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On the History of Property. - James Wilson, Collected Works of James Wilson, vol. 1 [2007]Edition used:Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1.
Part of: Collected Works of James Wilson, 2 vols.About Liberty Fund:Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright information:The Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay are the copyright of Liberty Fund 2007. The Bibliographical Glossary in volume 2 is reprinted by permission of the copyright holders the President and Fellows of Harvard College 1967. Fair use statement:This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
On the History of Property.The final drafts of Wilson’s law lectures are contained in notebooks labeled “Introductory” and then 1–49. There is also a notebook labeled 50 which contains Wilson’s unfinished “On the history of property.” Because of its close association with the law lectures, it is reproduced here. For further discussion of this and the other notebooks, see pages 401–413 of this volume. Property is the right or lawful power, which a person has to a thing. Of this right there are three different degrees. The lowest degree of this right is a right merely to possess a thing. The next degree of this right is a right to possess and to use a thing. The next and highest degree of this right is a right to possess, to use, and to dispose of a thing. This right, in all its different degrees, may be vested in one, or it may be vested in more than one man. When this right is vested in more than one man, it may be vested in them either as a number of individuals, or as a body politick. Concerning the origin and true foundation of property, or the right of persons to things, many opinions have been formed and entertained. With regard to property in land, Mr. Paley declares, that the real foundation of it is municipal law.a Others consider property as a natural right; but as a right, which may be extended or modified by positive institutions.b The general property of man in animals, in the soil, and in the productions of the soil, is the immediate gift of the bountiful Creator of all. “God created man in his own image; in the image of God created he him: male and female created he them. And God blessed them; and God said unto them, be fruitful and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.”c Immediately after the deluge, the great charter of general property was renewed. “God blessed Noah and his sons, and said unto them, be fruitful and multiply, and replenish the earth. And the fear of you and the dread of you shall be upon every beast of the earth, and upon every fowl of the air, and upon all that moveth upon the earth, and upon all the fishes of the sea; into your hand are they delivered. Every moving thing that liveth shall be meat for you; even as the green herb have I given you all things.”d The information which is expressly revealed is congenial to those inferences, which may be drawn by sound and legitimate reasoning. Food, raiment, and shelter are necessary and useful to us. Things proper for our food, raiment, and shelter are provided around us. It is natural to conclude, that those things were provided to supply our wants and necessities. The same train of reasoning will apply to the enjoyments, as well as to the necessities of man. While men were few, and the supplies of every thing were abundant, it is probable that many things were possessed and used in common. With regard to the possession and use of some things, however, this could never be strictly the case. In the fruit plucked or gathered by one for his subsistence; in the spot which he occupied for his shelter or repose; in the bow which he has made for ensuring his safety, or procuring his subsistence; in the skin which he has obtained by his skill and swiftness in the chace, and which covers his body from the inclemency of the weather, he gains a high degree of exclusive right; and of this right he cannot be dispossessed without a proportioned degree of injustice. “A publick theatre,” says Cicero,e with his usual luminous propriety, “is common to all the citizens; but the seat which each occupies may, during the entertainment, be denominated his own.” But, in the early period of society, concerning which we now speak, things, in general, would be viewed as belonging equally to all; in other words, to those who should first have occasion to use or possess them. In this situation, we have reason to believe, society continued after the deluge, while “the whole earth was of one language and of one speech.”f On the confusion of languages, and the dispersion of families, when mankind dwelt no longer in “the same plain,”g this general society was dissolved, and no one subject of property could, in this new situation, be