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• The Rights of War and Peace Book Ii
• Chapter I: Of the Causes of War; and First, of the Defence of Persons and Goods.
• Chapter II: Of Things Which Belong In Common to All Men.
• Chapter III: Of the Original Acquisition of Things; Where Also Is Treated of the Sea and Rivers.
• Chapter IV: Of a Thing Presumed to Be Quitted, and of the Right of Possession That Follows; and How Such a Possession Differs From Usucaption and Prescription.
• Chapter V: Of the Original Acquisition of a Right Over Persons; Where Also Is Treated of the Right of Parents: of Marriages: of Societies: of the Right Over Subjects: Over Slaves.
• Chapter VI: Of an Acquisition (possession Or Purchase) Derived From a Man’s Own Deed; Where Also of the Alienation of a Government, and of the Things and Revenues That Belong to That Government.
• Chapter VII: Of an Acquisition Derived to One By Vertue of Some Law; Where Also of Succeeding to the Effects and Estate of a Man Who Dies Without a Will.
• Chapter VIII: Of Such Properties As Are Commonly Called Acquisitions By the Right of Nations.
• Chapter IX: When Jurisdiction and Property Cease.
• Chapter X: Of the Obligation That Arises From Property.
• Chapter XI: Of Promises.
• Chapter XII: Of Contracts.
• Chapter XIII: Of an Oath.
• Chapter XIV: Of the Promises, Contracts, and Oaths of Those Who Have the Sovereign Power.
• Chapter XV: Of Publick Treaties, As Well Those That Are Made By the Sovereign Himself, As Those That Are Concluded Without His Order.
• Chapter XVI: Of Interpretation, Or the Way of Explaining the Sense of a Promise Or Convention.
• Chapter XVII: Of the Damage Done By an Injury, and of the Obligation Thence Arising.
• Chapter XVIII: Of the Rights of Embassies.
• Chapter XIX: Of the Right of Burial.
• Chapter XX: Of Punishments.
• Chapter XXI: Of the Communication of Punishments.
• Chapter XXII: Of the Unjust Causes of War.
• Chapter XXIII: Of the Dubious Causes of War.
• Chapter XXIV: Exhortations Not to Engage In a War Rashly, Tho’ For Just Reasons.
• Chapter XXV: Of the Causes For Which War Is to Be Undertaken On the Account of Others.
• Chapter XXVI: Of the Reasons That Justify Those Who Under Another’s Command Engage In War.

CHAPTER VIII

Of Such Properties as are commonly called Acquisitions by the Right of Nations.

I.Many Things are said to be by the Right of Nations which properly speaking are not so.I. 1. The Order of our Subject has now brought us to treat of that Acquisition or Property, which is, by the Law of Nations, distinct from the Law of Nature, which we have above called the Voluntary Law of Nations. Such<248> is that Acquisition which is obtained by the Right of War; but of this we shall speak more seasonably hereafter, where the Effects of War are explained. The Roman Lawyers, when they treat of the acquiring the Property of Things, reckon up many Methods, which, they say, are according to the Right of Nations. But a diligent Examiner will find that all of them, except that gained by the Right of War, do no Ways belong to that1 Right of Nations, which we are now treating of: But are either to be referred to the Law of Nature, not indeed to that which flows purely and simply from Nature, but to that which takes Place in Consequence of an established Property, and before all civil Law; or, they are such as may be referred to the Civil Law itself, not only that of the People of Rome, but of2 many other Nations round about them; which I rather believe, because those Laws or Customs came originally from the Greeks, whose Institutions, as Dionysius Halicarnassensis and others observe, all Italy, and the neighbouring Nations followed.

2. But this is not the Law of Nations, properly so called, because it3 does not belong or contribute to the mutual Society of Nations amongst themselves; but rather regards the Peace and Tranquillity of each particular People; and therefore might be altered by any one People, without consulting the others; and it may also happen, that in some other Places, and at some other Times, a very different common Custom, and so another Law of Nations, improperly so called, might be introduced; which we find was really done, when the German Nations invaded almost all Europe. For as formerly the Grecian Laws, so then the German, were generally received, and are as yet in Force. Now the first Way of acquiring a Thing by the Right of Nations, as the Roman Lawyers call it, is the4 Seizure or Possession of Things that have no Owner: Which Way is certainly according to the Law of Nature, in the Sense I mentioned, now Property is established, and as long as no Law hath determined any Thing to the contrary; for the Civil Law too can entitle us to a Property.

II.Fish in Ponds and Beasts in Parks, are by the Law of Nature one’s own peculiar Property, notwithstanding whatever the Roman Laws have declar’d to the contrary.II. And to this Head, in the first Place, is referred the Catching of Beasts, Birds, and Fish. But how long all these may be said to be no Body’s, admits of some Dispute. Nerva,1 the Son, was of Opinion, that Fish in a Pond were our<249> own, but not those in a great Lake; and wild Beasts inclosed in a Park, but not those that had the Liberty to range in Forests, tho’ those Forests were fenced in. Whereas Fish is no less inclosed in a private Lake than in a Pond, and Forests which are fenced in, do secure Beasts as well as any of the Parks, which the Greeks call Θηριοτροϕεɩ̂α, Places to breed up Beasts in. Nor is there any other difference between them, than that the one is the closer, the other the larger Confinement. And therefore now-a-Days the contrary Opinion does more justly obtain, that as we have the Possession of, so have we too a Property in, not only Beasts in private Forests, but Fish inclosed in Lakes.

III.Wild Beasts that get away cease not to be the first Owner’s, if they can know them again.III. The Roman Lawyers say, that we lose our Property1 in wild Beasts, as soon as ever they recover their natural Liberty; but in all other Things the Property acquired by Possession2 does not cease with the loss of Possession; nay, it gives us a Right even to claim and recover our Possession. And whether they be taken away from us by another, or getaway of themselves, as a3 fugitive Slave, it is all one. Wherefore it is more reasonable to say, that our Property is not lost merely because the wild Beasts have made their Escape,See Ch. 4. § 5. of this Book. but from a probable Conjecture, that by Reason of the difficulty of pursuing and recovering them, we may have abandoned them, especially if we cannot tell which are ours from others. But this Conjecture may be destroyed by other Conjectures, as by putting Γνωρίσματα, Marks,4 or Crepundia, Bells, upon them, as has been often done to Stags and Hawks, whereby they have been known, and restored to their Owners. Now to gain a Property in Things, it is requisite that we should have5 a corporal Possession, and therefore it is not enough to have6 wounded the Beast, as it was7 rightly decided against Trebatius. Hence comes the Proverb, Aliis leporem excitasti.8You have started the Hare, but others run away with it. And Ovid tells us, in his fifth Book of Metamorphoses, that9It is one Thing to know where a Thing is, and another to find it.

IV.Whether Possession may be gained by Instruments, and how.IV. Now this corporal Possession may be gained not only with our Hands, but with Instruments, such as Traps, Nets, Gins, &c. provided that these two<250> Circumstances go along with it. First, That those Instruments1 be in our own Power; and Secondly, that the Beast be so secured as that it cannot get away. And thus must we decide the Case of2the Boar in the Toil.

V.It is not against the Law of Nations that all wild Beasts should belong to the Crown.V. These Things are then only to take Place, where no Civil Law intervenes; wherefore our Moderna Lawyers are very much mistaken, who think those Rights to be so natural, as that they cannot be changed; for they are not purely, and simply natural, but only with Regard to a certain state of Things, that is, if it be not otherwise provided. Thus the People of Germany consulting about making some Allowances to their Princes and Kings to support their Dignities,1 very wisely thought it proper to begin2 with such Things as might be given without Damage to any one, such are those which no Person could lay particular Claim to; which I find that the Egyptians also practised: For there the King’s Intendant,3 whom they called ἴδιον λόγον, seized on all such Things to the Use of the Crown. The Law indeed could of it self transfer a Property in those Things before Possession,b since the Law alone is sufficient to create a Right of Property.

VI.How the Possession of other Things that have no Owner may be gained.VI. After the same manner as wild Beasts become our own, so do also1 other ἀδέσποτα, Things that have no Owner. For Nature consider’d in itself gives all these to him who finds, and lays hold on them first. Thus was the Desart2 City of Acanthos adjudged to the Chalcidians, who first enter’d it, not to the Andrians who had first thrown a Dart into it. For the beginning of Possession is joining Body to Body, and this in Moveables is done usually by the Hands; but in Immoveables, by our Feet. To know where a Thing is, is not finding it, as we have it in Ovid Metam. Lib. V.

VII.To whom Money found does naturally belong; and the Variety of Laws about it.VII. Among Things that have no Owner, are reckoned Treasures, that is, Money, whose Owner is not known;1 for what appears not, is, as if it were not. Wherefore such Treasures naturally belong to the Finder, that is, to him who moves them from the Place, and secures them; yet not so, but that2 Laws or Customs may order it otherwise. Plato3 would have Notice given to the Magistrates, and the Oracle<251> consulted. And Apollonius looking upon a Treasure that was found as a particular Kindness of God,4 adjudg’d it to the best Man. The Hebrews5 gave it to the Owner of the Ground wherein it was found,6 as may be gather’d from Christ’s Parable, Matt. xiii. 44. And that the Syrians did the same, I infer from a Story in Philostratus, Book VI. Chap. XVI. The Laws of the Roman Emperors are very various upon this Subject, as appears partly from7 their Constitutions, and partly from the Histories8 of Lampridius, Zonaras and Cedrenus. The Germans awarded those Treasures,In Adr. and Sever. and indeed all other ἀδέσποτα, Things without an Owner, to their Prince, which now is grown so common, that it may pass for a Law of Nations. For it is now observed in Germany, France, England, Spain and Denmark. We have already sufficiently9 shewn why this cannot be charged with Injustice.

