The Mode of acquiring anything External.
The general Principle of External Acquisition.
I acquire a thing when I act (efficio) so that it becomes mine.—An external thing is originally mine, when it is mine even without the intervention of a juridical Act. An Acquisition is original and primary, when it is not derived from what another had already made his own.
There is nothing External that is as such originally mine; but anything external may be originally acquired when it is an object that no other person has yet made his. — A state in which the Mine and Thine are in common, cannot be conceived as having been at any time original. Such a state of things would have to be acquired by an external juridical Act, although there may be an original and common possession of an external object. Even if we think hypothetically of a state in which the Mine and Thine would be originally in common as a ‘Communio mei et tui originaria,’ it would still have to be distinguished from a primeval communion (Communioprimæva) with things in common, sometimes supposed to be founded in the first period of the relations of Right among men, and which could not be regarded as based upon Principles like the former, but only upon History. Even under that condition the historic Communio, as a supposed primeval Community would always have to be viewed as acquired and derivative (Communio derivativa).
The Principle of external Acquisition, then, may be expressed thus: ‘Whatever I bring under my power according to the Law of external Freedom, of which as an object of my free activity of Will I have the capability of making use according to the Postulate of the Practical Reason, and which I will to become mine in conformity with the Idea of a possible united common Will, is mine.’
The practical Elements (Momenta attendenda) constitutive of the process of original Acquisition are:—
1. Prehension or Seizure of an object which belongs to no one; for if it belonged already to some one the act would conflict with the Freedom of others that is according to universal Laws. This is the taking possession of an object of my free activity of Will in Space and Time; the Possession, therefore, into which I thus put myself is sensible or physical possession (possessio phenomenon);
2. Declaration of the possession of this object by formal designation and the act of my free-will in interdicting every other person from using it as his;
3. Appropriation, as the act, in Idea, of an externally legislative common Will, by which all and each are obliged to respect and act in conformity with my act of Will.
The validity of the last element in the process of Acquisition, as that on which the conclusion that ‘the external object is mine’ rests, is what makes the possession valid as a purely rational and juridical possession (possessio noumenon). It is founded upon the fact that as all these Acts are juridical, they consequently proceed from the Practical Reason, and therefore in the question as to what is Right, abstraction may be made of the empirical conditions involved, and the conclusion ‘the external object is mine’ thus becomes a correct inference from the external fact of sensible possession to the internal Right of rational Possession.
The original primary Acquisition of an external object of the action of the Will, is called Occupancy. It can only take place in reference to Substances or Corporeal Things. Now when this Occupation of an external object does take place, the Act presupposes as a condition of such empirical possession, its Priority in time before the act of any other who may also be willing to enter upon occupation of it. Hence the legal maxim, ‘qui prior tempore, potior jure.’ Such Occupation as original or primary is, further, the effect only of a single or unilateral Will; for were a bilateral or twofold Will requisite for it, it would be derived from a Contract of two or more persons with each other, and consequently it would be based upon what another or others had already made their own.—It is not easy to see how such an act of free-will as this would be, could really form a foundation for every one having his own.—However, the first Acquisition of a thing is on that account not quite exactly the same as the original Acquisition of it. For the Acquisition of a public juridical state by union of the Wills of all in a universal Legislation, would be such an original Acquisition, seeing that no other of the kind could precede it, and yet it would be derived from the particular Wills of all the individuals, and consequently become all-sided or omnilateral; for a properly primary Acquisition can only proceed from an individual or unilateral Will.
Division of the Subject of the Acquisition of the external Mine and Thine.
I. In respect of the Matter or Object of Acquisition, I acquire either a Corporeal Thing (Substance), or the Performance of something by another (Causality), or this other as a Person in respect of his state, so far as I have a Right to dispose of the same (in a relation of Reciprocity with him).
II. In respect of the Form or Mode of Acquisition, it is either a Real Right (jus reale), or a Personal Right (jus personale), or a Real-Personal Right (jus realiter personale), to the possession, although not to the use, of another Person as if he were a Thing.
