Front Page Titles (by Subject) CHAPTER XII: Concerning the rights and duties which arise from property or dominion. - A Methodical System of Universal Law: Or, the Laws of Nature and Nations
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CHAPTER XII: Concerning the rights and duties which arise from property or dominion. - 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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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
Remarks on This Chapter
We have not had occasion for some time to add to our Author, or to make any remarks on his reasonings. And indeed the reason why I choose to translate this Author into our language, is because there is seldom any occasion to add to what he says, and almost never any ground of disputing against him, so orderly, clear, just and full, is his method of proceeding in this most useful of all sciences. But because usucapion and prescription are usually treated of at greater length by writers on the laws of nature and nations than our Author does; and because this is a proper occasion to explain a little upon the distinctions that are commonly made by moralists about the dictates of the law of nature and right reason, or conformity to them, let me subjoin the following observations.
1. First of all, it is proper to observe the difference which the Roman law makes between prescription in general, and that kind of it which they distinguished by the name of usucapio. By usucapio they meant the manner of acquiring the property of things by the effect of time. And prescription had also the same meaning; but it signified moreover the manner of acquiring and losing all sorts of rights and actions, by the same effect of the time regulated by law. See l. un. C. de usucap. transf. & Inst. de usucap. and Domat’s civil law, in their natural order, T. 1. p. 485. But writers on the law of nature have now very seldom occasion to make use of the word usucapio; that of prescription being now common by usage, both to the manner of acquiring the property of things, and to that of acquiring and losing all sorts of rights by the effect of time. 2. The chief reasons assigned by the Roman law for the first introducing of property by prescription, are, as Pufendorff of the law of nature and nations hath observed, book 4. cap. 12. §5. “That in order to the avoiding of confusion, and cutting off disputes and quarrels, it is of great consequence to the public welfare, that the proprieties of things should be fixed and certain amongst the subjects, which would be impossible, should perpetual indulgence be allowed to the negligence of former owners, and should the new possessors be left in continual fear of losing what they held. (Ne scilicet quarundam rerum diu & fere semper incerta dominia essent, l. 1. ff. de usurp. & usucap.) Again, trade and commerce could not otherwise subsist in the world. For who would ever contract with another? who would ever make a purchase, if he could never be secured in the quiet possession of any thing conveyed to him? Nor would it be a sufficient remedy in this case, that if the thing should be thus challenged by a third party, the person from whom we receive it should be obliged to make it good; for after so long a course of time, thousands of accidents might render him incapable of giving us this satisfaction. And what grievous commotions must shake the commonwealth, if at so vast a distance of years, so many contracts were to be disannulled, so many successions were to be declared void, and so many possessors to be ejected? It was therefore judged sufficient to allow such a time, as large as in reason could be desired, during which the lawful proprietors might recover their own. But if through sloth and neglect they suffered it to slip, the Praetor might fairly reject their too late importunity. And tho’ it might so happen, that now and then a particular person lost his advantage of recovering his goods, utterly against his will and without his fault, only because he was unable to find out the possessor, yet the damage and inconvenience arising from that general statute to some few private men, is compensated by the benefit it affords to the public.” It was a judicious reflexion of Aratus of Sicyon in Tully’s offices, l. 2. c. 23. “He did not think that possessions of fifty years should be disturbed, because in so long time many things in inheritances, purchases and portions, might be held without an injury to any.” 3. Now from the nature of property acquired by prescription, i.e. by the effect of time regulated by law, and the reasons upon which the utility, or rather necessity of it is founded, it is plain on the one hand, that whatever is not subject of commerce, cannot be the object of prescription, such as liberty; so prime, so essential a blessing; a blessing so much dearer than life, that none can ever be presumed so much as tacitely to have consented to be a slave! Liberty, a blessing, a right in the nature of things unalienable; or to renounce which is contrary to nature, and the will of the author of nature, who made all men free! Public places, goods belonging to the public, &c. So, on the other hand, whatever is the object of commerce may be the object of prescription, i.e. property in it may be acquired by the effect of time. As