VIII.That what is delivered us by the Roman Laws concerning Islands and Alluvions is neither natural, nor from the Right of Nations.VIII. Let us now proceed to Additions of Lands, which are made when a River retires or changes its Course, of which the old Lawyers1 have left us several stated Cases; and the Modern furnish us with whole Treatises. But what they have writ upon this Subject, is for the most part grounded not on the Law of Nature, but on the Usages of some Nations, though they often put them off under that Name. For most of their Decisions are built upon this Foundation, thataThe Banks of the River belong to him who possesses the adjoining Lands; and2 that even the Channel,3 when it is forsaken by its Waters, is also his, and consequently that the Islands cast up in the River are4 so too. They likewise distinguish one Inundation from another; a small one does not take away the Property, but ab great one does; yet so, that if the Flood retire sall of a sudden, the Land so overflowed shall, by the drawing off of the Waters, as if by5 Postliminy, return to its antient Proprietor, but if it Decreases by little and little only,6 it is another Thing; it goes to them who own the neighbouring<252> Estate. Now I do not deny, but all this might be introduced by the Civil Laws, and with the advantageous Prospect of making People more careful in securing their Banks; [[7 but that it is so by natural Right, (as they seem to imagine) I can by no Means allow.

IX.That an Island in a River and a dried up Channel are naturally his to whom the River, or that Part of the River belongs, that is, they are the Publick’s.IX. 1. For if we Regard what1 generally happens, the Body of the People took Possession of the whole Extent of a Country, both as to the Jurisdiction and Property, before the Lands were parcel’d out to private and particular Persons. What we, says Seneca,2call the Country of the Athenians, or the Campani, are such Lands as the Inhabitants do afterwards among themselves distinguish by certain Boundaries. And so Cicero,3There’s no Man can say that he has any Thing of his own by a Right of Nature; but either by prior Occupancy, as those, who first planted uninhabited Countries; or by Conquest, as those who have got Things by the Right of the Sword; or else by some Law, Compact, Condition or Lot.See Ch. 3. of this Book, § 19.It is by some of these Means, that the People inhabiting Arpinum and Tusculum came to have those Lands which are now called theirs; and the same may be said as to private Mens Estates. And Dion Prusaeensis, πολλά ἐστιν ἑυρεɩ̂ν, &c.4There are many Things to be found, that the Publick does in general claim for its own, tho’ parcelled out into particular Shares. Thus too Tacitus of the Germans, The Lands5(per Vicos occupantur, it is a Mistake to read it Vices) are possess’d in common by Villages, in Proportion to the Number of Hands to improve them; and then they are divided amongst them, with Regard to every Man’s quality and Circumstances. And therefore whatever was thus at first possess’d by the Publick, and not afterwards divided, must be suppos’d to be still the Property of the Publick; and as in a River that belongs to a private Person, any Island that shall be cast up, or the Channel that shall be left dry, becomes that private Person’s: So in a River that belongs to the Publick, both of these are the Publick’s, or his to whom the Publick has granted them.

2. What we have here been saying of the Channel,6 holds good also as to the Bank, which is nothing but the utmost Part of the Channel, that is, of the Passage where the Stream of the River naturally runs. And thus it is every where taken. In Holland, and the neighbouring Countries, many such Disputes did formerly arise, by Reason of the Lowness of their Lands, the Greatness of the Rivers, and the Nearness of the Sea, receiving Mud and Dirt in one Place, and carrying it back to another by the Ebbs and Flows of successive Tides: Those that were really Islands, were always reckoned Part of the publick Demain or Patrimony; as were also the Channels of the Rhine and the Maese intirely left by the Waters, as has been often adjudged, and grounded7 upon very good Reasons.<253>

3. For the Roman Lawyers themselves do allow,8 that an Island9 which floats in a River, held up perhaps by some Shrubs growing there, belongs to the State; because,10 say they, whoever has a Title to the River, must needs have as good a Title to the Island that is in it. And there is the same Reason for the Channel, as for the River itself, not only upon that Account which the Roman Lawyers alledge, because the Channel is covered by the River, but for the Reason already mentioned, because they were both originally possessed by the People, and had never been assigned as the Property of any private Person. Nor do we allow what they urge to be natural,11 that if the Lands were12 limited, the Island would belong to the prior Occupant. This indeed would be so, if neither the River nor the Channel with it had13 been in the Possession of the Publick, as an Island formed in the Sea belongs to him who shall first seize on it.<254>

X.That a Flood does not, according to Nature, take away a Property in Land.X. 1. Neither is that more to be allowed, which they talk of a greater Flood, if we respect only natural Reason. For suppose the Surface of the overflowed Land were turned into Sand, yet the lower Parts of it remain firm and solid; and1 tho’ some of the Quality be changed, yet the Substance is not changed at all, no more than that Part of a Field is, that is devoured by a Lake, the Property whereof, as the Roman2 Lawyers with Reason acknowledge, is not changed. Nor is that by any Means natural which3 they say, that Rivers, like the antient4 Receivers of Land Taxes, sometimes take from the Publick to give to private Persons, and sometimes from private Persons to give to the Publick. Much better did the Aegyptians understand and manage this Matter, as Strabo reports of them, Ἐδέησε δε τη̂ς ἐπ’ ἀκριβὲς, &c.5They are obliged to be particularly exact and nice in the Division of their Lands, because of the frequent Confusion of Boundaries, which the Nile by its Overflowings occasions, taking from one Part and adding to another, changing the very Form and Look of Places, and entirely concealing all those Marks that should distinguish one Man’s Property from another’s. And therefore there is a Necessity for their often making new Surveys.6

2. Hereunto agrees what the Roman Lawyers have delivered us, that7what is ours, ceases not to be ours, but by our own Fact; add, or by Vertue of some Law. Now under Things done are comprehended, as we told you above,Ch. 4. of this Book, § 5. Things not done, as far as we can guess by them at another’s Will and Inclinations. Wherefore we grant, where the Flood is very great, and no visible Signs of the Owner’s Intention to retain his Property, it may well be presumed, that he abandons his Land. Which Presumption, as it is naturally uncertain and undeterminable, by Reason of the variety of Circumstances, and therefore to be referred to the Judgment of some honest Man, it is usual to have it decided by the Civil Laws. As in Holland that Land is consider’d as abandoned, which has been under Water for ten Years, if there appear no Signs that the Possession is still continued, in which Case it is our Custom, and that not an unreasonable one, tho’ the Romana Lawyers reject it, to suppose the Owner retains his Possession by only fishing there, if he can no otherwise signify the keeping of his Title. But Princes used to fix a certain Time, within which the antient Owners of the Lands were to drain their Grounds, which if they did not, then they who had the Mortgage of them were to be warned to it, and after them, those who had a Jurisdiction over them, either merely Civil, or Civil and Criminal; and if they also delayed to perform it, then all the Right and Title to them devolved on the Prince, who either drained the Lands himself, and so united them to his own Domain, or gave them others to drain, and only reserved a Share of them to himself.<255>

XI.Improvements made by Floods, if in Dispute, belong to the Publick.XI. 1. Whatever Improvements the Floods make; that is, whatever little Parcels and Bits of Land may be added, which, because1 it is not known whence they came, can be claimed by no Body, (for otherwise the Property could not2 naturally be changed) must certainly belong to the Publick, provided the Publick has the Property of the River, which is always to be supposed in a doubtful Case; if not, they belong to the prior Occupant.

XII.But they seem to be granted to those whose Lands have no other Bounds but the River.XII. 1. But the Publick have Power to grant them, as to others, so also to those who own the Lands next adjoining; and they are supposed to do so, if those Lands have no other Bounds on that Side but the natural ones; that is, the River itself. And here that Distinction which the Roman Lawyers make between Lands bounded and Lands1 measured, may be proper, but yet both of them have in this Case an equal Right. For what we have said before, concerning the Extent of a Territory,Ch. 3. of this Book, § 16, &c. when we treated of the Possession of it, the same is of Force in private Lands, but with this Difference, that the Bounds of a State (if in Dispute) are presumed to be (Arcifinious) bounded by Hills, Woods, or Waters, because most agreeable to the Nature of a Territory: But private Lands are rather supposed to be limited, or2 contained in a certain Measure, as most suitable to their Nature.

2. But yet we do not deny, but that the People may assign their Land, with the same Right as they themselves enjoy it, that is, as far as to the very River; which if so, then is any Addition that shall be made in this Manner, theirs also, as it was adjudged in Holland, some Ages since, of Lands bordering upon the Rivers Issel and Maese; because both by the Deeds of Purchase, and by the Books of Rate, they were always mentioned, as reaching to the River. And tho’ in the Sale of these Lands, somewhat of the Measure be expressed; yet if they be sold by the Great, and not by Acres, they retain their Nature, and the Right of Alluvion; which is also3 mentioned in the Roman Laws, and generally practised.<256>

XIII.The same may be said of the Shore that the River leaves, or of any Part of the Channel that is dried up.XIII. What we have said of an Alluvion, does also hold good of that Part of the Shore or Channel which the River forsakes; for where there is no Owner, the first Possessor has the best Title: In Rivers that are theirs, it belongs to the People, or to them to whom they themselves, or such as are impowered by them, have assigned the Lands next adjoining, as extending to the River, without other Bounds.

XIV.What is to be reckoned a Flood-Addition only, and what an Island.XIV. But since, as we said, there is a Difference between the Acquisition of Islands formed in a River,1 and the Acquisition of Alluvions, Disputes often arise, by which of the Names to call that little rising Ground, which is joined to the Lands adjacent, but yet so that the Waters cover the Space between. This is what we often see in our Provinces, where the Ground is uneven. Nor do our Customs in this Affair always agree; for in Gelderland, if a loaded Cart can pass, it belongs to the Owner of the Estate adjoining, provided he shews his taking Possession of it. So it is also in the District of Putte, if a Man on Foot2 can with his Sword’s Point touch the rising Ground. But it is most natural, that if the Passage over be generally by Boat, it should be looked upon to be entirely separate, and therefore belonging to the Publick.

XV.When the Alluvions belong to Vassals.XV. 1. Another Question as frequently arises between a Prince invested with sovereign Power, and his Vassals, who have a Power inferior to, and dependent on his. But it is a very plain Case, that the bare Grant of such a Power does not entitle the Person so impowered to all the Additions made by Rivers. We must observe however, that some Vassals invested with these limited Governments, do, together with them, receive all the Lands in general, saving the Right of each private Person to his own Estate; because those Lands were antiently either the People’s or the Prince’s, or at least drained by the Prince; and if so, then without Doubt, to whatever the Prince or the People did enjoy, those Vassals have as good a Right. Thus we see in Zealand, that even those Vassals who establish Judges only for Civil Matters, pay a Tax for the whole Bulk of their Lands, which they afterwards levy upon each particular Person, in Proportion to the Value and Bigness of his Estate; And these, without any Disturbance, take to themselves the Alluvions. There are some to whom the River itself is granted, who may therefore justly claim the Islands thereunto belonging, whether such Islands are formed of Mud, or of the Soil of the Channel, being left uncovered by the Waters, which separate, and afterwards join together again.