reasonably deemed as belonging equally to all. The different families and associations, however, who diverged from the common centre of emigration, would still consider many things, and particularly the country in which they commenced their new settlements, as common to each family or association. The things most immediately necessary to the subsistence of life would become the first objects of exclusive property. The next objects would be such as ministered to its conveniency and comfort. Personal property, or property in movables, would become separate; while real property, or property in land, would continue common. When the association became too numerous, and the personal property of its members became too large, to subsist or live commodiously together; then a separation of landed possessions necessarily took place. Of these remarks we have a strong and striking illustration in the history of Abram and Lot. “Abram was very rich in cattle: Lot also had flocks, and herds, and tents. And the land was not able to bear them that they might dwell together; for their substance was great. And there was a strife between the herdmen of Abram’s cattle and the herdmen of Lot’s cattle. And Abram said unto Lot, let there be no strife, I pray thee, between thee and me, and between my herdmen and thy herdmen; for we be brethren. Is not the whole land before thee? Separate thyself, I pray thee, from me: if thou wilt take the left hand, then will I go to the right: or if thou depart to the right hand, then I will go to the left. And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered every where. Then Lot chose him all the plain of Jordan: and they separated themselves the one from the other.”h Even after agriculture became known and was practised in some imperfect degree, still the land continued to be the common property of the association. Cecrops, who emigrated from civilized Egypt, was the first to teach the wandering hunters or shepherds of Attica to unite in villages of husbandmen. After their union, their agricultural labours were carried on in common; and the soil, together with its immediate productions, corn, and wine, and oil, were regarded as a common property.i Agreeably to the same spirit and the same policy, we are told, that during the heroick ages of Greece, when a tribe sallied from its woods and mountains to take possession of a more fertile territory, the soldiers fought and conquered, not for their leaders, but for themselves—that the land acquired by their joint valour was their common right—and that it was cultivated by the united labour and assiduity of all the members of the tribe.j In this stage of society, land was considered as the property of the community, rather than of individuals; and the inhabitants were connected with the country which they inhabited, only as members of the same association.k In this view of things, the famed establishment of a community of property, which Lycurgus made at Sparta, may be deemed nothing more than a renewal of their primitive institutions, of which some traces probably remained among the simple Spartans.l The Scythians, it is well known, appropriated their cattle and tents, but occupied their land in common. Such, to this day, are the laws and customs of the Tartars. Of the Suev,m the largest and most powerful tribe of the ancient Germans, we are informed by Caesar, that they had no private or separate property in their land; that, every year, they sent out a proportion of their warriours in order to make war; while the rest remained at home, and cultivated the ground for all; that these warlike enterprises and peaceful occupations were pursued, in alternate years, by the different divisions of the warriours; that the tribe continued only one year in the same place; that they used corn very little; but lived chiefly on milk and flesh; and were much employed in hunting. From the pen of Tacitusn we have nearly the same description. They change, says he, from spot to spot; and make new appropriations according to the number of hands, and to the condition and quality of each. As the plains are very spacious, the allotments are easily assigned: for though they shift their situation annually, they have still lands to spare. In Tacitus, however, we begin to discover some appearances, among the Germans, of a private property in lands. To a certain class of their slaves, we are told, their masters assigned habitations; and from them, as from tenants, demanded in return a certain quantity of grain, or cattle, or cloth.o This presupposes, in the masters, a separate property in the lands let to those slaves. In the Highlands of Scotland, we are told, common possession of the cultivated soil, as well as of the pasture grounds, is known to this day. The arable lands are divided into as many parts, as there are