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| Friday Decr. 24. 1762: Of Jurisprudence. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


| Friday Decr. 24. 1762

Of Jurisprudence.

Jurisprudence is the theory of the rules by which civil governments ought to be directed.

It attempts to shew the foundation of the different systems of governmenta in different countries and to shew how far they are founded in reason.

We will find that there are four things which will be the design of every government:b

1stThe first and chief design of every system of government is to maintain justice; to prevent the members of a society from incroaching on one anothers property, or siezing what is not their own. The design here is to give each one the secure and peacable possession of his own property. {The end proposed by justice is the maintaining men in what are called their perfect rights.}c When this end, which we may call the internall peace, or peace within doors, is | secured, the government will next be desirous of promotingd the opulence of the state. This produces what we call police. Whatever regulations are made with respect to the trade, commerce, agriculture, manufactures of the country are considered as belonging to the police.

When Mr. Blank in MS.1 resigned the office of Blank in MS.2 of Paris to Mr. D’Argenson, he told him that the king required three things of him who held that office,e that he should take care of 1st, the clean<n>ess or neteté; 2d, the aisance, ease or security; and 3dly, bon marché or cheapness of provisions.—The 1st of these is two mean and trifling a subject to be treated of in a system of jurisprudence. The 2d is of two sorts, first that which provides for the security of the inhabitants against fires, or other such accidents. | This also is of toof trifling a nature to be reckoned a branch of jurisprudence. The other branch is that which provides against any injuries that may be done by other persons to the inhabitants; and this end is accomplished either by guards and patroles that prevent the commission of such crimes as it were a priori, or by the constitution of statutes for the punishment of transgressors and the encouragement of those who discover the offenders and bring them to justice.—The 2d part may be called the justice of police, and as it is connected in that manner with the former part of jurisprudence, we shall consider it under that head. The 3d part of police is bon marché or the cheapness of provisions, and the having the market well supplied with all sorts of com|modities. This must include not only the promoting a free communication betwixt the town and the country, the internall commerce as we may call it, but also on the plenty or opulence of the neighbouringg country.

This is the most important branch of police and is what we shall consider when we come to treat of police; and in handling it we shall consider the different regulations that have subsisted in different countries and how far they have answered the intentions of the governments that constituted them; and this we shall <?> to ancient as well as modern times.

3d. As the government can not be supported without some expence, though the state was very opulent, it would next be considered in what manner this expence should be | born. In all cases it is evident that this burthen at last must lye on the industrious part of the people. Whether 1st, it be born by the rents of what are called demesne lands, viz those that belong to the crown or the governing part of the nation. This as it abridges the possession of the subjects must be considered as a burthen on them. Or 2dly, it may be supplied by a tax on the lands possessed by the subjects. These though not rents of the crown are a deducement from the rents of the possessor. Or lastly, if it be raised by customs, on manufactures, imports and such like, where it is immediately levied from the people. In all cases therefore the expenses of the government must be defrayed by the people. The summ | levied to defray these expenses is what we call the revenue of the government. In treating of that branch of jurisprudenceh which relates to government, we shall consider the different methods which have been taken to raise the sum necessary for the expense of the state in different countries, and how far they are adapted to do this with the least loss or hindrance to the industry of the people, which ought to be the chief thing in view. For it will also be shewn that the same summ may be raised in some ways which would mightily discourage the industry and improvement of the country and in others which would have those bad effects in a much less proportion.

4 Besides these 3 considerations of the security of property, the police, and the revenue of the kingdom or state, it must also be necessary to have some means of | protecting the state from foreign injuries. Tho’ thei peace within doors be never so firmly established, yet if there be no security from injuries from without the property of individualls can not be secure. The danger to them on this head is no less to be feard than from those of their own society; and not only is the security of private persons in danger but the very beingj of the state. It is therefore requisite that an armed force should be maintained,k as well to defend the state against externall injuries as to obtain satisfaction for any that have been committed. In treating of this subject we shall consider the various species of armed forces that have been in use in antient and modern states; the different sorts of militias and train’d bands; and observe | how far they were suited to the different natures of the governments.

This naturally leads us to consider in the 4th place the laws of peace <and> war, the jura belli et pacis. That is, the different regulations that subsist betwixt different independent states, with respect both to the mutual intercourse betwixt them in time of peace and what priviledges may be granted them, and to thel effects of the success in war and what is permitted as lawful in the time that war is waged betwixt different nations. We shall under this head compare those laws of war that subsisted in antient times with those now in force and shew how far the latter are superior in moderation and humanity; and alsom point out the causes of the gradual restrictions that have been made on the laws of war in the refinement of society. | We shall also on this head shew how these regulations vary according as the independent states are of a republican, or monarchicall or aristocraticall form; which will lead us to consider the various priviledges granted to strangers in different countries, as aliens,

etc.

The first and chief design of all civill governments, is, as I observed, to preserve justice amongst the members of the state and prevent all incroachments on the individualls in it, from others of the same society.—{That is, to maintain each individual in his perfect rights.} Justice is vio<l>ated whenever one is deprived of what he had a right to and could justly demand from others,n or rather, when we do him any injury or hurt without a cause. Let us consider then in how many ways justice may be violated, that is, in how many respects a man may | be injured.—1st, he may be injured as a man; 2dly, as a member of a family; and 3dly, as a citizen or member of a state. Every injury that can be done a man may be reduced to some of these, and in all of these he may be injured without being affected when considered in any of the other views.—When one attempts to kill an other he does him an injury as a man; when a man is deprived of his wife or she is ill treated he is injured as a husband; or when he is deprived of his son, or his son does not act with proper regard to him, he is injured as a father, and member of a family.—If one behaveso disrespectfully and without due honour to one that is dignified with an office or title, this is an injury done as a citizen, as his pre–eminence is founded on a civil constitution. If one who has no just right assumes any title of nobility, this is an injury both to his equalls in taking upon him the character of one of rank superior | to them, and to his superiors in assuming to have himself reckon’d as their equal when he is their inferior; and the injury here proceeds as from the quality of a citizen or member of a state in which he is considered.p In each of these examples the injury is peculiar to the quality in which the person is considered [in]. The injury done to one as a father could not affect him merely as a man, nor could that which is done to him as a member of a state be competent to him as a man or member of a family, but intirely proceeds from his state as a citizen.