III. In respect of the Ground of Right or the Title (titulus) of Acquisition—which, properly, is not a particular member of the Division of Rights, but rather a constituent element of the mode of exercising them—any thing External is acquired by a certain free Exercise of Will that is either unilateral, as the act of a single Will (facto), or bilateral, as the act of two Wills (pacto), or omnilateral, as the act of all the Wills of a Community together (lege).
Principles of Real Right.
What is a Real Right?
The usual Definition of Real Right, or ‘Right in a Thing’ (jus reale, jus in re), is that ‘it is a Right as against every possessor of it.’ This is a correct Nominal Definition. But what is it that entitles me to claim an external object from any one who may appear as its possessor, and to compel him, per vindicationem, to put me again, in place of himself, into possession of it? Is this external juridical relation of my Will a kind of immediate relation to an external thing?—If so, whoever might think of his Right as referring not immediately to Persons but to Things, would have to represent it, although only in an obscure way, somewhat thus. A Right on one side has always a Duty corresponding to it on the other, so that an external thing, although away from the hands of its first Possessor, continues to be still connected with him by a continuing obligation; and thus it refuses to fall under the claim of any other possessor, because it is already bound to another. In this way my Right, viewed as a kind of good Genius accompanying a thing and preserving it from all external attack, would refer an alien possessor always to me! It is, however, absurd to think of an obligation of Persons towards Things, and conversely; although it may be allowed in any particular case, to represent the juridical relation by a sensible image of this kind, and to express it in this way.
The Real Definition would run thus: ‘Right in a Thing is a Right to the Private Use of a Thing, of which I am in possession—original or derivative—in common with all others.’ For this is the one condition under which it is alone possible that I can exclude every other possessor from the private use of the Thing (jus contra quemlibet hujus rei possessorem). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it.—By an individual act of my own Will I cannot oblige any other person to abstain from the use of a thing in respect of which he would otherwise be under no obligation; and, accordingly, such an Obligation can only arise from the collective Will of all united in a relation of common possession. Otherwise, I would have to think of a Right in a Thing, as if the Thing had an Obligation towards me, and as if the Right as against every Possessor of it had to be derived from this Obligation in the Thing, which is an absurd way of representing the subject.
Further, by the term ‘Real Right’ (jus reale) is meant not only the ‘Right in a Thing’ (jus in re), but also the constitutive principle of all the Laws which relate to the real Mine and Thine.—It is, however, evident that a man entirely alone upon the earth could properly neither have nor acquire any external thing as his own; because between him as a Person and all external Things as material objects, there could be no relations of Obligation. There is therefore, literally, no direct Right in a Thing, but only that Right is to be properly called ‘real’ which belongs to any one as constituted against a Person, who is in common possession of things with all others in the Civil state of Society.
The First Acquisition of a Thing can only be that of the Soil.
By the Soil is understood all habitable Land. In relation to everything that is moveable upon it, it is to be regarded as a Substance, and the mode of the existence of the Moveables is viewed as an Inherence in it. And just as, in the theoretical acceptation, Accidents cannot exist apart from their Substances, so, in the practical relation, Moveables upon the Soil cannot be regarded as belonging to any one unless he is supposed to have been previously in juridical possession of the Soil so that it is thus considered to be his.
For, let it be supposed that the Soil belongs to no one. Then I would be entitled to remove every moveable thing found upon it from its place, even to total loss of it, in order to occupy that place, without infringing thereby on the freedom of any other; there being, by the hypothesis, no possessor of it at all. But everything that can be destroyed, such as a Tree, a House, and such like—as regards its matter at least—is moveable; and if we call a thing which cannot be moved without destruction of its form an immoveable, the Mine and Thine in it is not understood as applying to its substance, but to that which is adherent to it, and which does not essentially constitute the thing itself.
Every part of the Soil may be originarily acquired; and the Principle of the possibility of such Acquisition is the original Community of the Soil generally.
