SECTION IX.

Of Labour, and the Species of Right that refults from it.

LABOUR, confidered as the origin of a right, is an effort, by PART II. which a perfon may, for his own use, fabricate, procure, or im- CHAP. III. prove any unoccupied and unappropriated subject.

SECT. IX.

It is evident that, by the law of nature, a person is not permitted to labour on a fubject occupied, because his labour may be a detriment to the occupier; nor is he permitted to labour on a fubject appropriated without the consent of the proprietor.

Under this title of labour is fuppofed an effort productive of some permanent effect, fome fruit of invention, of skill, or of power any way applied; and the labourer having, by the law of nature, an original right to the use of his talents or powers, has, by evident confequence, a right to the effects produced by any of their applications,

PART II
CHAP. III.

As the right of poffeffion continues during the continuance of SECT IX. Occupancy, so the right acquired by labour continues together with the fubject produced, and belongs to the producer, until he himself fhall confent to forego, or transfer it to another.

The right, therefore, which is thus acquired, comes up to the idea of property. It is a right in the labourer, to the exclufive ufe of his powers, and of their lawful effects, even during the intermiffions of that ufe.

may

The right acquired by labour does not determine with poffeffion: This may be difcontinued during any period, and be resumed again: If the subject be moveable, and during any time mislaid, it may be recovered wherever it is found; if in the poffeffion of another, that other may be lawfully forced to reflore

it.

It may be argued, however, that as the right of property thus originating in labour is limited to the actual effect which that labour has produced; and, as it is not in the power of man to produce any fubftance, he cannot by his labour acquire a property in any fuch fubject whatever. Human labour may combine materials together, or give to a fubftance fome new modification or form; and fo far the right of the labourer extends: But, as the fubftance itfelf is not an effect of his labour, whenever he fhall cease to use it, the fubftance fhall be open to the first occupier.

If any difficulty be fuppofed to arise from fuch fubtilties of argumentation, it may be removed by obferving, that, although

the

SECT. IX.

the right of a labourer may extend only to the form, modifica- PART II
tion, or improvement, he has made, not to the fubject or fubftance CHAP. III.
which exifts independent of his labour; yet, if no one can occupy
that fubject or fubftance, without encroaching upon his right to
the modification or improvement, it is evident, that, in defending
his right to the modification, he may exclude every person from
occupying the fubftance of which the form or improvement is
his property.

The favage who has wrought a piece of wood into the form of a bow, in maintaining his right to the form, neceffarily excludes every other perfon from the ufe of the wood. The husbandman, who, in breaking up uncultivated land, has acquired a right to the fruits of his culture, muft, in order to preferve his right, exclude every other perfon from occupying the earth or ftone of the foil to which his culture has been applied, although he has not in reality produced those substances.

The plea of right refulting from labour is limited to the right of property alone. When applied to any other species of right, whether a right of poffeffion, or a right to command, it is either not neceffary, or not adequate. It is not neceffary to constitute a right of poffeffion; nor is it adequate to establish the claim of one person to a right in the fervices of another.

Poffeffion is valid, because the occupier must not be disturbed. although he may not have bestowed any labour on the subject in poffeffion. Labour, therefore, is not neceffary to establish this fpecies of right.

As to the fecond, or the right to command; if it be
VOL. II.
Dd
afked

CHAP. III.
SECT. IX.

PART. II. afked, whether this may not refult from labour? We must answer in the negative; for, although one perfon may have taken pains to qualify another for the performance of fome fpecific fervice; yet we must contend, that no right to his fervice can be founded on this plea. Labour employed by one on the person of another, without his own confent, may be an injury, and cannot be the foundation of a right. If applied with his confent, but without any ftipulated conditions, the perfon to whom any new art is thus communicated, retains all his perfonal rights, and cannot justly be forced to work for another. "If you taught me an art, might "fuch a perfon plead with his inftructor, without having ftipu

lated that I should employ it for you, it must be understood "that I am free to employ it for myfelf." Gratitude may incline him to make fome return to a benefactor; but the demand of a return may cancel that obligation; and, in answer to fuch a demand, the apprentice may plead: "If you taught me an art, "that I might employ it for yourself, you cannot plead a benefit "intended to me, nor lay claim to my gratitude; or, if you in"tended a benefit to me, you must leave me to enjoy its fruits."

A perfon may innocently labour upon the property of another, without knowing it to be already appropriated. He may give a new form; he may compofe a mixture, of which the materials, either entirely, or in part, belong to fome other perfon. In all these instances, the decision of the law of nature is clear and peremptory, that no one is bound to fuffer a diminution of his right from the act of another, however free from guile or finifter in

tention.

As the party, acting however without guile or malice, cannot be charged with injuftice, the law of nature awards, that the

SECT. IX.

right of any other party concerned should be preferved or reftor- PART II.
ed, with the least poffible detriment to the fair and innocent deal- CHAP. III.
er: And this is wifely provided for, in the conventional law of
every well ordered community. But the rule that is adopted, in
adjusting the relative claims of parties, on fuch occafions, may
vary at the discretion of thofe on whom the practice of law de-
pends. According to the law of the Romans, property thus
brought in to difpute, was fometimes made to follow the original
subject, and fometimes the specification or form bestowed upon
it. When the materials, as in the cafe of bullion wrought into
plate, could be restored to their pristine form, the property was
awarded to him to whom the bullion belonged. Where the fpe-
cification, or new form, was of a certain value compared to the
fubject on which a work was performed, as in the cafe
of a picture, compared to the canvas on which it is painted,
or in the cafe of a writing compared to the paper or vellum on
which it is executed, there the material, from favour to the art
which was practised upon it, was adjudged to be the property of
the artist. Where subjects, belonging to two or more different
perfons, were unwarily mixt by either of them, and could not be
again feparated, it was awarded, that the mixture fhould be di-
vided among the parties concerned, in proportion to the fhare of
materials which each had in the composition or mixture; and the
least inconvenient manner of terminating a dispute was, in this
manner, intended, or provided for in these different inftances.

Labour conftitutes a right to property in the effect, which that labour has produced. Although there may have been labour, therefore, in any particular cafe, if there be no permanent effect, there is no fubject of property. Mariners may have navigated the fea; they may have traversed new and unappropriated islands; but, if the land is no way changed by their labour; the earth, no more D d 2

than