De l'occupation des choses.

CHAP. 4: On the occupation of things.

The act of taking possession of a thing that has no master, with the intention of appropriating it, has been considered at all times by jurists as one of the principal means of acquiring property [^6]. However, when one observes how the patrimony of each family is formed, one is rarely struck by the acquisitions that are made by the simple act of occupation. Among a prospering nation, many persons acquire properties by labor and economy; but one sees none who grows rich by taking possession of goods that have always remained without masters. If occupation alone enriches no one, this is not because all lands have long since been appropriated; for there still exist immense uncultivated regions, where lands are almost without value, and where yet few people are tempted to go seek their fortune. The men who have let themselves be seduced by the hope of growing rich, or only of acquiring some ease, by appropriating lands given to them for nothing in uninhabited countries, have almost always expiated their blind confidence with bitter repentance.

If one never remarks that the mere act of taking possession of a thing that has no master, with the intention of making it one's own, exercises a considerable influence on private fortunes, one has some difficulty understanding, on the other hand, why, even in the eyes of the least enlightened peoples, such an act suffices to attribute to a person the absolute disposition of certain things, of a space of land, for example. How can all men believe themselves forever deprived of the faculty of enjoying and disposing of a piece of land by the sole fact that a man or a family has already taken possession of it? Would it not have been more reasonable to admit with Rousseau, that the fruits of the earth belong to all, but that the soil belongs to no one?

One can conceive that a nation might admit in principle that the first man who takes possession, on the national territory, of a thing that has no master, thereby acquires the right to enjoy and dispose of it, to the exclusion of all the other men of whom it is composed. A nation, when it has proclaimed the principles it judges useful to its interests, can compel those of its members who depart from them to observe them. The least enlightened or least moral part of the population can be directed by the most moral and most instructed part.

But the decrees of a people are obligatory only for its members, and for the persons who submit to its laws by establishing themselves on its territory. There exists above nations no common government to proclaim the rules of justice, and to command their observance. All, however, admit, not only in their internal regime, but in their mutual relations, that the act of occupation of a thing that belongs to no one, suffices to make that thing the property of him who takes possession of it. The consequences that derive from this act thus come from the nature of things, from the general sentiments and needs of men, and not from the declarations or the will of this or that government. One can all the less attribute them to the declarations of any government or people, as they are certainly anterior to the formation of any regular government.

The things that assure men means of existence, and which we designate by the name of properties, derive from human industry, seconded by the forces of nature, almost all the qualities that make them precious in our eyes. The demonstration of this fact will be found in the following chapters; it is, moreover, little necessary for men who have observed how riches are formed. But, if human industry gives to the things we need, and which we place in the rank of properties, the qualities that make them precious in our eyes, it does not create the various elements of which they are composed. Now, how do nations or individuals acquire these elements, of which their properties are formed? By being the first to take possession of them, and with the intention of appropriating them, that is to say, by occupation.

The importance of a property is evaluated neither by its extent, nor by its weight, nor by its volume; it is esteemed by the advantages it procures, by the services one expects from it. The lands that today form the territory of the United States were, two and a half centuries ago, but a vast forest traversed by a few savage tribes. The industry that has transformed things without value, and which could have served for nothing if they had remained in their primitive state, into a multitude of precious properties, such as houses, manufactories, farms, flocks, and an infinity of movable objects, has not created a single atom of matter. It took possession of the various elements that nature offered it; it combined or modified them in various ways, and it is from these combinations or these modifications, seconded by the forces of nature, that have been born all the properties on which the existence of this nation now rests. Now, it is evident that, if the occupation of these various elements had not assured their exclusive enjoyment and disposition to the first occupants, there would have been no progress possible. The properties that exist would not have been formed, nor consequently the people who live by means of these properties. One can, moreover, make the same observation about all peoples as I have just made about the Anglo-Americans; between the ones and the others, there is no difference but the greater or lesser rapidity in development.

The occupation of a thing that has no master can be considered in the relations of nation to nation; in the relations of a private individual with the nation of which he is a part, and in the relations of one person with another.

A nation could not have better titles to the place it occupies on the surface of the globe, than to have been the first to take possession of it, to have brought it under cultivation, to have created the riches that are spread there, and to have developed there. It would be difficult to find titles more ancient, more respectable, and more universally respected; the people that contested them could find no others than force. Thus, it never happens that one nation contests another's property in the territory it has always possessed, which it has brought into a state of cultivation, and on which it has developed.

