Front Page Titles (by Subject) DEFINITION V: A moral thing is a thing regarded in respect of its pertinence to persons. - Two Books of the Elements of Universal Jurisprudence
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DEFINITION V: A moral thing is a thing regarded in respect of its pertinence to persons. - Samuel von Pufendorf, Two Books of the Elements of Universal Jurisprudence 
Two Books of the Elements of Universal Jurisprudence, translated by William Abbott Oldfather, 1931. Revised by Thomas Behme. Edited and with an Introduction by Thomas Behme (Indianapolis: Liberty Fund, 2009).
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A moral thing is a thing regarded in respect of its pertinence to persons.
1. The respect of pertinence, considered indeterminately and absolutely, as it is the formal reason for moral things, is either affirmative or negative. Affirmative respect extends to proprietorship and common ownership, whence moral things are called proper or common; negative respect is uniform, as it were, and takes on the aspect of neutrality, whence moral things are called no man’s. Now considered determinately respect of pertinence has established the significance of mine and thine. Considered materially, moreover, and in themselves, things are divided into corporeal and incorporeal.
2. Men divide ownership commonly into three species, which you may call modes of possession; that is, eminent domain, and direct ownership both common and for purposes of utilization. By the first is meant that authority which belongs to a state or its head over the property of citizens for the commonweal. Its effect is, that it can effectively restrain, as far as it may seem advisable to do so for the common good, the force of ordinary ownership. By ordinary ownership private persons possess their goods, in regard to which they have full faculty of making disposal, except in so far as that faculty is restrained by the eminent authority. There, if the usufruct be with another, it is called direct ownership, such as that which the owner has of a piece of land given in implantation. Finally we are said to have ownership for the purposes of utilization over those goods whose usufruct alone belongs to us, but the direct ownership to another; such as what we possess as lessees in the tenure of implantation.*
3. Ownership is also either plenary or limited. It is plenary when the same person actually possesses both the proprietorship of the thing and of its usufructs. In this way are possessed not merely those things over which we have eminent domain united with ordinary ownership (just as sometimes a certain region is acquired by a prince or a people together with every kind of ownership rights, over parts of which afterwards a limited ownership is granted to individuals), but also those things over which we have merely ordinary ownership, from which the usufruct has not been separated except temporarily by way of a revocable benefaction. Ownership is limited when either the usufruct of my property belongs to another, or, on the other hand, the usufruct of another’s property falls to me by right of inheritance. In this latter fashion should be regarded those thrones which are not the ruler’s patrimony (having been granted originally by the consent of the people), and which must be transmitted to his heirs. For that this is a limited mode of possession is proved by the fact that the whole or a part thereof cannot be left by testament to any one whatsoever, or alienated by donation, or in any other fashion, by the king’s individual authority [autoritate], without the consent of the people. By that fact, however, the force of sovereignty is not at all diminished, because, of course, it is merely the authority of alienating it that has been taken away, which does not in itself affect the faculty of exercising sovereignty. Property is held also in a limited manner, when ownership of it, of whatever kind that ownership may be, is circumscribed by a definite length of time, after the lapse of which it expires. From these propositions it is obvious just what sort of limitation must be added to that well-known rule of the jurisconsults, namely, that “A man’s own property can never become any more his own”; from which they conclude that neither pledge, nor deposit, nor purchase, nor lease of his own property can stand; likewise, that a legacy is of no avail, if any one has bequeathed the property of a legatee to the legatee himself, likewise that it is of no avail to stipulate that his own property shall come to that condition in which his property already is.1 The limitation, of course, is: “Unless it so happens that a limited measure of possession be extended to one that is fuller.” This happens, for example, if what was formerly held in feudal tenure begins to be possessed for the future as an absolute and independent principality.
4. Those things, therefore, which belong to us as our own, whether in the ordinary fashion, or even in eminent domain (the way in which states or their heads possess their goods), we can enjoy according to our free will, and we can keep all other persons whatsoever away from them, unless by covenanted pacts they have sought for themselves a special right which supervenes upon our right, and, in the same manner, while these things are ours they cannot be wholly another’s.2In the same manner, I say, for there is nothing to hinder the same thing from pertaining to different persons according to different modes of possession, and this is a very common occurrence. Thus, with reference to the same piece of land the state has eminent domain, the owner of the land direct ownership, and the lessee in tenure of implantation has ownership for purposes of utilization. The expression wholly was also used, for it is also true that several persons can hold a thing in the same manner of possession, yet not wholly, but each in proportion to a fixed share. This happens in the case of those goods which are possessed indivisibly by several, who appear possessed of the same kind of ownership with reference to the same thing. These things are called common, seeing that they belong indivisibly to a number of persons in the same manner of possession. For common ownership differs from proprietorship not in regard to the manner and force of ownership (for a number have, of course, the same right to a common thing that one man has to a thing which is his own, and just as proprietorship of a certain thing which pertains to one man excludes the right of all other persons whatsoever from that thing, so also from a thing in common possession all others are excluded who are outside the number of those for whom the thing is called common), but only as far as the limit of pertinence, because his own property pertains to one person, whereas common property pertains to several. Since none of these obtains to the thing a right which extends, as it were, to cover the whole, but a right which is valid only to a part thereof, it is perfectly patent that a single individual cannot dispose of that whole thing in his own right, but only of his fixed share in the same; and if some decision has to be made regarding the whole thing, the agreement and authority [autoritatem] of each of those to whom it pertains is required.
5. Now not only those things which belong to single individuals are our own possessions, but also those which belong to moral persons in conjunction, or societies as such. For these are a certain kind of unit. Thus they have also their own goods and their own rights, which, wholly or in part, not only no one outside the society, but not even the members which are included in the same society, in so far as they are not conceived of as the whole society, can claim as their own in that manner of proprietorship which the society enjoys.
Now things which belong to a public society or state come under what is essentially a threefold classification. For over some the state exercises merely eminent domain, but has left or assigned ordinary ownership to individuals. Such are territories, provinces, cities, countrysides, fields, &c.; likewise any kind of property of private persons, which is possessed, indeed, by individuals on share, in the ordinary manner of ownership, but still in such a way that the state retains eminent domain over it. The force of that eminent domain expresses itself in this, namely, that individuals are bound to pay assessments or taxes imposed on these things, nay more, to yield the whole of them to public uses, if, indeed, the Commonweal demand that. From certain things, moreover, the state has removed absolutely all ownership on the part of individuals as such, and has reserved the disposal and utilization of the same wholly to itself. Such are the public revenues, tolls, the treasury, the privy purse, and the like.
The use of certain other things, finally, the state has left to citizens indivisibly, and has assigned ordinary ownership to no one in particular. And these are otherwise listed under the head of public property, to the use of which, if, indeed, there are not enough portions of them to go around, his claim is the best who was the first to put them into actual use. Thus, for example, the seat which any one has occupied in a theatre he retains by right against the late comer, unless it so happens that some particular disposition has been made about such matters. In this class are public buildings, public places, markets, theatres, streets, &c.; likewise seas, rivers, and public pools, the use of which is granted to any citizen whatsoever. Here also belongs sacred property, like temples, sacred utensils, ornaments and revenues of churches, and the like. For they are not the property of no man, but in fact belong to the state, nor are they entirely removed from human authority or uses. But they are called sacred from the end to which they are destined by the state, which is that they may especially serve the exercise of divine worship until some different disposal be made of them. Thence it comes about that, when necessity presses upon the state, if other means are unavailable, a state may, for example, melt down chalices and other utensils or sacred ornaments, sell the bells, use the revenues of churches, &c., without the obligation of restoring the like thereafter; and this the state can do by the same right by which it can lay hands upon money in a treasury whose funds are reserved for a very pressing emergency, or can sell public lands to private citizens. All this, however, rests on the proviso that this right is to be utilized only under the pressure of extreme necessity, so that no suspicion of irreverence towards the Deity be incurred in the minds of the common people.
What has hitherto been said about the goods of the state can be applied by analogy also to the goods of other societies which do not constitute states.