We shall consider in the first place those rights that belong to a man as a man, as they are generally most simple and easily understood, and generally can be considered without respect to any otherq condition.

| A man merely as a man may be injured in three respects, either 1st, in his person; or 2dly, in his reputation; or 3dly, in his estate. 1st A man may be injured in his person two ways also, either 1st, by killing, wounding, or maiming him, or any way hurting his body, or secondly by restraining his liberty.—These rights correspond to what Puffendorff call<s> naturall rights as those which respect a man as a member of a family or of a state do to those which they call adventious.3 —Amongst these natural rightsr which they define to be jura, quae omnem actum humanum antecedunt, vel, quae ex nullo actu humano proficiscuntur, they reckon up jus ad vitam, ad corpus, liberi commercii, a right of trafficking with those who are willing to deal with him, jus connubiorum, etc., and lastly jus sincerae aestimationis, or a right to an unspoiled character, to what he possesses—in all about a dozen. Now these may all be reduced to the | three above mentioned. Those which affect his body may all be reduced to the firsts class of those respecting his person; the right to free commerce, and the right to freedom in marriage, etc. when infringed are all evidently incroachments on the right one has to the free use of his person and in a word to do what he has a mind when it does not prove detrimentall to any other person.t

A man is injured in his reputation when one endeavours to bring his character below what is the common standard amongst men. If one calls another a fool, a knave, or a rogue he injures him in his reputation, as he does not then give him that share of good fame which is common to almost all men, to perhaps 99 of 100. | But, again, if one calls another an honest good natured man, tho perhaps he deserved a much higher character, he can not complain of any injury being done him, as that is the character due to the generality of men. We may here observe the distinction which Mr. Hutchinson, after Baron Puffendorf, has made of rights.4 He divides them into jura perfecta and imperfecta, i.e. perfect and imperfe<c>t rights.—Perfect rights are those which we have a title to demand and if refused to compel an other to perform. What they call imperfect rights are those which correspond to those duties whichu ought to be performed to us by others but which we have no title to compel them to perform; they having it intirely in their power to perform them or not. Thusv a man of bright parts or remarkable learning is deserving of | praise, but we have no power to compel any one to give it him. A beggarw is an object of our charity and may be said to have a right to demand it; but when we use the word right in this way it is not in a proper but a metaphoricall sense. The commonx way in which wey understand the word right, is the same as what we have called a perfect right, and is that which relates to commutative justice. Imperfect rights, again, refer to distributive justice. The former are thez rights which we are to consider, the latter not belonging properly to jurisprudence, but rather to a system of moralls as they do not fall under the jurisdiction of the laws.5 We are therefore in what follows to confine ourselves entirely to the perfect rights and what is called commutative | justice. — — —

The last particular in which a man may be injured is his estate.

Now what is it we call ones estate. It is either 1st, what he has <?in his> immediate possession, not only what he has about his own person as his cloaths, etc., but whatever he has a claim to and can take possession of in whatever place or condition he finds it. {A man has a real right to whatever vindicari potest a quocunque possessore.6 } Or 2dly., what is due to him either by loan or by contract of whatever sort, as sales, etc. The first is what we call real rights or a right to a particular thing. The 2d is called a personall right or a right against a particular person. {Jura personalia, sunt jura ad certam tantum personam competentia, ad certam rem servitu Blank in MS.7 vel valorem.8 }

{A personala right may sometimes be constituted against a certain thing, but then it [is] only extends to that thing when in the possession of a certain person. Thus e.g. if a man sells another a horse, but the horse is not delivered, the buyer has a personal right against the seller. He can demand the horse from the seller at any time. But if the owner sells him a 2d time to another man who gets possession of him [v.16] bonâ fide, the first purchaser can not claim him from the 2d to whom he has been delivered, tho he may have an action against the seller for damages. But the case is quite different when the byer has got the horse delivered; thus if after he had been delivered the byer had desired the seller to keep him for a short time and he sold him again to another purchaser, the former can claim him from the 2d altho he be a possessor bona fide.}

We shall first consider the real rights; they are four of them as they are enumerated in the civill law. Dominium, Servitus, Pignus, Haereditas. Dominium, or the full right of | property. By this a man has the soleb claim to a subject, exclusive of all others, but can use it himself as he thinks fit, and if he pleases abuse or destroy it. By this right if any subject be lost or abstracted from the right owner he can claim it from any possessor, and tho perhaps that possessor came jus<t>ly by it, yet he can not claim any restitution but must restore it to the owner. He may indeedc if he can find the means obtain restitution from him who by wrong means first possessed it. Property is to be considered as an exclusive right by which we can hinder any other person from using in any shape what we possess in this manner. A man for instance who possesses a farm of land can hinder any other not only from intermedling with any of the products but from walking across his field. ’Tis from the relaxation or | yielding up some part of this exclusive rightd in favours of a particular person that the right of servitudes has arose.

The 2d species of real rights therefore is servitudes. These are precisely the giving up some part of the full right of property. As if a mans farm lies betwixt me and the publick road or any market town, I may by agreement or by law (as we shall hereafterwards observe<)> obtain a servitude (that is, relaxation of his exclusive right) by which I am allowed to travel on horse or foot or drive carriages thro’ his farm.

{All sort of claims on another mans property is to be considered as a relaxation of the exclusive right of property, whether they be constituted as a security for some claim against the dominus serviens, or whether they be constituted without any such design. The first are what we call pledge, mortgage, or hypothec. The others are denominated servitudes. Thus the servitus tigni ingrediendi9 is a relaxation of the exclusive right by which a man can hinder any one from making any use of his wall that can be any way detrimentall.}

As a man may have an opportunity of letting out his money but is not assured of its being on good security, he may take some part of the property of the person who owes the debt. By this means pledges or mortgages came | to be established. There is not here any proper acquisition, as in the former case, the mortgaged subject being considered as of equal value with the debt for which it is pledged, but he has property in it so far that the debt not being paid he can claim payment from the pledge.

4th. If we consider the right which an heir has before his accession to the estate of his father we shall find that it is a real right, tho different from that of property. The heir has the exclusive right to the inheritance. No one can meddle with it in any shape untill he has refused it, and he can obtain restitution for anything that it may have suffered from others as well as [to the] all the accessions that may have been added to it. And as soon as he has consented to enter to the inheritance | hee becomes full and complete proprieter of it.

{If therefore we account the right of inheritance to be a real right, as it certainly is, all other exclusive priviledges will for the same reason be accounted real rights, as the right of monopolies, which is a priviledge constituted intirely by the civil law, the right of an author to his book, the right an inventer of a machine or medicine has to the sole vending or making of that machine or drug. These often make the greatest <?part> and sometimes the whole of ones estate, and they are all creatures of the civil law in each country. There are severall others that have their origin in naturall reason, as the right one has to hunt down the game he has started and such like; but the most considerable of all the exclusive priviledges that are founded in nature is succession, which as we shall shew hereafter is altogether agreable to the constitution of nature.}f

We may observe that not only property but all other exclusive rights are real rights. Thus the property one has in a book he has written or a machine he has invented, which continues by patent in this country for 14 years, is actually a real right. During that time he can claim restitution, or shew for damages from any one who prints his book or copies his machine, so that he may be considered as having a real right to it.

| We come now to the personall rights, which we will find proceed from three sources: 1st, Contract; 2d,g what is called quasi ex contractu, which is called now from Quasi Contract, or more properly the right of Restitution; 3.d—10

1stPersonall rights may proceed from contract. The origin of this right is the expectation raisen in him to whom the promise was made that the promiser will perform what he has undertaken. Thus if one promises to give an other five pounds, this naturally creates an expectation that he will receive five pounds from him at the time promised; and here the promiser must be bound to make up to him anyh loss he has suffered by this expectation.

