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Remarks on This Chapter - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Remarks on This Chapter
It is not improper to subjoin the few following observations upon our Author’s reasoning in this chapter.
1. When duty is defined to be something enjoined by the divine will under a sanction, duties cannot be distinguished into perfect and imperfect in any other sense but this: “That some precepts of God give a right to all mankind to exact certain offices or duties from every one. But other precepts do not give any such right.” Thus the precept of God not to hurt any one, but to render to every one his due, gives every one a right to exact his due, and to repel injuries. But the precept to be generous and bountiful, gives no man a right to exact acts of generosity and bounty, tho’ it lays every man under an obligation to be generous and bountiful, to the utmost of his power. So that he who sins against the former is more criminal, or is guilty of a higher crime than he who does not act conformably to the other. This is the only sense in which duties can be called, some perfect, and others imperfect, when duty is considered, with our Author, as an obligation arising from the divine will commanding or forbidding. For all such obligation is equally perfect, equally full. The distinction takes its rise from the consideration of what crimes do, and what crimes do not admit of a civil action, consistently with the good order of society; and it is brought from the civil law into the law of nature. But it would, in my opinion, be liable to less ambiguity in treating of the law of nature, instead of dividing duties into those of perfect and those of imperfect obligation, to divide them into greater or lesser duties, i.e. duties, the transgression of which is a greater crime, and duties the omission of which is a lesser crime: or, in other words, duties the performance of which may be lawfully exacted, nay compelled; and duties the performance of which cannot be compelled or even exacted. But our Author’s terms mean the same thing, and cannot, if his definitions be attended to, create any ambiguity. However, we may see from his reasoning in this chapter, the necessity (as we observed in our preceeding remarks) of having recourse to internal obligation (as our Author calls it) or the intrinsic goodness and pravity of actions, in deducing and demonstrating human duties.
2. Since our Author’s reasoning wholly turns upon the reasonableness of this maxim, “Do as you would be done by; and do not to another what you would not have done by any one to you in like circumstances.” Perhaps some may have expected from him demonstration of the reasonableness of this maxim. Now this truth, which is indeed as self-evident as any axiom in any science, as for instance, “That two things equal to some common third thing, are equal to one another”: and which therefore, it is as hard to reason about as it is to demonstrate any axiom, for the very same reason, viz. that it does not in the nature of the thing require or stand in need of any reasoning to prove it: This truth may however be illustrated several ways, in order to make one feel its evidence and reasonableness. As with Pufendorff, law of nature, &c. B. 3. cap. 2. §4.3 thus: “It as much implies a contradiction to determine differently in my own case and another’s, when they are precisely parallel, as to make contrary judgments on things really the same. Since then every man is well acquainted with his own nature, and as well, at least, as to general inclinations, with the nature of other men, it follows, that he who concludes one way as to his own right, and another way as to the same right of his neighbour, is guilty of a contradiction in the plainest matter: an argument of a mind unsound in no ordinary degree. For no good reason can be given, why what I esteem just for myself, I should reckon unjust for another in the same circumstances. Those therefore are most properly sociable creatures who grant the same privilege to others which they desire should be allowed themselves; and those, on the other hand, are most unfit for society, who imagining themselves a degree above vulgar mortals, would have a particular commission to do whatever they please.” He observes in another place, B. 2. c. 3. §13. “For the easy knowledge of what the law of nature dictates, Hobbes himself commends the use of this rule (De civ. c. 3. §26.)4 when a man doubts whether what he is going to do to another be agreeable to the law of nature, let him suppose himself in the other’s room. For by this means, when self-love, and the other passions which weighed down one scale, are taken thence and put into the contrary scale, ’tis easy to guess which way the balance will turn.” He afterwards shews us it was a precept of Confucius, and of Ynca Manco Capace, the founder of the Peruvian empire, as well as of our Saviour. And in answer to Dr. Sharrock, who is of opinion (De off. ch. 2. n. 2.)5 “That this rule is not universal, because if so, a judge must needs absolve the criminals left to his sentence, in as much as he would certainly spare his own life, were he in their place; and I must needs give a poor petitioner what sum soever he desires, because I should wish to be thus dealt with, if I was in his condition, &c.” He replies, “The rule will still remain unshaken, if we observe, that not one scale only, but both are to be observed; or that I am not only to weigh and consider what is agreeable to me, but likewise what obligation or necessity lies on the other person, and what I can demand of him without injuring either of our duties.” Thus Pufendorff reasons about this principle. But both he and our Author seem to consider it not as a fundamental or primary principle of the law of nature, but rather as a Corollary of that law, which obliges us, To hold all men equal with ourselves. But it cannot be so properly said to be a Corollary from that principle, as to be the principle itself in other words. For what is the meaning of this rule, To hold all men equal with ourselves, but to hold ourselves obliged to treat all men as we think they are obliged to treat us? The equality of mankind means equality of obligation common to all mankind, with regard to their conduct one towards another. Now, if any one seeks a proof of the reasonableness of holding all men equal in this sense, that it is reasonable for us to do to others what it is reasonable for them to do, or for us to expect they should do to us in like circumstances; if any one, I say, should seek a proof of this maxim, he really seeks a proof to shew, that like judgments ought to be given of like cases, i.e. that like cases are like cases;—and if, owning the truth of the proposition, he asks why it ought to be a rule of action, does he not ask a reason why a reasonable rule should be admitted as a reasonable rule; or why reason is reason, as we had occasion to observe in another remark?
3. But in the third place, that we are made for benevolence because we have benevolent affections, and our principal happiness consists in the exercise of the social affections, or the social virtues; and our greatest and best security for all outward enjoyments, and for having and possessing the love of others, is by being benevolent;—that upon these and many other accounts, we are made and intended for benevolence, is as evident as that a clock is made to measure time, and in consequence of the same way of reasoning, viz. the way we reason about any constitution, or any final cause. We see what sad shifts they are reduced to, who would explain away into certain selfish subtle reflexions, all that has the appearance of social, kindly and generous in our frame; and the perplexity and subtlety of such philosophy is the same argument against it, which is reckoned a very good one against complicated, perplexing hypotheses in natural philosophy, compared with more simple ones. (See some excellent observations on Hobbes’s account of pity in Dr. Butler’s excellent sermon on compassion, in a marginal note.)6 Who feels not that we are naturally disposed to benevolence, and what is the way in which our natural benevolence operates, and so points us to the proper exercises of it, while Cicero thus describes it: “There is nothing,” says he, “so natural, and at the same time so illustrious, and of so great compass, as the conjunction and society of men, including a mutual communication of conveniencies, and general love for mankind. This dearness begins immediately upon one’s birth, when the child is most affectionately beloved by the parent; from the family, it by degrees steals abroad into affinities, friendships, neighbourhoods; then amongst members of the same state; and amongst states themselves, united in interests and confederacies; and at length stretcheth itself to the whole human race. In the exercise of all these duties, we are farther disposed to observe what every man hath most need of, and what with our help he may, what without our help he cannot attain; so that in some cases the tye of relation must yield to the point of time; and some offices there are which we would rather pay to one relation than to another. Thus you ought sooner to help a neighbour with his harvest, than either brother or a familiar acquaintance; but, on the other side, in a suit at law, you ought to defend your brother or your friend before your neighbour, &c.” Cicero de fin. l. 5. c. 23. Who feels not that this is the language of nature; that thus our affections work; that thus nature moves, prompts and points us to work? And who can consider this natural tendency or course of our affections without perceiving by his reason, the advantage, the usefulness of this their natural tendency, with regard to ourselves and others equally; and consequently the fitness of our taking care that they should always continue to operate according to this rule, according to this their natural tendency? Or who does not feel that indeed this is the true account of human happiness, the happiness nature intended for us, our best and noblest happiness?
