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and from Spenser to Flecno, that is, from mans, and only Mr. Waller among the the top to the bottom of all poetry. But English.

Dryden. to return to Taslo; he borrows from the invention of Boyardo, and in his alteration $ 78. Remarks on foine of the best English of his poem, which is infinitely the worst,

dramatic Poets. initates Homer so very servilely, that (for

Shakespeare was the man who, of all example) he gives the king of Jerusalem modern and perhaps ancient poets, had the fifty fons, only because Homer had bestow- largest and most comprehensive soul. All ed the like number on king Priam; he kills the images of nature were still present to the youngest in the same manner, and has him, and he drew them not laboriously, but provided his hero with a Patroclus, under luckily: when he defcribes any thing, you another name, only to bring him back to

more than see it, you feel it too. Those the wars, when his friend was killed. The who accuse him to have wanted learning, French have performed nothing in this give him the greater commendation : he kind, which is not below those two Italians,

was naturally learned; he needed not the and subject to a thousand more reflections, spectacles of books to read nature; he without examining their St. Louis, their looked inwards and found her there. I Pucelle, or their Alarique. The English cannot say he is every where alike; were have only to boast of Spenser and Milton, he so, I should do him injury to compare who neither of them wanted either genius him with the greatest of mankind.

He is or learning to have been perfect poets, and yet both of them are liable to many cen

many times flat and infipid ; his comic

wit degenerating ir to clenches; his serious, sures. For there is no uniformity in the swelling into bombaft. But he is always design of Spenler; he aims at the accom

great, when some great occasion is presentplishment of no one action; he raises up a

ed to him: no man can say he ever had a hero for every one of his adventures, and fit subject for his wit, and did not then raise endows each of them with some particular himself as high above the rest of Poets, moral virtue, which renders them all equal, without subordination or preference. Every

Quantùm lenta solent inter virburna cupresi. one is most valiant in his own legend; only The consideration of this made Mr. we must do them the justice to observé, Hales of Eaton say, that there was no subthat magnanimity, which is the character ject of which any poet ever writ, but he of Prince Arthur, shines through the whole would produce it much better treated in poem, and succours the rest, when they are Shakespeare; and, however others are now in diftreis. The original of every knight generally preferred before him, yet the was then living in the court of queen Eliza- age wherein he lived, which had contempobeth; and he attributed to each of them raries with him Fletcher and Jonson, niethat virtue which he thought most conspi. ver equalled them to him in their esteem. cuous in them : an ingenious piece of fat. And in the last king's court, when Ben's tery, though it turned not much to his ac- reputation was at the highest, Sir John count. Had he lived to finish his poem, in Suckling, and with him the

greatest part of the fix remaining legends, it had certainly the courtiers, set our Shakespeare far above heen more of a-piece; but could not have him. been perfect, because the model was not Beaumont and Fletcher, of wliom I am true. But Prince Arthur, or his chief

pa next to speak, had with the advantage of tron, Sir Philip Sidney, whom he intended Shakespeare's wit, which was their preceto make happy by the marriage of his Glo- dent, great natural gifts, improved by riana, dying before him, deprived the poet ftudy; Beaumont especially being fo acboth of means ard spirit to accomplish his curate a judge of players, that Ben Jonson, design. For the rest, his obsolete lan. while he lived, submitted all his writings guage, and i!l choice of his stanza, are faults to his censure, and, 'tis thought, used his but of the second magnitude : for, notwith- judgment in correcting, if not contriving, ftanding the first, he is still intelligible, at all his plots. What value he had for him, Jeait after a little practice; and for the last, appears by the verses he writ to him, and he is the more to be admired, that labour. therefore I need speak no farther of it

. ing under such a difficulty, his verses are The first play which brought Fletcher and fo numerous, so various, and so harmoni- him in elteein was their Philalter ; for beous, that only Virgil, whom he profesledly fore that, they had written two or three imitated, has surpassed him among the Ro- very unfucccistully: and the like is re;