2dlyQuasi ex contractu. This is no more as we observed already but the right of restitution.—If one finds any subject, as <a> watch, which is the property of an other, he is bound to restore this watch to the right owner whenever he | can discover him, and this without any claim to the contrary.

But if,i for example, one imagines his father owed my father five pounds, and I imagined that there was such a debt, and receive payment of this supposed debt.—After, the other discovers that the summ had been paid and produces his discharge. Here if the money has been spent, he can not have a real claim against me for the money. There is no particular five pounds which he can demand of me. But nevertheless I am bound to make restitution of five pounds to him. They say, est res aliena in patrimonio, there is something in my patrimony which is the property of another. In the same <?way>, whenever I am benefitted by the property of another in a manner to which I have no just claim, I am bound to make restitution quantum ex re aliena locu|pletior factus sum;11 and this not only when the subject exists but even after it has been consumed. {Hence arise many actions mentioned in the civil law, as that called condictioj indebiti, and the actio negotiorum gestorum, as when one in the absence of the owner repairs the house to prevent it from going to ruins, he has an action neg. gest.; though he had not any of his money, yet he was benefitted, and has the possession of what was bought by his money, and is bound to make restitution of what he has laid out on his house.}

3dly. Ex delicto. Whatever reason there is for ones restoring what he has come by, that was the property of another, taking it to be his own, there is as strong if not stronger reasons for his being bound to make up any damage another has received from him. The injury is here more sensibly felt and affects us more as the wilfull transgression or criminall negligence of the person who has injured us adds greatly to the uneasinessk for the damage sustained. {We think one has injured us more who wilfully did us an injury than one who only did not perform some promise.} Hence arise the severall claims against another for damage sustained whether it be from negligence which they say is ex culpa, or from wilfull injury, ex dolo. These are the several personall rights.

The first thing that comes to be considered in treating of rights is | the originall or foundation from whence they arise.

Now we may observe that the original of the greatest part of what are called natural rights {or those which are competent to a man merely as a man} need not be explained. That a man has received an injury when he is wounded or hurt any way is evident to reason, without any explanation; and the same may be said of the injury done one when his liberty is any way restrain’d; any one will at first perceive that there is an injury done in this case. That on<e> is injured when he is defamed, and his good name hurt amongst men, needs not be proved by any great discussion. One of the chief studies of a mans life is to obtain a good name, to rise above those about and render himself some way their superiors. When therefore one is thrown back not only to a level, but even degraded below the common sort of men, he receives one of the most affecting and atrocious injuries that possibly can be inflicted | on him.—The only case where the origin of naturall rights is not altogether plain, is in that of property. It does not at first appear evident that, e.g. any thingl which may suit another as well or perhaps better than it does me, should belong to me exclusively of all others barely because I have got it into my power; as for instance, that an apple, which no doubt may be as agreable and as usefull to an other as it is to me, should be altogether appropriated to me and all others excluded from it merely because I had pulled it of the tree.

We fill12 find that there are five causes from whence property may have its occasion. 1st, Occupation, by which we get any thing into our power that was not the property of another before.—2dly., Tradition, by which property is voluntarily transferred13 | from one to an other. 3dly, Accession, by which the property of any part that adheres to a subject and seems to be of small consequences as compared to it, or to be a part of it, goes to the proprieter of the principall, as the milk or young of beasts.—4thly., Prescription or Usucapio, by which a thing that has been for a long time out of the right owners possession and in the possession of an other, passes in right to the latter.—5thly, Succession, by which the nearest of kin or the testamentary heir has a right of property to what was left him by the testator.—Of these in order.14

1st OF OCCUPATION

Before we consider exactly this or any of the other methods by which property is acquired it will be proper to observe that the regulations | concerning them must vary considerably according to the state or agem society is in at that time. There are four distinct states which mankind pass thro:—1st, the Age of Hunters; 2dly, the Age of Shepherds; 3dly, the Age of Agriculture; and 4thly, the Age of Commerce.

If we should suppose 10 or 12 persons of different sexes settled in an uninhabited island, the first method they would fall upon for their sustenance would be to support themselves by the wild fruits and wild animalls which the country afforded. Their sole business would be hunting the wild beasts or catching the fishes. The pulling of a wild fruit can hardly be called an imployment. The only thing amongst them which deserved the appellation of a business would be the chase. This is the age ofn hunters. | In process of time, as their numbers multiplied, they would find the chase too precarious for their support. They would be necessitated to contrive some other method whereby to support themselves. At first perhaps they would try to lay up at one time when they had been successful what would support them for a considerable time. But this could go no great length.—The most naturally contrivance they would think of,o would be to tame some of those wild animalls they caught, and by affording them better food than what they could get elsewhere they would enduce them to continue about their landp themselves and multiply their kind. Hence would arise the age of shepherds. They would more probably begin first by multiplying animalls than vegetables, as less skill and observation would be required. Nothing more than to know what food suited them. | We find accordingly that in almost all countries the age of shepherds preceded that of agriculture. The Tartars and Arabians subsist almost entirely by their flocks and herds. The Arabs have a little agriculture, but the Tartars none at all. The whole of the savage nations which subsist by flocks have no notion of cultivating the ground. The only instance that has the appearance of an objection to this rule is the state of the North American Indians. They, tho they have no conception of flocks and herds, have nevertheless some notion of agriculture. Their women plant a few stalks of Indian corn at the back of their huts. But this can hardly be called agriculture. This corn does not make any considerable part of their food; it serves only as a seasoning or something to give a relish to their common | food; the flesh of those animalls they have caught in the chase.—Flocks and herds therefore are the first resource men would take themselves to when they found difficulty in subsisting by the chase.

But when a society becomes numerous they would find a difficulty in supporting themselves by herds and flocks. Then they would naturally turn themselves to the cultivation of land and the raising of such plants and trees as produced nourishment fit for them. They would observe that those seeds which fell on the dry bare soil or on the rocks seldom came to any thing, but that those[s] which entered the soil generally produced a plant and bore seed similar to that which was sown. These observations they would extend to the different plants and | trees they found produced agreable and nourishing food. And by this means they would gradually advance in to the age of agriculture. As society was farther improved, the severall arts, which at first would be exercised by each individual as far as was necessary for his welfare, would be seperated; some persons would cultivate one and others others, as they severally inclined. They would exchange with one an other what they produced more than was necessary for their support, and get in exchange for them the commodities they stood in need of and did not produce themselves. This exchange of commodities extends in time not only betwixt the individualls of the same society but betwixt those of different nations. Thus we send to France our cloths, iron work, and other trinkets and | get in exchange their wines. To Spain and Portugall we send our superfluous corn and bring from thence the Spainish and Portuguese wines. Thus at last the age of commerce arises. When therefore a country is stored with all the flocks and herds it can support, the land cultivated so as to produce all the grain and other commodities necessary for our subsistance it can be brought to bear, or at least as much as supports the inhabitants when the superfluous products whether of nature or art are exported and other necessary ones brought in exchange, such a society has done all in its powerq towards its ease and convenience.