The first Clause of this Proposition is founded upon the Postulate of the Practical Reason (§ 2); the second is established by the following Proof.
All Men are originally and before any juridical act of Will in rightful possession of the Soil; that is, they have a Right to be wherever Nature or Chance has placed them without their will. Possession (possessio), which is to be distinguished from residential settlement (sedes) as a voluntary, acquired, and permanent possession, becomes common possession, on account of the connection with each other of all the places on the surface of the Earth as a globe. For, had the surface of the earth been an infinite plain, men could have been so dispersed upon it that they might not have come into any necessary communion with each other, and a state of social Community would not have been a necessary consequence of their existence upon the Earth.—Now that Possession proper to all men upon the earth which is prior to all their particular juridical acts, constitutes an original possession in common (Communio possessionis originaria). The conception of such an original, common Possession of things is not derived from experience, nor is it dependent on conditions of time, as is the case with the imaginary and indemonstrable fiction of a primæval Community of possession in actual history. Hence it is a practical conception of Reason, involving in itself the only Principle according to which Men may use the place they happen to occupy on the surface of the Earth, in accordance with Laws of Right.
The juridical Act of this original Acquisition is Occupancy.
The Act of taking possession (apprehensio), as being at its beginning the physical appropriation of a corporeal thing in space (possessionis physicæ), can accord with the Law of the external Freedom of all, under no other condition than that of its Priority in respect of Time. In this relation it must have the characteristic of a first act in the way of taking possession, as a free exercise of Will. The activity of Will, however, as determining that the thing—in this case a definite separate place on the surface of the Earth—shall be mine, being an act of Appropriation, cannot be otherwise in the case of original Acquisition than individual or unilateral (voluntas unilateralis s. propria). Now, Occupancy is the Acquisition of an external object by an individual act of Will. The original Acquisition of such an object as a limited portion of the Soil, can therefore only be accomplished by an act of Occupation.
The possibility of this mode of Acquisition cannot be intuitively apprehended by pure Reason in any way, nor established by its Principles, but is an immediate consequence from the Postulate of the Practical Reason. The Will as practical Reason, however, cannot justify external Acquisition otherwise than only in so far as it is itself included in an absolutely authoritative Will, with which it is united by implication; or, in other words, only in so far as it is contained within a union of the Wills of all who come into practical relation with each other. For an individual, unilateral Will — and the same applies to a Dual or other particular Will—cannot impose on all an Obligation which is contingent in itself. This requires an omnilateral or universal Will, which is not contingent, but à priori, and which is therefore necessarily united and legislative. Only in accordance with such a Principle can there be agreement of the active free-will of each individual with the freedom of all, and consequently Rights in general, or even the possibility of an external Mine and Thine.
It is only within a Civil Constitution that anything can be acquired peremptorily, whereas in the State of Nature Acquisition can only be provisory.
A Civil Constitution is objectively necessary as a Duty, although subjectively its reality is contingent. Hence, there is connected with it a real natural Law of Right, to which all external Acquisition is subjected.
The empirical Title of Acquisition has been shown to be constituted by the taking physical possession (Apprehensio physica) as founded upon an original community of Right in all to the Soil. And because a possession in the phenomenal sphere of sense, can only be subordinated to that Possession which is in accordance with rational conceptions of right, there must correspond to this physical act of possession a rational mode of taking possession by elimination of all the empirical conditions in Space and Time. This rational form of possession establishes the proposition, that ‘whatever I bring under my power in accordance with Laws of external Freedom, and will that it shall be mine, becomes mine.’
The rational Title of Acquisition can therefore only lie originally in the Idea of the Will of all united implicitly, or necessarily to be united, which is here tacitly assumed as an indispensable Condition (Conditio sine qua non). For by a single Will there cannot be imposed upon others an obligation by which they would not have been otherwise bound.—But the fact formed by Wills actually and universally united in a Legislation, constitutes the Civil state of Society. Hence, it is only in conformity with the idea of a Civil state of Society, or in reference to it and its realization, that anything External can be acquired. Before such a state is realized, and in anticipation of it, Acquisition, which would otherwise be derived, is consequently only provisory. The Acquisition, which is peremptory, finds place only in the Civil state.
