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chapter 10: On the Right of Property 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
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On the Right of Property1
The divine origin of property
Surely there is a purpose in God having given man a life which cannot be preserved without the use of external things, and in his creation of things which cannot be imagined to have any use as worthy of Divine Wisdom as this, and among them things which are suitable for use in themselves but which would soon perish uselessly if not so employed. [I.12.1.i]
Human property rights not shared with animals
Animals are not endowed with reason (see above, p. 47); no sharing of right can exist between animals and men; and God does not command men to hold any society with them. For there are many things which are suited to serve the different purposes of both animals and men, and there are also many ways in which men can receive benefit or suffer harm from animals, and can themselves either save or destroy them; yet nature has not given us a way to become familiar or share thoughts with them so that we could make agreements with them, as we do with other men, about mutually sharing things and services or at least about not hurting each other. The author of nature would clearly have made provision for this, if he had wished the human race to cultivate society with the families of animals. No right therefore belongs to animals either over themselves or over other things which would limit the universal authority of the human race over external things or prevent men from using them in whatever way would make them most useful to men as a whole. [I.12.1.ii]
How things become property
It is quite certain that external things are not assigned by nature to one man rather than to another. Unless therefore we assume an express donation by God (of the conferring of which on anyone alive today whether directly or indirectly, no trace that we know of can be seen), no particular right in any external object can belong to one man or to one part of the human race more than to another, before it is secured by some human action. But there is no similar agreement as to what are the human actions by which rights of that kind can be acquired. It seems that we must seek an answer to this question in the nature of the community (communio) to which earthly things are thought to have been subject in their original state.
According to our author (Of the Law of Nature and Nations, IV.IV), community of property may be either positive or negative. Positive community is simply ownership (dominium) of a thing which belongs without division to more than one person; negative community is the condition of things which are publicly available to anybody. The effect of positive community is that the common thing is either to be held in common, or to be proportionally divided whether by agreement between the associates who share the common right, or, occasionally, by the judgment of a third party. The effect of negative community is that any of those to whom the things are available, may take from the common store what he can use for himself and apply them to his own purposes, provided only that in so doing he does not prevent the rest from enjoying the use of the things that they need. If this were not the effect of negative community, i.e., if any of those to whom the things are available could not, without the consent of the rest, acquire for himself separate possession of the things that lie in negative community, or make use of them, or even consume them, negative community would be no different from positive community; and the effect on all the things that God had granted to the human race in positive community would be that each thing would remain thus common until by universal agreement it should either become someone’s property or be conceded to someone to occupy.
There is no merit in Pufendorf’s objection that a common right of this kind cannot be called positive community, on the ground that neither ownership nor positive community can be understood when there exist no others against whom those rights are valid.2 In reply to this, first, even when other men do not exist, it is possible for a right to exist which would be valid against others if they did exist; hence there is no reason why one man, even if he were alone in the world, might not have ownership of certain things. Second, positive community is a right belonging to a whole society, not only against outsiders lest they take for themselves a share in a thing which does not belong to them, but also against individual members of the society lest any of them should claim for himself any part of the common property without consulting the society, or even appropriate a part which exceeds his due portion. And yet the doctrine of the author obviously assumes that in the primitive state this right against individuals belongs to the human race.
We conclude therefore that separate ownership could only have been introduced by means of such agreements as the author describes here, if things had been subject to positive community from the beginning. But if things were available to all in negative community, it would suffice for the acquisition of ownership to occupy the thing so available with the intention of keeping it for oneself, without any agreement. Therefore the celebrated author is scarcely consistent, when he denies that the primitive community was positive, while contending that separate ownership of things could not be established without agreements.
But whether external things were from the beginning subject to positive or to negative community, must be determined from the condition of the human race and of the things which have been granted for its use. For the same benevolent author of nature, who has given men the capacity to use and enjoy external things, should also be thought to make the use of this capacity conduce as effectively as possible to the security and benefit of the whole human race. And most earthly things which are useful to man can provide little or no use to several men at the same time, and many of them are consumed by use; but they can be developed, and they need to be developed, by human labor and more closely adapted to human purposes.
