PART II. In judging of an inftitution, we may repeat, that we are not fo CHAP. III. SECT. XI. much to look to its origin as its actual nature. Compliance extorted by force does not amount to convention; but justice itself fometimes needs to be enforced, and the wisest institutions, at the time of their first admission, may have been the fruits of compulfion: But, if in the sequel, an establishment be found acceptable, and favourable to the interefts of mankind, they do well to abide by it, and, while they do fo, no individual can remain in his country, and take the benefit of its laws, without being bound to obey them in his turn.

Thus, it becomes evident, that as it were abfurd in science, like Mr Hobbes, to overlook the original rights of men; fo it were no less abfurd, like visionary theorists, in any question of law or state, to refer to mere original rights, as the fole ground of decifion. It were abfurd, after a perfon had bought an estate, to reject the conveyance that was made to him, in order to judge of his title, on fuch principle of right merely as may be fuppofed to precede the institution of property.

But, if want of confent, in one age,will not preclude the obligation of compact on fucceeding ages, or on those who in the fequel voluntarily accede to a practice, no more will the confent of ancestors, with whom a practice originated, bind their pofterity, or those who in the fequel refuse their affent; and, if an institution, however willingly adopted by a former age, prove in the fequel a mere abuse; if it be a continued exercise of injustice and wrong, fupported by force on the one part, and a continued feries of fuffering and reluctant compliance on the other; fuch practices, however long continued, as they are never ratified by confent, they are never established on the foot of customary

I

practice,

CHAP. III.
SECT. XI.

practice, nor do they obtain the force of convention. The op- PART II. pressed, even after any indefinite period of oppreffion are free to procure relief by fuch means as they are enabled to employ for that purpose.

1

SECTION XII.

Of the Specific Obligations and Rights that refult from Contract.

PART II.

CHAP.III.

SECT. XII.

MEN may bind themselves by contract to do, or to omit to do, whatever is within the compass of their will, and not contrary to the right of any other perfon; but in matters, concerning one perfon, which no way depend on the confent of another, compact were mifplaced, and cannot have any effect.

In feizing upon things which are open to the first occupier, the confent of others is not required; or, in other words, the right of poffeffion refults from occupancy alone, apart from any confent.

Poffeffion is fhort of property; becaufe, if the poffeffor fhould ceafe to occupy a fubject, he has not any right to exclude another from its ufe. When relinquifhed, it is open again to the first occupier, whether the perfon who formerly poffeffed it, or any one

elfe.

CHAP. III. SECT. XIL

This defect, in the right of poffeffion, may be in part fupplied PART II. by the confent of all the parties, who had access to the subject, at the time it has ceafed to be occupied. And thus, a right of property in one person, may be pleaded against all those who confented to forgo their right of occupancy. With respect to fuch as confent to the property, it is matter of convention; and the perfon, in whose favour they have given their confent, has so far acquired an exclufive right, that, upon any discontinuance of the ufe, may refume it, or even recover his fubject, if found in the poffeffion of those who refigned their right of occupancy in his favours.

he

But this right, which is exclusive with refpect to thofe, whether few or many, who have confented to exclude them felves, can never of itself amount to an absolute property, or be exclusive with respect to all mankind.

Were we therefore to admit the principle affumed by Mr Hobbes, that originally all men had equal rights to all things, and that compact alone could give exclufive right to any thing, it fhould follow, that univerfal confent was neceffary to give absolute property, or to constitute a right special and exclusive in any one to the fole ufe of the fubject to which he laid claim; and we might infer, on the fame principle, that, as no fuch univerfal confent has ever been obtained, no right of property is yet fully conftituted: Moreover, that as fuch univerfal confent never can be obtained, we might alfo infer, that the existence of a right, in any one perfon, exclufive of all other men, is impoffible, and that men ftill remain, and must for ever remain, in that original state, in which all men had an equal right to all things; and are actually in a state of war, to which they are condemned by the want of amicable rule by which to adjust their differences.

any

Although

PART II.

CHAP. III.

Although the idea of univerfal confent be altogether visionary, SECT. XII. yet no one will deny that there is fuch a right as property, which may originate in the labour bestowed upon a fubject unoccupied and unappropriated. And that when property has thus accrued to any one, it may by compact be conveyed to any other, and continue to pass through any indefinite number of hands.

With refpect to property, therefore, the effect of compact is not the institution of a right, but the conveyance from one to another of a right previously instituted.

Property determines on the death or dereliction of the proprietor. In either case, the subject is open to the first occupier.

Among rude or favage nations, property being attached, for the most part, to moveable articles, as arms, furs, dress, or utenfils of any fort; and the principal sign of property being the actual ufe of the fubject in which it is conftituted, fuch articles, when found in the absence of any person who claims the use of them, are readily treated as res nullius, or as things open to the first occupier. Hence, much of the rapacity or injustice which is imputed to men in this state.

A conveyance of property implies dereliction, but is not complete, without delivery into the hands of the person, in whose favour the conveyance is made. Were a fubject merely relinquished, it would become open to the first occupier. The perfon, for whom the property was destined, might have an action against the former proprietor for not fulfilling his deed of conveyance;