tenants entitled to an equal share of possession. The stock of cattle belonging to each tenant is considered as equal: the advantages accruing to the several partitions from manure are deemed also to be equivalent; yet some portion of these divisions shifts annually from one possessor to another, in such a manner, that, in a certain period of years, every tenant of the village has occupied and reaped crops from all the lands belonging to the village.p It is said, that, among the Indians of Peru, the territory occupied was the property of the state, and was regulated by the magistrate; and that, when individuals were permitted to possess particular spots, these, in default of male issue, returned to the community.q Formerly, says Mr. Adair, the Indian law obliged every town to work together in one body, in sowing or planting their crops; though their fields are divided by proper marks, and their harvest is gathered and appropriated separately.r The ideas and opinions of private and exclusive property are, as we have reason to believe, extending gradually among the Indians; though their uncultivated territory is still considered as the common property of the nation or tribe. From the detail which we have given, we are justified in deducing this general remark—that in the early and rude periods of society among all nations, the same family or association enjoyed and were understood to enjoy in many things a community of property, especially of landed property; and that, as to individuals, property was conceived to extend no farther than to those degrees, which comprehend the right of possession and temporary use of the soil. But agriculture, and the industry attendant on agriculture, introduced gradually a new scene of things, and a new train of sentiments. This first of arts was not unknown to the restorer of mankind. Noah, after the deluge, began to be a husbandman, and he planted a vineyard.s Before the confusion of languages, the whole human race dwelt in the plain of Shinar. In that plain and its neighbourhood, the knowledge of agriculture was never entirely lost. Among the Babylonians, it is traced to the most early periods of their history. In the fertile territories of Egypt, watered by the Nile, the soil was cultivated with much assiduity and success.t When a famine, in the days of Abram, was grievous in the land of Canaan, the patriarch went down into Egypt to sojourn there.u On a similar occasion, Jacob said to his sons, who, with unavailing anguish, beheld the distressed situation of the family—Why do ye look one upon another? I have heard that there is corn in Egypt; get ye down thither, and buy for us from thence, that we may live, and not die.v From Egypt, as we have already seen, the art of agriculture was transplanted into Attica by Cecrops. Before his arrival, the inhabitants had relied on the reproductions of the uncultivated soil for their annual subsistence; but, by the example of the Egyptians, skilled in agriculture, they were induced to submit to labour, and contract habits of useful industry.w It is the observation of Cicero, that the greatest part of the arts and discoveries, which are necessary or ornamental to life and society, were derived from the Athenians into the other parts of Greece, and then into foreign countries, for the general advantage and refinement of the human race.x Agriculture, in particular, was brought from Greece into Italy, according to the account of this matter given by the Romans themselves.y As the Egyptians taught the Greeks; so the Greeks communicated their knowledge to the Italians. For many ages, the Romans knew no other form of a plough, than that which, to this day, is used in some districts of the higher Egypt.z The wise and virtuous Numa6 was the patron of agriculture. He distributed the Romans into pagi or villages, and over each placed a superintendant to prevail with them, by every motive, to improve the practice of husbandry. To inspire their industry with redoubled vigour, he frequently condescended to be their overseer himself. This wise and judicious policy had a most happy influence upon the subsequent manners and fortunes of Rome. Our consuls, says the Roman Orator,a were called from the plough. Those illustrious characters, who have most adorned the commonwealth, and have been best qualified to manage the reins of government with dignity and success, dedicated a part of their time and of their labour to the cultivation of their landed estates. In those glorious ages of the republick, the farmer, the judge, and the soldier were to each other a reciprocal ornament. After having finished the publick business with glory and advantage to himself and to his country, the Roman magistrate descended, with modest dignity, from the elevation of office; and reassumed, with contentment and with pleasure, the