2. There are also others, in whose Grants neither the one nor the other is comprehended, and these have an ill Cause to defend against the publick Exchequer, unless the Custom of the Country favours them; or a long uninterrupted Possession, with all requisite Circumstances, gives them a Right.

3. But if the Lands, without the Jurisdiction, be held in Fee, we must see what the Nature of the Land is, as I said before [§ 12]. For if it be Arcifinious, then the Right of Alluvion is granted with the Land, not from the peculiar Right of the Prince, but the Quality of the Land; for in such a Case a mere usufructuary1 would have the same Advantage.

XVI.The Arguments with which the Roman Lawyers would prove their Rights to be as it were the Rights of Nature, answered.XVI. The Roman Lawyers, in order to prove the Laws used by them to be those of Nature, often1 alledge this Saying, That it is most agreeable to Nature,<257> that he should have the Profit of any Thing who has also the Disadvantage of it; wherefore, since the River does often wash away Part of my Land, it is but reasonable, that whensoever it makes any Addition it should be mine. But this Rule does not hold, unless where the Benefit arises from what is my own, but here it arises from the River, which belongs to another.2 And it is natural, that whatever Loss there is,3 the Owner should bear it. Besides, what they alledge is not universal, as may appear by the4 Exception of limited Lands. Not to insist upon what often happens, that a River makes some Persons rich and others poor, according to Lucan,5

• • Illos Terra fugit Dominos, his Rura colonis
  • Accedunt donante Pado.
• • Some gain, some lose, just as the inconstant Po
  • Thinks fit to leave, or to o’erflow their Lands.

XVII.A Highway naturally hinders any Advantage of Alluvions.XVII. But as to what they say, that a publick Road does no Ways hinder1 the Right to such Alluvions, it has nothing of natural Reason in it, unless the Ground belongs to some private Person who is obliged to provide such a Way.

XVIII.That it is not natural that the Young should follow the Dam only.XVIII. Among those Means of Acquisition, which are called Means that the Right of Nations allows of,1 one consists in the Breeding of Animals, wherein that which the2Romans, and some other Nations, have decreed, that the Young should go along with its Dam, is not natural, as I have said already, but only as the Sire is generally unknown. But if the Sire could by any probable Means be discovered,Ch. 5. § 29. of this Book. there can be no Reason given, why the Young should not belong to him as well as her; for it is certain, that whatever comes into the World, is Part of him that begets it. But whether the Male or Female contributes most to its Production, is not yet agreed upon amongst Naturalists. Plutarch speaks thus of it, Ἡ Φύσις μίγνυσι δὶα τω̂ν, &c.3Nature does so mix our two Sexes, that taking a Part from each, and blending them together, she returns what is born common to both, in such a Manner that neither of them can distinguish or discern that which was theirs, from that which was the other’s. And this is what the antient4 Laws of the Franks and Lombards copied after.

XIX.That a Thing, according to Nature, becomes common as well by its Specification or Form, where the Matter is another’s, as by Confusion or Mixture.XIX. 1. If any Body had formed a Thing out of another’s Materials,1 the Sabinians gave the Property to him whose the Materials were, but Proculus to him who had given the Form, because he gave to a Thing an Existence which it had<258> not before. At last a middle Opinion was taken up, that if the Matter could be put into its first State, the Thing newly produced should belong to the Owner of the Matter; if that could not be done, then it should be his who gave it its Form. But Connanus does not like this, and is for having us consider, whether the Work or the Matter was worth most, that so that which was of the greater Value, might carry the other of less Value; an Argument fetched from what the Roman Lawyers have said concerning an2 Accessory.B. iii. Ch. 6.

2. But if we consider the true Principles of natural Right, as by3 a Mixture of several Materials, there arises a common Title to the Thing so mixed, in Proportion to what each has in it, which also the Roman Lawyers approved of, because the Right to such a Mixture could not otherwise naturally be decided; so when a Thing is composed of a Matter and a Form, as of its Parts, if the Matter belongs to one, and the Form to another, then4 must it naturally be common, in Proportion to the Value of each Part; for the Form is a Part of the Substance, and not the whole Substance; which Ulpian5 saw when he said, that the Substance was almost lost by the Alteration of its Form.

XX.Nay, tho’ by Unskilfulness or Design the Matter be spoiled. XX. But, tho’ it be not unjustly ordered, that he who takes, with a bad Intention, another Man’s Materials, shall thereby1 lose his Labour, and forfeit all<259> that he would be otherwise entitled to, yet since2 this is a Penalty, it cannot be founded on any natural Right. For tho’ it be natural that every Offender should be punished, yet Nature does not determine that Punishment, nor does she of herself take away any one’s Property for his Offence.

XXI.That it is not natural that a Thing of lesser Value should, on the Account of the other’s greater Worth go along with it; where also other Mistakes of the Roman Lawyers are taken Notice of.XXI. And to say that the Thing of a lesser Value, must be carried by that which is of greater Worth, upon which Connanus builds, tho’ it be natural in Respect of Fact,1 yet it is not so of Right. Wherefore he that has but the twentieth Part of an Estate, has as much Right in that Part as he who has the other nineteen has in his Parts. And therefore what the Roman Law has in some particular Cases decreed, or in some others may decree, concerning an Accessory, on the Account of superior Value, is not allowable by the Law of Nature, but only by the Civil Law, for the better Dispatch of Business; yet it is not repugnant to Nature, because the Civil Law has Power to confer a Right of Property. But there is scarce any one Question that relates to Right, about which the Opinions and Mistakes of Lawyers are so many and different as in this. For who can allow, that if Brass and Gold were mixed together they might not be separated, as Ulpian2 writes; or if Metals were solderd together they must needs be confounded, as<260>3Paulus; or that there 4 is one Rule for Writing, another for a Picture, that this should carry away the Cloth, but that that should go along with the Paper.

XXII.By Planting, Sowing, or Building upon another Man’s Ground; two Parties are naturally admitted Sharers.XXII. That1 what is planted or sown should go along with the Soil, is also a Maxim of the Civil Law, for this Reason, because they are nourished by it. And therefore it is a Distinction about a Tree,2 whether it has taken Root or not; but the Nourishment of a Thing that existed before, makes only a Part of it; and therefore, as there is some Right due to the Owner of the Soil, on the Account of that Nourishment, so there certainly still remains a natural Right to the Owner of the Seed, Plant or Tree. So that in this Case too, Nature admits of Partnership; as likewise in a Building, of which the Ground and the Surface are Parts; for if it were moveable, the Owner of the Ground could have no Right, of which Opinion was Scaevola.3

XXIII.He who has another Man’s Things in Possession, cannot claim the Profits of them, but may charge him with all the Expences that he is at about them.XXIII. Nor does Nature allow him, who has got another Man’s Goods in his Possession,1 though it were honestly and without Fraud, to appropriate the Profits of them to himself, but only2 impowers him to charge the Cost he has been at, and the Pains he has bestowed upon them, and to deduct for these out of the Profits so arising. Yes, and to keep what he has still remaining by him, and not part with them at all, if3 Satisfaction be not made him some other Way.

XXIV. The same, I think,1 may be said of him, who is unjustly possess’d of another Man’s Goods, where no penal Law intervenes.2It is kind and humane,XXIV.And this he may do tho’ he got them unjustly. (says Paulus the Lawyer) to have a Regard to the Expences, even of a Fellow who robs me; for he who demands his own, ought not to advantage himself by another’s Loss.

XXV.That an actual Delivery is not required by Nature in the transferring of a Property.XXV. The last Way of acquiring a Property which is said to be by the Law of Nations, is1 a formal Delivery; but we have said above that a Delivery is not by<261> the Law of Nature required2 in the transferring of a Property, which the Roman Lawyers themselves do own in some Cases; as when3 the Thing it self is given away, but the Profits reserv’d or when it is made over4 to him, who has it already in his Possession, or5 keeps it when he only borrow’d it; when a Thing is thrown6 amongst a Multitude for the first that catches it. Nay, a Man may transfer his Property even before he is seiz’d of it himself, as an7 Inheritance,8 Legacy,9 Things given to Churches or Places dedicated to pious Uses, or to Corporations, or<262>10 in Consideration of a Maintenance, and11 Goods that we have agreed shall be shared and used in common.

XXVI.The Design and Use of what has been hitherto said.XXVI. These Things we have thought fit to observe, lest a Man often finding the Term of Right of Nations, among the Authors of the Roman Law, should presently imagine it to be such a Right as is unalterable, but that he might distinguish Laws purely natural, from those that are natural only in some certain Circumstances; and such Laws as are common to several Nations separately, from those which oblige, and are the Bond of all human Society; we must also observe, that if either by this Right of Nations, improperly so called, or by the Law of any one People, a Method of acquiring a Property be established, without any Distinction between Natives and Strangers,1 there also Foreigners shall enjoy the same Right, and if they be hinder’d in the obtaining of it, it is such a Wrong as may give a just Occasion for a War.

[1 ]That is, to that arbitrary Law, established by a tacit Consent of Nations, which our Author supposes, without any Foundation. See B. I. Chap. 1. § 14. Note 3. But, as has been observed, the Roman Lawyers understand no more by the Law of Nations, than what the modern Interpreters call Jus Naturale secundarium. See what I have said on Pufendorf, B. II. Chap. III. § 23. Note 3. of the second Edition; and Mr. Noodt’s Commentary on the first Part of the Digest. p. 6, &c. It appears from the very Title, which contains the Subjects which our Author proposes to handle, that this was the Notion of the antient Lawyers. For we acquire the Dominion of some Things by the Law of Nature, which as we said is called the Law of Nations; and of some by the Civil Law. Institut. De Divisione rerum, &c. Lib. II. Tit. I. § 11. So that our Author’s Criticism is just, only as it shews that certain Decisions of the Roman Lawyers are not founded on the true Principles of the Right of Nature common to all Nations; tho’ they give them as such.

