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ACQUIRED RIGHTS

Chapter 4

452. The nature of jural occupancy resides, therefore, in an intimate and natural connection between things and persons. Because persons are simultaneously physical and moral beings, we have to distinguish the physical and moral parts of this personal connection. The conditions of jural occupancy are reduced, therefore, to ascertaining the reality of this twofold connection. In other words, occupancy is present when the physical and moral bonds of things with persons are in place.

453. Consequently, the conditions of occupancy are also the conditions determining the limits of occupancy. It is in the establishment of these two conditions that we have to look for the limits of occupancy.

454. By beginning with the physical bond, we see the limits placed upon occupancy as a result of the difficulties of effecting the physical bond. When an individual takes possession of something from which he is unable to draw any benefit whatsoever, he does not occupy it jurally, nor does he acquire any ownership over it. The third constitutive element of right is lacking.

455. No true, real connection can arise if the benefit intended and hoped for by the occupier from the thing is false and totally untrue, that is, if it is the result of an erroneous calculation dependent upon some vain hope created by the imagination. In this case, the connection is not founded in the nature of the human being and the thing; it is rather an aberration of nature. It cannot, therefore, constitute the matter of a natural right.

456. All that remains to do now is to distinguish between an involuntary, innocent error, and one generated by harmful passion. An example of the latter is the activity of possession or envious malice seeking to prevent possession on the part of others.

457. In the case of innocent error (we always take it for granted here that the error is fully certain the least doubt would be sufficient to make us presume in favour of the occupier), the moral law obliges us to take all possible care to avoid disturbing an individual labouring under error or illusion. If we are dealing with malicious error, the moral law does not provide for such careful treatment. But in neither case does the moral law extend to taking from the owner the moral-jural freedom to repossess something held by others without right.

458. This teaching has to be put into practice with the greatest caution. Otherwise it could be used maliciously as a basis for disturbing the first occupiers of things under the pretext that these things are of no use to them.

459. But the need to take great care in applying some teaching in order to avoid difficulties in practice does not make the teaching untrue. While fully acknowledging that certain teachings are dangerous when applied by unskilled practitioners, I feel obliged to confess their truth. It would be false prudence to declare true teaching false, as some do, because it seems difficult to put it into practice without danger.

As far as I can see, the difficulty never arises from the quality of truth in a teaching, but solely, as I said, from the difficulty present in its application and from the lack of skill on the part of the person attempting the application.

If a proposition is difficult to apply, there is certainly danger of its being applied wrongly and a consequent need for awareness, caution and care in its use, but nothing more. If we were to go further and say that it is false, we would be lying and committing a genuine misdemeanour. In fact, there is nothing more dangerous and imprudent than affirming that something true is false. Although a true teaching is dangerous, a false teaching substituted in its place is always harmful. Danger, therefore, is exchanged for actual harm. There can be no greater imprudence than this, to my way of thinking. We find it, unfortunately, in certain writers and sometimes in certain civil rulers who set themselves up as judges of what is being taught without having first asked themselves if such a sacred office is proportionate to their capacities.

My attitude is not to substitute false for true teaching because the truth is difficult to apply, but to affirm as true everything that appears to me to be true (after having consulted the best authorities) without paying heed to the consequences. These I abandon to the Providence of him who is subsistent truth; this Providence orders everything, and from my point of view it alone is prudent.

I shall, therefore, continue to follow my normal custom here. I shall indicate the difficulty, that is, the difficulty in the application, and I shall go on to suggest the precautions that may be adopted in order to avoid the suspected danger (if the nature of my argument and its connection with the difficulty allow, or I think it can be done). I will also put forward rules to be followed in the application of the truth which, in so far as we can easily abuse its title in the service of our passions, we think dangerous, or which is actually dangerous. My past and present hope is thus to have fulfilled the duty incumbent upon every writer, and especially upon a Catholic writer.

460. It is true therefore (and we return now to our argument) that someone could disturb a possessor in his occupancy with the pretext that what is possessed is of no benefit to the occupier: this is the danger. But it is also true that anyone who judges erroneously that what is occupied is useless for the owner does not adhere to the principle we have established. This principle justifies neither pretext nor false judgments, but only true and certain judgments.

