eator. Not that
the communion of goods seems ever to have been applicable, even in the
earliest ages, to aught but the substance of the thing; nor could 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 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 of occupation of it, another might seize it without
injustice." He then proceeds to argue that "when mankind increased in
number, it became necessary to entertain conceptions of more permanent
dominion, and to appropriate to individuals not the immediate use
only, but the very substance of the thing to be used."

Some ambiguities of expression in this passage lead to the suspicion
that Blackstone did not quite understand the meaning of the
proposition which he found in his authorities, that property in the
earth's surface was first acquired, under the law of Nature, by the
_occupant_; but the limitation which designedly or through
misapprehension he has imposed on the theory brings it into a form
which it has not infrequently assumed. Many writers more famous than
Blackstone for precision of language have laid down that, in the
beginning of things, Occupancy first gave a right 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 to reconcile the doctrine that in the state
of Nature _res nullius_ became property through Occupancy, with the
inference which they drew from the Scriptural history that the
Patriarchs did not at first permanently appropriate the soil which had
been grazed over by their flocks and herds.

The only criticism which could be directly applied to the theory of
Blackstone would consist in inquiring whether the circumstances which
make up his picture of a primitive society are more or less probable
than other incidents which could be