LITMIR.BIZ

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for that purpose, such as the acceptance of keys, when, for example, some one buys a house, or buys merchandise in a storehouse, and the like.

      Furthermore, two kinds of possession are recognized: legitimate possession, when we have a right to the thing that we hold, and have also observed all things requisite in taking possession of it, if it so happen that some things are prescribed by positive laws; and illegitimate possession, when a man has no right, or no sufficient right, to that thing which he has brought under his power [potestatem].

      This possession is again either quieted, when no one has called into <31> question any right whatsoever of the possessor; and unquieted, when the same right has been brought by protestations, or in other ways, into controversy. Now of whatever kind the possession be, this effect always follows it in states, namely, that the thing is regarded as belonging to the possessor until the contrary is clearly proven. Although sometimes an illegitimate possessor also is helped by this presumption, namely, when the owner cannot bring forward in court arguments that carry conviction with them, for there it is allowable to penetrate to the truth of a matter only by external indications; still, in general, it was to the public good to have that principle accepted, because otherwise any one whatsoever might at the pleasure of any one else whatsoever be exhausted in proving title to his own possessions. And yet among those who use the simple law of nature between one another, this presumption is not valid as long as they subject themselves to no arbitrator or judge, because they are bound to prove the strength of their right to no third person. Hence the position of the possessor in a court of law is always better than that of the claimant, because, of course, the bare proof of possession is all that is incumbent upon the possessor, and that is most plain and simple; but the claimant is bound to prove his right, which is a much more intricate and difficult process, ownership and use of the property remaining also meanwhile with the possessor until the claimant has proved to the judges the justice of his petition. This makes clear that famous dictum of the Roman jurisconsults: “It is worth less to have a legal action than to have the property.”¹⁵ For, of course, even if you should have a right, based upon firm proofs, to a thing which is possessed by another, and therefore it may be regarded to some degree as your own; nevertheless, aside from the fact that for the time being you are compelled to go without the use of the thing, in a state, at all events, there is incumbent upon you the labour of proving to the judge your right, and if he happen to be a corrupt judge and render an unjust decision, you will assuredly have to acquiesce in it. Among those, however, who use merely the law of nature among one another, the dispute must be committed to the uncertain dice of Mars.

      On the other hand, what we wholly owe to another, although as long as we have not paid it, it has still to some degree a place among our goods, that is yet, in truth, not our own. Thus, he that has a thousand pieces of gold, but owes the same amount, has nothing; while it would be no absurd statement to make, that he who owes more than he has, has less than nothing. This throws light on the remark of a certain man who was in debt: “I need a number of talents, so as to have nothing.”

12. The next point, therefore, is to examine into the origin of proprietorship, and the more ordinary ways of acquiring it. Here at <32> the beginning we lay as our foundation that statement of Sacred Scripture, namely, that it came to pass with the consent and will of the Deity, that man took to himself proprietorship and dominion over things not merely inanimate, but also animate.¹⁶ For we read that those things which spring up out of the earth were expressly assigned to man for food, and that cannot be except the same be consumed. Nor did God any the less concede man authority over things animate that live in the air, on the earth, or in the waters. This concession, as we have already suggested above, does not have the force of a command, but merely the granting of a privilege which any one may use as far as it pleases him, and he is not bound to every kind of exercise of the same. For otherwise man would be sinning against the divine law if he should let free any animal, let us say, a bird, a fish, or a wild beast, or should neglect an opportunity of bringing it under his power [potestatem]—a statement which no sane person would make.

13. Furthermore, it is not perfectly clear whether that concession of dominion over things animate grants man, from the very nature of dominion, an unlimited authority, so that he can kill them even for uses that are not necessary. For dominion does not involve the licence of killing with impunity and as a mere whim; nor would men have been able to complain that divine indulgence had been parsimonious toward them, or that their needs had been but ill provided for, even if authority over the life of animals had been denied them. For truly their service in cultivating the soil, and their products otherwise useless to themselves, like milk, or part of their eggs, wool, &c., could have sufficed men for maintaining life. Nor does it immediately follow from God’s bidding them to be sacrificed as a token of divine worship, that man has acquired the authority to turn them to food at his pleasure. For it is possible that man, by a special command of God, has a right to do something which otherwise would by no means have been his right. Yet indeed, because we have observed that God has nowhere disapproved of such slaughter of animals for man’s food, but rather has ordained definite rules for the same, we conclude correctly that it is not opposed to His will.

14. If, however, we consult the mere law of nature, since it assuredly would recommend to men that life be maintained, and it is impossible to preserve life without the utilization and consumption of vegetables, at least; it is understood that it has by all means granted the utilization and consumption of those things without which man is unable to preserve life. This is especially true inasmuch as most of them would either never have come into being without man’s effort, or, apart from consumption by men, would also have perished otherwise, and that without being of use to any one. We must render the same judgement about most of the inanimate products of animals, like <33> hair, wool, milk, eggs, that are likewise not necessary for the propagation of the species. But, indeed, the right to bring animals to a violent death, and to turn them into food, is not so clearly apparent from the mere law of nature. This is the reason why not a few of the ancient philosophers have disapproved of such slaughter. For why should a man take from an innocent animal, merely to please a superfluous desire, the life that has been given it by the same Creator? Especially since he cannot excuse himself by alleging the example of lions, indeed, or wolves, and other carnivorous animals. For nature has so formed these that they cannot preserve life except on their bloody diet, and they turn aside from the fruits of the earth; but that is not the case with man. Indeed, I should be inclined to believe that Pythagoras invented that fable of his about metempsychosis for no other reason than to frighten his own disciples away from the slaughter of animals, using this little bugbear, as it were, to make them afraid, forsooth, that in pork or in beef they were doing violence to kindred flesh.¹⁷ And it is obvious that the truculence of men, originally irritated, as it were, or hardened by the slaughter of animals, burst forth afterwards upon men themselves; and those who took pleasure in slaying innocent animals found it easy to draw the sword upon weaker men and such as were exposed to injury.¹⁸ Therefore the principal argument for defending the slaughter of beasts as being in accordance with the law of nature seems to be this, namely, that there is no mutual right or obligation between men and beasts, and, in the course of nature, there ought not to be, and this for the reason that beasts are not capable of an obligation, at least toward men, which must arise from a pact, this obligation being a bond of right that is common to a number. From this absence of a common right there follows a state of war between those who are able to do each other injury, and on grounds of probability are understood to be able to desire to do so.¹⁹ In this status any one has the faculty of inflicting upon any one else with whom he is at war whatever he will and can. And this status, indeed, is very clear in the case of beasts of prey, which, whenever occasion is given, vent their fury not merely upon other brutes but even upon men themselves. If any one should wish them to be spared by men, he would be demanding that men be in a condition inferior to that of those same beasts. As for domesticated animals, they give themselves to the uses of men not by some obligation, but because they have been caught by an enticement in the way of food, or have been subjected by force, and when you remove

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