These services are divided into services of city estates, and services of country estates: But under the notion of city estates, the Roman law includes not only such as are actually in a city, but likewise all buildings, wherever they are situated, which are intended for the habitation of mankind, or for the exercise of commerce. Such are the services of bearing a burden, where my neighbour has a right of letting his house rest upon my wall, or my pillar: the service of receiving dropping water, where he has a right of conveying water through spouts or gutters, into my yard: the service of not receiving dropping water, where he has a right to hinder me from turning such spouts or gutters into his yard: the service of jutting or shooting out, where he has a right to extend his buildings in such a manner as to hang over my ground: the service of not raising a building higher, where he, for the profit or convenience of his house, has a claim upon me not to build beyond a fixed height: the service of lights, where I am obliged to admit his making windows into my yard or garden: the service of not hindering lights, when I can raise no building upon my own ground, so as to obscure his windows: the service of prospect, where I am bound to let my neighbour look freely into my estate: the service of receiving a water course, where I am bound to grant a passage to waterpipes through my house for the benefit of his: the service of sinks, where I am bound for the convenience of my neighbour's house to suffer his sink to pass through my grounds. Instances of services due from estates in the country, are path-way, drift-way, and road. A path-way is a right which my neighbour has of walking through my grounds, upon account of some particular estate which he is possessed of, and with which this right is connected. Drift-way is a like right, not only of walking, but likewise of driving his cattle or carriages through them. And a road is a right of passing, going, walking, driving, carrying, or drawing through them, either to a town, or to some highway, or to a ferry, or to a bridge, or to some estate of his own. In these, many more instances of the like sort, the use of my property is limited: I cannot do what I will with a thing which belongs to me; because some other person has a claim upon me to submit to an inconvenience, or not to reap an advantage; which, if there had been no such claim, I should not have submitted to, or should have reaped.

and

V. Though a man cannot be understood to have any Limitation in reproperty in a thing, when another person has a full right spect of disposal. to dispose of it, yet property may be conceived to continue, where the proprietor has not a right to dispose of the thing as he pleases. This seems to be the case of an estate which is held in trust. For though there is commonly another limitation of such estates in respect of the use, by which limitation the trustee is obliged to dispose of the profits arising from them to certain purposes; yet are they attended, too, with a limitation in respect of the disposal of them, where the trustee is no more at liberty to dispose of the estate itself, at his own discretion, than he is to dispose of the use and profits of it. In the case of pledges, the property of the person, whose goods are pledged, is limited as to the disposal of such goods. Pledges are such goods as the debtor puts into the hands of the creditor, or assigns over to him as a security, that upon failure of payment, the creditor shall have property in the thing pledged. If moveable goods are pledged, they are called pawns; if im

moveable ones, they are called mortgages. In both cases the owners' property is limited in respect of the disposal of the thing, till the debt is paid; because the creditors' right of security would be broken in upon, if the debtor was to dispose of it.

CHAPTER V.

OF OUR COMMON RIGHT TO THINGS.

I. What things are still in common.-II. The ocean is not in property.-
III. Some waters admit of property.-IV. Wild beasts, birds, and
fishes are in common until taken.-V. The right to take wild beasts,
&c. may
be restrained as to its exercise.-VI. Right of extreme ne-
cessity sets aside property.-VII. This right is subject to three limi-
tations.-VIII. Right of harmless profit, on what founded.-IX.
This right is precarious in its exercise.

What things are I. *ALL things may be divided into such as are in
still in common. common, and such as are in property. Such things are
still in common, as either from their own nature never could be appro-
priated, or though in their own nature they might be appropriated, yet
in fact never have been. We will consider the rights which belong
to all mankind, in common, in respect of things of each sort.
The ocean is not II. The ocean, either as to the whole, or as to the
in property. principal parts of it, does not admit of property, but
remains still in common to all mankind, notwithstanding the introduc-
tion of property in other things. The first reason that we urge in
proof of this, is only a moral or probable one. It is not likely that
mankind should ever think of gaining an exclusive right to the ocean;
because there was no reason for it; no cause or motive which might
induce them to it. And though, where an act appears evidently to
have been done, we could never disprove the existence of it by alleg-
ing that there was no reason for doing it; yet, where it is doubtful
whether an act has been done or not, the conclusion is probable that it
never has been done, provided no reason can be found why it should.
Now the general reason for appropriating other things is, that the same
thing would not answer the purposes of all the joint commoners who
might have occasion to make use of it at one and the same time. But
the ocean, whilst it continues in common, is not liable to this inconve-
nience: it is large enough to answer the occasions of all mankind, either
to sail upon, or to fish in, or to fetch water from. We therefore con-
clude, that it was never in the intention of mankind to appropriate it,
or to acquire an exclusive right in it; because the general reason for
acquiring such a right in other things, could, in respect of the ocean,
have no weight with them.