peaceful labours of a rural and independent life. When agriculture was once introduced, and its utility was known and experienced; it became natural to search and adopt the measures necessary for distinguishing possessions permanently; that every one who laboured and who excelled in this fundamental profession, might be secured in enjoying the fruits of his labours and his improvements. Hence the foundation of laws, which instituted and regulated the division and stable possession of the soil. Hence, too, the origin and the importance of land marks. In the early period in which Job lived, it was part of the description of a turbulent and wicked man, that he removed the land marks, and violently took away flocks.b The inspired legislator of the Jews speaks of them as of an institution, which, even in his time, was anciently established in Canaan. “Thou shalt not remove thy neighbour’s land mark, which they of old time have set in thy inheritance, which thou shalt inherit in the land that the Lord thy God giveth thee to possess it.”c Numa, mild as he was, ordered those who were guilty of this crime, to suffer a capital punishment.d The inference which we draw from this long detail of facts is—that agriculture gave rise to that degree of property in land, which consists in the right of exclusive and permanent possession and use. We have seen that among the ancient Germans, this degree of property was altogether unknown. The Saxons, who emigrated into England, and made a conquest there, were a part of the ancient German nation. Their settlement in England produced, with regard to the present subject, a considerable change in their sentiments and habits. After they settled in England, instead of continuing to be hunters, they became husbandmen. In pursuing this occupation, they ceased to wander annually from spot to spot; they became habituated and attached to a fixed residence; they acquired a permanent and an exclusive degree of property in land. This degree, among them, as among other nations, proceeded from their improvement in agriculture.e We have good reason for believing, that, for some time after the settlement of the Saxons in England, the landed estates acquired by individuals were, in general, but of a small extent. Inexpert in agriculture when they first arrived, their progress in the separate appropriation of land was, therefore, slow. This slow appropriation met, besides, with obstructions and interruptions from the vigorous opposition of the Britons, who, for centuries, disputed every inch of ground with the invaders of their country. Conformably to this opinion, we find that, from the beginning of the Saxon government, the land was divided into hides. A hide comprehended as much as could be cultivated by a single plough. The general estimation of real property, by this small and inaccurate measure, points, with sufficient clearness, to the leading circumstance, which originally marked and regulated the greatest number of landed estates.f But we have also good reason for believing, that, among the Saxons, the smallness of their landed property was compensated by its independence. They were freemen; and their law of property was, that they might challenge a power to do what they pleased with their own.g But this degree and quality of property will be considered afterwards. Having traced property, and especially property in land, from its general to its separate and exclusive state, it will now be proper to consider the advantages, which the latter state possesses over the former. This superiority of separate over common property has not been always admitted: it has not been always admitted even in America. In the early settlement of this country, we find two experiments on the operation and effects of a community of goods. The issue of each, however, was very uncomfortable. The first was made in Virginia. An instruction was given to the colonists, that, during five years next after their landing, they should trade jointly; that the produce of their joint industry should be deposited in a common magazine; and that, from this common magazine, every one should be supplied under the direction of the council. What were the consequences? I relate them in the words of the Historian of Virginia. “And now the English began to find the mistake of forbidding and preventing private property; for whilst they all laboured jointly together, and were fed out of the common store, happy was he that could slip from his labour, or slubber over his work in any manner. Neither had they any concern about the increase; presuming, however the crop prospered, that the publick store must maintain them. Even the most honest and industrious would scarcely take so much pains in a week, as they would have done for themselves in a day.”h The second experiment was made in