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To the first of these questions we may anfwer in general, that SECT. VII, things belonging to no one may become matter of right to fome one, either by mere occupancy, or in confequence of labour employed to improve or accommodate the fubject to ufe. To the fecond question, we may answer, in like general terms, that a right may be conveyed from one perfon to another by convention or forfeiture.
We are, therefore, in the following fections, to define the titles of occupancy, labour, convention, and forfeiture; and to apply the law of acquifition, founded in these several titles, to the specific rights originating in this law or determinable according to this rule.
Of Occupancy, and the Species of Right that may refult from it.
OCCUPANCY is the relation of a perfon to a thing, fuch, that no other perfon can use the fame thing without moleftation or detriment to the occupier.
In this manner a perfon may occupy the unappropriated ground on which he repofes himself, the spring at which he drinks, or the cover to which he has betaken himself as a fhelter from the storm. In any of these instances, an attempt to use the fame thing may harm or moleft the occupier. He may therefore defend himself against any fuch attempt; or in other words, he has an exclufive right to the fubject in question, fo long as he continues to occupy it, or retains his poffeffion.
This right, however, does not extend to the prohibition of any act by which the occupier is not any way disturbed or aggrieved: So that the occupier cannot justly refift another ufing the fame Cc 2
PART II. thing with himself, if this may be done without any detriment to CHAP. III. him. Every one may breathe the air of the atmosphere, enjoy the light and heat of the fun, pafs on the highway, and navigate the high fea with mutual freedom from harm or molesta
The right that refults from occupancy is no more than that of poffeffion, beginning and ceafing with the act of occupying the fubject to the extent defcribed: So that, as this right does not extend to the prohibition of any act by which the occupier is not aggrieved, it evidently does not preclude any one from resting on the fame ground after the first occupier has removed from it; nor preclude a second perfon from drinking of the same spring, after the first has ceafed drinking; or from having recourse to the fame cover, after it has been abandoned by a former occupier.
As the effect of occupancy, therefore, ceases with the actual ufe, it does not amount to property, or to any right fuppofed to continue during the intermiffion of fuch actual use.
No right in one perfon to command the fervices of another can arife from any title of occupancy, fuppofed to take place without the confent of the perfon whofe fervices are required. To occupy the fervice of another without his confent, implies the use of force to obtain fuch fervice. Force fo employed amounts to an injury; and. instead of conftituting a right, may be resisted on the moft evident principles of the law of felf-defence.
It is justly held to be a public intereft, that fair poffeffion inevery instance should be as little precarious as poffible; and upon
this account mankind willingly enter into conventions, by which PART II. fair poffeffion of a certain duration is admitted as property.
The duration of fuch poffeffion in the laws of different countries is termed prescription, and was unequal in the jurisprudence of different nations, and in refpect to the occupancy of different fubjects. By the antient law of the Romans, respecting fome fubjects, a fair poffeffion of three years amounted to prefcription. In our law and respecting the subject of land estate, forty years fair poffeffion is required to the fame effect.
It is a maxim in the law of nature felf-evident and uncontroverted, that all sfubjects unoccupied and unappropriated are open to the first occupier. If, therefore, by the state of nature, it be meant to design a state in which nothing is yet occupied or appropriated; or if we hold the negation of any right to be an equality of right, as if we fhould fay, that the dead are all equally alive, or that such as have nothing are all equally rich; the maxim of Mr Hobbes may be admitted, fo far as it relates to matters of adventitious right: "That in the state of nature all men had
equal right to all things."
There could be no rule, by which to fettle any rights which did not exist; but, with refpect to the existing rights of the perfon coeval with human nature, there certainly was an existing rule, That no one was entitled to injure or moleft his neighbour. To this rule mankind have at all times reforted; and by this rule they have generally been governed, notwithstanding the occafional irruptions of force and violence. When they are at any time in a state of war, this proceeds not from the want of an amicable rule, by which to decide their differences, but from the influence:
PART II. of paffion or error, which inclines fome one or more of the par
ties to infringe the rule.
Mr Hobbes feems to make the state of war to confift, not fo much in actual hoftility, as in the want of any rule by which differences could be amicably terminated, and in the necessary reference of parties to the decision of force alone: But it is evident that the state of war thus defined did never actually exist; and that, in the midft of hoftilities feemingly the most implacable, nations refer to a standard of right, according to which they plead that the quarrel fhould be amicably terminated in their own favour.
Mankind, in every state, not only had original rights of the perfon, but could not continue to exist without proceeding to occupy and poffefs the means of fubfiftence and accommodation; and without being engaged in transactions which amounted to fome fpecies of convention or bargain: So that the fuppofition of a state, prior even to the origin of adventitious rights, must have been of fo fhort a duration as to resemble an abstraction of the mind, in which co exiftent circumstances are separately conceived; rather than a period of history, during which they actually existed apart.