6. Here, however, it must be further noted concerning the possessions of a state, that some are so appointed as to make it possible for their use (whether that use be of all kinds or only restricted) to be free promiscuously even to non-enemy outsiders, without detriment to that state. These are called things of innocent utilization, as are fountains of water, rivers, straits, seas, royal roads, &c. The faculty of conducting commerce with foreign nations includes the employment of these for the purpose of travel. Since generally the more civilized states grant promiscuously to non-enemy outsiders the use of these things, upon this fact some have based the claim that they are not subject to any proprietary right, moreover that the law of nature altogether forbids proprietorship in them, and enjoins that an unlimited use of the same should be granted to all men; and that therefore those are violating a law of nature who, claiming for themselves proprietorship in these things, have desired to put restriction upon their use by outsiders, or to shut them off entirely from such use.3 It is quite certain, however, that those who put forward this claim are in error. Moreover, as far as public roads are concerned, it is well established that the owners of a region can keep absolutely any outsider from passing through it, or else can refuse to grant passage except on a definite regulation, or a definite charge. For, inasmuch as no one would deny them the proprietorship over the region, a part of which consists of public roads, it is clear that the same persons have also the right of disposition regarding roads, and that therefore they have the right of interdicting to others the use of these roads, if, indeed, it appear to them that such an action is in their own interest. Although, as long as the use keeps within the limits of innocent utilization, that right should not be exercised, because of the common obligation of men toward one another, by which any person whatsoever is bound to relieve the needs of any other person whatsoever, as far as that may be done without injury to himself. And yet nothing but extreme necessity gives one the authority to assert a claim to the use of such a road by violence;4 since, on the other hand, if all had an equal right to the road, whoever was prohibited from the use of it on any cause whatsoever would have just cause for war. Thence it follows that Dido acted properly and within her rights when she refused the comrades of Aeneas a reception to her shores until it was well established that from them there boded no evil to the new state.5 So it was no act of injustice when the Edomites refused the Children of Israel, who promised indemnity merely on their word, a passage through their country, on the not unfounded fear that the latter would be compelled by their toilsome wandering to choose the land of the Edomites themselves.6 The same Israelites, also, were not given just cause for making war against Sihon and Og, kings of the Amorites, by the refusal of a passage through the territory subject to these kings, but by the fact that Sihon and Og, beyond what was right, crossed their own boundaries with an army to meet them, and provoked the Israelites to battle.7 For here there is no need of taking refuge in an extraordinary command of God, as in those wars in which the same nation attacked the Canaanites. For these wars would otherwise have been most unjust, had not a special mandate of God authorized the Jews to destroy nations which, although they were exceedingly contaminated with sins, had nevertheless not called upon themselves the arms of the Jews by any injury which they had done the latter.8
7. But whether the sea also be subject to the claim of proprietorship has been ardently disputed by the most illustrious intellects in our generation, some saying that it is so subject, and others denying it.9 Yet one ought not to be regarded as having unjustly hurt the reputation of any of these men, if one say that each has had rather the advantage of his own state before his eyes, than the zeal for truth which is under obligation to no parties. We are of the opinion that this controversy can be settled clearly and firmly if we assume here (an assumption which will be developed at greater length a little later), that man’s ownership of things, so that it is rightful by a positive divine law, arises from that concession of God by which He made man the master of the whole earth. In this concession, which has the character of a privilege and not a command,10 since there is express mention quite as much of the fish of the sea as of the beasts of the field,11 whose ownership cannot be conceived unless at the same time there is the right to utilize the element which they inhabit as far as its nature admits—on this side, surely, there is nothing to prevent men from being able to claim for themselves dominion of the sea. That this same dominion is rightful by the law of nature results from the need and necessity of man, who, since he cannot maintain life without the utilization and consumption of other things, is recognized to have authority also to utilize and consume them. Seeing that the sea also is to some degree able to remedy that state of need, here also there will be nothing to prevent man from appropriating to himself any uses whatsoever of the sea that he can, after that he himself, a terrestrial animal, has learned to go to and fro upon an alien element. But that this pro-prietorship be acquired in actuality and obtain its proper effects as much in due order toward the things themselves as toward other men, it is necessary that it be acquired in some way which is recognized among men, one, namely, which supposes or involves a pact by which other men are understood to have renounced their pretension to that thing. Whether, therefore, men wish to exercise proprietorship over the sea as they do over land, or, on the contrary, to regard it as derelict, the privilege of doing one thing or the other has been conceded to them by the law of nature and the law of God, and it has been placed within the range of their free choice. For the objections that have been raised to this conclusion, namely, that the sea is fluid, that it has capacity and is sufficient for the uses of all men, and that there is uncertainty as to its limits, pass for the most part into witticisms,12 and it has long ago been shown by others that such objections do not at all stand in the way of proprietorship. Also one should well observe that the effects of proprietorship show themselves clearly or obscurely in proportion to the measure in which the physical nature of the thing under consideration allows them to show themselves; and that proprietorship does not, nevertheless, immediately expire, although it may appear that the utilization of proprietorship can be less conveniently compassed, as it were, by some one individual.
Hence it is sufficient for the sea or any part of it to be called some one’s possession, if he has the right of so completely appropriating to himself the uses of it that, unless others are willing to recognize those same uses in the way of a benefaction of his own, he may be able with justice to keep them out; and this obtains even though the extent of the sea makes guarding and, as it were, exclusive possession of it difficult, and especially its superlative capacity for utilization makes such guarding and possession almost superfluous.
8. To this point, therefore, the essential controversy reduces itself: Whether, namely, as the nations have made portions of the earth their own, so they have also made portions of the sea their own. Or, indeed, whether by tacit consent they have treated the whole, or certain parts of it as derelict. For answering this question it is helpful to consider just what uses the sea furnishes to mortals, which uses are so appointed that, if they should be thrown open promiscuously to all men, the condition of some one state would be the worse. For from that it will be easy to judge as to just what parts of the sea should be regarded as occupied and under ownership, and just what should be regarded as derelict.13 Laying aside, therefore, the use for purposes of drawing water and bathing, which is of no great consequence and is available only to those who live near the coast, there are found to be two reasons principally why a people cannot, without loss to itself, allow others to go to and fro promiscuously on the sea that is close by; these are fishing and the defence of the region.
Now although fishing in the sea is far richer than in rivers or lakes, yet it is manifest that it becomes harder for those who live near the sea, or can be partially exhausted, if different nations desire to fish along the coasts of a certain region. Since the same sea, indeed, acts in the way of defence also (though an equivocal defence, whereby, although land ways are broken off, still there is wide open access by ships), it is of course plain that it is by no means to the interest of maritime peoples that any and every one should have the right to sail the sea which extends along their districts, without being on his guard against giving offence; no more so than that any and every one should be allowed to take short cuts across the moats and ramparts of cities. It is presumed, therefore, that every maritime state whatsoever has desired to reserve to itself such dominion over the sea which extends along its coast, as will suffice to prevent some peril being threatened against itself by ships which come too close. Thence it follows that, although otherwise the use of travel by sea is a matter of innocent and inexhaustible utilization (and it would be a matter of the utmost inhumanity to deny or to charge such things to any one, unless something else induce one to do so), still, for the aforesaid reason of defence, a certain people can rightly prevent any outsider from coming within a definite distance from its own shores, except by a previous announcement and with the consent of that same people, or else by giving a definite sign that the approach or passage is friendly. The distance out to sea which serves the function of this kind of defence, in respect to which ownership is exercised by some people over that distance, cannot be so accurately determined in general, but must be recognized from the accepted custom among different nations. But if a bay or a channel opens out between two peoples, their several sovereignty is understood to terminate in the middle of the bay or channel, unless one of the two, by pact or agreement on the part of the other, has acquired domain over the whole stretch of water. From this it is clear that that people or those peoples whose territory is washed by a bay of the sea obtain in due order sovereignty over that same bay. So it cannot be doubted that the Romans, when they held all the lands that bordered on the Mediterranean Sea, possessed such sovereignty over that same sea, or were properly able to exercise it, that they could prevent any ships whatsoever of outsiders from passing through the straits at Gades.
9. However, the dispute is not so much over these parts of the sea, as over that vast expanse of ocean. Its broad extent may, to be sure, not absolutely prevent it from being subject to the claim of proprietorship, yet, on the other hand, it cannot be denied that its possession will be practically useless, whether that possession pertain to one people only or to several. For those boundless stretches do not readily admit of fishing, or else this rewards the effort made; nor are those parts of the ocean which are very far removed from land regarded any longer as defences. For I should not believe any nation to be so timid that it regarded as a concern of its safety that no foreign vessel should sail, let us say, within two hundred miles of its coast; and therefore on this account it will not be able to interdict navigation thereon to any one, provided he does not come inside that limit within which he can effectively threaten peril. Hence the Spaniards or the Portuguese, for example, should no more be listened to, if under this head they should desire to interdict to the English or the Dutch navigation to the Indies, than, for example, the citizens of Cologne, if they should want to prevent any one at Speyer from crossing the Rhine. But if, in truth, it should be altogether expedient for the whole ocean to be under dominion, because of the convenience that would accrue to navigation, then assuredly not one people or another would be able to claim the ocean for itself, excluding all others, but all the peoples that dwell by the ocean ought to unite for its possession, each in proportion to its own region, unless it so happen that some one nation should yield its right and grant it to another. Since there is no record that such a division of the ocean among the nations has ever been made, and it would be useless to have it made, it is a correct judgement, that the ocean, if you except the portions adjacent to coasts, has been regarded by the nations as derelict, in so far as proprietorship is concerned; in such a manner, however, that no nation is able to appropriate to itself alone the use of it. And therefore no one ought to appropriate to himself beyond others a special right over it, for the reason that he was the first to cross it, any more than the men of Amalfi can exclude others from the use of the magnetic needle, because it was one of their fellow-citizens who is said to have demonstrated the use of it.
10. From all this it is clear that the navigation and commerce of all people whatsoever who dwell by the ocean, with all other persons whatsoever who likewise dwell by the ocean, is, in respect to a third party, mutually free, and that those who appropriate this navigation and commerce to themselves alone, are oppressing other nations with an unjust monopoly, unless they have acquired such a right for themselves by the consent of those other parties. Here, however, the observation must be made, that just as a prince can of his own right prevent any merchandise that is produced or manufactured in his jurisdiction from being exported by outsiders, unless by a pact or by a generous concession on his part they have acquired that faculty (yet no one is bound by the law of nature to enter upon such a pact, or to grant this favour to any one, unless perchance extreme necessity be pressing him, so that without commerce with the other the first would perish); so, if, for example, a European nation has made some region in Africa or India its own in the way in which it is customary among the nations to introduce dominion, it would be justified at its pleasure in cutting off all access thereto on the part of others, or else allowing access only on a definite condition or at a definite charge.14 But, in truth, it is without all colour of right when one people presumes to interdict to another non-enemy people the passage across the ocean to a third people, likewise non-enemy, for the sake of carrying on commerce, and does so on this ground alone, namely, that thereby it would lose something from its own profits, unless it so happen that the third nation desires to exclude the second on some definite grounds. And this conclusion is not affected by the fact that merely that nation alone, even though it be for a long space of time, has gone thither for commercial purposes. For unless this third people has specially granted another, to the exclusion of all others, the faculty of access to it, that other people will no more be able justly to keep the rest away by virtue of its priority, than he who was the first to buy wine from a wine merchant can keep others from buying there also.
