The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• The Whole Duty of Man
• The Author’s Preface
• Book I
• Chapter I: Of Human Actions In General, the Principles Of  ’em, and How to Be Accounted For, Or Imputed
• Chapter II: Of the Rule of Human Actions, Or of Laws In General; and the Different Qualifications of Those Actions
• Chapter III: Of the Law of Nature In General
• Chapter IV: Of the Duty of Man Towards God, Or, Concerning Natural Religion
• Chapter V: Of the Duty of a Man Towards Himself  19
• Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury to Any Man
• Chapter VII: The Natural Equality of Men to Be Acknowledged
• Chapter VIII: Of the Mutual Duties of Humanity
• Chapter IX: The Duty of Men In Making Contracts
• Chapter X: The Duty of Men In Discourse
• Chapter XI: The Duty of Those Which Take an Oath
• Chapter XII: Duties to Be Observ’d In Acquiring Possession of Things
• Chapter XIII: The Duties Which Naturally Result From Man’s Property In Things
• Chapter XIV: Of the Price and Value of Things
• Chapter XV: Of Those Contracts In Which the Value of Things Is Pre-supposed; and of the Duties Thence Arising
• Chapter XVI: The Several Methods By Which the Obligations Arising From Contracts Are Dissolved
• Chapter XVII: Of Meaning, Or Interpretation
• Book Ii
• Chapter I: Of the Natural State of Men
• Chapter II: Of the Duties of the Married State
• Chapter III: Duty of Parents and Children
• Chapter IV: The Duties of Masters and Servants
• Chapter V: The Impulsive Cause of Constituting Communities 18
• Chapter VI: Of the Internal Frame and Constitution of Any State Or Government
• Chapter VII: Of the Several Parts of Government 38
• Chapter VIII: Of the Several Forms of Government 41
• Chapter IX: The Qualifications of Civil Government 47
• Chapter X: How Government, Especially Monarchical, Is Acquired
• Chapter XI: The Duty of Supreme Governours
• Chapter XII: Of the Special Laws of a Community, Relating to the Civil Government 59
• Chapter XIII: Of the Power of Life and Death
• Chapter XIV: Of Reputation
• Chapter XV: Of the Power of Governours Over the Goods of Their Subjects
• Chapter XVI: Of War and Peace
• Chapter XVII: Of Alliances
• Chapter XVIII: The Duty of Subjects
• Two Discourses and a Commentary By Jean Barbeyrac
• Note On the Translation
• The Judgment of an Anonymous Writer On the Original of This Abridgment With Reflections of the Translator, Intended to Clarify Certain of the Author’s Principles
• Discourse On What Is Permitted By the Laws In Which It Is Shown That What Is Permitted By the Laws Is Not Always Just and Moral
• Discourse On the Benefits Conferred By the Laws In Which It Is Shown That a Good Man Should Not Always Take Advantage of the Benefits Conferred On Him By the Laws

chapter xii

Duties to be observ’d in acquiring Possession of Things

I.Other Creatures useful to Man.Whereas such is the Condition of Man’s Body, that it cannot be supported and preserved from that which would destroy its Fabric, without the Assistance of Things without him; and whereas by making Use ofL. N. N. l. 4. c. 3. §2.other Creatures42 his Life may be render’d much more comfortable and easie; we may safely gather, that it is the Will of the supreme Moderator of the World, that he be allow’d to apply such other Creatures to his Service, and that he may even destroy many of them for his Occasions. * Neither doth this hold, as to Vegetables only, which have no Sense of the Loss of their Beings; but it reaches even the innocent Animals, which though they die with Pain, yet are kill’d and devour’d by Men for their Sustenance without Sin.