One has, no doubt, seen more or less barbarous peoples despoil others of a part of their territory; but never have these spoliations taken place because the principle of occupation was not recognized; they have been executed, sometimes as a reparation for damages caused by war, sometimes to bring under cultivation lands of which the possessors did not know how to make use, sometimes to procure means of existence and thus escape destruction.

Events of this kind have, moreover, become more and more rare, as the land has been better cultivated, and as peoples have become civilized: it is doubtful that they will be repeated in the future. Peoples may still be subjugated by the armies of a foreign government; but one will no longer see populations expelled from their territory, and condemned to perish or to seek lands far away to establish themselves. One must not forget, moreover, that the violation of a law of our nature proves nothing against the existence of that same law.

The jurists who have wished to explain how the simple act of being the first to take possession of a thing that has no master suffices to attribute to him who seizes it the exclusive enjoyment and disposition, to the prejudice of all other men, have been greatly embarrassed. They have claimed that before the division of the earth into national or private properties, each had a right to everything equal to that of other men. They then supposed a convention between all the peoples and all the individuals of which the human race is composed, by which each had renounced his universal right over everything, in order to acquire an exclusive right over certain things. In this system, each nation and each person would have said to all the others: I renounce the rights I have over the entire earth, on condition that each of you renounces, for his part, the things of which I shall have been the first to take possession [^7].

This supposition of a universal right of each people and each person over all things is a veritable chimera; the men who would have adopted it, and who would have wished to respect it, would have condemned themselves to perish. They would have placed themselves, in effect, under the necessity of assembling the human race in congress, to obtain from it the authorization to take possession of the fruit or the animal necessary for their subsistence. By what reasoning would one have succeeded in demonstrating to an inhabitant of Peru that he could not pick the fruit that grew at his hand, without infringing upon the rights of the inhabitants of Siberia? How would one have made an inhabitant of Kamchatka understand that he could not clothe himself in the skin of an animal, without injuring the rights of the Arabs? How would one have gone about showing the Gauls that they could not, in conscience, bring the plains of Auvergne under cultivation, without having obtained the permission of the inhabitants of Tibet?The convention by which each people or each person would have renounced his right over all things, to obtain the exclusive enjoyment and disposition of certain particular objects, is no less chimerical than this supposed universal right. This mendacious supposition, with the aid of which jurists have attempted to explain a phenomenon for which they could not account, is much more inexplicable, more difficult to conceive than the very facts that it was a matter of making understood. A convention between all the individuals of which the human race is composed is, in effect, an impossible, unintelligible thing. After having supposed its existence, it would be necessary, moreover, to suppose that it is renewed every time a person comes into the world, or reaches the age of reason. Finally, it would be absurd to believe that, if nations are placed in the harshest climates, and if millions of men are born, live, and die in misery, it is as a result of a convention they have voluntarily made or accepted, and by which they have renounced, for nothing, the right they had over all things.

One has supposed a convention among all men to determine the consequences of the fact of occupation, only because one thought that powerful motives existed for making such a convention, and for having these consequences respected. Now, if one had sought and discovered these motives, one would not have needed to resort to a false supposition. It would have sufficed to expound them, to make known the causes that determine men to consider occupation as one of the first means of acquiring property. One would have seen that these motives act with more or less force on all men who possess or who have the hope of acquiring some properties, whereas a supposition of a convention acts on no one. Each people understands, without effort, that its existence rests on the preservation of the territory on which it has developed; but what are the men who would venture to take seriously a supposed convention by which the earth would have been divided, not only among the nations, but also among the individuals of which each of them is composed?

I have shown elsewhere that there is no possible progress for the human race, so long as the earth remains abandoned to its natural fertility, and men have no other means of existence than the raw products of nature. In such a position, the population, reduced to a few weak tribes who wander over territories of vast extent, remains stationary; it lives in a state always bordering on famine, and has all the vices that are the ordinary consequence of excessive misery and profound ignorance [^8]. I have demonstrated, on the other hand, that a people, even when it is not numerous, which admits in practice the community of labors and of goods, condemns itself by that very fact to most of the vices and privations that result from slavery [^9]. This community, so fatal to the small populations that have adopted it without being able to realize it completely, would be unworkable for a nation of medium size, and the imagination cannot conceive of it between several nations.