But if nature points out this course, this regular course of our affections; if it is felt to be the state of mind that alone affords true happiness; and if the general happiness of mankind plainly requires this direction and course of our affections: If, in one word, nature dictates it, and reason must approve of it in every view we can take of it, in what sense can it be denied to be our natural duty and the will of our Creator? And is it any wonder, that this rule of conduct hath been known to thinking men in all ages (as we cannot look into ancient authors without clearly seeing it hath been) since every heart dictates it to itself? This rule, “Do as you would be done by,”8 is a rule of easy application, and it is universal, or it gives an easy, ready and clear solution in all cases. This appears from our Author’s preceding and following applications of it to cases: for it is from it alone he reasons throughout all his deductions of duties. And that it is an equal, just, or reasonable rule, cannot be denied without asserting this absurdity, That what is true and just in one case, is not always and universally true and just in all similar cases. Again, that we are made to love mankind, and to live in the exercise of love and benevolence, is plain from our make and frame, and the intention of our Maker thereby discovered to us, according to all the received rules of reasoning about final causes. And therefore the principles upon which our Author builds, are in every view of them beyond all dispute. He now proceeds to enquiries of a more complex nature; but he still continues to argue from the same self-evident truths.
Concerning our hypothetical duties towards others, and the original acquisition of dominion or property.
The connection.What hath hitherto been explained, belongs partly to the love of justice, and partly to that which we call the love of humanity and beneficence (§84). From the latter we have deduced our imperfect duties in the preceding chapter; from the former our perfect ones are clearly deducible, which we said, consist in not injuring any person (and this we call an absolute duty), and in rendering to every one his due (which we call an hypothetical duty). Now, having treated of absolute duty in the seventh chapter, we are now to consider our hypothetical duties with the same care and accuracy.
What is meant by our own, by dominion, by possession, by property, by community.That is properly called one’s own which is in his dominion. By dominion we mean the right or faculty of excluding all others from the use of a thing.* The actual detension of a thing, by which we exclude others from the use of it, is called possession. Again, we claim a right to ourselves either of excluding all others from the use of a thing, or of excluding all others, a few only excepted. In the former case, the thing is said to be in property; in the other case, it is said to be in positive communion, which is either equal, when all have an equal right to the common thing; or unequal, when one has more, or a greater right than another to that thing. And it again is either perfect, when every one has a perfect right to the common thing, or imperfect, when none hath a perfect right to it, as in the case of the soldiers of an army, to whom a certain reward in money is appointed by the prince. But if neither one, nor many have right or design to exclude from a thing not yet taken possession of, that thing is said to be in negative communion; and this communion alone is opposite to dominion, because in that case the thing is yet under the dominion of no person.
The right of man to created things.Now since reason plainly discovers that men were created by God (127), it is manifest that our Creator must will that we exist. But he who wills the end, must be judged to will the means likewise. And therefore God must have willed that men should enjoy all things necessary to the preservation of their being which this earth produces. Further, God having given evident signs of his particular love to man, by having made him a most excellent creature, it cannot be doubted that he desires and delights in our perfection and happiness (§80). And by consequence he must will that we should enjoy even all things which can conduce to render our life more perfect, more satisfactory, more happy, provided we do not abuse them (§90).*
Originally all things were in a state of negative communion.Since God then hath given to man for his use and enjoyment all things conducive to render his life agreeable (§232), he undoubtedly wills that none should be excluded from any use of these things; and therefore, according to the intention of God in the beginning of things, all things were in a state of negative communion, and so were in the dominion of none (§231).*
But it was lawful to depart from this state, necessity so urging.Whatever God willed, he willed for the most wise reasons, and therefore it ought not to be altered by men but in case of great necessity. But since all the divine affirmative laws, such as this is, “That all things should be in common for the common use of all mankind,” admit of exception in case of necessity (§159); and by necessity here is to be understood not only extreme necessity, but even such as makes it impossible to live conveniently and agreeably (§158 & 232); the consequence is, that men might, necessity so urging them, lawfully depart from that negative communion, and introduce dominion, which is opposite (§231) to negative communion.
What necessity urged men to introduce dominion.Now it is very evident, that if mankind had been confined to a small number, there would have been no need of any change with regard to the primeval negative community of things, because the fertility of nature would have sufficed to render the lives of all, if not agreeable, at least commodious or tolerable. But so soon as mankind was spread over the whole earth, and dispersed into innumerable families, some things began not to be sufficient to the uses of all, whereas other things continuing to be, because of their vast plenty, sufficient for all; necessity itself obliged men to introduce dominion with regard to the things which were not sufficient for the uses of all (§234), leaving those things only in their original negative community which are of inexhaustible use, or which are not requisite to the preservation and agreeableness of life.*
This institution is not unjust.Dominion therefore was introduced, and negative community was abolished by necessity itself. But that this institution of mankind is injurious to none is manifest, because in negative communion none has a right to exclude another from the use of things (§231); and therefore it must be lawful to any one so to appropriate to himself any thing belonging to none, that he could not afterwards be forced by any person to yield him the use of it, but might detain it to himself, and set it aside for his own use.*
After that things are either positively common or in property.When men, obliged by necessity to it, have introduced dominion (§235), this must consist either in positive communion, or in property (§231). Wherefore, from the moment men depart from negative communion, all things are either positively common to many, or they begin to be proper to particulars; and community arises from the resolution of many to possess the same thing undivided in common, and to exclude all others from the use of it.† But property takes its rise either from immediate occupancy and possession at first of a thing belonging to none, or from an after-deed, in consequence of a division or cession of things positively common.
Why it was necessary to depart from positive community.Truly, if such were the happiness of mankind, that all were equally virtuous, we would neither stand in need of dominion, nor of any compacts, because even those who had nothing in possession, would want nothing necessary to their comfortable subsistence. For in that case every man would love another as himself, and would cheerfully render to every one whatever he could reasonably desire to be done by others to him. And what use would there be for dominion among such friends having all in common? But since, in the present state of mankind, it cannot be expected that any multitude of men should be all such lovers of virtue, as to study the happiness of others as much as their own; hence it is evident, that positive communion is not suitable to the condition of mankind, as they now are, and therefore that they had very good and justifiable reasons for departing from it likewise.*
What are the original ways of acquiring dominion or property?And hence also it is conspicuous how property was introduced, and what are the ways of acquiring property in a thing. For a thing is either still without dominion, or it is in the dominion of some person or persons. Now, in the former case we call the original ways of acquiring property with Grotius, those by which we acquire either the very substance of a thing yet belonging to none, or the accretions which may any how be added or accede to it. The first of which is called occupancy; the latter accession.