461. But is the judgment about the benefit that a thing can bring to its occupier to be made by the occupier or by the one who wants to occupy it because he thinks it helpful to himself and useless for the occupier? Both have an equal right to judge provided they judge truly. If they judge according to truth, they will agree; if they judge falsely, the false judge will be wrong; he injures the other's right and can be brought back to his duty by force on the part of the other.

462. Both, however, think that they are right; one of them judges wrongly; who is to decide between them? This is the inevitable question in all cases of discordant judgments, and has to be resolved by means of the general principles capable of putting an end to controversies amongst human beings. In civil and ecclesiastical society, tribunals are available, but if we consider human beings as still in the state of nature the principles are as follows:

463. 1. Whoever sincerely believes in the soundness of his conclusion can use force to maintain his right; but in using force when his conclusion is incorrect he leaves himself open, in the moral-jural order, to wrong-doing and to harming the other's right. If both use force, therefore, one of them is certainly wrong and blameworthy. In this case, it is impossible for each of them to be fully convinced of the truth of his own case with total security and as a result of logical proof; this truly logical and impartial conviction, however, is always a necessary, prior condition in the individual who considers using force in defence of his own right.

464. 2. The use of force, therefore, is justified only by the party who is totally and evidently correct, and moreover correct in such a way that the opposite party (to whom the argument has been fully submitted) must acknowledge and admit the argument as correct.

465. 3. If there is the least doubt or obscurity about the correct decision, the parties would be obliged by moral jural law to come to some peaceful agreement amongst themselves by way of treaty. They may either consider the matter themselves according to the principles of equity, or leave it to their lawyers, experts or procurators, or finally entrust it to an arbitrator in whom both have confidence.

466. 4. If one of the parties were unwilling to use these means for ending the dispute peacefully and, as we said, did not have any evident argument in his favour, he would oblige the other to defend himself with force. In this case, the use of force would no longer offend justice.

467. By keeping to these rules, individuals facilitate the application of the principle which is thus totally bereft of the danger it presented at first sight.

468. The same principle of limitation also enables us to determine how far a person in the state of nature may lawfully go in occupying things which afford him some utility. It is clear that:

469. `Each one can take possession of unoccupied things useful for him to the extent that he has the power to administer or turn them to some advantage.'

470. For example, a single individual who wished to take possession of thousands of acres of fertile land which he then had to leave uncultivated would not lawfully have made that land his own.

471. This would not be so, however, if he were able to cultivate it through his children, or servants or settlers. In this case, he would have the capacity to obtain the fruit of that land.

472. But would the simple hope of acquiring the necessary capacity for administering and developing what is occupied be sufficient? This is difficult to answer within the ambit of natural Right.

473. Our reply has to begin from the principle that `occupancy is possible where the physical connection, founded in nature, is possible between things and persons.'

474. It is clear, however, that if the forces necessary to administer and draw fruit from the thing do not yet exist in any way (even in proximate potency), the required connection, which is formed through relationship with these forces, cannot exist. The thing in question is, therefore, not yet open to occupancy. But if these forces exist, at least in proximate potency (for example, if there are offspring who are only infants, or agricultural tools which, although not yet produced, are about to be made with suitable raw materials by skilled labour), the physical connection is already possible because a real relationship exists between the thing to be taken possession of and the incipient, growing forces; and moreover it is reasonable for the prospective owner to count on forces that are undoubtedly at hand.

475. But the uncertain development of these forces and a mere hope or probability of their arrival is not, I think, sufficient to produce the physical connection through which a thing is assigned with absolute certainty to its holder or occupier. In this case, even the jural occupancy should be regarded only as a hope for the future, not as an actual fact. Consequently, the things under consideration should be seen as free and unoccupied. The possessor's certainty of obtaining the desired benefit from the things in question that is, a certainty founded on the forces which have already made an appearance and which will undoubtedly appear in the future is the necessary condition for being able to effect the natural bond of which we are speaking.

476. Before proceeding, I shall comment briefly on the principal opinions of some authors about the standard needed for occupancy of things in the state of nature, and compare it with the standard we have laid down.

Some, like Tieftrunk,(139) claim that human beings in the state of nature cannot take possession of anything except what is necessary for the preservation of their lives. It is clear, however, that this is an arbitrary rather than a natural law. Human nature certainly aspires to good beyond the mere preservation of life.

