第17章
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 meae.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.
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).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 others 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.
SECTION II.Principles of Personal Right.
18.Nature and Acquisition of Personal Right.
The possession of the active free-will of another person, as the power to determine it by my will to a certain action, according to laws of freedom, is a form of right relating to the external mine and thine, as affected by the causality of another.It is possible to have several such rights in reference to the same person or to different persons.The principle of the system of laws, according to which I can be in such possession, is that of personal right, and there is only one such principle.
The acquisition of a personal right can never be primary or arbitrary; for such a mode of acquiring it would not be in accordance with the principle of the harmony of the freedom of my will with the freedom of every other, and it would therefore be wrong.
Nor can such a right be acquired by means of any unjust act of another (facto injusti alterius), as being itself contrary to right; for if such a wrong as it implies were perpetrated on me, and I could demand satisfaction from the other, in accordance with right, yet in such a case I would only be entitled to maintain undiminished what was mine, and not to acquire anything more than what I formerly had.
Acquisition by means of the action of another, to which Idetermine his will according to laws of right, is therefore always derived from what that other has as his own.This derivation, as a juridical act, cannot be effected by a mere negative relinquishment or renunciation of what is his (per derelictionem aut renunciationem);because such a negative act would only amount to a cessation of his right, and not to the acquirement of a right on the part of another.
It is therefore only by positive transference (translatio), or conveyance, that a personal right can be acquired; and this is only possible by means of a common will, through which objects come into the power of one or other, so that as one renounces a particular thing which he holds under the common right, the same object when accepted by another, in consequence of a positive act of will, becomes his.
Such transference of the property of one to another is termed its alienation.The act of the united wills of two persons, by which what belonged to one passes to the other, constitutes contract.