Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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СКАЧАТЬ for themselves by the consent of those other parties. Here, however, the observation must be made, that just as a prince can of his own right prevent any merchandise that is produced or manufactured in his jurisdiction from being exported by outsiders, unless by a pact or by a generous concession on his part they have acquired that faculty (yet no one is bound by the law of nature to enter upon such a pact, or to grant this <30> favour to any one, unless perchance extreme necessity be pressing him, so that without commerce with the other the first would perish); so, if, for example, a European nation has made some region in Africa or India its own in the way in which it is customary among the nations to introduce dominion, it would be justified at its pleasure in cutting off all access thereto on the part of others, or else allowing access only on a definite condition or at a definite charge.¹⁴ But, in truth, it is without all colour of right when one people presumes to interdict to another non-enemy people the passage across the ocean to a third people, likewise non-enemy, for the sake of carrying on commerce, and does so on this ground alone, namely, that thereby it would lose something from its own profits, unless it so happen that the third nation desires to exclude the second on some definite grounds. And this conclusion is not affected by the fact that merely that nation alone, even though it be for a long space of time, has gone thither for commercial purposes. For unless this third people has specially granted another, to the exclusion of all others, the faculty of access to it, that other people will no more be able justly to keep the rest away by virtue of its priority, than he who was the first to buy wine from a wine merchant can keep others from buying there also.

11. Furthermore, that which is, as it were, the final complement of proprietorship, upon the establishment of which proprietorship begins fully to exert its effects, is possession. By possession a certain thing is, either by a man’s own act or through another acting in his name, actually apprehended and occupied, as far as the nature of the thing admits, and the man so has it under his authority that he is able to exercise in action the force of ownership over it, and to make disposition of it. This possession begins in the bodily act of seizure, and that it may produce some effect there ought to be not merely in the mind of the one who seizes, the intention of taking possession of the thing by that act, but the act of seizure must be so ordered that others may be able to presume that the thing has been apprehended with that end in view. Now apprehension is understood to take place not only when the body is brought in contact with a thing, but frequently even by a sign intended for that purpose, such as the acceptance of keys, when, for example, some one buys a house, or buys merchandise in a storehouse, and the like.

      Furthermore, two kinds of possession are recognized: legitimate possession, when we have a right to the thing that we hold, and have also observed all things requisite in taking possession of it, if it so happen that some things are prescribed by positive laws; and illegitimate possession, when a man has no right, or no sufficient right, to that thing which he has brought under his power [potestatem].

      This possession is again either quieted, when no one has called into <31> question any right whatsoever of the possessor; and unquieted, when the same right has been brought by protestations, or in other ways, into controversy. Now of whatever kind the possession be, this effect always follows it in states, namely, that the thing is regarded as belonging to the possessor until the contrary is clearly proven. Although sometimes an illegitimate possessor also is helped by this presumption, namely, when the owner cannot bring forward in court arguments that carry conviction with them, for there it is allowable to penetrate to the truth of a matter only by external indications; still, in general, it was to the public good to have that principle accepted, because otherwise any one whatsoever might at the pleasure of any one else whatsoever be exhausted in proving title to his own possessions. And yet among those who use the simple law of nature between one another, this presumption is not valid as long as they subject themselves to no arbitrator or judge, because they are bound to prove the strength of their right to no third person. Hence the position of the possessor in a court of law is always better than that of the claimant, because, of course, the bare proof of possession is all that is incumbent upon the possessor, and that is most plain and simple; but the claimant is bound to prove his right, which is a much more intricate and difficult process, ownership and use of the property remaining also meanwhile with the possessor until the claimant has proved to the judges the justice of his petition. This makes clear that famous dictum of the Roman jurisconsults: “It is worth less to have a legal action than to have the property.”¹⁵ For, of course, even if you should have a right, based upon firm proofs, to a thing which is possessed by another, and therefore it may be regarded to some degree as your own; nevertheless, aside from the fact that for the time being you are compelled to go without the use of the thing, in a state, at all events, there is incumbent upon you the labour of proving to the judge your right, and if he happen to be a corrupt judge and render an unjust decision, you will assuredly have to acquiesce in it. Among those, however, who use merely the law of nature among one another, the dispute must be committed to the uncertain dice of Mars.

      On the other hand, what we wholly owe to another, although as long as we have not paid it, it has still to some degree a place among our goods, that is yet, in truth, not our own. Thus, he that has a thousand pieces of gold, but owes the same amount, has nothing; while it would be no absurd statement to make, that he who owes more than he has, has less than nothing. This throws light on the remark of a certain man who was in debt: “I need a number of talents, so as to have nothing.”

12. The next point, therefore, is to examine into the origin of proprietorship, and the more ordinary ways of acquiring it. Here at <32> the beginning we lay as our foundation that statement of Sacred Scripture, namely, that it came to pass with the consent and will of the Deity, that man took to himself proprietorship and dominion over things not merely inanimate, but also animate.¹⁶ For we read that those things which spring up out of the earth were expressly assigned to man for food, and that cannot be except the same be consumed. Nor did God any the less concede man authority over things animate that live in the air, on the earth, or in the waters. This concession, as we have already suggested above, does not have the force of a command, but merely the granting of a privilege which any one may use as far as it pleases him, and he is not bound to every kind of exercise of the same. For otherwise man would be sinning against the divine law if he should let free any animal, let us say, a bird, a fish, or a wild beast, or should neglect an opportunity of bringing it under his power [potestatem]—a statement which no sane person would make.

13. Furthermore, it is not perfectly clear whether that concession of dominion over things animate grants man, from the very nature of dominion, an unlimited authority, so that he can kill them even for uses that are not necessary. For dominion does not involve the licence of killing with impunity and as a mere whim; nor would men have been able to complain that divine indulgence had been parsimonious toward them, or that their needs had been but ill provided for, even if authority over the life of animals had been denied them. For truly their service in cultivating the soil, and their products otherwise useless to themselves, like milk, or part of their eggs, wool, &c., could have sufficed men for maintaining life. Nor does it immediately follow from God’s bidding them to be sacrificed as a token of divine worship, that man has acquired the authority to turn them to food at his pleasure. For it is possible that man, by a special command of God, has a right to do something which otherwise would by no means have been his right. Yet indeed, because we have observed that God has nowhere disapproved of such slaughter of animals for man’s food, but rather has ordained definite rules for the same, we conclude correctly that it is not opposed to His will.

14. If, however, we consult the mere law of nature, since it assuredly would recommend to men that life be maintained, and it is impossible to preserve life without the utilization and consumption of vegetables, at least; it is understood that it has by all means granted the utilization and consumption of those things without which man is unable to preserve life. This is especially true inasmuch СКАЧАТЬ