Nevertheless, such provisory Acquisition is real Acquisition. For, according to the Postulate of the juridically Practical Reason, the possibility of Acquisition in whatever state men may happen to be living beside one another, and therefore in the State of Nature as well, is a Principle of Private Right. And in accordance with this Principle, every one is justified or entitled to exercise that compulsion by which it alone becomes possible to pass out of the state of Nature, and to enter into that state of Civil Society which alone can make all Acquisition peremptory.
- It is a question as to how far the right of taking possession of the Soil extends? The answer is, So far as the capability of having it under one’s power extends, that is, just as far as he who wills to appropriate it can defend it, as if the Soil were to say, ‘If you cannot protect me, neither can you command me.’ In this way the controversy about what constitutes a free or closed Sea must be decided. Thus, within the range of a cannon-shot no one has a right to intrude on the coast of a country that already belongs to a certain State, in order to fish or gather amber on the shore, or such like. — Further, the question is put, ‘Is Cultivation of the Soil, by building, agriculture, drainage, etc., necessary in order to its Acquisition?’ No. For, as these processes as forms of specification are only Accidents, they do not constitute objects of immediate possession, and can only belong to the Subject in so far as the substance of them has been already recognised as his. When it is a question of the first Acquisition of a thing, the cultivation or modification of it by labour forms nothing more than an external sign of the fact that it has been taken into possession, and this can be indicated by many other signs that cost less trouble.—Again, ‘May any one be hindered in the Act of taking possession, so that neither one nor other of two Competitors shall acquire the Right of Priority, and the Soil in consequence may remain for all time free as belonging to no one?’ Not at all. Such a hindrance cannot be allowed to take place, because the second of the two, in order to be enabled to do this, would himself have to be upon some neighbouring Soil, where he also, in this manner, could be hindered from being, and such absolute Hindering would involve a Contradiction. It would, however, be quite consistent with the Right of Occupation, in the case of a certain intervening piece of the Soil, to let it lie unused as a neutral ground for the separation of two neighbouring States; but under such a condition, that ground would actually belong to them both in common, and would not be without an owner (res nullius), just because it would be used by both in order to form a separation between them.—Again, ‘May one have a thing as his, on a Soil of which no one has appropriated any part as his own?’ Yes. In Mongolia, for example, any one may let lie whatever baggage he has, or bring back the horse that has run away from him into his possession as his own, because the whole Soil belongs to the people generally, and the use of it accordingly belongs to every individual. But that any one can have a moveable thing on the soil of another as his own, is only possible by Contract.—Finally, there is the question: ‘May one of two neighbouring Nations or Tribes resist another when attempting to impose upon them a certain mode of using a particular Soil; as, for instance, a tribe of hunters making such an attempt in relation to a pastoral people, or the latter to agriculturists and such like?’ Certainly. For the mode in which such peoples or tribes may settle themselves upon the surface of the earth, provided they keep within their own boundaries, is a matter of mere pleasure and choice on their own part (res meræ facultatis).
- As a further question, it may be asked: Whether, when neither Nature nor Chance, but merely our own Will, brings us into the neighbourhood of a people that gives no promise of a prospect of entering into Civil Union with us, we are to be considered entitled in any case to proceed with force in the intention of founding such a Union, and bringing into a juridical state such men as the savage American Indians, the Hottentots, and the New Hollanders; Or—and the case is not much better—whether we may establish Colonies by deceptive purchase, and so become owners of their soil, and, in general, without regard to their first possession, make use at will of our superiority in relation to them? Further, may it not be held that Nature herself, as abhorring a vacuum, seems to demand such a procedure, and that large regions in other Continents, that are now magnificently peopled, would otherwise have remained unpossessed by civilised inhabitants, and might have for ever remained thus, so that the end of Creation would have so far been frustrated? It is almost unnecessary to answer; for it is easy to see through all this flimsy veil of injustice, which just amounts to the Jesuitism of making a good End justify any Means. This mode of acquiring the Soil is, therefore, to be repudiated.
