168 NOTES ON THE NORTHWEST. 



" Upon the whole then," says Rutherford, " property can- 

 not be introduced consistently with justice, unless by the 

 common consent of mankind. The consent which is neces- 

 sary for this purpose might either be given expressly when 

 all mankind could meet together, and such agreement is 

 called division ; — or else it may be presumed, in consequence 

 of the future proprietor having, without molestation, taken 

 and kept possession of the thing which he intends to make 

 his own, and such a tacit agreement is called occupancy." 



" But though either division or occupancy might give pro- 

 perty in the first ages of the w^orld, when all the joint com- 

 moners could meet together, the way of introducing property 

 by division is now at an end. The great numbers of man- 

 kind, and their remoteness from one another, have rendered 

 it impossible for them all to meet, and to divide the common 

 stock of goods, or such parts of the common stock as have 

 not yet been appropriated. There is therefore at present no 

 other method left for beginning property hut occupancy only ; 

 all things which were not appropriated formerly, must now 

 he appropriated hy occupancy or not at all^ — Ruth. Ins., 

 V. 1, p. 42 to 50. 



Mr. Locke goes much farther. He does not consider any 

 consent, express or tacit, as necessary on the part of the rest 

 of mankind. But he places the right to property by occu- 

 pancy, absolutely in the act of taking possession and improv- 

 ing, on the ground that a man has a property in the labor of 

 his hands ; and this labor being bestowed on an unappro- 

 priated thing, makes it his own. 



The Indian lands in this country are in the condition as- 

 serted by Rutherforth of all lands originally. They are 

 held in common. The common claim is not taken away in 

 them by the introduction of property. This stage of things 

 lias not yet arrived among the Indians. Under this condition 