What are the derivative ways?But if a thing be already in any one’s dominion, then it is either in the property of many, or of a particular (§231). In the first case, things in common are appropriated by division or cession; in the latter by tradition. Nor is there any other derivative way of acquiring dominion, which may not be most conveniently reduced to one or other of these sorts.
What occupancy is, and what a thing belonging to none?Occupancy is taking possession of a thing belonging to none. A thing is said to belong to none, which none ever had a right to exclude others from the use of, or when the right of none to exclude others from it, is evidently certain, or when the right of excluding others from the use of it is abdicated by the possessor himself freely; in which last case, a thing is held for derelinquished. But seeing none has a right to exclude others from the use of things which belong to none (§231), the consequence is, that things belonging to none, fall to the share and right of the first occupants. Nor can this be understood to extend to things that are lost, carried off by fraud or force, cast over board in imminent danger of shipwreck, or taken away by brute animals; for in no sense are such things belonging to none, since they had owners, and these owners never abdicated their right and dominion.*
Occupancy is made by mind and body at once.Occupancy being taking possession of a thing belonging to none (§241), and possession being detention of a thing, from the use of which we have determined to exclude others (§231), it is plain that occupancy is made by mind and body at once, and that intention alone is not sufficient to occupancy, if another has a mind to use his right; nor mere taking possession of a thing, without intention to exclude others from the use of it; but by the tacite consent of mankind the declaration of intention to appropriate a thing to one’s self, joined with certain sensible signs, is held for occupancy.*
And either in the lump, or by parts.Moreover, since every thing may be occupied which is none’s possession (§241), it will therefore be the same thing whether whole tracts of land unpossessed be occupied by many in lump, or whether particular parts be occupied by particular persons. The former, Grotius of the rights of war and peace, calls occupying per universitatem, by the whole; and the latter, occupying by parcels, (per fundos). But because he who takes possession of the whole, is judged to take possession of every part, hence it follows, that when any number of men, as a people in an united body, seize on some desolate tract of land by the whole, nothing becomes proper to any particular person, but all contained in that region, if particular parts be not taken possession of by particulars, belongs to the whole body, or to their sovereign.*
Whether wild beasts, fishes, birds, be things belonging to none.None therefore can deny that hunting, fishing, fowling, are species of occupancy, not only in desart places unpossessed, but likewise in territories already occupied, since such is the abundance of wild beasts, fish, and winged creatures, that there is enough of them for all men (§235); yet, if there be any good or just reason* for it, a people may, without injury, claim to themselves all such animals as are not under dominion (§243) or assign them to their sovereign as his special right; and that being done, it becomes contrary to the law of justice for any one rashly to arrogate to himself the right of hunting already acquired by another.
What animals may be hunted.But wherever the right of hunting is promiscuous, reason plainly teaches that this right does not extend to tame animals, because they are in dominion, nor to creatures tamed by the care of men, while one possesses them, or pursues them with an intention to recover them, or hath not by clear signs manifested his design to relinquish them:† nay, that it does not extend to wild beasts inclosed in a park, to a fish-pond, a warren, a bee-hive, &c. but to those which, as Caius elegantly expresses it, l. 1. §1. de adqu. dom. Terra, mari, caelo capiuntur, are caught in the sea, air, or land.
When animals fall to the share of those who take them.Moreover, since besides the intention of excluding others from the use of a thing, corporal possession is required to occupancy (§242); the consequence is, that it is not enough to wound a wild beast, much less is it sufficient to have a mind to seize one that shall fall by its wound; but it is requisite either that it be taken alive or dead by the hunters dogs, nets, or other instruments; for if neither of these be done, any one has a right to seize and kill a creature, tho’ wounded by another, because it is not yet made property.*
Whether occupancy by war be of this kind?Another species of occupancy is called occupancy by war, by which it is asserted, that persons, as well as things, taken in lawful war, become the taker’s by the law of nations, l. 1. §1. D. de adqu. vel amitt. poss. But because occupancy can only take place in things possessed by none (§241), and things belonging to an enemy can only be by fiction,† and free persons cannot so much as by fiction be deemed to belong to none; it follows, that occupancy by war does not belong neither to the original ways of acquiring, nor to occupancy, but must be derived from another source, even from the right of war itself.
Of finding.To occupancy finding is properly referred, since it consists in taking hold of a thing belonging to none; and there is no doubt that a thing not yet possessed, or left by its possessor, falls to the finder, who first seizes it with an intention of making it his own; wherefore the law of the Stagiritae, Biblienses and Athenians, is contrary to the law of nature: “ἃ μῂἔσθου, μὴ ἀνέλη.” “What you did not place, do not take up,” unless it be only understood of things lost; Aelian. Hist. Var. 3. 45. 4. 1. Diog. Laert. 1. 57. Nor do they less err, who adjudge a thing found in common to the finder, and him who saw it taken up.* But this right ought not to be extended to things which a people possess themselves of by the right of occupancy made by an united body in whole, or hath ceded to their sovereign as a special privilege, which may be lawfully done, as we have already observed (§243).
And things abandoned, as treasures.Nor is it less manifest that things belong to the finder which are abandoned by one of a sound mind, and master of his actions, with intention to abdicate them; and therefore scattered gifts, nay, even treasures, whose former owners cannot be certainly known, which are found by accident, unless the people or their sovereign claim them to themselves (§243).
About which matter various laws of nations are quoted by Grotius of the rights of war and peace, 2. 8. 7. Pufendorff 6. 13.1 and Hertius in his notes upon these sections; Ev. Otto upon the institutes, §29. inst. de rer. divis.2 Yet regard ought to be had to the proprietor of the ground, as having a right to all the profits of it of every sort.* And therefore the emperor Hadrian, justly, and conformably to the laws of natural equity, adjudged one half of a thing found to the finder, and the other to the proprietor of the ground where it was found. Spartian in Hadriano,3 c. 18. §39. inst. de rerum divisione.
What accession is.Another original way of acquiring dominion is accession, by which is understood the right of claiming to ourselves whatever additions are made to a substance belonging to us. Now, since substances belonging to us may be augmented either by natural growth, by our own industry, or by both conjointly; Accession is divided by the more accurate doctors of the law into natural, industrious, and mixed.*
The foundation of natural accession.As to natural accession, what belongs to us either receives an addition we cannot certainly discover the origine and former owner of, or an addition by something known to belong to another. In the first case, since a thing, whose master cannot be certainly known, belongs to none (§241), there is no reason why such an increment may not go with the thing to which it hath acceded, and so be acquired to us. But in the other case, the thing hath an owner, who can by right exclude others from the use of it (§231); and therefore I have no more reason to think such a thing, however it be added to my goods, is acquired to me, than when a strong wind blows the linen of Titius, that were hung out in his garden, into my court.†
Of the breed of animals in particular.From the foregoing most evident principles, (§251), we may also conclude, that offspring, or a birth, the origine of which is not evident, (which often happens with regard to animals, and likewise to persons born out of lawful marriage) follows the dam or mother as an accessory increment, and that Ulpian, l. 24. D. de statu hominum, not without reason ascribes this effect to the law of nature. But this does not appear equal if both parents be certainly known,* unless the male be kept at common expence for procreation, as a bull often is in common to many, or when the owner lets his bull or stallion to his neighbours for a certain hire.
