would have just as little legal title- which can be properly based
only on the universalized will- to contest a claim of right as he
would have to assert it. Yet be has the advantage on his side, of
being in accord with the conditions requisite to the introduction
and institution of a civil form of society. In a word, the mode in
which anything external may be held as one's own in the state of
nature, is just physical possession with a presumption of right thus
far in its favour, that by union of the wills of all in a public
legislation it will be made juridical; and in this expectation it
holds comparatively, as a kind of potential juridical possession.

  This prerogative of right, as arising from the fact of empirical
possession, is in accordance with the formula: "It is well for those
who are in possession" (Beati possidentes). It does not consist in the
fact that, because the possessor has the presumption of being a
rightful man, it is unnecessary for him to bring forward proof that he
possesses a certain thing rightfully, for this position applies only
to a case of disputed right. But it is because it accords with the
postulate of the practical reason, that everyone is invested with
the faculty of having as his own any external object upon which he has
exerted his will; and, consequently, all actual possession is a
state whose rightfulness is established upon that postulate by an
anterior act of will. And such an act, if there be no prior possession
of the same object by another opposed to it, does, therefore,
provisionally justify and entitle me, according to the law of external
freedom, to restrain anyone who refuses to enter with me into a
state of public legal freedom from all pretension to the use of such
an object. For such a procedure is requisite, in conformity with the
postulate of reason, in order to subject to my proper use a thing
which would otherwise be practically annihilated, as regards all
proper use of it.
CH2

                  FIRST PART. PRIVATE RIGHT.

  The System of those Laws Which Require No External Promulgation.

      CHAPTER II. The Mode of Acquiring Anything External.

       10. The General Principle of External Acquisition.

  I acquire a thing when I act (efficio) so that it becomes mine. An
external thing is originally mine when it is mine even without the
intervention of a juridical act. An acquisition is original and
primary when it is not derived from what another had already made
his own.

  There is nothing external that is as such originally mine; but
anything external may be originally acquired when it is an object that
no other person has yet made his. A state in which the mine and
thine are in common cannot be conceived as having been at any time
original. Such a state of things would have to be acquired by an
external juridical act, although there may be an original and common
possession of an external object. Even if we think hypothetically of a
state in which the mine and thine would be originally in common as a
communio mei et tui originaria, it would still have to be
distinguished from a primeval communion (communio primaeva) with
things in common, sometimes supposed to be founded in the first period
of the relations of right among men, and which could not be regarded
as based upon principles like the former, but only upon history.
Even under that condition the historic communio, as a supposed
primeval community, would always have to be viewed as acquired and
derivative (communio derivativa).

  The principle of external acquisition, then, may be expressed
thus: "Whatever I bring under my power according to the law of
external freedom, of which as an object of my free activity of will
I have the capability of making use according to the postulate of
the practical reason, and which I will to become mine in conformity
with the idea of a possible united common will, is mine."

  The practical elements (momenta attendenda) constitutive of the
process of original acquisition are:

  1. Prehension or seizure of an object which belongs to no one;
for, if it belonged already to some one, the act would conflict with
the freedom of others, that is, according to universal laws. This is
the taking possession of an object of my free activity of will in
space and time; the possession, therefore, into which I thus put
myself is sensible or physical possession (possessio phenomenon);

  2. Declaration of the possession of this object by formal
designation and the act of my freewill in interdicting every other
person from using it as his;

  3. Appropriation, as the act, in idea, of an externally
legislative common will, by which all and each are obliged to
respect and act in conformity with my act of will.

  The validity of the last element in the process of acquisition, as
that on which the conclusion that "the external object is mine" rests,
is what makes the possession valid as a purely rational and
juridical possession (possessio noumenon). It is founded upon the fact
that, as all these acts are juridical, they consequently proceed
from the practical reason, and therefore, in the question as to what
is right, abstraction may be made of the empirical conditions
involved, and the conclusion, "the external object is mine," thus
becomes a correct inference from the external fact of sensible
possession to the internal right of rational possession.