Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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СКАЧАТЬ man has to a thing which is his own, and just as proprietorship of a certain thing which pertains to one man excludes the right of all other persons whatsoever from that thing, so also from a thing in common possession all others are excluded who are outside the number of those for whom the thing is called common), but only as far as the limit of pertinence, because his own property pertains to one person, whereas common property pertains to several. Since none of these obtains to the thing a right which extends, as it were, to cover the whole, but a right which is valid only to a part thereof, it is perfectly patent that a single individual cannot dispose of that whole thing in his own right, but only of his fixed share in the same; and if some decision has to be made regarding the whole thing, the agreement and authority [autoritatem] of each of those to whom it pertains is required.

5. Now not only those things which belong to single individuals are our own possessions, but also those which belong to moral persons in conjunction, or societies as such. For these are a certain kind of unit. <24> Thus they have also their own goods and their own rights, which, wholly or in part, not only no one outside the society, but not even the members which are included in the same society, in so far as they are not conceived of as the whole society, can claim as their own in that manner of proprietorship which the society enjoys.

      Now things which belong to a public society or state come under what is essentially a threefold classification. For over some the state exercises merely eminent domain, but has left or assigned ordinary ownership to individuals. Such are territories, provinces, cities, countrysides, fields, &c.; likewise any kind of property of private persons, which is possessed, indeed, by individuals on share, in the ordinary manner of ownership, but still in such a way that the state retains eminent domain over it. The force of that eminent domain expresses itself in this, namely, that individuals are bound to pay assessments or taxes imposed on these things, nay more, to yield the whole of them to public uses, if, indeed, the Commonweal demand that. From certain things, moreover, the state has removed absolutely all ownership on the part of individuals as such, and has reserved the disposal and utilization of the same wholly to itself. Such are the public revenues, tolls, the treasury, the privy purse, and the like.

      The use of certain other things, finally, the state has left to citizens indivisibly, and has assigned ordinary ownership to no one in particular. And these are otherwise listed under the head of public property, to the use of which, if, indeed, there are not enough portions of them to go around, his claim is the best who was the first to put them into actual use. Thus, for example, the seat which any one has occupied in a theatre he retains by right against the late comer, unless it so happens that some particular disposition has been made about such matters. In this class are public buildings, public places, markets, theatres, streets, &c.; likewise seas, rivers, and public pools, the use of which is granted to any citizen whatsoever. Here also belongs sacred property, like temples, sacred utensils, ornaments and revenues of churches, and the like. For they are not the property of no man, but in fact belong to the state, nor are they entirely removed from human authority or uses. But they are called sacred from the end to which they are destined by the state, which is that they may especially serve the exercise of divine worship until some different disposal be made of them. Thence it comes about that, when necessity presses upon the state, if other means are unavailable, a state may, for example, melt down chalices and other utensils or sacred ornaments, sell the bells, use the revenues of churches, &c., without the obligation of restoring the like thereafter; and this the state can do by the same right by which it can lay hands upon money in a treasury whose funds are reserved for a very pressing emergency, or can sell public lands to private citizens. All this, <25> however, rests on the proviso that this right is to be utilized only under the pressure of extreme necessity, so that no suspicion of irreverence towards the Deity be incurred in the minds of the common people.

      What has hitherto been said about the goods of the state can be applied by analogy also to the goods of other societies which do not constitute states.

6. Here, however, it must be further noted concerning the possessions of a state, that some are so appointed as to make it possible for their use (whether that use be of all kinds or only restricted) to be free promiscuously even to non-enemy outsiders, without detriment to that state. These are called things of innocent utilization, as are fountains of water, rivers, straits, seas, royal roads, &c. The faculty of conducting commerce with foreign nations includes the employment of these for the purpose of travel. Since generally the more civilized states grant promiscuously to non-enemy outsiders the use of these things, upon this fact some have based the claim that they are not subject to any proprietary right, moreover that the law of nature altogether forbids proprietorship in them, and enjoins that an unlimited use of the same should be granted to all men; and that therefore those are violating a law of nature who, claiming for themselves proprietorship in these things, have desired to put restriction upon their use by outsiders, or to shut them off entirely from such use.³ It is quite certain, however, that those who put forward this claim are in error. Moreover, as far as public roads are concerned, it is well established that the owners of a region can keep absolutely any outsider from passing through it, or else can refuse to grant passage except on a definite regulation, or a definite charge. For, inasmuch as no one would deny them the proprietorship over the region, a part of which consists of public roads, it is clear that the same persons have also the right of disposition regarding roads, and that therefore they have the right of interdicting to others the use of these roads, if, indeed, it appear to them that such an action is in their own interest. Although, as long as the use keeps within the limits of innocent utilization, that right should not be exercised, because of the common obligation of men toward one another, by which any person whatsoever is bound to relieve the needs of any other person whatsoever, as far as that may be done without injury to himself. And yet nothing but extreme necessity gives one the authority to assert a claim to the use of such a road by violence;⁴ since, on the other hand, if all had an equal right to the road, whoever was prohibited from the use of it on any cause whatsoever would have just cause for war. Thence it follows that Dido acted properly and within her rights when she refused the comrades of Aeneas a reception <26> to her shores until it was well established that from them there boded no evil to the new state.⁵ So it was no act of injustice when the Edomites refused the Children of Israel, who promised indemnity merely on their word, a passage through their country, on the not unfounded fear that the latter would be compelled by their toilsome wandering to choose the land of the Edomites themselves.⁶ The same Israelites, also, were not given just cause for making war against Sihon and Og, kings of the Amorites, by the refusal of a passage through the territory subject to these kings, but by the fact that Sihon and Og, beyond what was right, crossed their own boundaries with an army to meet them, and provoked the Israelites to battle.⁷ For here there is no need of taking refuge in an extraordinary command of God, as in those wars in which the same nation attacked the Canaanites. For these wars would otherwise have been most unjust, had not a special mandate of God authorized the Jews to destroy nations which, although they were exceedingly contaminated with sins, had nevertheless not called upon themselves the arms of the Jews by any injury which they had done the latter.⁸

7. But whether the sea also be subject to the claim of proprietorship has been ardently disputed by the most illustrious intellects in our generation, some saying that it is so subject, and others denying it.⁹ Yet one ought not to be regarded as having unjustly hurt the reputation of any of these men, if one say that each has had rather the advantage of his own state before his eyes, than the zeal for truth which is under obligation to no parties. We are of the opinion that this controversy can be settled clearly and firmly if we assume here (an assumption which will be developed at greater length a little later), that man’s ownership of things, so that it is rightful by a positive divine law, arises from that concession of God by which He made man the master of the whole earth. In this concession, which has the character of a privilege and not a command,¹⁰ since there is express mention quite as much of the fish of the sea as of the beasts of the field,¹¹ СКАЧАТЬ