Of new islands, whether cast up, or artificial.Nor is it less difficult to determine to whom a new island, that starts up in the sea, or in a river, belongs. For since it is impossible to discover with certainty to whom the different particles of earth belonged which have coalited into an island (§251), it follows, that an island must be adjudged an acces-sion to the sea or river;† and therefore, if the sea or river belong to no person, the island likewise is without an owner, and must fall to the first occupant. But if, as often happens, either the sea or river belongs to a people or their sovereign (§243), that people or sovereign will have a just title to the island. In fine, since a thing which appertains to a known master, cannot be acquired by any person by accession (§251), an owner cannot lose his ground which is washed by a river or channel into a new island, as the Roman lawyers have acknowledged, l. 7. §4. 1. 30. §2. D. de adqu. rer. dom.
So likewise by alluvion, and the force of a river.The same is to be determined of alluvion, and ground separated by the force of a river. For as to the former, as nothing certain can be known concerning the origine of particles gradually annexed to our ground (§251), there is no doubt but what is added to our ground in that manner is accession to us; and what is thus added to a public way, or any public ground, accedes to the public.* On the other hand, when the master of the ground carried off is known (§251), no change can be made in this case as to dominion, unless the master abdicates and leaves what is thus taken away from his possession; which in governments is commonly inferred from the not claiming it during a certain time fixed by law, §2. Inst. de rerum divis. l. 7. §2. D. de adqu. rerum dom.
By a river’s changing its channel and inundation.In fine, as to a river’s changing its channel, if the channel it deserts, as far as can be known, was in the dominion of no person, it cannot accede to those who possess the adjoining lands in proportion to their grounds, as the Roman lawyers thought, l. 7. §5. D. de adqu. rer. dom. But because the property of the river of which the channel is a part, is certainly known (§251), it will, as a part of the river, be his to whom the river belonged; as, for the same reason, the new channel, if again deserted, without doubt belongs no less to the first masters, than an overflown ground, after the water retires from it.*
Of accession by industry, first axiom.Let us now consider industrious and mixed accession, concerning which some lawyers have treated with so much subtlety. And we think, if the things be joined by mutual consent, it cannot be doubted but each is master according to his proportion, and in this case there is a positive community introduced (§231). But we are here speaking of an accession made without the other’s consent. Now, seeing a master has a right to exclude all from the use of what is his (§231), he has a right certainly to hinder any thing from being joined to what is his against his will. Wherefore, since what is added to any thing of ours, either renders it useless, or at least worse, or renders it more valuable and better, because he who renders our goods worse hurts us (§178); the consequence is, that he who has rendered our goods either useless or worse by any industrial accession, is obliged, taking the spoilt goods, to repair our damage; and if he did it by deceit, and with evil intention, he is likewise liable to punishment (§211).
Second and third axiom.But if our goods are rendered better and more valuable by any artificial accession, then there is a great difference when the two things can be separated without any considerable loss, and when they cannot. In the former case, since the master of each part hath a right to exclude all others from the use of what belongs to him (§231); but that cannot now be done otherwise than by separating the two things; the consequence is, that in this case the things are to be immediately separated, and to each is to be restored his own part. But, in the other case, the joined things ought to be adjudged to one or other of the two, the other being condemned to pay the value of what is not his to the owner who is thus deprived of it;* and if there be any knavery in the matter, punishment is deserved (§211).
A fourth axiom, &c.But since in the last case, the joined things are to be adjudged to some one of the two, there (§257) ought to be some good reason why one should be preferred (§177): because therefore, there can be no other besides the superior excellence of one of the two things, which is oftner measured by rarity and affection than by utility; hence we infer, that the rule which adjudges the accessory to its principal, is not always equal. Justinian him-self, and before him Caius, acknowledged the absurdity of it in the case of a picture, §34. In. de rer. divis. l. 9. §2. D. de adqu. dom. And therefore the joined things ought to be assigned to him whose part is of the greatest price,* either on account of its rarity, or of his affection, labour, care and keeping; and he ought to be condemned to make an equivalent to the other for what was his, if he insists upon it, and does not rather choose to make a present of it to him.
What is just with respect to specification.Hence we may plainly see what ought to be determined in the case of specification, by which a new form is given to materials belonging to another. For since very frequently all the affection or value is put upon the form on account of the workmanship or art, and none at all is set upon the substance (§258), a new species will rightly be adjudged to him who formed it;† but so as that he shall be obliged to make a just equivalent for the price or value of the materials, and shall be liable to punishment, if there be any fraud or knavery in the case (§256). So Thomasius, in the differtation above quoted, §43. & seq. Yet for the same reason above mentioned, the owner of the substance ought to be preferred, if it be rarer and of greater value than the form added to it by another’s labour and art: e.g. if one shall make a statue or vase of Co-rinthian brass, amber, or any precious matter belonging to another, the owner of the materials shall have it, but he shall be obliged to pay for the workmanship, provided the fashioner acted bona fide, i.e. without any fraudulent design.
What with regard to adjunction, inclusion, &c.Again, adjunction is no inconsiderable species of industrious accession, when something belonging to another is added to our goods by inclusion, by soldering with lead, by nailing or iron-work, by writing, painting, &c. Now since inclosing is often of such a kind, that the things joined may be severed without any great loss, in such cases the things may be separated, and every one’s own restored to him, and this is equal (§257): There is certainly no reason why the gold may not be restored to whom it belongs, when another’s precious stone is set in it, and the gem to its owner. And the same holds with regard to soldering, fastening, inter-weaving, and other such like cases, when the things can be separated without any considerable loss: Otherwise the joiner ought to be preferred, because the substance rarely admits of any price of affection (§258).*
What as to building upon, &c.If any one builds upon his own ground with the materials of another person, when there was no knavery in the design, and the building is of timber, there is no reason why, if the mistake be very soon discovered, the building may not be taken down, and the timber be restored to its proprietor† (§257). But if the building be of stone, or if the timber would afterwards be useless to its owner, it will then be most equal to say, that the builder should have the property of the building, but be obliged to make a just satisfaction, for the materials, and be moreover liable to punishment, if there is any knavery in the case (257 and 258). If one build with his own materials upon another’s ground, if the building can be taken down without any considerable loss, it ought to be done (§257); or what admits of a price of affection ought to be adjudged to the proprietor of the ground (§258), unless the building be plainly of no use to the lord of the ground, in which case the builder retaining the building to himself, is bound to pay the worth of the ground, and if there be any bad intention, he is moreover liable to punishment.
As to writing and painting.There is less difficulty as to writing and painting. For since those things upon which another sets no value, are to be left to him who puts a value upon them (§258), and the value for the most part falls upon the writing and painting, and never upon the cloth or paper, the paper ought to yield to the writing, and the board or cloth to the painting, if the writer and painter will make satisfaction for them.* And if the painting and writing have no value, as if one should scrible a little upon my paper, or dawb my board with fooleries, even in this case, the writer and painter ought to take the thing, and pay the value of the paper or board by the first axiom (§256).
