things would be otherwise made in themselves and by a law into
unappropriable objects. Thus a first appropriator acquires
originally by primary possession a particular portion of the ground;
and by right (jure) he resists every other person who would hinder him
in the private use of it, although, while the "state of nature"
continues, this cannot be done by juridical means (de jure), because a
public law does not yet exist.

  And although a piece of ground should be regarded as free, or
declared to be such, so as to be for the public use of all without
distinction, yet it cannot be said that it is thus free by nature
and originally so, prior to any juridical act. For there would be a
real relation already incorporated in such a piece of ground by the
very fact that the possession of it was denied to any particular
individual; and as this public freedom of the ground would be a
prohibition of it to every particular individual, this presupposes a
common possession of it which cannot take effect without a contract. A
piece of ground, however, which can only become publicly free by
contract, must actually be in the possession of all those associated
together, who mutually interdict or suspend each other, from any
particular or private use of it.

  This original community of the soil and of the things upon it
(communio fundi originaria), is an idea which has objective and
practical juridical reality and is entirely different from the idea of
a primitive community of things, which is a fiction. For the latter
would have had to be founded as a form of society, and must have taken
its rise from a contract by which all renounced the right of private
possession, so that by uniting the property owned by each into a
whole, it was thus transformed into a common possession. But had
such an event taken place, history must have presented some evidence
of it. To regard such a procedure as the original mode of taking
possession, and to hold that the particular possessions of every
individual may and ought to be grounded upon it, is evidently a
contradiction.

  Possession (possessio) is to be distinguished from habitation as
mere residence (sedes); and the act of taking possession of the soil
in the intention of acquiring it once for all, is also to be
distinguished from settlement or domicile (incolatus), which is a
continuous private possession of a place that is dependent on the
presence of the individual upon it. We have not here to deal with
the question of domiciliary settlement, as that is a secondary
juridical act which may follow upon possession, or may not occur at
all; for as such it could not involve an original possession, but only
a secondary possession derived from the consent of others.

  Simple physical possession, or holding of the soil, involves already
certain relations of right to the thing, although it is certainly
not sufficient to enable me to regard it as mine. Relative to
others, so far as they know, it appears as a first possession in
harmony with the law of external freedom; and, at the same time, it is
embraced in the universal original possession which contains a
priori the fundamental principle of the possibility of a private
possession. Hence to disturb the first occupier or holder of a portion
of the soil in his use of it is a lesion or wrong done to him. The
first taking of possession has therefore a title of right (titulus
possessionis) in its favour, which is simply the principle of the
original common possession; and the saying that "It is well for
those who are in possession" (beati possidentes), when one is not
bound to authenticate his possession, is a principle of natural
right that establishes the juridical act of taking possession, as a
ground of acquisition upon which every first possessor may found.

  It has been shown in the Critique of Pure Reason that in theoretical
principles a priori, an intuitional perception a priori must be
supplied in connection with any given conception; and, consequently,
were it a question of a purely theoretical principle, something
would have to be added to the conception of the possession of an
object to make it real. But in respect of the practical principle
under consideration, the procedure is just the converse of the
theoretical process; so that all the conditions of perception which
form the foundation of empirical possession must be abstracted or
taken away in order to extend the range of the juridical conception
beyond the empirical sphere, and in order to be able to apply the
postulate, that every external object of the free activity of my will,
so far as I have it in my power, although not in the possession of it,
may be reckoned as juridically mine.

  The possibility of such a possession, with consequent deduction of
the conception of a nonempirical possession, is founded upon the
juridical postulate of the practical reason, that "It is a juridical
duty so to act towards others that what is external and useable may
come into the possession or become the property of some one." And this
postulate is conjoined with the exposition of the conception that what
is externally one's own is founded upon a possession, that is not
physical. The possibility of such a possession, thus conceived,
cannot, however, be proved or comprehended in itself, because it is
a rational conception for which no empirical perception can be
furnished; but it follows as an immediate consequence from the
postulate that has been enunciated. For, if it is necessary to act
according to that juridical principle, the rational or intelligible
condition of a purely juridical possession must also be possible. It
need astonish no one, then, that the theoretical aspect of the
principles of the external mine and thine is lost from view in the
rational sphere of pure intelligence and presents no extension of
knowledge; for the conception of freedom upon which they rest does not
admit of any theoretical deduction of its possibility, and it can only
be inferred from the practical law of reason, called the categorical
imperative, viewed as a fact.