For things of this kind to be of service to men in the use for which they are granted, they need to be specially appropriated and adapted to the purposes of the appropriator or of others to whom he concedes them. This appropriation should be accompanied by a valid right against other men. For if other men attempt to take away a thing so occupied from the occupier or prevent him from using it for his own purposes, and at the same time deny it to others for all of whom together it would not be adequate, they would be stealing the fruit of his labor, and this would be a wrong. At the same time they would be frustrating, so far as they could, the purpose for which such things have been given to men by a benevolent creator. For it would be pointless for a man to appropriate a thing which had been available to all and use it for his own purposes, if it were equally right for others to take away what he had so appropriated and frustrate the purposes of the appropriator. It is therefore essential that the occupation of such things should confer on the occupier a right of using them for his own purposes in perpetuity or until they have been consumed, of barring others from random use of them, and of disposing of them in favor of whomever he wants. And since the whole effect of ownership is contained in these points, it is obvious that, in certain things at least, the acquisition of ownership consists in an act of the acquirer alone, and should not therefore be made dependent, as the author contends, on a general human agreement. In other words, these things have been subject from the beginning not to a positive but to a negative community.3
And it is clear that this is the case, first, in things which give man immediate, present use, whether for the moment, like food, or on a continuing basis, like clothes and housing; these are things that we cannot use properly unless we appropriate them for our purposes. If anyone could rightly take any of them away from us, he could by the same right take anything similar from us; and to admit this would be to frustrate the purpose for which their use has been given to men.
Second, since nature has taught man to be provident of the future, the same right seems to extend to the appropriation and preservation of things related to a man’s likely purposes in the future, provided he does not allow any amount of natural goods to perish with him unused or frustrate the opportunity for others to acquire goods which their own use requires.
But, third, this applies not only to things, moveable or self-moving, which are directly useful to men in themselves, but also to things, moveable or immoveable, which serve human purposes with their fruits or services. For the same consideration of utility drawn from future uses also holds here, and there is the same foundation of right in the labor spent in appropriating a thing which was common before, in subduing it, cultivating it, or making it better suited to serve human purposes in any way— these being precisely the means by which one obtains the right of disposing of the thing so acquired and of barring others from random use of it.
Fourth, and finally, the further expenditure of labor and industry which the interest of human society requires in the way of competition in cultivating the things of the earth, is likely to achieve a greater stock of a certain kind of thing than our own personal use requires. In return for these we can acquire, by the use of agreements, other things which are useful to us. This further fruit of our labor should not be taken from us, provided we got it without fraudulent and unfair oppression of others, who should always be left the opportunity to get what their own use requires under fair conditions.
We conclude therefore that in all the cases mentioned, private ownership of things which have limited use can be acquired solely by the expenditure of labor in appropriating them or in preparing them for use, with the intention of keeping them for oneself; we need not ask or await the suffrages of others. For a more thorough discussion of this matter, read the celebrated Locke, Second Treatise of Government, chapter 5. [I.12.2.i]
Things which cannot be acquired4
[Things which are not consumed by use, e.g., air, are to be used] in such a way that they may be available for all the purposes of all men, particularly since another characteristic attached by an almost indissoluble bond to this quality is that these things can be cultivated or better applied to human uses without human labor. Thus nature itself makes these things positively common, we might say, to the whole human race, just as nature has made all other things negatively common, even those which can be drawn from a positively common store (contrary to the celebrated Barbeyrac’s first note on this paragraph).5 Nor can things be fundamentally changed by human agreement from either of these states in which nature has placed them. For although in adventitious rights transmitted from ancestors to descendants, a renunciation on the part of the former may easily be prejudicial to the latter, yet those yet to be born cannot be excluded by any act, however universal, of men now alive, from the exercise of rights which nature herself has granted to individuals. Such are the right of making communal use of things of unlimited abundance, and the right of appropriating for one’s own use anything of the other kind, provided that no one else has occupied it before. [I.12.4.i]