Grot. Lib. II. Cap. II. § I.

f Grot. ibid. § III.

+ See Chap. III. § V.

We may say the same of large banks of sand, which are sufficient to supply all men who want to use the sand, either for ballast, or for any other purpose. The same reasoning is likewise applicable to the air, as far as any use can be made of it, without making use at the same time of the soil or the water.

But besides this moral reason, arising from the want of intention in mankind to acquire an exclusive right in the ocean, there is a natural one, which shows that no such right ever could be acquired. *Occupancy cannot proceed so as to give property, unless in such things as are certain and determinate. The soil or land, though the parts of it are in continuity or join to one another, is distinguished into parcels by hills or mountains, by brooks or rivers: and where these natural boundaries are wanting, parcels of it may be distinctly set out by fences, or plantations, or other artificial land-marks. But the surfaces of fluids are, in their own nature, so smooth and yielding, as not to admit of being distinguished into parcels by any such natural or artificial boundaries. If they are thus set out at all, it must be by the banks or shores in which they are contained. Now the ocean is not contained within banks or shores: for it rather encompasses the land, the continent, as well as what are commonly called islands, than is encompassed by it. The natural uncertainty, therefore, of the thing, both as to the whole of it, and as to its principal parts, renders it incapable of being appropriated by occupancy. Mariners, indeed, and geographers divide and set it out by the artificial measure of degrees in latitude and longitude. But as these are not lasting and visible limits, they cannot so distinguish the ocean into parcels, as that one part of mankind should be able to find out what another part design to make their own, without express information; and consequently they cannot make the ocean capable of being appropriated, unless all the parties were to meet and enter into an express agreement about settling the limits of each other's property. Such an agreement as this is what we call division. But if property in the ocean cannot be introduced any other way than by division, no property can be introduced in it at present, fas has been shown already. And formerly, whilst mankind were few, and lived near together, so that they could readily meet, the ocean, or however far the greatest part of it, was unknown to them, and consequently could not, at that time, be measured, divided and assigned. Since, therefore, property in the ocean could not be introduced either by occupancy or by division, the necessary consequence is, that it is not capable of being appropriated at all.

III. The case of rivers, bays, streights, pools, or Some waters adlakes, is different from that of the ocean. For though, mit of property. as fluid bodies, they are not set out into certain and determinate parcels, by any marks or limits upon their surface, yet, as they are contained within banks or shores, which are near to one another, they are by this means made certain and determinate enough to admit of property by occupancy.

of

IV. Many things, which in their own nature admit wild beasts, birds occupancy, so that an exclusive right to them may and fishes, are in be acquired, have yet in fact never been appropriated; common till taken.

* See Chap. III. § VIII.

Grot. Lib. II. Cap. III. § VII.

† See Chap. III. § IX.

Grot. ibid. § V.

"

because no one has seized upon them for this purpose. Of this sort are wild beasts, birds and fishes, which have never been caught; or, after they are caught, have escaped from us; islands, which are uninhabited, or such tracts of land, either in islands or on the continent, as no person has yet settled upon.

As to wild beasts, birds or fishes, since they are part of the common stock, any person may of common right take them for his own use or diversion; and occupancy without interruption will give him property in them. But then this property is very precarious; because it continues no longer than possession. Whenever such animals have made their escape, the natural presumption, upon account of their wildness, is, that they can be recovered no more: and consequently their former owner must, in all reason, be understood to give them up or relinquish them. This property, however, as precarious as it is, seems to be more than the mere exercise of a common right to take and to use them: because, if he, who takes them, can make them tame, so that by loss of possession he does not lose all prospect of recovering them, his property in them will be fixed, even after they have escaped from him; and he may claim them wherever he finds them. And it farther appears that the right to such animals, when they are taken, is more than a common right to part of a joint stock; because no reason can be given, in the nature of the thing itself, why any person may not take more such animals than he wants for his own use: and as long as he can keep possession, what he has so taken are his own to dispose of in any manner that he pleases. His right, therefore, whilst possession continues, is not merely a right to use, but an exclusive right of property.

