SECT. III.

detriment to

PART II. thing with himself, if this may be done without any 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

tion.

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 described: 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 ceased 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 supposed to continue during the intermiffion of fuch actual use.

No right in one perfon to command the services of another can arife from any title of occupancy, supposed to take place without the confent of the person whose services are required. To occupy the service of another without his confent, implies the use of force to obtain fuch fervice. Force fo employed amounts to an injury; and, instead of constituting a right, may be resisted on the most evident principles of the law of felf-defence.

It is justly held to be a public interest, that fair poffeffion in every 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 jurifprudence of different nations, and in respect to the occupancy of different fubjects. By the antient law of the Romans, refpecting fome fubjects, a fair poffeffion of three years amounted to prefcription. In our law and refpecting the fubject of land eftate, 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 subjects unoccupied and unappropriated are open to the first occupier. If, therefore, by the state of nature, it be meant to design a ftate 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 should say, that the dead are all equally alive, or that fuch 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 ftate 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

CHAP. III.
SECT VIII,

of

PART II. of paffion or error, which inclines fome one or more of the parties to infringe the rule.

CHAP. III.
SECT. VIII.

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 decifion of force alone: But it is evident that the state of war thus defined did never actually exift; and that, in the midst of hostilities 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 tranfactions 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 so short a duration as to refemble 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.

SECTION

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 fubject.

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

Under this title of labour is fuppofed an effort productive of fome permanent effect, fome fruit of invention, of fkill, 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.

SECT. IX.

PART II.
CHAP. III.
SECT. IX.

As the right of poffeffion continues during the continuance of Occupancy, fo the right acquired by labour continues together with the subject produced, and belongs to the producer, until he himself shall consent 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 use.

The right acquired by labour does not determine with poffeffion: This may be difcontinued during any period, and may be refumed 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 restore 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 substance, he cannot by his labour acquire a property in any fuch fubject whatever. Human labour may combine materials together, or give to a substance some new modification or form; and fo far the right of the labourer extends: But, as the substance itself is not an effect of his labour, whenever he fhall cease to use it, the substance fhall be open to the first occupier.

If any difficulty be supposed to arise from such subtilties of argumentation, it may be removed by observing, that, although

the