II.Possession introduced.Farther, all these outward Things are understood to have been left in the Beginning by God indifferent to the claim of all Men; that is, so that none of them were the Property of this Man rather than that. Not but that Men were at liberty to dispose Things so, as should seem requisite to the Condition of Mankind, and the Conservation of Peace, Tranquillity and good Order in the World. Hence it was, that at first, while the Human Race was but of a small Number,L. N. N. l. 4. c. 4. §5.^† it was agreed, That whatever any one did first seize should be his, and not be taken from him by another; provided however, that he only possesses himself out of the common Store of what is sufficient for his private Service, but not so as to destroy the whole Fund, and so prevent a Stock for future Uses. But afterward, when Mankind was multiply’d, and they began to bestow Culture and Labour upon those Things which afforded them Food and Raiment; for the prevention of Quarrels; and for the sake of good Order, those Bodies or Things also, which produced such Necessaries, were divided among particular Men, and every one had his proper Share assign’d him, with this general Agreement, That whatsoever in this first Division of Things, was yet left unpossest, should for the future be the Property of the first Occupant.* And thus, God so willing, with the previous Consent, or at least by a tacit Compact of Man, Property, or the Right to Things, was introduced into the World.

III.Property what. L. N. N. l. 4. c. 4. §2.Now from Property flows a Right, whereby the Substance, as it were, of any Thing so belongs to One, that it cannot after the same manner wholly belong to Another. From whence it follows, that we may at our own Pleasure dispose of those Things which are our Property, and hinder all other People from the Use of them; unless by Agreement they have procur’d from us some special Right. Although in Communities it does not always happen that Properties are kept so unmix’d and absolute, but are sometimes circumscrib’d and limited by the Municipal Laws thereof, or by Orders and Agreements of Men among themselves.43 But when any certain Thing belongs jointly to more Persons than one after the same manner, then it is said to be common to those several Persons.

IV.All things not possessed.But as Things did not all at once become the Possessions of Men, but successively, and according as the State of Mankind seem’d to require; so it was not necessary neither that every Thing in the World should be claim’d by one Man or other,L. N. N. l. 4. c. 5. §2. but, the Peace of Mankind being preserv’d, some Things may, and some Things ought to continue, as at the Beginning, common to all. For there are Things which are, indeed, very advantagious to Man, but then since they are inexhaustible, so that every Man may have the Benefit of ’em, and yet no single Person can have the less Use of them, it would be foolish, and to no purpose, for any one to enclose or lay claim to ’em. Such are the Light of the Sun, the Air, the running Water, and the like: Among which also may be accounted the vast Ocean flowing between great Continents, for so much of it as is very far distant from the Shore. Because ’tis not only more than sufficient for the promiscuous Use of all Men, but ’tis morally impossible for any single Nation to guard it. * For where a Thing is of that Nature, that other Men cannot by any Means be hinder’d from the Use of it, it is not only in vain to divide or lay claim to it, but it is apt to give Occasion for insignificant Quarrels.

V.Property twofold. L. N. N. l. 4. c. 6.The Methods of acquiring Property are either Original or Derivative: The Original Ways of obtaining Property, are those by which the Property of Things was first introduced: The Derivative Ways are those, by which a Property already settled passeth from one Man to another. Again, the Original Way of acquiring Property is twofold; either, first, simple and absolute; as when we obtain Dominion and Property over the Body or Substance of the Thing: Or, secondly, primitive and respective; as when we add to a Thing already our own some farther Improvement and Increase.

VI.Premier SeisinAfter it had been covenanted among Mankind that Things should be appropriated to this or that Man, it was also agreed, That what Things soever had not fallen within that first Division, should thereafter become the Property of the first Occupant, that is, of him, * who before any other,L. N. N. l. 4. c. 6. §3, 4. should actually seize it with a Design of possessing the same. So that even at this time the Original Method of acquiring Property in many Things is only Premier Seisin, or the first Occupancy. After this manner Titles are made to desolate Regions, which no Man ever claim’d, which become his who first enters upon ’em with an Intention of making them his own, provided he cultivate them and assign Limits how far he propounds to occupy. But when any Number of Men jointly possess themselves of any Tract of Land, ’tis customary to assign to each Member of the Company a Share, and to account what is left undivided to belong to the Society in common.^† By this first Occupancy also are gain’d all the wild Beasts, Birds, and Fishes living in the Sea, Rivers, or Lakes thereunto appertaining; as well as what by the Sea shall be thrown upon the Shore; except particular Laws inhibit the promiscuous Seizure of the same, or assign them to some certain Claimant. These, if we would make our own, we must actually seize ’em, and take ’em into our Possession. By this Occupancy also we may rightfully acquire Possession of Things whereof the Property which any other Person could have is extinct. As for instance, in Things which are cast away with Intention of the Owner not to have ’em any more, or in Things which at first we lost unwillingly, but in Time relinquish’d and forewent. ^‡ To which may be added what the Lawyers call Treasure trove, or Money found, the Owner whereof is not known, which goes to the Finder, except by the special Laws of a Country it be otherwise provided.