11. Furthermore, that which is, as it were, the final complement of proprietorship, upon the establishment of which proprietorship begins fully to exert its effects, is possession. By possession a certain thing is, either by a man’s own act or through another acting in his name, actually apprehended and occupied, as far as the nature of the thing admits, and the man so has it under his authority that he is able to exercise in action the force of ownership over it, and to make disposition of it. This possession begins in the bodily act of seizure, and that it may produce some effect there ought to be not merely in the mind of the one who seizes, the intention of taking possession of the thing by that act, but the act of seizure must be so ordered that others may be able to presume that the thing has been apprehended with that end in view. Now apprehension is understood to take place not only when the body is brought in contact with a thing, but frequently even by a sign intended for that purpose, such as the acceptance of keys, when, for example, some one buys a house, or buys merchandise in a storehouse, and the like.
Furthermore, two kinds of possession are recognized: legitimate possession, when we have a right to the thing that we hold, and have also observed all things requisite in taking possession of it, if it so happen that some things are prescribed by positive laws; and illegitimate possession, when a man has no right, or no sufficient right, to that thing which he has brought under his power [potestatem].
This possession is again either quieted, when no one has called into question any right whatsoever of the possessor; and unquieted, when the same right has been brought by protestations, or in other ways, into controversy. Now of whatever kind the possession be, this effect always follows it in states, namely, that the thing is regarded as belonging to the possessor until the contrary is clearly proven. Although sometimes an illegitimate possessor also is helped by this presumption, namely, when the owner cannot bring forward in court arguments that carry conviction with them, for there it is allowable to penetrate to the truth of a matter only by external indications; still, in general, it was to the public good to have that principle accepted, because otherwise any one whatsoever might at the pleasure of any one else whatsoever be exhausted in proving title to his own possessions. And yet among those who use the simple law of nature between one another, this presumption is not valid as long as they subject themselves to no arbitrator or judge, because they are bound to prove the strength of their right to no third person. Hence the position of the possessor in a court of law is always better than that of the claimant, because, of course, the bare proof of possession is all that is incumbent upon the possessor, and that is most plain and simple; but the claimant is bound to prove his right, which is a much more intricate and difficult process, ownership and use of the property remaining also meanwhile with the possessor until the claimant has proved to the judges the justice of his petition. This makes clear that famous dictum of the Roman jurisconsults: “It is worth less to have a legal action than to have the property.”15 For, of course, even if you should have a right, based upon firm proofs, to a thing which is possessed by another, and therefore it may be regarded to some degree as your own; nevertheless, aside from the fact that for the time being you are compelled to go without the use of the thing, in a state, at all events, there is incumbent upon you the labour of proving to the judge your right, and if he happen to be a corrupt judge and render an unjust decision, you will assuredly have to acquiesce in it. Among those, however, who use merely the law of nature among one another, the dispute must be committed to the uncertain dice of Mars.
On the other hand, what we wholly owe to another, although as long as we have not paid it, it has still to some degree a place among our goods, that is yet, in truth, not our own. Thus, he that has a thousand pieces of gold, but owes the same amount, has nothing; while it would be no absurd statement to make, that he who owes more than he has, has less than nothing. This throws light on the remark of a certain man who was in debt: “I need a number of talents, so as to have nothing.”
12. The next point, therefore, is to examine into the origin of proprietorship, and the more ordinary ways of acquiring it. Here at the beginning we lay as our foundation that statement of Sacred Scripture, namely, that it came to pass with the consent and will of the Deity, that man took to himself proprietorship and dominion over things not merely inanimate, but also animate.16 For we read that those things which spring up out of the earth were expressly assigned to man for food, and that cannot be except the same be consumed. Nor did God any the less concede man authority over things animate that live in the air, on the earth, or in the waters. This concession, as we have already suggested above, does not have the force of a command, but merely the granting of a privilege which any one may use as far as it pleases him, and he is not bound to every kind of exercise of the same. For otherwise man would be sinning against the divine law if he should let free any animal, let us say, a bird, a fish, or a wild beast, or should neglect an opportunity of bringing it under his power [potestatem]—a statement which no sane person would make.
13. Furthermore, it is not perfectly clear whether that concession of dominion over things animate grants man, from the very nature of dominion, an unlimited authority, so that he can kill them even for uses that are not necessary. For dominion does not involve the licence of killing with impunity and as a mere whim; nor would men have been able to complain that divine indulgence had been parsimonious toward them, or that their needs had been but ill provided for, even if authority over the life of animals had been denied them. For truly their service in cultivating the soil, and their products otherwise useless to themselves, like milk, or part of their eggs, wool, &c., could have sufficed men for maintaining life. Nor does it immediately follow from God’s bidding them to be sacrificed as a token of divine worship, that man has acquired the authority to turn them to food at his pleasure. For it is possible that man, by a special command of God, has a right to do something which otherwise would by no means have been his right. Yet indeed, because we have observed that God has nowhere disapproved of such slaughter of animals for man’s food, but rather has ordained definite rules for the same, we conclude correctly that it is not opposed to His will.
14. If, however, we consult the mere law of nature, since it assuredly would recommend to men that life be maintained, and it is impossible to preserve life without the utilization and consumption of vegetables, at least; it is understood that it has by all means granted the utilization and consumption of those things without which man is unable to preserve life. This is especially true inasmuch as most of them would either never have come into being without man’s effort, or, apart from consumption by men, would also have perished otherwise, and that without being of use to any one. We must render the same judgement about most of the inanimate products of animals, like hair, wool, milk, eggs, that are likewise not necessary for the propagation of the species. But, indeed, the right to bring animals to a violent death, and to turn them into food, is not so clearly apparent from the mere law of nature. This is the reason why not a few of the ancient philosophers have disapproved of such slaughter. For why should a man take from an innocent animal, merely to please a superfluous desire, the life that has been given it by the same Creator? Especially since he cannot excuse himself by alleging the example of lions, indeed, or wolves, and other carnivorous animals. For nature has so formed these that they cannot preserve life except on their bloody diet, and they turn aside from the fruits of the earth; but that is not the case with man. Indeed, I should be inclined to believe that Pythagoras invented that fable of his about metempsychosis for no other reason than to frighten his own disciples away from the slaughter of animals, using this little bugbear, as it were, to make them afraid, forsooth, that in pork or in beef they were doing violence to kindred flesh.17 And it is obvious that the truculence of men, originally irritated, as it were, or hardened by the slaughter of animals, burst forth afterwards upon men themselves; and those who took pleasure in slaying innocent animals found it easy to draw the sword upon weaker men and such as were exposed to injury.18 Therefore the principal argument for defending the slaughter of beasts as being in accordance with the law of nature seems to be this, namely, that there is no mutual right or obligation between men and beasts, and, in the course of nature, there ought not to be, and this for the reason that beasts are not capable of an obligation, at least toward men, which must arise from a pact, this obligation being a bond of right that is common to a number. From this absence of a common right there follows a state of war between those who are able to do each other injury, and on grounds of probability are understood to be able to desire to do so.19 In this status any one has the faculty of inflicting upon any one else with whom he is at war whatever he will and can. And this status, indeed, is very clear in the case of beasts of prey, which, whenever occasion is given, vent their fury not merely upon other brutes but even upon men themselves. If any one should wish them to be spared by men, he would be demanding that men be in a condition inferior to that of those same beasts. As for domesticated animals, they give themselves to the uses of men not by some obligation, but because they have been caught by an enticement in the way of food, or have been subjected by force, and when you remove that, they will quickly return to their free state, and some will turn upon man himself. And this too seems not to be without bearing on the case, the circumstance, namely, that since otherwise those harmless beasts are exposed to the prey and the butchery of other beasts which are rapacious, their condition is rendered better, rather than worse, by the fact that men have asserted so much power [potestatis] over them; for men both provide for their food as a kind of compensation, and protect them against the attacks of wild beasts.
15. For the rest, as the law of nature has given man the authority of appropriating and utilizing things which are necessary for life (and this authority is extended even to those things which in any way at all supply some use, provided only some right in the utilization of the thing, or a right existing in some third person, be not opposed); so it has left the measure of authority, and its intension and extension, to the free will and the disposition of men, to wit, whether they wish to circumscribe it with definite limits, or, indeed, with none at all; likewise, whether they wish any one whatsoever to have authority over anything whatsoever, or over merely some definite part of it, or, indeed, to assign to each man whatsoever his own portion, in contentment with which he may be unable to ascribe to himself any right over the rest; although the peace and tranquillity of the human race, which, beyond all else, the law of nature is intent upon, do by no means obscurely hint that whatever is instituted here by men should be to the highest degree consonant with nature. For the peace of the human race, at least after its multiplication, does not allow that any person whatsoever should be free to exercise equal authority over any things whatsoever, or that any thing whatsoever should be exposed to the use and disposition of any person whatsoever, or, what amounts to the same thing, namely, that all things should be common to all men.20 Nay, the most ready occasion of war is the simultaneous desire or need of the same thing among two or more persons, and practically no one would be willing to allow another person to seek to assert to himself as much right as the producer himself has to a thing which has been produced by his own pains; so I shall pass over the other difficulties lightly.
This, therefore, is what nature has been urging upon us, namely, that in order to preserve peace about those things from whose promiscuous utilization strife was very likely to arise, each man should have some definite portion assigned him, to which no other could assert any just claim. As for the rest of things, the utilization of which is limitless, nature left it to the mere free will of man as to what disposition he might see fit to make of them. And, in truth, no such state of affairs has ever existed, at least after men divided into several families, as one in which all persons had all things in common. For the fables which the poets tell us of the golden age,21 have either been distorted from the state of man in Paradise, or else hint at the liberality and humanity with which primitive men gave freely to any one who needed it the use of their own possessions. In this way, even to-day, we say that friends have all things in common.22 And again it was not necessary to mark so carefully the boundary of the field when the broad expanse of the same abundantly sufficed the scanty number of men. In short, the sum of all that has been said comes to this, namely, that the first man, with the consent of God, and without the resistance of any obstacle in their nature, and furthermore under the pressure of necessity, took to himself things when they offered themselves, as it were, to him; that, after mankind multiplied, nature urged individuals to possess separately portions of the same, to the exclusion of other men, and this she has done in order to avoid the inconveniences which would arise from common ownership; that the actual division among individuals, which division confers ownership to a definite portion of these things, has been fortified by the tacit or expressed pacts of men; and that therefore proprietorship, in so far as it introduces the division of things among several owners exclusive of others, is due to the suasion of nature, but that actually it has been established by the pacts of men.
