[§ 1. First way of acquiring Property: Occupation.]

We formerly explained the nature of rights, and divided them into natural and acquired. The former need no explanation; the latter are divided into real and personal. Real rights are property, servitude, pledge, and exclusive privilege. We are first to treat of property.

Property is acquired five ways. First, by occupation, or the taking possession of what formerly belonged to nobody. Second, by accession, when a man has a right to one thing in consequence of another, as of a horse’s shoes along with the horse. Third, by prescription, which is a right to a thing belonging to another arising from long and uninterrupted possession. Fourth, by succession to our ancestors or any other person, whether by a will or without one. Fifth, by voluntary transference, when one man delivers over his right to another.

We shall first treat of occupation, the laws of which vary according to the periods of human society. The four stages of society are hunting, pasturage, farming, and commerce. If a number of persons were shipwrecked on a desert island their first sustenance would be from the fruits which the soil naturally produced, and the wild beasts which they could kill. As these could not at all times be sufficient, they came at last to tame some of the wild beasts that they might always have them at hand. In process of time even these would Edition: current; Page: [108] not be sufficient; and as they saw the earth naturally produce considerable quantities of vegetables of its own accord, they would think of cultivating it so that it might produce more of them. Hence agriculture, which requires a good deal of refinement before it could become the prevailing employment of a country. There is only one exception to this order, to wit, some North American nations cultivate a little piece of ground, though they have no notion of keeping flocks. The age of commerce naturally succeeds that of agriculture. As men could now confine themselves to one species of labour, they would naturally exchange the surplus of their own commodity for that of another of which they stood in need. According to these stages occupation must vary. Occupation seems to be well founded when the spectator can go along with my possession of the object, and approve me when I defend my possession by force. If I have gathered some wild fruit, it will appear reasonable to the spectator that I should dispose of it as I please.

The first thing that requires notice in occupation among hunters is what constitutes it, and when it begins, whether it be on the discovery of the wild beast or after it is actually in possession. Lawyers have varied on this head, some give a part to the person who has formerly wounded a wild beast, though [he] have given up the chase, and others do not. All agree that it is a breach of property to break in on the chase of a wild beast which another has started, though some are of opinion that if another should wound the beast in its flight he is entitled to a share, as he rendered the taking of it more easy upon the whole1. Among savages property begins and ends with possession, and they seem scarce to have any idea Edition: current; Page: [109] of anything as their own which is not about their own bodies.

Among shepherds the idea of property is further extended. Not only what they carry about with them, but also what they have deposited in their hovels, is their own. They consider their cattle as their own while they have a habit of returning to them1. When the generality of beasts are occupied, they consider them as their own even after they have lost the habit of returning home, and they may be claimed for a certain time after they have strayed. But property receives its greatest extension from agriculture. When it first became necessary to cultivate the earth, no person had any property in it, and the little plot which was dressed near their hovels would be common to the whole village, and the fruits would be equally divided among the individuals. There are the remains of a common land property in our own country at this day. In many places there is a piece of ground belonging equally to several persons, and after harvest, cattle are, in many places, allowed to feed where they please. Private property in land never begins till a division be made from common agreement, which is generally when cities begin to be built, as every one would choose that his house, which is a permanent object, should be entirely his own2. Moveable property may be occupied in the very first beginnings of society, but lands cannot be occupied without an actual division. An Arab or a Tartar will drive his flocks over an immense country without supposing a single grain of sand in it his own3. By the laws of many countries there are some things, however, that cannot be occupied by any private person. Treasure and derelict goods, by the laws of Britain, belong to the king. This arises from that natural influence of superiors Edition: current; Page: [110] which draws everything to itself that it can without a violation of the most manifest rules of justice. In like manner seas and rivers cannot be occupied by any private person: unless [it is] particularly specified in your charter, you cannot take large fishes in a river running through your own estate1. A sea surrounded by several nations cannot be occupied by any one, but all must have a part of the jurisdiction, but any nation may hinder another from fishing in its bays, or approaching its coasts with vessels of war.