But if it is true, on the one hand, that men can neither multiply, nor perfect themselves, so long as they leave the earth in an uncultivated and savage state; if it is demonstrated, on the other hand, that they can make no progress in the state of community of labors and of goods, it follows that the appropriation, by nations, families, and individuals, of the various things on which human industry can be exercised, is a necessity of our nature; it follows that occupation and the facts that derive from it are among the laws to which all men are submitted.

To give to each thing the qualities that can render it useful to us, requires only the efforts of a determinate number of men. A nation could not work entirely at the cultivation of a field, or set itself to the pursuit of a piece of game. On the other hand, a thing that has received from human industry the qualities we desire to find in it, can satisfy only a given number of needs; one could divide its value into fractions so small that it would be of real profit to no one. There is a multitude of objects that have a true value only insofar as they can be applied to satisfying the needs of a person or a family: to divide them would be to depreciate or destroy them. It is necessary, therefore, that each of these objects remain the exclusive property of one person.

But when a thing has never had a master, and can nevertheless satisfy the needs of a person, to whom must one guarantee its exclusive enjoyment and disposition? To the first who seizes it, with the intention of appropriating it; for it is probable that it suits him better than any other person, since before any other, he has seized it. The fact of occupation always requires that one devote oneself to certain labors, and these labors, however slight they may be, would not take place if they were to be unprofitable. He who takes possession of a thing that has no master despoils no man of his means of existence, infringes upon the hopes of no one. If one deprived a man of the thing he has seized, with the intention of appropriating it, one would deceive his expectation, at the same time as one would diminish his means of existing. In considering the occupation of things not yet appropriated as one of the first means of acquiring property, nations have therefore obeyed a law of their nature. They have taken the only course that could give to each thing the greatest utility it could have, while doing the least possible harm.

Any thing that can satisfy a need, or procure an enjoyment, and which can be exclusively possessed, is susceptible of being acquired by occupation; it matters little whether it be animate or inanimate, whether it be movable or immovable.

The question has long been raised as to whether a nation that discovers a sea cannot seize it, and acquire the property of it, as of a desert island, or of any other land not yet appropriated. In the sixteenth century, the Portuguese, who had discovered a passage to the Indies by the Cape of Good Hope, claimed to have acquired the property of this passage, and to have, in consequence, the privilege of commerce with the Indians by this route. The Dutch refused to recognize the legitimacy of this claim, and demanded the liberty of the seas, if not for all nations, at least for themselves. Grotius intervened in this quarrel, and, in a treatise he dedicated to all the princes and all the free peoples of the Christian world, he demonstrated that the principle of occupation was not applicable to the seas [^10].

The seas, considered from the standpoint of navigation, are but a means of communication between various points of the globe, and this means is the only one of which commerce can make use. A passage from one point to another is, so to speak, but a vast road that requires no sort of maintenance, and which all nations can travel at the same time, without mutually hindering one another. As it is in the power of no one either to make it better, or to degrade it, a nation, however frequent the use it makes of it, in no way harms the enjoyments of others. One therefore encounters here none of the circumstances that cause occupation to be considered a means of acquiring property.

If there had been found a land which, after having, without cultivation, furnished subsistence to a family, would have furnished infinitely and without labor, to all those who would have wished to take of it, men would never have consented to subject it to the principle of occupation. This principle has had no other object, in effect, than to give to all the things to which one applies it, the greatest utility they can have. To apply it to the seas that serve nations as means of communication and commerce would not be to give them a greater utility; it would be, on the contrary, to restrict their utility within an infinitely small circle. Occupation, which is one of the essential elements of all property, and which thus serves as the basis for the existence of all nations, would have been fatal to the human species, if it had been an obstacle to the communications of peoples among themselves.

The seas, considered as means of transport, are therefore no more susceptible of being acquired by occupation than the winds or the light of the sun; but one must not conclude from this that peoples cannot appropriate any part of them, to provide for their security or their existence. It will be seen, on the contrary, when we occupy ourselves with the territory proper to each nation, that all maritime peoples consider as a national property a certain extent of the seas that surround them; that they attribute to themselves exclusively the fishing therein, and that they determine the conditions under which it is permitted to others to navigate there.

In all countries, the principle of occupation was admitted in practice long before having been consecrated by any legislative provision. The reason for this is clear: peoples do not begin to write their laws until they have made some progress in civilization, and established more or less regular governments. Before arriving at that point, they must have cultivated lands, dwellings, clothing, in a word, properties by means of which they can exist.

