Front Page Titles (by Subject) CHAPTER XI: Of derivative acquisitions by succession to last-will and to intestates. - A Methodical System of Universal Law: Or, the Laws of Nature and Nations
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CHAPTER XI: Of derivative acquisitions by succession to last-will and to intestates. - 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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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.*
[* ] 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.]]