[2. ]Nations agree, tho’ we know not certainly whence this Agreement arises, about other Customs, which have no Relation to Law. Pliny gives us several Instances of this Sort; as that the Bodies of Children who had no Teeth should not be burnt, [at the Time when it was the general Custom of paying the last Duties to the Dead in this Manner]. Hist. Nat. Lib. VII. Cap. XVI. that the Ionian Characters should be used in Writing. Ibid. Cap. LVII. He speaks also of the Use of Barbers, as of a Thing in which the Nations agreed. Cap. LIX. of the Distinction of the Hours. Cap. LX. of the religious Respect paid to the Knees of a Person, Lib. XI. Cap. XLV. and the Custom of adoring Lightening with Clapping of the Hands, or a certain Motion of the Tongue, Lib. XXVIII. Cap. XLV. Grotius.

[3. ]The original Words are, Neque enim pertinet ad mutuam Gentium inter se Societatem. The Author expresses himself in Terms still more clear and strong, at the Close of the Chapter, Ab his (Juribus) quae Societatis humanae vinculum continent. I make this Observation to shew that his Ideas of the Nature of his Law of Nations, are not very clear, nor very certain. He defines it an arbitrary Law; but what is necessary for maintaining Society among all Nations, is not an arbitrary Thing; they are indispensibly obliged to observe it, by Vertue of the Law of Nature, whether they are willing or not.

[4. ]Wild Beasts, Birds, and Fishes; that is, all Animals which are produced in the Sea, in the Air, and on the Earth, as soon as they are caught by any one, immediately begin to be his by the Law of Nations. For what before was no Man’s Property, is granted to the Occupant by natural Reason. Instit. Lib. II. Tit. I. De divisione rerum, &c. § 12. We may here observe, that Jus gentium, and Naturalis Ratio, are the same Thing, according to the Roman Lawyers.

[1 ]Digest. Lib. XLI. Tit. II. De adquir. vel amittenda possessione. Leg. III. § 14. Quae in Sylvis circumseptis vagantur. But we ought to read, in Sylvis non circumseptis; which makes a Sense directly contrary to what is commonly found in the Words, and such a one as is agreeable to our Author’s Opinion. See Note I. on Pufendorf, B. IV. Chap. IV. § 11.

[1 ]Institut. Lib. II. Tit. II. De divisione rerum, § 12. See Pufendorf, B. IV. Chap. VI. § 12. and the Notes on that Place.

[2. ]See what I have said on Pufendorf, in the Chapter last quoted, § 1. Note 1. It must be observed, with Obrecht, that the Roman Lawyers admitted of the Presumption on which our Author grounds this tacit abandoning of a wild Beast. This appears from the last Words of the Paragraph of the Institutes, referred to in the foregoing Note, It is presumed to recover its natural Liberty, when either it is out of your Sight; or, tho’ still in your View, cannot be pursued without Difficulty. But I do not find they say any Thing (as they ought to do in Order to reason conclusively) concerning the Exception of a stronger Presumption, founded on Marks set on a wild Beast, from which there is Reason to conclude, that the Proprietor hopes to be able to recover his Beast, after it has made its Escape. And in Reality this is not impossible, especially when the wild Beast is grown a little tame. So that it is a vain Pretence of Ziegler; that from the single Consideration of the Beast being wild, it is supposed that the Proprietor, who cannot be unacquainted with the Nature of the Animal, designs to keep the Property of it only as long as he has Possession of it.

[3. ]Digest. Lib. XLI. Tit. II. De adquir. vel amitt. possess. Leg. XIII.

[4. ]Which the Grecians call Γνωρίσματα, and the Latins, Crepundia. The former of these Words occurs in Donatus, the Grammarian, who speaks of the Marks or Tokens with which Children were exposed. Monumenta sunt quae Graeci dicunt. Γνωρίσματα, καὶ σπάργανα. On Terence’s Eunuch, Act. IV. Scen. VI. (ver. 15.) Apuleius uses the Word Crepundia in the same Sense. Apolog. (p. 64. Edit. Pricaei.) Grotius.

[5. ]See the Notes on Pufendorf, B. IV. Chap. VI. § 2, 9, 10.

[6. ]Harmenopulus says, that he who has wounded a Beast does not become Master of it till he catches it. Lib. II. Tit. I. (Num. 26. Edit. Gothofr.) Grotius.

[7. ]The Question was proposed, whether a wild Beast, which is so wounded that it may be taken, is immediately understood to be our Property? Trebatius declared in the Affirmative.—Most were of Opinion that it did not become our Property till we took it; because several Accidents may prevent our taking it, which is true. Digest. Lib. XLI. Tit. I. De adquir. rerum Dominio. Leg. V. § 1.

[8. ]In Petronius Arbiter we have this Expression, Vides, quod aliis Leporem excitavi? Do you observe that I have started a Hare for the Use of others? (Cap. CXXXI.) Ovid alludes to this proverbial Way of speaking (in De Art. amat. Lib. III. ver. 660, 661.)

• Credula si fueras, aliae tua gaudia carpent,
• Et lepus hic aliis exagitatis erit.

By the Laws of the Lombards, whoever killed, or found a Beast which had been wounded by another, had a Claim to a Shoulder and seven Ribs of it; the Remainder belonged to the Person who had wounded it, provided it was not more than twenty-four Hours since the Wound was received, (Lib. I. Tit. XXII. Leg. IV. VI.) Grotius.

[9. ]Metamorph. Lib. V. ver. 320. But the Poet is there speaking of a different Thing, as I have observed on Pufendorf, B. IV. Chap. VI. § 8. Note 1.

[1 ]That is, not that they be always our own Property; for we may make use of such as we borrow, with the Proprietor’s Consent; but that there is no Impediment to our using them where they are placed. Consequently, the Place must either belong to the Person who would hunt in it, or it must be publick; or, if it be an Estate belonging to another, it is necessary that the Proprietor should consent to the Action.

[2. ]See Digest. Lib. XLI. Tit. I. De adquir. rerum Dom. Leg. LV. and Note 2. on Pufendorf, B. IV. Chap. VI. § 9.

[a ]Host. & alii in C. Non est: De decimis. Jason, cons. 119.

[1 ]See what John of Salisbury says in his Policrat. (Lib. I. Cap. IV.) concerning the Abuses of this Law. Grotius.

[2. ]See Pufendorf, B. IV. Chap. VI. § 5, 6, 7.

[3. ]The Person mentioned by Strabo, as quoted by our Author in the Margin, was not an Intendant of the old Kings of Aegypt, but an Intendant of the Roman Emperors, established after that Country was reduced to the Form of a Province. The Geographer calls that Office, ἴδιος λόγος, and Casaubon judiciously observes, he was the same as the Digest. calls Procurator Caesaris, or Rationalis. See that learned Man’s Commentary on Lampridius, Alex. Sever. Cap. XLV. and on Capitolinus, Maximin. duob. Cap. XIV. What led our Author into this Mistake was, that it is said a little lower, that These Magistrates were the same, even under the Kings. But he did not observe, that this relates only to the Magistrates of the Country, Τω̂ν δ’ ἐπιχωρίων ἄρχοντων, spoken of just before, who are clearly distinguished from the Officers established by the Roman Emperor. The Passage in Question stands thus, There is another Officer, called ἴδιος λόγος, whose Business it was to demand such Things as had no Master, and consequently ought to fall to Caesar. Lib. XVII. p. 1148. Edit. Amst. (797. Paris.) So that when Aegypt was governed by its own Laws, the Kings might not have had the same Right over Things which had no Master, as the Roman Emperors since had.

[b ]Covar. in C. peccatum. part 2. § 8.

[1 ]In Portugal the Whales that come ashore belong to the King. Georg. de Gabedo, Decis. Lusitan. Part II. Decad. XLVIII. Grotius.

[2. ]The Author makes an Island of this Macedonian City, which lies near the Sea, toward the Gulf of Strymon. The Fact is related by Plutarch, Quaest. Graec. XXIX. p. 298. Tom. II.

[1 ]See Pufendorf, B. IV. Chap. VI. § 13.

[2. ]The People of Biblos had a Law, forbidding the carrying off what had not been put in the Place where it was found. Apollonius of Tyana approved of this Maxim, as we are told by Philostratus, in the Life of that Philosopher. Grotius.

The Law mentioned by our Author belonged to the Stagirites. See Aelian, Var. Hist. Lib. III. Cap. XLVI. The same Author relates indeed, that the People of Byblos, a City of Phenicia, followed this Maxim in Practice, Lib. IV. Cap. I. p. 302. Edit. Perizon. But says nothing of a Law among them for it. As to what is observed in Regard to Apollonius, I do not know that Philostratus says any more than what will be presently mentioned in Note 4, and which relates to a very particular Case.

[3. ]De Legib. Lib. XI. p. 913, 914. Edit. H. Steph.

[4. ]The Question turns on a Dispute between a Seller and a Buyer, who had found a Treasure in the Field he had purchased. The Philosopher on that Occasion says, that The Characters of the two contending Parties were to be examined; and declares it his Opinion, that The Gods would not have permitted the Seller to dispossess himself of the Land, or have given the Treasure into the Hands of the Purchaser, had not the latter been a Man of better Morals than the former. Vit. Apoll. Tyan. Lib. II. Cap. XXXIX. Edit. Olear. To which the Author adds, that his Decision was received, and the Treasure disposed of accordingly. A Decision which shews that Philosopher’s theological Notions were not more just than those he entertained in Regard to the Law of Nature.

[5. ]This seems to have been practised at Rome, in Plautus’s Time; who in one of his Comedies makes Callicles say, that He bought a House in which he knew there was a Treasure, with a View of delivering it safe to his Friend, who had deposited it there, being sensible It would be judged to belong to the Purchaser of the House. (Trinum. Act. I. Scen. II. ver. 141, &c.) See also Act. V. Scen. II. ver. 22. Grotius.

[6. ]This is not certain. See my second Note on Pufendorf, B. V. Chap. III. § 3.

[7. ]See the Institutes, Lib. II. Tit. II. De rer. Divisione, &c. § 39. And the Commentators on the Place; as also James Godefroy on the Theodosian Code, Lib. X. Tit. XVIII. De Thesauris, Tom. III. p. 485, &c.

