LESSON 118

ORIGIN OF PROPERTY

财产的起源

Sir William Blackstone, 1723-1780, was the son of a silk merchant, and was born in London. He studied with great success at Oxford, and was admitted to the bar in 1745. At first he could not obtain business enough in his profession to support himself, and for a time relinquished practice, and lectured at Oxford. He afterwards returned to London, and resumed his practice with great success, still continuing to lecture at Oxford. He was elected to Parliament in 1761; and in 1770 was made a justice of the Court of Common Pleas, which office he held till his death. Blackstone’s fame rests upon his “Commentaries on the Laws of England,” published about 1769. He was a man of great ability, sound learning, unflagging industry, and moral integrity. His great work is still a common text-book in the study of law.

In the beginning of the world, we are informed by Holy Writ, the all-bountiful Creator gave to man dominion over all the earth, and “over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.” This is the only true and solid foundation of man’s dominion over external things, whatever airy, metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that everyone took from the public stock, to his own use, such things as his immediate necessities required.

These general notions of property were then sufficient to answer all the purposes of human life; and might, perhaps, still have answered them, had it been possible for mankind to have remained in a state of primeval simplicity, in which “all things were common to him.” Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer. Or, to speak with greater precision, the right of possession continued for the same time, only, that the act of possession lasted.

Thus, the ground was in common, and no part of it was the permanent property of any man in particular; yet, whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force; but, the instant that he quitted the use or occupation of it, another might seize it without injustice. Thus, also, a vine or other tree might be said to be in common, as all men were equally entitled to its produce; and yet, any private individual might gain the sole property of the fruit which he had gathered for his own repast: a doctrine well illustrated by Cicero, who compares the world to a great theater, which is common to the public, and yet the place which any man has taken is, for the time, his own.

But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of a more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise, innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable; as habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only a usufructuary property in them, which was to cease the instant that he quitted possession; if, as soon as he walked out of his tent or pulled off his garment, the next stranger who came by would have a right to inhabit the one and to wear the other.

In the case of habitations, in particular, it was natural to observe that even the brute creation, to whom everything else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young; that the birds of the air had nests, and the beasts of the fields had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man’s house and homestead; which seem to have been originally mere temporary huts or movable cabins, suited to the design of Providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extensive property in the soil or ground was established.

There can be no doubt but that movables of every kind became sooner appropriated than the permanent, substantial soil; partly because they were more susceptible of a long occupancy, which might be continue for months together without any sensible interruption, and at length, by usage, ripen into an established right; but, principally, because few of them could be fit for use till improved and meliorated by the bodily labor of the occupant; which bodily labor, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.

The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young.

The support of these their cattle made the article of water also a very important point. And, therefore, the book of Genesis, (the most venerable monument of antiquity, considered merely with a view to history,) will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in places where the ground and herbage remained yet in common. Thus, we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security “because he had digged that well.” And Isaac, about ninety years afterwards, reclaimed this his father’s property; and, after much contention with the Philistines, was suffered to enjoy it in peace.

All this while, the soil and pasture of the earth remained still in common as before, and open to every occupant; except, perhaps, in the neighborhood of towns, where the necessity of a sale and exclusive property in lands, (for the sake of agriculture,) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seize upon and occupy such other lands as would more easily supply their necessities.

We have a striking example of this in the history of Abraham and his nephew Lot. When their joint substance became so great that pasture and other conveniences grew scarce, the natural consequence was that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention, Abraham thus endeavored to compose: “Let there be no strife, I pray thee, between me and thee. Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then I will go to the right; or if thou depart to the right hand, then I will go to the left.” This plainly implies an acknowledged right in either to occupy whatever ground he pleased that was not preoccupied by other tribes. “And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered everywhere, even as the garden of the Lord. Then Lot chose him all the plain of Jordan, and journeyed east; and Abraham dwelt in the land of Canaan.”

As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants; and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and its spontaneous products destroyed, without any provision for future supply or succession. It, therefore, became necessary to pursue some regular method of providing a constant subsistence; and this necessity produced, or at least promoted and encouraged the art of agriculture. And the art of agriculture, by a regular connection and consequence, introduced and established the idea of a more permanent property in the soil than had hitherto been received and adopted.