The most important occupation, that which has served as the basis for the formation of all private properties, is that of the territory on which each nation has developed. That one has never been, nor could it be, consecrated by provisions of written laws, since there exists no government that serves as a bond for all peoples, that determines their mutual relations, and interposes itself in their quarrels. It is regulated, therefore, not by the special declarations of each people, but by the principles that fix the relations of nations with regard to one another, and which are designated by the name of international law. As for the things that private individuals seize to make them private properties, one must distinguish those that are not on the territory of any people, from those that are on the territory that a nation has already appropriated. The occupation of the former is regulated by the principles of international law; the occupation of the latter, by the particular laws of each people.

It does not appear that the Romans believed it necessary to consecrate the principle of occupation by legislative provisions, before the compilations made by some of their emperors. The jurists had recognized the existence of this principle, and had applied it to some particular cases, and their decisions were collected in the compilation made by the orders of Justinian. These decisions are, moreover, applications so simple and so natural of the principle, that they are but its consecration. Some apply to the capture of certain wild animals, others, to the occupation of certain lands. The Roman jurists admit that any wild animal becomes the property of him who first seizes it, whatever the land on which it is taken. They admit equally that any pearl, any precious stone, or any other object, found on the seashore, is the property of the first occupant. Finally, they declare that any island that forms in the middle of the sea becomes the property of the first who takes possession of it: nullius enim esse creditur [^11].

The Civil Code, in declaring that all vacant and masterless goods, and those of persons who die without heirs, or whose successions are abandoned, belong to the public domain [^12], seems to have excluded the possibility of any new occupation by private individuals, at least on the national territory. However, one still acquires by this means the wild animals one takes in the hunt, and the fish one takes in the sea or in the rivers; we follow, in this regard, the same practices as the Romans. One may even reasonably doubt whether an agent of the public domain would be permitted to claim, as belonging to the State, a pearl or a precious stone that a private individual had found on the seashore, and of which he had taken possession. If the principle of occupation were not admitted in such a case or in analogous cases, it would perhaps happen that some persons would be deprived of some small advantages; but the State would be no richer for it.

The English and the Anglo-Americans have admitted the principle proclaimed by the Roman jurists, although they have not applied it to the same cases [^13].

One must not confuse, moreover, a thing whose owner is not known, with a thing that belongs to no one. It is not rare for a man to lose a movable object of more or less considerable value, or for a domestic animal to go astray, in such a way that the owner no longer knows where to find it. The occupation of such objects does not confer upon the occupant the right to enjoy or dispose of them: it imposes upon him the obligation to seek their owner and to return them to him, or to deposit them in the hands of the public authority.

One must also be careful not to confuse occupation with possession. The occupation in question in this chapter takes place only for things that belong to no one: possession can take place, not only for things that have no master, but also for those that are already appropriated. By occupation, one acquires only the things that are the property of no one; but also one acquires it by the sole accomplishment of the fact: by possession, one can acquire even the things that are the property of another; but also it is effective only insofar as it has a certain duration of time, and is accompanied by certain circumstances. It will be when I occupy myself with the transmission of properties that I will be able to treat of possession.

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Notes

[^6]: Quod enim nullius est, id ratione naturali occupant; conceditur. Dig. lib. 4, tit. 1, leg. 3 princ. - Grotius, De jure belli ac pacis, lib. 2, cap. 2, § 4 et 5. - Puffendorf, De jure naturæ et gentium, lib. IV, cap. 6. [^7]: Unde etiam jus naturæ intelligitur adprobare omnes conventiones, quæ circa res ab hominibus sunt introductæ, modo contradictionem non involvant, aut societate proturbent. Ergo proprietas rerum immediatè ex conventione hominum, tacita aut expressa profluxit. Puffendorf, De jure naturæ et gentium, lib. xv, cap. IV, § 4. [^8]: Treatise on Legislation, bk. 3, vol. 2. [^9]: Treatise on Legislation, bk. 5, ch. 23, p. 502. [^10]: On the Freedom of the Seas. [^11]: Gaius Instit., comment., lib. 2, § 66-71. Justinian Instit., lib. 2, tit. 1, § 11-24.--Dig., lib. 41, tit. 1. [^12]: Art. 539. [^13]: Blackstone, Comment., book 11, ch. 16, and 26. Thom. Edl. Tomlins, v° Occupant. James Kent, part. v, lect. xxxiv and xxxv, vol. 11, p. 256.