477. Others, Schlettwein(140) amongst them, maintain that people in the state of nature can make their own more than what is necessary for subsistence, but only on condition that it is not required for the preservation of their fellow human beings. In such a system, an individual would have to calculate the needs of all his fellows before becoming the owner of anything. This would be altogether impossible in the state of nature in which each person is certainly not obliged by the natural law to come to know everybody else. This obligation would be arbitrarily and (I would maintain) tyrannically imposed under a cloak of humanity.

478. Kant(141) says that the right of occupancy extends to everything an individual is capable of defending. This assertion, however, is as gratuitous as the preceding affirmations. It is also vitiated by the error deriving ownership from force rather than from the moral law. I do not cease to be the lawful owner of what is mine if I am unable to defend it against a thief or an assassin. On the other hand, while I could perhaps defend less than I am capable of administering and enjoying (and perhaps less than is necessary to preserve my life), I could in other circumstances defend more than I can enjoy and administer. In this case, I would remove from my fellow human beings a great quantity of good which is totally useless to me. This is obviously against the law of nature.

479. In confuting these opinions, Zeiller, a very sagacious person, substituted as a legal standard for occupancy the possibility of taking possession of a thing and marking it as one's own. But this standard is no better than those we have already examined.
If I were able to take material possession of some land that was totally useless to me but very necessary for my fellow human beings, and were able to mark it as my own, I would still have injured my fellows in exactly the same way, and damaged their natural right. Rational nature `forbids us from doing that which injures others while providing no good for ourselves.' Reason never gives a right to such a stupid action, but grants the right of exclusive occupancy of things only on the basis of the utility that we can naturally draw from them, that is, in accordance with the laws of our upright nature.

480. It is precisely in the utility which we can derive from things that we have to find the first determination of the quantity of things that we can occupy.

481. The limitation of occupancy arises, therefore, from the quality we call jurally occupiable, a quality necessary in the thing we wish to make our own. However, it is not sufficient for the thing in itself to be jurally occupiable if it is to enter into our ownership. Actual occupancy is also needed, that is, we have to take possession of it. Here we have another condition effecting ownership, and hence another limitation to it.

482. What is required, therefore, in order to take possession of something?
This phrase `to take possession' is ambiguous in the treatises on Right. Sometimes it is used as synonymous with occupancy which produces a right; sometimes it is considered as a simple preliminary step which does not of itself produce a right, which is formed later by occupancy.(142)

483. We hold that possession or detention of something with the intention of making it one's own does not as such form the right of ownership, but what we have called the `physical bond'. However, irrespective of semantics, let us continue with our attempt to describe the formation of this physical bond between thing and person, a bond which comes about by `taking possession' of something. We shall then be able to deduce from `taking possession' the limitations of ownership that we are seeking.

484. Persons naturally form a bond with what is useful to themselves (provided they can make use of it) as soon as a thing on which they have set their sights is reserved for them, and they have put their mark upon it by immediately starting to work it for their own benefit.

485. Granted the existence of something useful, and of forces within a person for making use of it, the elements of this bond are:

1. The act by which the person knows the thing, and knows that it is useful for him.
2. The act with which the person, as a consequence of this knowledge, wants and proposes to reserve that thing for his own use and advantage.
3. The act with which he begins to work with the intention of drawing from the thing the advantage that it can give him.

486. Properly speaking, only the final element is a physical act; the two preceding elements are acts of the understanding and will presupposed by the physical act which, although physical, has to be moved causally by an intellective-volitive principle. For the moment, we shall deal solely with this physical act, and return later to the preceding spiritual acts. These will lead us to consideration of the moral bond and of the limits it sets to occupancy.

487. We have said that possession can be taken of something useful when forces are available for enjoying it. They must exist in such a way that although not completely ready for what is intended, they can nevertheless certainly be made ready by the person who has them, and are in fact actually being prepared (cf. 472-474). As we said, it is necessary that a thing seen and intended as one's own begin to be worked upon immediately with the intention of obtaining from it the advantage it can offer. The work intended must consist at least in bringing into play existing forces for the purpose intended. For example, an individual may have already begun to make the tools necessary to cultivate a piece of land on which he has set his sights and his mark. This is sufficient to unite the land to himself by means of his physical force. Anyone taking the land away from him at this stage would be causing injury to him in his nature.

488. This could seem a very low requirement for the formation of the physical bond, and it would indeed be so if we accepted the physical bond as occupancy pure and simple. But this is not how I understand the physical bond. It is only one element of occupancy, which is not carried through to completion without the addition of the moral bond and the designation implied in the moral bond (we shall speak of this later).