It was clear that the earth would not produce her fruits in sufficient quantities without the assistance of tillage; but who would be at the pains of tilling it, if another might watch an opportunity to seize upon and enjoy the product of his industry, art and labor? Had not, therefore, a separate property in lands, as well as movables, been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey. Whereas, now, (so graciously has Providence interwoven our duty and our happiness together,) the result of this very necessity has been the ennobling of the human species, by giving it opportunities of improving its rational, as well as of exerting its natural faculties.

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. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labor, for the necessary subsistence of all; and leisure was given to others to cultivate the human mind, to invent useful arts, and to lay the foundations of science.

【中文阅读】

在创世之初，《圣经》告诉我们，万能的造物主赋予人统领世间的权力，“统领海洋中的鱼，空中的飞禽，大地上生长的所有生命”。这是人统领外在世界唯一真实和牢固的基础。不论如何空灵和形而上学的观念，也许都始于那些想象力丰富的作者开始对这个主题的玄想。因此，除了其他生命以外，地球上的一切都是所有人类的普通财产，源于造物主的直接馈赠。在地球继续光秃秃，适宜人类居住时，合理的推测是所有人能够在其中共存，大家的生活用品皆来自于公共物品，包括他的直接必需品。

关于财产的这些普通观念，足以满足人类生活的所有需要。也许还能满足他们，对人类而言如果处于一种原始朴素状态是可能的话，那么在这种状态里“所有的一切都应该具有遍在性”。对任何事物而言，即使在人类生活最早期，物品的这种交流也并非一定是适当的，更不消说扩展到对物品的使用了。按照自然和理性法则，率先使用的人在那时想要的是一种短暂拥有的财产，只要他使用，这种不动产就归他拥有，一旦停止使用就不再归他拥有了。说得更准确些，只有在占有行为持续的同时，拥有权才会继续享有。

因此，土地是共有的，其中任何一部分都不是某个具体人的永久财产；不过不论什么人只要占据有决定权的地位，对其他人，对财产的投影，或者诸如此类的事情，都需要时间才能得到某种所有权，从不公平和对自然法则的违背到外力驱使他这样。但是，一旦他停止使用或占有，其他人就会通过不公平的手段据为己有。因此，一株葡萄树或其他的树被说成是共有的，对树的果实所有人都被赋予同样的权利；然而，任何自私的个体都有可能取得采集后用来享用果实的独权。西塞罗很好地阐述了这一学说，他将整个世界喻为一个巨大的剧场，属于大家共有，任何人一旦有机会都会将这个剧场据为己有。

但是，随着人类在数量、心机和野心上的增长，抱有追求更长久的统治权这一观念成为必然。个体挪用的不只是使用权，而是对一件事物整个实质内容的使用。不然的话，由此会引起难以计数的纷争，世界业已形成的良好秩序持续遭到破坏和干扰，各色人等都会争取最先占用同一样东西，或者为他们当中谁应该最终得到这件东西争执不下。随着人类生活越来越完善，便利性的丰富使得生活变得更加简单、舒适和满意。随着人们居有定所，安全性逐渐增加，服饰业更加保暖和讲究。但是，没有谁不愿意提供这些，只要他对这些财产仅仅拥有用益权，一旦他停止拥有，用益权也随之中止。他一走出自己的帐篷或者脱下他的衣服，从旁边经过的陌生人就有权住进这个帐篷，并将别人的衣服穿在身上。

至于居民，尤其是人们很自然地注意到，即使是野蛮人，对他而言其他的一切都是共有的，他们的住所是一种持久的财产，尤其是予以保护以便后代享用。在空中翱翔的鸟儿有巢，田野上跑的走兽有穴，它们把入侵巢穴视为一种公然的不公正。为此牺牲生命誓死捍卫也在所不惜。由此，很快财产这个概念就以每个人的房子和宅地为标准建立起来了；最初似乎仅指临时栖身的小屋和可以移动的小木屋，在土地或地上大规模的财产建立起来之前，适宜于迎合更迅速地居于土地上的天意，适宜于小屋的拥有者过漫游的生活。

