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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
The questions in this chapter, however intricate they may appear at first sight, or as they are commonly treated by the doctors of law, are in themselves very simple and easy. Nothing more is necessary than to state them clearly, or in the simplest terms, in order to discover on which side the least hurt lies. Our Author’s divisions and definitions are exceeding distinct: And all his determinations turn upon this simple principle he had in the preceeding chapters fully cleared, “That no injury ought to be done; and injuries that are done ought to be repaired.” He sets out in this chapter, as good order and method require, by inquiring into the nature and origine of dominion and property. And tho’ I think he hath handled this curious question, which hath been so sadly perplexed by many moralists, better than most others, yet something seems to me still wanting to compleat his way of reasoning about it. Our Locke, in his treatise on Government, book 2. c. 4.4 as Mr. Barbeyrac hath observed in his notes on Pufendorff of the law of nature and nations, b. 4. c. 4. hath treated this question with much more perspicuity and accuracy than either Grotius or Pufendorff. The book being in every one’s hands, I shall not so much as attempt to abridge what he says on the head. The substance of it is contained in this short sentence of Quintilian, Declam. 13. “Quod omnibus nascitur, industriae praemium est.” “What is common to all by nature, is the purchase, the reward of industry, and is justly appropriated by it.”5 Let us hear how our Harrington expresses himself upon this subject (the original of property) in his art of law-giving, chapter 1. at the beginning in his works, p. 387 “The heavens, says David, even the heaven of heavens are the Lords, but the earth has he given to the children of men: yet says God to the father of these children, in the sweat of thy face shalt thou eat thy bread, Dii laborantibus sua munera vendunt. This donation of the earth to man, comes to a kind of selling it for industry, a treasure which seems to purchase of God himself. From the different kinds and successes of this industry, whether in arms, or in other exercises of the mind or body, derives the natural equity of dominion or property; and from the legal establishment or distribution of this property (be it more or less approaching towards the natural equity of the same) proceeds all government.”6 Now, allow me to make some very important observations upon this principle, which, as simple as it appears, involves in it many truths of the last importance, in philosophy, morality and politics. 1. That man is made to purchase every thing by industry, and industry only, every good, internal or external, of the body or mind, is a fact too evident to be called into question. This hath been long ago observed. When Mr. Harrington says, “Nature or God sells all his gifts to industry,” he literally translates an ancient Greek proverb: Θεοὶ τα ᾀγαθὰ τοίς πονοίς πολοῦνται,7 (see Erasmi adagia) as did the Latins in their many proverbial sentences to the same purpose, “Labor omnia vincit”: “Omnia industriae cedunt,” &c. See Virg. Georg. 1. v. 121, &c. 2.8 But as ancient and evident as this observation is, yet none of the ancient philosophers ever had recourse to it in the celebrated question, “Unde bonis mala, &c.” i.e. about the promiscuous distribution of the goods of fortune (as they are commonly called) in this life; tho’ this fact contains a solid refutation of that objection against providence, and from it alone can a true answer be brought to it. Mr. Pope in his Essay on Man, ep. 4. v. 141, &c. (as I have taken notice in my Principles of Moral Philosophy, part 1. chap. 1. and chap. 9. and part 2. chap. 3.) is the first who hath given the true resolution of this seeming difficulty from this principle, that according to our constitution, and the frame of things, the distribution of goods internal or external, is not promiscuous; but every purchase is the reward of industry. If we own a blind fortuitous dispensation of goods, and much more, if we own a malignant dispensation of them, or a dispensation of them more in favour of vice than of virtue, we deny a providence, or assert bad administration. There is no possibility of reconciling bad government with wisdom and goodness; or irregularity and disorder with wisdom and good intelligent design, by any future reparation. But the alledgeance is false; for in fact, the universe is governed by excellent general laws, among which this is one, “That industry shall be the purchaser of goods, and shall be generally successful.” And that being the fact, the objection which supposes promiscuous, fortuitous, or bad government, is founded upon a falsity in fact. In fine, there is no way of proving providence, but by proving good government by good general laws; and where all is brought about according to good general laws, nothing is fortuitous, promiscuous or bad. And not to mention any of the other general laws in the government of the world, constituting the order according to which effects are brought about; and consequently the means for obtaining ends to intelligent active creatures; what better general law can we conceive with regard to intelligent active beings, than the general law of industry; or can we indeed conceive intelligent agency and dominion without such a law? Are not the two inseparable, or rather involved in one another? But where that law obtains, there is no dispensation or distribution properly speaking; for industry is the sole general purchaser, in consequence of means uniformly operative towards ends. But having elsewhere fully insisted upon this law of industry, in order to vindicate the ways of God to man; let me observe, 3. in the third place, Mr. Harrington is the first who hath taken notice, or at least fully cleared up the consequences of this general law of industry with respect to politics, that is, with respect to the natural procreation of government, and the natural source of changes in government. Every thing hangs beautifully and usefully together in nature. There must be manifold mutual dependencies among beings made for society, and for the exercise of benevolence, love and friendship; that is, there must be various superiorities and inferiorities; for all is giving and receiving. But dependence, which supposes in its notion superiority and inferiority, must either be dependence in respect of internal, or in respect of external goods; the former of which Mr. Harrington calls hanging on the lips, and the other hanging on the teeth. Now the law of industry obtaining amongst men placed in various circumstances (and all cannot be placed in the same) will naturally produce these dependencies. A greater share of wisdom and virtue will naturally procreate authority, and the dependence on the lips. [This perhaps is the meaning of that ancient saying of Democritus mentioned by Stobaeus, serm. 27.“φὺσει τὸ ἄρχειν ὀικήιον τω κρεισσονι,” “Authority falls naturally to the share of the better, more excellent or superior.”] And a greater share of external goods, or of property, naturally begets power, and the other dependence on the teeth. And hence it will and must always hold as a general law, That dominion will follow property, or that changes in property will beget certain proportional changes in government: and this consequently is the natural seed, principle or cause of procreation and vicissitude in government, as Mr. Harrington has demonstrated fully and accurately.9 I only mention these things here, because we shall have occasion to have recourse to them afterwards, when our Author comes to treat of government. The conclusion that more properly belongs to our present purpose is, 4. in the fourth place, It must necessarily have happened soon after the world was peopled that all was, must have been appropriated by possession and industry: and therefore, at present, our business is to determine how, things being divided and appropriated, the duties of mankind stand. But it is clear, 1. in the first place, that suppose the world just beginning to be peopled, or suppose a considerable number of men just cast ashore upon a desart country (setting aside all compacts and regulations previously agreed upon) every one will have a right to the purchase of his industry; to the fruits of his labour; to improve his mind, and to all the natural benefits and rewards of that culture; and to the fruits of his skill, ingenuity and labour, to get riches, with all the natural benefits and rewards of them; but yet every one will be obliged, in consequence of what hath been already said of the law of love and benevolence, to exercise his abilities, and to use his purchases in a benevolent way, or with tender regard to others. This must be the case with regard to our right and obligation, previous to all compacts, conventions or regulations. 2. And where lands are already appropriated, and civil government settled, this is a true principle still, that one has a right to all the purchases of his industry, with respect either to external or internal riches, (if I may so speak) consistent with the law of benevolence, or the law of not injuring any one, but of doing all the good to every one in our power; and hence it is, that every one in formed society hath a right to his purchases by the arts of manufacture and commerce, &c. Tho’ a state, to fix the balance of dominion or of government, may fix the balance of property in land, and likewise make regulations about money, (as in the Commonwealths of Israel, Lacedemon, Athens, Rome, Venice, &c. in different manners) in consequence of the natural connexion between the balance of property and the balance of dominion: Tho’ this may be done in forming or mending government by consent, yet even where an Agrarian law obtains, this principle must hold true and be untouched, that every one has a right to the purchases of his industry, in the sense above limited: For otherwise, there would be no encouragement to industry, nay, all must run into endless disorder and confusion. 3. And therefore universally, whether in a state of nature, or in constituted civil governments, this must be a just, a necessary principle, that industry gives a right to its purchases, and all the benefits and rewards attending them. 4. And therefore, fourthly, it can never be true, that a person may not, as far as is consistent with benevolence, endeavour to have both power and authority. If we consider what would be the consequences of denying this principle, that is, of setting any other bounds to the purchases of industry but what the law of benevolence sets, we will soon see that this must be universally true. And if we attend to our frame, and reason from it to final causes, as we do in other cases, it is plain, that there is in our constitution naturally, together with a principle of benevolence, and a sense of public good, a love of power (of principatus, as Cicero calls it in the beginning of his first book of offices) without which our benevolence could not produce magnanimity and greatness of mind, as that desire of power would, without benevolence and a sense of public good, produce a tyrannical, overbearing and arrogant temper. Some moralists do not seem to attend to this noble principle in our nature, the source of all the great virtues, while others ascribe too much to it (as Hobbes), and consider it as the only principle in our nature, without taking our benevolence and sense of public good, which are as natural to us, into the account. (See what I have said on this head in my Principles of MoralPhilosophy.)10 But both principles belong to our constitution; and therefore our virtue consists in benevolent desire of, and endeavour to have authority and power in order to do good. 5. It is in consequence of this principle, that it is lawful to have dependents or servants, and that it is lawful to endeavour to raise ourselves, or to exert ourselves to encrease our power and authority. The great, sweet, the natural reward of superiority in parts and of riches, and consequently the great spur to industry, is the dependence upon us it procreates and spreads. And why should this noble ambition acknowledge any other bounds but what benevolence sets to it: Any other limits but what the Author of nature intended should be set to it, or rather actually sets to it, by making the exercises of benevolence so agreeable to us, as that no other enjoyments are equal to them in the pleasure they afford, whether in immediate exercise, or upon after reflection; and in making mankind so dependent every one upon another, that without the aid and assistance of others, and consequently without doing what he can to gain the love and friendship of mankind, none can be happy, however superior in parts or in property he may be to all about him. Every man stands in need of man; in that sense all men are equal; all men are dependent one upon another; or every man is subjected to every man. This observation is so much the more necessary, that while some moral writers assert, that man has a right to all things and persons to which his power of subjecting them to his use can extend or be extended; others speak of our natural equality in such a manner as if nature had not designed any superiorities among mankind, and as if all desire of, or endeavours after power or authority were unlawful; which last must result in asserting, that all culture of the mind, and all industry are unlawful, because the natural consequence of the one is superiority in parts, and the natural effect of the other is superiority in property; while the other terminates in affirming there is no distinction between power and right, or between power rightly and power unreasonably applied, i.e. no distinction between moral good and ill, i.e. no distinction between reasonable and unreasonable; which difference must remain, while there is such a thing as public good or benevolence, or such a thing as reason, as hath been already fully proved. 6. If the preceeding principles be true, due attention to them will lead us through most of our Author’s succeeding questions about derivative acquisitions and succession. Because the effect of property, which makes it the great reward of industry, is a right to dispose of our own in our life, or at our death, which admits no limitations but what benevolence sets to it; in consequence of which right and duty, succession to him who dies without making a disposition of his estate, ought to take place in the way a wise man, directed by benevolence, must be presumed to have intended to dispose of his own at his death, i.e. according to the natural course in which benevo-lence ought to operate and exert itself, already taken notice of. For when the will of a person is not declared, his will ought to be inferred from his duty. We shall therefore for some time have but little occasion to explain or add to our Author.