[8. ]See what Tacitus relates, Annal. Lib. XVI. (Cap. I. &c.) concerning the Treasures said to be found in Africa, which Nero devoured in Imagination, on the false News he had received of that Affair. See likewise Philostratus, where he speaks of Atticus the Rhetorician. Vit. Sophist. (Lib. II. Cap. I. § 2. Edit. Olear.) Grotius.

[9. ]See the Speculum Saxonicum, Cap. XXXV. Constitut. Sicul. Frideric. Lib. I. Tit. LVIII. and CIII. The same was practised among the Goths. King Theoderick says, in Cassiadore, that It cannot be called Covetousness to take what no Proprietor complains he has lost. Var. Lib. IV. Cap. XXXIV. The same Prince elsewhere gives the following Directions to his Officers, Let those deposited Moneys, which by Length of Time have lost their competent Masters, be, by your Care and Diligence, thrown into our Treasuries; as we permit all our Subjects to remain in quiet Possession of what is their own, they ought chearfully to leave to us what is no Man’s Property. For he sustains no Damage by not possessing what is lost, who doth not lose his own Goods. Lib. VI. Cap. VIII. Grotius.

[1 ]See Bartol. in Tract. Tyberiad.Baptist Aymus, De Alluvionum jure.Connanus, Com. Jur. Civ. Lib. III. Cap. V. John Boreo, Anthony Marsa: John Gryphiander (De Insulis. Cap. XVIII.) And several others. Grotius.

[a ]Dig. Lib. 41. Tit. I. De adquir. rer. Dom. Leg. 7.

[2. ]They hold that the Banks and the Rivers themselves are of publick Use; so that it is free for every one to land, to tie their Boats to the Trees that grow on the Banks, and unload there. But then they pretend, that The Property of such Banks belongs to the Owners of the adjacent Lands; and consequently the Trees growing on them, are likewise the Property of the same Persons. Institut. Lib. II. Tit. I. De divisione rerum, &c. §4.

[3. ]Ibid. § 23. The Roman Lawyers suppose that the People took Possession of the River only as such, and as necessary for publick Use. Digest. Lib. XLI. Tit. I. De adquir. rerum dominio, Leg. XXX. § I.

[4. ]Institut. as above quoted, § 22.

[b ]Dig. ubi sup. § 5. & eod. Tit. Leg. 30. Leg. 38.

[5. ]See B. III. Chap. IX.

[6. ]Because at that Time, the Land was consider’d as having changed its Form, and being become the Bed or Channel of the River, ibid. § 23, 24. See Mr. Noodt’s Probabilia Juris, Lib. I. Cap. I. and his Treatise, De usu fructu, Lib. II. Cap. XI. p. 631, &c.

[7. ][[Footnote number missing from text; replaced from Latin edition. See a Passage of Cassius, in Aggenus Urbicus (Comment. in Frontin.) and in Boetius. (De Geometr. Lib. II.) Grotius.

The Passage, to which our Author refers, is in Cassius Longinus a famous Lawyer, whose Opinion concerning Alluvions pass’d into a Law. The Question was proposed on Occasion of the frequent Inundations of the Po, and the Disputes occasioned by them among the Proprietors of the adjacent Lands; which he solved in this Manner, on a Supposition that the imperceptible swelling of the Side of a River is frequently occasioned by the Negligence of the Proprietors of the Lands on the other Side; whereas when the Water overflows on a sudden, such Inundations are the Effect of a Violence, which they could not prevent, p. 56, 57. Auct. Rei Agrar. Edit. Goes. See also Siculus Flaccus, De conditionib. Agrar. p. 13.]]

[1 ]See my first Note on Pufendorf, B. IV. Chap. VII. § 12. And that whole Paragraph.

[2. ]De Benefic. Lib. VII. Cap. IV.

[3. ]De Offic. Lib. I. Cap. VII.

[4. ]Orat. Rhodia.

[5. ]Per vices ( & non per vices). The Emendation here proposed by our Author, had been made by Curtius Pichena, and receiv’d by others. The learned Gronovius does not think it necessary. But this Piece of Criticism is of small Importance in Regard to the Application of the Passage to the Question in Hand. The Words here quoted are in the Treatise, De morib. German. Cap. XXVI. Num. 2.

[6. ]This is practised in France. See the Book intituled, Sanction des Eaux, & Forests. B. II. Chap. I. Grotius.

[7. ]Our Author here, in the Margin, quotes some Laws of the Digest, which he thinks founded on his Principles, and consequently not conformable to the Principles of the Roman Lawyers. In one of them it is said: If what is form’d in, or built on a publick Place, belongs to the Publick; an Island, form’d in a publick River, ought in like manner to belong to the Publick. Lib. XLI. Tit. I. De adquir. rerum dominio. Leg. LXV. § 4. In § 1. Paul, the Lawyer, maintains that even the Banks of an Island, belonging to a particular Person, are publick; in the same Manner as the Sea Shore and the Banks of a River, which border on Lands on the Continent. In the other Law, it is determined that the new Channel, made by a River, (in Lands belonging to particular Persons) thereby becomes publick; it being impossible that a Bed made by a publick River should not belong to the Publick. Lib. XLIII. Tit. XII. De Fluminib. &c. Leg. I. § 7. Mr. Van de Water, in his Observat. Jur. Rom. Lib. I. Cap. VII. finding the Law, first mentioned in this Note, ascribed to Labeo, makes it appear, in my Opinion, that we ought to read Paulus, and join the last Words of that Paragraph to the beginning of the preceding Paragraph; because otherwise those two Lawyers would reason in a Manner directly opposite to what they had both laid down. He is also of Opinion that Paul’s Observation is no more than a Confirmation of that made, § 3. and is to be understood only of floating Islands. But this does not appear so certain. For, First, On that Foot, the Observation would not be opposite to the preceding Decision, viz. If an Island form’d in a River is any Man’s private Property, no Part of it belongs to the Publick; which relates to a particular Case; whereas the Objection is general. Secondly, there is no Insinuation, that the Lawyer speaks only of floating Islands; the very Terms clearly express all Sorts of Islands form’d in a publick River. And the preceding Paragraph, with which probably this is connected, speaks of an Island fixt to the Bottom of the Bed of the River. Thirdly, The Lawyer’s Comparison with Buildings raised in a publick Place, shews that the Islands, of which he speaks, are not of the floating Kind; for Buildings are not raised in the Air. Fourthly, The Argument seems to require that we here understand all Sorts of Islands, form’d in a publick River. It comes to this. Whatever is found in a publick Place, whether it is naturally formed, or is raised there, as a Building, ought, according to Law, to be of the same Nature with the Place itself: But the Islands in a publick River, of what Sort soever they be, are formed in a publick Place: Therefore they ought also to belong to the Publick, and not to particular Persons, in Possession of the adjacent Lands. This is an Objection made by Paul against Labeo’s Opinion, or rather against the received Opinion of the antient Lawyers; and when consider’d in itself, according to the Principles of the Law of Nature, it was well grounded. But as the Lawyer’s Intention was to bring an Argument Ad hominem, in that Respect it may be looked on as one of those Cavils, which he is accused of using frequently, when he undertakes to censure Labeo. The major, or first Proposition of this Syllogism, is not generally true, as it ought to be, according to the Principles of the antient Lawyers. For Things, which are formed naturally (innata) in a publick Place were indeed consider’d as publick; such as Trees, Plants, Minerals, &c. but not Buildings, the Use of which was not publick. Whence it appears how much they are mistaken, who, with Accursius and Cujas, are of Opinion that Islands are here called Publick, only in Regard to the Use of them, while the Property is supposed to remain in the Hands of private Persons; for on that Foot, the Conclusion would be different from the Premises. It is more for the Honour of Paul to say he reason’d on a Principle partly false; and the Compilers of the Roman Law ought not to have forgot to add the Answer, which might easily have been made. For, as Mr. Van de Water justly maintains, according to the receiv’d Notions of the Roman Lawyers, the Bed of a publick River, consider’d in itself, is reckon’d part of the Banks; so that as soon as the River leaves it, and it thus ceases to be necessary for publick Use, the Masters of the adjacent Lands, to whom the Banks belong, only enter into Possession of their own. Hence it follows that the Islands also, which are form’d in the Bed of the River, belong to them; for then the Case is the same in Regard to those Islands, as if the River had left its Bed, and only the Use of the Banks in publick, in the same manner as it is in Regard to those which touch the Lands bordering on the River. Whence it appears farther that in the Paragraph under Consideration, the Lawyer cannot speak of the Use only of an Island lately form’d in a River, because both his Argument and his Words relate to the whole Island, and not a Part of it, or the Banks which alone were of publick Use.

[8. ]Digest. Lib. XLI. Tit. I. De adquir. rerum. domin. Leg. LXV. § 2. The Exception made by the Roman Lawyers of this Sort of Islands, separated from the Bed of the River, confirms what was said in the foregoing Note.

[9. ]We have a Description of those floating Islands in Seneca, Nat. Quaest. Lib. III. Cap. XXV. Pliny, Hist. Nat. Lib. II. Cap. XCV. MacrobiusSaturnal. Lib. I. Cap. VII. Plinythe younger, Epist. Lib. VIII. Cap. XX. gives an agreeable Description of such Islands in the Lake of Vadimon in Tuscany, as Chifflet does of those in Flanders, in a Book which deserves to be read. Grotius.

[10. ]See Note 7 on this Paragraph.

[11. ]Digest. Lib. XLIII. Tit. XII. De Fluminibus, &c. Leg. I. § 6. See also Lib. XLI. Tit. I. De adquir. Rei domin. Leg. XVI. And what Mr. Vander Goes says on that Law, in his Notes on the Auctores Rei Agrariae, p. 197.

[12. ]See Chap. III. of this Book, where the Nature of such Lands and others is explain’d.

[13. ]When the Romans distributed any Lands to a Colony, or Number of People, if there was a River, it sometimes made Part of the Extent assigned to such and such Persons: Sometimes the River was reckoned among those Pieces that remain’d, after the Lands had been measured and divided into Acres, and was then said to be subsecivus; and sometimes it was expresly reserved to the Roman People; as we learn from Siculus Flaccus, De conditione agror. (p. 18, 19. Edit. Goes.) See the excellent Remarks of Salmasius concerning these Subseciva, in his Exercit. in Solinum. [To which add those of Mr. Vander Goes, in his Antiquitates Agrariae, where he has examined these Things better.] Concerning Rivers and Additions made by them in general consult Rosenthal. De Jure Feudorum, Cap. V. Coroll. XXIII. Sixtinus, De Regalibus, Lib. II. Cap. III. Caepolla, De Servitutib. rusticor. praedior. Cap. XXXI. &c. Grotius.

