Blackstone v. Kent on the Origins of Private Property

Blackstone is perhaps the most famous common law commentator, and he is often looked to as a hero by conservatives and Christians in our time.  This veneration is not undeserved.  However, Blackstone wasn’t perfect, and he didn’t always get things right.  (None of us are and none of us do.)

One such example is his view of the origins of private property and property rights.  Blackstone believed that all property was once owned in common by all men. The following discussion is from God, Man, and Law: The Biblical Principles by Herbert W. Titus.  It does an excellent job of explaining the situation and why, at least on this point, Blackstone was mistaken.

James Kent, America’s Blackstone, also relied on Genesis; but he did not agree with Blackstone that all property was once owned by all men in common:

Having concluded a series of lectures on the various rights of persons, I proceed next to the examination of the law of property, which has always occupied a preeminent place in the municipal codes of every civilized people.  I purpose to begin with the law of personal property, as it appears to be the most natural and easy transition from the subjects which we have already discussed.  This is the species of property which first arises, and is cultivated in the rudest ages; and when commerce and the arts have ascended to distinguished heights, it maintains its level, if it does not rise even superior to property in land itself, in the influence which it exercises over the talents, the passions, and the destiny of mankind.

To suppose a state of man prior to the existence of any notions of separate property, when all things were common, and when men throughout the world lived, without law or government, in innocence and simplicity, is a mere dream of the imagination.  It is the golden age of the poets which forms such a delightful picture in the fictions, adorned by the muse of Hesiod, Lucretius, Ovid, and Virgil.  It has been truly observed that the first man who was born into the world killed the second; and when did the times of simplicity begin?  And yet we find the Roman historians and philosophers rivaling the language of poetry in their descriptions of some imaginary state of nature, which it was impossible to know and idle to conjecture.  No such state was intended for man in the benevolent dispensation of Providence; and in following the migrations of nations, apart from the book of Genesis, human curiosity is unable to penetrate beyond the pages of genuine history; and Homer, Herodotus, and Livy carry us back to the confines of the fabulous ages.  The sense of property is inherent in the human breast, and the gradual enlargement and cultivation of that sense, from its feeble force in the savage state, to its full vigor and maturity among polished nations, forms a very instructive portion of the history of civil society.  Man was fitted and intended by the Author of his being for society and government, and for the acquisition and enjoyment of property.  It is, to speak correctly, the law of his nature; and by obedience to this law, he brings all his faculties into exercise, and is enabled to display the various and exalted powers of the human mind.

Occupancy, doubtless, gave the first title to property, in lands and movables.  It is the natural and original method of acquiring it; and upon the principles of universal law, that the title continues so long as occupancy continues.  There is no person, even in his rudest state, who does not feel and acknowledge, in a greater or less degree, the justice of this title.  The right of property, founded on occupancy, is suggested to the human mind by feeling and reason prior to the influence of positive institutions.  There have been modern theorists who have considered separate and exclusive property, and inequalities of property, as the cause of injustice, and the unhappy result of government and artificial institutions.  But human society would be in a most unnatural and miserable condition if it were possible to be instituted or reorganized upon the basis of such speculations.  The sense of property is graciously bestowed on mankind for the purpose of rousing them from sloth, and stimulating them to action; and so long as the right of acquisition is exercised in conformity to the social relations, and the moral obligations which spring from them, it ought to be sacredly protected.  The natural and active sense of property pervades the foundations of social improvement.  It leads to the cultivation of the earth, the institution of government, the establishment of justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erections of charity, and the display of the benevolent affections.

While both Blackstone and Kent agreed that the book of Genesis was the key to a correct understanding of the origin of private property, they did not have the same understanding.  Blackstone believed that private property had been invented by men as the only solution to the problems of finiteness of resources and of the need for a stable civilization.

Kent, however, claimed that private property was inherent in the nature of things.  Other early American legal authorities, such as St. George Tucker and John Marshall, agreed with Kent.  In his edition of Blackstone’s Commentaries, Tucker noted his disagreement with Blackstone:  “I cannot agree with the learned commentator that the permanent right of property vested in the ancestor himself is not a natural, but merely a civil right.  I have endeavored to shew that the notion of property is universal, and is suggested to the mind of man by reason and nature prior to all positive institutions and civilized refinements: If the laws of the land were suspended, we should still be under the same moral and natural obligation to refrain from invading each other’s property, as from attacking and assaulting each other’s persons.”[1]

[1] Herbert W. Titus, God, Man, and Law: The Biblical Principles 236-238 (1994) (footnote omitted) (quoting 2 James Kent, Commentaries on American Law 318-320 (1824)).