Blackstone on Property (1753)
Source: Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II. Chapter: CHAPTER I.: OF PROPERTY, IN GENERAL.
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The former book of these commentaries having treated at large of the jura personarum, or such rights and duties as are annexed to the persons of men, the objects of our inquiry in this second book will be the jura rerum, or those rights which a man may acquire in and to such external things as are unconnected with his person. These are what the writers in natural law style the rights of dominion, or property, concerning the nature and original of which I shall first premise a few observations, before I proceed to distribute and consider its several objects.
In the beginning of the world, we are informed by holy writ, the all-bountiful Creator gave to man “dominion over all the earth, and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth *
These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them had it been possible for mankind to have remained in a state of primeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the ancient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein “erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.”(b) Not that this communion of goods seems ever to have been applicable, even in the earliest stages, to aught but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer:(c) or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force: but the instant that he *
But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world be continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that be quitted possession; if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man’s house and home-stall: which seem to have been originally mere *
The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature, and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point. And therefore the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, “because he had digged that well.”(e) And Isaac, *
All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seize upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the east; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages, and which, Tacitus informs us, continued among the Germans till the decline of the Roman empire.(g) We have also a striking example of the same kind in the history of Abraham and his nephew Lot.(h) When their joint substance became so great that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose:—“Let there be no strife, I pray thee, between thee and me. Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then I will go to the right; or if thou depart to the right hand, then I will go to the left.” This plainly implies an acknowledged right, in either, to occupy whatever ground he pleased, that was not preoccupied by other tribes. “And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered everywhere, even as the garden of the Lord. Then Lot chose him all the plain of Jordan, and journeyed east; and Abraham dwelt in the land of Canaan.”
As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants: and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and its spontaneous produce destroyed, without any provision for future supply or succession. It therefore became necessary to pursue some regular method of providing a constant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connection and consequence, introduced and established the idea of a more permanent property in the soil than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities without the assistance of tillage; but who would be at the pains of tilling it, if another might watch an opportunity to seize upon and enjoy the product of his industry, art, and labour? Had not therefore a separate property in lands as well as movables been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey, which, according to some philosophers, is the genuine state of nature. *
The only question remaining is, how this property became actually invested: or that it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to everybody, but particularly to nobody. And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands, that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement.1 However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued *
Property, both in lands and movables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shows an intention to abandon it; for then it becomes, naturally speaking, publici juris once more, and is liable to be again appropriated by the next occupant. So if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seize it to his own use. But if he hides it privately in the earth, or other secret place, and it is discovered, the finder acquires no property therein; for the owner hath not by this act declared any intention to abandon it, but rather the contrary: and if he loses or drops it by accident, it cannot be collected from thence that he designed to quit the possession; and therefore in such a case the property still remains in the loser, who may claim it again of the finder. And this, we may remember, is the doctrine of the law of England with relation to treasure trove.(i)
But this method of one man’s abandoning his property, and another seizing the vacant possession, however well founded in theory, could not long subsist in fact. It was calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another, who was ready to give in exchange for it some equivalent that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance; which *
The most universal and effectual way of abandoning property, is by the death of the occupant: when, both the actual possession and intention of keeping possession ceasing, the property which is founded upon such possession and intention ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him: which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for, then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition *
The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right.4 It is true, that the transmission of one’s possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society; it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that its immediate original arose not from speculations altogether so delicate and refined, and, if not from fortuitous circumstances, at least from a plainer and more simple principle. A man’s children or nearest relations are usually about him on his *
While property continued only for life, testaments were useless and unknown: and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will; till at length it was found, that so strict a rule of inheritance made heirs disobedient and head-strong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing of one’s property, or a part of it, by testament; that is, by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased, which we therefore emphatically style his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of one-third of his movables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the Eighth; and then only of a certain portion: for it was not till after the restoration that the power of devising real property became so universal as at present.5
Wills therefore and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid: neither does any thing vary more than the right of inheritance under different *
This one consideration may help to remove the scruples of many well-meaning persons who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had by nature a right to succeed to his father’s lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person, who from the result *
But, after all, there are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such also are the generality of those animals which are said to be feræ naturæ, or of a wild and untamable disposition; which any man may seize upon and keep for his own use and pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards.
Again: there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands; such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels *
[(a) ] Gen. l. 28.
[(b) ] Justin. l. 43, c. 1.
[(c) ] Barbeyr. Puff. l. 4, c. 4.
[(d) ]Quemadmodum theatrum, cum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occuparii. De Fin. l. 3, c. 20.
[(e) ] Gen. xxi. 30.
[(f) ] Gen. xxvi. 15, 18, &c.
[(g) ]Colunt discreti et diversi; ut fons, ut campus, ut nemus placuit. De mor. Germ. 16.
[(h) ] Gen. c. xiii.
[1 ] But it is of great importance that moral obligations and the rudiments of laws should be referred to true and intelligible principles, such as the minds of serious and well-disposed men can rely upon with confidence and satisfaction.
Mr. Locke says “that the labour of a man’s body and the work of his hands we may say are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” On Govt. c. 5.
But this argument seems to be a petitio principii; for mixing labour with a thing can signify only to make an alteration in its shape or form; and if I had a right to the substance before any labour was bestowed upon it, that right still adheres to all that remains of the substance, whatever changes it may have undergone. If I had no right before, it is clear that I have none after; and we have not advanced a single step by this demonstration.
The account of Grotius and Puffendorf, who maintain that the origin and inviolability of property are founded upon a tacit promise or compact, and therefore we cannot invade another’s property without a violation of a promise or a breach of good faith, seems equally, or more, superfluous and inconclusive.
