第12章

The System of those Laws Which Require No External Promulgation.

CHAPTER II.The Mode of Acquiring Anything External.

10.The General Principle of External Acquisition.

I acquire a thing when I act (efficio) so that it becomes mine.An external thing is originally mine when it is mine even without the intervention of a juridical act.An acquisition is original and primary when it is not derived from what another had already made his own.

There is nothing external that is as such originally mine; but anything external may be originally acquired when it is an object that no other person has yet made his.A state in which the mine and thine are in common cannot be conceived as having been at any time original.Such a state of things would have to be acquired by an external juridical act, although there may be an original and common possession of an external object.Even if we think hypothetically of a state in which the mine and thine would be originally in common as a communio mei et tui originaria, it would still have to be distinguished from a primeval communion (communio primaeva) with things in common, sometimes supposed to be founded in the first period of the relations of right among men, and which could not be regarded as based upon principles like the former, but only upon history.

Even under that condition the historic communio, as a supposed primeval community, would always have to be viewed as acquired and derivative (communio derivativa).

The principle of external acquisition, then, may be expressed thus: "Whatever I bring under my power according to the law of external freedom, of which as an object of my free activity of will I have the capability of making use according to the postulate of the practical reason, and which I will to become mine in conformity with the idea of a possible united common will, is mine."The practical elements (momenta attendenda) constitutive of the process of original acquisition are:

1.Prehension or seizure of an object which belongs to no one;for, if it belonged already to some one, the act would conflict with the freedom of others, that is, according to universal laws.This is the taking possession of an object of my free activity of will in space and time; the possession, therefore, into which I thus put myself is sensible or physical possession (possessio phenomenon);2.Declaration of the possession of this object by formal designation and the act of my freewill in interdicting every other person from using it as his;3.Appropriation, as the act, in idea, of an externally legislative common will, by which all and each are obliged to respect and act in conformity with my act of will.

The validity of the last element in the process of acquisition, as that on which the conclusion that "the external object is mine" rests, is what makes the possession valid as a purely rational and juridical possession (possessio noumenon).It is founded upon the fact that, as all these acts are juridical, they consequently proceed from the practical reason, and therefore, in the question as to what is right, abstraction may be made of the empirical conditions involved, and the conclusion, "the external object is mine," thus becomes a correct inference from the external fact of sensible possession to the internal right of rational possession.

The original primary acquisition of an external object of the action of the will, is called occupancy.It can only take place in reference to substances or corporeal things.Now when this occupation of an external object does take place, the act presupposes, as a condition of such empirical possession, its priority in time before the act of any other who may also be willing to enter upon occupation of it.Hence the legal maxim: "qui prior tempore, potior jure." Such occupation as original or primary is, further, the effect only of a single or unilateral will; for were a bilateral or twofold will requisite for it, it would be derived from a contract of two or more persons with each other, and consequently it would be based upon what another or others had already made their own.It is not easy to see how such an act of free-will as this would be could really form a foundation for every one having his own.However, the first acquisition of a thing is on that account not quite exactly the same as the original acquisition of it.For the acquisition of a public juridical state by union of the wills of all in a universal legislation would be such an original acquisition, seeing that no other of the kind could precede it, and yet it would be derived from the particular wills of all the individuals, and consequently become all-sided or omnilateral; for a properly primary acquisition can only proceed from an individual or unilateral or unilateral will.

DIVISION OF THE SUBJECT OF THE ACQUISITION OF THE EXTERNALMINE AND THINE.

I.In respect of the matter of object of acquisition, I acquire either a corporeal thing (substance), or the performance of something by another (causality), or this other as a person in respect of his state, so far as I have a right to dispose of the same (in a relation of reciprocity with him).

II.In respect of the form or mode of acquisition, it is either a real right (jus reale), or a personal right (jus personale), or a real-personal right (jus realiter personale), to the possession although not to the use, of another person as if he were a thing.

III.In respect of the ground of right or the title (titulus) of acquisition- which, properly, is not a particular member of the division of rights, but rather a constituent element of the mode of exercising them- anything external is acquired by a certain free exercise of will that is either unilateral, as the act of a single will (facto), or bilateral, as the act of two wills (pacto), or omnilateral, as the act of all the wills of a community together (lege).

SECTION I.Principles of Real Right.

11.What is a Real Right?