every man who is otherwise capable of acquiring dominion, is likewise capable of prescribing; so by this right of prescription we may acquire dominion over both sorts of things, moveable and immoveable, unless they are particularly excepted by the laws. But moveable things may pass into prescription sooner than immoveable, for this reason, that immoveables are judged a much greater loss than moveables; that they are not so frequently made the subject of commerce between man and man; that it is not so easy to acquire the possession of them, without knowing whether the party that conveys them be the true proprietor or the false; and consequently, that they are likely to occasion fewer controversies and suits. Plato’s rules for the prescription of moveables are these: “If a thing of this kind be used openly in the city, let it pass into prescription in one year; if in the country in five years: if it be used privately in the city, the prescription shall not be compleated in less than three years. If it be thus held with privacy in the country, the person that lost it shall have ten years allowed him to put in his claim, de leg. l. 12.”3 As for the prescription of immoveables, the constitution of Plato’s commonwealth was not acquainted with it. It is proper to observe here, that by the civil law prescription has not only respect to property; but it destroys other rights and actions when men are not careful to maintain them, and preserve the use of them during the time limited by the law. Thus a creditor loses his debt for having omitted to demand it within the time limited for prescription, and the debtor is discharged from it by the long silence of his creditor. Thus other rights are acquired by a long enjoyment, and are lost for want of exercising them. See Domat’s civil law, &c. T. 1. book. 3. t. 7. §4. 1. and the Roman laws there quoted. And all the long reasonings in Thomasius de perpetuitate debitorum pecuniariorum, and in Titius’s observations on Lauterbach, obs. 1033, and elsewhere, quoted by the very learned Barbeyrac on Pufendorff, of the law of nature and nations, book 4. cap. 12. 1.4 to shew how far prescription is of natural right, and what civil law adds to it, do not prove, that the law of nature does not permit, nay require, that a time should be limited, even for claiming rights, upon the elapsing of which, rights and actions, and what the lawyers call incorporeal things, are prescribed. No one ever pretended, that the law of nature fixed a time which gave a title by prescription with regard to things corporeal or incorporeal. But if security of property and commerce require, that such a time should be fixed, where there is property and commerce, then the law of nature or right reason requires that a time prescribing be fixed so far as security of property and commerce, and quiet possession by honest industry require it, whether with respect to corporeal or incorporeal things. Let me just add upon this head, that whereas it was said above, that things out of commerce cannot be prescribed, yet by the civil law one may acquire or lose by prescription, certain things which are not of commerce; but it is when they are connected with others, of which one may have the property. They are acquired by their connection with such other things. See Domat ibidem. Now, if here also it be said, that the law of nature knows no such distinction: the answer is, that the law of nature or right reason acknowledges every distinction which the public utility of a state requires, in order to prevent confusion and quarrels, and to render honest industry secure in the enjoyment of its just acquisitions. For, 4. whatever distinctions moral writers have made about belonging or being reducible into the law of nature, directly or indirectly, immediately, remotely, or abusively; this is plain, that in order to determine what the law of nature or right reason says about a case, the circumstances of the case must be put. For in the science of the law of nature, as well as other sciences, however general the rules or canons may be, yet in this sense they are particular, that they only extend to such or such cases, such or such circumstances. Now, if we apply this general position to the present question, it will appear that prescription is of the law of nature, in the same sense that testamentary succession, or succession to intestates is of the law of nature, viz. That right reason is able to determine with regard to prescription, in like manner as with regard to the others, some general rules which equity and public, common security require to be settled about them, where any number of men live in commerce, and property is established, that industry may have due liberty and security. Testamentary succession, and succession to intestates, as we have found them to be regulated by right reason, may be detrimental in some cases to the public, because in some cases, it may be more the interest of the public that any other should succeed to an estate than the heirs according to these general rules with regard to succession, by or without testament. But notwithstanding such detriment that may in some cases happen to the public, general rules about succession are necessary; and none are fitter to be such than those which most encourage in-dustry, by best securing the