With respect to confusion and mixture.Further, as to the mingling of liquids, or the commixture of dry substances, tho’ the Roman lawyers have treated of a difference with much subtlety, l. 23. §5. D. de rei vind. yet there is none. For if things be mixed or confounded by the mutual consent of parties, the mixed substance is common, and ought to be divided between them proportionably to the quantity and quality of the ingredients (§256). If it be done against the will of one of them, then the substance, which is of no use, ought to be adjudged to the mixer, and he ought to make satisfaction, and to undergo a penalty if he had any bad or fraudulent intention (§256); but yet, if one would rather have a part of the substance than the price of his materials, there is no doubt that he now approves the mixture which he at first opposed, and therefore a proportionable part of the common matter cannot be refused to him.*
About mixed accessions, sowing and planting.To conclude; by the same principles may we determine concerning sowing and planting, which were above referred to the class of mixed accessions, (§250). For trees and plants, before they have taken root, may be severed from the soil without any great loss, and so be restored to their owners (§257); but when they have taken root, as likewise seed sown, seeing they cannot easily be separated from the soil, and yet do not admit of a price of fancy or affection, they are acquired to the proprietor of the soil, he making satisfaction for the value of the trees or seed, and the expences of culture (§258), unless, in this last case, the proprietor of the soil is willing to leave the crop to the sower for a reasonable consideration.†
About the fruits of trees in one’s neighbourhood.As to a tree in our neighbourhood, he who plants it, consents that a part of its branches should hang over into the court of his neighbour; and the neighbour, who has a right to exclude others from his court, by not doing it, also consents to it; wherefore the accession being made with the mutual consent of both parties, the tree is common, (§256); and for this reason, while it stands in the confines, it is common in whole, and when it is pulled up, it is to be divided in common: so that in the former case the leaves and fruits are in com-mon; and in the latter case the timber is to be divided between the two neighbours in proportion.*
[3 ] The translations here are those of Basil Kennet (see Pufendorf, Of the Law of Nature and Nations).
[4 ] See Hobbes, On the Citizen (De cive), 3.26: “All these natural precepts are derived from just one dictate of reason, that presses on us our own preservation and security.. . . This rule is not only easy; it has long been famous in the words: Do not do to another what you would not have done to you.”
[5 ] Sharrock, ‘Yπόεθσιςἐθική de officiis secundum naturae jus.
[6 ] Butler, Fifteen Sermons, p. 81.
[7 ] Pope, Essay on Man, epistle 4, l. 360–61.
[8 ] This is the so-called “golden rule” to which Turnbull referred above in the quotation from Pufendorf citing Hobbes. For the golden rule see Matthew 7:12 and Luke 6:31, as well as Kant’s criticism in his Groundwork of the Metaphysics of Morals, in I. Kant, Practical Philosophy, ed. Gregor, 80f.
[* ] That dominion consists solely in the faculty of excluding others from the use of a thing, is obvious. For all the other effects of dominion, which are usually enumerated in the definition of it, may be separated from it, and yet one may remain master or owner of it, or have it in his dominion. Thus, e.g. we may observe, that the right or faculty of receiving all the profits of a thing by usufruct, is separated from propriety, while the dominion remains entire: and it is known, that the faculty of disposing of a thing does not belong to minors, whom none however will deny to have dominion. Whence Seneca of benefits, 7. 12. says, “It is not a proof that a thing is not yours, that you cannot sell it, waste it, &c. For even that is yours, which is yours under certain limitations and conditions.” In fine, we find the faculty taken away in certain countries from the owner, of vindicating to himself from a third possessor, a thing lent or deposited, where the law takes place, Hand muss hand wahren. Since therefore that only ought to enter into the definition of a thing, which so belongs to its essence that it cannot be absent, but the faculty of excluding others from the use of a thing being taken away, one immediately ceases to have any dominion, it cannot be doubted but this alone completes the definition of dominion. And this I take to be Arrian’s definition, when he says, one who hath dominion is, “τòν τῶν ὑπ’ ἄλλων σπουδαζομένων ἤ ἐκκλινομένων ἔχοντα ἐξουσίαν, He who hath those things which others desire or fly from in his power.” [[See Epictetus, The Discourses as Reported by Arrian, vol. 1, bk. 2, chap. 2, p. 231.]]
[* ] It hath been called into question by some, whether man hath a right to the use of the brutes for the preservation of his life, which cannot be killed without their feeling pain? nay some have denied it, because they thought it an injury to the brutes, and not use but abuse of them, to kill them in order to feed upon them, especially since men may sustain their lives without such bloody revelling. Others add, that eating flesh is not wholsome, and renders men cruel and savage. This argument was first urged, we know, by Pythagoras, and afterwards by Porphyry in his books περίἀποχῆς. See Scheffer de Philosoph. Italica, cap. 14. [[Porphyrios (234–ca. 305), scholar and philosopher. The work Περί ἀποχῆς (“On abstinence”) is a treatise on vegetarianism. See Scheffer, De natura et constitutione philosophiae italica. But in the first place, this whole hypothesis about injury done to brutes, is founded on another erroneous opinion of the transmigration of souls, or of their having souls in common with us, and therefore a common right with us (κοινῷ δικαιῷ ψυχῆς) as it is called by Pythagoras in Diogenes Laertius, 8. 13. in explaining which Empidocles says in the same author,Nam, memini, fueram quondam puer, atque puella,Plantaque, & ignitus piscis, pernixque volucris.
Diogenes Laertius 8.12, “Empedocles” (Lives of Eminent Philosophers): “For, I remember, I was a boy once, and a girl, and a plant, and a fiery fish, and a swift bird.”
Add. Iamblichus’s life of Pythagoras, 24. 108. and Porphyry’s life of Pythagoras, p. 188. But it is false that there is any communion of right between us and the brutes (§90). And hence it is false, that an injury is done to the brutes. We are not therefore to abstain from things because we can be without them; for God not only wills that we exist, but that we live agreeably; and that use is not abuse, which is not contrary to the will of God. In fine, that unwholesomeness which they alledge, is not sufficiently proved, and most probably, it arises not from the moderate eating of flesh, but gluttony, and the abuse of created things, which we also condemn.]]
[* ] And thus not only the sacred records, Genesis 1. 28, 29. but even the ancient poets describe the primaeval state of mankind, which they have celebrated under the name of the golden age; for then, as Virgil says, Georg. 1. v. 125.Nulli subigebant arva coloni,Nec signare quidem, aut partiri limite campumFas erat: in medium quaerebant: ipsaque tellusOmnia liberius, nullo poscente, ferebat.
[[Virgil, Georgics 1.125–28, in vol. 1 of Virgil: “[N]o tiller subdued the land. Even to mark the field or divide it with bounds was unlawful. Men made gain for the common store, and Earth yielded all, of herself, more freely, when none begged for her gifts.”
They deny then, that there was at that time any divisions of land into different properties marked by boundaries, but assert that all things were in common, and so left to the use of all mankind, that none could be excluded from the use of them.]]