Of derivative acquisitions of dominion or property made during the life of the first proprietor.
Transition to derivative acquisitions.Dominion being acquired, a change sometimes happens, so that one acquires either property or dominion in a thing, neither of which he before had; and such acquisitions we called above, (§240), derivative. Now, seeing the thing in which we acquire property was before that common: the thing in which we for the first time acquire dominion, was before that the property of some person: as often as we receive our own proper share of a common thing, there is division; as often as we acquire the whole thing in property, there is cession;* and as often as another’s property passes by his will into our dominion, there is, as we called it above (§240), tradition, or transferring.
By them is made alienation necessary, voluntary, pure, or conditional.In all these cases, what was ours ceases to be ours any longer in whole or in part, and passes into the dominion or property of another person; and this we call alienation, which, when it proceeds from a prior right in the acquirer, is termed necessary; when from a new right, with the consent of both parties, it is called voluntary.* But the effect of either is, that one person comes into the place of another, and therefore succeeds both to his right in a certain thing, and to all the burdens with which it is incumbered. Alienation is called pure, when no circumstance suspends or delays the transferrence of the dominion; and when the transferrence is suspended, it is called conditional alienation.
And that either for the present time, or for a time to come.Voluntary alienation cannot be understood or take place otherwise than by the consent of both parties: but there may be consent either for a present alienation, so that the dominion may be transferred from us to another in our own life, or for a future alienation, so that another shall obtain the possession of what is ours after our demise: and this consent to a future alienation, is either actual, or it is inferred from the design and intention of the person.† Now by the first of these is what is called testamentary succession; and by the latter is what is termed succession to one who dies intestate. We shall now treat of present alienation, and in the succeeding chapter we shall consider future alienation.
What division is, and why one may demand it.The transition from community to property is made by division (§266), which is an assignation to any of the associates of his competent part of the whole in positive community. Now seeing any associate or sharer can exclude all but his fellow associates or sharers from the use of the thing common to them (§231); the consequence is, that any of the associates may demand the use of the thing according to the share belonging to him, and therefore may demand a division; and the others, if they should oppose a division, are so much the less to be heard, that positive community doth very ill suit the present state of mankind (§238).*
How it may be done whether the subject be divisible or indivisible.A subject is either easily divisible into parts, or it is indivisible; either because in the nature of the thing, or by laws and customs, it cannot be divided into parts. If therefore an associate demand a division of a thing in its own nature divisible, nothing is more equal than to divide it into as many parts as there are associates, and to commit the matter to the decision of lot. But if the thing be indivisible, it is either to be left to one of the associates, who can pay, and bids most for it, or to whom age or chance gives a preference, who, a valuation being made, is to satisfy the rest; or it is to be sold to the best advantage, and the price is to be divided proportionably among the sharers; or they are to have the use of it alternately, each in his turn.*
When equality is to be observed in division of things perfectly common.Moreover, because with regard to a common thing all may have equal right, or some one may have more right than others (§231); it is evident that division is either equal or unequal. In the first case, all are called to equal shares, and in the second, to unequal shares. Now, since the natural equality of mankind obliges every one not to arrogate any prerogative to himself above any other without a just reason, in things belonging to many by perfect right (§177); it is manifest that division ought to be equal, and that none ought to claim any preference, unless his right to it can be clearly proved.*
Whether it ought likewise to be observed in the division of things imperfectly common.These rules belong to perfect community. But there is likewise an imperfect community, as often as none of the partners hath a perfect right to the thing (§231). Now, when by the bounty of another any thing becomes thus common to many persons, it is at his option to give equal shares, or to give more or less according to merit.† And in this case it would be most unjust for any one to complain that a person of less merit is put upon an equal footing with him (Mat. xx. 12, 15), or to take upon him to judge rashly of his own merit; or to think benefits conferred upon this or the other person, may be pled as precedents.
What is cession of a thing in common?When a thing in common to many is resigned by the rest to one of the sharers, this is called cession. Wherefore, since in this case one succeeds into the place of all the others, the consequence is, that he succeeds into all their rights to that thing, and also into all the inconveniencies and burdens attending it (§267). And hence the Roman lawyers justly inferred that the same exceptions have force against the person ceded to, which would have had force against the ceder, l. 5. c. de her. vel act. vend.
The obligation of the partners to make good.Since, whether the thing in common be divided, or whether it be ceded to one of the sharers, this seems to be the nature of the deed, that those who get the thing by division or by cession, acquire the right of excluding all others from the use of that thing; (§231) it is manifest that in both cases the associates oblige themselves, that he to whom the thing is transferred, shall not be hindered from taking possession of it; and therefore oblige themselves to warranty, and to repair all his loss, if it be evicted by another with right, and without the possessor’s fault; since they have their shares safe and entire, while the other hath got a thing with an encumbered or burdened title.*
What tradition or delivery is, and if necessary to the transference of dominion?We proceed now to tradition, by which an owner who has the right and will to alienate, transfers dominion to another, accepting it for a just cause. I say dominion. For tho’ the Roman law orders the thing itself and its possession to be transferred, and does scarcely allow any right in a thing to arise previously to delivery: l. 20. C. de pact. yet such subtlety cannot be of the law of nature,† as is justly observed by Grotius of the rights of war and peace, 2. 6. 1. 2. 2. 8. 25. and Pufendorff of the law of nature and nations, 4. 9. 6: and the Roman lawyers themselves acknowledge, “That nothing can be more agreeable to natural equity, than that the will of an owner willing to transfer his goods to another, should take place and be confirmed.” §40. Inst. de rer. divis. l. 9. D. de adqu. rer. dom. Whence we conclude, that the will of an owner concerning transferring his dominion to another, whether expressly declared, or deducible from certain signs, is sufficient to transfer his dominion to another without delivery.
How it is done.Since therefore the will of the owner to transfer his dominion to another, is equivalent to delivery, and is a valid transferrence of his dominion to another (§275), it follows, that it must be equal, whether one absent, by intervening letters or words, or present, by giving the thing from hand to hand, or by inducting him into it, whether by long or short hand, or by certain symbols, according to the usage of the province (§242), or in whatever way he delivers it; so that nothing hinders but that a right may be conveyed or transferred to another without delivery, or by a quasi-delivery.*
Who has a right thus to transfer dominion.But since he only who hath dominion can transfer it or alienate (§275), it is plain that tradition can have no effect, if it be made by one, who either by law, convention, or any other cause, hath no right to alienate; much less, if it be made by one who is not himself master of the thing; for none can convey a right to another which he himself has not.† But, on the other hand, it is the same in effect, whether the master himself transfers his right immediately by his own will, or by his order and approbation.
By transference dominion is not transferred for every cause.Because alienation ought to be made for a just cause (§275); but it is evident, from the nature of the thing, that by a just cause must be understood one sufficient for transferring dominion; therefore dominion cannot pass to another if a thing be delivered to one in loan, in trust, or letting; much less, if it be delivered to him on request and conditionally, or upon any terms revocable at the pleasure of the deliverer; yea, that no cause is sufficient, if he, to whom a thing is delivered, does not fulfil his bargain.*
Nor does one always deliver with that design.Besides, we said, in order to transfer, one must deliver with the design and intention of transferring dominion (§275). From which it is plain, that tradition cannot be made by infants, by madmen, by persons disordered in their senses, and other such persons, who are presumed not to know what is transacted: nor is it valid, if the owner gives a thing to one with the intention of lending, depositing, pawning it; or with any such like design; as likewise, that any one may reserve or except whatever right he pleases in transferring a thing; and that in this case, so much only is transferred as the alienator intended to transfer.
The origine of full, and of imperfect dominion.Whence it is easy to conceive the origine of imperfect or less full dominion. For since by that is understood nothing else but dominion, the effects of which are inequally shared between two persons; it is highly probable that its origine is owing to transferrence, with exception, or with reservation of a part of the dominion; which being done, there are two masters, one of whom acquires the right of excluding all others from reaping and using the fruits and profits of the thing, and of taking them to himself; the other has the right either of concurrence with respect to the disposal of it, or of exacting something, by which the acknowledgment of his dominion may be evidenced.*
The various species of it.Since the nature of the (dominium utile) or dominion with respect to the use, is such, that the superior owner reserves to himself the right of concurrence with regard to the disposal of the thing, or the right of exacting something in acknowledgment of his superior dominion (§280); the consequence is, that tho’ there may be various kinds of less full dominion, yet the whole matter in these cases depends on the agreement of the parties. However, if one stipulates with the possessor of the thing delivered to him for homage and services, and that the thing be not alienated without his consent; hence arise (feudum) the right of fief or fealty; if he stipulates that an annual tribute shall be paid in acknowledgment of his superiority; hence arises (jus emphyteuticum) the right of holding in fee. Finally, if he stipulates for a ground-rent, hence arises (jus superficiei) the right of ground-rent;* and these are the principal kinds of dominion with regard to use in any nations.