16. From what has been said it is apparent that, if we should regard the mere law of nature, for the first owners of things the sole right of occupation was sufficient. For, inasmuch as no right hindered man from devoting things animate as well as inanimate to his own uses, there was nothing left for him to do but to assert his possession of them by an act. This mode of taking possession has place even to-day in the case of those things which are regarded as derelict, that is, things to which either no one has ever desired to assert a claim, or else those which a former owner has either thrown away, or else has lost by some accident, without the intention of recovering them. This intention is presumed from words and from deeds, as, for example, when a thing is thrown away (unless, perchance, because of some passing circumstance, and this has been done with the intent to recover it later); or when a person knowingly contracts, with another person who now possesses that which was formerly his own, for that same thing as though the other were its owner. The same is understood to be the case, also, from things which are not done, to wit, when a person for no probable cause neglects to do what he might easily do for the sake of recovering that thing. The reason why, however, other men also are not able to run in crowds to things of that kind, as to a common inheritance, lies in the fact that right to things which are about to pass to another in the way of inheritance, as it were from one hand to another, is passed on uninterruptedly from the former owner by his express or presumed desire; but in things of this kind, either no man’s right at all exists in act, or, not having been derived from a former owner to another, has altogether expired, so that no one can in a special way assert for himself a right to them, except him who has especially sought it anew. For when posterity observed that an inheritance had been left by the first of mankind, aside from the original pact by which any one whatsoever among a number of heirs has renounced his claim to the rest after accepting his own portion, they ought to be thought to have entered tacitly upon another pact also, to the effect that, inasmuch as they themselves had entered upon the universal inheritance of the world, as it were, whatever had at that time not been expressly assigned to some one person, at all events in the way of universality, should fall to the one who afterwards was the first to take possession of it.23 It must be understood that this pact had been made for the purpose of avoiding strife thereafter, which would otherwise certainly have arisen, although things which, by the tacit consent of the nations, have been so treated as derelict that no one is able to ascribe their possession to himself without consent on the part of the same, cannot at all be claimed by any one person through the right of occupation;24 a view which we have set forth above in regard to the vast expanse of ocean far from coast-lines. It was, therefore, by title of occupation alone, if you remove from consideration the concession on the part of God, that the first man received his authority over all things, and he needed no further title, because there existed no one whose right could stand in his way. And he acquired dominion over all things none the less because he was unable by an act to take possession of all things, and apply them to his own use. For it is sufficient that, while he took possession physically of some portion of things, he had included others in his intent, and was going to take possession of them also when need of them arose; just as he who has entered merely one apartment of a palace, has occupied the whole,25 and, in the case of things which, as a whole, have devolved upon some one, he who has taken hold of some portions only, is adjudged to have taken possession of them one and all. Yes, and the same right would have been sufficient, even if a number of men had been created by God at the same time. For the pact which under these circumstances they would have regarded as necessary to make about the division of things for the sake of preserving concord would not have given them a new title or a new right, but would merely have circumscribed within definite limits a right which was common, and would have assigned to each his proportional share; since, of course, such a pact about things does altogether presuppose a certain right to the same.
17. From the first man that dominion over things has been transmitted and conserved to posterity by various titles, in such a way, however, that in his case this dominion was undivided, and both unimpaired and unrestricted in every part, but in their case, because of the plurality of those who enjoyed an equal right, it was not at all possible for a single person to succeed to the whole inheritance, but the property had to be divided into several portions. And afterwards, when men multiplied and separated into states, it rested with these same states to determine the effects of proprietorship and to include it within definite limits; for example, that it should not be permissible for any one whatsoever to turn to merely any kind of use a definite sort of thing; likewise, that it should not be allowed any one whatsoever to alienate his own property in any way he desired, and the like. Furthermore, of those titles by which property has been transferred from the first man to posterity as such, there are two of prime importance: Donation made by a living person and succession to the right of a deceased person, or entrance upon an inheritance, whether that be by testament or without a testament.26 That a portion of goods was transmitted to children during the lifetime of their father is perfectly clear from the longevity of early man, which does not allow us to believe that sons lived such a space of time without possessions of their own, and the very authority of sacred history repeatedly declares. For we read that Abel and Cain sacrificed to the Lord of their own possessions.27 So, afterwards, when dominion over the whole earth had returned once more to Noah, it is reported on good authority that he divided the three portions of the globe among his sons.28
18. Now, as regards this donation and, as it were, assignation of possessions of their own, it must be observed that it was not necessary for a father to grant exactly as much to one of his children as to another, and that he did not sin against a law of nature if he gave to one more and to another less, provided only that he gave to some particular one what might suffice for his needs; although it might have been proper to take into account the offspring of the one who is under consideration, in so far as the number of such offspring could be conjectured with probability, so that they might not think it necessary in after time to take violent measures in order to provide for their needs. Otherwise nature absolutely binds parents only to the point of furnishing necessary supplies to their children. But, for the rest, as it is, indeed, the most convenient means of preventing envy among children, if a father distribute equal portions among his children who are equal, and who have equal deserts; so, none the less, it could rightly be established in many states, that, in order to preserve the splendour of families, the larger part of the possessions should go to the first-born son alone, and that daughters, inasmuch as they pass over into other families, should not share equally with sons in goods of some particular kind, whatever that may be. And surely no wrong is done other children if a parent gives to one child or another some special gift in comparison with what he give the others, whether that be for definite grounds in the case of that child himself, or merely on account of a special inclination of the heart toward him. The same holds true also in the case of testaments; for, on the basis of the law of nature, no complaint against a testament as being contrary to one’s duty has any grounds, except when the father, without antecedent wrong on his son’s part, has left him not even the necessaries of life. For children have, to the goods of parents, as long as the rights of the parents remain, not a right, but only a natural aptitude, at least as far as the requirements of their necessary sustentation, and this natural aptitude has the same effect as a right when necessity urges, such as appears in this case, since otherwise this son would have to perish or live a life of misery. Therefore, by virtue of this principle, a son who has been passed by in a testament can recover from the other coheirs his portion, if he lives in a state, by process of law, or, if outside a state, by force. But if, indeed, succession must be entered upon without a testament, then, without doubt, those who stand in the same relationship to the deceased, receive also equal parts in his goods when positive laws do not establish something different. And as equal parts those things also are regarded which one has himself selected for his own portion with the consent of the others, or, when assigned him by his coheirs, has approved, or has received by lot, even if possibly they are not in themselves equal to the other portions in value.
19. There are, furthermore, several ways in which property passes from one person to another, not as though passing to a man’s heir. These can be divided conveniently into means or titles which are lucrative, and those which are burdensome.29 Among the former is donation. This is when, out of pure liberality, something is given another person which could have been withheld without doing him wrong, and is unaccompanied by the stipulation to furnish under compulsion, as it were, some other thing or service. A species of this is the alms or charity which is distributed among the poor and those who have been overtaken by calamity. Here belong also rewards, when something is given to some one in view, to be sure, of a bit of work which has preceded, yet not as it were for pecuniary compensation, but rather as though from a certain free munificence, in order to extol the recipient’s talent and to stimulate his own and other men’s talents to yet further achievement. In such a way also do all kinds of inheritances pass, whether with or without testament. You can, however, scarcely list among these inheritances the trusts [fideicommissa], and things which have a relationship to them, as, for example, when an entire inheritance must be expended for definite purposes designated by the testator;30 for properly speaking nothing is acquired in these transactions, but only the burden of a mandate is undertaken, seeing that the same things must be transferred to others. Here it must be noted that, just as by the law of nature no one is bound to assume an inheritance which is burdened with debts that exceed it in amount,31 so, by the same law, if a man has assumed it, he is not bound to make up out of his own property that whereto the inheri-tance does not suffice. But where civil laws bring the payment of all the debts of the testator upon the heir, the latter will be held bound to pay them, yet not on the basis of the testament and the wish of the deceased, but on the basis of his own consent;32 although it is true that in the Roman law the slave of the master who died involved in debt was compelled to become his master’s heir, not in order that he might be compelled to pay anything out of his own property, but so that he should sustain the ignominy of the auction being held under his name, in compensation for which ignominy he commonly enjoyed his liberty.33 In this class belong legacies, when by testament a definite portion of goods is left to some one not a primary heir; likewise dowries which come to the husband through his wife on the ground of matrimony; as also bridal gifts which are given by the groom to the bride, and the like. In a like manner also are acquired those things which, after being treated as derelict by a former owner, are seized by the first finder.34 Under this head come hidden treasures, wreckage which is thrown up on the coast, things which have been lost on the road and elsewhere, only so far, however, as the former owner has given up the intention of recovering them. For otherwise, although by some unforeseen accident or other the possession of my property has been interrupted for a time, nevertheless my right to it has not perished, unless by neglecting to look for it, or in some other way, I have signified my abdication of it, as it were. Hence they do well for their conscience, who are careful to make public announcement of the finding of that kind of thing which they cannot prove by definite circumstances to have been treated as derelict by its owner. This is particularly appropriate when things are concerned that have been lost by dropping, or by shipwreck, or on a journey. In treasure-trove, however, this is not so necessary. For he who digs up a treasure on his own land will be able rightly to retain it until such time as another has proved himself to be its legitimate owner, and has presented credible grounds for concealing it and keeping it hidden until that time. For he from whose possession a field or a house has passed to its present owner, who is the finder of the thing, is not presumed knowingly to have left therein a treasure which he had himself hidden away, when he was alienating the field or the house; just as also he who has hidden some such thing in another person’s land without the knowledge of its owner, has not lost the chance of asserting claim to his own property, when there was the justifiable fear that it might fall into another person’s hands. But, in truth, he who has discovered a treasure on another’s ground, is altogether bound to declare that fact, at least to the owner of the land. For it is generally presumed that things contained in the ground belong to the owner of the ground. On these matters, however, positive laws in different places make different regulations.