毫无疑问，每种可以移动的财产很快变为比永恒和大量土地更容易占用的东西。部分原因在于，它们比长期占有更易受影响，在没有任何明显中断的情况下，也许能持续数月之久。最终通过使用，成为一种既成权利。不过，主要原因是，他们当中很少有人有资格使用，直到通过付出体力的占有来改善和促进。对所有人而言，身体上的劳动已经成为一个共同的主题，一般而言允许给予专有财产最公平和最合理的权益。

食物是更直接的召唤，因此给予更及早的考虑。人们不满足于土地的自然产物，而致力于他们通过狩猎获取的野兽肉中更有助于人们恢复精力的东西。但是，这种供应方式频繁出现令人失望的偶然事件，促使他们一起搜集诸如更驯服和听话的动物，在他们的畜群和畜栏建立永久的财产，以便以较少不确定性的方式供养自己。一部分源于老牲畜的奶，部分源于年幼动物的肉。

对牲口的饲养使得水源问题也成了非常重要的关键。因此，《创世纪》（最珍贵的古代文献，仅取其历史观）向我们提供了许多与围墙有关的暴力主张例子。专有财产显然建立在先拔刀相向或者擅自占有之上，甚至在那些土地和上面长的草还属于共有的地方也是这样。因此，我们发现只是一位寄居者的亚伯，在阿彼默肋王国断言自己对一眼井拥有专有权，以他的个人安危发誓“因为那口井是他挖的”。而大约九十年后的以撒，重申这是他父亲的财产；经过与非利士人的多次纷争后，得以乐享这口井。

一直以来，地球上的土地和牧草同以前一样属于共有，向每个占有者敞开胸怀。除了相邻的城镇，在那里生活必需品和土地专有财产的买卖，（多亏了农业），是较早出现的，因此更容易遵从。换言之，当大量人口和牲畜在一地消耗掉所有便利品时，攫取和占有其他人的土地被视为当然的权力，这样才能更容易供应自己的生活必需品。

从亚伯和他侄子洛特的经历中，我们可以找到这方面生动的例子。当他们共同的物质需求变得很大，以至于牧草和其他便利品愈发稀缺时，后果当然是他们的奴仆之间发生争执。于是，他们不再住在一起，亚伯因此要努力平息这场纷争：“我求求大家了，我们之间不要再吵了。在你们面前，难道土地不是完整的吗？我求你们了，快走吧。如果你们举起左手，我就走右边。如果你们去右边，我就去左边。”这段话清楚直率地暗示出他拥有自己心仪土地的权利，不允许其他部落占有。“洛特举目凝视着约旦的全部平原地区，那里灌溉得很好，甚至像伊甸园一样。然后，洛特为自己挑选了约旦全部平原地区，向东迁徙。亚伯则在迦南定居。”

随着世界人口越来越多，如果不侵犯以前的占有者的利益的话，愈发难发现可以定居新地方；不断占有同一个体的地方，土地上的出产被消耗殆尽在没有为将来的供应或者接下来的季节储备的情况下，土地的自然出产被毁掉了。因此，致力于某些有规律的方法来提供稳定的基本生活资料成为必然；这种生活必需品的生产，至少能促进和鼓励农艺。而农艺作为正常的连接纽带和结果，要比到目前为止已经接受和采用的方法更有利于引进和建立土地是更长久的财产这一观念。

显然，不借助于耕种，土地是不会出产足够的农作物的；但是，倘若其他人有机会占有他的产业、手艺和劳动，谁还愿意受耕种之累呢？因此，如果不将土地财产以及可以移动的财产分离，不给予个体权利的话，这个世界必将继续被森林覆盖，人们仅有动物可食。有鉴于此，现在（天意如此仁慈地与我们的责任和幸福交织在一起），这种必然性的结果通过赋予其增进理性的机会，以及施加其自然力量，促使人类更为高贵。

必然性导致财产的出现。为了确保财产，求助于民权社会，这必将带来一连串伴随出现的问题：国家，政府，法律。惩罚措施和公开行使宗教义务。社会中只有一部分通过提供他们的手工劳动，足以为全体民众提供必需的生活资料。其他人的空闲时间用来培养心智，旨在发明有用的手艺，借此奠定科学的基础。