The General Rights of Things

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

The establishment of property has absorbed every right that sprung from common ownership.

• This crates some inconsistency.

What was the intention of those who introduced private property?

It was for natural equity.

Written laws were supposed to match laws of nature.

This would create laws with few literal restrictions of written maxims.

This means that in cases of extreme necessity, the original right of using things in common must be revived.

This is because the case of extreme necessity creates an exception in all human laws.

This principle is why:

• when food becomes scarce during a ship’s voyage, personal food stocks should be used for common consumption.
• a neighbouring house may be pulled down to stop the progress of a fire
• the cables or nets that entangle a ship may be cut if it cannot otherwise be disengaged

These are not from civil law, but from 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.

Seneca says that necessity:

• is the great protectress of human infirmity
• breaks through all human laws and regulations

Cicero in his eleventh Philippic says that Cassius went into Syria.

• It would be considered as invasion of another province from the perspective of written laws
• But if these were abolished, from the law of nature it would be not.

Part 7

This idea 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 book 3 of his offices, asks:

Cicero

Does a wise man, in danger of perishing with hunger, have a right to take the food of a useless man?

Cicero

No. No life is so important as to authorize the violation of that general rule of forbearance that secures the peace and safety of every individual.

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 book 7 of Symposiacs, Plutarch observes that it is wicked to:

• destroy excess food when we have excess food
• destroy springs of water after we have used what we needed
• not to leave for other passengers the sea-marks, that have enabled us to steer our course after having finished our voyage