LITMIR.BIZ

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same states to determine the effects of proprietorship and to include it within definite limits; for example, that it should not be permissible for any one whatsoever to turn to merely any kind of use a definite sort of thing; likewise, that it should not be allowed any one whatsoever to alienate his own property in any way he desired, and the like. Furthermore, of those titles by which property has been transferred from the first man to posterity as such, there are two of prime importance: Donation made by a living person and succession to the right of a deceased person, or entrance upon an inheritance, whether that be by testament or without a testament.²⁶ That a portion of goods was transmitted to children during the lifetime of their father is perfectly clear from the longevity of early man, which does not allow us to believe that sons lived such a space of time without possessions of their own, and the very authority of sacred history repeatedly declares. For we read that Abel and Cain sacrificed to the Lord of their own possessions.²⁷ So, afterwards, when dominion over the whole earth had returned once more to Noah, it is reported on good authority that he divided the three portions of the globe among his sons.²⁸

18. Now, as regards this donation and, as it were, assignation of possessions of their own, it must be observed that it was not necessary for a father to grant exactly as much to one of his children as to another, and that he did not sin against a law of nature if he gave to one more and to another less, provided only that he gave to some particular one what might suffice for his needs; although it might have been proper to take into account the offspring of the one who is under consideration, in so far as the number of such offspring could be conjectured with probability, so that they might not think it necessary in after time to take violent measures in order to provide for their needs. Otherwise nature absolutely binds parents only to the point of furnishing necessary supplies to their children. But, for the rest, as it is, indeed, the most convenient means of preventing envy among children, if a father distribute equal portions among his children who are equal, and who have equal deserts; so, none the less, it could rightly be established in many states, that, in order to preserve the splendour of families, the larger part of the possessions should go to the first-born son alone, and that daughters, inasmuch as they pass over into other families, should not share equally with sons in goods of some particular kind, whatever that may be. And surely no wrong is done other children if a parent gives to one child or another some special gift in comparison with what he give the others, whether that be for definite grounds in the case of that child himself, or merely on account of a special inclination of the heart toward him. The same holds true also in the case of testaments; for, on the basis of the law of nature, no complaint against a testament as being contrary to one’s duty has any grounds, <38> except when the father, without antecedent wrong on his son’s part, has left him not even the necessaries of life. For children have, to the goods of parents, as long as the rights of the parents remain, not a right, but only a natural aptitude, at least as far as the requirements of their necessary sustentation, and this natural aptitude has the same effect as a right when necessity urges, such as appears in this case, since otherwise this son would have to perish or live a life of misery. Therefore, by virtue of this principle, a son who has been passed by in a testament can recover from the other coheirs his portion, if he lives in a state, by process of law, or, if outside a state, by force. But if, indeed, succession must be entered upon without a testament, then, without doubt, those who stand in the same relationship to the deceased, receive also equal parts in his goods when positive laws do not establish something different. And as equal parts those things also are regarded which one has himself selected for his own portion with the consent of the others, or, when assigned him by his coheirs, has approved, or has received by lot, even if possibly they are not in themselves equal to the other portions in value.

19. There are, furthermore, several ways in which property passes from one person to another, not as though passing to a man’s heir. These can be divided conveniently into means or titles which are lucrative, and those which are burdensome.²⁹ Among the former is donation. This is when, out of pure liberality, something is given another person which could have been withheld without doing him wrong, and is unaccompanied by the stipulation to furnish under compulsion, as it were, some other thing or service. A species of this is the alms or charity which is distributed among the poor and those who have been overtaken by calamity. Here belong also rewards, when something is given to some one in view, to be sure, of a bit of work which has preceded, yet not as it were for pecuniary compensation, but rather as though from a certain free munificence, in order to extol the recipient’s talent and to stimulate his own and other men’s talents to yet further achievement. In such a way also do all kinds of inheritances pass, whether with or without testament. You can, however, scarcely list among these inheritances the trusts [fideicommissa], and things which have a relationship to them, as, for example, when an entire inheritance must be expended for definite purposes designated by the testator;³⁰ for properly speaking nothing is acquired in these transactions, but only the burden of a mandate is undertaken, seeing that the same things must be transferred to others. Here it must be noted that, just as by the law of nature no one is bound to assume an inheritance which is burdened with debts that exceed it in amount,³¹ so, by the same law, if a man has assumed it, he is not bound to make up out of his own property that whereto the inheri-<39>tance does not suffice. But where civil laws bring the payment of all the debts of the testator upon the heir, the latter will be held bound to pay them, yet not on the basis of the testament and the wish of the deceased, but on the basis of his own consent;³² although it is true that in the Roman law the slave of the master who died involved in debt was compelled to become his master’s heir, not in order that he might be compelled to pay anything out of his own property, but so that he should sustain the ignominy of the auction being held under his name, in compensation for which ignominy he commonly enjoyed his liberty.³³ In this class belong legacies, when by testament a definite portion of goods is left to some one not a primary heir; likewise dowries which come to the husband through his wife on the ground of matrimony; as also bridal gifts which are given by the groom to the bride, and the like. In a like manner also are acquired those things which, after being treated as derelict by a former owner, are seized by the first finder.³⁴ Under this head come hidden treasures, wreckage which is thrown up on the coast, things which have been lost on the road and elsewhere, only so far, however, as the former owner has given up the intention of recovering them. For otherwise, although by some unforeseen accident or other the possession of my property has been interrupted for a time, nevertheless my right to it has not perished, unless by neglecting to look for it, or in some other way, I have signified my abdication of it, as it were. Hence they do well for their conscience, who are careful to make public announcement of the finding of that kind of thing which they cannot prove by definite circumstances to have been treated as derelict by its owner. This is particularly appropriate when things are concerned that have been lost by dropping, or by shipwreck, or on a journey. In treasure-trove, however, this is not so necessary. For he who digs up a treasure on his own land will be able rightly to retain it until such time as another has proved himself to be its legitimate owner, and has presented credible grounds for concealing it and keeping it hidden until that time. For he from whose possession a field or a house has passed to its present owner, who is the finder of the thing, is not presumed knowingly to have left therein a treasure which he had himself hidden away, when he was alienating the field or the house; just as also he who has hidden some such thing in another person’s land without the knowledge of its owner, has not lost the chance of asserting claim to his own property, when there was the justifiable fear that it might fall into another person’s hands. But, in truth, he who has discovered a treasure on another’s ground, is altogether bound to declare that fact, at least to the owner of the land. For it is generally presumed that things contained in the ground belong to the owner of the ground. On these matters, however, positive laws in different places make different regulations. <40>

      Finally, under the head of lucrative title is acquired the booty which soldiers, with the indulgence of their general, take from the goods of the enemy, in addition to their pay; for otherwise whatever is captured in war belongs to those who are principally carrying on the war; and it is incumbent upon them, moreover, to pay out of the booty

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