It is easy to see that in these severall ages of society, the laws and regulations with regard to property must be very different.— | In Tartary, where as we said the support of the inhabitants consist<s> in herds and flocks, theft is punished with immediate death; in North America, again, where the age of hunters subsists, theft is not much regarded. As there is almost no property amongst them, the only injury that can be done is the depriving them of their game. Few laws or regulations will <be> requisite in such an age of society, and these will not extend to any great length, or be very rigorous in the punishments annexed to any infringements of property. Theft as we said is not much regarded amongst a people in this age or state of society; there are but few opportunities of committing it, and these too can not hurt the injured person in a considerable degree.—But when flocks and herds come to be reared | property then becomes of a very considerable extent; there are many opportunities of injuring one another and such injuries are extremely pernicious to the sufferer. In this state many more laws and regulations must take place; theft and robbery beingr easily committed, will of consequence be punished with the utmost rigour. In the age of agriculture, they are not perhaps so much exposed to theft and open robbery, but then there ares manyt ways added in which property may be interrupted as the subjects of it are considerably extended. The lawsu therefore tho perhaps not so rigorous will be of a far greater number than amongst a nation of shepherds. In the age of commerce, as the subjects of property are greatly increased the laws must be proportionally multiplied. | The more improved any society is and the greater length the severall means of supporting the inhabitants are carried, the greater will be the number of their laws and regulations necessary to maintain justice, and prevent infringements of the right of property.

Having premised thus much, we proceed as we proposed to considerv propertyw acquired by occupation. The first thing to be attended to is how occupation, that is, the bare possession of a subject, comes to give us an exclusive right to the subject so acquired.—How it is that a man by pulling an applex should be imagined to have a right to that apple and a power of excluding all others from it—and that an injury should be conceived to be done when such a subject is taken for15 the possessor. From the system I have already explain’d,16 you | will remember that I told you we may conceive any injury was done one when an impartial spectator would be of opinion he was injured, would join with him in his concern and go along with him when he defend<ed> the subject in his possession against any violent attack, or used force to recover what had been thus wrongfully wrestedz out of his hands. This would be the case in the abovementioned circumstances. The spectator would justify the first possessor in defending and even in avenging himself when injured, in the manner we mentioned. The cause of this sympathy or concurrence betwixt the spectator and the possessor is, that he enters into his thoughts and concurrs in his opinion that he may form a reasonable expectation of using the fruit or whatever it is in what manner he pleases. | This expectation justifies in the mind of the spectator, the possessora both when he defends himself against one who would deprive him of what he has thus acquired and when he endeavours to recover it by force.—{The spectator goes along with him in his expectation, but he can not enter into the designs of him who would take the goods from theb 1st possessor.} The reasonable expectation therefore which the first possessor furnishes is the ground on which the right of property is acquired by occupation. You may askc indeed, as this apple is as fit for your use as it is for mine, what title have I to detain it from you. You may go to the forest (says one to me) and pull another. You may go as well as I, replied I. And besides it is more reasonable that you should, as I have gone already and bestowed my time and pains in procuring the fruit.17

Having explain’d the foundation on which occupation gives the property to the occupant, the next thing to be considered is at what time property is | conceived to begin by occupation.—Whether it be when we have got a sight of the subject, or when we have got it into our actual possession. In most cases the property in a subject is not conceived to commence till we have actually got possession of it. A hare started does not appear to be altogether in our power; we may have an expectation of obtaining it but still it may happen that it shall escape us. The spectator does not go along with us so far as to conceive we could be justified in demanding satisfaction for the injury done us in taking such a booty out of our power.—We see however that in this point lawyers have differed considerably. Trebatius, as Justinian informs us,18 conceived that an animall began to be our property when ever it was wounded; that this gave us a just title to it, and that one might claim it from any possessor rei vindicatio compelere ei judicabat.19 | Other more strict lawyers, as Proculus and Sabinus, were of opinion that it did not become ours till it came into our actual possession. Frederic Barbarossa, refining still more on Trebatius doctrine, made a distinction with regard to the manner in which the wound was given.20 If it was given with a missile weapon he judged that it did not immediately convey property; but if it was with a weapon held in ones hand, as a spear or sword, he judged that the beast, e.g. a wild boar, camed immediately under the property of the person who gave the wound. {It was without doubt very near being in his power and he conceived it to have been altogether.} In different countries there are different constitutions on this head. It was enacted by a law of the Lombards21 that a hart which was wounded, if killed in 24 hours after he received the wound, should belong partly to the person who gave the wound and partly to him who killd him, as the former was | conceived to have had a hand in the catching him. The part given to the wounder was I think a leg and 4 ribs. In the same manner, at this day, [in] the ships which go to the Greenland fishery share the whale that was wounded betwixt the ship who wounded and that which killed the whale.22 If the harpoon of any ship that was at the fishing the same season be found in the fish, a certain part is alotted to that ship as having by the wound contributed to the taking of the fish. In most cases however property was conceived to commence when the subject comes into the power of the captor. — — — — —

The next thing in order which comes to be treated of is, how long and in what circumstances property continues and at what time it is supposed to be at an end.

| At first property was conceived to end as well as to begin with possession. They conceived that a thing was no longer ours in any way after we had lost the immediate property of it. A wild beast we had caught, when it gets out of our power is considered as ceasing to be ours. But as there is some greater connection betwixt the possessor who loses the possession of the thing he had obtained than there wase before he had obtain’d <it>, property was considered to extend a little farther, and to include not only those animalls we then possessed but also those we hadf once possessedg though they were then out of our hands, that is, so long as we pursued them, and had a probability of recovering them.