Finally, under the head of lucrative title is acquired the booty which soldiers, with the indulgence of their general, take from the goods of the enemy, in addition to their pay; for otherwise whatever is captured in war belongs to those who are principally carrying on the war; and it is incumbent upon them, moreover, to pay out of the booty for whatever damage was done to their own citizens by the enemy, either before the war or during its course. And soldiers ought to be content with their pay or with what takes the place of pay; if anything is given them out of the booty they will ascribe it to the liberality of the general.
20. In contrast with the preceding, however, that is to say, under a burdensome title, soldiers acquire their military pay, or what is assigned them in place of that pay; also all those things which come to us by burdensome pacts or contracts, for example, things acquired by payment of money, by exchange with a thing of equal value, by labour or effort, even though some element of profit be not altogether lacking here. Thus, it is by truly burdensome title that merchants acquire property, even though they sell their merchandise for more than they paid for it; since the labours and dangers of transporting and handling the merchandise are regarded as being equivalent to the gain. For this reason even usury upon money let out at interest belongs here, for the obvious reason that, while this money is lent for another’s use, besides the risk involved of losing the loan, it cannot be paid out for other profitable uses by its owner. Nay, even money or property which is acquired on wagers, by so-called urns of fortune, or by any kind of game, belongs here; for there was a contract also in the case of all those things, and my money was exposed to equal risk with that of another; although contracts of that kind have in some places been altogether prohibited by civil laws, or else the resources of legal action have been denied against those who are unwilling to abide by them. No less accompanied with burden is the income of princes which the privy purse receives out of the revenues of the state for the expenses of single individuals or their own household; for this is granted as some measure of compensation for the undertaking of cares and labours in behalf of the state. And as for the rest of the revenues, those, namely, which are spent upon public uses, nothing but the administration and distribution of these has been left to princes, and therefore, when these revenues are brought into the treasury, they cannot properly be said to be acquired for the princes.
Into this class falls also that which is seized from the enemy in a just war.35 For although he who gives me a just cause for making war would also, as far as in him lay, be giving me the right of taking all that is his own, however far, perhaps, this would exceed the injury that has been done by him (as will be shown somewhere), and therefore, assuming that I have a just cause for making war, nothing further is required for my laying hold of his possessions than the act of occupation; nevertheless, because, aside from the fact that these are imputed to the payment for damage which has been received, such occupation cannot take place without expenses, perils, and labours, not to mention the uncertain cast of the dice of Mars, property of this kind is regarded as passing from one owner to another under burden. In war, moreover, the property of the enemy becomes ours, his movable property, indeed, when it has been brought behind our outposts; but his immovable property, even though for a time it may be held under our power [potestate], becomes ours only when it has so been occupied by us that for the time being the enemy has left open to him no avenue of approach to it. Nevertheless, a quieted possession of the same is obtained only at the time when the enemy has either been utterly annihilated or scattered, or else has also by a pact given up his claim to such property. Here, furthermore, it must be noted that, if among the things taken from the enemy there be some which have been taken from some third party likewise, in case this third party has given up the effort to recover them, and has left them to the quieted possession of the second, then he cannot demand back that property from the last holder. For to property which has been taken away in a just war I am understood to have lost at the same time every right. The same thing happens when I suffer my right to a thing which has been taken away from me in any way at all, to expire by neglecting to recover it, or at least to protest against the wrong, or by entering into transactions with the one who took it away.36 Also the obligation of restoring a thing which has been taken away unjustly does not pass from the one who took it away to the latest holder, and that because this obligation inheres in the person of the former, and does by no means attend the thing which the first possessor has already regarded as derelict. But if, in truth, the first possessor has preserved his right, then he will be able rightly to recover his property from the last holder, with this proviso, however, that he is bound to make good to the latter the effort expended in recovering it.
21. These are about all the ways in which, either as a whole or as individual items, things are acquired, as they exist at different times in the world. Furthermore, that method of acquisition is in the highest degree natural, by which the natural and artificial increments and fruits of our property or our industry and any or all improvements of the same, come to us. Now this means is extremely widespread, and it is the most frequent as well as the most fruitful of them all, especially inasmuch as most things either take on natural increments and produce fruits of the same kind, or are capable of being made better, larger, and more fruitful by human industry. Now increments and fruits of things are either merely natural, or merely artificial, or mixed. To the first class can be referred trees and other plants which, without man’s cultivation, grow out of the earth, and the fruits of the same which do not need the labour and industry of man for their production. To this class also you can assign alluvium, in so far as it is deposited without human effort, the violence of the stream adding to one man’s farm a bit of soil which has been cut away from somewhere else, and the process being one of silent increments. It is recognized that this alluvial deposit comes to belong to the owner of the farm, principally for the reason that no one can positively prove that it was to this particular spot and nowhere else that parts taken from his farm had been added; and likewise that whatever has been placed there is from his land alone and from nowhere else.
To the third class belong those increments and fruits in which the operation of nature as well as the industry and effort of men concur. Such are all manner of crops which are improved through cultivation by man, trees which put off their sylvan nature as a result of ingrafting, and the fruits of the same; likewise the offspring and fruits of animals which are fed by men, or of those animals whose offspring and fruits are not produced at all without human effort, or else have to be sustained thereby. The fruits of animals I call milk, wool, hair, feathers, teeth, deciduous horns, and the like.
To the second class we assign those things which, due to human skill, put on a form that is fit for definite uses, such as are practically all things with which the industry of workmen and artisans is occupied. Their industry is accustomed to fashion these rude benefactions of nature, as it were, for the most convenient uses of human life.
22. Here also may suitably be placed that which otherwise is a common matter of dispute among the jurisconsults, whether, namely, in regard to the production of a species out of material belonging to another, the artificial form follows the material, or the material follows the form.37 Although the civil law, by virtue of sovereign authority, might have settled this controversy by distinguishing between the species which can be reduced to their earlier form and those which cannot, so that in the first class the form yields precedence to the material, in the second class the opposite is the case; nevertheless, for those who follow only the law of nature, the discrimination must be made as to whether a certain person applied his industry to the elaboration of material belonging to another either through error, or from a credibly presumed willingness on the part of the owner of the material; or rather did so with guile, and with the intention of defrauding him of the material by this means; and, in the next place, whether the material, or the value of the art employed, was the greater. For he who knowingly, and with malice aforethought, has given my material a new form so as to defraud me of it by this means, has neither acquired any right to the material, nor is he any more able to demand from me the reward of his labour, than is the housebreaker, because with a great deal of trouble he has made a new entrance into my house. But if he has acted through error due not to absolutely heedless negligence, that is, if otherwise that material might easily have been replaced from elsewhere, or was not so very necessary to the owner, or under other circumstances he would have had it for sale, the option still remains with the owner as to whether he shall accept pay for the material and leave the product to the artisan, or prefers to pay for the effort and keep the thing himself. For it would be absurd that the error of another could produce a right to my property against my will, which would outweigh my own right to it, especially when the value of his effort does not exceed the value of the material. Thus, why should he who through an error has from my olives, grapes, or grain pressed out oil or wine, or has cooked bread, as though the materials had been his own, have a better right than I? Or why should he have the right of choice rather than I, especially when, as often happens, we neither can do without things of that kind nor desire to do so? But, indeed, where the cost of the material is out of all proportion to the form, as is the case in painted pictures, and in those articles which are manufactured out of less valuable materials, as, for example, bronze, iron, or wood, equity assuredly demands that the owner should yield the object to the artisan after receiving the value of the material, inasmuch as materials of that kind are generally of such a nature that, when their value has been restored, no loss redounds to the owner. But, whatever has been done under these conditions, on the credibly presumed consent of the owner, is just as valid as if the express consent of the owner had been given. Thus, for example, if I make a statue or anything else out of another’s bronze which was otherwise for sale, after I have presented a credible reason why I made use of his property without his knowledge, and after I have offered him the money for it, he cannot rightfully compel me to yield him possession of the object. But, when some one has built a house on another man’s land, or has sowed grain and planted trees, he has not thereby acquired any right to the soil, nor can he compel the owner of the soil to pay him any return at all for materials and labour, for the reason that an accident of this kind can scarcely happen except in consequence of utter and crass negligence. And, indeed, he who has built a structure can tear it down again and carry off the material, and claim that for himself; provided, however, that he is bound to repair whatever damage has been done to the land by that structure. But he cannot at all in the same way carry off a tree and a crop and keep them for himself, because they draw their nurture from the land, and the owner will have been prevented from having his own trees and crops put in their place. If, however, there was no intent to deceive on the part of the other, it is fair for the owner of the soil to restore him as much benefit as has been rendered to his own land by the other’s tree or crop.
