صور الصفحة
PDF
النشر الإلكتروني

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 perfon from occupying the substance 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 use 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 preserve his right, exclude every other perfon from occupying the earth or stone of the foil to which his culture has been applied, although he has not in reality produced thofe fubftances.

The plea of right refulting from labour is limited to the right of property alone. When applied to any other fpecies 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. afked

Dd

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 specific service; 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 personal 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 some return to a benefactor; but the demand of a return may cancel that obligation; and, in answer to such a demand, the apprentice may plead: "If you taught me an art, "that I might employ it for yourfelf, 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 decifion 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 intention.

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 any other party concerned should be preserved 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 those on whom the practice of law depends. According to the law of the Romans, property thus brought in to dispute, was fometimes made to follow the original subject, and sometimes the fpecification or form beftowed upon it. When the materials, as in the cafe of bullion wrought into plate, could be restored to their priftine form, the property was awarded to him to whom the bullion belonged. Where the specification, 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 fubjects, 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 divided among the parties concerned, in proportion to the fhare of materials which each had in the compofition or mixture; and the least inconvenient manner of terminating a dispute was, in this manner, intended, or provided for in thefe 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 traverfed new and unappropriated iflands; but, if the land is no way changed by their labour; the earth, no more Dd 2

than

PART II. than the tracklefs ocean, can become a fubject of property to the CHAP. III. perfon by whom it is merely traversed.

SECT. IX.

It is nevertheless a cuftom of fome standing, among the nations of Europe, to claim the dominion of newly difcovered lands or islands, as founded in prior difcovery, and confirmed alone by fymbolical forms or acts of poffeffion; fuch as the erecting of columns, with dates and inscriptions recording the claim of the fovereign, in whose behalf it is made.

So far as any number of nations have been in practice of claiming and acknowledging rights, founded in fuch forms as thefe, they must be understood to have entered into a fair convention refpecting fuch fubjects. A mere fymbolical occupancy is valid against those who have repeatedly availed themselves of the fame plea, and who are therefore come under an obligation to give way to it in their turn. It is a plea fufficient to exclude those who have agreed to be excluded by it, but not to exclude any ftranger who is not a party to any convention in the cafe, whether exprefs or tacit; much lefs a plea fufficient to deprive the native, however rude or barbarous, of the inheritance or poffeffion to which he is born.

The right of the claimant, therefore, among the nations of Europe, upon the ground of discovery or fymbolical poffeffion, is matter of convention merely among fuch nations; and cannot be derived, either from the principle of occupancy, or the principle of labour, at least, until the fubject is actually occupied, or, from the labour bestowed upon it, has received fome actual change or improvement.

* PART II. CHAP. III. SECT. IX.

Such are the ways in which a subject, the right of no one, may become the right of fome one; either while he occupies it, or in confequence of the effect he has produced in it by his labour.

It remains, that we confider by what means the right of one perfon may be transferred to another, as in convention or forfeiture.

Res nullius.

SECTION

« السابقةمتابعة »