If not the thing itself, and the dominion of it, but a certain use only be conveyed, he who receives it, acquires a servitude upon a thing belonging to another; and if the use be restricted to the person and life of him who is to have the use, it is personal; and if it be annexed to the estate itself, the use of which is conveyed, it is real. Since therefore in all these cases just so much right is transfered as the transferrer willed to transfer (§279), it follows, that in these cases likewise the matter comes to be intirely an affair of an agreement between parties; and therefore, almost all the subtleties to be found in the doctors about services are of positive law.†
What right of pawn and mortgage, &c.If a thing is delivered by the owner to his creditor, so that the deliverer continues to have the dominion, but the creditor has the possession for his security, then the thing is said to be in pawn. If it be delivered in these terms, that the creditor shall likewise have the fruits of it by way of interest, it is called jus antichreticum. Finally, if the right of pawn be conveyed to a creditor without delivering the pawn, we call it hypotheca, mortgage. As therefore in the former cases the creditor has a right, the debt not paid, not only to retain the thing pawned, but also to dispose of it, and deduct from the price what is due to him; so, in the latter case, the creditor may prosecute his right of possession of what is pledged to him for his security, i.e. attach it; and then detain it until his debt be paid, or even dispose of it for his payment.*
How dominion passes to the accepter.To conclude; we said, that by transferring, dominion passes to him who accepts of the transferrence (§275). But we truly accept, when we testify by words or deeds our consent that a thing transferred should become ours, and we are presumed to accept, whenever, from the nature of the thing, it cannot but be judged that we would not refuse or despise the thing one would transfer to us. In like manner, a thing may be transferred by the will of the transferrer, either expresly declared, or presumable from certain signs (§275). The most certain sign is gathered from his end and intention who hath acquired a thing, and hath bestowed care in keeping and preserving it.*
Transition to succession by will, and to intestates.Since therefore every one has a right to transfer his goods to others, and that alienation may be made upon any conditions (§267); the consequence is, that it may be made upon this condition, that another may obtain, after the alienator’s death, the dominion and possession of a thing. Now, since this will may be truly declared, or can be certainly inferred from the intention of the acquirer; and since, in neither of these cases, the real and express acceptance of the other person to whom the transferrence is made, is necessary (§284); the former comes under the name of succession to a last-will or testament; and the latter is the genuine foundation of succession to a person who dies intestate.
Of derivative acquisitions by succession to last-will and to intestates.
How a testament is defined by the Roman lawyers.A Testament, in the notion of Civilians, is a solemn declaration of one’s will concerning the transition of his inheritance and all his rights to another after his demise. And therefore, while the testator is alive, no right passes to his heirs; nay, not so much as any certain hopes of which they may not be frustrated; but the testator, while he lives, may alter his intention, and tearing or destroying his6 former will, make a new disposition, or die without a will.*
Such a testament is not of the law of nature. First argument.But that such a testament is not known to the law of nature is evident. For tho’ right reason easily admits that solemnities should be added to so serious an action, which is obnoxious to so many frauds; yet it implies a contradiction, to suppose a person to will when he cannot will, and to desire his dominion to pass to another, then, when he himself has no longer any dominion. This is so absurd, that the Romans owned the contradiction could not be removed but by mere fictions.*
Another argument.Add to this, that no reason can be imagined why the survivers should hold the will of the defunct for a law, especially when it very little concerns one, whatever his condition be, after death, whether Dion or Thion enjoys his goods:† yea, the last judgments of dying persons often proceed rather from hatred and envy than from true benevolence; and in such cases, it seems rather to be the interest of the deceased that his will should not take effect, than that his survivers should religiously fulfil it. See our dissertation de testam. jure Germ. arct. limit. circumscript. §5.
What with regard to the testaments in other nations.Since therefore the law of nature scarcely approves of testament-making, as described by the Roman laws, i.e. as Ulpian elegantly defines it, tit. 20. “A declaration of our mind solemnly made to this end, that it may take place validly after our decease,” (§286); the consequence is, 1. That it no more approves like customs of other nations; and therefore, 2. That testaments of the same kind among Greeks or Barbarians, are no more of the law of nature and nations than those* of the Romans; and for the same reason, 3. No nation hath accommodated their manners in this respect more to the simplicity of the law of nature than the Germans where there was no testament; (heredes successoresque sui cuique liberi, & nullum testamentum; Tacitus de mor. Germ. c. 20).1
What with regard to Grotius’s definition.This being the case, Grotius gave a new definition of a testament, (of the rights of war and peace, 2. 6. § ult.) he defines it thus; “Alienation to take place at the event of death, before that revocable, with retention of the right of use and possession.” But as this definition does not quadrate with what we commonly call testament, and is faulty in several respects; (Ziegler. ad Grotium, 2. 6. Pufend. de jure nat. & gent. 4. 10. 2. and the illustrious Jo. Gottfr. de Coccei. ibid. §4. & seq.) so it does not follow that testament-making is of the law of nature, because that law does not disallow of alienation at the event of death, revocable before that event, with retention of the right of possessing and using.
What disposition with regard to succession after death is lawful by the law of nature.But tho’ the arguments above-mentioned plainly shew, that testament-making, according to the Roman law, is not of the law of nature, yet they are by no means repugnant to all dispositions with respect to future succession (§268).* Let us therefore enquire what these are which are approved by the law of nature. And I answer, they are nothing else but pacts, by which dying persons transfer a possession itself, with the dominion to others; or men in good health give others the right of succeeding to them at the event of their death. For since we can dispose of our own, not only for the present, but for the future (§268), we may certainly make a pact for transferring to another what belongs to us, either to take place at present, or at our death.*
What successory pacts are valid.Since every one therefore hath a right to transfer his goods for the present or for the future, at the event of his death (§291); the consequence is, that there is no reason why pacts about succession may not be pronounced agreeable to the law of nature.† But, on the contrary, they ought to be deemed valid by the best right, whether they be reciprocal, or obligatory on one side only; and whether they be acquisitive, preservative, or remunerative; for as to dispositive pacts, that they bind the contracters, but not him whose heritage is disposed of, is evident, because he hath made no pact about his own.
How one may dispose of his inheritance.Besides, since such is the nature of all transfers of property, that any one may except or secure to himself any part of, or any right in his own he pleases, in which case, so much only is transmitted as the owner willed to transmit (§279); it is evident, that it is at the option of the owner to transfer the possession to his heir by pact at once; or the right only of succeeding to his estate after his death; to transfer either revocably or irrevocably;* with or without any condition; in whole or in part; so that there is no natural opposition between testate and intestate, as Pomponius seems to have imagined, l. 7. D. de reg. juris.
Whether an heir be obliged to accept of the heritage destined for him.But because a thing may be accepted, not only actually but presumptively, when from the nature of the thing it cannot but be concluded, that one will not refuse what another designs to transfer to him (§284); it must therefore be the same in effect by the law of nature, whether one be present and declares his consent, or being absent, so that he cannot accept verbally, there is no ground to apprehend that the liberality of another will be disagreeable to him;† especially, if the inheritance designed for him be very profitable. There is however this difference between these cases, that in the former the heir acquires a valid and irrevocable right, unless the owner hath expresly reserved to himself the faculty of revoking; whereas in the latter, there is liberty to revoke till acceptation be made: And whereas an heir having declared his consent, cannot renounce the heritage he hath accepted, he whose consent is presumed, may enter upon or refuse the heritage transferred to him, as he thinks proper.
The foundation of succession to one who dies intestate.But if an owner can really and truly will that his goods may be transferred to one after his death (§291), there is no reason why as much should not be attributed to one’s will, presumed from his end and intention, as to one’s will expressed by words or signs (§268). Now we have already shewn, that it is not the end and intention of those who acquire any thing, and take care of their acquisitions, that they should after their death be held for things relinquished to the first occupant; but that they should be advantageous to those whom they love and wish well to (§284). But hence we may justly conclude the succession to belong to them, preferably to all others, for whose sake chiefly the defunct acquired and took care of his acquisitions with so much concern and sollicitude.*
Axioms relating to it.But because this is not a duty of perfect obligation, but rather a species of humanity, which pays regard to persons and ties or connexions, and therefore prefers relatives to strangers (§220); hence we have reason to infer, that relatives exclude all strangers from succession, and that among relatives those of the nearer degrees are preferable; and that many of the same line and degree have equal rights to succession.*
The succession of children.Since of relatives the more remote are excluded by the nearer (§296), but none can be reckoned nearer to one than children are to their parents; therefore they are justly preferred in succession to their parents before all others, and that without distinction of sex or age:† For as to the preference given in some countries to males, and to the first-born, that, because it is making an unequal division among equals, proceeds from civil law, pact, or some other disposition; and so it is not of the law of nature (§271).
Legitimate children only succeed to the father, but to the mother even illegitimate children succeed.But if in succession to parents children be justly preferable to all others (§297), and this may be concluded from the presumed will of parents, (§295); the consequence is, that it ought to be certainly known who is the child. But because that cannot be ascertained except in the case of lawful marriage; hence we infer, that legitimate children only, even posthumous ones, and not illegitimate ones, or bastards, succeed to a father; but that all children succeed promiscuously to a mother; tho’ none will deny that a father may take care of his illegitimate children in his disposition.
How grandchildren succeed.Besides, it may be inferred from the same will of parents (§295), that the succession of descendents extends not only to children of the nearest, but of the more remote degrees; and therefore that grandsons and grandaughters are admitted to inherit, as well as sons and daughters; and that not only if there be no children of the first degree, but if they concur with them; so that the right of representation, by which children of the remoter degrees succeed into the room of their parents, and receive their portion, is most agreeable to the law of nature.*
What if none other exist?From the same rule, that the nearest of many relatives are to be preferred (§296), it follows, that grandchildren are to be preferred both to the parents of the grandfather, tho’ nearer in degree, and to his brothers and sisters, tho’ equal in degree. For one is to be judged nearer, not only in respect of degree, but chiefly in regard to line (§296).* But whether natural equity in this case calls grandchildren to succession by heads, or by descent, may be easily understood from what hath been said in the preceding scholium.
Succession in the ascendent line.Since, failing the line of descendents the nearest is the ascendent (§296), hence it is plain, that the mournful succession to their children is due to the progenitors,† and in such a manner, that the nearer in degree excludes the more remote, and those of the same degree come in equally. Nor does the law of nature in this case suggest any reason why the inheritance of children should be divided among many of the same degree according to lines; so that these, and like cases, must rather be left to the determination of civil laws.
Succession of collaterals.It follows from the same principle (§296), that failing both the ascending and descending line, the succession to intestates devolves on the collateral kindred, according to the degree of nearness in which they stand; nor is there any reason why the right of representation should take place among collaterals;* much less is there any reason why duplicity of ties, or the origine of the goods should make any difference. In this case, many of the same degree equally divide the inheritance: nor is there any difference how far they may be removed from the defunct, seeing it was in his power to appoint another heir, if he had no mind they should be made happy by his estate.
Much is here left to civil legislators.So far does right reason acknowledge the right of succession in kindred. But because it is obvious to every one, that all these things belong rather to the permissive than to the preceptive part of the law of nature, much must here be left to civil legislature, to fix and determine by their laws, as the end and interest of their states may require (§18). And hence it is easy to give a good reason why legislators have thought the surviving wife should be taken care of; and why there is no branch of law almost in which civil laws and statutes so much differ, as with regard to succession to intestates.
Whether any heirs be necessary?Seeing this whole right of succession proceeds from presumed will (§285); but he, whose consent is presumed, may enter upon an inheritance, or renounce it as he pleases (§294), it must be evident to every one, that necessary heirs are unknown to the law of nature.* And therefore that no person is heir to an intestate by unalterable right, but becomes such by his consent, declared by words or deeds.