ported of Ben Jonson, before he writ Every only victory in him. With the spoils of Man in his Humour. Their plots were ge- those writers he so represents old Rome to nerally more regular than Shakespeare's, us, in its rites, ceremonies, and customs, especially those which were made before that if one of their poets had written either Beaumont's death; and they understood of his tragedies, we had seen less of it and imitated the conversation of gentlemen than in him. If there was any fault in his much better, whole wild debaucheries, and language, 'twas that he weav'd it too closely quickness of repartees, no poet can ever and laboriously in his serious plays: perpaint as they have done. That humour haps, too, he did a little too much Romawhich Ben Jonson derived from particular nize our tongue, leaving the words which persons, they made it not their business to he translated as much Latin as he found describe : they represented all the paffions them; wherein, though he learnedly folvery lively, but above all, love. I am apt lowed the idiom of their language, he did to believe the English language in them not enough comply with ours. If I would arrived to its highest perfection: what compare with him Shakespeare, I must acwords have been taken in since, are rather knowledge him the more correct poet, but fuperfluous than necessary. Their plays Shakespeare the greater wit. Shakespeare are now the most pleasant and freque was the Homer, or father of our dramatic tertainments of the stage; two of theirs be. poets, Jonson was the Virgil, the pattern ing acted through the year for one of of elaborate writing; I admire him, but I Shakespeare's or Jonson's: the reason is, love Shakespeare. To conclude of him : because there is a certain gaiety in their as he has given us the most correct plays, comedies, and pathos in their more serious fo, in the precepts which he has laid down plays, which suits generally with all men's in his discoveries, we have as many and as humour. Shakespeare's language is like- profitable rules for perfecting the itage as wise a little obsolete, and Ben Jonson's any wherewith the French can furnish us. wit comes short of theirs.

Dryden's Elays. As for Jonson, to whose character I am now arrived, if we look upon him while he $ 79. The Origin and Right of exclufire was himself (for his last plays were but his

Property explained. dotages), I think him the most learned and There is nothing which so generally judicious writer which any theatre ever had. Arikes the imagination and engages the He was a moft severe judge of himself as affections of mankind, as the right of prowell as others. One cannot say he wanted perry; or that fole and desporic dominion wit, but rather that he was frugal of it. In which one man claims and exercises over his works you find little to retrench or al- the external things of the world, in a total ter. Wit and language, and humour allo, exclusion of the right of any other indiviin some measure, we had before him; but dual in the universe. And yet there are something of art was wanting to the drama very few that will give themselves the till he came. He managed his itrength to trouble to consider the original and foundamore advantage than any who preceded tion of this right. Pleased as we are with him. You seldom find him making love the pofleffion, we seem afraid to look back in any of his scenes, or endeavouring to to the means by which it was acquired, as move the passions; his genius was too sullen if fearful of some defect in our title; or at and faturnine to do it gracefully, especially best we rest satisfied with the decision of when he knew he came after those who the laws in our favour, without examining had performed both to such an height. the reason or authority upon which those Humour was his proper sphere, and in that laws have been built. We think it enough he delighted most to represent mechanic that our title is derived by the grant of the people. He was deeply conversant in the former proprietor, by descent from our ancients, both Greek and Latin, and he ancestors, or by the last will and testament borrowed boldly from them : there is not of the dying owner; not caring to reflect a poet or biftorian among the Roman au that (accurately and strictly speaking) there thors of those times, whom he has not is no foundation in nature or in natural law, translated in Sejanus and Cataline. But he why a set of words upon parchment lhould has done his robberies so openly, that one convey the dominion of land; why the son may see he fears not to be taxed by any should have a right to exclude his fellaw. He invades authors like a monarch, low.creatures from a determinate spot of and what would be theft in other poets, is ground, because his father nad done to be


3 L 4

fore him; or why the occupier of a partic by the law of nature and reason, he who cular field or of a jewel, when lying on his first began to use it acquired therein a kind death-bed, and no longer able to maintain of transient property, th:at lafted fo long as poffeffion, should be entitled to tell the rest he was using it, and no longer 1: or, to of the world, which of them should enjoy speak with greater precision, the right of it after him. These enquiries, it must be poffeflion continued for the same time only owned, would be useless and even trouble. that the act of poffeflion lated. Thus the some in common life. It is well if the ground was in common, and no part of it mass of mankind will obey the laws when was the permanent property of any man in made, without scrutinizing too nicely into particular: yet whoever was in the occuthe reasons of making them. But, when pation of any determinate spot of it, for law is to be considered not only as mat. relt, for Thade, or the like, acquired for the ter of practice, but also as a rational time a sort of ownerhip, from which it science, it cannot be improper or useiefs would have been unjust, and contrary to to examine more deeply the rudiments the law of nature, to have driven him by and grounds of these positive conftitutions force; but the instant that he quitted the of society.

use or occupation of it, another might leze In the beginning of the world, we are it without injustice. Thus also a vine or informed by holy writ, the all-bountiful other tree might be said to be in common, Creator gave to man, “ dominion over all as all men were equally entitled to its prothe earth; and over the fish of the sea, and duce; and yet any private individual might over the fowl of the air, and over every gain the sole property of the fruit, which living thing that moveth upon the earth.” he had gathered for his own repalt. A This is ihe only true and lolid foundation docirine well illustrated by Cicero, who of man's dominion over external things, compares the world to a great theatre, which whatever airy metaphysical notions may is common to the public, and yet the place have been started by fanciful writers upon which any man has taken is for the time this subject. The earth, therefore, and all

his own it. things therein, are the general property of But when mankind increased in number, all mankind, exclusive of other beings, from craft, and ambition, it became necessary to the immediate gift of the Creator. And entertain conceptions of more permanent while the earth continued bare of inhabi. dominion: and to appropriate to indivitants, it is reasonable to suppose that all duals not the immediate use only, but the was in common among them, and that very substance of the thing to be used. every one took from the public stock to Otherwile innumerable tumults must have his own use such things as his immediate arisen, and the good order of the world been neceflities required.

