LITMIR.BIZ

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authority is communicable which one can transfer to another legitimately, and, indeed, by his own proper initiative.

3. For the rest, it is permissible to reduce most authorities, from the point of view of their object, to four species primarily; for they regard either persons, or things, and both of these as either one’s own or alien. Authority over persons and actions which are one’s own is called liberty, which can be understood from what was said above, where we treated of statuses. Authority over things which are one’s own is called ownership, which likewise has been explained above. Authority over the persons of others is called sovereignty, whereby another can be enjoined legitimately and efficaciously to supply something, that is to say, so that another is under obligation not to resist my order or not to refuse the same. Now sovereignty is either absolute or restricted. It is the former, when its acts cannot be rendered void by any third person who is superior, nor be refused obedience on the part of those over whom sovereignty is exercised, upon the basis of some right which has been sought or retained by a pact entered into at the time when the sovereignty was established. It is the latter, when one or the other, or both of these, can take place. For one’s sovereignty admits of restriction in a twofold fashion, either when, by him who has a superior sovereignty, the power of the one who exercises his sovereignty is checked, or those who obey are absolved from the obligation of taking specific orders; or when those who have put themselves under some one’s sovereignty, have by a pact made for themselves the express reservation that they are unwilling to be bound by his orders in certain things. Such a restriction is not at all repugnant to nature. For, since he to whom sovereignty is given possesses otherwise no right over me, and therefore holds by my mere free will whatever authority he has over me, it is assuredly patent that it rests with me how far I care to admit his sove-<57>reignty over me. And yet these restrictions ought not to be of such a kind that they overturn the purpose of sovereignty and reduce it absolutely to nothing, or render unavailing the pact between the ruler and the ruled. And the ruled are not understood to have the authority to refuse certain commands of the sovereign, unless there be the privilege of appealing to arbitrators or to a judge, or of coming together into a council where they may have the right of considering the deed of the sovereign; on which topic I shall have more to say elsewhere.

      In the second place, sovereignty is either private or public. The former belongs to persons as private individuals for the use of each as such. Species of this sovereignty are the authority of a father, the authority of a master or owners of slaves, the authority of husbands over wives, preceptors over pupils, guardians over wards, &c. Public sovereignty is that which comes to persons in their public capacity for the use of civil society. If this sovereignty be supreme in the state it has an adjunct authority, which men call eminent, over the persons and property of subjects, an authority which is stronger than any rights whatsoever of individuals, but one to be exercised only for the public safety.

4. Finally, by authority over the property of others, we refer to those rights which have been secured by some one over the property of another, through the concession of the owner or through a pact, proprietorship over the property remaining with the owner. Here belongs usufruct, which is the right or authority to use the things of another, without doing injury to their substance. It is a matter of legal tradition that usufruct can be established in any useful things whatsoever, except those which are destroyed by the very use, or those whose use consists in abuse. Here belong the servitudes of estates in the possession of the inhabitants of cities, and of those in the possession of the inhabitants of the country-side. Among servitudes of the latter class are commonly enumerated a road, a cartway, a highway, an aqueduct, the drawing of water, the driving of cattle to water, the right of pasturage, &c.; among those of the former class, the right of setting beams in a wall, of drawing off rain-water falling from the eaves of houses, of keeping a neighbour from building his house too high, and the like. On these servitudes those whose commentaries have illuminated the Roman law are to be consulted.

5. The effect of authority is for obligation to be brought upon another to perform something, and either to admit, or not to impede, actions which are exercised by the force of the same authority, and to enable one to confer upon a second party the faculty of doing or having something, that faculty having previously been lacking. <58>

DEFINITION VIII

Right is an active moral power, belonging to a person, to receive something from another as a matter of necessity.

1. Ambiguity of the word.

2. Perfect right.

3. What sort of a right inheritance is.

4. Mixed right.

5. Imperfect right.

1. In addition to those meanings by which the word right (jus) is used for law, and for a complex or system of homogeneous laws, as also for a judicial sentence, or the sentence of laws applied to deeds, for example, when we say that the praetor renders judgement (jus), or the jurisconsult answers on a point of law (jus), the most frequent use is to employ it for that moral quality by which we properly either command persons, or possess things, or by which things are owed to us. Thus, under the name of right comes commonly authority over persons as well as over things which are our own or another’s; and that authority which regards things is in a special sense called “the right in the thing.” Concerning these words, however, this discrimination seems to be observed, namely, that authority rather suggests the actual presence of the aforesaid quality over things or persons, but more obscurely connotes, and leaves almost undecided, the manner in which one has acquired it; while right properly and clearly indicates that the quality has been acquired properly and is now also properly held. But because a number of species of the above-mentioned quality rejoice in special designations, which that quality, whereby something is owed us, lacks, we have preferred to mark this quality here in a peculiar way with the designation of right (jus), under the proviso, however, that we do not at all wish to be bound to accept this word always within these narrow limits.

2. Now right is either perfect or imperfect. He who has infringed upon the former does a wrong which gives the injured party in a human court of law ground for bringing action against the injurer. To this corresponds on the other side perfect obligation in him from whom that which is owed us is to come. Therefore, I am able to compel him, when he refuses to pay this debt voluntarily, either by directing action against him before a judge, or, where there is no place for that, by force. Rights of that kind, when they have not yet been deduced with sufficient clearness, or are disputed by him whom they regard, are commonly called pretensions. <59>

3. Furthermore, under the rating of rights, it is customary to bring inheritance, the word being taken not for the property, but for a definite mode of pertinence. Here it must be noted, that

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