say, indeed, that it is not the property of the poor man who takes it; which we readily allow. But then we contend, that, in respect of him, it is not the property of the person from whom he takes it. If it was, you might easily prove this act to be theft, unless the owner consented to his taking it: because theft consists in taking away the property of another without his consent. But you should observe, that where there is no property there can be no theft. And if, in order to prove the poor man's act to be theft, you will assume that the person from whom the thing is taken has property in it, you either take the matter in question for granted, or else you are guilty of a fallacy. If, when you assume that the person from whom the thing is taken has property in it, you mean that he has property in respect of the poor man; or that, as the owner has a right to exclude all others from the use of the thing, so he has likewise the same right to exclude him, you take the matter in question for granted. But if, when you assume this in general, you mean only that he has property in respect of all others, you are guilty of a fallacy; you have more in your conclusion than is contained in your premises: you assume only that he has property in respect of some, and conclude as if he had property in respect of all.

To this head we may likewise refer the right which we have in case of fire, to pull down our neighbour's house in order to preserve our own; the right which we have to cut the nets or cables of another man, where our own boat is entangled with them, and must otherwise sink; the obligation on ship-board, which each person is under, in a scarcity of provisions, to bring out his own stock and to leave it in common: the right which, in a storm, all who are on board have to demand that each person shall throw so many of his goods into the sea, as would overburden the ship; and, lastly, the right which a nation at war has to seize upon and garrison a place of strength, in a neutral country, when it is morally certain that the enemy would otherwise get possession of it, and by that means be enabled to do them irreparable damage. For though, in some of these instances, the preservation of life may seem not to be immediately concerned; yet, at least, the reason upon which Grotius supports the right of extreme necessity, is applicable to all of them. It is not probable that mankind, when they consented to introduce property, should design to extend that claim to cases wherein such an exclusive right would force them to suffer what is beyond the ordinary patience of human nature.

VII. *This right of extreme necessity is subject to The right of extreme necessity is such restrictions as will keep it from being abused, and subject to three from being made a pretence to encroach upon the property of others, where we have no claim. The restrictions are these three, which follow:

limitations.

First, all other methods are to be tried as far as the necessity will allow of; such as a request to the owner or an application to the magistrate, before we make use of such things as are the property of another. The reason of this restriction is evident. No necessity can be called extreme, or in effect there is no necessity at all, where our occasions or calls may be answered by the use of such means as are in our power. Indeed in our own country, where the civil laws have provided for the

Grotius, Lib. II. Cap. III. § VII, VIII, IX.

poor, there can be no necessity which the rigour of the law will allow to be a sufficient ground for taking and using such food or such clothing as are the property of other persons: because, as the law has made a provision for the supply of such wants, it cannot suppose them ever to happen. And yet if, in the execution of the law, it should appear, that, notwithstanding the legal provisions to the contrary, in some particular instance such an extreme case has happened, the magistrate would be wanting in natural equity if he did not mitigate the rigour of the law against theft, as far as he is able.

A second restriction of this right of extreme necessity is, that it fails when the proprietor is under as great necessity as the other claimant. For, where the necessity is equal on both sides, the claim of the possessor is the better of the two: because the effect of necessity is only to overrule the right of property, and to make the thing in question common to the parties concerned. But in the exercise of our right over such things as are in common, where the parties equally want to use them, the first occupant has the best right to use them first: and in the case now before us, the possessor stands in the place of the first occupant.

A third restriction is, that where we have taken things which were not our own, and have used them in virtue of this right of extreme necessity, we are obliged, if it ever is in our power, to make amends to the owners of them. This restriction seems to be so inconsistent with the right for which we have been contending, that some have imagined we must either give up the restriction, or give up the right. If I have a right to use the goods which my necessity calls for, where can be the obligation to restitution? since all obligations of this sort imply that I have injured another by taking from him what I had no right to. Upon supposition therefore of a right to use such goods, there can be no obligation to make amends for it. Or if, on the other hand, we will contend that there is an obligation to make restitution, we must allow that the person in necessity had no right to take and to use the goods which he stood in need of. But to this we may answer, that a right to take and to use such goods as we cannot do without, and an obligation to make restitution for the exercise of that right, are indeed so inconsistent with one another, that they cannot possibly subsist at one and the same time. So long as my right subsists, I can be under no obligation to make restitution upon account of my exercising that right. But then they are not so inconsistent as to prevent them from subsisting at different times. My right subsists as long as the necessity continues, which is the foundation of that right; and so long there is no obligation to make restitution. But as soon as my necessity ceases, the foundation of my right is taken away, and consequently my right ceases with it. And it is then, and not till then, that the obligation to restitution begins.

founded.