489. Meanwhile it is certain that having decided to cultivate a piece of land, and having taken the trouble to prepare what is necessary for cultivation, an individual would be distressed if someone else took over the land. This natural, not arbitrary, pain is a symptom of the union between the person and the thing. This union has already been brought about by the physical work entailed in the preparations. It would now be interrupted and lost if the land for which it was destined were to be snatched away.

490. We say, therefore, that the start of work destined to prepare forces already substantially existing, but not yet fully developed relative to the full activity for which they are certainly available, is the minimum physical act sufficient to put into being the physical bond of which we are speaking. It follows that work exercised immediately on what has been made one's own will be more than sufficient provided that the work is done in order to use the thing and gain the fruits or advantages it offers when the work has been completed. Starting to use the thing (for example, by deforesting and ploughing land or by other preparatory work, or by actual cultivation) immediately becomes a further tightening of the physical bond joining an individual to what he intends to make his own and has already made his own.

491. Some authors claim that making a thing one's own in the state of nature entails providing it with a new form.(143) It is certain, however, that things can be enjoyed without their form being changed, and that it is not necessary for the owner to change their form if they are truly his. Moreover, the object of ownership is not the form conferred upon a thing, but the advantage that can be drawn from it.

492. But not even Counsellor Zeiller seems to have grasped the correct idea we want to expound. Although he dismisses the system which requires a new form, he says that if `new form' means any application whatsoever of forces and labour to something, `the designation applied to the thing would be sufficient because even this could not be placed on the thing without the external use of forces. Moreover, simply taking possession (for example, of an animal located at a distance) is capable of requiring more expense and labour than the entire transformation of the thing.' (144)

Note, however, that neither effort nor expense constitutes the matter of the right to occupancy, but `the effort involved in its use'. Mere effort or heedless expense which is not directed to utility has no power to bind anything to a person in such a way as to make it the person's own.

493. If, then, we add to the new form with which the thing is furnished the directive by which we draw some advantage from the thing, the new form will be more than sufficient to constitute the physical bond of which we are speaking. As we said, the bond can be brought about by starting any work sufficient to utilise the thing in question. The usefulness springing from things cannot always be attained instantly; sometimes it comes about immediately, sometimes after a certain delay. We cannot therefore require things to be immediately useful; it is enough if our work sets their usefulness in motion.

494. According to the principle we have explained, the bond is formed physically or rather we take possession of something,

a) by means of work preparatory to obtaining some benefit from the thing. For example, we make agricultural implements, we build walls or plant hedges around arable land to protect it from animals and humans; we shut up animals with the intention of using them for food or some other use. In other words, we do whatever is helpful for enjoying the advantages the thing can provide.
b) by means of productive work, that is, work which immediately produces some result. For example, we cultivate a field which has already been prepared.
c) by means of work which uses or consumes the thing in question, in so far as it can be used or consumed.
d) by means of formative, inventive or craft work, that is, work which renders something useful to its owner and is done with the intention of reserving the thing for its owner.

495. This last type of work, by which things are bound to persons, can be subdistinguished in various ways. For example

1st. the work of generation by which a father brings a child into being;
2nd. the work of formation, production, development, by which an artisan constructs a machine with raw materials that he owns, an artist paints a picture, a technician constructs a new clock, an author writes a book, and so on.

496. If we compare these two modes of production with that of creation, we see without difficulty that creation constitutes a title of absolute ownership over all things for the Creator. This ownership is of a different nature from human ownership.

497. Creation gives being to substance itself and to the matter of things. It is therefore a title embracing all other titles. These do not subsist except in and by means of the first title proper to the Creator.

498. A third limitation to ownership arises from the same principle (that utility is always the true object of right). Occupancy does not completely destroy in other people the faculty for an innocuous use of the things taken possession of.

499. This has to be understood carefully, however. In order to be truly innocuous, the use made of the thing must be incapable of causing any reasonable trouble to the owner. It must not cause him the least discomfort nor take from him the least amount of present or future advantage, use or pleasure that he can have from what he owns.

500. This freedom to an innocuous use of other peoples' things is admitted by Grotius,(145) Daries,(146) Wolff,(147) Martini(148) and others.

