LITMIR.BIZ

Скачать книгу

they will quickly return to their free state, and some will turn upon man himself. And this too seems not to be without bearing on the case, the circumstance, namely, that since otherwise those harmless beasts are exposed to the prey and the butchery of other beasts which are rapacious, their condition is rendered better, rather <34> than worse, by the fact that men have asserted so much power [potestatis] over them; for men both provide for their food as a kind of compensation, and protect them against the attacks of wild beasts.

15. For the rest, as the law of nature has given man the authority of appropriating and utilizing things which are necessary for life (and this authority is extended even to those things which in any way at all supply some use, provided only some right in the utilization of the thing, or a right existing in some third person, be not opposed); so it has left the measure of authority, and its intension and extension, to the free will and the disposition of men, to wit, whether they wish to circumscribe it with definite limits, or, indeed, with none at all; likewise, whether they wish any one whatsoever to have authority over anything whatsoever, or over merely some definite part of it, or, indeed, to assign to each man whatsoever his own portion, in contentment with which he may be unable to ascribe to himself any right over the rest; although the peace and tranquillity of the human race, which, beyond all else, the law of nature is intent upon, do by no means obscurely hint that whatever is instituted here by men should be to the highest degree consonant with nature. For the peace of the human race, at least after its multiplication, does not allow that any person whatsoever should be free to exercise equal authority over any things whatsoever, or that any thing whatsoever should be exposed to the use and disposition of any person whatsoever, or, what amounts to the same thing, namely, that all things should be common to all men.²⁰ Nay, the most ready occasion of war is the simultaneous desire or need of the same thing among two or more persons, and practically no one would be willing to allow another person to seek to assert to himself as much right as the producer himself has to a thing which has been produced by his own pains; so I shall pass over the other difficulties lightly.

      This, therefore, is what nature has been urging upon us, namely, that in order to preserve peace about those things from whose promiscuous utilization strife was very likely to arise, each man should have some definite portion assigned him, to which no other could assert any just claim. As for the rest of things, the utilization of which is limitless, nature left it to the mere free will of man as to what disposition he might see fit to make of them. And, in truth, no such state of affairs has ever existed, at least after men divided into several families, as one in which all persons had all things in common. For the fables which the poets tell us of the golden age,²¹ have either been distorted from the state of man in Paradise, or else hint at the liberality and humanity with which primitive men gave freely to any one who needed it the use of their own possessions. In this way, even to-day, we say that friends have all things in common.²² And again it was not necessary to mark so carefully the boundary of the field when the broad expanse <35> of the same abundantly sufficed the scanty number of men. In short, the sum of all that has been said comes to this, namely, that the first man, with the consent of God, and without the resistance of any obstacle in their nature, and furthermore under the pressure of necessity, took to himself things when they offered themselves, as it were, to him; that, after mankind multiplied, nature urged individuals to possess separately portions of the same, to the exclusion of other men, and this she has done in order to avoid the inconveniences which would arise from common ownership; that the actual division among individuals, which division confers ownership to a definite portion of these things, has been fortified by the tacit or expressed pacts of men; and that therefore proprietorship, in so far as it introduces the division of things among several owners exclusive of others, is due to the suasion of nature, but that actually it has been established by the pacts of men.

16. From what has been said it is apparent that, if we should regard the mere law of nature, for the first owners of things the sole right of occupation was sufficient. For, inasmuch as no right hindered man from devoting things animate as well as inanimate to his own uses, there was nothing left for him to do but to assert his possession of them by an act. This mode of taking possession has place even to-day in the case of those things which are regarded as derelict, that is, things to which either no one has ever desired to assert a claim, or else those which a former owner has either thrown away, or else has lost by some accident, without the intention of recovering them. This intention is presumed from words and from deeds, as, for example, when a thing is thrown away (unless, perchance, because of some passing circumstance, and this has been done with the intent to recover it later); or when a person knowingly contracts, with another person who now possesses that which was formerly his own, for that same thing as though the other were its owner. The same is understood to be the case, also, from things which are not done, to wit, when a person for no probable cause neglects to do what he might easily do for the sake of recovering that thing. The reason why, however, other men also are not able to run in crowds to things of that kind, as to a common inheritance, lies in the fact that right to things which are about to pass to another in the way of inheritance, as it were from one hand to another, is passed on uninterruptedly from the former owner by his express or presumed desire; but in things of this kind, either no man’s right at all exists in act, or, not having been derived from a former owner to another, has altogether expired, so that no one can in a special way assert for himself a right to them, except him who has especially sought it anew. For when posterity observed that an inheritance had been left by the first of mankind, aside from the original pact by which <36> any one whatsoever among a number of heirs has renounced his claim to the rest after accepting his own portion, they ought to be thought to have entered tacitly upon another pact also, to the effect that, inasmuch as they themselves had entered upon the universal inheritance of the world, as it were, whatever had at that time not been expressly assigned to some one person, at all events in the way of universality, should fall to the one who afterwards was the first to take possession of it.²³ It must be understood that this pact had been made for the purpose of avoiding strife thereafter, which would otherwise certainly have arisen, although things which, by the tacit consent of the nations, have been so treated as derelict that no one is able to ascribe their possession to himself without consent on the part of the same, cannot at all be claimed by any one person through the right of occupation;²⁴ a view which we have set forth above in regard to the vast expanse of ocean far from coast-lines. It was, therefore, by title of occupation alone, if you remove from consideration the concession on the part of God, that the first man received his authority over all things, and he needed no further title, because there existed no one whose right could stand in his way. And he acquired dominion over all things none the less because he was unable by an act to take possession of all things, and apply them to his own use. For it is sufficient that, while he took possession physically of some portion of things, he had included others in his intent, and was going to take possession of them also when need of them arose; just as he who has entered merely one apartment of a palace, has occupied the whole,²⁵ and, in the case of things which, as a whole, have devolved upon some one, he who has taken hold of some portions only, is adjudged to have taken possession of them one and all. Yes, and the same right would have been sufficient, even if a number of men had been created by God at the same time. For the pact which under these circumstances they would have regarded as necessary to make about the division of things for the sake of preserving concord would not have given them a new title or a new right, but would merely have circumscribed within definite limits a right which was common, and would have assigned to each his proportional share; since, of course, such a pact about things does altogether presuppose a certain right to the same.

17. From the first man that dominion over things has been transmitted and conserved to posterity by various titles, in such a way, however, that in his case this dominion was undivided, and both unimpaired and unrestricted in every part, but in their case, because of the plurality of those who enjoyed an equal right, it was not at all possible for a single person to succeed to the whole inheritance, but the property had to be divided into several portions. And afterwards, when men multiplied and separated into states, it rested

Скачать книгу