[* ] And hence the lawyers have pronounced such things common by the law of nature, §1. Inst. de rerum divis. and that not, “as those public things which are the patrimony of a whole people, but as for those things which are originally a present of nature, and have never passed into the dominion of any person,” as Neratius says, l. 14. pr. D. de adqu. rerum dom. [[Lucius Neratius Priscus was an eminent Roman jurist in the late first and early second centuries. The best and most beautiful of things, on account of their abundance, have always remained in the primeval negative communion. Hence Petronius Satyr. c. 6. says, “What is common, that is in its nature most excellent? The sun shines to all; the moon, attended with numberless stars, even guides the wild beasts to their food. What is more beautiful than water? and it is for common use.” Petronius Arbiter, Satyricon, trans. Heseltine, in Petronius and the Apocolocyntosis of Seneca. The poet Petronius (d. 66) was held in high esteem by Nero. See Sullivan, The Satyricon of Petronius. Neither does any one affect dominion over flies, mice, worms, and other things, which are either hurtful, or of no benefit to mankind.]]
[* ] For what none hath a right or intention to exclude me from the use of, that belongs to none. But a thing ceases to be none’s, so soon as I apply it to my uses, and I have resolved to make use of my right granted to me by God (§232); because since he hurts and injures me, who endeavours to render me more imperfect or unhappy, (§178), he certainly injures me, who endeavours to deprive me of what I have taken to myself for the sake of my preservation, and living agreeably. The same happens in this case, that Arrian. dissert. Epict. 2. 4. says of the theatre, tho’ it be positively common. “Is not the theatre common to all the citizens? But if one takes a place in it, turn him out of it if you can.” And Seneca of benefits, 7. 12. “I have truly a place among the Equestrian order; but when I come into the theatre, if these places be full, I have a right to a place there, because I may sit there; and I have no right to a place there, because all the places are possessed by those with whom I have my right in common.”
[† ] This, no doubt, was done at first immediately, when families and tribes began to separate and disperse into different parts of the world. For then each family took possession of some region for itself in common, and without division for a while, till necessity urging, they divided the common possession, or by compact gave the liberty to each particular of occupying as much as he wanted. The antients mention several nations which in the beginning possessed whole provinces in common without division, as the Aborigenes in Justin, 43. the Scythians and Getar. in Horace, Carm. 3. 4. the Germans in Tacitus, c. 26. the inhabitants of the island Lipara, the Panchaeans and Vaccaeans, Diodorus Siculus, Biblioth. v. 9 & 45.
[* ] Whoever mentions the being of such a communion any where among mankind, represents at the same time these men as extremely virtuous. This there is reason to say of the church of Jerusalem, Acts iv. 32. Nor did the poets think what they say of the community among mankind in the golden age could have been credited, if they had not also represented them as most studious of virtue; who, as Ovid says, Metam. l. v. 90.vindice nullo,Sponte sua, sine lege, fidem rectumque colebant.
[[Ovid, Metamorphoses 1.90: “[The Golden Age] with no one to compel, without a law, of its own will, kept faith and did the right.”
The Scythians beyond the Maeotis, among whom Scymnus Chius ancient Greek author of a description of the earth tells us this community obtained, are said by him to have been τους σφόδρα, ἐυσεβεστάτους, a most pious race. Iamblichus in his life of Pythagoras, §167, tells us, that Pythagoras derived his community of things from justice as its source: But virtue, justice and piety becoming rare and languid amongst men, that this communion could not take place or subsist, is manifest.]]
[* ] Therefore the fisher Gripus philosophizes very soundly in Plautus, Rud. 4. 3. v. 32. concerning the fish he himself had caught in the sea, when he pleads they were his own, because none could justly exclude him from the use of them:Ecquem esse dices mari piscem meum?Quos quum capio, siquidem cepi, mei sunt: habeo pro meis:Nec manu adseruntur, neque illic partem quisquam postulat.In foro palam omnes vendo pro meis venalibus.
[[Plautus, The Rope, lines 971–74, in vol. 4 of Plautus: “Gripus: Would you call any fish mine while it’s still in the sea? When I catch them, supposing I do, then they are mine; I have them for my own, and no one lays claim to them or expects any part of them. And I sell them all in the public market as my wares.”
But he gives a very bad reason, when he claims to himself a purse, which being lost by shipwreck, he had brought out of the sea in his net:In manu non est mea,Ubi demisi rete atque hamum, quidquid haesit, extraho.Meum, quod rete atque hami nacti sunt, meum potissimum est.
Ibid., lines 983–85: “It’s a thing I can’t control. When I let down my net and hook, I pull up whatever’s stuck to ’em. Anything my net and hook gets hold of is mine, yes, sir, mine.”
For to this Trachalio answers very right, v. 42.Quid ais, impudens,Ausus etiam, comparare vidulum cum piscibus?Eadem tandem res videtur?
Ibid., lines 981–83: “How’s that, you cheeky rascal? So you’ve got the cheek to compare trunks with fish, eh? Really now, does it seem the same to you?”
[* ] Thus one is reckoned to have taken possession of a field, tho’ he hath not walked round every spot of it, l. 3. §1. l. 48. D. & l. 2. C. de adqu. vel amitt. possess. if he hath testified by some sign, such as cutting a branch from the tree, &c. to those present, his intention of appropriating that field to himself. But since these signs have their effect by tacite convention, they are not arbitrary; and therefore, he who threw his spear into a city deserted by its inhabitants, seems no more to be the occupant of that city than a hunter is of a wild beast, which, having flung his spear at it, he neither kills nor wounds. And hence may be decided the famous controversy between the people of Andros and Chalcis, about their right of occupancy with respect to the city of Acanthos, the former pleading that their spy seeing himself outrun by the Chalchidian spy, threw the spear which he had in his hand at the city gate, which stuck there; the other denying that cities could be occupied in this manner by throwing spears, and asserting their right to the city, because their spy had first entred into it. The story is related by Plutarch, Quaest. Graec. 30. [[See Plutarch, The Greek Questions of Plutarch, 139.]]
[* ] Hence, in a tract of land, particulars may appropriate each to himself a particular part, and yet the whole territory may belong to the people, or the united body. Dio Chrysostom in Rhodiaca 31. “The territory is the state’s, yet every possessor is master of his own portion.” [[Dio Chrysostom (ca. ad 40/50–after 110), Greek orator and popular philosopher. See “The Thirty-first Discourse: To the People of Rhodes,” in Dio Chrysostom, vol. 3, p. 51.]]
[* ] Many such reasons, tho’ not very proper ones, are accumulated by Pufendorff, of the law of nature, &c. 4. 6. 6. The one of greatest moment is, that wild beasts, fish and fowls, are not every where in such exhaustless abundance that the destruction of the whole species may not be feared, if the right of hunting be promiscuously given to all (§235), whence we may see why men are nowhere forbid to hunt and kill savage beasts, which are hurtful to mankind; nay, in some countries, rewards are offered to those who can, by bringing their heads, skins, or talons to the magistrate, prove he hath cleared the province from such pests.
[† ] Thus he will hardly be excusable, by a pretended right of hunting, who seizes a stag with bells about his neck, tho’ wandering, if his owner be known: Nor is he to be defended, who keeps the master of a bee-hive, who is pursuing his bees, out of his court, that he may take possession of them himself; tho’ that seemed not unjust to the Roman lawyers, §14. Inst. de rerum divisione. For tho’ a master have the right to exclude others from the use of his own, yet he who enters our house to recover his own, does not use ours, but reclaims his own. And how can it be more just to keep a person out of our court who is pursuing his bees, than to drive a neighbour away from our house who comes to reclaim his hens which had flown into our court? Wherefore that law of Plato was much more equal, de legibus, l. 8. “If any person follows his bees, and another by moving the air invites them into his ground, let him repair the damage.” [[Plato, The Laws of Plato, 843e.]]