23. It remains for us to examine into illegitimate modes of acquisition. They can be brought under two principal heads, force and fraud; that is to say, when some one destitute of legitimate authority either extorts by violence, or fraudulently and surreptitiously steals away from another, that to which he himself has no right, and in such a way that the other’s right is injured. Here two things must be noted. (1) It frequently happens that a man has the right to a certain thing which is in the hands of another; as, for example, when that same thing or its equivalent value is owed him; and yet in states it is judged that he has not rightly taken possession of it, when he takes it to himself in private enterprise, violently or surreptitiously. For within states it is the established usage that no citizen should by his private authority [autoritate] extort from a fellow-citizen against the latter’s will that which is owed him, but he should use the assistance of the magistracy; although, by the mere law of nature, I may by any means at all take to myself from him who refuses to give it to me freely, that which is owed me. And thence it comes about that he who herein exercises violence in a state, commits the crime, not of theft or robbery, but of a breach of the peace, and of extortion by means of threat. (2) One may have to the goods of another a right which is either perfect, and, as it were, double, or a right which may be called one-sided (μονόπλευρον). It is the former, when, in very truth, my right to a certain thing has been acquired by some preceding act, in such wise that the other party also is under obligation to give it to me. It is the latter, when I, indeed, without doing injury, am able to appropriate something, in such wise, however, that on the other party there rests no obligation to give it to me. This is the case in war, where he who did the first injury is bound to make good nothing but the original damage which he did, and that which proceeds therefrom. Because, nevertheless, that same person, as far as he was concerned, broke the common bond of right with the other, and gave the injured party an unlimited authority over himself and what was his own (as will be set forth below),38 the injured party can, without himself doing injury, appropriate by any means at all any goods whatsoever of the other’s, although the other is by no means bound to offer them or to yield possession of them freely to him; I mean thereby, of course, those goods which are in excess of the damage which has been done by him. Exactly as between two persons who by mutual agreement have come to fight, each has the authority to inflict blows upon the other, but neither is bound to offer himself freely to the one who is aiming a blow at him. Although that mode of acquisition has not been associated with wrong, and therefore should not be pronounced out and out illegitimate, nevertheless, nature grants no further use of it than in the case of war, which, in a subsidiary manner, as it were, comes to the rescue of the security of men, when it is not permitted to employ peace.
24. Now under the aspect of species, various names are given to illegitimate modes of acquisition. Under the former class are listed rapine, brigandage, piracy, driving off of property, &c.; under the latter class, theft, peculation, sacrilege, and all manner of defrauding in contracts.
But, in truth, the following point requires profounder consideration, whether, namely, the fault which adheres to a thing from the illegitimate means of acquisition may not possibly be corrected by a subsequent deed, or even by the mere lapse of time; and whether the fault remains even at the time when the thing comes to a third party by a good title.39 Here this much is certain, namely, that as long as a thing which has been unjustly taken away remains in the hands of the first robber, the fault always adheres to it, as long as that fault has not been quashed by the former owner, and that no matter how long the robber has possessed the thing. For mere time in itself can neither eliminate a fault nor produce a right, because, of course, by time a fault or right which was originally inherent is merely continued. But by the usage of nations, there have been introduced, and in most states accepted, usucaptions and prescriptions, by the force of which a thing that has been acquired with a good title, and in good faith, and has been possessed in quiet, is regarded, after a certain length of time, as possessed by a good right, so that the otherwise legitimate claim of a third party no longer obtains. That is both because no one is presumed knowingly to have desired to have his own property remain so long in the hands of another, when he might easily have asserted his right to it (at least without having made any contest of his right, whereby a full right is preserved), unless he himself regarded it as derelict, and approved of the other’s possession of it—and neglect so careless as that seemed to deserve the loss of such property; and also in order that the limitless crop of litigation should be suppressed, which litigation would necessarily be excited, when, after so long a lapse of time, the same property should be demanded from the fourth or fifth possessor, who had come into possession of the thing by a just, and possibly also by a burdensome title, especially since a number of accidents might happen by which this latter will be prevented from being able to demand restitution for the damage from the robber. And there is no obstacle to this conclusion in the fact that my property cannot be transferred to another without my own act, or that no one ought to be enriched by another’s loss. For here a non-deed, that is to say, supine negligence in claiming one’s own right, is regarded as a deed, and that is not regarded as a loss, which one was willing to have inflicted upon himself. Now willingness here is presumed from such long-continued silence. Thence it comes about that he who has the thing in usucaption is safe in conscience also. For, before the time of usucaption, he possessed the property in good faith, as is supposed; and afterwards, if he live in a state, by civil law also the thing in question is adjudged to be his, which civil law utterly extinguishes the claim of the former owner. Among those who are not included in the same state, the same result is produced by natural equity itself. Furthermore, just as by the law of nature he who has done another damage by violence or by guile is bound to repair the same; so, since any one whatsoever can yield his right, the fault pertaining to the property expires, and the obligation of making restitution ceases with the one who did the damage, when he to whom it was done condones it voluntarily to the other, and does so, not from fear of further evil or molestation, or, as men commonly say, for the purpose of buying off trouble; and, indeed, so that the other may have the faculty of recovering his own property if he should so desire, and the robber may have the inclination not to defend by violence the thing which he is called upon to restore. And it makes no difference whether this act of condoning has been performed expressly or tacitly, that is, of course, by dissimulation, and, although you could do so conveniently, by not starting a controversy, or for a notable length of time making no signs as though you cared to put forward some legal claim to that property. Hence, if, for example, he from whom something has been taken away should die, and, when he was transmitting to his heirs the rest of his goods under express designations, made no mention of the property which had been taken away from him, it appears that he is treating that property as derelict, and therefore his heirs cannot recover it from the present possessor. However, in order for this act of tacit condonation to satisfy the conscience, it seems to be altogether required that it should somehow or other be brought to the attention of the former owner that the possessor is ready to restore his property if the former should demand it back.
25. But if, in truth, property unjustly taken away has come under a good title to a third party who is effectively ignorant of the fact that the second party is an unjust possessor of it (for he who knowingly, for example, has bought stolen goods, brings upon himself also the fault attending the acquisition, and therefore is required to make restitution, and he from whom the thing has been taken can appropriate it in the same way as he can appropriate it from the robber), and he from whom it had been taken chances to light upon it, the question arises whether he may immediately lay hands upon his own property and compel by litigation that third possessor to turn it over, leaving it to him to bring against the man who had alienated from the other faulty property of this kind, an action for the reparation of damage; or, indeed, whether, leaving out of consideration the third possessor, one ought to go after the robber himself, so as to make him restore the property either in value or in nature, the transaction being instituted with the third possessor. In this case, although in many places positive laws favour the one from whom property has been taken, and grant him the right of laying hold of it wherever it has been found, nevertheless, those who follow the mere law of nature must carefully determine whether his ignorance regarding the fault which adheres to this piece of property, has been contracted by some negligence, or, indeed, not. For if the third possessor not only saw no fault adhering to the property, but, more than that, neither from the condition of the property, nor from that of the vendor could have suspected it with any degree of probability, as, for example, when it is a public presumption that such and such a man can possess such and such property with a good title, then it does not appear that the third party must be dealt with directly, but that the inconvenience must be brought upon the robber alone. For, inasmuch as the former had acquired that property in a way which is commonly recognized, and he could not have been aware of the fault, there is no apparent reason why he himself, rather than the man who is trying to recover his own property, ought either to be deprived of the aforesaid property without compensation, or weighed down with the burden of extorting payment for the damage from the man who sold it to him. For the faultiness in acquisition has not passed with any effect to such a possessor, because faults of that kind adhering to things, and obligations resulting to persons from them, cannot be derived upon a third person without an act or culpable omission on his part, such as is not found in the present case. The situation, however, is different when the condition either of the thing or of the person produces the probable suspicion that the property in question has been faultily acquired, or else an edict has been issued that no one should buy anything from such persons, edicts of that kind being promulgated not infrequently in war with regard to soldiers; for here the fault of failure to make proper inquiry about the property leaves the third person no ground for taking exception to the first owner coming into possession of his own property by the shortest possible route.
26. Now we lose proprietorship and right to property when we either treat it as derelict, or by any means whatsoever alienate it, or transfer it to another. It is easy to infer from the modes of acquisition the number of modes in which this takes place. For whenever another person acquires in a legitimate mode that which was our own, or we in any way whatsoever irrevocably transfer to another our right to the property, then that property ceases to be ours. Now, although through death a person ceases to be among men, and by that very fact every right of his over persons and things expires, nevertheless, because it seemed undesirable that that which a man had acquired with such labour throughout the whole course of his life, should be regarded as derelict upon his death, in such a way that any one whatsoever might have the faculty of appropriating it to himself, it has been introduced by the customs of nations that even those goods which a person, while he was yet among the living, had not yet transferred or alienated to another, should go to him to whom the deceased wished them to go. That wish is either expressed or presumed. The latter is the case in instances of intestate succession, when a person has died without a will. For then the presumption of the wish on the part of the deceased ordinarily favours those who are the next of kin, among whom the very next of kin are severally understood to have the strongest right. Now the expressed wish of the deceased is learned from the testament, the codicils, or by whatever name those final dispositions are listed, by means of which the property is alienated in the event of death; but before death this alienation is revocable, and in the meantime the full right to the property which obtained before is kept. Hence the effect of these dispositions is not that, as soon as they have been conceived and expressed in signs, proprietorship of the property passes over to the heir, and the usufruct remains with the testator during his lifetime, but that the entire ownership remains with the testator, while the right of the heir begins only at the moment of the testator’s death. The evident proof of this position is the fact that, even after the making of a testament, the testator is able to alienate the property, nay more, he can utterly change the heirs as well as the testament, without any complaint on the part of the previously recorded heir.
