hand, good, or, on the other, evil. But this is a roundabout way of getting at the truth. Whether an institution or a course of action be useful or not, must be a matter of opinion. And if a matter of opinion, men will differ about it ; and the opinion of one man, or even of the majority of men, will have no authority over others. God has revealed his will in his Word, and in the constitution of our nature. Paul says that even the heathen " do by nature the things contained in the law," that the law is " writ- ten in their hearts." (Rom. ii. 14, 15.) Property is sacred, not because in our opinion it is a useful institution, and hence infer- entially approved by God, but He has said in the Bible, and says in every man's conscience, " Thou shalt not steal." Mr. Austin's theory does not prevent his teaching that "property's in rem" depends on " principles of utility." *
4. Paley says also that " the real foundation of our right [to property] is the law of the land." He admits, however, that the law may authorize the most flagitious injustice. He therefore makes a distinction between the words and the intention of the law ; and adds : " With the law, we acknowledge, resides the dis- posal of property ; so long, therefore, as we keep within the design and intention of a law, that law will justify us, as well inforo con- seientice, as mforo humano, whatever be the equity or expediency of the law itself." 2 The law of the land has indeed legitimately much to do with questions of property ; but the right itself does not rest upon that law, and is, in the sight of God, independent of it. The right exists prior to all law of the state. The law cannot ignore that right. It cannot rightfully deprive a man of his prop- erty, except in punishment of crime, or on the ground of stringent necessity, and, in the latter case, with due compensation. Property, however, is not the creature of the law. No unjust law gives a title to property, valid in the sight of God ; that is, a title which should satisfy a conscientious man in entering upon its possession and use. Even when the law is not unjust, it may work, not legal, but moral injustice. A will, for example, may clearly express the wishes and intention of a testator, but for some clerical or technical error be set aside and the property go to a person for whom it was not intended. Such person would have a legal, but not a morally valid title to the property. Good men are some- times heard to say : " We will take all the law gives us ; " in
1 Jurisprudence, vol. i. pp. 132, 382; vol. ii. pp. 1161.
* The Principles of Moral and Political Philosophy, book iii. part i. ch. iv. ; edit. Boston, 1848 vol. k pp. 87-89.
424 PART III. Ch. XIX. — THE LAW.
saying this, they do not apprehend the full meaning of their words ; it amounts to saying that in matters of property they will make the law of the land, and not the law of God, the rule of their conduct.
5. It is a very common doctrine that the right of property is founded on common consent, or on the social compact. Men agree that each man may appropriate to himself a por- tion of what originally is common to all. But this consent only recognizes a right ; it does not create it. If a man takes a glass of water from a stream common to all, it is of right his ; and he has no need to appeal to any compact or consent to justify his appropriating it to himself. The question how a man ac- quires a right to property, and the nature of the right itself, as before remarked, are different questions, although intimately re- lated.
6. Both are included in the common theory on the subject. If a man puts under culture a portion of unappropriated land, it is for the time being his, on the principle that a man owns himself, and therefore the fruits of his labour. Exclusive possession and use of the land in question are necessary to secure the man those fruits ; he has, therefore, the right to the land as long as he uses it. If he abandons it, his right ceases. On the other hand, if his use is continued, so as to involve occupancy, his right of pos- session becomes permanent. It is on this principle men act in mining districts in unoccupied lands. Each man, the first comer, stakes out for himself a claim ; this he works, or is entitled to keep to himself. If he abandons it and goes elsewhere, it ceases to be his. If he permanently occupies it, it is permanently his. The right of property is thus made to rest on occupancy and use ; in other words, on labour. But even this, according to Blackstone, is not a natural right. " All property," he says, " must cease upon death, considering men as absolute individuals, and uncon- nected with civil society: for then, by the principles before es- tablished, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized govern- ments which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, uni- versal law of almost every nation (which is a kind of second- ary 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 at all, the municipal law of the country then steps