continually broken and disturbed, while a These general notions of property were variety of persons were striving who should then fufficient to answer all the purposes of get the firit occupation of the same thing, human life; and might perhaps still have or difputing which of them had actually an/wered them, had it been poflible for gained it. As human life also grew more mankind to have remained in a state of and more refined, abundance of conveniprimaval simplicity : as may be collected erces were deviled to render it more easy, from the manners of many American na commodious, and agreeable; as, habitations when first discovered by the Europe- tions for shelter and fafety, and raiment for ans; and from the ancient method of liv. warmth and decency. But no man would ing among the firit Europeans themselves, be at the trouble to provide either, so long if we may credit either the memorials of as he had only an usufructuary property in them preierved in the golden age of the them, which was to cease the instant that poets, or the uniform accounts given by he quitted pofleffion ;--if, as soon as he historians of those times wherein crant omnia walked out of his tent, or pulled off his communia et indivija omnibus, veluti unum garment, the next stranger who came by Funciis patrimonium effet . Not that this would have a right to inhabit the one, and communion of goods seems ever to have to wear the other. In the case of habitabeen applicable, even in the earliest ages, to aught but the fubitance of the thing;

| Barbeyr. Puff. 1. 4.C. 4. nor could be extended to the use of it. For

Il Quemadmodum theatrum,

rette, limen dici poteft, ejus effe eum locum querna * Gen. i. 28. + Juftin. 1. 43. C. I. quisque occuparit. De Fin. l. 3. Có 20.


cum commune, fit

tions, in particular, it was natural to ob- ground and herbage remained yet in serve, that even the brute creation, to whom common. Thus we find Abraham, who everything else was in common, maintained was but a sojourner, asserting his right a kind of permanent property in their dwel to a well in the country of Abimelech, lings, especially for the protection of their and exacting an oath for his security, young; that the birds of the air had neits, “ because he had digged that well * " and ive beasts of the field had caverns, the And Isaac, about ninety years afterwards, invasion of which they deemed a very reclaimed this his father's property; and flagrant injustice, and would sacrifice their after much contention with the Philistines, lives to preserve them. Hence a property

was suffered to enjoy it in peace t. was soon established in every man's house All this while the soil and pasture of the and homesta'l; which seem to have been earth remained still in common as before, originally inere temporary huts or move and open to every occupant: except perable cabins, suited to the design of Provi- haps in the neighbourhood of towns, where dence for more speedily peopling the earth, the neceflity of a sole and exclusive proand suited to the wandering life of their perty in lands (for the sake of agricultu:e) owners, before any extensive property in

was earlier feli, and therefore more reathe foil or ground was established. And dily complied with. Otherwise, when the there can be no doubi, but that moveables multitude of men and cattle had consumed of every kind became sooner appropriated every convenience on one ipot of ground, than the permanent substantial foil; partly it was deemed a natural right to seize upon because they were more fulceptible of a and occupy such other lands as would more long occupance, which miglit be continued easily supply their necessities. This pracfor months together without any sensible tice is still retained among the wild and interruption, and at length by usige ripen uncultivated nations that have never been into an eitablished right : but principally formed into civil states, like the Tartars because few of them could be fit for use, and others in the East; where the climate Fill improved and meliorated by the bodily itself, and the boundless extent of their terlabour of the occupant: which bodily las ritory, conspire to retain them still in the bour, bestowed upon any subject which same savage tate of vagrant liberty, which before lay in common to all men, is uni was univecsal in the earliest ages, and which versally allowed to give the faireft and Tacitus informis us continued among the most reasonable title to an exclusive pro- Germans till the decline of the Roman emperty therein.