As for the rest, although natural equity and ordinary affection (which, however, does not render unavailing whatever has been done in its despite) has been wont to urge that a man should leave his goods to his children or to relatives, rather than to aliens, unless by some notable fault the former have rendered themselves unworthy; yet, since nothing is required from parents as a natural debt other than that they should be at pains, according to their means, to have their children well brought up until they may be able to look out for themselves adequately; it rests in the free will of any man whatsoever, quite apart from the disposition of civil laws, to decide what he chooses to leave his children beyond that debt, and what, if anything at all, he chooses to leave relatives, out of his own goods. To have this situation the more clearly recognized, a number of civil laws have ordered that certain formalities be observed, and that, if they are not in evidence, the testament should be void, and this for the reason that it is not presumed that this was truly his desire, which he did not express in that way in which alone he knew it could be valid. Although, truly, civil laws can define what a man ought to leave and to whom, nevertheless, the very complaints about a testament which is contrary to one’s duty do not so much raise the doubt as to whether the testator had the right to dispose of his own property according to his free will, as they seek from the judge that the reasons which moved the deceased be looked into, because he willed to do something which was contrary to common inclination, so that, if it be found that he had abused his authority [potestate], owing to the deception or fraud of others, the goods may by public authority [autoritatem] be assigned those to whom they would otherwise have come, if, indeed, he had brought reason to counsel rather than inconsiderate emotions. And the statement is not unqualifiedly true that parents acquire all things for the sake of their children, for each one primarily acquires for his own sake, and that which exceeds his own particular needs he is willing then to have go to those who are dearest to him, such as are ordinarily considered to be his children and his next of kin. But this is easily understood, namely, that he whose goods are held in a restricted mode of tenure can make no disposition of anything to the injury of the one who has had some superior or prior right in those goods; and this follows from the common axiom that no one can confer more right to another than he himself possesses.40 Hence, in testaments, not only can no valid disposition be made which is contrary to the laws of the state, but even that which is owed to others by the testator, by contracts, or under some other head, must first be subtracted from his goods before anything comes to the heirs. For right had been acquired by all other creditors before the heir, his right beginning only after the death of the testator. And therefore a person is understood to be transmitting to the heir no more than is left to himself at the time of death, after subtracting that which is needed to pay his debts. There are, however, states in which a man by testament may dispose of only that which he has acquired by his own industry, but not that which he has himself inherited. Elsewhere there is even no such thing as the making of a testament on the part of citizens, but everything descends to the nearest blood relatives without testamentary disposition.
27. Properly, however, and by a certain necessity of natural law, ownership is not made void through defect of reason, as, for example, either childhood, or insanity which later supervenes. For property which is under ownership is for the most part subservient to the needs of the body, and since these needs rest no less heavily upon the aforementioned than upon those who are in possession of their reason, it would be absurd for the condition of age or for disease to be of any avail in taking away from them that ownership which has become a more precious thing to them because of the concomitant inability to acquire property. But, truly, because an intellectual defect prevents them from being able to make a good use of their own property, in most countries civil laws out of humane consideration have entrusted the administration of their goods to others, in such a way that not the owners, who are not in full possession of their reason, but guardians can effectively dispose of that property, and this is done to prevent the owners from being dispossessed of their property because of their own lack of prudence and through the fraud of others. For it was thought to be incongruous that those who cannot understand what is being done, and therefore cannot consent, should be able to alienate something; and to accept something from such a person in whose case there is presumed to be no rightly considered will to give, is not without the appearance of fraud. Besides it is also to the public interest that no one make a bad use of his own property. It is due to this consideration that guardianship is extended also over those years which already possess an understanding of affairs, but wherein, because of the violence of emotions, persons are regarded as incapable of guarding their property.
28. Things are no man’s which pertain to no particular man, and to which no one possesses any special right for the present above others. Certain of these are absolutely incapable of proprietorship and have been excluded from interchange among men; to wit, those whose nature rejects every corporeal possession and seizure made by men, and those which admit no act out of which a special right can arise for some one above others.41 To this class we are of the opinion that air, wind, heat, and light of the sun, so far as they inhere in the air that surrounds us, or in circumjacent space, are by no means so simply to be referred. For, since these things cannot, like others, be transferred by men from one portion of space to another (in which respect, that is, separately, they do not enter into exchange), they can assuredly, as things inherent in space, also come under an estimate of value, and therefore, as far as proprietorship is concerned, they participate in the nature of space. Thence it follows in due consequence that the man whom I can exclude from my space I can also prevent from enjoying the air, the wind, the warmth and light of the sun existing in my space. Thus it is not unusual to charge up to another the clemency of the air, and the convenience of wind and sun which is enjoyed by the farm that I am renting or selling him; likewise it is not unusual that over space belonging to me I leave a path, as it were, for wind or for the light of the sun to another’s house, since otherwise I might shut out his light with a building.
Now certain things are for the present, indeed, no man’s, although otherwise, by their nature they are capable of proprietorship and become in act subject to it when they are occupied by some person. Such are the things which the nations have treated as derelict when they were appropriating other things to themselves as their very own. However, they have been unwilling for some among these to become the actual property of one or another person or people by act of occupation, but have ever tacitly agreed that they should be no man’s property, as we said above on the topic of those parts of the ocean which are far away from the shore. But other things yield to any one whatsoever who takes possession of them. Such were, according to the view of the ancient Roman jurisconsults, fishes, birds, and wild beasts, which it was permissible to catch even on another’s farm, although the owner of the farm might keep out any one who wanted to enter for the sake of hunting animals or birds.42 And these things, when once become one’s own property by right of occupation, became again no man’s property and returned to a free state, when they had escaped the custody of men.43 Into this class they put bees, doves, peacocks, tamed wild animals when they had run away and had put off the habit of returning; likewise property exposed to looting in war, missiles, treasures, things thrown up on the shore, and whatever else there is of that sort. But about many of the things just mentioned the peoples of the world to-day have made different dispositions. Certain things were even regarded as derelict, as it were, at least in respect to those persons whom the same state or the same society included, yet those who were outside the state or the society were excluded from participating in them; and this is certain in the case of booty, missiles, and some other things. For who could believe that the Romans ever granted also to outsiders the privilege of carrying off booty from cities which they had themselves given over to plunder? Although those things are less accurately listed among no man’s property, when, in truth, they belong to the state, or to those persons by whom they are conceded, who by means of donation grant those same things, or symbols representing them, to the first who lay hands upon them. Under the heading of no man’s property come also those things which are treated as derelict by a former owner, in that he either intentionally throws them aside and does not desire them to be his any longer, so that he transfers his right to no one in particular; or else, when they have been lost by some accident, he neglects to recover them. Whence it appears that those things are not listed here which are thrown overboard for the sake of lightening the ship, or have been swallowed up by the sea after shipwreck, and are cast up upon the beach;44 likewise things which are lost by travellers. For the owners retain their right to these things as long as they maintain the purpose of hunting for them again; and to the finders of such things no more is due by the law of nature than is the value of their effort in gathering them up and preserving them. And there is a certain flavour of piracy about those civil laws which appro-priate to the fiscus, or to those who live along the coast, the goods of shipwrecked men even after they have been recognized by their owners.
29. A corporeal thing is an extended substance considered in a moral fashion. It is divided commonly into mobile and immobile. Things mobile are those which, not being attached to the soil, can be transported from place to place, like money, clothing, cattle, utensils, &c. First among immobile things is space, which is immobile both in its proper nature and from the beginning; and it can be divided into common space and proper space. By common space are designated public places, for example, markets, theatres, temples, military highways, &c. Proper space is that which perpendicularly hangs above or lies beneath the area of the possessor, upwards as well as downwards. Now since the areas of the terrestrial globe possess a spherical convexity, any one understands that perpendicular lines meet below in the centre of the earth, but diverge and expand upwards to infinity.45 Thence it follows that I might lawfully build a structure above my ground, even beyond the lunar heaven, if that were possible, unless perhaps the territorial limits of the inhabitants of the moon were in my way; so, likewise, I might lawfully dig down until I reached only as far as the centre of the earth, even if it were possible to go farther. For that which in respect to us lies beyond the centre belongs to our antipodes. Yet in certain places positive laws assign not to the private owners of estates, but to the fiscus, that which is found in an area below such a depth that it cannot be reached by the ploughshare. Perpendicular lines, however, drawn in both directions, upward and downward from the circumference of my area, are to be observed carefully. For, just as my neighbour cannot erect a structure which overhangs my area, although it does not rest upon my soil, but is upheld by beams which project transversely from his own house; so, in turn, I have no legal right to pass beyond the pyramidal surface* by building on the sides, unless, perchance, an agreement has been made on that point by special pact.
After space as a thing immobile from the beginning, follows the natural substance of earth, which here appears under the name of land. After earth follow those structures attached to the earth, together with all things which are made fast by nails and bolts. Here can be referred not only windmills whose foundations remain firmly fixed to the soil, despite the fact that at a breath of wind the structure itself can be turned around to all points of the compass; but also floating mills, as they are called, which, although they admit a change of location, must nevertheless be firmly fixed to the land by means of anchors or stakes, so that we get any good out of them. These are not built for the purpose of being in motion like ships, but for the purpose of being fixed. Although herein positive laws or customs of places differ, as they do also in regard to ships, which, although they have been built for the purpose of being in motion, and properly supply the use of vehicles and not houses, are in some places classed among immobile things.
30. An incorporeal thing,46 which is a mode considered as a subject in respect to pertinence, can be divided into qualitative and quantitative. To the former belong primarily titles, authorities or moral powers, rights, aptitudes, and other things of the same sort, if there are any. To the latter pertains value, which is sometimes of persons, and is then called esteem, sometimes of things and actions, and those either good for man, and called worth, or bad for man, in which case there is no special word, unless one be willing to call it, after the analogy of demerit, an unworth (depretium).
[* ] I have translated this paragraph (and its heading) literally, but the logical division seems to be at fault. The author clearly wants to make a threefold division. That is possible only thus: (1) eminent domain; (2) ordinary ownership; (3) limited ownership: (a) direct ownership, (b) ownership for purposes of utilization.—Tr.
[1. ]Inst., III.19: “Concerning Inoperative Stipulations” (subparagraph 22).
[2. ] Cf. JNG, 4, 4, §2: “Furthermore, proprietorship or dominion is a right whereby the substance, as it were, of something belongs to a person in such a way that it does not belong in its entirety to another person in the same manner.”