[1 ]Nor do the Roman Lawyers make the Change of Lands overflowed, and the Difference of the Inundation consist in this; for they acknowledge that tho’ the Earth which covers a Farm be removed, and other Earth laid on it, it does not thereby cease to be the Property of its old Master. Digest. Lib. VII. Tit. IV. Quibus modis usus fructus, &c. Leg. XXIX. § 2. But they reason on this Principle, that the River having left its former Bed, has open’d itself another in the Lands overflowed, which thus become the Channel of the River; whereas, when the River remaining in its Bed, only overflows its Banks, the Bed being still the same, the Lands covered with the Water, are also reckoned to remain the same. See § 8. Note 6. And the following Note.

[2. ]This is founded on the Principle mentioned in the foregoing Note. See Digest. Lib. XLI. Tit. I. De adquir. rerum dominio. Leg. XII. Lib. XXXIX. Tit. III. De aqua, & aquae pluviae arcendae, Leg. XXIV. § 3. See also Lib. XVIII. Tit. I. De contrah. emptione, Leg. LXIX.

[3. ]Digest. Lib. XLI. Tit. I. De adquir. rerum dominio. Leg. XXX. § 3. This is to be understood also, according to the Hypothesis mentioned, Note 1. on this Paragraph.

[4. ]Cassiodorus says that the Measurers of Lands, like a great River, take from one, and give to another. (Var. Lib. III. Cap. LII.) Grotius.

[5. ]Strabo, Geograph. Lib. XVII. p. 1136. Edit. Amst. (787. Paris.)

[6. ]There is nothing in this contrary to the Principles of the Roman Lawyers, as Obrecht very well observes; for they reason thus: A Bank is thus justly defined, whatever bounds, or keeps in a River, and stops the natural Impetuosity of its Course. But when a River swells for a Time by the fall of Rain, by the flowing in of the Sea, or any other Means, it does not change its Banks: No Man ever said that the Nile, which overflows the Country of Egypt, thereby changes or enlarges its Banks; for when that River returns to its former Measure the Banks are to be repaired and secured. Digest. Lib. XLIII. Tit. XII. De Fluminib. &c. Leg. I. § 5.

[7. ]Digest. Lib. L. Tit. XVII. De Divers. regul. Juris, Leg. XI.

[a ]L. si ager. 23. D quibus modis ususfr. amitt.

[1 ]Dig. Lib. XLI. Tit. I. De adquir. rerum dom. Leg. VII. § 1.

[2. ]The Roman Lawyers say that when the Force of a Stream carries a Piece of Land from one Field, and lays it on another, it still belongs to the Master of the Field, from which it was taken; unless it remains so long on the other that the Trees, which it brought with it, have taken root, in which Case it is acquired to the Proprietor of the Field, where it is fix’d, Digest. Lib. XLI. Tit. I. De adquir. rer. dominio. Leg. VII. § 2. And elsewhere: What is carried away by the Force of Rivers may be claimed at Law. Lib. XII. Tit. I. De rebus creditis, si certum petatur, &c. Leg. IV. § 2.

Our Author quotes these two Laws in his Margin. In Regard to the latter, in which there is some Difficulty in Relation to the Roman Laws, see Cujas, Recit. in Digest. Tom. VII. Opp. Edit. Fabrott. p. 674. And Anthony Faure, Rational. Tom. III. p. 12, 13.

[1 ]See an Account of such Lands, Chap. III. § 16. Note 4, 5.

[2. ]Our Author here says, certâ mensurâ terminati, instead of comprehensi, as he expresses himself a little before and elsewhere; which however amounts to the same; for Lands inclosed in a certain Measure, are bounded by that Measure. So that Mr. Vander Goes had no Reason for accusing him of distinguishing a fourth Sort of Lands, Not. in Auct. Rei Agrar. p. 196. The same Critic Reproaches him with advancing, contrary to the Opinion of Florentin the Lawyer, in Law XVI. of the Title, De adquir. rerum domin. that in Case of Alluvions the Lands inclosed in a certain Measure, have no more Right than limited Lands. But our Author does not here speak of what took Place at that Time; he only says what ought to take Place in a conclusive Way of reasoning; as Mr. Goes himself owns, in the preceding Page; where he observes that, if the Emperor Antoninus Pius had been to give Decision expressly in Regard to Lands given in gross, and enclosed by a certain Measure, he would undoubtedly have pronounced in the same Manner as he did in Regard to limited Lands.

[3. ]Digest. Lib. XIX. Tit. I. De actionib. empti & venditi. Leg. XIII. § 14. This Law, which our Author quotes in the Margin, proves indirectly what he infers from it. The Case is this: A Man sells a Piece of Land for a certain Sum of Money, assuring the Purchaser that it contains a hundred Acres; on which the latter depends, as on a Clause of the Contract. The Land, however, is but ninety Acres; but before the Extent of it is measured, the neighbouring River, by retiring from it, makes an Addition of ten Acres; and thus the whole Number of Acres is complete. It is asked whether the Seller is thereby excused from indemnifying the Buyer, on the Account of giving a false Account of the Extent of the Land sold; an Indemnification, which, according to the old Roman Laws, arose to twice as much as was to be abated of the Price, in Proportion to what the Buyer says less than is found. (See the Receptae Sententiae of Julius Paulus, Lib. I. Tit. XIX. § 1. and Lib. II. Tit. XVII. § 4.) But Justinian reduced it to the same Sum, as is concluded from Law II. of the Title, De actionib. Empti & Venditi. The Difficulty is founded on this, that, though the Purchaser has a hundred Acres, according to the Terms of the Contract, the ten, which make the Number complete, accrue to him, according to the Principles of the Roman Law. (Digest. Lib. XVIII. Tit. VI. De pericul. & commod. rei venditae. Leg. VII.) Which, as appears, supposes that though a certain Measure was stipulated, this Limitation makes no Alteration in the Right of Alluvion; because the Land was not sold at so much an Acre, but in gross, on Condition, however, that it contain’d no less than a hundred Acres. Whereupon the Lawyer distinguishes whether the Seller sincerely believed his Land contain’d a hundred Acres, or whether, knowing it did not, he design’d to deceive the Purchaser. But this is nothing to our Purpose. See Cujas, Recit. in Digest. Tom. VI. Opp. p. 813. As also Anthony Faure, Rational, Tom. V. p. 485.

[1 ]The Difference, which our Author has not expressed, consists in this, that the Islands, according to him, belong to the People in Possession of the River; whereas the Case is not the same in Regard to the Alluvions. See Paragraphs 9, 11, 12.

[2. ]This Practice is derived from a very antient Custom among the Germanic Nations.Paul Warnefrid, speaking of Autharis, King of the Lombards, tells us, that Prince, being on Horseback, pass’d on to a Pillar in the Sea, and touching it with the Point of his Sword, said: Here shall be the Bounds of the Country of the Lombards. Saxo, the Grammarian, Lib. X. and other Authors, give us a Story of the like Nature concerning Otho the Emperor, who threw a Lance into the Sea, to mark the Boundaries of the Empire, in the Baltic Gulph.Grotius. Saxo, the Grammarian, does not say that Otho threw a Lance into the Sea, with a Design of marking the Boundaries of the Empire in the Baltick Gulph, but of leaving a Monument of his Expedition. See p. 164. of that Historian, Edit. Francof. 1576.

[1 ]Digest. Lib. VII. Tit. I. De usu fructu, &c. Leg. IX. § 4.

[1 ]This is indeed one of their Maxims, Digest. Lib. L. Tit. XVII. De diversis Regulis Juris. Leg. X. But they here reason on other Principles; as is evident from what was said, § 8. Note 3. § 9. Note 7. § 10. Note 1. So that our Author confounds the antient Lawyers with the modern Interpreters, who advance this Reason.

[2. ]On the Supposition that the River belongs to the People, the Proprietors, who have acquired the Lands adjacent to the River, may justly apprehend they may receive Damage by Inundations, without Hope of being indemnified by the Alluvions; besides, they themselves may often be faulty in this Case, not having been careful to keep up the Banks of the River.

[3. ]The Roman Lawyers elsewhere reason on this Principle. See Code, Lib. IV. Tit. XXIV. De pigneratitiâ actione. Leg. V. VI. VIII. IX. and Tit. LXV. De locato & conducto. Leg. XII.

[4. ]See § 9. Note. 11.

[5. ]Pharsal. Lib. VI. ver. 277, 278.

[1 ]Digest. Lib. XLI. Tit. I. De adquir. rerum Domin. Leg. XXXVIII. On this Law see Hugh Donell. Comment. Jur. Civil. Lib. IV. Cap. XXVIII. John Gryphiander, De Insulis, Cap. XXXVII. § 37. &c.Reinh. Bachovius, in Treutler, Vol. II. Disp. XX. Thes. V. Lit. F. p. M. 104.

[1 ]Institut. Lib. II. Tit. I. De divis. rerum, &c. § 19. See Chap. V. of this Book, § 29. Note 1. and Pufendorf, B. IV. Chap. VII. § 4.

[2. ]Charles the Bald follows their Decision, Cap. XXXI. Edit. Pistens.Grotius.

[3. ](Conjugial. Praecept. p. 146. Tom. II. Edit. Wech.) See a Passage in Galen very much to the Purpose, Lib. II. De Semine. St. Chrysostom says, The Child is formed by the Mixture of both Seeds. In Cap. V. Ephes.Grotius.

[4. ]The late Mr. Coccejus, in a Dissertation, De Jure Seminis, Sect. I. § 10. says, it is quite the contrary, and that according to the Laws of the antient Francs and Lombards, as well as according to the Roman Law, the Fruit followed the Venter. For this he quotes Lib. II. Leg.Longobard. C. 14. Specul.Suevic. Part. I. C. 61, 62. Edict.Theodorici, Reg. C. 65, 66. But there is something after the last Quotation, from which our Author might have inferred, that those antient People did not always follow the Principle of the Roman Lawyers: For Theodorick there orders, that the Master of one of those Slaves which were called Originarii, or Adscriptitii, should have two Thirds of the Slaves born to that Slave by a Woman of the same Condition; and in that Case the Mother’s Master had much the smaller Share, viz. one Third, Cap. LXVII. In the Dissertation before quoted, our Author is opposed on the Substance of the Question; but with Reasons not always very solid.