the colony of New Plymouth. During seven years, all commerce was carried on in one joint stock. All things were common to all; and the necessaries of life were daily distributed to every one from the publick store. But these regulations soon furnished abundant reasons for complaint, and proved most fertile sources of common calamity. The colonists were sometimes in danger of starving; and severe whipping, which was often administered to promote labour, was only productive of constant and general discontent. This absurd policy became, at last, apparent to every one; and the introduction of exclusive property immediately produced the most comfortable change in the colony, by engaging the affections and invigorating the pursuits of its inhabitants.i The right of separate property seems to be founded in the nature of men and things; and when societies become numerous, the establishment of that right is highly important to the existence, to the tranquillity, to the elegancies, to the refinements, and to some of the virtues of civilized life. Man is intended for action. Useful and skilful industry is the soul of an active life. But industry should have her just reward. That reward is property; for of useful and active industry, property is the natural result. Exclusive property multiplies the productions of the earth, and the means of subsistence. Who would cultivate the soil, and sow the grain, if he had no peculiar interest in the harvest? Who would rear and tend flocks and herds, if they were to be taken from him by the first person who should come to demand them? By exclusive property, the productions of the earth and the means of subsistence are secured and preserved, as well as multiplied. What belongs to no one is wasted by every one. What belongs to one man in particular is the object of his economy and care. Exclusive property prevents disorder, and promotes peace. Without its establishment, the tranquillity of society would be perpetually disturbed by fierce and ungovernable competitions for the possession and enjoyment of things, insufficient to satisfy all, and by no rules of adjustment distributed to each. The conveniencies of life depend much on an exclusive property. The full effects of industry cannot be obtained without distinct professions and the division of labour. But labour cannot be divided, nor can distinct professions be pursued, unless the productions of one profession and of one kind of labour can be exchanged for those of another. This exchange implies a separate property in those who make it. The observations concerning the conveniencies of life, may be applied with equal justness to its elegancies and its refinements. On property some of the virtues depend for their more free and enlarged exercise. Would the same room be left for the benign indulgence of generosity and beneficence—would the same room be left for the becoming returns of esteem and gratitude—would the same room be left for the endearing interchange of good offices, in the various institutions and relations of social life, if the goods of fortune lay in a mass, confused and unappropriated? For these reasons, the establishment of exclusive property may justly be considered as essential to the interests of civilized society. With regard to land, in particular, a separate and exclusive property in it is a principal source of attachment to the country, in which one resides. A person becomes very unwilling to relinquish those well known fields of his own; which it has been the great object of his industry, and, perhaps, of his pride, to cultivate and adorn. This attachment to private landed property has, in some parts of the globe, covered barren heaths and inhospitable mountains with fair cities and populous villages; while, in other parts, the most inviting climates and soils remain destitute of inhabitants, because the rights of private property in land are not established or regarded.k PART 2Lectures on Law[a. ]1. Paley. 133. 138. [b. ]Ins. 2. 1. 11. El. Jur. 15. [c. ]Gen. i. 27. 28. [d. ]Gen. ix. 1, 2, 3. [e. ]De fin. l. 3. c. 20. [f. ]Gen. xi. 1. Erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.1 Just. l. 43. c. 1. [g. ]Gen. xi. 2. [h. ]Gen. xiii. 2. 5.–11. [i. ]1. Gill. 8. [j. ]Id. 48. [k. ]Id. 68. [l. ]1. Gill. 96. [m. ]Suevorum gens est longe maxima et bellicosissima Germanorum omnium—privati ac separati agri apud eos nihil est—quotannis singula millia armatorum, bellandi causa, suis ex finibus educunt: reliqui domi manent; pro se atque illis colunt. Hi rursus invicim anno post in armis sunt: illi domi remanent—neque longius anno remanere uno in loco, incolendi causa, licet; neque multum frumento, sed maximam partem lacte atque pecore vivunt, multumque sunt in venationibus.2 Caes. l. 4. c. 1. l. 6. c. 21. [n. ]Agri pro numero cultorum ab universis per vices occupantur, quos mox inter se secundum dignationem partiuntur. Facilitatem partiendi camporum spatia prestant. Arva per annos mutant; et superest ager.3 Tac. de mor. Ger. c. 26. [o. ]Servis utuntur. Suam quisque sedem, suos penates regit. Frumenti modum dominus, aut pecoris, aut vestis, ut colono injungit.4 Tac. de. mor. Gor. c. 25. [p. ]Grant’s Ess. 97. [q. ]Stu. V. 158. cites Com. Per. b. 5. c. 1. 