VIII. The right of harmless profit is the right of Right of harmless using another man's property for our benefit, where the profit, on what owner suffers no harm by our use of it. This right may be easily made out in theory; but when we come to the exercise of it, we shall find it so precarious as to be in effect no right at all. To

*Grot. Lib. II. Cap. III. § XI, &c,

support this right, we must look back to the general reason for introducing property, which was the impossibility that the same thing should at one and the same time, answer the uses which all or many might have for it. Now the claim of property, or the exclusive right to a thing extends no farther than the intention of mankind extended when they introduced it: and their intention cannot be understood to have extended any farther than the motive or reason which engaged them to introduce it. Therefore one man's property in a thing does not exclude another's right of harmless profit; because this right takes place in those instances only where the owner suffers no harm; that is, in those instances only where the thing will answer all the purposes of the proprietor, notwithstanding the use which the other makes of it.

cise.

Such right is preIX. But this claim, as well as it may seem to be escarious in its exer- tablished in theory, will be found, as to the exercise of it, to depend upon the will and consent of those who have property in the goods that we have occasion to make use of for our own benefit. No right of this sort can be pretended, unless where our use of what is another man's property will do him no harm. But the proprietor himself must determine how far such use of his goods will be harmless; because his right in the goods would have no effect, or would be no right, if he could not exclude us from using them whenever we pretend that he will receive no damage from such use. If therefore he is to determine how far he is likely to suffer any harm by the exercise of our right, before we can claim to exercise it, we cannot make use of his goods in virtue of such right, till we have his consent. This is plainly in effect no better than no right at all; because where there is no pretence of a right to use the goods of another man, we may in any instance lawfully use them if he gives his consent.

We may be farther informed about the precarious nature of this right, as to the exercise of it, if we go on to examine some of the principal instances of it, which Grotius has mentioned.. Those, says he, who have occasion for a passage over our land, or upon our rivers, either to seek a new settlement, when they are driven from their own country, or to carry on any commerce, or to recover by a just war what has been taken from them, or for any other lawful purpose, have a claim to such passage. Let us see, therefore, how far such a demand can be justly supported against the proprietor. A nation which has jurisdiction over the soil or water, or which has property in them, might object in particular to the passage of an army, that they are afraid of suffering some irreparable damage, if they were to allow such a number of armed men to come amongst them. To this difficulty Grotius replies that your fears cannot take away my right. But it is to observed, that though such a general answer might be sufficient in other cases, yet it cannot remove the objection which is urged in the present case; because no use of my property can be called harmless to me if it exposes me to such losses, as I should have been in no danger of suffering without such use. It may be true that my fears cannot take away your right, but then it cannot be true without an exception of those cases in which the very being of your right depends, as this of harmless profit does upon my security. Perhaps, indeed, even in this sort of right, it might be more proper to say that my fears prevent your right, than that they take it away. But which ever of these two expressions is the more proper, the effect is the

same: there cannot be any right of harmless profit over the property of another man, where the owner has good reason to apprehend that he shall be a loser by the exercise of such a right. Our author, however, urges farther, that sufficient caution may be given to the owner to indemnify him against any loss that he may be apprehensive of: he may, in the instance now before us, insist that the army shall pass in small companies, that the men shall not be armed, that a guard shall be hired for him at their expense, and that hostages shall be put into his hands, as a security for their good behaviour in their passage. Now the necessity which our author allows there may be for taking such cautions as these, and the right which the proprietor has to insist upon them, plainly proves that without this security there would be no claim to use his property. But since sufficient caution is a vague thing, and since the proprietor alone can be the judge what caution is sufficient, he has such an opportunity of disappointing this right in the exercise of it, as makes the right itself not worth having.