[1 ]Institut. Lib. II. Tit. I. De adquir. rer. dom. § 25.

[2. ]What the Roman Lawyers call an Accessory, (Accessio) was not precisely the most valuable Thing, but what is considered as the Basis, whether the Accessory is worth more or less than the Principal, for they formally acknowledge that Purple, for Example, is the Accessory to a Garment on which it is worked, tho’ the more valuable; and that a Jewel also is the Accessory to a Gold or Silver Vessel, in which it is set. Digest. Lib. XLI. Tit. I. De adquir. rerum dom. Leg. XXVI. § 1. Lib. XXXIV. Tit. II. De Auro, Argento, Mundo, &c. Leg. XIX. § 12. Lib. VI. Tit. I. De rei vindicatione, Leg. XXIII. § 2, 3, 4. And Institut. Lib. II. Tit. I. De divisione rerum, &c. § 26. See the Notes of Theodore Marcilly, and Janus a Costa, on this last Paragraph. However, the Decisions of the Roman Lawyers do not seem to have been sufficiently clear and distinct on this Question; as Mr. Thomasius shews in his Dissertation, De pretio adfectionis in res fungibiles non cadente, Cap. III. And we are not to be surprized at it; for Questions of this Kind ought not to be decided by physical, or metaphysical Ideas, nor even by the Design, Use, or Value of Things, mingled together; but by other Principles, concerning which see what I have said in the Notes of the second Edition of Pufendorf, B. IV. Chap. VII. Of the Law of Nature and Nations; and particularly those on the Abridgment of The Duties of a Man and a Citizen, B. I. Chap. XII. § 7. Note 4. of the third and fourth Edition, where this Subject is treated with much more Exactness.

[3. ]Institut. Lib. II. Tit. I. De divisione rerum, &c. § 27. See, on this Paragraph, the Florum sparsio in Jus Justinianeum, by our Author, p. 28, &c. Edit. Amst.

[4. ]The famous Mr. Schulting approves of our Author’s Opinion, and explains it in the following Manner. Considering the Law of Nature alone, says he, if another Man’s Goods, to which a new Form is given, thereby become worse, there seems to be no substantial Reason why the Proprietor should therefore lose his Right of Property; he only acquires a Right of demanding Satisfaction for the Damage, if done with a bad Intention, or by some Fault of the Author of such a Form, as undoubtedly is supposed. And if the Thing is not rendered less valuable than it was before, it does not appear why in that Case it ought to change its Master. Farther, tho’ it is made more valuable, this is not sufficient for depriving the Proprietor of his Right of Property, if he did not consent to this Melioration. All that can be said in that Case is, that the Person who has contributed toward raising the Value of the Thing, ought on that Account to have a larger Share in the Work, or Composition resulting from the Matter and the Form, Not. inCaji. Instit. Lib. II. Tit. I. § 5. p. 82, 83. Jurisprud. Ante Justin. Very well; but the Question is, who ought to have the Thing, when they either will not or cannot possess it in common. Some, as Obrecht, even say, that the Rules laid down by the antient Lawyers are made for that Case only. But they are mistaken. The Lawyers admitted of no Community in what is called Specificatio, as Mr. Schulting acknowledges; nor in most of the other Questions relating to Acquisition by accessory Right. They held that the Property passed of Right to one or the other, by Vertue of certain Things on which they ground their Rules; and the Community which they formally establish in Case of a Mixture of Matters belonging to different Persons, makes an Exception, that evidently shews there was none in other Cases, according to their Principles.

[5. ]Digest. Lib. X. Tit. IV. Ad exhibendum, Leg. IX. § 3.

[1 ]The Author in his Margin quotes the following Law, If any one shall make Wine with my Grapes, Oil with my Olives, or Garments with my Wool, knowing they are not his own, he shall be compelled by an Action to produce the said Wine, &c. because what is made out of our Goods belongs to us. Digest. Lib. X. Tit. IV. Ad exhibendum, Leg. XII. § 3. From which it is inferred, that the Author of the new Form is obliged to restore purely and simply what he has made of a Matter belonging to another, without any Right of demanding any Thing for his Labour of the Proprietor of such Matter; so that in this Case the Form follows the Matter, on Account of the bad Intention of the former; whereas, when the Person has acted bonâ fide, the Matter follows the Form. But the Majority of the Interpreters of the Roman Law are now of Opinion, that the Badness of the Intention doth not hinder the Work from remaining in the Hands of the Author of the Form; the whole Difference, according to them, is, that then the Master of the Matter has a Right to demand a larger Reparation of Damages, and may even indict the other of Theft; which in this Case would end in obliging the Offender to pay double the Value of the Matter. The Truth is, that, as the antient Lawyers were not agreed on this whole Question, and the Notions of each different Party were not well connected, very plain Traces of them are extant in the Compilation of Tribonian; and some modern Doctors ingenuously own it. We find the following Decision in the Institutes, If any Man builds a House on another Man’s Ground with his own Materials, the House becomes the Property of the Master of the Ground. In this Case the Master of the Materials loses his Property, because they are supposed to be voluntarily alienated, if he knew he built on another Man’s Land; and therefore, tho’ the House be demolished he cannot claim the Materials. Lib. II. Tit. I. De divisione rerum, &c. § 30. See Digest. Lib. XLI. Tit. I. De adquir. rerum dominio, Leg. VII. § 12. If the Badness of Intention deprives such a Man of his own Goods, which he has mixed with those of another, why should he, who has only contributed his Labour, thereby acquire another Man’s Goods, which he attempted to appropriate to himself unjustly? It is to no Purpose to say, that the Proprietor of the Matter may indemnify himself by the Actions which the Law allows him; for if we consider the Simplicity of the Law of Nature, which the Lawyers professed to follow in this Affair, such a Proprietor ought, at least, to be allowed the Choice of either retaking his Goods, which he cannot lawfully lose by another Man’s unjust Act, or quitting them, and demanding the Value with Damages and Interest. See Muret, Marcilly, and Janus a Costa, on the Paragraph of the Institutes last quoted, and those which precede it; as also the late Mr. Voet’s Commentary on the Title of the Digest, Deadquir. rerum dominio, § 21.

[2. ]But, as Pufendorf observes, (B. IV. Chap. VII. § 10.) it is not properly a Punishment or Penalty, to be deprived of all Profit resulting from an Act of Injustice. Besides, he who takes another Man’s Goods, knowing them to be such, has then deliberately subjected himself to the Loss both of his Labour, and all he may have added of his own. The Roman Lawyers reason very well on this Principle, when they say, that He who gathers another Man’s Olives, Corn, or Grapes, when ripe, is not indeed obliged to make the Proprietor of them Satisfaction, because no Damage is done; nor can he demand any Thing for the Expence he has been at, because, by gathering what he had no Right to gather, he is supposed to have given the Charges of Gathering. Digest. Lib. IX. Tit. I. Ad Leg. Aquil. Leg. XXVII. § 25.

[1 ]That is, he, to whom the smaller of two Things joined together belongs, is commonly forced to submit to the Master of the larger; either because the latter is stronger, or because the former is not in a Condition of paying him the Value of his Part; because it would not be very advantageous to him, or because he cannot make the same Use of his Goods, as he might otherwise have done.

[2. ]Digest. Lib. VI. Tit. I. De Rei vindicatione, Leg. V. § 1. Some Expositors, as Janus a Costa, (in Institut. De divisione rerum, &c. § 26.) tell us, that in those Days Workmen were unacquainted with the Art of separating those two Metals; especially considering the Aqua Regia was not then invented. Another Law which belongs to Callistratus, is unseasonably alledged against this; for that Lawyer speaks only of Silver mix’d with Brass. Digest. Lib. XLI. Tit. I. De adquir. rerum dominio. Leg. XII. Now the Secret of separating Silver from Brass might be known, when that of separating Gold was not; which Metal, as appears from the Experience of later Ages, cannot be dissolved but by Aqua Regia. So that there is no Necessity of entering into the Opinion of some modern Expositors, who pretend that Ulpian only meant, that Gold cannot be separated from Brass without destroying the Brass.

[3. ]Dicit enim (Cassius) si statuae suae ferruminationi junctum brachium sit, unitate majoris partis consumi: & quod semel alienum (factum) sit, etiamsi inde abruptum sit, redire ad priorem dominum non posse. Non idem in eo, quod adplumbatum sit; quia ferruminatio per eandem materiam facit confusionem: plumbatura non idem efficit. Digest. Lib. VI. Tit. I. De rei vindicatione, Leg. XXIII. § 5. The Lawyer here distinguishes two Sorts of Solder; one made with a Matter of the same Kind as the two Bodies solder’d together: The other of a Matter of a different Nature. He calls the former Ferruminatio, the latter Plumbatura. See on this Point the Opuscula de Latinitate Juris consultorum veterum, published in 1711, by Mr. Duker, p. 238. &c. According to him the first Sort of Solder confounds the two Bodies solder’d together, so that the whole by accessory Right belongs to the Proprietor of the larger or more considerable Part, even tho’ it should afterwards be separated from the less: As if an Arm solder’d to a Statue, be broken off. But if the two Parts were equal, so that one could not be consider’d as an Accessory to the other; then neither of the Proprietors had a Right to appropriate the Whole to himself, but each remain’d Master of his own Part. This Decision is made in the Digest. Lib. XLI. Tit. I. De adquir. rerum dominio, Leg. XXVII. § 2. But when two Pieces of Silver, for Example, are solder’d together with Lead, or two Pieces of different Metals are solder’d together, which was term’d Plumbatura; the Laws held that in the Case there was no Mixture; and that therefore the two Bodies thus solder’d together still belong’d each to its own Master, whether one was more or less considerable than the other. We see no solid Foundation for this Distinction; for two Pieces of Silver solder’d together with Silver remain as really distinct one from the other, as if they were solder’d with Lead, or a Piece of Iron was solder’d to a Piece of Silver.