How heirs succeed to the rights and obligations of the deceased.Now, when one determines to succeed to another, nothing is more equal, than that he should be adjudged to succeed to all his rights and burdens (§267); whence it follows, that an heir, whether by the real disposition of the deceased, or by his presumed will, acquires all his rights, which are not extinguished by his death; and that he has no reason to complain, if he be bound to satisfy all his obligations, as far as the inheritance is sufficient.*
Concerning the rights and duties which arise from property or dominion.
A three-fold effect of dominion.Dominion is the right of excluding all others from the use of something (§231). But when we exclude others from the use of a thing, we pretend to have the sole right of using it. Hence the first effect of dominion is the free disposal of a thing; i.e. the right or faculty of granting any one the use of it; nay, of abusing it, and of alienating it at his pleasure. Again, from what we can justly exclude others, that we retain to ourselves with that intention, and therefore possession is amongst the effects of dominion. Finally, we also exclude others from the use of a thing, when, being in another’s possession, we reclaim it. But to reclaim a thing in another’s possession, being to endeavour to recover it, it follows, that one of the noblest effects of dominion is the right of recovering our own from whomsoever possessing it.*
Hence the owner has the right to use the profits.Since therefore the owner has a right to apply his own to any use whatsoever (§306), the consequence is, that he has a right to enjoy all the profits arising from the thing itself, and from its accessions and increments, as far as these can be acquired by the proprietor (§250); and therefore to reap all the fruits, and either to consume or share them with others, or to transfer them to others upon whatsoever account. Nay, because the yearly fruits and profits of things may be increased by art and careful management, nothing hinders a master from altering the thing, and so rendering it more profitable, provided he do not by so doing deprive another of his right.*
As likewise of corrupting or spoiling it.Since he hath likewise the right of abusing (§256), i.e. of consuming, or of destroying the thing and its fruits, Donat. ad Terent. Andr. prolog. v. 5.1 the consequence is, that the master may destroy the thing which is his own, provided he do it not with that intention that another may thereby receive detriment.† For tho’ such a spoiling of our own goods, which may be beneficial to others, be repugnant to the love of humanity (§217); yet he does not violate expletive justice, who, in consequence of his having dominion, abuses his own, and without any necessity urging him so to do, corrupts it.
As likewise of alienating them.Because the free power or right of a master to dispose of his own comprehends likewise the right of alienation (§306), it may easily be understood, that an owner can abdicate his dominion, and transfer it to another, either now, or for a time to come, and grant any other advantage by it, or right in it, to any person; and therefore give it in use, usufruct, mortgage, pledge, as he will, provided no law, no pact, no other more valid disposition stand in his way.
Since possession also is one of the effects of dominion (§306), it is plain that the owner can take possession of what belongs to him, and defend his possession against every one, even by force; and that it makes no difference whether one possesses by himself or by another; yea, that possession once acquired, may be retained by an absent person, and by will merely, while another hath not seized it.*
The right also of recovering it.Finally, the right of recovering a thing being among the effects of dominion (§306), it cannot but be that we may use our right against any possessor of what is ours; nor does it make any difference as to the restitution, whether one detain what is ours from us honestly or fraudulently; nor whether he be known to us or a stranger; because we do not reclaim the thing on account of any deed of his; but because we have a right to it. Besides, since to reclaim and recover a thing is not the same as to redeem it; it is manifest, that when an owner recovers his own, he is not bound to restore the price; tho’ equity doth not permit that one should be inriched at another’s expence (§257), or that he should refuse the necessary and useful expences laid out upon a thing by the possessor.*
How far he may recover the accessions and fruits.Since the owner can claim to himself all the accessions and fruits of his own goods (§307), it may be enquired, whether an honest possessor be obliged to restore to the owner reclaiming his own, all the accessions, and all the fruits, nay, all the gain he hath received from another’s goods? We conceive thus of the matter in a few words. He who honestly, and with a just title, possesses a thing, as long as the true owner is not known, has the right of excluding all persons from the use of what he possesses. But he who has this right is in the room of the owner (§231), and therefore enjoys all the same rights as the owner; yet, because he is not the true master who possesses a thing honestly, there is no reason why he should desire to be inriched to the loss of the true owner; as there is none, on the other hand, why the master should claim to himself the fruits not existing, which were not owing to his care and industry.†
The accessions and the fruits belong to the master.Because neither ought to be inriched at the other’s loss (§312), the consequence is, that even the accessions ought to be restored to the master reclaiming his own thing, and therefore he hath a right to demand the existing and hanging fruits,* the expences laid out upon them being deducted; because the master would be inriched to the detriment of the honest possessor, if he should take to himself the fruits upon which he had bestowed no care.
The fruits gathered and consumed to the possessor.But since a natural accession to a thing, the owner of which is not known, goes to the first occupant as a thing belonging to no body, the same is to be said of the civil fruits (§212); consequently, the fruits gathered ought to be left to an honest possessor, who bestowed his labour and care about them, unless he be made richer by them (§212).†
Whether an honest possessor be obliged to pay the value of a thing consumed, perished, or alienated.From the same rules, that an honest possessor is in the room of the owner, but yet cannot inrich himself at the detriment of another (§312); we infer, that he is no more obliged to make restitution to the owner, if he infraudulently consumed the thing, than if it had perished in his possession by chance; but that he is obliged, if he sell the thing he acquired without paying any price, or a small price, for a greater price, because he would be richer at another’s cost, if he kept the profit to himself. On the other hand, this obligation ceases, if the owner hath already received the value of his thing from another; partly because in this case an honest possessor is indeed made richer, but not at the cost of the owner; and partly because the owner has a right not to sue for gain, but only for loss.
What a fraudulent possessor is obliged to restore.Because all this belongs to honest possessors only; and, on the other hand, because fraudulent possessors are neither in the room of the owner, nor have they the right of use, on this score, that the owner is not known to them; and therefore none of these reasons, why one may enjoy any advantage by a thing, or its fruits, takes place; hence it is plain, that they are strictly bound not only to restore what is existing, but to refund the value of things consumed or alienated; and much more, of all the fruits they have, or might have reaped from them, and likewise to run all risks.*
The effects of dominion are sometimes restricted by civil laws.Now these are the rights which arise plainly from dominion; but since it belongs to civil law to adjust indifferent actions to the interest of each people or state (§18); and it is frequently the interest of a state, that no member should make a bad use of his goods (Instit. §2. de his qui sui vel alieni juris sunt,) it is no wonder that dominion is sometimes confined within narrower limits by governors of states, and that sometimes the liberty of disposal, sometimes the right of taking possession, and sometimes the right of recovering, is either wholly taken away from owners, or not allowed to them but under certain restrictions.*
Sometimes by the pacts and dispositions of the first owners.And because an owner has the liberty of disposing of his goods in his life, or in the prospect of death (§268), and then just as much is transferred to another, as he who alienates willed to transfer, (§279), it is plain the effects of dominion may be restricted by the pact and disposition of the former owner,†† and in this case the possessor can arrogate no more to himself than he received from the former owner, unless he in whose favour the restriction was made, voluntarily quit his right, cease to exist, or lose his right by a just cause.
A proprietor ought not to be hurt by any one in the use of his own.Hitherto we have only treated of rights arising from dominion or property. Now since right and obligation are correlates, and therefore a right being constituted an obligation is constituted (§7); the consequence is, that as many rights as dominion gives to an owner, just so many obligations does it lay others under with regard to the owner. Because therefore an owner hath the liberty of disposing (§306), they injure him who hinder him in disposing or enjoying the fruits of his own:* They also do him damage who corrupt or spoil the fruits and accessions of his property. And in general, since he who intercepts or corrupts any thing that tends to the perfection or happiness of another certainly wrongs him (§82), but none ought to be wronged (§178); hence we may justly conclude, that none ought to have his free disposition of his own disturbed or hindered; that none ought to have his goods damaged; and therefore, if any thing of that kind be done, the author of the injury is bound to make reparation, and is moreover liable to punishment.
Nor directly nor indirectly intercept or hinder his possession.Seeing possession belongs to the rights of property (§306), the consequence is, that it is our duty to suffer every one to possess his own quietly and unmolested, and not to deprive any one of his possession against his will directly or indirectly. And that if any one can be proved to have done any such thing, he is bound as an injurious person, to repair all the damage he has done, and is moreover liable to condign punishment.
It is done directly by theft, rapine and violent ejection.One carries off another’s possession directly, either by open force, or by taking it away clandestinely. The latter is called theft. The former, if the thing be moveable, is called rapine; and if it be immoveable it is called force, or violent ejection. Theft is therefore taking away another’s goods in a clandestine manner, without the knowledge and against the will of the owner, to make profit of them.*Rapine or robbery is bearing off a moveable thing by violence, against the owner’s will, to make profit of it: And force is ejecting one violently out of his possession of an immoveable thing.
Indirectly by defrauding.One is said to take away another’s possession indirectly, who by fraudulent words or deeds is the cause of his losing it; and this we call defraudation. Now since one is likewise hurt in this manner, but none ought to do to another what he would not have done to himself (§177); it is self-evident, that they are no less guilty than thiefs and robbers, who, by insidious words, cheat one out of his goods;* or by moving boundaries, using false weights and measures, and other such knavish practices, adventure to take off any thing from one’s estate.
What is another’s ought to be restored to him.The last right which belongs to the lord of a thing, viz. the right of recovering it, must found an obligation to restore what belongs to another to its owner. But hence we conclude, that every one, into whose hands any thing belonging to another comes without his fault, is obliged to take care that it be restored to its owner;* and therefore, that it ought not to be hid or concealed, but that public notice ought to be given of it, that the owner may have it again, upon making his right to it appear, Deut. xxii. 1. l. 43. §4. D. de furt. and that the possessor ought to be much more ready to restore it, if the author claim it, or publickly advertise his having lost it. But in both cases equity requires partly that the restitution should not be made at the expence of an honest possessor, and partly that he may not be made richer at another’s cost (§312).
What if the true owner do not appear.But if the true owner do not appear to claim a thing, it is understood to be no body’s, and therefore it justly falls to the honest possessor* (§241). And tho’ those who have assumed to themselves the direction of consciences, commonly exhort to give things to the poor when the owner of them does not appear; yet he cannot be called unjust, who, making use of his right, takes to himself a thing morally free from dominion. See Nic. Burgund. ad consu. Flandr. l. 2. n. 1.2
[4 ] John Locke (1632–1704), Two Treatises of Government, ed. by P. Laslett, 265–428.
