Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow CHAPTER X: Of derivative acquisitions of dominion or property made during the life of the first proprietor. - A Methodical System of Universal Law: Or, the Laws of Nature and Nations

Return to Title Page for A Methodical System of Universal Law: Or, the Laws of Nature and Nations

Search this Title:

CHAPTER X: Of derivative acquisitions of dominion or property made during the life of the first proprietor. - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations [1738]

Edition used:

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).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER X

Of derivative acquisitions of dominion or property made during the life of the first proprietor.

SECTION CCLXVI

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.

SECTION CCLXVII

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.

SECTION CCLXVIII

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.

SECTION CCLXIX

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).*

SECTION CCLXX

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.*

SECTION CCLXXI

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.*

SECTION CCLXXII

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.

SECTION CCLXXIII

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.

SECTION CCLXXIV

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.*

SECTION CCLXXV

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.

SECTION CCLXXVI

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.*

SECTION CCLXXVII

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.

SECTION CCLXXVIII

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.*

SECTION CCLXXIX

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.

SECTION CCLXXX

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.*

SECTION CCLXXXI

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.

SECTION CCLXXXII

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.†

SECTION CCLXXXIII

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.*

SECTION CCLXXXIV

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.*

SECTION CCLXXXV

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.

[* ] 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.”

]]