pire 1. We have also a striking example The article of food was a more imme- of the same kind in the history of Abradiate call, and therefore a more early con ham and his nephew Lotll. When their sideration. Such as were not contented joint sub tance became so great, that palwith the spontaneous product of the earth, ture and other conveniences grew [carce, sought for a more solid refreshment in the the natural consequence was, that a trife Heth of beasts, wnich they obtained by hunt- arose between their servants ; so that it ing. But the frequent disappointments, was no longer practicable to dwell togía incident to that method of provision, in

ther. This contention Abraham thus coduced them to gather together such ani- deavoured to compose; “Let there bun.o mals as were of a more tame and fequa- Arife, I pray thee, between thee and ine. Is cious nature; and to establish a permanent

not the whole land before thee? Separate property in their flocks and herds, in or- thyself, I pray thee, from me: if thu der to sustain themselves in a less preca- wilt take the left hand, then I will go to rious manner, partly by the milk of the the right; or if thou depart to the righ'. dams, and partly by the flesh of the young. hand, then I will go to the left.” This The support of these their cattle made the plainly implies an acknowledged right in article of water also a very important point. cither to occupy whatever ground he pleafAnd therefore the book of Genesis (the ed, that was not pre-occupied by other mot venerable monument of antiquity, tribes. “ And Lot lifted up his eyes, and confidered merely with a view to history) beheld all the plain of Jordan, that it was will furnish us with frequent instances of violent contentions concerning wells; the * Gen. xxi. 30

+ Gen. xxvi. 15, 13, &c. exclusive property of which seems to have Colunt discreti et diversi : ut fons, ut cam. been establihed in the first digger or oc pus, ut nemus placuit. De mor. Germ. 16. fupant, even in such places whcre the !! Gen. xiii.


well watered every where, even as the dence interwoven our duty and oar hapgarden of the Lord. Then Lot chose pinefs together) the result of this very nehim all the plain of Jordan, and journeyed ceflity has been the ennobling of the human east, and Abraham dwelt in the land of species, by giving it opportunities of im. Canaan."

proving its rational faculties, as well as of Upon the same principle was founded exerting its natural. Necessity begat prothe right of migration, or sending colonies perty; and, in order to insure that proto find out new habitations, when the mo- perty, recourse was had to civil fociety, ther-country was over-charged with inha- which brought along with it a long train of bitants; which was practised as well by inseparable concomitants ; ftates, governthe Phænicians and Greeks, as the Ger- ment, laws, punishments, and the public mans, Scythians, and other northern peo. exercise of religious duties. Thus conple. And so long as it was confined to nected together, it was found that a part the stocking and cultivation of defart un only of society was sufficient to provide, inhabited countries, it kept striály within by their manual labour, for the necessary the limits of the law of nature. But how fubliltence of all; and leisure was given far the seizing on countries already peo- to others to cultivate the human mind, to pled, and driving out or maslacring the invent useful arts, and to lay the foundainnocent and defenceless natives, merely tions of science. because they differed from their invaders The only question remaining is, How in language, in religion, in customs, in go- this property became actually vested; or vernment, or in colour ; how far such a what it is that gave a man an exclusive conduct was consonant to nature, to rea- right to retain in a permanent manner, that fon, or to Christianity, deserved well to be specific land which before belonged geconsidered by those who have rendered nerally to every body, but particularly to their names inmortal by thus civilizing nobody? And, as we before observed that mankind.

occupancy gave the right to the temporary As the world by degrees grew more po. use of the soil, so it is agreed upon all hands, pulous, it daily became more difficult to that occupancy also gave the original right find out new spots to inhabit, withont en to the permanent property in the fubftance croaching upon former occupants; and, by of the earth itself: which excludes every constantly occupying the same individual one else but the owner from the use of it. spot, the fruits of the earth were consumedThere is indeed some difference among the and its spontaneous produce destroyed, writers on natural law, concerning the without any provision for a future supply reason why occupancy should convey this or succession. It therefore became necef- right, and invest one with this absolute sary to pursue some regular method of pro- property: Grotius and Puffendorf infiftviding a constant sublistence; and this ne- ing, that this right of occupancy is founded cellity produced, or at leait promoted and upon a tacit and implied asient of all manencouraged, the art of agriculture. And kind, that the first occupant should become the art of agriculture, by a regular con- the owner; and Barbeyrac, Titius, Mr. nexion and consequence, introduced and Locke, and others, holding, that there is established the idea of a more permanent no such implied assent, neither is it necefproperty in the soil, than had hitherto been fary that there should be; for that the very received and adopted. It was clear, that act of occupancy alone, being a degree of the earth would not produce her fruits in bodily labour, is, from a principle of nafufficient quantities, without the assistance tural justice, without any consent or comof tillage : but who would be at the pains pact, sufficient of itself to gain a title. A of tilling it, if another might watch an op- dispute that savours too much of nice and portunity to seize upon and enjoy the pro. scholastic refinement! However, both sides duct of his industry, art, and labour? Had agree in this, that occupancy is the thing not therefore a separate property in lands, by which the title was in fact originally as moveables, been vested in some indivi- gained; every man seizing to his own duals, the world must have continued a fo- continued use, such spots of ground as he relt, and men have been mere animals of found most agreeable to his own conveprey; which, according to some philoso. nience, provided he found them unoccuphers, is the genuine state of nature. pied by any one else. Whereas now (fo graciously has Provi.

Blackstone's Commentaries.

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