第74章

There is an aphorism of Savigny which has been sometimesthought to countenance a view of the origin of property somewhatsimilar to the theories epitomised by Blackstone. The greatGerman jurist has laid down that all Property is founded onAdverse Possession ripened by Prescription. It is only withrespect to Roman law that Savigny makes this statement, andbefore it can fully be appreciated much labour must be expendedin explaining and defining the expressions employed. His meaningwill, however, be indicated with sufficient accuracy if weconsider him to assert that, how far soever we carry our inquiryinto the ideas of property received among the Romans, howeverclosely we approach in tracing them to the infancy of law, we canget no farther than a conception of ownership involving the threeelements in the canon -- Possession, Adverseness of Possession,that is a holding not permissive or subordinate, but exclusiveagainst the world, and Prescription, or a period of time duringwhich the Adverse Possession has uninterruptedly continued. It isexceedingly probable that this maxim might be enunciated withmore generality than was allowed to it by its author, and that nosound or safe conclusion can be looked for from investigationsinto any system of laws which are pushed farther back than thepoint at which these combined ideas constitute the notion ofproprietary right. Meantime, so far from bearing out the populartheory of the origin of property, Savigny's canon is particularlyvaluable as directing our attention to its weakest point. In theview of Blackstone and those whom he follows, it was the mode ofassuming the exclusive enjoyment which mysteriously affected theminds of the fathers of our race. But the mystery does not residehere. It is not wonderful that property began in adversepossession. It is not surprising that the first proprietor shouldhave been the strong man armed who kept his goods in peace. Butwhy it was that lapse of time created a sentiment of respect forhis possession -- which is the exact source of the universalreverence of mankind for that which has for a long period defacto existed -- are questions really deserving the profoundestexamination, but lying far beyond the boundary of our presentinquiries.

Before pointing out the quarter in which we may hope to gleansome information, scanty and uncertain at best, concerning theearly history of proprietary right, I venture to state my opinionthat the popular impression in reference to the part played byOccupancy in the first stages of civilisation directly reversesthe truth. Occupancy is the advised assumption of physicalpossession; and the notion that an act of this descriptionconfers a title to "res nullius," so far from beingcharacteristic of very early societies, is in all probability thegrowth of a refined jurisprudence and of a settled condition ofthe laws. It is only when the rights of property have gained asanction from long practical inviolability and when the vastmajority of the objects of enjoyment have been subjected toprivate ownership, that mere possession is allowed to invest thefirst possessor with dominion over commodities in which no priorproprietorship has been asserted. The sentiment in which thisdoctrine originated is absolutely irreconcilable with thatinfrequency and uncertainty of proprietary rights whichdistinguish the beginnings of civilisation. Its true basis seemsto be, not an instinctive bias towards the institution ofProperty, but a presumption arising out of the long continuanceof that institution, that everything ought to have an owner. Whenpossession is taken of a "res nullius," that is, of an objectwhich is not, or has never been, reduced to dominion, thepossessor is permitted to become proprietor from a feeling thatall valuable things are naturally the subjects of an exclusiveenjoyment, and that in the given case there is no one to investwith the right of property except the Occupant. The Occupant inshort, becomes the owner, because all things are presumed to besomebody's property and because no one can be pointed out ashaving a better right than he to the proprietorship of thisparticular thing.

Even were there no other objection to the descriptions ofmankind in their natural state which we have been discussing,there is one particular in which they are fatally at variancewith the authentic evidence possessed by us. It will be observedthat the acts and motives which these theories suppose are theacts and motives of Individuals. It is each Individual who forhimself subscribes the Social Compact. It is some shiftingsandbank in which the grains are Individual men, that accordingto the theory of Hobbes is hardened into the social rock by thewholesome discipline of force. It is an Individual who, in thepicture drawn by Blackstone, "is in the occupation of adetermined spot of ground for rest, for shade, or the like." Thevice is one which necessarily afflicts all the theories descendedfrom the Natural Law of the Romans, which differed principallyfrom their Civil Law in the account which it took of Individuals,and which has rendered precisely its greatest service tocivilisation in enfranchising the individual from the authorityof archaic society. But Ancient Law, it must again be repeated,knows next to nothing of Individuals. It is concerned not withIndividuals, but with Families, not with single human beings, butgroups. Even when the law of the State has succeeded inpermeating the small circles of kindred into which it hadoriginally no means of penetrating, the view it takes ofIndividuals is curiously different from that taken byjurisprudence in its maturest stage. The life of each citizen isnot regarded as limited by birth and death; it is but acontinuation of the existence of his forefathers, and it will beprolonged in the existence of his descendants.