If I was desirous of pulling an apple and had stretched out my hand towards it, but an other who was more nimble comes and pulls it before | me, an impartial spectator would conceive this was <a> very great breach of good manners and civility but would not suppose it an incroachment on property.—If after I had got the apple into my hand I should happen to let it fall, and an other should snatch it up, this would <be> still more uncivil and a very heinous affront, bordering very near on a breach of the right of property. But if oneh should attempt <to> snatch it out of my hand when I had the actuall possession of it, the bystander would immediately agree that my property was incroached on, and would go along with me in recovering it or preventing the injur<y> before hand, even suppose I should use violence for the accomplishing my design. Let us now apply this to thei case of the hunters. When | I start a hare, I have only a probability of catching it on my side. It may possibly escape me; the bystander does not go along with me altogether in an expectation that I must catch it; many accidents may happen that may prevent my catching it. If onej in this case should come and take the game I had started and was in pursuit of, this would appear a great tresspass on the laws of fair hunting; I can not however jus<t>ly take satisfaction of the transgressor. The forester may in some countries impose a fine on such an offender. If after I had taken the hare or other wild beast it should chance to escape, if I continued to pursue it and kept it in my view, the spectator would more easily go along with my expectations;k one who should prevent me in this pursuit would appear | to have tresspassed very heinously against the rules of fair hunting and to have approached very near to an infringement of the right of property. {But after it is out of my power, even tho I may possibly see it, there is no longer any connection betwixt it and me; I can have no longerl any claim to it any more than to any other wild animall, as there is no greater probability I should catch it.} But if he had violently or theftuously taken from me what I had actually in my possession, this would evidently be an atrocious transgression of the right of property such as might justify, in the eyes of the beholder, my endeavours to recover what I had been so wrongfully deprived of.—In this age of society therefore property would extend no farther than possession.

But when men came to think of taming these wild animalls and bringing them up about themselves, property would necessarily be extended a great deal farther. We may consider animalls to be of three sorts. 1st, Ferae, such as are always in a wild state. 2dly., Mansuefactae, [or those] which | are those which have been tamed so as to return back to us after we have let them out of our power, and do thus habitually; tho there be others of the same sort, as stags, hares, ducks, etc. of which there are some wild and others tame. 3dly, Mansuetae, which are such as are only to be found tame, as oxen. When men first began to rear domestick animalls, they would be all under the class of the mansuefactae, as there must have been others still wild. But even in this case it would be absolutely necessary that property should not cease immediately when possession was at an end. The proprietor could not have all those animallsm about him which he had tamed; it was necessary for the very being of any property of this sort that it should continue some what farther. They considered therefore | all animalls to remain in the property of him to whom they apertaind at first, as long as they retain’d the habit of returning into his power at certain times.23 And this continues still to be the case with regard to those animalls that are mansuetae, or what we properly call[ed] tamed.—{Hawks, stags, etc. when they no longer return into the power of their owner are supposed to cede to the occupant.} But in process of time, when some species of animalls came to be nowhere met with but in the state of mansuefactae, they lost that name and became mansuetae. A farther extention was by this means introduced into the notion of property, so as that all these animalls were esteemd to be in the property of their master as long as they could be distinguished to be his; altho they had for a long time ceased to come into his power, yet still they were considered as fully his property. This was no doubt a great extention of the notion of property. But a still greater followed | on the introduction of agriculture. It seems probable that at first, after the cultivation of land, there was no private property of that sort; the fixing of their habitations and the building of cities first introduced the division of land amongst private persons.24 —The notion of property seems at first to have been confined to what was about ones person, his cloaths and any instruments he might have occasion for. This would naturally be the custom amongst hunters, whose occupation lead them to be continually changing their place of abode.—{Charlevois tells us that a certain Canadian woman having a great string of Blank in MS.25 which serves for money amongst them was so extremely fond of it that she could never let it out of her sight. One day it happened that she carried it with her to a field where she was to reap her corn. There was no tree in her field, but one in that of her neighbour hard by. In this tree she hung up her string. Another woman, observing her, went and took it off. The owner of the string demanded it from her, she refused, the matter was referred to one <of the> chief men of the village, who gave it as his opinion [v.47] that in strict law the string belonged to the woman who took it off the tree, and that the other had lost all claim of property to it by letting it out of her possession. But that if the other woman did not incline to do very scandalous action and get the character of excessive avarice (an most reproachfull term in that country), she ought to restore it to the owner, which she accordingly did.}

The introduction of shepherds made their habitation somewhat more fixed but still very uncertain. The huts they put up have been by the consent of the tribe allowed to be the property of the builder. For it would not appear at first why a hut should be the property of one after he had left it more than | of another. A cave or grotto would be considered as belonging to him who had taken possession of it as long as he continued in it; but it would not appear that one had any right to it tomorrow night because he had lodged there this night. The introduction of the property of houses must have therefore been by the common consent of the severall members of some tribe or society. Hence in time the house and the things in it became to be considered as the property of the builder. Hence the Greek and Latin words for property, dominium and οἰκειον.26 {It is to be observed that even in the age of hunters there may be fixt habitations for the families, but property would not be extended to what was without the house.} But still property would not be extended to land or pasture. The life of a shepherd requires that he should frequently change his situation, or at least the place of his pasturing,o to find pasture for his cattle. The property of the spot he built on would be conceived to end as soon as he had left it, in the same manner | as the seats in a theatre or a hut on the shore belong no longer to any person than they are possessed by him. They would not easily conceive a subject of such extent as land is, should belong to an object so little as a single man. It would more easily be conceived that a large body such as a whole nation should have property in land. Accordingly we find that in many nations the different tribes have each their peculiar territory on which the others dare not encroach (as the Tartars and inhabitants of the coast of Guinea). But here the property is conceived to continue no longer in a private person than he actually poss<ess>ed the subject. A field that had been pastured on by one man would be considered to be his no longer than he actually staid on it.—Even after the | invention of agriculture it was some time before the land was divided into particular properties. At first the whole community cultivated a piece of ground in common; they divided the crops produced by this piece of ground amongst the severall inhabitants according to the numbers in each family and the rank of the severall individualls. The inclination of any single person would not be sufficient to constitute his property in any parcel of land if it were but for one season; the rest of the community would cry out against him as incroaching on and appropriating to himself what ought to be in common amongst them all. In the same manner as any corporation or society amongst us would not permit any of their body to set appart for his own use any part of their common field or any tree in it, etc., as they ought to | reap in common the fruit of these common’d subjects. {As a confirmation of this, wep learn from Tacitus27 that each nation who had any agriculture amongst them cultivated some spot of ground the product of which was divided amongst the members of the community.} The first origin of private property would probably be mens taking themselves to fixt habitations and living together in cities, which would probably be the case in every improved society. The field they would cultivate when living together in this manner would be that which lies most contiguous to them. As their place of abode was now become fixt, it would readily appear to them to be the easiest methodq to make a division of the land once for all, rather <than> be put to the unnecessary trouble of dividing the product every year. In consequence of this designr the principall persons of such a community, or state, if you please to denominate a set of men in this condition by that honourable appellation, would divide | the common land into seperate portions for each individuall or family. We find accordingly that Homer28 and Aristotle, whenever they give us an account of the settling of any colony, the first thing they mention is the dividing of the land. Aristotle29 too mentions the manner in which this was done. He tells as30 that the ground lying nearest to the new built city was divided into seperate parcells as it was most convenient for each, but that which was more remote was still allowed to remain common.s

One thing which strengthens the opinion that the property of land was settled by the chief magistrate posterior to the cultivation is that, in [the] this country, as soon as the crop is off the ground the cattle are no longer kept up or looked after but are turnd out on what they call the long tether; that is, they are let out to roam about as they incline. Tho this be contrary to Act of Parliament31 | yet the country people are so wedded to thet notion that property in land continues no longer than the crop[t] is on the ground that there is no possibility of getting them to observe it, even by the penalty which is appointed to be exacted against <?>.

