Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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СКАЧАТЬ those persons by whom they are conceded, who by means of donation grant those same things, or symbols representing them, to the first who lay hands upon them. Under the heading of no man’s property come also those things which are treated as derelict by a former owner, in that he either intentionally throws them aside and does not desire them to be his any longer, so that he transfers his right to no one in particular; or else, when they have been lost by some accident, he neglects to recover them. Whence it appears that those things are not listed here which are thrown overboard for the sake of lightening the ship, or have been swallowed up by the sea after shipwreck, and are cast up upon the beach;⁴⁴ likewise things which are lost by travellers. For the owners retain their right to these things as long as they maintain the purpose of hunting for them again; and to the finders of such things no more is due by the law of nature than is the value of their effort in gathering them up and preserving them. And there is a certain flavour of piracy about those civil laws which appro-<52>priate to the fiscus, or to those who live along the coast, the goods of shipwrecked men even after they have been recognized by their owners.

29. A corporeal thing is an extended substance considered in a moral fashion. It is divided commonly into mobile and immobile. Things mobile are those which, not being attached to the soil, can be transported from place to place, like money, clothing, cattle, utensils, &c. First among immobile things is space, which is immobile both in its proper nature and from the beginning; and it can be divided into common space and proper space. By common space are designated public places, for example, markets, theatres, temples, military highways, &c. Proper space is that which perpendicularly hangs above or lies beneath the area of the possessor, upwards as well as downwards. Now since the areas of the terrestrial globe possess a spherical convexity, any one understands that perpendicular lines meet below in the centre of the earth, but diverge and expand upwards to infinity.⁴⁵ Thence it follows that I might lawfully build a structure above my ground, even beyond the lunar heaven, if that were possible, unless perhaps the territorial limits of the inhabitants of the moon were in my way; so, likewise, I might lawfully dig down until I reached only as far as the centre of the earth, even if it were possible to go farther. For that which in respect to us lies beyond the centre belongs to our antipodes. Yet in certain places positive laws assign not to the private owners of estates, but to the fiscus, that which is found in an area below such a depth that it cannot be reached by the ploughshare. Perpendicular lines, however, drawn in both directions, upward and downward from the circumference of my area, are to be observed carefully. For, just as my neighbour cannot erect a structure which overhangs my area, although it does not rest upon my soil, but is upheld by beams which project transversely from his own house; so, in turn, I have no legal right to pass beyond the pyramidal surface^* by building on the sides, unless, perchance, an agreement has been made on that point by special pact.

      After space as a thing immobile from the beginning, follows the natural substance of earth, which here appears under the name of land. After earth follow those structures attached to the earth, together with all things which are made fast by nails and bolts. Here can be referred not only windmills whose foundations remain firmly fixed to the soil, despite the fact that at a breath of wind the structure itself can be turned around to all points of the compass; but also floating mills, as they are called, which, although they admit a change of location, must nevertheless be firmly fixed to the land by means of <53> anchors or stakes, so that we get any good out of them. These are not built for the purpose of being in motion like ships, but for the purpose of being fixed. Although herein positive laws or customs of places differ, as they do also in regard to ships, which, although they have been built for the purpose of being in motion, and properly supply the use of vehicles and not houses, are in some places classed among immobile things.

30. An incorporeal thing,⁴⁶ which is a mode considered as a subject in respect to pertinence, can be divided into qualitative and quantitative. To the former belong primarily titles, authorities or moral powers, rights, aptitudes, and other things of the same sort, if there are any. To the latter pertains value, which is sometimes of persons, and is then called esteem, sometimes of things and actions, and those either good for man, and called worth, or bad for man, in which case there is no special word, unless one be willing to call it, after the analogy of demerit, an unworth (depretium). <54>

DEFINITION VI

A title is a moral attribute by which distinctions are marked among persons in communal life according to their esteem and status.

1. The distinction between titles and their effect.

1. TITLES have primarily a twofold distinction. Some mark directly the intensifying of the esteem of persons in communal life, or their peculiar qualities, and connote and suggest their status more clearly or more obscurely in proportion as that title is wont to be granted to one status or to several. The extremely copious crop of these titles which has sprung up in this present age among certain nations is wearisome to gather together here. Now some directly denote the status, or position in status, as well as indirectly connote the intensifying of esteem which is wont to adhere to that status and office. Such are any and all names of moral persons, which are here regarded not so much in themselves, in so far as they are notions representing to the intellect of another the status and office of a certain person; as in regard to the degree to which they denote the rights, authority, and function of a certain person as fixed by the imposition of men. Hence it is not for nothing that sometimes titles are fought for with the greatest ardour among men, because, when the title is denied, it is understood that a person is denied also the status, authority, right, and office, which that title is wont to express or to connote. <55>

DEFINITION VII

Authority is an active moral power by which some person legitimately and with a moral effect is able to perform a voluntary action.

1. Perfect authority and imperfect.

2. Personal and communicable.

3. Division of authority on the principle of the object, where also sovereignty is treated of.

4. Authority over alien things.

5. The effect of authority.

1. AUTHORITY, as it here comes into consideration, is either perfect or imperfect. It is the former when he who interferes with its exercise violently СКАЧАТЬ