501. Martini adds only that if the appearance of innocuous use proves deceptive, the owner should be asked. This is, in fact, the easiest, and I dare say the jurally obligatory way of clarifying the matter. The moral-jural law obliges me to use every possible precaution to avoid danger of harming the rights of others. In doubt, I cannot posit this action, and an owner can prevent me from doing so even with the use of force.

502. Nevertheless, if the thing under consideration were obviously innocuous, enquiring of the owner would be nothing more than a question of protocol. If he should then proffer a clearly irrational refusal, one could make use of what he owned (which at this point is not his) even to the extent of employing force to overcome any violence he may have initiated.

503. Zeiller denies this freedom of innocuous use of others' things(149) because, he says, `using them in any way always harms the rights of others.' But this is a totally gratuitous affirmation which cannot be derived from his principle of co-existence. Innocuous use of something certainly cannot eliminate co-existence amongst the human race. Nor can this affirmation be derived from our own principle of `natural displeasure'': an owners displeasure at the innocuous use of his goods is not natural, but rather reproved by his rational, moral nature. Nor is the innocuous use of things forbidden by the quality `non-renewable' that Zeiller assigns to ownership (cf. 389). If the use is truly innocuous on the part of others, it cannot be said that use by the owner is capable of exhausting it.

504. To Martini's restriction (that the owner first has to be asked), Zeiller replies that `the owner cannot be obliged to make his opinion known.' But why not? Such a crude, abrupt right not to speak his mind is a consequence of an error in which nature is taken as a state where individuals are altogether isolated and act without reference to others.(150) This is certainly not the concept that we form of the state of nature: for us it is a state in which people, although not yet members of civil society, have nevertheless a relationship with others. Without such relationships the very notion of right would vanish: in the last analysis this notion is a relationship.

505. That may be so, Zeiller will say, but do you want to impose a jural obligation on an owner to reveal his opinion on the use of all that he has? At the most, this would be a moral obligation only in certain cases.
According to me, people even in the state of nature have a moral-jural obligation to reveal their opinion whenever this is necessary to clarify mutual rights. Their obligation is similar to the moral-jural obligation of forming a pact or endeavouring to reach some kind of agreement necessary to avoid discord and war in cases of doubt (cf. 462-467). Such obligations are jural to the extent that the other party remains free to use force even to uphold his own dubious rights if he is denied discussion and other steps necessary to arrive at an equable solution.

506. It may be objected that circumstances do not always permit an owner to reveal his motives for refusal. This could happen and, if it does, will provide an exception to the general principle.

507. At most, it would prove that others cannot make use of an owner's property when the owner declares that its apparently innocuous use is not in fact innocuous. Others would be free to use it if the owner, after agreeing that the use does him no harm whatsoever, adds that the sole reason for his refusal is that he is the owner.

508. Passing to the moral bond, I note that this pertains to designation which is correctly required if all are to know that something has been taken possession of.

509. In fact, we could not say that a right of ownership has been formed if others do not know what has and what has not been possessed. Right, as we have defined it, is a moral faculty. The morality of this operative faculty does not, however, consist simply in the lawfulness of its activity, but in its being an activity defended and guaranteed by a moral law obliging others not to impede our action in any way, but leave us totally free to carry it out. Others cannot be constrained by such an obligation if they have no means of deciding which things are possessed and thus inalienable, and which are freely available. Some kind of designation is necessary, therefore, to show that a given thing is possessed, and to inform others that they are obliged to leave it alone.(151)

510. What does this designation consist in?
Almost all authors on Right confuse designation with the physical bond between things and persons. But if we examine the notion of designation we see that it presupposes the formation of the physical bond. The sign by which a thing is known presupposes the thing itself.

511. According to us, anything capable of making occupancy known is sufficient to designate it. We agree, therefore, with Grundling(152) that a verbal or written declaration is sufficient.(153)

512. Those opposing this opinion maintain that words or written declaration are not signs connected with the thing in question, which therefore is not designated sufficiently.

513. A sign, however, only exists to distinguish one thing from another. There is never any requirement for the sign to be connected with the thing rather than separate from it provided that in both cases it does act as a sign, that is, serves to show that the thing has been taken possession of. A sign is always united, spiritually if not physically, with what it signifies whenever it designates the thing in such a way that it cannot be confused with something else.

514. The nature and work of a sign is independent of the sign's being affixed to what it is intended to indicate.(154) That authors on Right should require an accident so extraneous to the nature of sign shows that they are seeking something more than a mere sign. They confuse the sign with the physical bond which, in our opinion also, is certainly necessary to the jural occupancy of any thing.

