Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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СКАЧАТЬ to be thought to have entered tacitly upon another pact also, to the effect that, inasmuch as they themselves had entered upon the universal inheritance of the world, as it were, whatever had at that time not been expressly assigned to some one person, at all events in the way of universality, should fall to the one who afterwards was the first to take possession of it.²³ It must be understood that this pact had been made for the purpose of avoiding strife thereafter, which would otherwise certainly have arisen, although things which, by the tacit consent of the nations, have been so treated as derelict that no one is able to ascribe their possession to himself without consent on the part of the same, cannot at all be claimed by any one person through the right of occupation;²⁴ a view which we have set forth above in regard to the vast expanse of ocean far from coast-lines. It was, therefore, by title of occupation alone, if you remove from consideration the concession on the part of God, that the first man received his authority over all things, and he needed no further title, because there existed no one whose right could stand in his way. And he acquired dominion over all things none the less because he was unable by an act to take possession of all things, and apply them to his own use. For it is sufficient that, while he took possession physically of some portion of things, he had included others in his intent, and was going to take possession of them also when need of them arose; just as he who has entered merely one apartment of a palace, has occupied the whole,²⁵ and, in the case of things which, as a whole, have devolved upon some one, he who has taken hold of some portions only, is adjudged to have taken possession of them one and all. Yes, and the same right would have been sufficient, even if a number of men had been created by God at the same time. For the pact which under these circumstances they would have regarded as necessary to make about the division of things for the sake of preserving concord would not have given them a new title or a new right, but would merely have circumscribed within definite limits a right which was common, and would have assigned to each his proportional share; since, of course, such a pact about things does altogether presuppose a certain right to the same.

17. From the first man that dominion over things has been transmitted and conserved to posterity by various titles, in such a way, however, that in his case this dominion was undivided, and both unimpaired and unrestricted in every part, but in their case, because of the plurality of those who enjoyed an equal right, it was not at all possible for a single person to succeed to the whole inheritance, but the property had to be divided into several portions. And afterwards, when men multiplied and separated into states, it rested with these <37> same states to determine the effects of proprietorship and to include it within definite limits; for example, that it should not be permissible for any one whatsoever to turn to merely any kind of use a definite sort of thing; likewise, that it should not be allowed any one whatsoever to alienate his own property in any way he desired, and the like. Furthermore, of those titles by which property has been transferred from the first man to posterity as such, there are two of prime importance: Donation made by a living person and succession to the right of a deceased person, or entrance upon an inheritance, whether that be by testament or without a testament.²⁶ That a portion of goods was transmitted to children during the lifetime of their father is perfectly clear from the longevity of early man, which does not allow us to believe that sons lived such a space of time without possessions of their own, and the very authority of sacred history repeatedly declares. For we read that Abel and Cain sacrificed to the Lord of their own possessions.²⁷ So, afterwards, when dominion over the whole earth had returned once more to Noah, it is reported on good authority that he divided the three portions of the globe among his sons.²⁸

18. Now, as regards this donation and, as it were, assignation of possessions of their own, it must be observed that it was not necessary for a father to grant exactly as much to one of his children as to another, and that he did not sin against a law of nature if he gave to one more and to another less, provided only that he gave to some particular one what might suffice for his needs; although it might have been proper to take into account the offspring of the one who is under consideration, in so far as the number of such offspring could be conjectured with probability, so that they might not think it necessary in after time to take violent measures in order to provide for their needs. Otherwise nature absolutely binds parents only to the point of furnishing necessary supplies to their children. But, for the rest, as it is, indeed, the most convenient means of preventing envy among children, if a father distribute equal portions among his children who are equal, and who have equal deserts; so, none the less, it could rightly be established in many states, that, in order to preserve the splendour of families, the larger part of the possessions should go to the first-born son alone, and that daughters, inasmuch as they pass over into other families, should not share equally with sons in goods of some particular kind, whatever that may be. And surely no wrong is done other children if a parent gives to one child or another some special gift in comparison with what he give the others, whether that be for definite grounds in the case of that child himself, or merely on account of a special inclination of the heart toward him. The same holds true also in the case of testaments; for, on the basis of the law of nature, no complaint against a testament as being contrary to one’s duty has any grounds, <38> except when the father, without antecedent wrong on his son’s part, has left him not even the necessaries of life. For children have, to the goods of parents, as long as the rights of the parents remain, not a right, but only a natural aptitude, at least as far as the requirements of their necessary sustentation, and this natural aptitude has the same effect as a right when necessity urges, such as appears in this case, since otherwise this son would have to perish or live a life of misery. Therefore, by virtue of this principle, a son who has been passed by in a testament can recover from the other coheirs his portion, if he lives in a state, by process of law, or, if outside a state, by force. But if, indeed, succession must be entered upon without a testament, then, without doubt, those who stand in the same relationship to the deceased, receive also equal parts in his goods when positive laws do not establish something different. And as equal parts those things also are regarded which one has himself selected for his own portion with the consent of the others, or, when assigned him by his coheirs, has approved, or has received by lot, even if possibly they are not in themselves equal to the other portions in value.

19. There are, furthermore, several ways in which property passes from one person to another, not as though passing to a man’s heir. These can be divided conveniently into means or titles which are lucrative, and those which are burdensome.²⁹ Among the former is donation. This is when, out of pure liberality, something is given another person which could have been withheld without doing him wrong, and is unaccompanied by the stipulation to furnish under compulsion, as it were, some other thing or service. A species of this is the alms or charity which is distributed among the poor and those who have been overtaken by calamity. Here belong also rewards, when something is given to some one in view, to be sure, of a bit of work which has preceded, yet not as it were for pecuniary compensation, but rather as though from a certain free munificence, in order to extol the recipient’s talent and to stimulate his own and other men’s talents to yet further achievement. In such a way also do all kinds of inheritances pass, whether with or without testament. You can, however, scarcely list among these inheritances the trusts [fideicommissa], and things which have a relationship to them, as, for example, when an entire inheritance must be expended for definite purposes designated by the testator;³⁰ for properly speaking nothing is acquired in these transactions, but only the burden of a mandate is undertaken, seeing that the same things must be transferred to others. Here it must be noted that, just as by the law of nature no one is bound to assume an inheritance which is burdened with debts that exceed it in amount,³¹ so, by the same law, if a man has assumed it, he is not bound to make up out of his own property that whereto the inheri-<39>tance does not suffice. But where civil laws bring the payment of all the debts of the testator upon the heir, the latter will be held bound to pay them, yet not on the basis of the testament and the wish of the deceased, but on the basis of his own consent;³² although it is true that in the Roman law the slave of the master who died involved in debt was compelled to become his master’s heir, not in СКАЧАТЬ