[* ] But there hath always been a great diversity of opinions about this matter; and hence it is, that the laws of countries are so different about it. See the different judgments of Trebatius and other Roman lawyers on this head, l. 5. D. de adqu. rerum dom. The Salic law, tit. 35. §4. does not permit a wild beast that was so much as but raised by another’s dogs to be intercepted by any one. The Langobard law, l. 1. tit. 22. §4. & 6. adjudges to the seizer the shoulder with seven ribs, and the rest to the wounder. These, and other such like laws among the ancients are collected by Pufendorff of the law, &c. 4. 6. 10.
[† ] Pufendorff, of the law of nature, &c. 4. 6. 14. thus explains this fiction: “By a state of war, as all other peaceful rights are interrupted, so dominion thus far loses its effect with regard to the adverse party, as that we are no longer under obligation to abstain from their possessions, than the rules of humanity and mercy advise us. In war, therefore, the goods of one party, in respect of the other, are rendered, as it were, void of dominion. Not that men do by the right of war cease to be proprietors of what was before their own; but because their propriety is no bar against the enemy’s claim, who may seize and carry away all for his own use.” But when things are rendered void of dominion, none has a right to exclude others from the use of them (§231); now, an enemy always preserves his right of excluding an enemy from the use of his things; nor does he any injury to any one, while he fights for his own with all his might. Who then will call such things, things void of dominion? which if it be so, an enemy does not lose the things taken by his adverse party, because he has not the right of excluding an enemy, but for want of sufficient force to repel his enemy.
[* ] It was an ancient custom to demand in common what was found, and it was done by a formula called, in commune, or among the Greeks κοινὸς ‘Ερμῆς, or κοινὸντῷ ‘Ερμῇ, of which formula see Erasmus in adagiis [[Desiderius Erasmus (1469–1536), famous humanist scholar. Heineccius refers to Erasmus’s Proverbs, or Adages II. i. 85 (Erasmus, Adages, vol. 33 of Collected Works).: Many things are noted with relation to it by the learned upon Phaedrus Fab. 5. 6. v. 3. See likewise Plautus Rudent. 4. 3. v. 72. But since things in the possession of none fall to the most early occupant (§241), and none has a right to exclude another from the use of such things (§231); and he, in fine, who only seized a thing with his eyes, but does not take hold of it, cannot be said to occupy (§242), it is evident that such a one has no right to demand any share of what is found, unless the civil laws of a country or custom permits it.]]
[1 ] Pufendorf, Acht Bücher vom Natur- und Völkerrecht.
[2 ] Otto, Ad fl. Iustiniani PP. aug. Institutionum commentarius.
[* ] This is so true, that some nations thought the finder was to be preferred, as the Hebrews, Mat. xiii. 44. Selden de jure nat. & gent. See Hebr. vi. 4. the Syrians, the Greeks, and not a few among the Romans. (See Philostrat. vita Apoll. Tyan. 2. 39. de vita Sophist. 2. 2. Plautus Trinum. 1. 2. v. 141. l. 67. [[Philostratus, Philostratorum quae supersunt omnia; Plautus, Three Bob Day, lines 172–80, in vol. 5 of Plautus.
Dig. de rei vind. Where a part is granted to the finder, there seems to be no distinction between one hired to dig our ground, and one not hired. For tho’ hired workers acquire to us by their hired labour, yet that does not seem a just reason for a distinction, if one hires himself not to search for treasures, but to dig a pit, or for any other like work. See Corn. van Bynkersh. observ. 2. 4. Cornelius van Bynkershoek (1673–1743), Dutch jurist. Heineccius refers to Bynkershoek’s Observationum iuris Romani, which first appeared in 1710.]]
[3 ] Presumably a reference to Boxhorn’s Historiae Augustae scriptores sex.
[* ] Thus to nature we owe the breed of animals, increments by rivers, a new cast up island, a forsaken channel: To our own industry, a new form, any thing added to what belongs to us, mixed or interwoven with it, joined or fastened to it, by lead or iron, or any other way; writing upon our paper, painting upon our cloath or board, &c. And partly to nature, and partly to industry, the fruits of harvest, these being owing conjointly to the goodness of the soil, and the clemency and favourableness of the weather, and to our own skill and labour. And therefore the first sort are called natural increments, the second industrious acquirements, and the third mixed. For what others add under the title of fortuitous, is more properly referred to the occupancy of things belonging to none.
[† ] No reason can be imagined why an owner, who is well known to be such, should lose the property of any thing belonging to him while it subsists, if he hath neither abdicated his property, nor transferred it to another by any deed: And it would be cruel to take advantage of one’s misfortune or calamity to deprive him of his right. If then one continues proprietor or master of a thing, which is added by whatsoever chance to our goods, he hath still the right of excluding any other from the use of that thing (§231); and therefore the dominion of it cannot be acquired against his will.
[* ] Hence with regard to slaves, a division of children commonly takes place; so that the first belongs to the mother’s owner, and the next to the father’s, and thus the offspring is shared by turns between the two masters. Of this I have discoursed in my Element. jur. Germ. 1. 1. 30. [[Heineccius, Elementa juris Germanici tum veteris tum hodierni where I have quoted examples of it among the Wisigoths and others, &c. From Goldast. rerum Alam. Tom. 2. charta 2. Goldast and Senckenberg, Rerum Alamannicarum scriptores aliquot vetusti & Aventin. Annal. Boic. l. 7. 14, 23. p. 708. Annales ducum Boiariae (Annals of the Dukes of Bavaria) by Johannes Turmair, also known as Aventinus. See Turmair, Johannes Turmair’s genannt Aventinus Sämmtliche Werke.]]
[† ] There is therefore no reason why a new island should accede to the neighbouring fields upon each side, if it is formed in the middle, or to the one of them to which it is nearest; which however several lawyers have asserted, §22. Inst. de rer. div. l. 7. §3. l. 29. l. 30. §1. D. de adqu. rer. dom. For the particles of earth forming the island come from grounds in a way that it cannot be certainly determined from what possessors they were carried off, and it is more probable that they were washed from more remote than from nearer fields. Besides, the river itself sometimes sweeps along with it, particles washed from the bottom, which at last collecting, form an island, according to Seneca, nat. quaest. 4. 9. This however was the opinion of Cassius Longinus, which his followers afterwards defended as by league and compact. Aggen Urbic. de limit. agr. p. 57. [[Aggenus Urbicus, De limitibus agrorum libro duo. But the Proculiani, whose leader was Labeo, have exploded it in their way, Labeo apud Paullum, l. 65. §4. D. de adqu. dom. “Si id quod in publico innatum aut aedificatum est, publicum est: insula quoque, quae in flumine publico nata est, publica esse debet.” Marcus Antistius Labeo (jurist at the time of Augustus) in Justinian’s Digest (1.65, 4 D. de adqu. Dom.): “If that which is natural or built in public, is public, an island also, which is born in a public river, ought to be public.”]]
