the various nature of their subject. Although justice is the only branch of virtue in which there is always a right on the one hand, corresponding to an obligation on the other, they have contrived, by fictions of imperfect and of external rights, to treat indirectly of all our different duties, by pointing out the rights which are supposed to be their correlates. It is chiefly owing to this that a study which, in the writings of the ancients, is the most engaging and the most useful of any, has become in so great a proportion of modern systems as uninviting and almost as useless as the logic of the schoolmen.

Besides these defects in the modern systems of jurisprudence, (defects produced by the accidental habits of those who first cultivated the study) there is another essential one arising from the object of the science. Although the obligations of justice are by no means resolvable into considerations of utility, yet in every political association they are so blended together in the institutions of men, that it is impossible for us to separate them completely in our reasonings. And accordingly (as Mr. Hume has remarked) the writers on jurisprudence, while they profess to confine themselves entirely to the former, are continually taking principles for granted which have a reference to the latter. It seems, therefore, to be proper, instead of treating of jurisprudence merely as a system of natural justice, to unite it with politics, and to illustrate the general principles of justice and of expediency, as they are actually combined in the constitution of society. This view of the subject (which properly belongs to the consideration. of man as the member of a political body) will show, at the same time, how happily these principles coincide in their application; and how partial those conceptions of utility are, which have so often led politicians to depart from what they felt to be just, in quest of what their limited judgment apprehended to be expedient.

SUPPLEMENT TO CHAPTER SECOND.

THE following observations on the Right of Property are introduced here chiefly with a view of illustrating a remark in the foregoing chapter, that we possess rights antecedent to the establishment of the political union. The greater part of them have a reference to the Essay on Property in Lord Kames's Historical Law Tracts.*

It cannot, I apprehend, be doubted, that, according to the notions to which we in the present state of society are habituated from our infancy, the three following things are included in the idea of property.

1. A right of exclusive enjoyment.

2. A right of inquiry after our property when taken away without our consent, and of reclaiming it wherever found.

3. A right of transference.

We do not consider our property in any object to be complete, unless we can exercise all these three rights with respect to it.

Lord Kames endeavours to show that these ideas are not agreeable to the apprehensions of the human mind in the ruder periods of society, but imply a refinement and abstraction of thought which are the result of improvement in law and government. The relation (in particular) of property, independent of possession, he thinks of too metaphysical a nature for the mind of a savage. "It appears to me," says he, "to be highly probable, that among savages involved in objects of sense, and strangers to abstract speculation, property, and the rights or moral powers arising from it, never are with accuracy distinguished from the natural powers that must be exerted upon the subject to make it profitable to the possessor. The man who kills and eats, who sows and reaps, at his own pleasure, independent of another's will, is naturally deemed proprietor. The grossest savages understand power without right, of which they are made sensible by daily acts of violence; but

* Tract iii. Third Edition.

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.