This last species of property, viz. in land, is the greatest extention it has undergone. We shall hereafter consider in what shape it has been limited in different countries.

By the severall methods above mentiond property would in time be extended to allmost every subject. Yet there are still some things which must continue common by the rules of equity. Thus, first, wild beasts can not be a subject of property; to wit those which either by their swiftness or fierceness refuse to submit themselves into mens power; these are what the Roman lawyers called ferae naturâ, and also such as have not been tamed.

| The tyranny of the feudal government and the inclination men have to extort all they can from their inferiours, has brought property in some measure into these subjects. By the civil law and the constitutions of most countries in ancient times, game was considered as being free to every one. And this certainly is what is most agreable to reason. For no one can have any power over an animall of this sort, nor can he claim the property of it, because it pastures on his ground just now, for perhaps the next moment it may be on anotheru mans ground. But when the feudal government was established, which was the foundation and still prevails in some measure in all the governments in Europe, the king and his nobles appropriated to themselves every thing they could, without great hazard of giving umbrage to an enslaved people. Amongst other encroachments | it became the rule that wild animalls should belong only to the king and those of his lords to whom he gave the power of catching them. Accordingly in the time of Henry the 7th. a law was made that no one should kill game but on his own ground unless <?licensed> by the owners of the land;32 another was made in the time of King James 1st. by which no one who had not 100£ a year of land rent or a lease worth a 150£ for a long term of years asv 99, or some life rents, could kill game even on his own estate;33 and in the time of George the 1st and 2d it was madew punishable by a fine of 5£ st.x to have arms or game in ones possession unless he had the rent above mention’d;34 and by an other statute in this reign not only the magistrate but any informer had a title to claim the fine.35 —There can be no reason in equity given for this constitution; if one did the proprieter damage he might be | obliged to give him satisfaction, but when there is no danger of damage any one might catch game as well as the proprieter of the ground. The reason they give is that this prohibition is made to prevent the lower sort of people from spending their time on such an unprofitable employment; but the real reason is what we before mentioned, the delight the great take in hunting and the great inclination they have to screw all they can out of their hands. In the same manner the fish of the sea and rivers are naturally common to all; but the same incroaching spirit that appropriated they game to the king and his nobles extended also to the fishes. Thus all the larger fishes, as of greater importance, are considered as belonging only to the king or his vassals to | whom he has given the right of taking them. Whales, porpoises, sturgeons, etc. are of this sort. {These larger fish are all called royal.} Salmon,36 too, can not be taken unless the king has granted it by express charter. The fish no more than the game can become the subject of property; they are not in our power, nor can they be considered as belonging to an estate as they are often changing their place, but ought to be common to all.—An other encroachment made on the rights of the lower rank of people was made by the statu<t>es which enacted that what ever was wafe, as they called it (that is, being stolen was left by the thief), should if not claimed by the owner within a year be appropriated to the king or the lord of the land on which it was found, and to whom the king had given the Franchise of Wafes.37 This extended also to all subjects that had no master: ἀδεσποτα. In the same manner, those animalls that had strayed from their master and were found on any mans ground were not the property of the finder but of the lord of the manor. It is evident | that by the law of equity such possessions should be restored to the right owner in the same manner as any other subject, as a watch that can be known certainly to be his, which are restored whenever he can shew his property in them. The only reason that is given is that it is so constituted to make the people more careful in preventing strays and more attentive to claim them in due time; but allowing this to be the case, why should they not belong to the possessor, rather thanz be given to the king or the lord of the mannor, who can have no title to them, not even prescription itself.—In like manner, unless the king had granted a proprietor of land thea Franchise of Treasur<e> troff38 he could not take to himself the treasure found in his own ground, and far less what he found on anothers. These often made a good part of the kings revenues, for tho now they are seldom met with, yet formerly in those confused periods when property was very | insecure and it was dangerous to be known to have any money about one, as the laws could not assure of the possession of it, nothing was more common than for a man to bury what he had got together. At this day in Turky and the Moguls dominions every man almost has a treasure, and one of the last things he communicates to his heirs is the place where his treasure is to be found. In such times the right of treasure–troaf would be of considerable importance. The reason why the nobles and those of power established these constitutions was that the people could more easily be brought to bear with some incroachment in this way than in any other. One does not form such an attachment to a thing he has possessed for a short time (as is the case here) and has acquired by little labour as he does to what he has got by great pains and industry; and so will not think himself so highlyb injured in | being deprived of it.

Besides those things already mentioned there are many others that are to be considered as common to all, as they can not be lessend or impaired by use, nor can any one be injured by the use of them. Thus the air is necessary to be breathed by all, and is not rendered less fit or less in quantity for the use of others. Running water in like manner or the sea are by nature common to all.39 A fountain by the way side is not the worse that one has drunk from it, nor can the proprietor of the ground hinder any one from drinking out of it. But if indeed it should be in the midst of the field, one can be hindered by the proprietor, as he could not go to it without doing him damage (unless he have a servitude against the proprietors farm, ad aquam appellendi40 <)>.—In the same manner the water of rivers and the navigation of them, the navigation or right of sailing | on the sea, is common to all. No one is injured by such use being made of them by another; one who has ship in a certain station does not usurp the property of that spot; he only has the right to it when he possesses it; then indeed he can defend his right against any one who would displace him, but as soon as he leaves it the right cedes to the next occupant. {The sea coast in the same manner seems to be common to the whole community, and accession to it to belong to the whole body, but the king has usurped this to himself, in so much that in Lincoln shire,41 where frequent accessions and diminutions happen, a certain person having 100 acres added by the sea could not take possession of it tho his charter comprehended all the land betwixt that coast and Denmark, because that number of acres was not specified, but the whole ceded to the king.} Tho the right of navigation is in this manner naturally common to all, yet the nations and states who lye adjacent to any river or inlet of the sea have often usurped the jurisdiction imperium, tho not dominium or property, over them, so that they will not allow ships to enter them without their permission.42 The reason is because this would otherwise expose them to their enemies and strangers and let them into the heart of their country. They do not however pretend to any right to the water of these rivers, only to [the] restrict the navigation.

| It is only such arms of the sea which make but a small appearance compared to the land adjacent which are thus under jurisdiction, as the friths of Clyde,c Forth, and the Murray frith.43 The Baltick Sea, on the other hand, thod it is of a large extent, is brought under the jurisdiction of the King of Denmark, but this was not from being considered as part or appendage of the land, but had its beginning from the tribute he rais’d for the support of light houses. Both Sweden and Denmark, tho’ their territories on its banks have often been much larger than they are now, never exacted any tribute on that head. In the same manner as rivers and small inlets are considered to be a part of or appendagee of the land, so the sea and sea–coast come in like manner to be under jurisdiction. To44 that strangers are not allowed to navigate or fish near the coast | without express permission. This is particularly the case in such parts of the sea as are near any fort and within the range of its cannon, where no ships are allowed to pass or fish without acknowledging its jurisdiction. That strangers should not be allowed to fish has some foundation in nature, as what is got in this way is often the chieff part of the support of a large number of the inhabitants, and they would naturally think themselves injured if strangers should in<ter>rupt them. Besides this the fish in narrow seas and rivers are not unexhaustible. The restriction however on navigation and the appropriation of rivers by the community or state through whose territories it passes go on the foundation of accession, by which the smaller things cede to the larger to which they adhere.