As for the opinion of Grotius (II.II.12) about a river, that, so far as it is a river, or a mass of water contained within certain bounds, it may be privately owned, despite the fact that the individual flowing drops are common, the same could be said without absurdity about the air, and about light itself, insofar as they exist within certain bounds. But like the vast ocean in places remote from shore, so the even vaster atmosphere and the sun’s rays which permeate it in regions high above the surface of the earth, are without doubt positively common. Flowing water however is inaccurately classified by our author, following the Roman jurists, among things positively common, since the community of individual drops of water is not positive but negative, inasmuch as they can be drawn from the common store by anyone and by being drawn made private property. [I.12.4.ii]
Original modes of acquisition
i. Occupation of territory
If a tract of land, not exceeding the extent which supplies the needs of the occupier or of those for whom he is obliged to provide or in whose name he takes occupation, is defined by natural limits, there is no need to set other limits; in this case, entry on the place with a declared intention of occupying it is sufficient. Furthermore, he who undertakes to fix his home in some larger tract of land which is still vacant, by that very fact acquires the right of extending his boundaries in due time to the extent necessary to his purposes. In doing so he should not be hindered by the lawless aggression of later arrivals. [I.12.6.iii]
ii. Occupation of moveables: game laws
[In discussing occupation as a means of acquiring ownership of wild animals, Pufendorf had said that we may acquire wild beasts and such like by occupation, “provided that the civil power does not forbid the casual taking of such things. …” Carmichael comments:]
I would prefer that our author had said, provided that prior occupation of the place has not preceded the acquisition there of things of that kind. It is undoubtedly true that anyone who has acquired a piece of land by right of occupation does not immediately become owner of everything that exists within the bounds of that land (even of things which have been appropriated to no one else); in particular he does not become owner of animals which of their own will can slip away to another place. Nevertheless, he has acquired the right, if he so wishes, to prevent others from taking those things in his territory or of making them their own by taking. The author concedes this with respect to princes at Of the Law of Nature and Nations, IV.VI.7. But neither prince nor people acquire, by the occupation of a wide region, any more right in it against outsiders than any man in the natural state would acquire in any little parcel of land he had acquired. Therefore a people which has occupied some region in its entirety is simply making use of the right of an owner in permitting or forbidding within its territory, either directly or through a governor, the casual taking of moving or moveable things. The same is true if in the latter case it assigns distinct parcels of land to private citizens, either with or without the right of seizing certain things in the parcel of land. But if private owners of parcels of land hold them by original right and have not derived them from a people or a prince, the sovereign is defending the natural right of owners in preventing for the benefit of the owner the casual taking of things of that kind on another man’s land, or rendering it ineffective. But if he upholds such taking, and denies owners a claim on things so taken (as happened among the Romans), or if he claims the taking of certain things for the public treasury, he is making use of the right of civil government which individual citizens had conceded to him against themselves. Therefore it is the license to take moveable things on another man’s land rather than prohibition of that license which it seems we should assign to the civil power and the positive laws. Cf. Grotius, The Rights of War and Peace, II.II.5, and II.III.5; consult Grotius also on the occupation of moveable things (Ibid., chs. VIII, I–7). [I.12.6.v]
Moveable objects, especially animals, may be taken not only by hand but also sometimes with appropriate instruments. That is, we acquire them naturally when we catch or trap them so that they cannot get away by the use of instruments which we have put or set in a place where we have the right to take them. This we think, with Grotius (II.VIII.2), is what should be said about animals which are kept within the limits, however ample, of a place subject to our ownership, e.g., in pools or well-fenced woods. But also things which by their nature are not able to move from a place at least temporarily, and which have to remain in the same place for a time while they mature, can be taken and acquired even though they do not move from the place, provided that a permanent sign is put up, indicating the special care spent on them and the intention to catch them, so that they will not be taken by others subsequently. But we cannot at all agree with the distinguished scholars, who recently published the paradox that a declaration of will alone suffices for acquiring ownership of a thing which belongs to no one, without any taking whether direct or indirect: see Barbeyrac, note 1, on this section.6 Moreover this doctrine in no way fits Locke’s principle of the origin of ownership, which in other respects the distinguished commentator seems to embrace, since no labor is spent on a common object in simply making a declaration of will. Their other point about the consent of others who renounce their own right of occupying a certain thing in favor of a certain other man, has effect only against those who are renouncing the right. Cf. Grotius, II.II.15. [I.12.6.vi]
iii. Accession and merger
The rule [of accession] can perhaps be set out more clearly in this way: all fruits, all additions, all improvements, which accede to my property without involving the property or labor of other men, are wholly acquired by me, except so far as another man, by contract or other means, has acquired for himself any right by which my ownership of my property is limited.
