Of the History, Progress, and Absolute Rights of Property
NOTES
1. Sallust Cat. sect. 6. Jurgur. sect. 18. Tacit. Ann. l. 3. sec. 26. Cic. Orat. pro P. Sextio, sect. 42. Justin, lib. 43. ch. 1.
2. Lord Kames considers the sense of property to be a natural appetite, and in its nature, a great blessing. Sketches of the History of Men, b. 1. sk. 2.
3. Grotius, Jure B. & P. b. 2. c. 3. sec. 4.
4. M. Toullier, in his account of the origin and progress of property, in his Droit Civil Francais, tom. 3. p. 40. insists, that a primitive state of man existed before the establishment of civil society, when all things were common, and temporary occupancy the only title; but he gives no sufficient proof of the fact. The book of Genesis, which he justly regards as the most ancient and venerable of histories does not show any such state of the human race. The first man born, was a tiller of the ground, and the second, a keeper of sheep. The earliest account of Noah and his descendants, after the flood, in Genesis. ch. 9, 10 and 13, prove that they were husbandmen, and planted vineyards, built cities, established kingdoms, and abounded in flocks and herds, and gold and silver. I observe, however, with pleasure that M. Toullier has freely and liberally followed Sir William Blackstone, in his elegant dissertation on the rise and progress of property. President Goguet, in his most learned work. De l'origine des lois, des arts, des sciences, et de leurs progres chez les anciens Peuples, b. 2. ch, 1. art. 1. considers agriculture as flourishing before the dispersion at Babel, though after that event mankind relapsed into the most deplorable barbarity.
5. Grotius, b. c. 6. s. 1.
6. Opera, tom. 5, part 2. p. 180, 181
7. This was by the perpetual edict extending the actio metus, which differed in nothing but in name from the rei vindicatio. Lord Kames' Historical Law Tracts, tit. Property.
8. Com. vol. i. 290, 291.
9. Dr. and Stu. p. 267, 268.
10. Code, 11. 5. 1.
11. Lib. 3. p. 120, s.
12. Laws of N.Y. sess. 10. ch. 28. The colony laws of Massachusetts also preserved all wrecks for the owner, and did not follow the English law. Dane's Abr. vol. 3. 144. Probably the statute law of other states is equally just.
13. 5 Burr. 2732.
14. 5 Co. 83. 12 Mod 521. Bacon's Use of the Law, p. 157. 2 Inst. 713. Com. Dig. tit. Market, E.
15. 2 Campb. N. P. 335.
16. Co. Litt. 309. Dig. 41. 1. 20. Pothier's Traite du Contrat de Vente, p. 1. n. 7. Ersk.Inst. 481.
17.Dame v. Baldwin, 8 Mass. Rep. 518. Wheelwright v. De Peyster, 1 Johns. Rep. 480. Hosack v. Weaver, 1 Yeates, 478. Easton v. Worthington, 5 Serg. & Rawle, 130.
18. Com. vol. ii. ch. 1. p. 10-13.
19. Grotius, b. 2. c. 7. s. 5.
20. Christian's Notes to 2d Blacks. Com. p. 1. Taylor's Elements of the Civil Law, 519.
21. Grotius, b. 2. c. 6. s. 14.
22. 1 Reeve's Hist. of the Eng. Law, p. 11.
23. Dig. 29. 2. 12.
24. Arist. Politics, by Gillies, b. 2. c. 8. Potter's Antiq. of Greece, vol. i, 167.
25. Harrington, in his Oceana, declared an Agrarian law to be the foundation of a commonwealth; and he undoubtedly alluded to the common interpretation and popular view of the Agrarian laws in ancient Rome and not to the new and just idea of M. De Niebuhr, that those laws related only to leases of the public lands belonging to the state. Montesquieu, in his Spirit of Laws frequently suggests the necessity of laws in a democracy establishing equality and frugality. Such suggestions are essentially visionary, though they may not be quite as extravagant as some of the reveries of Rousseau, Condercet, or Godwin. The limit to expenditure and acquisition has been sometimes attempted in this country. In 1778, there was an act of the legislature of Connecticut limiting the price of labor, and the products of labor, and even tavern charges; and the corporation ordinances in some of our cities have regulated the price of meats in the market. Such laws, if of any efficacy, are calculated to destroy the stimulus to exertion; but, in fact, they are only made to be eluded, despised, and broken.