3. [r. ]Id. ibid. [s. ]Gen. ix. 20. [t. ]Osiris, one of the kings of Egypt, is regarded as the inventor of the plough. Primus aratra manu solerti fecit Osiris.5 Tibul. l. 1. Eleg. 7. v. 29. [u. ]Gen. xii. 10. [v. ]Gen. xlii. 1, 2. [w. ]1. Anac. 6. [x. ]1. Pot. Ant. 138. [y. ]1. Gog. Or. Laws. 88. [z. ]Id. 90. [6. ]Numa Pompilius ruled from 715 to 673 bc According to legend, Numa Pompilius was the second of the kings of Rome succeeding Romulus and was credited with dividing the immediate territory of Rome into pagi and establishing the traditional occupational guilds of Rome. [a. ]Ab aratro arcessebantur, qui consules fierent—Apud majores nostros, summi viri, clarissimique homines, qui omni tempore ad gubernacula reipublicae sedere debebant, tamen in agris quoque colendis aliquantum operae temporisque consumserint.7 Cic. pro Ros. Am. c. 18. [b. ]Job xxiv. 2. [c. ]Deut. xix. 14. [d. ]1. Gog. Or. Laws. 32. [e. ]Millar, 50. [f. ]Id. 85. 144. 181. [g. ]Bac. on Gov. 123. [h. ]Stith. 39. [i. ]Chal. 89. 90. [k. ]The foregoing observations were intended to compose a part of those lectures, in which the Author designed “to trace the history of property from its lowest rude beginnings to its highest artificial refinements.” [Vol. 1. p. 50.] It will be perceived that the piece is indeed but a fragment; as, however, the history of property is so far completed as to trace it from its general to its separate and exclusive state, it is thought worthy of insertion. Ed. [f. ]Gen. xi. 1. Erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.1 Just. l. 43. c. 1. [m. ]Suevorum gens est longe maxima et bellicosissima Germanorum omnium—privati ac separati agri apud eos nihil est—quotannis singula millia armatorum, bellandi causa, suis ex finibus educunt: reliqui domi manent; pro se atque illis colunt. Hi rursus invicim anno post in armis sunt: illi domi remanent—neque longius anno remanere uno in loco, incolendi causa, licet; neque multum frumento, sed maximam partem lacte atque pecore vivunt, multumque sunt in venationibus.2 Caes. l. 4. c. 1. l. 6. c. 21. [n. ]Agri pro numero cultorum ab universis per vices occupantur, quos mox inter se secundum dignationem partiuntur. Facilitatem partiendi camporum spatia prestant. Arva per annos mutant; et superest ager.3 Tac. de mor. Ger. c. 26. [o. ]Servis utuntur. Suam quisque sedem, suos penates regit. Frumenti modum dominus, aut pecoris, aut vestis, ut colono injungit.4 Tac. de. mor. Gor. c. 25. [t. ]Osiris, one of the kings of Egypt, is regarded as the inventor of the plough. Primus aratra manu solerti fecit Osiris.5 Tibul. l. 1. Eleg. 7. v. 29. [a. ]Ab aratro arcessebantur, qui consules fierent—Apud majores nostros, summi viri, clarissimique homines, qui omni tempore ad gubernacula reipublicae sedere debebant, tamen in agris quoque colendis aliquantum operae temporisque consumserint.7 Cic. pro Ros. Am. c. 18. [1. ]To all men everything was in common and without separation, just as if they all had a single inheritance. [2. ]The nation of the Suevi is by far the largest and most warlike of all the Germans—among them there is no privately owned or separate farmland—each year they lead out of their own territory a thousand armed men in order to make war; the rest remain at home, cultivating the land for themselves and the others. The next year the latter serve their turn in arms and the former remain at home—and they may not stay in one place for the sake of dwelling in it for longer than a year, nor do they live on grain very much, but for the most part on milk and their herds, and they spend a great deal of time in hunting. [3. ]Land is occupied by them as a whole through the villages in proportion to the number of cultivators; this is soon apportioned among them according to their ranks, the area of the fields making division easy. They change their fields through the years, and there is farmland left over. [4. ]They have slaves, but each slave is master of his own household. The master makes him pay an amount of grain, cattle, or clothing, like a tenant. [5. ]First Osiris made ploughs with dexterous hand. [7. ]From the plough men were summoned to become consuls—in the days of our ancestors, those most excellent and distinguished men, who, though they should have sat at the helm of the state all the time, nonetheless devoted a certain amount of time and effort to cultivating their farms. |

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