But Grotius goes one step farther, and maintains that men have not only a right to demand such a passage for themselves, but for their goods too, when they want to carry on any trade or commerce; because, as such an intercourse of any one nation with any other is for the general good of mankind, we can have no right to hinder it. But this reason, if we allow it all its weight, can only prove that by hindering this intercourse we shall not contribute so much as we are able to the general good of mankind. And if this be all, the right of passage is only a demand of the imperfect sort; and they upon whom it is made, are at liberty to judge for themselves how far it is convenient for them to allow it to take effect. How can we in this instance, says our author, be properly said to sustain any damage by their passage, since whatever benefit we might be able to make by carrying on that trade exclusively, which they want to have a share in, it is such a benefit as we could only hope for, and not such an one as we could claim of strict right. But, whether the loss of such a benefit can be called in strictness of speaking a damage or not, is not worth inquiring. Perhaps it is not properly a damage. Yet certainly if the situation of our country is such as gives us an opportunity of carrying on any branch of trade exclusively, by denying others the use of our land or the use of our rivers, they cannot claim such use as a matter of harmless profit; because whatever will make our property less beneficial to us, can never be reasonably looked upon as harmless to us.

We are obliged likewise, as our author adds, to allow those who are passing by us to stop for a while, and even to build temporary huts or pitch tents, if they have occasion to stop in this manner for the recovery of their health; for this is to be reckoned amongst the harmless uses which they may have from our property. But certainly it is not universally true that such an use of our property will be harmless to us. Suppose, for instance, that they should be ill with the plague or with any other infectious distemper; their stopping amongst us would not be harmless. We must, therefore, be allowed at least to have a right of being satisfied whether their distemper is infectious or not, before they can claim to stop for the recovery of their health. And if they cannot claim, till we are satisfied of this, their right will be so vague and so much in our power that it can only be reckoned amongst the imperfect ones.

CHAPTER VI.

OF DERIVATIVE ACQUISITIONS, BY THE ACT OF MAN.

I. Derivative acquisitions are of two sorts.-II. Mutual and notified consent of parties necessary in those made by the act of man.-III. An alienation may be revoked before acceptance.-IV. Acceptance may go before alienation.-V. Property may be continued after death by a will.-VI. Aliens, how incapable of inheriting by will.

Derivative acquisi

1. DERIVATIVE acquisitions are made either by the tions are of two act of man or by the act of the law. Where the proper

sorts.

ty which one man has in a thing, is transferred to another, either the owner transfers it with his own consent, and then he who acquires it, makes a derivative acquisition by the act of man, or else the law takes the property in the thing from one of them and gives it to the other, and then he to whom it is so given, makes a derivative acquisition by the act of the law. When the property in things passes from one person to another by the act of the former, he who so parts with the things is said to transfer or alienate them, and he to whom they are so transferred is said to acquire them.

man.

Mutual and notifi- II. The proprietor or owner of a thing, when the ed consent of par- law does not interpose to take it from him, cannot cease ties necessary in derivative acquisito have a right in it, unless he designs to part with it; tions by the act of an injury is done him if it is taken from him without his own consent. On the other hand, no property in a thing can be acquired without the design or consent of him who makes the acquisition; nothing can become his own unless he has a mind to make it so. From hence it follows that in all derivative acquisitions by the act of man, a design or consent to alienate the thing is necessary on one part, and a design or consent to accept it is necessary on the other part. But besides the mere consent of parties on both sides, it is farther necessary that this consent should be sufficiently made known or signified by some outward sign or mark, such as words or actions or both. For a consent which does not appear, can no more fall under the notice of mankind than a consent which does not exist: and consequently the law of nature cannot allow that, in respect of mankind, a consent or intention which rests in the mind only and is not sufficiently declared, should produce any effect; such intention being as if it had never been, the property in a thing can neither be transferred nor acquired by it. An alienation may III. But since the declared consent both of the giver be revoked before and receiver is necessary before any derivative acquisiacceptance. tion can be made by the act of man, it follows that, though the giver has declared his consent, and so has done all that was necessary on his part towards alienating his property, yet such alienation may be recalled at any time before acceptance is declared on the other part; because, till acceptance is declared, the party to whom the giver designed to alienate his property, has no claim upon it. Perhaps it may be thought that, notwithstanding one of the parties gains no claim to the † Grot. ibid. § I. II.

Grot. Lib. II. Cap. VI. § I.