"The earth," he writes, "and all things therein were thegeneral property of mankind from the immediate gift of theCreator. Not that the communion of goods seems ever to have beenapplicable, even in the earliest ages, to aught but the substanceof the thing; nor could be extended to the use of it. For, by thelaw of nature and reason he who first began to use it acquiredtherein a kind of transient property that lasted so long as hewas using it, and no longer; or to speak with greater precision,the right of possession continued for the same time only that theact of possession lasted. Thus the ground was in common, and nopart was the permanent property of any man in particular; yetwhoever was in the occupation of any determined spot of it, forrest, for shade, or the like, acquired for the time a sort ofownership, from which it would have been unjust and contrary tothe law of nature to have driven him by force, but the instantthat he quitted the use of occupation of it, another might seizeit without injustice." He then proceeds to argue that "whenmankind increased in number, it became necessary to entertainconceptions of more permanent dominion, and to appropriate toindividuals not the immediate use only, but the very substance ofthe thing to be used."
Some ambiguities of expression in this passage lead to thesuspicion that Blackstone did not quite understand the meaning ofthe proposition which he found in his authorities, that propertyin the earth's surface was first acquired, under the law ofNature, by the occupant; but the limitation which designedly orthrough misapprehension he has imposed on the theory brings itinto a form which it has not infrequently assumed. Many writersmore famous than Blackstone for precision of language have laiddown that, in the beginning of things, Occupancy first gave aright against the world to an exclusive but temporary enjoyment,and that afterwards this right, while it remained exclusive,became perpetual. Their object in so stating their theory was toreconcile the doctrine that in the state of Nature res nulliusbecame property through Occupancy, with the inference which theydrew from the Scriptural history that the Patriarchs did not atfirst permanently appropriate the soil which had been grazed overby their flocks and herds.
The only criticism which could be directly applied to thetheory of Blackstone would consist in inquiring whether thecircumstances which make up his picture of a primitive societyare more or less probable than other incidents which could beimagined with equal readiness. Pursuing this method ofexamination, we might fairly ask whether the man who had occupied(Blackstone evidently uses this word with its ordinary Englishmeaning) a particular spot of ground for rest or shade would bepermitted to retain it without disturbance. The chances surelyare that his right to possession would be exactly coextensivewith his power to keep it, and that he would be constantly liableto disturbance by the first comer who coveted the spot andthought himself strong enough to drive away the possessor. Butthe truth is that all such cavil at these positions is perfectlyidle from the very baselessness of the positions themselves. Whatmankind did in the primitive state may not be a hopeless subjectof inquiry, but of their motives for doing it it is impossible toknow anything. These sketches of the plight of human beings inthe first ages of the world are effected by first supposingmankind to be divested of a great part of the circumstances bywhich they are now surrounded, and by then assuming that, in thecondition thus imagined, they would preserve the same sentimentsand prejudices by which they are now actuated, -- although, infact, these sentiments may have been created and engendered bythose very circumstances of which, by the hypothesis, they are tobe stripped.
