On The Duty of Man and Citizen
According to the Natural Law (1673)
Samuel von Pufendorf
On Duty as Regards the Acquisition of Ownership
1. Such is the constitution of the human body, that it needs for its nourishment things which it takes from without, as also for its protection against whatever tends to destroy its structure, and that this life can be made more comfortable and easy by a number of different things. Hence it is a safe inference that it is with the entire consent of the great Ruler of the universe that man makes use of other creatures for his own needs, and even destroys many of them. And this obtains not only as regards vegetables, and things that are destroyed without sensation, but also concerning innocent animals, which, in spite of the pain of their death, are killed and consumed by man for food without sin.
2. But in the beginning all these things are understood to have been set out by God in the midst, as it were, of all so that they belonged no more to one than to another; but so, however, that men should make such arrangements in regard to them as the constitution of the human race, regard for its peace and quiet, and the maintenance of good order seemed to demand. And thus, while the race of mortals was limited to a few, it was decided that whatever a man had laid hold of, with the intention of applying to his own needs, should be his and ought not to be taken away from him by another; but that the substances from which these things were derived, should remain in common, not pertaining to any one in particular. But later, when men had multiplied, and cultivation had come to be applied to the things from which food and clothing are produced for man, in order to avoid quarrels, and to introduce good order, even the substances of things were also divided among men, and to each his own portion was assigned. And this convention was added, that whatever in the first division of things was left common, could thereafter become the property of the first claimant. So then by the will of God, the consent of men in advance, and an agreement at least tacit, property in things, or ownership, was introduced.
3. Ownership then is the right by which the substance, so to speak, of a thing belongs to a man, so that it does not belong as a whole in the same way to another. Hence it follows that we can dispose as we please of things belonging properly to us, and can have acquired a special right from us by agreement. Yet in states it usually happens that ownership is not always unrestricted in the case of all men, but circumscribed with certain limits by civil authority, or by an arrangement or convention which men have made with each other. When one thing, however, belongs to several in the same way and without division, it is said to be common to those persons.
4. But as things have not come to be owned all together or at once, but successively, and as the need of the human race seemed to require; so it was not necessary for every single thing to be appropriated; but without detriment to the peace of the race some things could, and others should, remain in the primeval common condition. For if things are useful indeed to men, but yet inexhaustible, so that they can be free for all to use, and still the individual’s use is not thereby more niggardly, it would be superfluous and foolish to wish to divide them. Examples are the sun’s heat and light, air, running water, and the like. Here belongs also the vast ocean, lying between great continents, so far as concerns those parts of it very distant from the coasts; since not only is it entirely sufficient for the varied needs of all, but also its custody is morally impossible for any one people. For when a thing is so constituted that others cannot by any means be excluded from its use, to divide it, or make property of it, is superfluous, and also apt to furnish occasion for vain litigation.
5. The methods of acquiring ownership are either original or derivative. By the former a thing becomes property in the beginning; by the latter an ownership already established passes from one to another. Again the former are either absolutely such, — and by these ownership of the substance of a thing is acquired, — or relatively, by which property already ours receives some accession.
6. After individual ownership of things had been adopted among men, it was agreed by them that whatever had not come under the primitive division should fall to the occupant, that is, the first man to seize the thing by physical means, with intent to keep it for himself. Hence to-day the only original method of acquiring ownership of the substance of a thing is occupancy. By this means then we acquire desert regions which no man ever claimed as his. These become the property of him who first enters them with the intent to keep them for himself, bringing them under cultivation, and establishing certain limits up to which he claims ownership. But when a numerous company jointly occupies any tract of land, the common practice is to assign some part of it to the individual members of the company, and to count the remainder as belonging to the whole company. By occupancy also are acquired wild beasts, birds, fishes in the sea, rivers, or lakes; also whatever is usually thrown up by the sea upon the shore; provided, however, the promiscuous capture of things of this sort has not been interdicted by the civil authority, or assigned to some particular person. If these are to become ours, we must seize them by physical means, and bring them into our power. By occupancy also we acquire things, when the ownership to which they had previously been subject has been clearly extinguished. For instance, things thrown away with the intent that they are no longer to be ours, or things which we lose unwillingly in the first place, but later count as abandoned. Here too belongs the treasure-trove, that is, money whose owner is unknown. This falls to the finder, when it has not been ordained otherwise by the civil laws.
7. But very many things which are subject to ownership do not always remain in the same condition, but enlarge their substance by various kinds of increase. Some others receive accession from without; still others bring forth fruit; many have their value increased by the form which human industry has added to them. All of which can be comprehended under the term accessions, and they are divided into two classes. For some things are produced by their nature alone, without act of man; some are procured by the act and industry of men, either wholly or in part. With regard to these there is this rule, that if a man is the owner of a thing, to him also belong accessions and any profits; and that he who has made a new product out of his own material, is the owner of that product.