[5 ] Quintilian, The Major Declamations, 13.8, pp. 169–70.
[6 ] Harrington, Political Works, p. 604.
[7 ] “Θεοὶ τα ᾀγαθὰ τοίς πονοίς πολοῦνται”: “The gods sell their goods for hard work” (see note 3, p. 571, of Turnbull’s “Discourse”).
[8 ] “Labor omnia vincit”: “Toil conquered the world”; see Virgil, Georgics 1, line 145, in vol. 1 of Virgil. “Omnia industriae cedunt”: “Everything yields to industry”; this is from a different, unidentified source.
[9 ] Harrington’s argument that “a greater share of external goods, or of property, naturally begets power” was a response to Thomas Hobbes. Harrington was interested in solving the same problem as Hobbes, the threat of anarchy resulting from constitutional collapse. However, Harrington believed that the fault in Hobbes’s argument was exposed by the dissolution of the Rump Parliament in 1653, the Rump being an example of a Hobbesian sovereign, whose rule was based on conquest. According to Harrington, Hobbes had not taken into account that the sovereign’s power depended on the military, so that the question of actual control over the army was critical to the sovereign’s ability to maintain himself in power. The Rump Parliament did not control the army and therefore could be dissolved by it. The answer to control of the army lay in men’s dependence on riches, especially land. The more land a person owned, the greater his empire. Political power thus followed landownership (see Fukuda, Sovereignty and the Sword).
[10 ] See Turnbull, Principles of Moral and Christian Philosophy, especially vol. 1, pt. 1, chap. vi, p. 208.
[* ] The term cession, is sometimes taken in a larger acceptation, so as to signify all transferring of rights or actions from one to another. But since in that sense it may be comprehended under tradition, we use it here in a more limited signification, and mean by it, the transferrence of right and dominion common to many, to one of the associates made by the consent of the rest. Thus, e.g. if co-heirs transfer their whole title of inheritance to one of the co-heirs, they are said to have ceded their title or right to him.
[* ] Thus the alienation of a thing common to many, which is made when one of the associates demands a division, is necessary, because he who insists upon a division has already a right in the thing. In like manner, the alienation of a thing pledged to one is necessary, because it is done by virtue of the right the creditor had already acquired in that thing. On the other hand, the alienation of houses, which, one who is to change his habitation, sells, is voluntary, no person having a right in them. Thus is the division in the Roman law to be explained, l. 1. D. de fund. dot. l. 2. §1. D. de rebus eorum qui sub tut. l. 13. l. 14. D. fam. ercisc. and elsewhere frequently.
[† ] We therefore refer to future alienation, that possession of our goods which devolves upon a person after our death. If this be done by ourselves truly willing it, such a will is called a testament, and succession by virtue of such a will is called testamentary succession. But if it be inferred from the design and intention of the defunct, that he willed his inheritance to pass to certain persons, preferably to all others, this is succession to an intestate. Now, against both these ways of succession it may be objected, that no person can will any thing at a time when he cannot will at all; and that alienation cannot be made in this manner by a person while he lives, because he does not transfer neither right nor dominion to heirs while he lives; nor by a dead person, because, what he himself does not possess, he cannot transfer. And for these reasons, many very learned men deny that wills are of the law of nature, as Merill. obs. 6. 25. [[Mérille, Observationum libri VIII. Thomas. not. ad tit. inst. de test. ord. p. 173. Thomasius, Notae ad singulos institutionum et pandectarum titulos varias juris Romani antiquitates imprimis usum eorum hodiernum in foris Germaniae ostendentes. Gothofr. de Coccei. diss. de testam. princ. part. 1. §22. & seq. H. von Cocceji (praeses) and J. G. Cocceji (respondens), Disputatio juridica inauguralis de testamentis principum. If these arguments conclude against the foundation of wills made by the dying person’s real declaration of his will, i.e. testaments, in the law of nature, they conclude more strongly against succession to intestates; and therefore all this doctrine we have now been inculcating concerning future alienation is a chimera. But as we easily allow that these arguments prove wills, as defined in the Roman law, not to proceed from the law of nature (see my dissertation de testam. jure Germ. arct. limitibus circumscripta, §3.) Heineccius (praeses) and Gunther (respondens), De testamentifactione iure Germanico arctis limitibus passim circumscripta so we think they do not conclude against all sorts of future alienation and succession. And what the law of nature establishes concerning them, shall be enquired in the following chapter.]]
[* ] For since such a communion can only subsist among men endowed with great virtue, and it must become inconvenient in proportion as justice and benevolence wax cold and languid (§238), how can it hold long in our times? Which of two associates does not envy the other? Who is so careful about a common thing as his own? How apt is one to hinder another when he would medle with a common thing? Who does not endeavour to intercept a part of his associate’s profits? Hence a thousand animosities and contentions, as Aristotle has demonstrated, in opposition to the Platonic communion, Polit. 2. 2. [[Aristotle, Politics, bk. 2, chap. 2. So that the Romans had reason to pronounce partnership and communion the mother of discord, and to give power to any associate to demand a division, l. 77. §2. D. de legat. 2.]]
[* ] Thus we know the land of Palestine was divided among the Hebrews by lot, it having been separated in parts according to the number of their tribes. On the other hand, it often happens among co-heirs, that one of them, either with the consent of the rest, or by the decision of lot, buys at a certain price the whole indivisible inheritance, and gives every one of the rest his share of the price. It likewise sometimes happens, that none of the co-heirs being rich enough to be able to satisfy the rest, the inheritance is sold to a stranger upon the best terms, and the co-heirs divide the price. Finally, Diether, in contin. thesauri Besold. voce Mutschirung, p. 417. [[Dietherr, Orbis novus literatorum praeprimis jurisconsultorum detectus, sive continuatio thesauri practici Besoldiani, i.e., a continuation of Christoph Besold, Thesaurus practicus. Wehner observ. pract. ibidem, p. 370 probably Wehner, Practicarum iuris observationum selectarum liber singularis, have observed, that the alternate use of a common thing hath sometimes been agreed to by illustrious brothers, which is in some places called Die Mutschirung. We have an instance of it in the family of Saxony in Muller. in Saechs. annal. p. 203. Müller, Des chur- und fürstlichen Hauses Sachsen . . . Annales.]]
[* ] Such a pre-eminence may be due to one by law, by compact, and by the last-will of the former possessor, but not on account of greater strength or power, which Hobbes however seems to admit of, as giving a just prerogative above others in division, (de cive, c. 3. 15). For if such a reason be allowed to be just, the division of the lion in the fable is most fair and equal, Phaed. fab. 1. 5. who being to divide the prey with his fellow hunters, reasoned in this manner; “I take the first share as called lion; the second as being stronger you will give me; the third shall follow me because I am superior to you all, and woe be to him who dares to touch the fourth. Thus did his injustice carry off the whole booty.” Whoever can call this a fair and just division, and he only, will grant what Hobbes asserts concerning a natural lot (sortem naturalem) as he calls superior power.
[† ] And this is that distributive (διανεμητική) justice which ought to attend all those virtues which pursue the interest of others; as liberality, compassion, and rectoreal prudence, (the prudence of magistrates in conferring dignities, &c.) Grotius of the rights of war and peace, 1. 18. who justly remarks, that this justice does not always observe that comparative proportion, called geometrical proportion; and that therefore Aristotle’s doctrine on this head, is one of those things that often not always takes place, Grotius ibidem, n. 2. Nor is this opinion of Grotius overturned by Pufendorff of the law, &c. 1. 7. 9. because he speaks of the distribution of things owing to many of good desert by perfect right, as by promise or pacts. Then what Arrian says is absolutely true, ep. 3. 17. “Such is the law of nature, that he who excels another is in a better condition in respect of what he excels in, than one who is worse or inferior.” [[Epictetus, The Discourses as Reported by Arrian, vol. 2, “Discourses,” bk. 3, chap. 17. But in matters proceeding from mere good-will, this law of nature can hardly be pled; nor could these veterans justly complain of the emperor Hadrian, whom he ordered to rub one another in the bath, tho’ some days before he had made a present of servants and money to one of their companions, whom he saw rubbing himself against the marble, Spartian Had. c. 17. because benefits are not to be wrested into examples. See Boxhorn, Historiae Augustae.]]
[* ] Thus the doctrine of eviction, which hath found place likewise in tradition or transferring, flows from natural equity, tho’ many things be added to it by the civil law for clearing it, with respect to the form and effect of it, e.g. as when it requires that one should transfer to another in his own name; that the possessor should inform the transferrer of the suit in time; that the thing be evicted for a cause preceeding the contract; and not by violence, but by right, &c. For every one may discern at first sight, that all these conditions proceed from natural equity.
[† ] Nor did the Romans themselves anciently require that in every case. Delivery was only necessary with respect to things (nec mancipi) of which one had not the full possession, as of provincial farms, Simplic. inter rei agrar. script. p. 76. [[Simplicius, in Goes and Rigault (eds.), Rei agrariae auctores legesque variae. Things (mancipi) of which one had the property and full possession, were alienated (per aes & librain), so that the conveyance and title being made, the dominion was immediately acquired. Varro de lingua lat. 4. Varro, On the Latin Language (De lingua Latina). Therefore, from the time that Justinian took away the distinction between res mancipi and nec mancipi, and the dominium Quiritarum and bonitarium. l. un. C. de nudo jure Quirit. toll. & l. un. C. de usucap. transform, this law again prevailed, that dominion should be transferred without delivery or putting in possession.]]
[* ] That symbolical delivery was not unknown to the Romans, appears from l. 1. § pen. D. de adqu. poss. l. 9. §6. D. de adqu. dom. l. 74. D. de contr. empt. And the nations of German origine have been more acute in this matter: For they, in delivering conveyances and investitures, made use of almost any thing, a stalk of a tree, a rod, a turf, a branch, a straw of corn, a shrub, a glove, and other such things. See my Elem. juris Germ. 2. 3. 74. & seq. to which belongs the Scotatio Danica, c. 2. 10. de consuet. of which Strauchius Amoenit. jur. can. ecl. 5. [[Strauchius, Amoenitatum juris canonici semestria duo and also Gundlingliana part. 7. diss. 4. Nicolaus Hieronimus Gundling (1671–1729), most important follower of Thomasius and from 1705 professor of philosophy at the University of Halle. Heineccius refers to Gundling’s essays Gundlingiana.]]
