The Philosophy of Law: Private Right, § 17: 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 (Apprekensio), 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 IJational 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 1 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 mi/ 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 Posses sion, 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 « conformable to the Axiom of Freedom, the Postulate ight, and the universal Legislation of the common Will conceived as united a 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 mum 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. Other wise 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 leyc. For they may be regarded as Accidents inhering in the Substance of the Soil, and they are thus mine jure rci rnrcc. To this Category also belongs everything which is so connected with anything of mine, that it cannot be separated from what is mine without ilturiii” it substantially. Examples of this are Gild in 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 m 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 1 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 daumm). 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 libernm). 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 Eiver, 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.
Property
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). lint 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, with out 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 Ms 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 diredus), 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.