There is a more difficult question, which our author should not have completely ignored: if things belonging to two or more people have merged or mingled to form a new compound object, in such a way that they cannot be told apart or separated, at least without expense; or if a new artifact has been formed from one man’s material and another man’s expert art and industry, how are we to decide in these cases about the ownership of the compound or artifact? On this question, in general, it seems that no opinion is more in line with natural equity than Grotius’s verdict at II.VIII.8 ff.: where the property or labor of several persons has combined to produce some whole, this whole, by natural law, is acquired by those several persons in common, in the proportion of things or labor that each contributed to it. This is to be understood with the proviso that he who has mixed his property or labor with the property of another, did so in good faith, or at least without fraud, and with the intention of acquiring for himself and not of transferring his property or labor.
But if the common thing cannot be held in common or divided without expense, it was fiercely disputed among the ancient jurists,7 to which owner it should preferably go, and there were distinct cases of various kinds contained under this head. The decisions of individual cases presented in the law of Justinian on the basis of their disputes are quite arbitrary and mutually inconsistent. In place of all these, the simplicity of natural law merely commends to us the rule given by our author (Of the Law of Nature and Nations, IV.VII.10): whoever can best sustain the loss of the thing which is now common, is obliged to yield to one who is in desperate need, and should receive fair compensation for his portion of ownership in that object. If the issue is in doubt, there is a need, in the natural state, for the intervention of the judgment of a good man.
The question of the person who, by fault or fraud, has mingled his property or labor with someone else’s property, is also quite intricate. One thing at least seems clear, that if my property is mixed or modified by fault or fraud on the part of someone else and made unsuitable for my purposes, he should pay me the full value of it while retaining the thing itself. On the other hand, he who has made something from a thing of mine by deliberate fraud, or has mixed it with his own property, acquires no right in my property on that ground, and cannot claim from me the full value of his property or labor above the amount by which I believe myself to be enriched, that is, the amount by which I judge that the mixed or modified property has appreciated beyond my estimate of the value of my original property. If on the other hand I estimate that it is less than it was originally and yet I still prefer to keep it, despite its mixed or modified state, rather than exchange it for another of the same kind, the fraudulent appropriator is obliged to reimburse to me the amount by which it has been devalued. See Of the Law of Nature and Nations, IV.VII.10. [I.12.7.i]
iv. Rights over the property of another
Full ownership of a thing, as it arises from the modes of acquiring reviewed above, combines several rights which may be regarded as distinct, since it is capable of producing several different effects. Any of these may be separated from the complex (which will still retain the name of ownership) by one of the acts by which rights are transferred from one man to another, with the effect that it will belong to someone other than the owner of the thing. Such distinct rights are real rights in the full sense, since they terminate in the thing itself and so are valid against any possessor of it. Moreover, they are normally known by that title precisely when they have been separated from ownership, as we have said, and are distinguished from ownership and among themselves by their own particular names. Whether these rights inhere in the owner or in another person, they equally regard their immediate object, i.e., the thing itself, and so must be said to be born and to die with ownership itself. Nevertheless, since they are marked by those particular names only when they are separated from ownership (as we have said), they are commonly said to be created or constituted precisely when they are separated from the ownership, and are said to be abolished at the point when they are again consolidated with it. In this sense much the same thing can be said about these real rights, in comparison with ownership, as we said above about personal rights compared with natural liberty (pp. 77–80): both the constitution and the abolition of them as rights is effected by some kind of transfer, and thus their transfer gives rise to a triple division, and so on.