[† ] Yet such a tradition, if made to one without his knowledge that it is so, constitutes an honest possessor till the true owner claims his own. Grotius of the rights of war and peace, 2. 10. and Pufendorff of the law of nature and nations, 4. 13. 6. & seq. endeavour to shew what such a possessor is obliged to do in point of restitution, what profits he may retain, and what he ought to restore, by a multitude of rules. We shall treat of this matter afterwards in its own place expresly (§312), and shall there shew, that the whole affair is reducible into two rules, 1. An honest possessor, during the time that the true owner doth not appear, is in his place, and therefore has the same rights that the owner would have, were he in possession. 2. When the true owner appears, he, if the thing subsists, is obliged to restore it with its existing profits; and if the thing does not subsist, he is only obliged to make restitution, so far as he hath been made richer by enjoying it.
[* ] For when alienation is made to a person upon condition that he shall do something, it is conditional. But because the condition suspends the transferrence of dominion, the consequence is, that if the other does not perform what he promised, the dominion is not transferred, and the tradition becomes of no effect. Hence the Romans pronounced things bought and delivered not to be acquired to the buyer till the price was paid, or other satisfaction was made to the seller, §41. Inst. de rerum divis. Hence Varro says, de re rustica, 2. 2. “A herd sold does not change its master till the money be paid.” [[Varro, On Farming, 2.2.6. So Quintilian, Declam. 336. “By what right can you claim the thing which you have not paid the price of?” Quintilian, Lesser Declamations, vol. 2, p. 199. So Tertullian de poenitentia. “It is unreasonable to lay your hands on the goods, and not to pay the price.” Tertullian (ca. 160–ca. 220), probably the most important Christian theologian before St. Augustine. His treatise De poenitentia is on ecclesiastical penance (Tertullian, Treatises on Penance).]]
[* ] The last kind of less full dominion, the lawyers of the middle ages called directum, the former they called prius utile; not so elegantly indeed, but by terms received at the bar and in the schools, and which therefore it is not now time to discard. But the one may be called the superior (dominus superior vel major) the other the inferior master (dominus minor), after the example of the Romans, who called the patremfamilias, herum majorem, and the filiosfamilias, heros minores, Plaut. Capt. 3. 5. v. 50. Trinum 2. 2. 53. Asinar. 2. 66. [[Plautus, Plautus, trans. Nixon, vols. 1 and 5.]]
[* ] Of holding in fee we have an example, Gen. xlvii. 26. according to Josephus, Antiq. 2. 7. Tho’ Hertius thinks the lands of Egypt were rather made censual, or paid a land-tax, ad Puffend. jus nat. &c. 4. 8. 3. But if he place the difference between holding in fee and censual, in this, that in the former the possessor has only the dominion of use, and in the latter full dominion, it may be clearly proved, that the Pharaoh’s of Egypt had a part of the dominion. For the Words of the Patriarch Joseph are, Gen. xlvii. 23. “This day I have bought you and your lands to Pharaoh.” Of the (jus superficiarium) or the right of ground-plots, there is a remarkable instance in Justin. Hist. 18. 5. Concerning the origine of fiefs the learned are much divided, tho’ they be common throughout all Europe. That there are many other sorts of less full dominion among the nations of German extract, I have shewn in my element. juris Germ. 2. 2. 23. & seq.
[† ] Hence the known tenets, that service consists not in doing, but in suffering or not doing; that it is indivisible, that its cause ought to be perpetual, that because the thing is to be used and enjoyed without hurting its substance, usufruct does not take place, where there is nothing to be used or enjoyed: That there is a great difference between usufruct, use, habitation, and the labour of servants; that some of these rights are lost by change of state, and some not: All these are of such a nature that right reason neither precisely commands them, nor opposes them, but they may be variously fixed and altered by pacts and conventions.
[* ] (’Tis not improper to take notice here, that this sort of mortgage called Antichresis in the Roman law, is nearly the same with that which is termed vivum vadium in the English law; which is, when a man borrows a sum of money of another, and maketh over an estate of lands unto him, until he hath received the said sum of the issues and profits of the lands, so as in this case neither money nor land dieth, or is lost. And therefore it is called vivum vadium, to distinguish it from the other sort of mortgage called mortuum vadium, Coke 1. Instit. fol. 205. Domat’s civil law, &c. by Dr. Strahan, T. 1. p. 356.) [[Coke, The First Part of the Institutes of the Laws of England, bk. 3, sect. 332. Jean Domat (1625–96), French jurist; see Domat, Les loix civiles dans leur ordre naturel, and The Civil Law in Its Natural Order, trans. Strahan.]]
[* ] But the end and intention of men in acquiring and managing with great care, is always, not only that they may not want themselves, but that it may be well with theirs when they are dead and stand in need of nothing. Hence Euripides in Medea, v. 1098.Sed quibus in aedibus est liberorumDulce germen, eos video curisConfici omni tempore,Primum quidem, quo pacto bene ipsos educent.Et unde victum relinquant liberis.
[[Euripides, Medea, l. 1098: “But as for those in whose houses sweet children are born, I see them worn out all the time by cares, first, as to how they can bring them up well and then from what source they can leave a livelihood to their children.”
And in Iphigenia in Aulide. v. 917.Res est vehemens parere, & adfert ingens desiderium:Communeque omnibus est, ut laborent pro liberis.
Euripides, Iphigenia in Aulis, l. 917: “To give birth is a terrible thing and it brings a huge desire: it is common to all, to labour on behalf of children.”
[* ] Hence these known maxims of law, That the will of a testator is ambulatory till his death: That the last will alone is valid, being confirmed by death; or as Quintilian, Declam. 37. expresses it, “That testament alone is valid after which there can be no other,” and several other such; yea, so far does this liberty with regard to testaments extend, that it is said none can deprive himself of the liberty of changing by any clause of renunciation, nor even by confirming his former testaments with an oath, l. ult. D. leg. 2. Grotius de jure belli & pacis, 2. 13. 19. Leyser. medit. ad Pand. spec. 43. n. 6. & 7. [[Augustin Leyser (1683–1752), Meditationes ad Pandectas.]]
[* ] For since a testator neither transacts any affair with his heir when he disposes of his effects, nor the heir with the testator, when he acquires; and therefore, in neither case does any right pass from the one to the other; many things were feigned by lawyers, always very ingenious in this respect, to reconcile these inconsistencies. Hence they feigned the moment of testament-making to be the same with the very instant of dying, and the instant of death to be the same with the moment of entering upon a succession, bringing it back by fiction to the instant of death, l. 1. C. de 55. eccl. l. 54. D. de adqu. vel amitt. hered. l. 193. D. de reg. jur. Besides, they feigned the inheritance not entered upon to be no person’s, but to represent the person of the deceased, §2. Inst. de hered. inst. l. 31. § ult. D. eod. l. 34. D. de adqu. rer. dom. Ant. Dadin. Alteserra de Fict. jur. tract. 4. 2. p. 143. [[Hauteserre, De fictionibus juris tractatus quinque Jo. Gottfr. a Coccei. de testam. princip. part. 1. §24.]]
[† ] Hence Seneca of Benefits, 4. 11. says very elegantly “There is nothing we settle with such religious solemn care as that which nowise concerns us.” As this very grave author denies that these last judgments belong to men; so in the same sense Quintilian Declam. 308, calls them a will beyond death. [[Quintilian, Lesser Declamations, vol. 1. Since therefore the Civilians do not allow even a living person to stipulate, unless it be the interest of the person stipulating, §4. Instit. de inut. stip. how, pray, can the same Roman lawyers before the validity of the wills of deceased persons, when it is not for their interest? We readily grant that the souls of men are immortal, (which we find urged by the celebrated Leibnitz, nov. method. jurisp. p. 56. Leibniz, Nova methodus discendae docendaeque jurisprudentiae) but hence it does not follow, that souls delivered from the chains of the body retain the dominion of things formerly belonging to them, much less that they should be affected with any concern about them.Id cinerem & Manes credis curare sepultos?Virg. Aen. 4. v. 92.
Virgil, Aeneid 4.34 (not 92), in vol. 1 of Virgil: “Thinkest thou that dust or buried shades give heed to that?”
[* ] We find, from the time of Solon among the Athenians, a similar kind of testament, consisting in will on one side, with regard to what ought to be done after death, Plutarch. in Solone, p. 90. and among the Lacedemonians from the times of the Ephor Epitadeus. Plut. in Aegid. & Cleom. p. 797 [[Plutarch, Plutarch’s Lives, vols. 1 (“Solon”) and 10 (“Agis and Cleomenes”), and among other Greeks, who all agreed, in this matter, in the same practice, as Isocrates tells us, in Aeginet. p. 778. Isocrates, “Aegineticus,” in Isocrates, vol. 3, 298–353. There are likewise examples of such testaments among the Egyptians, as of Ptolomy in Caesar de bello civil. 3. 20. Caesar, The Civil War Hirt. de bello Alex. cap. 5. Hirtius, Caii Iulii Caesaris de bellis gallico et civili Pompeiano nec non A. Hirtii aliorumque de bellis alexandrino, africano, et hispaniensi commentarii Attalus King of Pergamos, in Florus, Hist. 2. 20. Florus, Epitome of Roman History Hiero of Sicily, of whom Livy, 24. 4. Livy, History of Rome and finally among the Hebrews themselves, of whose way of making wills, see Selden de success. ad leg. Heb. cap. 24. Selden, Uxor Ebraica. But that it was not of ancient usage among them, and that it owed its rise to the interpretations of their doctors, may be proved, amongst other arguments, by this consideration, that there is not a word in their language for a testament, and therefore they gave it a Greek name. See our Dissertation de testamentif. jure Germ. arct. limit. circumscript. §6.]]
[1 ] Tacitus, Germania 20.5: “Yet each man has his own children as heirs, and successors and wills are unknown.”
[* ] And in the earliest ages of the world men disposed of their goods in no other way than this. So Abraham, having no children, had destined his possessions to his steward Eleasar, Gen. xv. 3. no doubt, by some successory, pact, or donation to take place at his death. The same Abraham, his wife Sarah being dead, having children by Kethura, distributed, while he was in health, part of his goods by donation, and gave the residue to Isaac, Gen. xxv. 5, 6. Thus Cyrus also at his death, in the presence of Cambyses, gave his eldest Son the kingdom, and to the younger the lordships of the Medes, the Armenians and Cadusians, Xenoph. Cyrop. 8. 7. 3. [[Xenophon, Cyropaedia, vol. 2, 8.7.2. Mention is made of a division and donation made by parents amongst their children upon the approach of death, Gen. xlviii. 22. Deut. xxi. 16, 17. 1 Kings, i. 35. Syrac. xxxiii. 24. and examples of it among the Francs are quoted by Marculf. Form. 1. 12. 2. 7. Marculfi Monachi, “Formularum Libri Duo,” bk. I.12, cols. 381–82, in Capitularia Regum Francorum, vol. 2.]]