VII.Accessional Improvements. L. N. N. l. 4. c. 7.Moreover, there are many Things capable of being possess’d which continue not always in the same State, but soon after several manners increase of themselves or inlarge their Substance; to others some external Additions are made; many bring forth Fruit, and not a few by Man’s Labour and Workmanship admit of Improvement. All these are comprised under the Head of Accessional Advantages, and may be divided into two Sorts; for some without the Help of a Man accrue from Nature alone; while others either wholly or in part are to be attributed to Human Industry.* Concerning both which this is to be the Rule, To him who is the Owner of the Thing, to the same belong the Improvements and Accessional Advantages; and he who has form’d any Matter of his own into such or such a Fashion, is Owner of that Form or Fashion.

VIII.Services.But Cases often happen, where, either by Contract, or some different Way, another Man may get a Right to receive a certain Profit out of Things that are ours, or to prohibit us the Using even of what is our own to every Purpose.L. N. N. l. 4. c. 8. These Rights are wont to be call’d Services, and they are of two Sorts, either Personal, where the Advantage from what belongs to another Man comes to the Person immediately; or Real, where such Benefit is receiv’d from that which is another’s by the Means or Mediation of that which is ours; among which are accounted the Right of receiving Profits, of making use of what is another’s, of living in such a Place, of commanding the Work of Servants. The Real Services are again subdivided into such as regard the City or the Country; the first Sort are the supporting my Neighbour’s House or Wall which cannot but bear upon mine, affording the Benefits of Lights, not stopping them up, allowing Prospects, carrying off the Rain-Water, and the like: The latter are Liberty of Passage for Men or Cattle, Leave to derive or draw Water, or to water Cattle, or to graze ’em for a time, &c. All which Services have been introduced for the Preservation of good Neighbourhood.

IX.Derivative Property. L. N. N. l. 4. c. 9.Among the derivative Methods of acquiring Property, some are when by the Disposal of the Law Things are devolv’d from one upon another; others are when Possession is transferr’d by the former Owner; and this sometimes affecting the same in whole, and sometimes in part.

X.Inheritance to those who die intestate. L. N. N. l. 4 c. 11.The * Whole of an Estate by the Death of the former Owner generally passes by Succession to the next Heir of the Intestate. For it being repugnant to the common Inclinations of Men, and altogether disserviceable to the Peace of Mankind, that such Possessions should be accounted as foregone and relinquish’d, and as left to be a Prey to any who shall seize ’em, which such Owner had, while he liv’d, taken so much Care and Pains to get: Hence, by the Dictates of Reason it has obtain’d among all civiliz’d Nations, that if any Man dies, not having dispos’d of what he had, the same shall devolve to those, whom, according to the general Inclination of Mankind, he must be thought to have holden most dear to him. And these, regularly consider’d, are those who descend from us, as our Children, &c. after them those who are of the same Consanguinity, according as they are nearly ally’d. And tho’ there may be many, who either for having receiv’d Benefits, or from some particular Affection, have a greater Respect for Persons not at all by Blood related to them, than for the nearest Kin; yet for Peace sake it is necessary, without taking Notice of the peculiar Case of some Few, rather to follow the universal Propensity of Man, and to observe that Method of Succession which is most plain, and least obnoxious to Controversies; which would be very apt to arise, if the Benefactors and Friends of the deceased might be admitted to contest Succession with the next of Kin. So that if a Man has a mind to prefer those to whom he stands obliged by Kindnesses, or such as he has on any other account a Love for, he is to make such Disposals openly and expressly.