Some writers reckon these separate real rights as four (see Titius, Observations on Lauterbach, 32): (1) possession, or the right that belongs to the legitimate possessor, against anyone else who does not have a better title; (2) hereditary right, and under this name we include not only the right of the nearest heir to the inheritance in question (i.e., this hardly differs from ownership insofar as it relates to physical property contained in the inheritance), but in particular the right of substituted heirs, which, in the case of property in land, often has a much wider scope in our country than among the Romans; (3) pledge; and (4) servitude. [I.12.8.i]
Derivative modes of acquisition
[Pufendorf says: “Among the derivative modes of acquisition, there are some by which a thing is passed to another by disposition of the law, others by a prior act of the owner.” Carmichael comments:]
[Pufendorf’s] distinction [among the derivative modes of acquisition] is not expressed in quite the right words: for all rights, all obligations, in a word, all moral qualities, are derived from some law, natural or positive, divine or human, and therefore there is no ownership or transfer of ownership except by the disposition of some law. On the other hand, rarely or never does a law transfer ownership without assuming some act, or omission of some act, on the part of the previous owner. What our author means is that ownership is sometimes transferred by the explicit will of the owner to transfer it, and sometimes by the disposition of the law without an explicit will of this kind, on the assumption of some other act or omission on the part of the previous owner. With this clarification the distinction is correct. [I.12.9.i]
[Natural law] itself in the natural state regularly confers the estate of an intestate on those whom he is presumed to have held most dear, in accordance with common human feeling and duty. Incidentally, two things should be noticed about succession in the natural state: (1) since there is no positive law in place, considerable weight has to be given to the accepted custom first of the intestate’s family, if that is adequately known, and then of the neighboring families. He is rightly presumed to have intended to follow this custom. (2) The same weight as a testament is naturally to be given to any declaration of the will of the deceased about the succession to his property, if the reliability of any such declaration can be proved to others and if there is no reasonable evidence to show that it had been revoked. [I.12.10.i]
b. by will.
Here finally it should be noted that the will of the deceased, whether express or tacit, transfers both ownership and the other rights, both real and personal (particularly the latter), that were not limited to the person or life of the deceased himself. Lack of acceptance of the inheritance by a certain time is not a bar; since the deceased cannot revoke his will, it is reasonable for it to be accepted after an interval of time. [from I.12.12.iv]
ii. Transfer “among the living”
This kind of transfer occurs naturally when there is concurrent consent on the part of both giver and receiver (according to our doctrine at pp. 79– 80) about the object to be transferred; for this effect natural law does not require either actual delivery (see Grotius, The Rights of War and Peace, II.VI.1 and 2) or previous binding consent. But since this previous consent frequently occurs earlier, and since the civil law requires for the actual transfer of ownership in these cases the delivery of the thing, the distinction has arisen which is familiar to jurists between acquisition of the title and the conveyance. By the simplicity of the natural law these two things may easily coincide, and even in the civil law they are not always found separated, as is obvious for instance in a spontaneous donation, in which the wish to give is signified and the thing is handed over at one and the same time.
But the distinction which the author adds here between the gratuitous transfer of ownership and transfer by means of a contract, has to be interpreted differently depending on whether or not a previous obligation to transfer is assumed to precede the transfer itself. If no obligation precedes, it is said to be a gratuitous transfer, and takes place by a single act, i.e., by an act which does not involve the reciprocal transfer of any right from the other party. A nongratuitous transfer is one which takes place by a reciprocal act, or by an act which involves such a transfer. Even if there is a preceding obligation to transfer ownership, the thing is still said to be given if that obligation was based on a gratuitous promise of giving; in the Roman jurists the promise itself comes under the name of donation (see Justinian, Institutes, II.7.2). However if the obligation is based on any other cause, whether contract, quasi contract, or delict, the thing is said to be transferred with a burdened title.8 [I.12.13.i]
iii. Transfer without consent
