, wherever it is exerted, is understood to found a right of property.

2. That, according to natural law, (in the sense at least in which the phrase is commonly employed by writers on jurisprudence) labor is the only original way of acquiring property.

3. That, according to natural law, mere occupancy founds only a right of possession; and that, wherever it founds a complete right of property, it owes its force to positive institutions.

An attention to these conclusions, in particular to the distinction between the transient right of possession founded on occupancy, and the permanent right of property founded on labor, will, if I am not mistaken, clear up some of the difficulties which involve the first steps in the history of property, according to the view of the subject given by Lord Kames; and it was with this view I was led to premise these general principles to the slight historical sketch I am now to offer.

With respect to that system which refers the origin of property to the political union and to considerations of utility, it seems sufficient to observe, that so far is government from creating this right, that its necessary effect is to subject it to certain limitations. Abstracting from the political confederation, every man's property is solely at his own disposal. He is supreme judge in his own cause, and may defend what he conceives to be his right as far as his power reaches. In the state of civil society his property is regulated by positive laws, and he must acquiesce in the judgment of his superiors with respect to his rights, even in those cases where he feels it to be unjust.

From the passage already quoted from Kames, it appears that he conceived the idea of property without possession to be of too abstract and metaphysical a nature to be apprehended by a savage; and he has collected a variety of facts to prove, that, according to common notions of mankind, in the infancy of jurisprudence, the right of property is understood to cease the moment

that possession is at an end. But on a more attentive examination of the subject, I apprehend it will be found that the ideas of savages, with respect to property, are the same with ours; that mere occupancy without labor founds only a right of possession; and that labor, wherever it is employed, founds an exclusive and permanent right to the fruits of it. Lord Kames's theory has obviously been suggested by the common doctrine with respect to the right of property being founded in priority of occupancy, compared with the acknowledged fact, that among rude nations occcupancy does not establish a permanent right. The other arguments which he has alleged in support of his opinion will be found to be equally inconclusive.

Before I proceed to the consideration of these it may be proper to observe, that we must not always form an idea of the sentiments of men from the defects of their laws. The existence indeed of a law is a proof of the sentiments which men felt when the law was made; but the defects of a law are not always proofs that men did not feel that there were disorders in the state of society which required correction. The laws of a country may not make provision for reparation to the original proprietor in the case of theft; but it will not follow from this that men do not apprehend the original proprietor to have any right when his property has been stolen from him. The application of this general remark to some of the arguments I am now to consider will, I hope, be so obvious, as to render it unnecessary for me to point it out particularly.

Among these arguments, one of the most plausible is founded on a general principle, which appears, from a variety of facts quoted by Kames, to run through most rude systems of jurisprudence, that, in the case of stolen goods, the claim of the bonâ fide purchaser is preferable to that of the original proprietor. This he accounts for from the imperfect notions they have of the metaphysical nature of property when separated from possession. But if this were the case, the same laws should support the claim of the thief against the original proprietor: or rather, indeed, neither the original proprietor, nor any