in, and declares who shall be the successor, representative, or heir of the deceased ; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion." On the same page, speaking of the right of inheritance, he says : " 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 invet- erate custom. It is 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." 1 He had said before,2 " Necessity begat property ; and in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants ; states, government, laws, punishments, and the public exercise of religious duties." This seems to be inverting the natural order of things. Disregard of the moral law would result in endless evil, and there is an absolute necessity that its commands should be observed and enforced ; but the obligation of the law does not rest on that necessity ; it is altogether anterior and independent of it. -So the right of property is anterior and independent of the necessity of its being held sacred, in order to secure the well- being of mankind. The fact is, that the right of property is analogous to the right of life, liberty, or pursuit of happiness. It does not come from men ; it is not given by man ; and it can- not be ignored, or arbitrarily interfered with by man. It rests on the will of God as revealed in the constitution of our nature and in our relation to persons and things around us.
7. Stahl, the distinguished German jurist, gives substantially the following account of the matter. Man was formed out of the earth ; but a divine spirit was breathed into him. He is, there- fore, on the one hand, dependent on the material world ; on the other, exalted above it. He is placed here as its lord and owner. The things of the outer world are given to him for the satisfac- tion of his physical wants, and of his spiritual necessities. He, therefore, has power and right over things external, and they must be permanently and securely under his control. This is the foundation of the right of property. Property is the means for the development of the individuality of the man. The manner in which it is acquired and used, reveals what the man is ; his
i Commentaries on the Laws of England, n. i. by Sir William Blackstone, Knt. 16th edit. London, 1825, vol. ii. p. 10. « Ibid. p. 7.
426 PART III. Ch. XIX.— THE LAW.
food, clothing, and habitation ; his expenditures for sensual enjoy- ment, for objects of taste, of art, and of science, and for hospi- tality, benevolence, and the good of society ; and the consecration of his acquisitions to the interests of a higher life, — these in their totality as they rest on the right of property, make out a man's portrait. Property, however, is specially designed to enable a man to discharge his moral duties. Every man has duties of his own to perform ; duties which belong to him alone, not to others, not to society ; duties which arise out of his personal vocation and standing, especially such as belong to his own family. There- fore he must have what is exclusively his own. Property, there- fore, is not intended for mere self -gratification or support ; nor is it a mere objectless mastery over things external ; it is the neces- sary means to enable a man to fulfil his divinely-appointed des- tiny. Herein lies the divine right of property ! *
The right of property, therefore, is not founded on the law of the land, or on any explicit or implied contract among men ; but upon the law of nature. It is true that natural, as distinguished from positive laws, have been differently explained. " As the science of ethics," says Lord Mackenzie, "embraces the whole range of moral duties, its province is evidently much wider than that of jurisprudence, which treats only of those duties that can be enforced by external law." 2 The duties, however, which can be thus enforced are of two kinds ; those which arise from the natural, and those which arise from common or statute law. " By the law of nature," says Chancellor Kent,8 " I understand those fit and just rules of conduct which the Creator has prescribed to man as a dependent and social being, and which are to be as- certained from the deduction of right reason, though they may be more precisely known and more explicitly declared by divine revela- tion." Cicero, teaches that God is the author of natural law, and that its duties are of unchangeable obligation. He says, " Nee erit alia lex Romae, alia Athenis, alia nunc, alia posthac ; sed et omnes gentes et omni tempore una lex et sempiterna et immu- tabilis continebit, unusque erit communis quasi magister et im- perator omnium deus." 4
1 Die Philosqphie des Rechts, Rechts- und Staatslehre, i. iii. 2, 1, § 22, 4th edit Heidelberg, 1870, vol. ii. part 1, p. 350 f. The paragraph in the text is not a transla- tion, but a condensation.
« Studies in Roman Law, with Comparative Views of the Laws, of France, England, and Scotland, by Lord Mackenzie, one of the Judges of the Court of Session in Scotland, 2d edit. Edinburgh and London, 1865, p. 45.
8 Chancellor Kent, quoted by Lord Mackenzie.
* De Republica, in. xxii. 33. 16, edit. Leipzig, 1850, p. 1193, a.
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