A Methodical System of Universal Law. Johann Gottlieb Heineccius

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СКАЧАТЬ constitution naturally, together with a principle of benevolence, and a sense of public good, a love of power (of principatus, as Cicero calls it in the beginning of his first book of offices) without which our benevolence could not produce magnanimity and greatness of mind, as that desire of power would, without benevolence and a sense of public good, produce a tyrannical, overbearing and arrogant temper. Some moralists do not seem to attend to this noble principle in our nature, the source of all the great virtues, while others ascribe too much to it (as Hobbes), and consider it as the only principle in our nature, without taking our benevolence and sense of public good, which are as natural to us, into the account. (See what I have said on this head in my Principles of Moral <200> Philosophy.)¹⁰ But both principles belong to our constitution; and therefore our virtue consists in benevolent desire of, and endeavour to have authority and power in order to do good. 5. It is in consequence of this principle, that it is lawful to have dependents or servants, and that it is lawful to endeavour to raise ourselves, or to exert ourselves to encrease our power and authority. The great, sweet, the natural reward of superiority in parts and of riches, and consequently the great spur to industry, is the dependence upon us it procreates and spreads. And why should this noble ambition acknowledge any other bounds but what benevolence sets to it: Any other limits but what the Author of nature intended should be set to it, or rather actually sets to it, by making the exercises of benevolence so agreeable to us, as that no other enjoyments are equal to them in the pleasure they afford, whether in immediate exercise, or upon after reflection; and in making mankind so dependent every one upon another, that without the aid and assistance of others, and consequently without doing what he can to gain the love and friendship of mankind, none can be happy, however superior in parts or in property he may be to all about him. Every man stands in need of man; in that sense all men are equal; all men are dependent one upon another; or every man is subjected to every man. This observation is so much the more necessary, that while some moral writers assert, that man has a right to all things and persons to which his power of subjecting them to his use can extend or be extended; others speak of our natural equality in such a manner as if nature had not designed any superiorities among mankind, and as if all desire of, or endeavours after power or authority were unlawful; which last must result in asserting, that all culture of the mind, and all industry are unlawful, because the natural consequence of the one is superiority in parts, and the natural effect of the other is superiority in property; while the other terminates in affirming there is no distinction between power and right, or between power rightly and power unreasonably applied, i.e. no distinction between moral good and ill, i.e. no distinction between reasonable and unreasonable; which difference must remain, while there is such a thing as public good or benevolence, or such a thing as reason, as hath been already fully proved. 6. If the preceeding principles be true, due attention to them will lead us through most of our Author’s succeeding questions about derivative acquisitions and succession. Because the effect of property, which makes it the great reward of industry, is a right to dispose of our own in our life, or at our death, which admits no limitations but what benevolence sets to it; in consequence of which right and duty, succession to him who dies without making a disposition of his estate, ought to take place in the way a wise man, directed by benevolence, must be presumed to have intended to dispose of his own at his death, i.e. according to the natural course in which benevo-<201>lence ought to operate and exert itself, already taken notice of. For when the will of a person is not declared, his will ought to be inferred from his duty. We shall therefore for some time have but little occasion to explain or add to our Author.

CHAPTER X

       Of derivative acquisitions of dominion or property made during the life of the first proprietor.

      SECTION CCLXVI

      Transition to derivative acquisitions.

      Dominion being acquired, a change sometimes happens, so that one acquires either property or dominion in a thing, neither of which he before had; and such acquisitions we called above, (§240), derivative. Now, seeing the thing in which we acquire property was before that common: the thing in which we for the first time acquire dominion, was before that the property of some person: as often as we receive our own proper share of a common thing, there is division; as often as we acquire the whole thing in property, there is cession;^* and as often as another’s property passes by his will into our dominion, there is, as we called it above (§240), tradition, or transferring.

      SECTION CCLXVII

      By them is made alienation necessary, voluntary, pure, or conditional.

      In all these cases, what was ours ceases to be ours any longer in whole or in part, and passes into the dominion or property of another person; and <202> this we call alienation, which, when it proceeds from a prior right in the acquirer, is termed necessary; when from a new right, with the consent of both parties, it is called voluntary.^* But the effect of either is, that one person comes into the place of another, and therefore succeeds both to his right in a certain thing, and to all the burdens with which it is incumbered. Alienation is called pure, when no circumstance suspends or delays the transferrence of the dominion; and when the transferrence is suspended, it is called conditional alienation.

      SECTION CCLXVIII

      And that either for the present time, or for a time to come.

      Voluntary alienation cannot be understood or take place otherwise than by the consent of both parties: but there may be consent either for a present alienation, so that the dominion may be transferred from us to another in our own life, or for a future alienation, so that another shall obtain the possession of what is ours after our demise: and this consent to a future alienation, is either actual, or it is inferred from the design and intention of the person.^† Now by the first of these is what is called testamentary succession; and by the latter is what is termed succession to one who dies intestate. We shall now treat of present alienation, and in the succeeding chapter we shall consider future alienation. <203>

      SECTION CCLXIX

      What division is, and why one may demand it.

      The transition from community to property is made by division (§266), which is an assignation to any of the associates of his competent part of the whole in positive community. Now seeing any associate or sharer can exclude all but his fellow associates or sharers from the use of the thing common to them (§231); the consequence is, that any of the associates may demand the use of the thing according to the share belonging to him, and therefore <204> may demand a division; and the others, if they should oppose a division, are so much the less to be heard, that positive community doth very ill suit the present state of mankind (§238).^*

      SECTION CCLXX

      How it may be done whether the subject be divisible or indivisible.

      A subject is either easily divisible into parts, or it is indivisible; either because in the nature of the thing, or by laws and customs, it cannot be divided into parts. If therefore an associate demand a division of a thing in its own nature divisible, nothing is more equal than to divide it into as many parts as there are associates, and to commit the matter to the decision of lot. But if the thing be indivisible, it is either to be left to one of the associates, who can pay, and bids most for it, or to whom age or chance gives a preference, who, a valuation being made, is to satisfy the rest; or it is to be sold to the best advantage, and the price СКАЧАТЬ