society, be well denominated, juvenile rights. In the progress of society toward maturity, the same thing happens to them, that happens to the juvenile passions and appetites of an individual. Many little passions and appetites exist in infancy and early youth, which, though necessary and proper for that state, are, nevertheless, unbecoming the state of manhood. These are never given up by any specific act of the mind; but, agreeable to the constitution of nature, give place in the progress of the individual, to passions and appetites proper to an advanced state, and one after another become extinct.

I am apprehensive that the legal notion of the necessity of a consideration to the validity of a contract introduced or has, at least, long supported the opinion that men, on entering into civil society, give up a part of their natural rights, their natural liberty, as a consideration for the security of the ramainder. Writers on government have been anxious to discover, on the part of the people, some consideration given for the right of protection and the right of justice. While government is supposed to be finally established, not by a compact between the individuals of the people, but between the people and the rulers, this appeared to be a matter of great importance; but it can be of no moment, when it is understood that all legitimate government is produced by the people entering into a compact among themselves for that purpose. There is no occasion to look for any consideration for the duty of obedience to the laws on the one part, or a just and equal consideration on the other, but the mutual and inviolable obligations of such compact as enjoined by the laws of social nature.

I am happy to find one authority in favor of the opinion here advocated—the authority of Montesquieu himself, equal to a host. In treating of a subject, which led him to make a comparison between a state of individual independence, the supposed state of nature, and a state of civil government, he says.* "Liberty principally consists, in not being forced to do a thing, which the laws do not oblige ; people are in this state only as they are governed by civil laws; and because they are governed

by civil laws, they are free. Hence it follows, that princes who live not among themselves, under civil laws, are not free; they are governed by force, they may continually force or be forced." Sovereign princes are, in respect to each other, in a state of natural independence. In another place he observes.* "As men have given up their natural independence, to live under political laws; they have given the natural community of good, to live under civil laws; by the first they acquired liberty, by the second property." From these passages it appears that Montesquieu differed from other writers, in his opinion of the liberty to be enjoyed in the two states. He clearly supposes, that man, on entering into civil society, makes an acquisition of liberty, without any sacrifice; that he thereby secures himself, from the danger of deprivation by force, of the common rights of his nature.

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Still it may be urged, that if no rights are necessarily sacrificed by men, on entering into the civil state, yet it must be acknowledged that in most of the governments that now exist, or ever have existed, many rights are established which do not originate in any natural principles, the exercise and enjoyment of which, by the few who possess them, is a restraint, and often a violation of the common and natural rights of all others. This is true of all governments, that have established ranks and privileges, whether hereditary or for life, whether annexed, to persons and families, or estates. These factitious rights have been assimilated to the natural rights, particularly to the right of property, and have followed the same laws; but they all have their origin, not in the principles of nature, but in the inventions of men. They have no place in a government founded in true natural principles; and we are treating of natural rights as it respects such governments only.

In every government formed and administered on just and natural principles, all the secondary and subordinate rights, both civil and political, are but species of one or other of the great primary rights;—the right of personal liberty, personal security, or of private property, modified and adapted to the state of

*Sp. L. B. xxvi Ch. 15.

society. It needs no arguments, to prove that all the civil rights, which a man in the civil state has to a remedy for every case of injury, whether direct or consequential, relating to his freedom from restraint, his life, his reputation, or his propertywhether the injury proceed from violence, from fraud neglect or breach of trust, or from the non-fulfilment of any lawful agreement, either express or implied, they relate either to his person or his property, and fall under one or the other of those primary rights.

Those rights which we have denominated political rights, are but the modified rights of self government, which belongs to natural liberty,-"That right which nature gives to all mankind, of disposing of their persons and property, after the manner they shall judge most consonant to their own happiness.” Now all the laws of civil society affect either the person or property. In every government where the people have no voice in framing the laws, whether the law of the constitution or of the municipal code, they are, so far as those laws extend, deprived of the right of self government. Where the people have a voice in framing and administering the laws, either by themselves, or by their representatives, accountable to them for their conduct, they enjoy all that right of self government, which the laws of nature permit in civil society. On a careful review of the whole, we arrive at this fair and undeniable conclusion, that the rights of man are all relative to his social nature, and that the rights of the individual exist, in a coincidence only with the rights of the whole, in a well ordered state of society and civil government.

CHAPTER II.

Of the right of property.

The right of property makes so great a figure in the institutions and laws of every country, that in a work like the present, the origin of that right, and the foundation upon which it is so universally established are deserving of a very particular investigation.

Judge Blackstone observes, "there is nothing which so universally strikes the imagination, and engages the attention of mankind, as the right of property, that sole and despotic dominion which one man claims and exercises over the external things of this world, in exclusion of every other individual in the universe," and he might have added, nothing has so much employed the labor, attention, and researches of jurists, statesmen, and legislators. The right, although under different modifications, is recognized in every state of society, from that of the rudest savage, up to the highest state of civilization and refinement. It seems then, a just conclusion, that a right, so universally acknowledged, has its foundation in the laws of nature, in the social nature of man. Indeed it is conceded by all to be a natural right; but I think, most writers on the subject have in their researches, stopt short of the true origin.

A brief notice of the opinions of some of the principal of those writers will not be wanting in entertainment or instruction. They have generally agreed to consider occupancy, as one thing necessary to the commencement of the right of property in the thing to be appropriated; but that occupancy alone, is not sufficient for its completion. Mr. Locke maintains, that as every man's time and labor is something that is his own, he, by the very act of occupancy, mixes with the thing that something of his own, which cannot afterwards be taken from him without

injustice. But it is difficult to conceive how, or by what mysterious operation a substance not mine before should become my exclusive property, on my mixing with it something that is mine. Others, as Grotius and Puffendorf, have held that the right of property by occupancy is founded on a tacit consent of mankind, that the first occupant, should become the owner. That a custom introduced and established by the tacit consent of any society is a law of that society; which may secure the property, is true,--and when it has become a confirmed custom, that the first occupant shall be considered the owner, occupancy will become a proof of the right; but this does not account for the right among men, which must accompany or precede the custom which attaches upon it.

Judge Blackstone* derives the right of private property from occupancy; but first derives to man a general and common right of property in every thing on, which that right can attach, from an original grant of the Creator to man, that he should have dominion over all the earth, and over the fish of the sea, and over the fowls of the air, and over every living thing that moveth upon the earth. This does not, however, assist us in the least, in solving the question, how, if all have a common property in a thing, the occupation of a part by one should, sever that part from the common stock, and without the consent of the others, vest an exclusive right in the occupant. It rather enhances the difficulty; what the author considers, in a technical sense, as the grant of a common property, is to be taken as an expression of man's superiority and a declaration of the intention of the laws of nature, established at the creation, that man was to have the use of all these things in such way and manner, with such use of rights and enjoyment as shall be suited to his nature and situation, and with such regulations and modifications, as he should devise, leaving to him the discovery and application of those laws under the guidance of reason and experience.

It is not necessary to suppose, nor is it true, that all things were the common property of man; but all were intended for

*2 Comm. p. 2.

+ Gen. i. 28.

*