Sir William Blackstone, 1723-1780, was the son of a silk merchant, and was
born in London. He studied with great success at Oxford, and was admitted
to the bar in 1745. At first he could not obtain business enough in his
profession to support himself, and for a time relinquished practice, and
lectured at Oxford. He afterwards returned to London, and resumed his
practice with great success, still continuing to lecture at Oxford. He was
elected to Parliament in 1761; and in 1770 was made a justice of the Court
of Common Pleas, which office he held till his death. Blackstone's fame
rests upon his "Commentaries on the Laws of England," published about
1769. He was a man of great ability, sound learning, unflagging industry,
and moral integrity. His great work is still a common text-book in the
study of law.
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In the beginning of the world, we are informed by Holy Writ, the all-
bountiful Creator gave to man dominion over all the earth, and "over the
fish of the sea, and over the fowl of the air, and over every living thing
that moveth upon the earth." This is the only true and solid foundation of
man's dominion over external things, whatever airy, metaphysical notions
may have been started by fanciful writers upon this subject. The earth,
therefore, and all things therein, are the general property of all
mankind, exclusive of other beings, from the immediate gift of the
Creator. And while the earth continued bare of inhabitants, it is
reasonable to suppose that all was in common among them, and that everyone
took from the public stock, to his own use, such things as his immediate
necessities required.
These general notions of property were then sufficient to answer all the
purposes of human life; and might, perhaps, still have answered them, had
it been possible for mankind to have remained in a state of primeval
simplicity, in which "all things were common to him." Not that this
communion of goods seems ever to have been applicable, even in the
earliest ages, to aught but the substance of the thing; nor could it be
extended to the use of it. For, by the law of nature and reason, he who
first began to use it, acquired therein a kind of transient property, that
lasted so long as he was using it, and no longer. Or, to speak with
greater precision, the right of possession continued for the same time,
only, that the act of possession lasted.
Thus, the ground was in common, and no part of it was the permanent
property of any man in particular; yet, whoever was in the occupation of
any determined spot of it, for rest, for shade, or the like, acquired for
the time a sort of ownership, from which it would have been unjust and
contrary to the law of nature to have driven him by force; but, the
instant that he quitted the use or occupation of it, another might seize
it without injustice. Thus, also, a vine or other tree might be said to be
in common, as all men were equally entitled to its produce; and yet, any
private individual might gain the sole property of the fruit which he had
gathered for his own repast: a doctrine well illustrated by Cicero, who
compares the world to a great theater, which is common to the public, and
yet the place which any man has taken is, for the time, his own.
But when mankind increased in number, craft, and ambition, it became
necessary to entertain conceptions of a more permanent dominion; and to
appropriate to individuals not the immediate use only, but the very
substance of the thing to be used. Otherwise, innumerable tumults must
have arisen, and the good order of the world been continually broken and
disturbed, while a variety of persons were striving who should get the
first occupation of the same thing, or disputing which of them had
actually gained it. As human life also grew more and more refined,
abundance of conveniences were devised to render it more easy, commodious,
and agreeable; as habitations for shelter and safety, and raiment for
warmth and decency. But no man would be at the trouble to provide either,
so long as he had only a usufructuary property in them, which was to cease
the instant that he quitted possession; if, as soon 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.
In the case of habitations, in particular, it was natural to observe that
even the brute creation, to whom everything else was in common, maintained
a kind of permanent property in their dwellings, especially for the
protection of their young; that the birds of the air had nests, and the
beasts of the fields had caverns, the invasion of which they esteemed a
very flagrant injustice, and would sacrifice their lives to preserve them.
Hence a property was soon established in every man's house and homestead;
which seem to have been originally mere temporary huts or movable cabins,
suited to the design of Providence for more speedily peopling the earth,
and suited to the wandering life of their owners, before any extensive
property in the soil or ground was established.