- The Indefiniteness of external acquirable objects in respect of their Quantity, as well as their Quality, makes the problem of the sole primary external Acquisition of them one of the most difficult to solve. There must, however, be some one first Acquisition of an external object; for every Acquisition cannot be derivative. Hence, the problem is not to be given up as insoluble, or in itself as impossible. If it is solved by reference to the Original Contract, unless this Contract is extended so as to include the whole human race, Acquisition under it would still remain but provisional.
Exposition of the Conception of a Primary Acquisition of the Soil.
All men are originally in a common collective possession of the Soil of the whole Earth (Communio fundi originaria), and they have naturally each a Will to use it (lex justi). But on account of the opposition of the free Will of one to that of the other in the sphere of action, which is inevitable by nature, all use of the soil would be prevented did not every will contain at the same time a Law for the regulation of the relation of all Wills in action, according to which a particular possession can be determined to every one upon the common soil. This is the juridical Law (lex juridica). But the distributive Law of the Mine and Thine, as applicable to each individual on the soil, according to the Axiom of external Freedom, cannot proceed otherwise than from a primarily united Will à priori—which does not presuppose any juridical act as requisite for this union. This Law can only take form in the Civil State (lex justitiæ distributivæ); as it is in this state alone that the united common Will determines what is right, what is rightful, and what is the constitution of Right. In reference to this state, however,—and prior to its establishment and in view of it,—it is provisorily a Duty for every one to proceed according to the Law of external Acquisition; and accordingly it is a juridical procedure on the part of the Will to lay every one under Obligation to recognise the act of possessing and appropriating, although it be only unilaterally. Hence a provisory Acquisition of the Soil, with all its juridical consequences, is possible in the state of Nature.
Such an Acquisition, however, requires and also obtains the favour of a Permissive Law (Lex permissiva), in respect of the determination of the limits of juridically possible Possession. For it precedes the juridical state, and as merely introductory to it is not yet peremptory; and this favour does not extend farther than the date of the consent of the other co-operators in the establishment of the Civil State. But if they are opposed to entering into the Civil State, as long as this opposition lasts it carries all the effect of a guaranteed juridical Acquisition with it, because the advance from the state of nature to the Civil State is founded upon a Duty.
Deduction of the Conception of the original Primary Acquisition.
We have found the Title of Acquisition in a universal original community of the Soil, under the conditions of an external Acquisition in space; and the Mode of Acquisition is contained in the empirical fact of taking possession (Apprehensio), conjoined with the Will to have an external object as one’s own. It is further necessary to unfold from the Principles of the pure juridically Practical Reason involved in the conception, the juridical Acquisition proper of an object,—that is, the external Mine and Thine that follows from the two previous conditions, as Rational Possession (possessio noumenon).
The juridical Conception of the external Mine and Thine, so far as it involves the category of Substance, cannot by ‘that which is external to me’ mean merely ‘in a place other than that in which I am;’ for it is a rational conception. As under the conceptions of the Reason only intellectual conceptions can be embraced, the expression in question can only signify ‘something that is different and distinct from me’ according to the idea of a non-empirical Possession through, as it were, a continuous activity in taking possession of an external object; and it involves only the notion of ‘having something in my power,’ which indicates the connection of an object with myself, as a subjective condition of the possibility of making use of it. This forms a purely intellectual conception of the Understanding. Now we can leave out or abstract from the sensible conditions of Possession, as relations of a Person to objects which have no obligation. This process of elimination just gives the rational relation of a Person to Persons; and it is such that he can bind them all by an obligation in reference to the use of things through his act of Will, so far as it is conformable to the Axiom of Freedom, the Postulate of Right, and the universal Legislation of the common Will conceived as united à priori. This is therefore the rational intelligible possession of things as by pure Right, although they are objects of sense.