possessor in his right of disposing of his own, the great motive to industry; and those which determine succession in the way it is properest for the general good, that men’s affections should operate towards others. In like manner, whatever detriment may arise in certain cases from the general rule, that time should give a title by prescription; yet the general rule ought to obtain, because it is the best general rule that can be conceived, the least inconvenient, or rather the best for the security of commerce and property, being the best encouragement to honest industry, by giving the securest possession of its honest acquisitions. In fine, if we ask what the law of nature says about succession, or prescription, or any thing else, we must put a case or enumerate the circumstances; and therefore, we must either ask what it requires about them where men are in a state of nature, or where men are under civil government. If we confine the questions of the law of nature to the former case (tho’ there be distinctions to be made even in that case, as will appear afterwards) yet we limit the science too much, and render it almost useless: But if we extend it to what right reason requires under civil government, we must, in order to proceed distinctly, define the principal end of the civil constitution, and its nature, before we can answer the question; which will then be twofold. Either, 1. What that particular constitution requires, in consistency with its end and frame, with regard to prescription, for instance, or any other thing? Or, 2. Whether the end and frame of that constitution requiring such and such rules about prescription for instance, or succession, or any other thing, be a good end, and a good frame, i.e. whether all the parts of it, considered as making a particular constitution, do make one consonant to the great general end of all government, public happiness? Thus, if we attend to the necessity of thus stating the meaning of what is called determination by natural law, we will easily see that what is urged from the laws in the Jewish commonwealth against prescription, does not prove that right reason does not require that every state should make some regulation with regard to the effect of time, as to security in possession. For tho’ the divine law, which prohibited perpetual alienations for several reasons, abolished by that means prescription, yet the letter of this law being no longer in force, where alienations which transfer the property for ever are allowed, the use of prescription is wholly natural in such a state and condition, and so necessary, that without this remedy every purchaser and every possessor being liable to be troubled to all eternity, there would never be any perfect assurance of a sure and peaceable possession. And even those who should chance to have the oldest possession, would have most reason to be afraid, if together with their possession they had not preserved their titles. See Domat’s civil laws, &c. T. 1. p. 483. God, for reasons arising from the constitution of the Jewish republic, forbad the perpetual alienation of their immoveable estates (and not of their goods in general, as some objectors against prescription urge) but all their laws concerning usury, conveyances, and other things, were necessarily connected together, and with their Agrarian law, (as we shall see afterwards). And therefore there is nothing in the law of Moses that condemns prescription as an unjust establishment; and we can no more infer it from hence to be such (as Barbeyrac well observes, ibidem)5 than we may conclude that the perpetual alienation of lands is odious, and not conformable to natural right. But not to insist longer on this head, it is not only evident that the law of nature for the security of property and the encouragement of industry requires, that a time should be regulated for the effect of possession as to prescribing, in all states which admit of alienations and commerce; but that it requires that this time should be the most equal that can be fixed upon, all the circumstances of a particular state being considered, with regard to the non-disturbance of honest industry, i.e. the properest to prevent unjust dispossession on either side, i.e. either with respect to the first or the last possessor. And therefore, 5. There is no difficulty with regard to the following general maxims about it. 1. That prescription may affectually proceed, ’tis requisite that the party receiving the thing at the hands of a false proprietor, do obtain this possession by a just title; and consequently, that he act in this matter bona fide, with fair and honest intention. For this is necessary to just possession. “A man doth not become a just possessor of a thing barely by taking it to himself, but by holding it innocently.” Detaining is otherwise, as Tacitus expresses it, diutina licentia, a long continued injustice. Upon this head Pufendorff observes, that according to the civil law, ’tis enough if a man had this uprightness of intention at his first entring on the possession, though he happens afterwards to discover, that the person who conveyed it to him was not the just proprietor. But the canon law requires the same integrity throughout the whole term of years, on which the prescription is built. But Barbeyrac justly takes