[4. ]Digest. Lib. XLI. Tit. I. De adquir. rerum domin. Leg IV. § 1, 2. See what I have said on Pufendorf, B. IV. Chap. VII. § 7. Note (1).

[1 ]Institut. Lib. II. Tit. I. De divis. rer. &c. § 33. See the Chapter of Pufendorf last quoted, § 5. with the Notes.

[2. ]Cod. Lib. III. Tit. XXXII. De rei vindicat. Leg. XI. See also the Titles of the Institutes so often quoted, § 31.

[3. ]Dig. Lib. XLI. Tit. I. De adquir. rer. domin. Leg. LX.

[1 ]Institut. Lib. II. Tit. I. De rerum divis. &c. § 35. See Mr. Noodt, Probabil. Juris. Lib. I. Cap. VII.

[2. ]But see what I have said on Pufendorf, B. IV. Chap. XIII. § 3. Note 1. of the second Edition.

[3. ]On this Question see the Speculum Saxonicum, II. 26.

[1 ]I think not: Such a Possessor, barely by laying out his Money on the Improvement of what he knew was not his own, subjects himself to lose what he has so expended. Besides, the Security of the Proprietors, and consequently the Design of Property and the Interest of human Society ingeneral, require that no other Person should, by his own Authority, and without the Proprietor’s Permission, detain his Goods from him, or dispose of them even tho’ in such a Manner, as to improve them. Hence it follows that the unjust Detainer ought to have no Right to demand any thing for his Expences, as he can alledge no plausible Reason for justifying his Pretensions. So that nothing but a Motive of pure Generosity can engage the true Proprietor to make him the least Satisfaction. If the Proprietor gains by the Matter, the Possessor deserved to lose; and this Gain may be consider’d as a just Indemnification for his being for some Time deprived of the Possession of his Goods by the Injustice of the Detainer. See § 20. Note 2.

[2. ]Dig. Lib. V. Tit. III. De Hered. petitione. Leg. XXXVIII.

[1 ]Those Things likewise, which become ours by the Delivery, are acquired by the Law of Nations; for nothing is so conformable to natural Equity, as that the Will of the Master, designing to transfer his Property to another, should be ratified. Digest. Lib. XLI. Tit. I. De adquir. rerum Dominio. Leg. IX. § 3. where we may observe that the Law of Nations, spoken of by the Roman Lawyers, is no other than the Law of Nature. Thus in the Institutes, De rerum divisione, § 40. we read. We likewise acquire Things by Delivery, by the Law of Nature. But, beside this Delivery there must be a lawful Title, which implies a real Alienation, of which the Act of Delivery is at the bottom only a Sign. For the bare Delivery never transfers the Dominion; which is done only when preceded by Sale or some just Cause. Digest. as above quoted, Leg. XXXI. See on this Subject Pufendorf, B. IV. Chap. IX. § 5. &c.

[2. ]It is not indeed requir’d. By the Laws of the Wisgoths a thing was looked on as delivered, when the Donee had in his Hands the Deed of Donation. Lib. V. Tit. II. Cap. VI. Among the antient Romans, the Goods called Res Mancipi, were fully and absolutely alienated, by the Formality of putting a piece of Money in the Scales (per aes & libram). See Varro, De Ling. Lat. Lib. VI. (p. 82. Ed. III H. Steph.) Festus Pompeius, in the Word Rodus:UlpianInstit. Tit. XIX. Boethius, Ad Top. Cicer.Grotius.

What the antient Romans called Res mancipi, were Estates in Lands, Houses, and all other Possessions situated in Italy, or in some privileged Place of their Provinces, with the Rights of Servitude annexed to them; as also Slaves, and Beasts of Burthen. Every thing else was Res non Mancipi; though Pearls perhaps were excepted. The Res Mancipi, which they consider’d as most useful and most considerable, could not be alienated with a full Effect of Right but among Roman Citizens, and with the Formality of the Scales; they were in a Manner subject to the Slavery of the Roman Citizens, who alone, according to the Laws, could acquire the entire and secure Property of them; whence they received their Name, as some learned Men pretend. Whereas the Res non mancipi, in Regard to which the Formalities here mentioned, were not observed, were transferred indifferently to Citizens and Foreigners; but so that the Acquisition of them had not so much Force and Extent as that of Res Mancipi. See Vindiciae pro recepta de Mutui alienatione sententiâ, by the late Mr. Vander Goes, printed at Leyden in 1646, p. 61, &c. where he confutes several Opinions of the famous Salmasius on this Subject; as also Mr. Schulting, on the Title of Ulpian, quoted by our Author; but more particularly the illustrious Mr. Bynkershoek, who has lately published a Treatise on this Subject, in his Opuscula varii Argumenti, printed in 1719, but who seems not to have seen, or neglected to consult, the Book last mentioned; at least I do not find he any where quotes it. To this may be added, that the Right acquired over the Res Municipi, regularly received, was called Dominium Quiritarium, or Juris Quiritum, or Legitimum & Civile; and that acquired over Res non Mancipi, and even over Res Mancipi, when the requisite Formalities were not observed at receiving them, was term’d Dominium Bonitarium, or Naturale, or Juris Gentium. The Word dare, to give, was commonly used for transferring the former; and that of tradere, to deliver, for transferring the latter; though both were performed by the same corporal Act, in Regard to the Thing alienated, and the whole Difference consisted in the Formalities to be observed for acquiring that full Right of Civil Property over the Res mancipi. See the Probabilia Juris, by Mr. Noodt, Lib. II. Cap. XII. And hence it is that the Roman Lawyers say that if we consider the Law of Nature alone, the bare Delivery (Traditio) is sufficient for transferring the Property. This Distinction of Res mancipi, and non mancipi was abolished by the Emperor Justinian, as appears from the Code, Lib. VII. Tit. XXV. De nudo jure Quiritum tollendo.

[3. ]This is a Constitution of Theodosius the Younger; on which see James Godefroy, in Cod. Theodos. Lib. VIII. Tit. XII. Leg. IX. Tom. II. p. 621.

[4. ]Dig. Lib. XLI. Tit. I. De adquir. rer. dom. Leg. XXI. § 1.

[5. ]This is the Decision of such antient Lawyers as were of Opinion that corporal Possession is absolutely necessary, according to the Law of Nature, for acquiring Property. See Mr. Noodt’sProbabilia Juris, Lib. II. Cap. VI. Num. 5.

[6. ]Institut. Lib. II. Tit. I. De rerum divisione, &c. § 46.

[7. ]All the Rights of Inheritance are acquired the Moment the Heir acts as such, though he is not yet in Possession of the Goods, and though he is not consider’d as a Possessor in Regard to the Effects of Right resulting from the Possession. See, on the Law here quoted by our Author, the great Cujas, Recit. in Digest. Tom. VIII. Opp. p. 307, 308.

[8. ]Because the Things bequeathed pass directly from the Person who bequeathed them, to the Person to whom they are bequeathed. Digest. Lib. XLVII. Tit. II. De Furtis. Leg. LXIV. Hence it is that, if the Legatee dies, provided it be after the Death of the Testator, the Legacies pass to his Heirs, as if he had actually received them, Digest. Lib. XXXVI. Tit. II. Quando dies Legat. vel Fideic. cedat. Leg. V. princ. & §1.

[9. ]If therefore an Inheritance, a Legacy or Fief of Trust be left to the afore-mentioned, or a Donation or Sale has been made of whatever Things moveable, immoveable, or that move themselves, or shall be left or given for the Redemption of Captives; let the Claim of such Things be almost perpetual, and extend to a hundred Years. Cod. Lib. I. Tit. II. De Sacrosanctis Ecclesiis, &c. Leg. XXIII. In this Law, referred to by our Author in his Margin, it is evident that the Emperor lays down the same Rule in Regard to Sales, against the Regulations of the Civil Law. Some Doctors, however, as Wissenbach, in Cod. p. 7. and in Institut. Diss. X. § 36. are of Opinion that Justinian grants only a personal Action for demanding such Things, and not a real Action, or a Right of recovering them, in whatever Hands they are lodged. But, to make this out, they are obliged to give an improper Sense to the Word vindicatio (Claim) and restrain the Generality of the following Terms: In all these Cases we grant not only personal Actions, but even an Action for the Thing and the Pledge, &c. which is not to be done without very strong Reasons, and here are none such. On the contrary I see a considerable one against taking that Liberty. The Constitution in Question is a Law made at the Request of the Ecclesiastics of Emesa, or Emisa, a City of Syria, who obtain’d it of Justinian by Surprize, as Suidas observes, and as the Emperor himself acknowledged by correcting the Term of the Prescription, which he reduced to forty Years instead of a Hundred. Novell. IX. and CXI. See my fifth Note on Pufendorf, B. IV. Chap. XII. § 2. the Inference is easily made. A Privilege thus granted, is not given by Halves, it is pushed as far as possible.

[10. ]If you make it appear, as you affirm, that the Donation was by you made to your Grandaughter, on Condition that she should allow you a certain subsistence, you may have a good Claim in this Case, that is, an Action by which she shall be obliged to restore your former Property. Cod. Lib. VIII. Tit. LV. De donat. &c. Leg. I. The Case set forth in this Law, quoted by our Author, stands thus. A Man gives a Person a Piece of Land, for Example, on Condition that he shall furnish him what is necessary for his Support. The Donee doth not discharge that Obligation: The Donor may then not only revoke the Donation, by bringing certain personal Actions, allowed by the Roman Law; but also redemand the Land, as having then recovered the Property of it, though not in Possession of it, because he had alienated it on that Condition. So that it is a singular Case, in which some Emperors had made an Exception to the Regulations, in Favour of such as had a Right to a Support and Maintenance, as we find others of the like Nature on other Occasions. See CujasRecit. in Codic. Tom. IX. Opp. p. 1401.

[11. ]In a Partnership, all the Goods which belong to the Partners immediately become common; because, tho’ no particular Delivery intervenes, a tacit one is supposed. Dig. Lib. XVII. Tit. II. pro socio, Leg. I. § 1. and Leg. II.

[1 ]But, in my Opinion, the same way of reasoning ought to be employed here, as was before used against our Author’s Opinion, on Chap. II. of this Book, § 22.