[* ] And upon this foundation is built the distinction of lawyers and measurers of ground between arcifinious grounds, which are not bounded by any other but their natural limits, and such as are encompassed with artificial bounds, and parcelled out by a certain measure, as by the number of acres, l. 16. D. de adqu. Dom. l. 1. §6. D. de flumin. of which difference between lands, see Isidor. orig. 11. 13. [[Isidore, Isidori Hispalensis episcopi Etymologiarum sive Originum. Auctores de limitib. p. 203. edit. Guil. Goesii. The “auctores de limitibus” (that is, authors on the question of boundaries) are presumably those in Goes and Rigault, Rei agrariae auctores legesque variae.
Jo. Fr. Gron. ad Grotium de jure belli & pacis, 2. 3. 16. 1. Grotius, De jure belli acpacis. For what lies between artificially limited grounds and a river, it is either public, or the propriety of some private person. But in neither of these cases, does any thing accede to limited ground.]]
[* ] It is otherwise, if the inundation be perpetual, so that it becomes now sea where Troy stood, according to the saying; for then the ground is as it were extinct, and can be of no utility to any one. But of a non-entity, or what can be of no advantage to any person, there can be no dominion, no propriety (§235). Whence it follows, that their case is extremely hard, who are still obliged to pay tributes or taxes for lands long ago swallowed up by an inundation, unless, perhaps, they may have deserved it by their negligence in restoring the dikes, tho’ even a penalty in that case seems unreasonable and cruel: For why ought things to be burdened with taxes, or imposts to be exacted, when the propriety, the usufruct, the possession or passage are lost? l. 23. de quibus modis ususfr. amit. l. 3. §17. l. 30. §3. D. de adqu. possess. l. 1. §9. D. de itin. actuque priv.
[* ] For whosoever intercepts any thing from another, he stands in need of for his sustenance or agreeable living, injures him (§190); but he who injures one is bound to satisfaction (§210), which, when what is done cannot be undone, consists in making a just estimation of the thing, and paying it (§212); wherefore, he who desires to intercept any thing belonging to another person, and to appropriate it to himself, is obliged to pay its just value. Whence this law appears to be very equitable, “That none ought to become richer at the expence or detriment of another.”
[* ] The ancient lawyers did not found in this matter upon any certain natural reason, and therefore divided into different opinions, as is observed by Jo. Barbeyrac upon Pufendorff, of the duties of a man and a citizen. The first who attempted to reduce this affair into order, and to distinguish things that had been confounded together, was Christi. Thomasius dissertat. singulari, de pretio adfectionis in res fungibiles non cadente, Hal. 1701, where he has by the same principles most accurately examined the doctrines of the Roman lawyers concerning accession by industry. [[Thomasius (praeses) and Hecht (respondens), Dissertatio inauguralis juridica de pretio affectionis in res fungibiles non cadente.]]
[† ] There is no solidity in the distinction by which Justinian proposed to clear this intricate question, §25. Inst. de rer. divis. whether the new form could be reduced without hurting the substance, or not? For there is no good reason why, in the former case, the owner of the materials, and in the latter the fashioner should be preferred, especially, seeing the matter without the fashion is frequently of very little value. (See Pufend. of the law of nature and nations, 4. 7. 10.) Yea sometimes the fashion, is of a hundred times more value than the materials. Now who will say in this case, that the form belongs to the owner of the substance, because the fashion may be destroyed, and the substance reduced to its first state? But since the value of the planks can be more easily paid than the value of the ship made of them, who therefore will adjudge the ship to the owner of the planks, because the ship can be taken down. If an old ship be repaired with another’s timber, Julian follows our principle in this case, l. 61. D. de rei vind. and yet without doubt the materials can also be reduced to their former state, even when a new ship is built with planks belonging to another, l. 26. pr. D. de adqu. rer. dom.
[* ] Besides, it would not seldom be an inconvenience to the owner of the materials, if he were obliged to retain them with the accession, and to pay the price of the thing adjoined, especially if it be what he cannot use on account of his condition, age, or other circumstances, e.g. if one should add to the vestment of a plebeian a laticlave, or much gold lace, the materials are in such a case, as to use, rendered truly worse to him, or quite useless. But whoever renders our materials worse or useless to us, is obliged to take the spoilt goods, and to repair our damage; and if there be any fraud or knavery in the case, he is also liable to punishment (§256).
[† ] The reason why the Decemviri forbid timber edifices to be pulled down was, that cities might not be molested with ruins, l. 6. D. ad exhib. l. 7. §10. de adqu. rerum dom. l. 1. D. de tigno juncto, and is merely civil, and has nothing in natural reason to support it. Hence many nations, where the houses were not built of stone but of timber, not only allowed but commanded by their laws buildings in this and like cases to be pulled down. See jus. prov. Sax. 2. 53. and what I have observed on this subject in my Elements juris. Germ. 2. 3. 66. To which I now add the Lombard Constitution, 1. 27. 1. [[Jus provinciale Saxonicum (Saxon provincial law): this refers to the Saxon Mirror, which had been codified by the Saxon jurist Eike von Repgow in the early thirteenth century; see Repgow, Saxon Mirror, pp. 108–9. The “Lombard constitution” presumably refers to Langobard feudal law, which was often used to supplement classical Roman law.]]
[* ] It is strange that the Roman Lawyers, some of whom agreed to this principle, in the case of painting, should not admit it in the case of writing. As if it were more tolerable that the writing of a learned man should become an accession to a trifle of paper, than that the painting of Appelles or Parrhasius should become an accession to a contemptible piece of board. [[Apelles (fl. 4th/3rd century bc) and Parrhasius (fl. 5th century bc) were Greek painters. Besides, when the Roman lawyers compare writing with building upon one’s ground, §23. Inst. de rerum divis. l. 9. D. de adqu. dom. may it not very reasonably be asked, why there should not be room for the same comparison with regard to painting? And what likeness can there be imagined between the ground upon which one builds, and the paper upon which one writes? The one we seldom or never can want without suffering very great loss: The other we do not value, provided we receive satisfaction for it, or as much paper of the same goodness. This is a poetical resemblance taken from the action of writing, upon which account the Latin writers used the phrase exarare literas for scribere. But such a similitude of things is not sufficient to found the same decision about them in law and equity.]]
[* ] For subsequent approbation is consent, tho’ it be less imputable than command and previous consent (§112): Wherefore, if by an accidental confusion of our metals, a matter of great value should be produced, like the Corinthian brass by the burning of Corinth; there can be no reason why we may not claim each a share of the common matter: for since it would have been common if it had been made by our consent (§256), and approbation is adjudged consent (§112), there is no reason why it should not become common by approbation, and every one have his proportionable share.
[† ] For which the lord of the soil may have just and proper reasons: As for instance, if the ground was ill-dressed or ill-sown, so that he has no ground to expect a good crop: Then the crop would be of little use to him, and the first axiom is in his favour (§256).
[* ] This simplicity is preferred by our ancestors to the subtleties of the Roman law, concerning the nourishment attracted by the roots of trees, which gradually changes their substance, l. 26. §2. D. de adqu. dom. For the nations of a German extraction considered the branches of trees more than their roots, as we have shewn in our Elem. of the German law, 2. 3. 69.