515. For the rest, if a pure sign is required, there can be nothing more perfect than written or spoken words which indicate things far and near without uncertainty or indetermination. Words can of themselves express clearly the act of will of whomsoever takes possession; they can determine if the occupant intends to reserve the thing exclusively or perpetually to himself two conditions for the full right of ownership. Other signs can allow us to conjecture, but not know without doubt, the presence of these two conditions. Words also allow us to express the extension of the right claimed by the occupant, and in fact acquired with his acts. Finally, words are the appropriate and most perfect signs for human beings because they are more in conformity with their intelligent nature.

516. It is also true, we may add, that a sign alone, without the physical bond, is not sufficient to bring about occupancy. Moreover, even the reality of the physical bond has to be known by others in order that they may be obliged to refrain from use of the thing which has been possessed. In this case, the rule: Non esse et non apparere idem est in jure [Not being and not being obvious is the same in right], prevails.

517. It is also true that while words are sufficient to demonstrate in the speaker a will to take possession of things, they are not sufficient to prove that this individual has already effected the physical bond with them. No one is obliged to accept his word; all can claim to see for themselves those acts with which the occupant starts to make use of the thing or work it or prepare himself to obtain some possible benefit from it. If a person were to affirm that he is doing this, but nothing were seen to be done in fact, he could appear to be making a fool of others or holding them at bay by insisting that he is doing something when in fact he is not.

518. This is another reason for author's claiming that a sign should be physically joined to a thing. But if they had taken full account of this reason, they would not have been content with requiring a simple sign denoting the thing; they would have said expressly that this sign should be a clear, public undertaking with which the occupant at least begins to prepare himself to make use of the thing. This work, when seen, is also a sign of his intention.

519. Hence, detention of a thing is itself a valid, natural sign of such an undertaking. The same can be said about capturing birds or other beasts, dead or alive; about means of defence placed around a thing to prevent its being ruined or taken by others, and so on; and about other dispositions which are not merely signs but also a true start to work designed to draw some utility from the thing. Usage of this kind, done so that others see it, also indicates the intention of the person doing it.

520. Occupancy is not fulfilled, therefore, unless all these conditions are verified. Only within the limits that we have described can the originating title of external ownership be achieved.

521. A further limit has to be added to those already described. This has its origin in the diversity of the occupying subjects who can be one or more individuals.

522. If several individuals are occupants, they may either be separate individuals or individuals associated in a collective body. For example, two hunters fire simultaneously at a deer; the deer is hit by both shots. In this case, separate individuals take dominion over the same prey at the same time. On the other hand, a society of persons may be formed to take possession of an uninhabited island. Here the occupant is a collective body.

523. In both cases, multiplicity of individual occupants places a limit to ownership, which must be divided between the co-occupant parties.

524. Such a limitation brings with it a duty to reach some agreement. In each of the individuals, therefore, a jural obligation arises to divide equably and peacefully the thing simultaneously taken into possession.

525. If one of the parties refuses to share, or seek an agreement about sharing, the others could use force against him (cf. 466).

526. In cases of this kind the right of ownership would always be acquired through occupancy, but an agreement would be made to modify such a right, that is, to share the object amongst several persons.

527. This is not the place to speak about contracts, but it was necessary to offer this brief comment because we are dealing with a contract contemporaneous with occupancy, that is, with a contract having a different condition from the usual kind of contracts. These are formed about rights already in being (as we shall see in the following book), not about rights which are being established but need a contract in order to be actuated.

(139) Ricerche filosofiche, part 1, p. 272 ss.

(140) Diritti dell'uomo, §96.

(141) Giurisprudenza, etc., §15.

(142) Zeiller distinguishes as follows between detention, possession, taking possession and occupancy. `If we employ something for our own ends, we use it in the broadest sense. If this thing is within our physical power in such a way that we have the physical faculty for using it to the exclusion of others, it is related to our person with what we call (physical) detention . If it has been conjoined to us with the intention of being used exclusively by us, we have (physical) possession. The act by which possession is effectuated is called taking possession and this in its turn is called occupancy when it is united with the intention of disposing of the thing perpetually to the exclusion of others (in other words, we exercise dominion over it)' (§46).