notice in his notes, “That the maxim in the civil law is better grounded than that of the canon law. And the artifice of the clergy consists not so much in this, that the determinations of the Popes require a perpetual good intention in him that prescribes, as in this, that they will have the goods of the church look’d upon as not capable of being alienated, either absolutely, or under such conditions as will make all prescriptions void.”6 2. Another necessary condition is, that it be founded on constant possession, such as hath not been interrupted, either naturally, as if the thing hath returned in the mean while to the former owner, or hath at any time lain abandoned or forsaken: or civilly, as if the owner had been actually engaged at law with the possessor for the recovery of what he lost; or at least by solemn protestations hath put in a salvo to his right. 3. That the space of time during which the prime possessor holds the thing, shall be reckoned to the benefit of him that succeeds in the possession, provided that both the former and the latter first entered upon it with honest minds, and upon a just title. For otherwise the prime possessor shall not be allowed to make over his time to the next holder, and consequently, if the former come to the possession by dishonest means, the time he passed in it shall not be computed towards the prescription of the latter, tho’ he, for his own part, obtained the possession fairly and justly. See Pufendorff, ibidem. 4. Prescription does not run against minors. And if one that is major happens to have a right undivided with a minor, the prescription which could not run against the minor, will have no effect against the major. And the same reason for which prescription does not run against minors, hinders it likewise from running against those whom a long absence disables from pursuing their rights; which is to be understood not only of absence on account of public business, but also of other absences occasioned by accidents, such as captivity. See Domat’s civil law, ibidem. And for the same reasons, it is highly agreeable to reason, that the time during which a country hath been the seat of war, shall not avail towards prescription. But with regard to minority, it is remarked by Pufendorff ibidem, that there may be a case in which the favour of possession shall overbalance the favour of majority. As for instance, suppose it should so happen, that when I want only a month or two of compleating my prescription, and it is morally certain that the ancient proprietor will not within that space give me any trouble about the title, and if he should then decease leaving an infant heir, it would be unreasonably hard, if after five and twenty years possession, I should be thrust out of my hold for want of those two months, especially if it be now impossible for me to recover damages of him from whom I received what is thus challenged, as I might have done, had the dispute happened before the goods devolved on the minor. See this subject more fully discussed than it can be done in a short note, by Pufendorff and Grotius. It is sufficient for our purpose to have taken notice of these few things relative to prescription; and to have observed once for all, that unless the determinations of the law of nature be confined to signify the determinations of right reason with regard to a state of nature, (a very limited sense of the law of nature, in which it is hardly ever taken by any writer) every decision of right reason concerning equity, justice, and necessity or conduciveness to the public good of society, or of men having property and carrying on commerce, is a decision of the law of nature. Whatever reason finds to be the best general rule in this case is a law of nature; and in this sense, prescription is of the law of nature, i.e. reason is able to settle several general rules about it in consequence of what commerce, the security of property, and the encouragement of industry make necessary. So that where reason is able to make any such decisions, it is an impropriety to say, that thing is not of the law of nature, because some forms and modes relative to it must be determined and settled by convention, or by civil constitution; as the parti-cular spaces of time, for instance, with regard to prescription of moveables and immoveables, &c. must be. For if right reason requires, that time should have a certain effect with regard to property, then is prescription of the law of nature, which by its definition is the acquisition or addition of a property, by means of long possession. But indeed we may safely say, that the law of nature is an absolute stranger to the debates among lawyers, whether prescription should be defined with Modestinus adjectio, or adeptio with Ulpianus; for all such disputes are mere verbal wranglings, grievossly cumbersome to right reason and true science.
[* ] 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.
[3 ] Plato, The Laws 954d.
 Thomasius (praeses) and Hofmann (respondens), Dissertatio juridica de perpetuitate. For Titius’s observations, see Schütz and Lanterbach, Thesaurus juris civilis.
[5 ] See note 1 by Jean Barbeyrac in bk. 1, xii.7, of Pufendorf’s Law of Nature and Nations.
[6 ] See note 5 by Jean Barbeyrac in bk. 4, xii. 3 of Pufendorf’s Of the Law of Nature and Nations.