Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

Чтение книги онлайн.

СКАЧАТЬ body. Therefore, if one has wrongfully violated a mother, so that her offspring is thereby born disabled in some member, we think that this offspring on reaching maturity can bring an action for injury against that individual, unless the latter can establish effective ignorance. However, since the shapeless seed within the first few days of conception can be called properly neither a man nor a human body, we are of the opinion that, if any one compass its corruption or abortion, it cannot be said that a wrong has been done against that seed; although, in fact, the individual in question is sinning against the law of nature by depriving human society of a member, and is doing a wrong both to the state, which he is despoiling of a citizen, and to the parents, whom he is despoiling of a hoped-for offspring. <10>

4. But the further question is raised, namely, whether a right can be acquired by one person for another even before he exists at all in nature; and with this effect, namely, that, if this right be alienated from him by another, or in any manner whatsoever diverted, he may, upon his birth in after time, be able to complain of a wrong, as it were, done to himself, and to demand complete restitution. Laying aside the fictions of the civil law, by which in certain cases the law sustains the person of those who are not yet in existence, we are of the opinion that no right can be claimed by one who is not yet in existence, except indirectly through the person of one who is now in existence, through whom that right will be transmitted to the one who is to be born thereafter; in such wise, however, that this right will not have its effect with regard to the one to be born, until after he has been born.⁵ And this situation arises when something is acquired by some one or is handed down to some one, to be kept in such a mode of possession that he lets it pass on down to his successors also. Here, however, a certain difference is found; for some things are conferred upon another in such wise that it makes no difference to the donor whether the property goes to the other’s descendants or not, although the recipient, so far as he is concerned, has the power to transmit it to his descendants. But some things are conferred in such wise that the donor retains for himself a certain right over the manner of possession that has been determined by himself, in such a way that the other cannot part with it except with the donor’s consent. In whichever fashion something may be possessed by the predecessor of the one not yet born, to be transmitted to him, if in any way whatsoever it be diverted or alienated before the latter’s birth, wrong is by no means done to the one born thereafter, unless his predecessor left him at least a claim to it by way of inheritance. For, in the former case, because the property, together with the manner of its possession, is entirely within the power of the possessor, if now he has alienated it or in any way whatsoever caused it to be no longer in his possession, absolutely all right to the same is extinguished; and therefore it cannot be transmitted to the one not yet born, who can claim no right to such possessions of his ancestors except that right which is turned over to him by the same, from hand to hand, as it were, when he is already in existence.⁶ And, in the latter case, since authority over the manner of possession still remains with him who bestowed some property upon another, the possessor assuredly accomplishes nothing to the prejudice of his successors if he alienates it, or treats it as derelict in whatever way it may have passed out of his hands, unless the donor consent. And therefore, if the people have bestowed upon some one the throne to be continued for ever in the line of his descent, the king’s act will be of no avail if he alienate the throne against the will of the people; nor can that act of the parent redound to the injury <11> of his offspring, even though yet unborn, if, indeed, the people wish the throne to inhere according to the manner in which the possession of it was once established. But if, on the other hand, that be done with the consent of both parties, of the one who possesses the property, as well as of the one who has the right to settle the manner of its possession, that right likewise is utterly extinguished before it can come to those who are born thereafter. Nor do the people by changing the manner of possession do wrong to the latter. Because not for the sake of these, but for their own sake did the people reserve to themselves the right concerning the manner of possession; and therefore it was for no one in this case except themselves that they sought or retained the right, and if they abdicate, or change it, no one else has any ground for complaint. From all this it is clear how one must decide the otherwise thorny question, whether it be possible for the not yet born tacitly to give up their right owing to the dereliction of their ancestors.

      Now human status comes to its end through death in the course of nature, after which the reverence and honour accorded to remains and reputation is exhibited primarily for the sake of the survivors. What, furthermore, we believe from the Christian religion concerning the status of men after death may be secured from the Sacred Scriptures.⁷

5. Subordinate to the natural status of man and proceeding immediately from it is peace; for every man whatsoever, just because he is a man, is under obligation to cultivate peace with every other man whatsoever, so long as care for his own safety does not persuade him to a breach thereof on account of the wrongs done him by others. Now peace is either universal or particular. The former extends to all men whatsoever who use the law of nature in their dealings with us, and consists first and foremost in this, namely, that no one injure another unjustly, and, if by chance controversies arise, that he be at pains to have them adjusted by a mutual arrangement or by arbitrators. This peace stands solely by obligation of the law of nature, and unless the parties to the agreement come together into one body or society on that account, it is useless to fortify it by a pact or by treaties. For by a pact of that sort nothing is superadded to the obligation of the law of nature, nor does it become thereby a firmer bond, and violence is done to a man in this connexion with equal injustice whether a pact has intervened or not. It is also alien to the custom of men to enter into such a pact whose headings or conditions would contain nothing else than the mere direct non-violation of the law of nature. For in any pact whatsoever something is placed as a condition or a heading which another would not otherwise be able to demand of me by the law of nature, and therefore something which I did not owe him fully <12> on the basis of the law of nature; just as I am not bound by the same law to enter into a pact with another, although in due consequence, and assuming my consent, I would bind myself in the matter of furnishing another with some matter that was otherwise not his due, because I would be unwilling to violate that law of nature which bids pacts to be preserved. For just as the one who assigns another his services does by no means expressly and immediately agree under the headings of the pact that he will not act towards the other as, let us say, a traitor, a thief, a rascal, &c., even if, in due consequence, all of that is involved in the pact; so that would be a covenant which deserved to be blushed at, if a man should bind himself to another for nothing further than that in his treatment of him he would not violate universal peace, that is, would not use toward him the right which is commonly employed against beasts. But what they call the pacts of friendship do superadd something to the universal peace. For assuredly we do owe something more to a friend than to any other man whatsoever, as being such, and not an enemy. Moreover, those pacts or instruments and documents by which passage is made from a state of war to mere universal peace, contain nothing else than the public attestation that there will be on both sides a cessation from war, and the conditions to be fulfilled by both or either side, if arms are to be laid down; after all this has been done, then universal peace proceeds from the sole obligation of the law of nature.

      Particular peace is either internal or external. The former obtains among those who have come together into one body or society, when they supply that for the sake of which the society has been instituted, and do not violently resist the authority which the society rightfully exercises over them. This peace is not disturbed by every exercise of force whatsoever, but only by the exercise of that force against the exercise of which provision was made in the agreement to establish the society. Thus, for example, internal peace is not disturbed in the state when the magistracy forcibly restrains and punishes evildoers; but civil war arises only when others attempt by the exercise of violence to save those men from punishment and to resist the magistracy in the exercise of its right. External particular peace is that which is fostered with other societies, consecrated and fortified by special treaties. In this class, after a treaty of friendship comes a treaty of commerce, granting the right to enter the territory of the other СКАЧАТЬ