It is a question as to how far the right of taking possession of the soil extends.The answer is, So far as the capability of having it under one's power extends; that is, just as far as he who wills to appropriate it can defend it, as if the soil were to say: "If you cannot protect me, neither can you command me." In this way the controversy about what constitutes a free or closed sea must be decided.Thus, within the range of a cannon-shot no one has a right to intrude on the coast of a country that already belongs to a certain state, in order to fish or gather amber on the shore, or such like.
Further, the question is put, "Is cultivation of the soil, by building, agriculture, drainage, etc., necessary in order to its acquisition?" No.For, as these processes as forms of specification are only accidents, they do not constitute objects of immediate possession and can only belong to the subject in so far as the substance of them has been already recognized as his.When it is a question of the first acquisition of a thing, the cultivation or modification of it by labour forms nothing more than an external sign of the fact that it has been taken into possession, and this can be indicated by many other signs that cost less trouble.Again:
"May any one be hindered in the act of taking possession, so that neither one nor other of two competitors shall acquire the right of priority, and the soil in consequence may remain for all time free as belonging to no one?" Not at all.Such a hindrance cannot be allowed to take place, because the second of the two, in order to be enabled to do this, would himself have to be upon some neighbouring soil, where he also, in this manner, could be hindered from being, and such absolute hindering would involve a contradiction.It would, however, be quite consistent with the right of occupation, in the case of a certain intervening piece of the soil, to let it lie unused as a neutral ground for the separation of two neighbouring states; but under such a condition, that ground would actually belong to them both in common, and would not be without an owner (res nullius), just because it would be used by both in order to form a separation between them.Again: "May one have a thing as his, on a soil of which no one has appropriated any part as his own?" Yes.In Mongolia, for example, any one may let lie whatever baggage he has, or bring back the horse that has run away from him into his possession as his own, because the whole soil belongs to the people generally, and the use of it accordingly belongs to every individual.But that any one can have a moveable thing on the soil of another as his own is only possible by contract.Finally, there is the question: "May one of two neighbouring nations or tribes resist another when attempting to impose upon them a certain mode of using a particular soil; as, for instance, a tribe of hunters making such an attempt in relation to a pastoral people, or the latter to agriculturists and such like?"Certainly.For the mode in which such peoples or tribes may settle themselves upon the surface of the earth, provided they keep within their own boundaries, is a matter of mere pleasure and choice on their own part (res merae facultatis).
As a further question, it may be asked whether, when neither nature nor chance, but merely our own will, brings us into the neighbourhood of a people that gives no promise of a prospect of entering into civil union with us, we are to be considered entitled in any case to proceed with force in the intention of founding such a union, and bringing into a juridical state such men as the savage American Indians, the Hottentots,and the New Hollanders; or- and the case is not much better- whether we may establish colonies by deceptive purchase, and so become owners of their soil, and, in general, without regard to their first possession, make use at will of our superiority in relation to them? Further, may it not be held that Nature herself, as abhorring a vacuum, seems to demand such a procedure, and that large regions in other continents, that are now magnificently peopled, would otherwise have remained unpossessed by civilized inhabitants and might have for ever remained thus, so that the end of creation would have so far been frustrated? It is almost unnecessary to answer; for it is easy to see through all this flimsy veil of injustice, which just amounts to the Jesuitism of making a good end justify any means.This mode of acquiring the soil is, therefore, to be repudiated.
The indefiniteness of external acquirable objects in respect of their quantity, as well as their quality, makes the problem of the sole primary external acquisition of them one of the most difficult to solve.There must, however, be some one first acquisition of an external object; for every Acquisition cannot be derivative.Hence, the problem is not to be given up as insoluble or in itself as impossible.If it is solved by reference to the original contract, unless this contract is extended so as to include the whole human race, acquisition under it would still remain but provisional.
16.Exposition of the Conception of a Primary Acquisition of the Soil.