Here it would seem that possession does not involve the intention of having the thing as one's own (ownership in the strict sense implies the concept of exclusive and perpetual use); it would seem to refer only to occupancy. Zeiller, however, is not altogether in harmony with the Austrian code which defines the possessor as one `who holds the thing with the intention of having it as his own' (§309). This seems to me to contain the true, legal notion of possession.

(143) Cf. Teod. Schmalz, Il mero Diritto naturale (Köngisberg, 1792), §62, and Spiegazione dei diritti dell'uomo e del cittadino (ibid, 1798), §12.

(144) §67.

(145) De jure, B. et P. 2, part 2, 11, 21.

(146) Observ. jur. nat., bk. 2.

(147) Jur. N. Tom. 5, §686.

(148) Post. de leg. nat., §383.

(149) §88.

(150) Even Zeiller himself says (§77) that ownership `is merely a negative right, that is, a right with the purpose of preventing an owner from being impeded in the free disposition of what is his. He can claim this from everyone.' Here Zeiller considers the relationship of the owner with other people. But in this relationship it is the moral law that forbids others from impeding the free disposition of what a person owns. If, however, this respect for ownership is imposed by the moral law, it is clear that the prohibition is totally reasonable. Otherwise the moral law would command what is unreasonable while supporting inhumanity and capriciousness.

(151) If the occupancy were known to some people but not to others, the right would exist relatively to those who know about the occupancy, not relatively to those who are ignorant of it. Right, as we have already seen, is relative, and consists in a relationship with other intelligent beings who have an obligation to respect it.

(152) C. 31 ss.

(153) The sign placed upon a thing has the advantage of reminding others, whenever it falls under their senses, that occupancy has taken place. The obligation of respecting the occupancy would cease for someone who had only heard of it and then forgotten what he had heard. It would not cease in the case of those who remembered that occupancy had taken place. The right of ownership would not be removed, therefore, because it is relative, as we said. This explains why the ownership of some chattel for which money has been paid, but the chattel not consigned, goes unrecognised if it is sold again but this time actually consigned to the buyer, who is recognised as the owner (cf. Austrian Civil Code, §430), although the seller is still responsible for the damage done to the first buyer. This is correct, because the second buyer could not have known that the chattel was already sold. But if the chattel were clearly marked as belonging to someone else, and were declared as such verbally or through signs to the new buyer, his acquisition in bad faith ought not to be protected by law.

(154) Many facts could be cited to show that the actions of government agents indicated their persuasion that a small sign left, for example, in a deserted land, was sufficient for possession of the land to pass to their government. The captain of an English ship, the Olive, took possession of the island of Barbados, in the Antilles, in 1605 on his return from Guinea. He landed with some of his sailors, put up a cross, wrote on a tree: `James, King of England and of this island', embarked and set sail. The island was colonised only 19 years later by Sir William Courtney. The thirty people he sent there founded Jamestown, the city of King James. I realise that these claims are not recognised for the most part. Schmalz writes in his Diritto delle genti, `The European powers do not grant the person discovering new lands the right to impede their cultivation by others. Consequently, these powers have never considered simple taking of possession as sufficient to establish ownership, nor have they accepted a flag or inscription raised on a beach by mariners claiming that such a sign gave right of exclusive possession to their nation.' (bk. 4, c. 1). It is clear that the party taking possession is concerned to follow the opinion favouring the minimum requirement for constituting possession; the party having to recognise possession will uphold the maximum requirement. It is also clear that some work must be initiated, as we said (cf. 485) for a true appropriation of deserted land. But the question of work is a question about the bond, not about the sign. I maintain that after the bond has been posited, anything will serve to indicate it. - It is, however, worthy of note that taking possession of sovereignty over a deserted land is one thing; taking possession of its ownership is another. Granted, however, that the government of a nation could take possession of an island discovered by it or its agents simply by erecting a cairn, it does not follow that such a government has acquired ownership of the land and therefore the right to prevent others from cultivating it. In this case, the land remains unoccupied. However, those who come to occupy it should recognise the sovereignty of the government that has taken possession of it, provided this government is prepared to exercise its rights and fulfil its duties. This is the only condition permitting the occupancy of unoccupied sovereignty. In other words, the claim to sovereignty must be made by someone capable of exercising it and, therefore, of defending the occupied land in the first place. Defence is the first duty of governments. Nevertheless, we could still go on to ask if sovereignty can be acquired over an uninhabited land.

Chapter 5