SECT. VI. asked, whence his right is derived? or by what evidence he is en- PART. II. abled to support his claim? Such right, however fairly constitu- CHAP. III. ted, is still matter of difcuffion, and the object of science, in every fuch difcuffion, is to ascertain by what means a fubject, not originally matter of right to any one, may become so to some one; or, in other words, if a claim fhould be laid to any fuch right, it is material to know by what evidence it may be evinced or fupported. As rights perfonal, agreeably to the definition which hath been given of them, for the most part are original, or coeval with the existence of the perfon, fo the rights real, fuch as possession, property, or command, are, for the most part adventitious, and may begin to exist at any period fubfequent to the existence of the perfon and the thing to which they relate; and, as both the person and the thing might have continued to exist, without any apprehended relation of one to the other, we are in the following fections to enquire whence fuch relation may have arifen; how they are constituted, and how they are to be verified in any particular instance. SECTION SECT. VII. Of the different Sources of Adventitious Rights. PART II CHAP. III. SECT. VII. BEFORE we proceed to affirm whence an adventitious right may arife, it is proper to obferve negatively, that it cannot arise from any act of injustice or wrong; nor be constituted where the thing is impoffible or not real. Injustice or wrong has reference to a perfon injured or wronged, who may defend himself; and to a perfon committing an injury, or doing a wrong, who, instead of reaping benefit from his wrong, exposes himself to fuffer whatever may be neceffary to repel his injurious attempt; or whatever may be necessary to obtain reparation of the harm he may have done. This negative propofition were too obvious to need being formally stated, if it were not neceffary to correct a common folecifm in language, by which we are told of the right of conqueft, arifing from a fuccessful application of mere force, without re gard gard to the justice or injuftice of the cause in which that force was PART II. employed. Where conqueft is matter of right, there must be fuppofed a previous title to the fubject conquered; and, if fuch title be verified, the conqueft amounts to no more than a juft poffeffion obtained by force. To this negative proposition, that right cannot arise to an injurious perfon from the wrong he has committed; we may fubjoin what is equally evident, that no title can arife to what is not poffible or not real. Where either the thing or the perfon has no existence, there cannot be any relation. Upon this ground, we fhall have occasion to observe, that although parties stipulating what is impoffible may, by fuch proceeding, give rife to fome claim in the one against the other, yet that there cannot be any obligation to the performance of any fuch article, however directly ftipulated. In treating the history of adventitious rights, there are two questions which may be separately difcuffed. The first question relates to things which, prior to the origin of the right in queftion, had not become matter of right to any one *; and the object of fcience is to afcertain by what means a thing till then open to the first occupier, may have become a matter of exclufive right to fome particular perfon. The fecond queftion relates to the transfer or conveyance from one person to another of a right previously supposed to exist in the perfon by whom the conveyance is made. VOL. II. C c To CHAP.III. *Res nullius. PART II. 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 use. 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 feveral titles, to the specific rights originating in this law or determinable according to this rule. SECTION SECTION VIII. 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 person 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 shelter 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 queftion, 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 thing PART II, CHAP. III. |