There appears to be just the same necessity to call in the aid of a promise to account for or enforce every other moral obligation, and to say that men are bound not to beat or murder each other because they have promised not to do so. Men are bound to fulfil their contracts and engagements, because society could not otherwise exist; men are bound to refrain from another’s property, because likewise society could not otherwise exist. Nothing therefore is gained by resolving one obligation into the other.
But how or when, then, does property commence? I conceive no better answer can be given than by occupancy, or when any thing is separated for private use from the common stores of nature. This is agreeable to the reason and sentiments of mankind prior to all civil establishments. When an untutored Indian has set before him the fruit which he has plucked from the tree that protects him from the heat of the sun, and the shell of water raised from the fountain that springs at his feet,—if he is driven by any daring intruder from this repast, so easy to be replaced, he instantly feels and resents the violation of that law of property which nature herself has written upon the hearts of all mankind.—Christian.
[2 ] All the writers on international law concur in the doctrine that actual occupancy is essential to perfect the title to land newly discovered and vacant. Puff. l. 4, c. 4. Vat. l. 1, c. 15. Grotius, l. 2, c. 3. It is important to remark that, so far at least as regards land, the first discoverer and occupant acquires no title to himself, but to the nation to which he belongs or under whose flag he sails. All private property in land is derived from the sovereign of the country, either directly or remotely. Among the aboriginal inhabitants of North America there was no private property in land; but the territory or hunting-grounds belonged to the tribe, who alone had the power to dispose of them. In the confederacy of the Six Nations, this power was vested in the general council-fire, so that the separate tribes had no right to sell or transfer. Something like this is discoverable in the earliest accounts we have of the laws of the savage inhabitants of ancient Europe. Property in land was first in the nation or tribe, and the right of the individual occupant was merely usufructuary and temporary. 2 Kent’s Com. 320.—Sharswood.
[(i) ] See book i. p. 295.
[3 ] Upon whatever principle the right of property is founded, the power of giving and transferring seems to follow as a natural consequence: if the hunter and the fisherman exchange the produce of their toils, no one ever disputed the validity of the contract or the continuance of the original title. This does not seem to be aptly explained by occupancy; for it cannot be said that in such a case there is ever a vacancy of possession.—Christian.
[(k) ] It is principally to prevent any vacancy of possession that the civil law considers father and son as one person; so that, upon the death of either, the inheritance does not so properly descend, as continue in the hands of the survivor Ff. 28, 2, 11.
[4 ] I cannot agree with the learned commentator that the permanent right of property vested in the ancestor himself (that is, for his life) is not a natural, but merely a civil, right.
I have endeavoured to show (Note 1) that the notion of property is universal, and is suggested to the mind of man by reason and nature, prior to all positive institutions and civilized refinements. If the laws of the land were suspended, we should be under the same moral and natural obligation to refrain from invading each other’s property as from attacking and assaulting each other’s persons. I am obliged also to differ from the learned judge, and all writers upon general law, who maintain that children have no better claim by nature to succeed to the property of their deceased parents than strangers, and that the preference given to them originates solely in political establishments. I know no other criterion by which we can determine any rule or obligation to be founded in nature than its universality, and by inquiring whether it is not, and has not been, in all countries and ages, agreeable to the feelings, affections, and reason of mankind. The affection of parents towards their children is the most powerful and universal principle which nature has planted in the human breast; and it cannot be conceived, even in the most savage state, that any one is so destitute of that affection and of reason, who would not revolt at the position that a stranger has as good a right as his children to the property of the deceased parent.
Hæredes successoresque sui cuique liberi seems not to have been confined to the woods of Germany, but to be one of the first laws in the code of nature; though positive institutions may have thought it prudent to leave the parent the full disposition of his property after his death, or to regulate the shares of the children when the parent’s will is unknown.
In the earliest history of mankind we have express authority that this is agreeable to the will of God himself:—And behold, the word of the Lord came unto Abraham, saying, This shall not be thine heir; but he that shall come out of thine own bowels shall be thine heir. Gen. c. xv.—Christian.
[(l) ] Gen. xv. 3.
[5 ] By 32 Hen. VIII. c. 1, all socage lands were made devisable, and two-thirds of lands of military tenure. When these at the restoration were converted into socage tenure, all lands became devisable, some copyholds excepted. See p. 375.—Christian.
[6 ] Mr. Preston, commenting upon the passage in the text, says, “By it must be understood that the father cannot succeed to his son merely in the character and relation of father. In any other sense, it is not by any means accurate to say the father cannot, ‘by any the remotest possibility,’ succeed to the son as his immediate heir. It seems to have been Blackstone’s intention to deny that there were any possible means by which the father could succeed as immediate heir to his son. A contrary doctrine, however, is clearly established. It has been held that the father may be immediate heir to his son as the second-cousin of the son. When a father would be entitled to be heir as cousin to the son if he did not sustain the relation of father, he is not excluded merely on the ground that he is the father. Suppose, then, two cousins to intermarry, and that there is issue of that marriage a son, who purchases lands and dies; in inquiring for the heir to the son, it is a decisive objection to the claim of the father that he is the father, as often as the question is whether he shall be preferred to the uncle or great-uncle of the son, on the part of the father. But let the paternal line fail, and then recourse must be had to the maternal line. In that line the father may succeed as a cousin to his son.” Essay on Abst. ii. 449.
Since this note was first published, it has been enacted by the statute of 3 & 4 Gul. IV. c. 106, that every lineal ancestor shall be capable of being heir to any of his issue, and be preferred to collaterals.—Hoveden.
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