XI.Children Heirs. l. 4. c. 11. §3.Whence it follows, that the next Heirs to any Man are his Children, which are given by Nature to Parents to be carefully bred and educated, and for whom every Parent is supposed to wish a most plentiful Provision, and to design to leave whatsoever he shall die possess’d of. But by Children are chiefly understood such as are born in lawful Matrimony: For to these much Favour is due from Reason itself, from the Honour and Decency of the married Life, and from the Laws of all civiliz’d Countries, above the Illegitimate. All which Considerations obtain yet with these Exceptions, to wit, unless the Father has sufficient Reason not to acknowledge such a one for his Son, or disinherits him for some heinous Wickedness. In the same Case with Children are also to be consider’d Progeny of lower Degrees, as Grand-children, whom the Grand-father is bound to bring up, and who have Right to share his Inheritance together with the Uncles on both sides; and this, because there can be no Reason, that the Misery of losing their deceased Parent should be aggravated by being excluded from their Proportion of Inheritance in the Estate of their Grand-father. Upon failure of Heirs descendant, ’tis reasonable the Goods of Children revolve to their Parents; and that to those who are Fatherless, Motherless, and Childless their Brethren should succeed; and upon Default of these, the next of Kin to the deceas’d ought to inherit. Tho’ in order to prevent Contentions, to which on this score great Occasions are frequently given, and that this Matter may be settled for the publick Good, in most Communities the Order of Succession is found to be accurately stated; and such Directions of the Government it is most safe for every private Man to follow in this case, unless very weighty Causes force him to the contrary.

XII.Of Prescription.⁴⁴ L. N. N. l. 4. c. 12.Another derivative Method of acquiring Property justifiable by Law, was by the *Romans call’d Usucaptio, by the Modern’s Prescription; by which he who by honest Means and a just Title hath gotten Possession of what was really another’s, and hath also held it for a considerable time, without being disturb’d or oppos’d, obtains the full Property of the Thing thus possess’d, so as to extinguish all the Right and legal Claim of the former Owner.

The Reasons on which this Right of Prescription is grounded, are, First, The former Proprietor having for so long time neglected claiming what was his, is judged voluntarily to have relinquish’d all Right and Title to it; it being reasonable to believe, that in a sufficient Space of time he could not want Opportunities, had he had Inclinations to put in his Claim: Secondly, The Preservation of the Peace of Society demands, that he who by honest Methods comes to the Possession of what he has, should not be perpetually liable to have taken from him, what became his Purchase by a fair and honest Title; especially it being much more grievous to the present Possessor to be turn’d out of a Possession honestly acquir’d, than to the former Owner not to be put into Possession of what he had long since lost the Hopes and Expectations of. The Rules of Natural Equity are sufficient to determine what time shall suffice to create Prescription in particular Cases: However, it is much better, for the Prevention of Strife and Controversies, that certain limited times, according to Reason and Convenience, should be stated and mark’d out by all Communities, whereby it may be determined what shall make a good Prescription.

XIII.Last Will. L. N. N. l. 4. c. 10.The Whole also of an Estate may, by an Act of the former Proprietor, upon his Death be pass’d away by his ^†Last Will and Testament; for this has been allow’d by most Nations, that for some kind of Ease to our Thoughts of Mortality, a Man yet alive may, if Death happen, transfer what he has of outward Goods to some Person that he loves best. Now whereas in the most ancient Times it seems to have been customary, that the dying Man upon the Approach of his End openly declar’d his Heirs, and with his own Hands deliver’d such or such Portions into the Hands of them who were to receive; yet afterwards, for good Reasons, another manner of Bequeathing was approved by many People; to wit, that a Man may at any time, when himself thinks good, make his own Will, and either declare it openly, or keep it close in Writing; which Will also he may at his Pleasure alter, and of which the Heirs he has named or written down cannot make any Use till the Testator be dead. Not but that such Last Wills, of how much Authority soever they are among Men, yet are to be order’d with Consideration of the Party’s various Relations to Men, and of the Good of the Community; the Neglect whereof has given Occasion for the Laws oftentimes to provide and give Rules for making them; from which prescribed Directions, if any Man depart, he has no Reason to complain, that Regard was not had to his Last Will.