There can be no doubt but that movables of every kind became sooner
appropriated than the permanent, substantial soil; partly because they
were more susceptible of a long occupancy, which might be continue for
months together without any sensible interruption, and at length, by
usage, ripen into an established right; but, principally, because few of
them could be fit for use till improved and meliorated by the bodily labor
of the occupant; which bodily labor, bestowed upon any subject which
before lay in common to all men, is universally allowed to give the
fairest and most reasonable title to an exclusive property therein.
The article of food was a more immediate call, and therefore a more early
consideration. Such as were not contented with the spontaneous product of
the earth, sought for a more solid refreshment in the flesh of beasts,
which they obtained by hunting. But the frequent disappointments incident
to that method of provision, induced them to gather together such animals
as were of a more tame and sequacious nature and to establish themselves
in a less precarious manner, partly by the milk of the dams, and partly by
the flesh of the young.
The support of these their cattle made the article of water also a very
important point. And, therefore, the book of Genesis, (the most venerable
monument of antiquity, considered merely with a view to history,) will
furnish us with frequent instances of violent contentions concerning
wells; the exclusive property of which appears to have been established in
the first digger or occupant, even in places where the ground and herbage
remained yet in common. Thus, we find Abraham, who was but a sojourner,
asserting his right to a well in the country of Abimelech, and exacting an
oath for his security "because he had digged that well." And Isaac, about
ninety years afterwards, reclaimed this his father's property; and, after
much contention with the Philistines, was suffered to enjoy it in peace.
All this while, the soil and pasture of the earth remained still in common
as before, and open to every occupant; except, perhaps, in the
neighborhood of towns, where the necessity of a sale and exclusive
property in lands, (for the sake of agriculture,) was earlier felt, and
therefore more readily complied with. Otherwise, when the multitude of men
and cattle had consumed every convenience on one spot of ground, it was
deemed a natural right to seize upon and occupy such other lands as would
more easily supply their necessities.
We have a striking example of this in the history of Abraham and his
nephew Lot. When their joint substance became so great that pasture and
other conveniences grew scarce, the natural consequence was that a strife
arose between their servants; so that it was no longer practicable to
dwell together. This contention, Abraham thus endeavored to compose: "Let
there be no strife, I pray thee, between me and thee. Is not the whole
land before thee? Separate thyself, I pray thee, from me. 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." This plainly implies an
acknowledged right in either to occupy whatever ground he pleased that was
not preoccupied by other tribes. "And Lot lifted up his eyes, and beheld
all the plain of Jordan, that it was well watered everywhere, even as the
garden of the Lord. Then Lot chose him all the plain of Jordan, and
journeyed east; and Abraham dwelt in the land of Canaan."
As the world by degrees grew more populous, it daily became more difficult
to find out new spots to inhabit, without encroaching upon former
occupants; and, by constantly occupying the same individual spot, the
fruits of the earth were consumed, and its spontaneous products destroyed
without any provision for future supply or succession. It, therefore,
became necessary to pursue some regular method of providing a constant
subsistence; and this necessity produced, or at least promoted and
encouraged the art of agriculture. And the art of agriculture, by a
regular connection and consequence, introduced and established the idea of
a more permanent property in the soil than had hitherto been received and
adopted.
It was clear that the earth would not produce her fruits in sufficient
quantities without the assistance of tillage; but who would be at the
pains of tilling it, if another might watch an opportunity to seize upon
and enjoy the product of his industry, art and labor? Had not, therefore,
a separate property in lands, as well as movables, been vested in some
individuals, the world must have continued a forest, and men have been
mere animals of prey. Whereas, now, (so graciously has Providence
interwoven our duty and our happiness together,) the result of this very
necessity has been the ennobling of the human species, by giving it
opportunities of improving its rational, as well as of exerting its
natural faculties.
Necessity begat property; and, in order to insure that property, recourse
was had to civil society, which brought along with it a long train of
inseparable concomitants: states, government, laws, punishments, and the
public exercise of religious duties. Thus connected together, it was found
that a part only of society was sufficient to provide, by their manual
labor, for the necessary subsistence of all; and leisure was given to
others to cultivate the human mind, to invent useful arts, and to lay the
foundations of science.
NOTE.--Cicero. See note on page 156.