[* ] [[See note on previous page.]]
[† ] The Roman law does not approve of them, but pronounces them contrary to good manners, and liable to very fatal consequences, l. ult. c. de pact. But the objections taken from the desire of one’s death, that may thus be occasioned, do not lie stronger against such compacts than against donations in view of death, which are valid by the Roman law. Nor are those sad effects which Rome once suffered by legacy-hunters, an argument of any repugnancy between such pacts relative to succession after death and honesty, because neither testament nor any other human institution, is proof against the abuse of wicked men.
[* ] Thus Abraham transferred an irrevocable right to his Sons by Kethura. And Telemachus in Homer’s Odyss. B. 17. v. 77. transferred a revocable one to Piraeus,We know not yet the full event of all:Stabb’d in his palace, if your prince must fall,Us, and our house, if treason must o’erthrow,Better a friend possess them than a foe:Till then retain the gifts.
[[Lines 90 (not 77) to 96, bk. 17, in Pope’s translation of the Odyssey.
[† ] This whole matter is admirably illustrated by the chancellor of our college, my beloved collegue Jo. Petrus a Ludewig, in a dissertation wrote with great judgment and erudition, de differentiis juris Romani & Germanici in donationibus, & barbari adnexus, acceptatione. Hal. 1721 [[Ludewig (praeses) and Krimpff (respondens), De differentiis iuris Romani & Germanici, where he hath shewn by impregnable examples and arguments, that neither the nature of donation, nor the Justinian, nor the Canon, nor the German law, requires acceptation made by words or other signs, and hath solidly refuted all objections.]]
[* ] This is so true, that nothing ordinarily is so vexatious and tormenting to men as the thoughts of their estate’s falling to men they hate, after their death, and when, as the Poet has it,Stet domo capta cupidus superstes,Imminens lethi spoliis, & ipsumComputet ignem.
[[“Let the greedy man stand, a survivor when the house is captured, hanging over the spoils of death and calculating the very fire” (Statius, Silvae 4.7.38–40).
Nothing is more certain than what Pindar says in a passage quoted by Pufendorff on this subject (of the law of nature and nations, 4. 11. 1.) “Riches which are to fall into the hands of a stranger, are odious to the dying person.”]]
[* ] For tho’ it be not always true, that kindred are dearer to one than strangers: yea, so far is it from it, that love amongst brothers is very rare: yet since, if the defunct had been of that opinion, nothing hindered him to have disposed of his estate as he pleased, and to have left it to whom he liked best (§291); and he chose rather to die without making such a disposition; he cannot but be judged not to have envied the inheritance of his goods to his relatives, whom natural affection itself seems of choice to call to the succession. But one is nearer, not only in respect of degree, but likewise in respect of line. For Aristotle hath justly observed, that natural affection falls by nature upon the descending line, and failing that upon the ascending line, and failing both these upon the collateral, Nicomach. 8. 12. Hence Grandchildren, tho’ in the second degree, are nearer than a parent, and a great grandfather, tho’ in the fourth degree, is nearer than a brother, &.
[† ] But if the thing be indivisible, there is no doubt it may (ceteris paribus) be left to the first-born, on condition that he make satisfaction to the rest (§270). The first-born are wont to have a special prerogative, if the heritage be indivisible; especially if it be a crown or sovereignty. Cyrus in Xenophon says elegantly, “This also I must now declare to you, even to whom I leave my kingdom, lest that being left doubtful, should occasion disquiets. I love you, my sons, both with equal affection: But I order that the eldest should govern by his prudence, and do the duty of a general, when there shall be use or occasion for it, and that he should have, in a certain suitable proportion, the larger and superior use of my demesnes.” [[Xenophon, Cyropaedia 8.7.8. Tho’ the affections of kings be equal towards all their children; yet the nature of government itself seems to require, that sons should be preferred in succession to sovereignty to daughters, and amongst them the eldest to the younger, insomuch that it is become, as Herodotus says, a received law in all nations, l. 7. p. 242. Herodotus, Histories, Selincourt translation, bk. 7, p. 372 and what is done against this rule, is, according to the ancients, against the law of nations. See Justin. Hist. 12. 2. 24. 3. Liv. 40. 9.]]
[* ] And this is the foundation of the succession of children of the first degree, in capita, by heads, and those of remoter degrees, in stirpes, by descent. That this is consonant to the law of nature appears even from hence, that if contrariwise, all should succeed in capita, the condition of the surviving children would be rendered worse by the death of a brother or sister, and the condition of grandchildren would be bettered by the death of their parents, and so there would be no equality among them. For if the father were worth a hundred pieces, and had four children, each would get twenty five pieces. Now suppose one of the four, contrary to the course of nature, to have died before the father, leaving seven grandchildren to him: in that case, if all succeeded in capita, each would get ten pieces; and thus by the brother’s death, the three children of the first degree would have lost forty five pieces, and the seven grandchildren would have gained as much by the untimely death of their father. But since no reason can be assigned why the death of a brother should diminish the patrimony of the surviving brothers or sisters, and add to that of the grandchildren; no reason can be given why both should be admitted to succession equally in capita.
[* ] For no reason can be brought, why the condition of one issue should be bettered and another worsted by the untimely death of parents; which must however be the case, if the grandchildren surviving their parent should be admitted by heads: Because, suppose a man worth a hundred pieces to have four sons, and to have by the first, one, by the second, two, by the third, three, and by the fourth, four grandchildren alive; if the sons had survived they would have received each twenty five pieces, and have consequently transmitted each to his children as much. But if they dying, the grandchildren be admitted to succession by heads, each would get ten pieces, and thus the one grandchild by the first son would lose fifteen pieces, the two by the second five, and the three by the third would gain five, and the four by the fourth would gain fifteen. But if this be unreasonable, it must be unreasonable to admit grandchildren in this case to succession by heads.
[† ] This is so agreeable to right reason, that whereas the divine law established this order of inheritance, that the sons should stand first, the daughters next, then the brothers, and in the fourth place the uncles by the father’s side, Num. xxvii. 8. & seq. Philo [[Philo of Alexandria, a philosopher, writer, and political figure in the first century ad, a leading exponent of Jewish Alexandrian culture in that period. His writings on the Old Testament were strongly informed by Platonism. remarks, that something ought here to be supplied by right reason. “For it would be foolish (says he) to imagine, that the uncle should be allowed to succeed his brother’s son, as a near kinsman to the father, and yet the father himself be abridged of that privilege. But in as much as the law of nature appoints (where by the law of nature Philo undoubtedly understands the order of nature) that children should be heirs to their parents, and not parents to their children, Moses passed this case over in silence as ominous and unlucky, and contrary to all pious wishes and desires, lest the father and mother should seem to be gainers by the immature death of their children, who ought to be affected with most inexpressible grief: Yet by allowing the right of inheritance to the uncles, he obliquely admits the claim of the parents, both for the preservation of decency and order, and for the continuing the estate in the same family.” Nor do the Talmudists reason otherwise about succession in the ascendent line. See Selden de success. in bona def. ad leges Hebr. cap. 12. where this matter is fully and accurately handled.]]
[* ] For since succession belongs preferably to those for whom the defunct chiefly acquired and managed with care (§295), and experience shews us, that affection is commonly no less ardent towards the remoter than the nearer descendents: Hence it is justly concluded, that grandfathers had no inclination to take from their grandchildren what was due to their parents; and on account of this presumed inclination or will, they ought to succeed to the rights of their parents. On the other hand, the same experience teaches us, that with respect to collaterals, affection diminishes every remove, and therefore it does not follow that a brother’s son, e.g. should come into the same place with the uncle as his brother. Hence there is no reason why a brother’s son should concur with brothers in succession.
[* ] That reason is quite a stranger to heirs necessary, voluntary and extraneous, is plain, because it knows nothing of the reason lawyers had in their view in making such distinctions. First of all, this quality and difference of heirs belongs chiefly to testamentary heirs, to which, as we have already observed, the law of nature is a stranger (§287), because to one who dies intestate, no servant succeeds as necessary heir. Again, a testament among the Romans was a sort of private law. And they thought a testator could indeed give law to his servants and children, whose duty and glory it was to obey their will, but not to strangers not subject to their power. Hence they called those necessary and these voluntary heirs, (Elem. sec. ord. Inst. §95). [[Heineccius, Elementa iuris civilis secundum ordinem Pandectarum. But since the law of nature knows nothing of all this, it cannot possibly know any thing of this difference with respect to heirs.]]
[* ] Not therefore, in solidum, in whole. For since there is no other reason why an heir is obliged to fulfil what the defunct was bound to do by buying or hiring, and to pay his debts, but because he hath acquired his goods, no reason can be imagined why he should be bound farther than the inheritance is sufficient to answer. Besides that rigour of the Roman law, by which an heir succeeded to all the obligations of the defunct, turns upon a fiction, that the heir and the defunct are the same person, l. 22. D. de usucap. l. 14. C. de usufr. Novell. 48. praef. Ant. Dadin. Alteserra de fiction. jur. tractat. 1. cap. 20. p. 48. [[Antoine Dadin de Hauteserre, De fictionibus juris. Now since the law of nature knows no such fiction, it cannot know that which follows from it alone.]]
[* ] All these effects of dominion are acknowledged by the Roman law. For what is said by Caius, l. 2. D. si a par. quis man. “That it is unjust for men not to have the liberty of alienating their goods,” it is to be understood of free disposal. In like manner Paullus infers, from the right of possession belonging to the lord or master only, l. 3. §5. D. de adqu. vel amitt. possess. “That many cannot possess the same thing in whole; and that it is contrary to nature that you should possess what I possess. That two can no more possess the same thing, than you should occupy the same place in which I am.” All belonging to the reclaiming of a thing, which is the principal action arising from dominion, is well known. Hence it is among the paradoxical themes of dispute, “That the lord of timber cannot recover it, if it be joined,” §29. Inst. de rer. divis.
[* ] This right belongs to the master only, as is plain when we consider the right of usufruct, of use, of loan, of hire, all which, because they are exerced about a thing belonging to another, do not include the right of changing a thing at pleasure, tho’ all of them include the right of reaping the fruits. Therefore the right of taking the profits may be common to the master with others, but the faculty of changing the thing, i.e. the principal or substance, is proper to the master only, nor can he who has the right of use, usufruct, loan or hire, claim it without his permission.
 Aelius Donatus (fl. 4th century ad) was the author of a commentary on the works of Terence.