XIV.Gift.While Men are yet living, Things are transferr’d by the Act of the first Proprietor, either Gratis or Freely; or else by the Mediation of some Contract. The former Way of Transferring is call’d Gift: And of the latter, which is Contracting, we shall speak hereafter.

XV.Forcible Possession.Sometimes also Things change their Owner without the Consent, and even against the Will of the same Owner; and this is mostly in Communities, by way of Fine, when sometimes all the Estate of a Convict, sometimes such a Portion only shall be forfeited, and the same shall be given either to a private Person who has suffer’d Wrong, or applied to the Uses of the Publick.L. N. N. l. 4. c. 6. §14 l. 2. c. 16. §13. So in War Goods are forcibly taken from the Possessor, who parts with them very unwillingly, by an Enemy who is too strong for him, and become the true Property of the Seizer; not but that the first Owner has still a Right with a greater Force, whenever he can, to recover them, so long as till by subsequent Treaties of Peace he does in effect renounce his Pretences thereto.

[42.]Meaning not just animals but created things in general.

[*] See Grotius de Jure Belli & Pacis, lib. 2. cap. 2. §2. seqq.

[†] There was no need of any Convention, either exprest or tacit for this purpose. The Right of the first Occupant is necessarily concluded to be conformable to his Intention who bestows any Thing in common to many, provided, that in possessing one’s self of that which no one has a particular Right to, we content our selves with a modest Proportion, not engrossing the Whole, but leaving what is sufficient for the Occasions and Use of others. See L. N. N. l. 4. c. 4. §4. [Barbeyrac’s note (II.1, p. 174) dissents from Pufendorf’s treatment of all property rights as adventitious or conditional on “social” contracts. Barbeyrac views the property right of the first occupant as a natural and unconditional expression of his liberty. Pufendorf rejects the notion of natural rights, which he regards as a mortgage on sovereignty, treating rights instead as capacities arising from instituted offices and obligations.]

[*] See Grotius de Jure Belli & Pacis, lib. 2. cap. 3. §1.

[43.]The preceding sentence provides a good example of the manner in which Tooke’s anglicization adapts Pufendorf’s statist jurisprudence to the image of a community governed by common law. In Pufendorf’s original it is the state (civitas) that may set limits to private ownership of property, which is done not through “Municipal laws” but at the direction of civil government (imperium civile) or as a result of human agreements. Barbeyrac opts for sociétez civiles in which the limits are set by les Loix & par la volonté du Souverain or else by human conventions (p. 175).

[*] See Grotius de Jure Belli & Pacis, l. 3. c. 2. §3.

[*] That whereon the first Occupant properly grounds his Right is, his giving open Notice, before any other, of his Design and Intention to preserve to his own Use this or that Thing, which he has made himself the first Possessor of. If therefore he has given any such fair and significant Notice of such his Intention; or if any others, who might with him have a common Right to the Thing, shall freely and significantly set forth their Intention to depart from their Share, or Part of the Thing in favour of this Claimant: He then comes to have the Original Property in the Thing, even before he may have taken actual Possession of it. See L. N. N. l. 4. c. 6. [Barbeyrac’s VI.1, p. 177.]

[†] See Grotius de Jure Belli, &c. L. II. c. 8. §2. seqq.

[‡] See Grotius de Jure Belli & Pacis, lib. 2. c. 8. §2. seq.

[*] See Grotius de Jure Belli & Pacis, Lib. 2, cap. 8.

[*] See Grotius de Jure Belli, & c. l. 2. c. 7. §3. seqq.

[*] See the whole 4th Chap. of the 2d Book of Grotius de Jure Belli, &c.

[†] See Grotius de Jure Belli, &c. lib. 2. cap. 6. §14.

[⁴⁴]This section on prescription (usucapio) was originally Pufendorf’s final section (section XV), where it remains in Tooke’s first edition. It was relocated here by Barbeyrac, without explanation.