Chapter 2b

The General Rights of Things

July 26, 2022

Part 6: The right to the common use of things, already appropriated

Here is some inconsistency.

The establishment of property has absorbed every right that sprung from a state of things held in common.

But this is by no means the case.

For the intention of those, who first introduce private property, must be taken into the account.

And it was but reasonable to suppose, that in making this introduction of property, they would depart as little as possible from the original principles of natural equity.

For if written laws are to be construed in a sense, approaching as nearly as possible to the laws of92 nature, much more so are those customs which are not fettered with the literal restrictions of written maxims. From hence it follows that in cases of extreme necessity, the original right of using things, as if they had remained in common, must be revived; because in all human laws, and consequently in the laws relating to property, the case of extreme necessity seems to form an exception.

Upon this principle is built the maxim that if in a voyage provisions begin to fail, the stock of every individual ought to be produced for common consumption; for the same reason a neighbouring house may be pulled down to stop the progress of a fire: or the cables or nets, in which a ship is entangled, may be cut, if it cannot otherwise be disengaged. Maxims, none of which were introduced by the civil law, but only explained by it according to the rules of natural equity.

Theologians believe that if in urgent distress, anyone can steal what is absolutely necessary to stay alive. The act shall not be deemed a theft.

  • This rule is not founded on the law of charity, as some allege.
    • The law of charity obliges every possessor to use some of his wealth to relieve the needy.
  • This rule is based on the original division of lands among private owners, which was made with a reservation in favour of the primitive rights of nature.

For if those who at first made the division had been asked their opinion upon this point, they would have given the same reason that has just been advanced.

Necessity, says Seneca, the great protectress of human infirmity breaks through all human laws, and all those made in the spirit of human regulations. Cicero in his eleventh Philippic, says, that Cassius went into Syria, which might be considered as another’s province, if men adhered to written laws, but if these were abolished, it would be considered as his own by the law of nature. In the sixth book and fourth chapter of Quintus Curtius, we find an observation, that in a common calamity every man looks to himself.

Part 7

This indulgence must have precautions and restrictions to prevent it from degenerating into licentiousness.

Precaution 1: The distressed party should try every mode of obtaining relief by:

  • an appeal to a magistrate, or
  • trying the effect of entreaty to prevail upon the owner to grant what is necessary for his pressing occasions.93

Plato allows anyone to seek water from his neighbour’s well after having dug to a certain depth in his own without effect.

Solon limits the depth to 40 cubits. Plutarch remarks that he intended by this to relieve necessity and difficulty, but not to encourage sloth.

Xenophon in his answer to the Sinopians, in the fifth book of the expedition of Cyrus, says, “wherever we come, whether into a barbarous country or into any part of Greece, and find the people unwilling to afford us supplies, we take them, not through motives of wantonness, but from the compulsion of necessity.”

Part 8

Precaution 2: This plea of necessity cannot be admitted, where the possessor is in an equal state of necessity himself.

For under equal circumstances the owner has a better right to the use of his possessions. Though Lactantius maintains that it is no mark of folly to forbear thrusting another from the same plank in a shipwreck in order to save yourself. Because you have thereby avoided hurting another: a sin which is certainly a proof of wisdom to abstain from.

Cicero, in the third book of his offices, asks this question, if a wise man, in danger of perishing with hunger, has not a right to take the provisions of another, who is good for nothing? To which he replies; By no means. For no one’s life can be of such importance as to authorize the violation of that general rule of forbearance, by which the peace and safety of every individual are secured.

Part 9

Precaution 3: The party thus supplying his wants from the property of another, is bound to make restitution, or give an equivalent to the owner, whenever that is possible.

Some deny this because no one is bound to give an indemnity for having exercised his own right.

But strictly speaking, it was not a full and perfect right, which he exercised. It was a kind of permission, arising out of a case of necessity, and existing no longer than while the necessity continued.

For such a permissive right is only granted in order to preserve natural equity in opposition to the strict and churlish rigour of exclusive ownership.

Part 10

Hence, in the prosecution of a just war, any power has a right to take possession of a neutral soil; if there be real grounds, and not imaginary fears for supposing the enemy intends to make himself master of the same, especially if the enemy’s occupying it would be attended with imminent and irreparable94 mischief to that same power.

But in this case the restriction is applied that nothing be taken but what is actually necessary to such precaution and security. Barely occupying the place is all that can be justified: leaving to the real owner the full enjoyment of all his rights, immunities, and jurisdiction, and all the productions of his soil.

This must be done too with the full intention of restoring the place to its lawful Sovereign, whenever the necessity, for which it was occupied, may cease. The retaining of Enna, Livy says, was either an act of violence, or a necessary measure; by violence meaning the least departure from necessity.

The Greeks, who were with Xenophon being in great want of ships, by Xenophon’s own advice, seized upon those that were passing, still preserving the property untouched for the owners, supplying the sailors with provisions, and paying them wages. The principal right therefore, founded upon the original community of goods, remaining since the introduction of property, is that of necessity, which has just been discussed.

Part 11

There is another right, which is that of making use of the property of another, where such use is attended with no prejudice to the owner.

Cicero asks why should not any one, when he can do it without injury to himself, allow another to share with him those advantages, which are useful to the receiver, and no way detrimental to the giver? Seneca therefore observes, that it is no favour to allow another to light his fire from your flame.

In the 7th book of Plutarch’s Symposiacs, we find an observation, that when we have provisions more than sufficient for our own consumption it is wicked to destroy the remainder; or after supplying our own wants, to obstruct or destroy the springs of water; or after having finished our voyage, not to leave for other passengers the sea-marks, that have enabled us to steer our course.