[3. ] Pufendorf refers to Hugo Grotius and Francisco de Vitoria. According to these authors the use of the sea, rivers, and highways for passage and trading, the right to settle, and even (in JBP, II.ii.17) the use and appropriation of uncultivated soil by strangers belong to the common right of mankind and must not be denied anyone. Cf. JNG, 3, 3, §§5ff, where Pufendorf emphasizes against Grotius (JBP, II.ii.13) the right of the state (or the proprietor) to regulate use by strangers according to its (or his) own security and interest; see also (JNG, 3, 3, §9) his harsh criticism of Vitoria, Relectio de Indis pt. I, sect. 3, according to which the denial of that use by the Indians gave the Spanish the title to conquest.
[4. ] Cf. Grotius, JBP, II.ii.6, according to which urgent necessity may return things to the original common ownership.
[5. ] Virgil, Aeneid, ed. George P. Goold; in Virgil: Eclogues, Georgics, Aeneid (Cambridge, Mass.: Harvard University Press, 1999), I, verse 543.
[6. ] Numbers 20:14–21.
[7. ] Numbers 21:21–35. Pufendorf is arguing against Grotius, JBP, II.ii.13, where the refusal of passage alone gave just cause for war.
[8. ] Cf. Numbers 33:50–56.
[9. ] Pufendorf alludes to the dispute about the freedom of the sea that took place against the background of the rival colonial and commercial interests of Spain, Portugal, the Netherlands, and England. Hugo Grotius wrote an extensive legal opinion for the Dutch East India Company entitled De Indis that was not published until the nineteenth century (under the title De jure praedae), but in 1609 he published one chapter, as Mare liberum, directed against the Spaniards. Its later use against the Stuarts’ claim that the sea is subject to dominion was countered by John Selden in Mare clausum seu De dominio maris (London, 1635), written for Charles I. See Hugo Grotius, Commentary on the Law of Prize and Booty, trans. Gwladys L. Williams, ed. Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006); Grotius, The Free Sea, trans. Richard Hakluyt, ed. David Armitage (Indianapolis: Liberty Fund, 2004); Günter Barudio, Das Zeitalter des Absolutismus und der Aufklärung (1648–1779) (Frankfurt: Fischer, 1981), 330ff; and Martine Julia van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615 (Leiden: Brill, 2006).
[10. ] Cf. JNG, 4, 3, §2; Grotius, JBP, II.ii.2, and Pufendorf’s criticism of it in JNG, 4, 4, §9.
[11. ] Genesis 1:28.
[12. ] This is directed against Grotius, JBP, II.ii.3: “There is, furthermore, a natural reason which forbids that the sea, considered from the point of view mentioned, should become a private possession. The reason is that occupation takes place only in the case of a thing which has definite limits. . . . Liquids therefore cannot be taken possession of unless they are contained in something else; as being thus contained, lakes and ponds have been taken possession of, and likewise rivers, because they are contained by banks. But the sea is not contained by the land, since it is equal to the land, or larger.”
[13. ] For the following, cf. JNG, 4, 5, §§6–8. Pufendorf argues against Grotius, JBP, II.ii.3, according to which the inexhaustible use of the sea makes it unnecessary to leave primitive community, and agrees with John Selden’s and Alberico Gentili’s argument for dominion of the sea (ibid., §8 referring to Selden, Mare clausum II, chaps. xx–xxii, and Gentili, Hispanicae advocationis libri duo I, chaps. viii and xiv).
[14. ] Cf. JNG, 3, 3, §§6, 11, 12, with reference to Grotius, JBP, II.ii.13, 18–20, 24.
[15. ]Dig., L.xvii.204.
[16. ] Genesis 1:28.
[17. ] Cf. JNG, 4, 3, §4, where Pufendorf refers to Plutarch, Symposiacs, VIII.viii, and Diogenes Laertius, Vitae philosophorum, VIII.13.
[18. ] See Pufendorf’s references (JNG, 4, 3, §4) to Plutarch, On the Eating of Flesh, II, 998 B, and Ovid, Metamorphoses XV, fab. ii.
[19. ] Cf. Thomas Hobbes, Leviathan, vol. 3, chap. 14, The English Works, ed. William Molesworth (London, 1841), and De cive, chap. 2, §12.
[20. ] This is an allusion to the Hobbesian right of nature as a right to everything and the resulting natural state of war of everyone against everyone; see De cive, chap. 1, §§6 and 10ff; Leviathan, chaps. 13–14, and Pufendorf’s discussion of the Hobbesian theory in JNG, 2, 2, §§3ff.
[21. ] See the references in JNG, 4, 4, §8.
[22. ] Cf. Aristotle, Politics, trans. H. Rackham, vol. 21 of Aristotle, Loeb Classical Library (Cambridge, Mass.: Harvard University Press; London: William Heinemann, 1944), 1263a30.
[23. ] Cf. JNG, 4, 4, §§5ff; Grotius, JBP, II.ii.2: “At the same time we learn how things became subject to private ownership. This happened not by a mere act of will . . . but rather by a kind of agreement, either expressed, as by a division, or implied, as by occupation.”
[24. ] Cf. Grotius, JBP, II.iii.10: “it has resulted from established practice rather than from natural reason that the sea was not occupied, or could not lawfully be occupied, in the sense in which we have spoken. . . . But many things, which were permitted by nature, universal customary law, by a kind of common understanding, has been able to prohibit. Consequently, wherever such a law is in force, and has not, by common consent, been abrogated, a portion of the sea, however small and almost enclosed by shores, cannot become subject to the ownership of any people.”
[25. ] Cf. JNG, 4, 9, §7, with reference to Dig., XLI.ii.3, §1.
[26. ] For these derivative modes of acquisition see Grotius, JBP, II.vii, who reduced them to three legal sources (lege naturae, aut lege gentium voluntaria, aut lege civili). Pufendorf’s exposition of that matter in JNG, 4, 10 (On Wills) and 4, 11 (On Succession to a Person Intestate) mainly draws on contemporary authors such as John Selden (De successionibus in bona defuncti, ad leges Ebraeorum, liber singularis; accedunt eiusdem De successione in pontificatum Ebraeorum, libri duo, [London, 1636]), Roman law (especially Dig., V.2ff), the Old Testament (Genesis 21:8–12, 37:4, 48:22; Numbers 27:8–11; Deuteronomy 21:17; Judges 9:18, 11:1–2), and canon law (Gratian, Decretum Gratiani, prima pars, distinctio 56, first part, distinction 56, canon 3).
[27. ] Genesis 4:3ff.
[28. ] Genesis 9.
[29. ] For this distinction see Grotius, JBP, II.xii.2; see also the analogous division of contracts into beneficial and burdensome in bk. I, Def. 12, §§54–55.
[30. ] In Roman law (see, for example, Inst., II.xxiii) a trust [fideicommissum] was a kind of bequest obliging the heir to give the estate or a part of it to a third person.
[31. ] Cf. JNG, 4, 11, §19, with references to Dig., XI.vii.14, §1; XVI.iii.7, §1; and XLIX.xiv.11.
[32. ] Cf. Dig., XXIX.ii.8.
[33. ] See Inst., I.vi.
[34. ] For the subsequent remarks on seizure of derelicts, cf. JNG, 4, 6, §§12–13; Grotius, JBP, II.viii.1–7; and (as source of both) Dig., XLI.i–ii.
[35. ] Cf. JNG, 8, 6, §20, with reference to Grotius, JBP, III.vi.
[36. ] Cf. Grotius, JBP, III.vi.3, and Pomponius in Ulpian, Dig., XLI.i.44.
[37. ]Dig., VI.i (various passages); X.iv.9, §3; X.iv.12, §3; XLI.i.9, §1; further, JNG, 4, 7, §§7–10, and Grotius, JBP, II.viii.19ff.
[38. ] See bk. I, Def. 12, §22; bk. II, Observ. 4, §13.
[39. ] On the matter of usucaption dealt with in the present and subsequent paragraphs, cf. JNG, 4, 12, where Pufendorf treats that matter with reference to Roman law (in particular Dig., XLI.iii, but also Gratian’s Decretum, pt. II, cause XVI, question III, canon 13) and discusses contemporary authors (Grotius, JBP, II.iv; Hugo de Roy, De eo quod justum est et circa id philosophiae, theologiae et jurisprudentiae syncretismo libri tres [Hildesheim, 1653], bk. III, title iii–iv; and Jacques Cujas, Observationum libri XXVIII [Cologne: Hieratus; Oberursel: Iunghenius, 1618]).
[40. ]Dig., L.xvii.54.
[41. ] In JNG Pufendorf deals with that matter in a more differentiated manner: “For, although the lack of a physical faculty does not immediately extinguish a moral one” (4, 5, §6), “the effects of proprietorship are maintained against others” the more easily, “the more closely a thing can be, as it were, shut in and surrounded” (ibid., §3).
[42. ]Dig., XLI.i.1 and 5; Inst., II.i.12.
[43. ]Dig., XLI.i.3.
[44. ] See Dig., XIV.ii.2 §8, XIV.ii.8, and XLI.i.9, §8.
[45. ] Cf. Weigel, Arithmetische Beschreibung, chap. viii, §6: “On account of his land, each householder [Haußvater] owns the space that forms a pyramid or a cone whose apex reaches to the centre of the earth, while its sides go through the estate’s circumference and diverge more and more upwards, until they strike a corresponding part of the outermost sky as the bottom that closes the pyramid shape.”
[* ] According to the author’s view, proper space has the shape of an inverted pyramid, whose apex is at the centre of the earth and whose base is at an infinite distance therefrom. The edges of this pyramid are formed by the lines which start at the centre of the earth and pass through the points upon the earth’s surface which mark the corners of one’s property.—Tr.
[46. ] By an incorporeal thing the Roman law understands a thing “which cannot be touched, and is such as consists of rights; for instance, an inheritance, an usufruct, or obligations contracted in any way,” but also “rights attaching to urban and rustic estates, which are also called servitudes” (Inst., II.ii.2–3). While this relates to property, Pufendorf extends the meaning to any kind of moral faculty.