Inalienable Things

Part 3: Inalienable Things

Some things are impossible to be reduced to a state of property. An example is the Sea.

Some are willing to make this concession with regard to individuals, but not with regard to nations.

When common ownership ceases, private ownership begins.

The huge size of the sea is sufficient for the use of all nations.

The same is true for air as common property.

So that the amusement of fowling cannot be followed, except by permission, without trespassing upon the lands of some owner, over which the birds fly.

The word ‘COMMON’ may be given to the sand of the shore, which being incapable of cultivation, is left free to yield its inexhaustible supplies for the use of all.*

The sea cannot be owned because people cannot occupy it permanently.

From whence Thucydides gives the name of infinite space to unoccupied lands, and Isocrates speaking of that occupied by the Athenians calls it that which has been measured by us into alloted parts.

But fluids can be occupied only if they are contained within some other substance.

Thus ponds, and lakes and rivers likewise, can only be made property as far as they are confined within certain banks.

But the ocean cannot be confined within the land. This is why the ancients said the earth was bounded in by the sea like a girdle surrounding it.

Whatever therefore was the common property of all, and after a general division of all other things, retained its original state, could not be appropriated by division, but by occupancy.

The marks of distinction and separation by which its different parts were known, followed such appropriation.

Part 4: Alienable Things

Some things, not yet made property, may be reduced to property. Examples are waste lands, desert islands, wild beasts, fishes, and birds.

These can be owned by:

• the Sovereign or a whole people
• individuals, converting into private estates the lands which they have so occupied

The latter kind of individual property proceeds rather from91 assignment than from free occupancy.

Yet any places that have been taken possession of in the name of a sovereign, or of a whole people, though not portioned out amongst individuals, are not to be considered as waste lands, but as the property of the first occupier, whether it be the King, or a whole people. Of this description are rivers, lakes, forests, and wild mountains.

Part 5

The sovereign of the respective lands, or waters where they are found, has a legal right to prohibit any one from taking wild animals, and thereby acquiring a property in them.

A prohibition extending to foreigners, as well as subjects. To foreigners; because by all the rules of moral law they owe obedience to the sovereign, for the time during which they reside in his territories. Nor is there any validity in the objection founded on the Roman Law, the Law of nature, or the Law of nations, which, it is said, declare such animals to be beasts of chace free to every one’s hunting.

This is only true, where there is no civil law to interpose its prohibition; as the Roman law left many things in their primitive state, which by other nations were placed upon a very different footing. The deviations therefore from the state of nature, which have been established by the civil law, are ordained by every principle of natural justice to be obeyed by mankind.

For although the civil law can enjoin nothing which the law of nature prohibits, nor prohibit any thing which it enjoins, yet it may circumscribe natural liberty, restraining what was before allowed; although the restraint should extend to the very acquisition of property, to which every man AT FIRST had a right by the law of nature.