The right to take
wild beasts, &c.
may be restrained

V. But though no reason, in the nature of the thing, can be given why any person may not lawfully take as many of these wild animals as he will, yet his right of as to its exercise. taking them at all is limited, by a reason drawn from the consideration, that other men have property in such things as he must make use of, in order to take them. No man can hunt, or fish, or fowl, without using the soil or the water. If, therefore, others have an exclusive right to the soil or the water, which he has occasion to make use of in following these diversions; as he cannot claim to use their property, he cannot justly claim the liberty of hunting, or fishing, or fowling on such lands or such rivers as belong to them. It may, perhaps, be asked how he can justly be hindered from exercising a right which he enjoys by the law of nature, a right of taking and using, or even of appropriating such animals as do not belong to any one; since such a hindrance or interruption seems inconsistent with the law of nature? But to this we reply, that fishing, hunting, or fowling, are originally matter of natural right; not because the law of nature commands them, but because it does not forbid them. Now though no act of man can take away the liberty of doing what the law of nature commands, yet there is nothing that can prevent such act from taking away the liberty of doing what the law has left indifferent; provided the parties, to whom such liberty belongs, give their consent to it. This, in respect of hunting, fishing, or fowling, though it was not done expressly, was done tacitly, and of necessary consequence, by the introduction of property in the soil or the water. For it is unintelligible

to suppose that one man has an exclusive right in the soil or the water, and yet that another may use them, if he pleases, to these purposes. To give any other person besides the proprietor such a claim after property is introduced, some reserve must be shown, and an express reserve too, of this liberty: for, otherwise, the common or general liberty of using the soil or the water for the purposes of hunting, fishing, or fowling, is as effectually given up by the introduction of property, as the general liberty of using them to any other purpose whatsoever.

VI. It may seem strange, that we should inquire Right of extreme whether all mankind can, in any circumstances, or in necessity sets aside any instances, claim of common right to make use of property. such things as are appropriated to particular persons. For, since property is an exclusive right to the things appropriated, it seems to have wholly superseded these common claims of mankind. We shall, however, find upon inquiry, that the fact is otherwise, and that in some circumstances our common right to the use of things remains, even after those things have been appropriated and have their distinct and respective owners.

Grotius maintains, that there are two instances of such a common claim: the first he calls the right of extreme necessity; the latter the right of harmless profit. In support of the right of extreme necessity we may urge with him, that when mankind first agreed to divide the common stock amongst them; or when, afterwards, they suffered any one to acquire property by occupancy; if they had been asked whether they consented so effectually to exclude themselves from what they agreed to appropriate, as never to claim any use of it, even though it should be absolutely necessary to their own preservation? It is most likely they would have answered, that they intended no such thing, but agreed to the introduction of property for the convenience of all, and not for the destruction of any. And since the claim, which the proprietor of a thing has to it, depends upon the consent of mankind, this claim must be subject to all the limitations which they designed to lay it under, and can extend no farther than they designed it should extend.

We may urge in support of the same right of extreme necessity, that no compact, either express or tacit, could so introduce property as to be binding without such a limitation. For, since the right which a man has to his life is unalienable, (as will appear hereafter,) he cannot alienate the natural right which he has to the necessary means of his own preservation. However, therefore, mankind may have consented that particular things should be possessed in property by particular persons, yet in whatever respect such things become absolutely necessary for the preservation of individuals, they still continue in common. So that extreme necessity sets property aside, or makes it lawful for persons, who labour under such necessity, to use those things in which others have property, as if the things were still in common. Thus, where a man must have starved otherwise, it is naturally no theft if he takes victuals which is not his own: because, though the owner of what is so taken has, in respect of all other men, an exclusive right to it, he has no such right in respect of the necessitous person. You may

• Grotius, Lib. II. Cap. III. § VI.