{Accession comes next to be treated of. These two are the originall methods of acquiring property. The others are secondary, by which it is conveyed either from the dead to the living by will or succession, or by voluntary transference amongst the living.} This method of acquiring property has also undergone very considerable | alterations in the different ages of society. {In the age of hunters there was no room for accession, all property at that time consisting in the animalls they had caught.} In the age of shepherds accession could hardly extend to any thing farther than the milk and young of the animalls. They would naturally be given to the person who had tamed the animall. Tho perhaps he had not them in view, yet there would seem an impropriety in allowing the milk to any other. This as well as in many other cases goes on the impropriety that appears in it rather than any inconvenience. {It would appear ridiculous that the milk of an animall should remain common, after the animall had been tamed and appropriated by a certain person; we are naturally inclined to compleat or square ones property or any other right in the same manner as we would incline to square his land estate; we do not incline to have corners sticking into it.} Even the right of occupation seems as we said to be chiefly founded on this apparent impropriety. It is to be observed that the young of all animalls is supposed to be an accession to the mother rather than the father. The actions ofg conceiving, bearing, bringing forth, and suckling appear to produce a much stronger connection betwixt the young and the mother than the transitory act of begetting does with the | fathers. {Besides this, the young even for some time after its birth as well as the milk for ever seem to be a part and but a small part of the mother, and accordingly goes to the proprietor of the whole as a part of it.—} There is no exception to this but in the swans, where it is the rule that part of the young goes to the proprietor of the male and part goes to that of the female; the reason given is that as the male cohabits only with one female he could be of no benefit to his owner unless he got part of the young he had produced. Amongst men too the child is considered as the property of the mother unless where she is the property of the husband, and thenh the ofspring belong to the father as an accession to the wife. This was the case in the old law in the state of wedlock and in this point is still so, but naturall children are the property of the mother and generally take her name.—{Severalls ofi the Roman lawyers did not give the name of accession to the right the dominus of the female had to the young, they called it jus ventris;45 but what is said above shows that it has all the circumstances necessary to constitute the right of accession.}

Tho the opportunities of accession are but very few in the age of shepherds, yet they multiply to a number almost infinite when agriculture and private | property in land is introduced. Then when the land was divided by the common consent of the state, the thing they would have in view would be to give each the property of the land in order that he might raise crops on it. But it would naturally arise from his having this principall part of property that he should have the property of all the trees, stones, and mineralls also that were found in it. The reason at first might be that these could not be come at without injuring the surface. But as to mineralls, a mine in one farm might be extended to that of another proprietor without injuring the surface, and would rather serve as a drain.j But the connection betwixt the surface and the subterraneous parts is so great that it would soon come to be the rule that every thing betwixt the surface and to the center of the earth, if he could go so far, should be the property of the owner of the surface.—{The right that was at first conveyd to the private proprietor was realyk that of plowing, sowing, reaping the fruits, or of pasturing upon it. This would be more easily expressed and as well conceived by saying that he had thel property of the land, and the same would be the method or form of expression in sales or transference. As the surface was the thing of which the property thus camem to be transfered, the soil and all in it would soon be considered as appertaining to the same proprietor. Tho perhaps the soil and its contents might be come at without injuring the surface, the mines serving rather as drains to carry off the superfluous moisture, yet propriety would make this be looked on as an injustice and introduce then laws which now take place, viz that the whole soil belongs to the proprietor of the surface.} There is this difference | also betwixt the civil and fewdal law, that by the former all mines were considered as the property of the possessor of the ground. The lands in those countries were all what we call allodial,46 i.e.o held of no one, but were intirely the property of thep proprietor, so that the state could not limit the use he was to make of any part of his estate. But in the feudal governments, the king was considered as the dominus directus, which had then a considerable benefit attending on it. The possessor<s> as domini utiles were only his tenants, as they are called, and held of him. As therefore a tenant who got a lease of a woodland was supposed, altho that was not expressly specified, to [to] have a right to the brush and underwood but not to the timber trees which were reserv’d for the proprietor, so the vassals were accounted as having a right of property to the mines of lesser value, as coal, lead, tin, iron, copper, etc. but | those of silver and gold were con<si>dered as reserved by the dominus directus, that is, the king, for his own use. And thus it came to pass that one who holds of the king may work for his own account the mines of lesser value, but not the gold and silver mines unless that be expressly granted by charter. — — — —

In the same manner as the soil and other substances were considered as an accession to the surface, whatever was added by the retiring of the sea or the shifting of a river was consideredq as belonging to the proprietor of the field next adjoining. But these accessions hasr been differently regulated in different countries. In high countries, as Italy and the most part of Great Britain, where the coast and the banks of the rivers are very high above the waters, the accessions | to the land can not be very considerable either from the sea retiring of the,s or from the shifting of rivers; in all such countries the accessions of this sort, as being but of little consequence in respect of the land adjacent, was considered as an accession to the property of that ground. But in flat countries as Egypt and the countries on the banks of the Ganges, and the Low Countries, the seat often retire<s> or the rivers change their course so considerably as that the tracts of ground thus added can not be considered as an accession to the neighbouring field, but is the property of the state.47 In the fens of Lincoln shire, where the additions are by law considered asu accessions to the neighbouring ground, yet even here the field must be particularly specified otherwise the addition goes to the crown.