Ownership of things (as well as of other rights on occasion) may also be transferred, against the will of the previous owner, by the disposition of the natural law though with the intervention of some human act, in order to satisfy a right which already belongs to the acquirer against the owner and which he has refused to satisfy of his own accord. This is in line with our doctrine at pp. 69–71 [on the right to punish in the state of nature]. This natural justice is also the foundation of the legal execution, by which in civil societies the property of debtors, whatever their title, is applied to pay their debts to their creditors, provided a judge so authorizes; and is also the foundation of all acquisition in war which can be considered licit and just. Furthermore, in civil societies property is transferred as a penalty for delicts. [I.12.14.i part]
iv. Usucapion or prescription
Here the author describes Usucapion as it obtained among the Romans, which is recognized as originating in the civil law by Justinian, Institutes, II.5.6. But there is something analogous to usucapion or prescription in the acquisition of a thing, after presumed abandonment by the former owner, especially if acquired in good faith; such acquisition is valid by the natural law itself (see Grotius, II.IV). And we surely know no other prescription properly based in this right than that which relies on the presumption of tacit abandonment or on tacitly accepted alienation. This presumption necessarily assumes not only that the owner has not made a claim to the thing, but also that he has been given a proper opportunity to do so. The simple passage of a long period of time does not in itself guarantee that there has been such an opportunity. However I do not think it is incumbent on a possessor to prove by positive evidence that the owner has had a proper opportunity to claim. I would say rather, in this as in certain other cases, that men who live in a natural state with each other must have recourse to arbitration by a good man; and he, after duly weighing the length of time passed, and the other circumstances of things and persons, is to determine (by the evidence we referred to in the note just cited) whether or not the former owner appears to have abandoned his property or to have tacitly accepted it as alienated. This is surely the rule which we recognize in natural liberty for ending the dispute between possessor and a former owner. In civil societies however no one will readily deny that a certain period of time is rightly established as the criterion for ending such a difficult dispute. One should add in passing that, when a possessor is relying on occupation confirmed by abandonment by the former owner, it makes little difference whether the occupation took place before or after the former owner had given adequate indications of his will to abandon it. In the latter case, the abandoned property was truly available for occupation at the time when it was occupied; in the former case, occupation seems to have been granted by the will of the owner to anyone whose possession of it is legal in other respects. [I.12.15.i]
[1.] From the notes to bk. I, ch. 12, “On Duty in Acquiring Ownership of Things”; and bk. I, ch. 13, “On the Duties Arising from Ownership.”
[2.] Pufendorf, Of the Law of Nature and Nations, IV.IV.3, p. 365.
[3.] Carmichael’s argument that the right of property had its origin in the appropriation of things by human labor, not by agreement, as Pufendorf had contended, is clearly indebted to Locke’s Second Treatise of Government, ch. 5, secs. 27–30. Barbeyrac also maintained, against Pufendorf, that the right of property had its origin in labor, as Locke had argued (Pufendorf, Of the Law of Nature and Nations, IV.IV.4, n. 2, p. 366). Both authors may be said to have been particularly responsible for the interpretation of Locke’s labor theory of property as a theory of occupation of a world not yet occupied, i.e., a negative community. See Moore and Silverthorne, “Gershom Carmichael and the Natural Jurisprudence Tradition,” pp. 80–83. It is remarkable that in the translation of Cumberland’s A Treatise of the Laws of Nature the translator, John Maxwell, refers not to Locke on the origin of property but invites the reader instead to “see Carmichael’s and Barbeyrack’s Puffendorf upon this Head of the original of Dominion upon which our Author is very General” (p. 315).
[4.] Having given a “natural law” justification of property, Carmichael continues his exposition by taking the topics on property largely in the order in which they were normally discussed in treatises of Roman law, e.g., in Justinian’s Institutes, bk. II: occupation, accession, servitudes or rights over the property of others, usucapion, or prescription. In several cases he amends Roman law doctrines in the light of his understanding of natural law.
[5.] Barbeyrac, Devoirs, p. 306, considered that the reason some things are left in negative community is that these are things that either cannot be possessed or cannot be defended from others.
[6.] Ibid., p. 308; see also Pufendorf, Of the Law of Nature and Nations, IV.VI.2, n. 2, where Barbeyrac attempts to defend this opinion (that a declaration of will may sometimes suffice to establish occupancy), which he asserts is also Titius’s view (Observationes, no. 292), by allowing that the moment one neglects to act upon this declaration, one renounces the right one had begun to acquire. He took this to be a sufficient answer to “Mr. Carmichael’s Objection” (p. 386).
[7.] The two schools of thought among Roman jurists on this question went under the names Proculian and Sabinian.
[8.] Carmichael discusses contracts, quasi contracts, and, to some extent, delicts in chapter 11, below.