8. Frequently, however, it has happened that other men, as the result of a contract, or other means, have acquired a right to receive a certain benefit from a thing belonging to us, or to hinder us from using a thing of ours without restriction. These rights are commonly called servitudes, and are divided into personal servitudes, in which an advantage accrues directly to the person from the property of another; and real servitudes, in which the advantage is derived from another’s property through the medium of our own. Among the former are numbered usufruct use, the right of dwelling, the services of slaves. Again the real servitudes are divided into urban and rural. In the former class are, for example, the servitude of a supporting wall or column, that of windows, those which prevent the blocking of our light or view, that which requires one to receive the drippings of a roof, etc. To the latter class belong, for instance, right of passing, that of driving, that of building a road or an aqueduct, of drawing water, of driving cattle to water, of pasturage, etc. Nearly all of these have been introduced as a result of proximity.
9. Among the derivative methods of acquisition there are some in which a thing passes to another in accordance with the provision of a law, others in view of an act of the former owner. And the result is either that a man’s entire property is transferred, or a certain portion thereof.
10. An entire property passes by law to another through the death of the former owner in intestate successions. For it would be repugnant to the general inclination of men, and not in the least conducive to the peace of the human race, that property which a man had acquired with such labor in his lifetime, should after the death of the owner be regarded as abandoned, and open to the occupancy of anybody. Hence, under the guidance of reason, it has been accepted among all peoples, that, if a man had himself made no disposition of his goods, these should devolve upon those whom, in accordance with the common affection of men, he is thought to hold most dear. Such are regularly those who descend from us, and then others connected with us by blood, each according to the degree of propinquity. And though there are some men who, either on account of benefits received, or out of peculiar affection, love certain strangers more than their own relatives, still the interests of peace required men, neglecting the affection of a few, rather to follow the common inclination of mortals, and to observe the simplest method of succession, and one exposed to no intricate disputes. These would have cropped out, if benefactors and friends could compete with those who rest their claim upon blood. And if the man had any wish to prefer benefactors or friends to kinsmen, he should have made an express statement of the matter.
11. It follows then that a man’s nearest heirs are his own children, whose maintenance and rearing Nature has earnestly commended to parents; and every parent is supposed to have wished to provide for them as amply as possible, and to leave to them by preference whatever remains to himself. And by children we understand especially those born in lawful wedlock. For reason itself, and the proprieties of the civil life, and the laws of the more civilized nations, favor such more than natural children. But what has been said does not hold good, if a father has, for sufficient reasons, refused to recognize a person as his son, or has disinherited him on account of shameful depravity. Under children are further included those who belong to the remoter degrees. These the grandfather is bound to support, their own parents being dead; and hence it is entirely just that grandchildren should share the grandfather’s estate, along with their uncles on both sides. Otherwise, in addition to the misfortune of losing their father prematurely, they would be excluded from the grandfather’s estate. When there are no descendants, it is right that the property of deceased children devolve upon their parents. Those who have no surviving children and parents, will be succeeded by their brothers. When these too are lacking, the heirs will be determined by their degrees of consanguinity to the deceased. In order, however, to avoid the suits which can very frequently arise in these cases, and that the matter may be well adjusted to the interests of the state, we find that in most states the order of succession has been precisely determined. And it is safest for citizens to follow this order, unless important reasons force them to make a special disposition.
12. By act of the former owner an entire property passes after his death to another by virtue of a will. For as a poor consolation for our mortality it has been established among most peoples that a man can in his lifetime transfer his possessions in the event of death to him whom he loves most. But whereas in the earliest times it appears to have been the practice, when death was imminent, to name one’s heirs openly, and to pass over the property actually into their hands, later, for weighty reasons, many peoples preferred another form of will. This namely enabled a man, at any time he pleased, either openly to indicate his last will, or silently to authenticate it in writing. And this he could change at his discretion, while from it the heirs named viva voce or in writing derived no right until the death of the testator. Such last wills deservedly enjoy high favor; yet they must be regulated as the interests of relatives and the good of states requires. Hence the latter are accustomed to prescribe by law how a man is to draw up his will. And whoever departs from such prescription, is unable to complain that his will has been disregarded.
13. Among the living, things pass by act of the former owner either gratis, or by means of a contract. Transfers of the former kind are called donations. Of contracts we must treat later.
14. Sometimes things are transferred even against the will of the former owner, and in states this is especially by way of penalty, when men convicted of crimes have, now all their possessions, now a certain part of them, taken away, and applied to the state or else to the injured party. So too in war, things are taken away from unwilling owners by an enemy in superior force, and acquired by him who seizes them. But the former owner does not lose his right to recover them by similar violence, until by a subsequent treaty of peace he has renounced all claim to them.
15. Finally, there is a particular kind of acquisition called usucapio, or prescription, by which a man who in good faith and by fair title has gained possession of a thing, and has held it long in peace and without interruption, is at length regarded as its absolute owner, so that he can repel the old owner, if he wishes later to reclaim it. The reason for the introduction of this right was partly that a man who neglected for a long time to reclaim a thing was considered to have abandoned it, since in the long interval it was thought that opportunities therefor could scarcely have been lacking; and partly because the interests of peace and quiet required that possessions should finally be put beyond controversy. And this especially because it seemed much more serious to be deprived of a thing gained in good faith after long possession, than to lack permanently a thing formerly lost, the desire for which had been dissipated long ago. But in states peace and quiet require that certain periods be defined, within which prescription may be completed, according as reason and the need of the state suggest.