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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 fubject, at the time it has ceafed to be occupied. And thus, a right of property in one perfon, may be pleaded against all thofe who confented to forgo their right of occupancy. With refpect to fuch as confent to the property, it is matter of convention; and the perfon, in whofe favour they have given their confent, has fo far acquired an exclufive right, that, upon any discontinuance of the ufe, he may refume it, or even recover his fubject, if found in the poffeffion of those who refigned their right of occupancy in his favours.
But this right, which is exclusive with refpect to thofe, whether few or many, who have confented to exclude themselves, can never of itself amount to an abfolute property, or be exclufive with refpect 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 exclusive right to any thing, it fhould follow, that univerfal confent was neceffary to give abfolute property, or to conftitute a right special and exclufive in any one to the fole use of the subject 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, exclusive of all other men, is impossible, 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 any amicable rule by which to adjust their differences.
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 inftitution of a right, but the conveyance from one to another of a right previously instituted.
Property determines on the death or dereliction of the proprie-
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 fign 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 subject merely relinquished, it would become open to the firft occupier. The perfon, for whom the property was destined, might have an action against the former proprietor for not fulfilling his deed of conveyance;
but not against a third party, who, proceeding to occupy the fub- PART II.
Upon this ground it is obferved, that the mere law of nature will not fupport a legatee, in claiming the poffeffion of an inheritance from any third party, who may have occupied it on the death of the teftator. His action could lie only against the person, whose confent he could plead; but that person is no more, and, upon his demife, the fubject in queftion became open to the first occupier, who may not have confented to put the fuppofed legatee in poffeffion.
But fuch questions, in the ordinary course of things, are for the most part precluded. Even among rude nations, where property is least established, the family of a person deceased are naturally the first occupiers of his effects; and inheritance gets a footing, not upon any principle of right excluding the firft occupier, but upon a principle of fact, that the family of the deceased are, for the most part, actually in poffeffion.
Among nations more advanced in the progrefs of property and of arts, the will of a perfon deceased is admitted as a fufficient ground of conveyance to the legatee. This favour is due to the industry, with which property is acquired; and it has a falutary tendency, among commercial nations, to reward and encourage that industry. Upon this footing, the effect of a laft will is derived from convention, fuch as the living have admitted; not from the destination of a person who is no more, and against whom no action at law can be raised.
A claim of right, founded in compact, is valid only against the party
PART II. party contracting; and the right pertains only to the party accepting. Such only as have at once a right, in the subject of compact, and power to dispose of it, are competent to an effectual act of
As every perfon may perform what services he thinks proper, and has power to dispose of his fervices by previous confent ; perfonal fervice is the principal and immediate object of conventional obligation.
The right to command we have obferved, cannot arise from occupancy or from labour bestowed. It may arife by consent fo far as one person may, by compact, bind himself to obey the commands of another. Thus the artizan has right to the service of his apprentice upon the ground of his indenture. The mafter has a right to the labour of a fervant he has hired, and perfons stipulating the performance of any task or the fupply of any commodity, have a right to all the effects of their contract.
In the fame manner, we are told that the right of government is founded in the confent of the people; and this though true in many refpects is not true in all. It is true in refpect to all the pofitive fervices and contributions due from the fubject. If in these the rights of government are queftioned they must be evinced on the principle of convention exprefs or tacit: For on that principle alone the right of command can be established. The confent of those by whom government was firft acknowledged is frequently expreffed in formal capitulations, charters or statutes; and the confent of those over whom it continues to be exercifed, though tacit, is no less real from age, to age in the continued acceptance of protection in return for allegiance and political duties. But a
right to protect the innocent or to restrain crimes, which the ma- PART II.
Amidst the relations in which mankind are placed, by agreement either express or tacit, it may be asked, whether upon the principles of the law of nature the relation of master and flave, can be justly admitted?
This relation is understood to be the fame with that of proprietor to the subject of his property, * and feems to have originated in violence or force, and not in confent. Barbarous nations make war to enflave their captives, and difpofe of them at market, like cattle or other fubjects of property.
Violent institutions, we have obferved, if they be fuch as men. in the fequel are reconciled to, and willingly adopt, may become matter of fair convention and be established in custom. How far the institution of flavery may come under this defcription is the question which we are now confidering.
It cannot be doubted, that perfons may be found under the
In the language of the Roman law a flave was faid to be a thing and not a per-