- It is evident that the first modification, limitation, or transformation generally of a portion of the Soil cannot of itself furnish a Title to its Acquisition, since possession of an Accident does not form a ground for legal possession of the Substance. Rather, conversely, the inference as to the Mine and Thine must be drawn from ownership of the Substance according to the rule, ‘Accessarium sequitur suum principale.’ Hence one who has spent labour on a piece of ground that was not already his own, has lost his effort and work to the former Owner. This position is so evident of itself, that the old opinion to the opposite effect, that is still spread far and wide, can hardly be ascribed to any other than the prevailing illusion which unconsciously leads to the Personification of things; and, then, as if they could be bound under an obligation by the labour bestowed upon them to be at the service of the person who does the labour, to regard them as his by immediate Right. Otherwise it is probable that the natural question—already discussed—would not have been passed over with so light a tread, namely, ‘How is a Right in a thing possible?’ For, Right as against every possible possessor of a Thing, means only the claim of a particular Will to the use of an object so far as it may be included in the All-comprehending universal Will, and can be thought as in harmony with its law.
- As regards bodies situated upon a piece of ground which is already mine, if they otherwise belong to no other Person, they belong to me without my requiring any particular juridical act for the purpose of this Acquisition; they are mine not facto, but lege. For they may be regarded as Accidents inhering in the Substance of the Soil, and they are thus mine jure rei meæ. To this Category also belongs everything which is so connected with anything of mine, that it cannot be separated from what is mine without altering it substantially. Examples of this are Gilding on an object, Mixture of a material belonging to me with other things, Alluvial deposit, or even Alteration of the adjoining bed of a stream or river in my favour so as to produce an increase of my land, etc. By the same principles the question must also be decided as to whether the acquirable Soil may extend farther than the existing land, so as even to include part of the bed of the Sea, with the Right to fish on my own shores, to gather Amber and such like. So far as I have the mechanical capability from my own Site, as the place I occupy, to secure my Soil from the attack of others—and, therefore, as far as Cannon can carry from the shore—all is included in my possession, and the sea is thus far closed (mare clausum). But as there is no Site for Occupation upon the wide sea itself, possible possession cannot be extended so far, and the open sea is free (mare liberum). But in the case of men, or things that belong to them, becoming stranded on the Shore, since the fact is not voluntary, it cannot be regarded by the owner of the shore as giving him a Right of Acquisition. For shipwreck is not an act of Will, nor is its result a lesion to him; and things which may have come thus upon his Soil, as still belonging to some one, are not to be treated as being without an Owner or Res nullius. On the other hand, a River, so far as possession of the bank reaches, may be originally acquired, like any other piece of ground, under the above restrictions, by one who is in possession of both its banks.
An external Object, which, in respect of its Substance, can be claimed by some one as his own, is called the Property (dominium) of that Person to whom all the Rights in it as a thing belong, like the Accidents inhering in a Substance, and which, therefore, he as the Proprietor (dominus) can dispose of at will (jus disponendi de re sua). But from this it follows at once, that such an object can only be a Corporeal Thing towards which there is no direct personal Obligation. Hence a man may be his own Master (sui juris) but not the Proprietor of himself (sui dominus), so as to be able to dispose of himself at will, to say nothing of the possibility of such a relation to other men; because he is responsible to Humanity in his own person. This point, however, as belonging to the Right of Humanity as such, rather than to that of individual men, would not be discussed at its proper place here, but is only mentioned incidentally for the better elucidation of what has just been said. It may be further observed that there may be two full Proprietors of one and the same thing, without there being a Mine and Thine in common, but only in so far as they are common Possessors of what belongs only to one of them as his own. In such a case the whole Possession without the Use of the thing, belongs to one only of the Co-proprietors (condomini); while to the other belongs all the Use of the thing along with its Possession. The former as the direct Proprietor (dominus directus), therefore, restricts the latter as the Proprietor in use (dominus utilis) to the condition of a certain continuous performance, with reference to the thing itself, without limiting him in the use of it.