In all cases of this sort there is no | great difficulty in determining the proprietor of the accessions. The only case where there is any perplexity is where the accession is the property of a different personv from the proprietor of the subject. {As when one makes a ship of anothers wood, wine of anothers grapes, or a cup of anothers metall.} Thus when one builds a house on another mans ground, it is a question whether the house should be considered as an accession to the ground or the ground to the house. It is to be observed here that in all cases where the proprietors of the accession and principall are different, the question is not which of them shall have the sole right to both, but which shall be considered as the principall and have the right to claim the other, giving a recompensew <to> the proprietor of it as far as he is thereby benefitted. Thus in the case above mentioned the matter in question is whether the house shall be considered as the principal, and consequently the builderx of it will have a right to possess it after paying a reasonable price | for the ground or an adequate rent, or whether on the other hand the proprietor of the ground should have a right to the house, paying the builder as much as he is benefitted by it (quantum locupletior factus est48 <)>, altho’ perhaps this may be greatly under the expense laid out upon it. In this case it is determin’d by all lawyers that the proprietor of the ground should be considered as having the right to claim the house on the condition above mentioned. It is true the house will in most cases be of greater value than the ground it stands upon, but the rule which is attended to here is that no one by the deed of another should be deprived of his property. Nemo ex alienâ actione rem suam amittat.49 This generall rule is suited well enoughy to most cases, but there are some where the determination agreable to it would appear very hard. If one should draw a fine painting on the wood or canvass of another man | it would appear hard that the painter should lose this work, which might be of great value, because it was considered as an accession to a subject of so inconsiderable value as the wood or canvass. Accordingly tho Proculus and Blank in MS.z who were of the more moderate lawyers gave the right of accession to the painter, yet the more strict ones, as Cassius and Sabinus,50 adhered to the generall rule,a saying that as the picture had not altered the wood, it was to remainb the property of the former proprietor.c51 {The picture was not considered as altering the substance; the board was considered to be still a board, and the reason probably was that as their walls were all either plaster or stone the only thing that would be hung on them of that sort would be the pictures, which were accordingly distinguished by the name of tabulae.} In many other cases the same difficulty would occurr, as when one made wine or ale of an other mans grapes or barley, or ifd he made a cup of another mans silver, or a ship of his wood. The strict lawyers decreeed that the proprietor of the substance should continue to be so even after it had | assumed the new form. The others were of opinion that the specificator should in these cases be reckon’d the proprietor of the principall part.52 But that they might not contradict their generall rules they said that this was not properly a species of accession, but the substance produced was a new thing, res nova in rerum natura, that the grapes turnd into wine were no longer grapes, the barley was become ale and the silver a cup, and therefore could not be claimed by the proprietor of the substance so reasonably as by him who had as it were produced it. Paulus53 and after him Tribonian54 and Justinian took what they thought a middle way, though more whimsicall than either of the others. The rule they made was that when the subject could be reduced into its former state it should be the property of the former proprietor | but, when it could not, the substance should be considered as an accessary to the form. From this rule metalls, into whatever curious form they were wrought, would still bee considered as a part of the former proprietorsf goods, but the ship, the wine, and the ale should be accessions to the workg of the specificator.—This rule has no foundation in reason, and has proceeded only from the smallh connection there is betwixt the substance and the proprieter, when it can be reduced to its former state, more than there is when it can not, as the substance is still the same. But in many cases this rule would not be at all agreable to reason, as in the case of the engraving. It seems more agreable to reason that the substance should in many of these cases be considered as an accession to the form, because in this way the | proprieter of the substance might be compleatly recompensed by having the profit of the specificator paid him; whereas if the dominus substantiae should have the accessioni <to> it, the specificator would perhaps lose considerably by receiving only as much as the dom. subst. was enriched by his work. This might often happen with regard to the painting, the sculptor, etc. {This determination may show us on what slight connection in the imagination the lawyers formed their opinions.}

There are many other cases pretty similar to this, as when a gem is set in another mans gold; here tho the gem is probably the most valuable, yetj it was considered as an accession to it, being applied or set in it in order to be an ornament to it. They however consideredk the gem was no longer an accessory to the gold than it was thus fixt in it | and that when seperated it became the property of its former master. For this reason they contrived an evasion of the strict law, and gave the ownerl of the gem an action against the other (ad exhibendum), that is, to get a sight of it, and then as it would be seperated he might claim it.55 Reason here likewise seems to be on the side of the owner of the gem,m as he might not be sufficiently indemnified for his gem, tho the other would be recompensed for his gold, as the whole value of it would be gain to the possessor of the conjunct ring.

These two maken all the originall methods of acquiring property. The 1st of those called derivative,56 by which the property of a thing already in the possession of some other <?> is Prescription | {Prescription, that is, the right one has to any subject he has possessed a long time which otherwise without this possession would not have been his. The origin of the introduction of this manner of acquiring property seems to be that}o after property was extended beyond possession, and goods werep thought to remain in the property of the former possessor longer after they were out of his power, it was found necessary that some length of possession should transfer the right of property, that the possessor might be assured he had then the full right to the goods; otherwise property would be always uncertain. The foundation of this right is the attachment the possessor may be supposed to have formed to what he has long possessed; and the detachment of the former possessers affection from whatq had for a long time been altogether out of his power.57 {This right of prescription is in fact derived from the same principles as that of occupation. For in the same manner as the spectator can enter into the expectations of the 1st occupant that he will have the use of the thing occupied, and thinkr he is injured by those who would wrest it from him; in the same manner, the right of prescription is derived from the opinion of the spectator that the possessor of a long standing has a just expectation that he may use what has been thus possessed, and that the form<er> proprieter and has so far lost all right to it, has no expectation of using it,s as that it would appear injurious in him to deprive the present possessor. [v.77] That these two principles, of the attachment of the possessor and the detachment of the former proprietor, are the grounds on which this right is founded is greatly confirmed by the different requisites that have been introduced to make possession of a long continuance transfer the right of property.}

It is necessary that the possessor should be bona fide, that is, should have an opinion that he is the lawfull proprietort of the subject; if he knows that it belongs to another the greatest length of time can not give him the property of it. Be|sides this it is necessary that he should possess it justo titulo, i.e. that he should have got possession of it in a manner by which property can lawfully be transferred. Thus if one byes any piece of goods in the market or elsewhere, he has a justus titulus to this and may reasonably think he has the right of property to it. But if he should find e.g. a watch on the road and should not give publick notice that such a thing was found, though he should possess it for 100 years, and the owner or his heirs afterwards come to the knowledge of it, he would be obliged to restore it.u — {It will seldom happen that one will think he has a right to any thing, unless he has come by it justo titulo. But if one should be so foolish, the possession would not give him a right to it. In many cases however anyv title is sufficient altho it be very slight. Amongst moveable goods no title is required, but possession alone bona fide gives the right; and in immoveables, a seasin58 from a writ of clare con.59 } A land estate can not be possessed without some title. As the king was considered as the proprietor of all lands they could not be given to another without some token for the transference of the right. This was | a charter or parchment. Accordingly one can not enter to an inheritance of a land estate unless he can produce some title he has to it. But here a very slight one will suffice as the seasing his father had when he was served heir. {The forementioned requisites tend to make it certain that the possessor had formed an attachment to the thing he possessed. That it might be certain the affection of the former proprieter had been detached from it, it is, etc.} It is also necessary that the possession be uninterupted, and that not only in a just but even in an un