26. No author was more distinguished than Sallust, for his eloquent invectives against riches, luxury, and the arts, which he considered as having corrupted and destroyed the Roman republic. Among other acquired vices, he says, the Romans had learned to admire statues, pictures, and fine wrought plate. Sal. Cat. ch. 11. Juvenal painted the mighty evils of luxury with the hand of a master. In a satire devoted to the delineation of extreme profligacy, he relieves himself for a moment by a brief but lively sketch of the pure and rustic virtues of the old Romans. He recurs again to the desolations of wealth and luxury, and rises to the loftiest strains of patriot indignation:
27. The sumptuary laws of ancient Rome had their origin in the twelve tables, which controlled the wastefulness of prodigals, and unnecessary expenditure at funerals. The appetite for luxury increased with dominion and riches, and sumptuary laws were from time to time enacted, from the 566th year of the city down to the time of the emperors, restraining, by severe checks, luxury and extravagance in dress, furniture and food. They were absurdly and idly renewed by the most extravagant and dissipated rulers; by such conquerors as Sylla, Julius Caesar, and Augustus. The history of those sumptuary laws is given in Aulus Gellius, b. 2. c. 24. See, also, Suet. J. Caesar, s. 43.
During the middle ages, the English, French, and other governments, were, equally with the ancient Romans, accustomed to limit, by positive laws, the extent of private expenses, entertainments and dress. Some traces of these sumptuary laws existed in France and Sweden as late as the beginning of the last century. Hallam on the Middle Ages, vol. ii, 287. Catteau's View of Sweden. The statute of 10 Edw. III entitled, statutum de cibariis utendis, was the most absurd that ever was enacted. It prescribed the number of dishes for dinner and supper, and the quality of the dishes. Dr. Adam Smith, in his Wealth of Nations, justly considers it to be an act of the highest impertinence and presumption, for kings and rulers to pretend to watch over the economy and expenditure of private persons.
28. L. N.Y. sess. 45. ch. 26. sec. 9, 10 — Ch. 126.
29. Journals of the Confederation Congress, vol. xii. p. 58.
30. Essays, vol. i. 35.
31. 8 Wheaton, 1.
32. Frear v. Hardenburgh, 1 Johns. Rep. 272.
33. 3 Atk. 134.
34. 2 Johns. Cases, 441.
35. L. N.Y. April 8th 1813, ch. 80.
36.Jones v. Carter, 12 Mass. Rep. 314. Withington v. Corey, 2 N. H Rep. 115.
37. Society for the Propagation of the Gospel v. Wheeler, 2 Gall. Rep. 105.
38. Dig. 6. 1. 38.
39.Trait du Droit de Propriété, No. 347.
40.Absor v. French, 2 Show. 28. Young's case, 1 Lord Raym. 725. This principle does not apply to the case of a private way. The right is confined to public highways out of repair. Taylor v. Whitehead, Doug. 745.
41. Dyer, 36. b. 1 Dallas' Rep. 363.
42. Laws of N.Y. sess. 36. ch. 33.
43. Grotius De Jure B. & P. b. 3. c. 19. s. 7. — c. 20. s. 7. Puf. D Jure. Nat. et Gent. b. 8. c. 5. s. 3. and 7. Bynk. Q. J. Pub. b. 2. ch. 15.
44. Puf. b. 8. ch. 5. s. 3. Vattel. b. 1. ch. 20. s. 246, 255. Coup. 269. Com. Dig. tit. By-Law, C. Willes Rep. 388. The Corporation of New York v. Coates, decided by Judge Irving, October, 1824.