[† ] For if any corrupts his own with an intention to hurt another, he does it with a design to injure another, and by doing hurt to him, really injures another. But it being the first and chief principle of natural law, not to hurt any one (§178), the consequence is, that he acts contrary to the law of nature who spoils his own goods with such an intention. And to this class belongs the wickedness of those who poison their flowers to destroy their neighbour’s bees, Quinct. Declam. 13. [[Quintilian, The Major Declamations.]]
[* ] For possession is the retention of a thing, from the use of which we have determined to exclude others (231). As long therefore as we have determined to exclude others from the use of a thing, so long we have not relinquished it (§241): Wherefore, such a thing is not without a master, and none has a right to seize it. But what none hath a right to seize, I certainly retain the possession of, even tho’ at distance, by my will merely.
[* ] To which case, without all doubt, belong the expences, without which the master himself could not have recovered his own from robbers, especially if the possessor redeemed it with intention to have it restored to its owner, Pufend. law of nature, &c. 4. 12. 13. at which paragraph Hertius in his notes has brought an excellent example from Famian. Strada’s Decades de bello belgico, l. 7. ad annum 1572. “When the merchants of Antwerp had redeemed merchandize of above a hundred thousand pieces in value, from a Spanish soldier, who had plundered the city of Mechlin, for twenty thousand, the owners got them back, upon restoring that sum, because they could not have recovered the goods with less expence.” [[Strada, De bello belgico decas prima. See also Pufendorf, Acht Bücher.]]
[† ] For a natural accession to a thing, the master of which is not known (§241), belongs to none, and so goes to the first occupant. Since therefore the honest possessor has seized the fruits which he produced by his own care and industry, there is no reason why they should be taken from him. And therefore the Justinian law not absurdly says, “That it is agreeable to natural equity and reason, that the fruits which an honest possessor hath gathered, should be his for his care and labour.” Nor is the case different with regard to civil fruits. For they, in like manner, when they are received having no certain master, and the true master of the substance producing them, having had no trouble about, belong also to an honest possessor, so long as the true master does not appear.
[* ] This Grotius grants (of the right of war and peace, 2. 8. 23. and 2. 10. 4.) but only with respect to natural fruits. But since even the industrial fruits are accessions to the principal of an owner, who is now known, no reason can be imagined why an honest possessor should claim them to himself. But the master can by no means refuse to repay expences, because he would otherwise demand fruits which he did not produce by his care and industry (§312). Whence the Hebrews thus proverbially described a hard austere man, “One who reaps where he did not sow, and gathers where he did not straw,” Mat. xxv. 24. Luke xix. 21.
[† ] The Civilians follow this principle in demanding an inheritance, l. 25. §11. & §15. l. 36. §4. l. 40. §1. D. de hered. petit. But in reclaiming a thing, they adjudge indiscriminately the reaped fruits to an honest possessor, and make no account of the matter, whether he be enriched by them or not, l. 4. §2. D. fin. regund. l. 48. pr. D. de adqu. rer. dom. But the reason of this difference is merely civil, and not founded in natural law. For in suing for heritage, as being an universal action, the price is deemed to succeed into the room of the thing, not in singular actions. But the law of nature does not make these distinctions; and therefore it is most equal that those received fruits should be indiscriminately restored to the true owner, by which one is made richer. And that this is now the practice observed in courts, is observed by Stryk. Us. hod. Digest. 6. 1. 12.
[* ] For tho’ accidents be regularly imputable to no person (§106), yet this rule does not take place if it was the agent’s fault that any accident happened (§ ibidem), because then there is default as well as accident. Now, a fraudulent possessor could and ought to have restored the thing to its true owner, and if he had done it, he would have prevented its perishing in his hands. He is therefore obliged to answer for all accidents; whence the Roman lawyers have rightly determined, that a thief and robber are answerable for all chances, because they are always the cause why a thing is not in the possession of its owner, (quia semper in mora sint) l. 8. §1. D. de condict furt.
[* ] Thus we find the civil law taking the free disposal of their goods from pupils, mad persons, prodigals, minors. The same law does not allow a legatee, tho’ owner of the thing left to him in legacy, to take possession, and gives the heir a prohibition against him, if he goes to seize at his own hand. (Interdictum quod legatorum) tot. tit. D. quod legat. Again, it is known that he, whose timber another hath joined, tho’ he be the owner of the materials, and doth not lose his dominion, yet he cannot recover the timber when joined, by the laws of the twelve tables, §29. Inst. de rerum divis. l. 7. D. de adqu. rerum dom. So that there is almost no effect of dominion which the civil laws suffer to remain always and wholly safe and entire, if the public good of the common-wealth require it should not: For this magistrates justly account the supreme law in all those matters, which belong to the permissive part of the law of nature. Because, since any one by the law of nature may renounce his permissive rights (§13), a people may also renounce them, and hath actually renounced them by submitting themselves to the laws enacted by the supreme power under whose authority they have put themselves.
[† ] Thus sometimes the right of reaping all advantage from a thing is circumscribed within narrower limits by the disposition of the former owner, as, e.g. if he hath given another the usufruct, any right of service, or hath pawned it (§282). Sometimes the liberty of disposing, destroying, and alienating is taken from the master, as when the dominion or right of use merely is given him (§279); or when the thing is burdened with some fiduciary bequest, &c. An usufruct being constituted, even the right of possession, which could not otherwise be refused to the owner, is restricted; as when the right of use is given to one, the direct or superior lord has neither the right of possessing the thing, nor of claiming what appertains to the right of use.
[* ] For the Roman lawyers define an injury to be not only any wrong done to a person by words or deeds, but any action by which one is hindered from the use either of public things, or of what is his own, or by which one arrogates to himself any degree of liberty in disposing of what belongs to another. Thus by the leg. Cornel. he is guilty of injury who enters another’s house forcibly, l. 5. pr. D. de injur. he who hinders one to fish in the sea, or to draw a drag-net, to bath in public baths, to sit on a public theatre, or to act, sit, or converse in any other place, or who does not permit us to have the use of what is our own, l. 13. §7. D. eod.
[* ] If a thing be carried away to affront one, or by way of contumely, it is called an injury; if it be carried away in order to spoil it, it is called damage. Thus in Homer, Iliad. A. v. 214. Minerva says that Chryseis was taken from Achilles ὕβρις εἵνεκα, to rub an affront upon him. It was therefore an injury, and not theft or robbery. And he is more properly said to have damaged than to have stollen, who, as Horace says, Serm. 1. 3. v. 116.
Teneros caules alieni infregerit horti.
[[Horace, Satires I 3.116: “has cut some young cabbages from another’s garden.”
But without doubt Cacus was guilty of theft properly so called,Quatuor a stabulis praestanti corpore taurosAvertit, totidem forma superante juvencas,Atque hos, ne qua forent pedibus vestigia rectis,Cauda in speluncam tractos, versisque viarumIndiciis, raptos saxo occultabat opaco.Virg. Aeneid, 8. v. 207.
Virgil, Aeneid 8.205ff., in vol. 2 of Virgil: “But Cacus, his wits wild with frenzy, that naught of crime or craft might prove to be left undared or unessayed, drove from their stalls four bulls of surpassing form, and as many heifers of peerless beauty. And these, that there might be no tracks pointing forward, he dragged by the tail into his cavern, and, with the signs of their course thus turned backwards, he hid them in the rocky darkness.”
Tho’ the ancients thought theft might be said of immoveables (l. 38. D. de usurp. & usucap. Gell. Noct. Attic. 11. 18. Plin. Hist. nat. 2. 68. Pliny the Elder, Natural History, vol. 1, bk. 2, chap. 68 Gronov. observ. 1. 4. p. 42. Gronovius, Observationum libri III) yet this application of the word is inconvenient, and therefore we do not use it in that sense.]]
[* ] For all these crimes agree in one common end, this being the design of the thief, the robber and the defrauder, to bereave others of their goods. They agree also with regard to the motive or impelling cause, viz. knavery. They agree likewise in the effect, which is making one poorer. Nay the defrauder is sometimes worse than the thief or robber in this respect, that he circumvents one under the mask of friendship, and therefore cannot be so easily guarded against as a thief or robber. They are therefore, with good reason, joined together by that excellent teacher of morals, Euripides in Helena, v. 909. who there says, “God hates force, and commands every one to possess the purchase of his own industry, and not to live by plunder. Base and unjust riches are to be renounced with contempt.” [[Euripides, Helen, lines 903–5, in Euripides, vol. 5: Helen, Phoenician Women, Orestes. To which unjust and base riches belongs more especially, as every one will readily acknowledge, whatever one knavishly cheats others of.]]
[* ] But even this obligation to restitution does not always take place, because sometimes right reason dissuades from restitution, sometimes the civil laws free the possessor from all obligation to restitution. An example of the first case is a madman claiming his sword deposited by himself; of which Seneca of benefits, 4, 10. Cicero de offic. 1. 10. 3. 25. And like examples are adduced by Ambros. de offic. 1. ult. [[Ambrose, De officiis. To the last exception belong usucapion and prescription. For that these are unknown to the law of nature, seems most certain and evident; because time, which is a mere relation, can, of its own nature, neither give nor take away dominion. And, as we observed above, our dominion cannot otherwise pass to another than by tradition or transferring. Whence it is plain, that one can neither acquire dominion without some deed of the proprietor, nor can the proprietor lose it without some deed of his own. Wherefore usucapion and prescription owe their origine to civil laws, which introduced both for the public good, l. 1. D. de usurp. & usucap. partly to put a period to the trouble and danger of contests, Cicero pro Caecin. c. 26. Cicero, “Pro Caecina,” in Pro lege Manilia, Pro Caecina partly to excite men who are indolent and neglectful, to reclaim their goods in due time, by giving them to see the advantages of vigilance above negligence; so that the observation of Isocrates is very just in Archidam. p. 234. “All are persuaded that possessions, whether private or public, are confirmed by long prescription, and justly held as patrimonial estate.” Isocrates, Isocrates, vol. 1, “Archidamus,” 26 (p. 361). But it does not follow, that whatever many are persuaded of is therefore a precept of the law of nature. And this it was proper to mention, that none may be surprized that we have taken no notice of usucapion and prescription in treating of property or dominion.]]
[* ] Besides, the master of a thing alone has the right of excluding others from the use of it. Since therefore the master does not appear, none has this right; and, for this reason, nothing hinders why an honest possessor may not retain it to himself. But because in many countries things free from dominion of any value may be claimed by the people or prince (§242), it is plain, that in such countries, where that custom or law prevails, an honest occupant ought to offer things, the master of which is not known, to the magistrates, and may expect from them μὴνυτρον, the reward of telling (Grotius of the rights of war and peace, 2. 10. 11).
[2 ] Bourgogne, Ad consuetudines Flandriae aliarumque gentium tractatus controversiarum.