LITMIR.BIZ

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which is owed to others by the testator, by contracts, or under some other head, must first be subtracted from his goods before anything comes to the heirs. For right had been acquired by all other creditors before the heir, his right beginning only after the death of the testator. And therefore a person is understood to be transmitting to the heir no more than is left to himself at the time of death, after subtracting that which is needed to pay his debts. There are, however, states in which a man by testament may dispose of only that which he has acquired by his own industry, but not that which he has himself inherited. Elsewhere there is even no such thing as the making of a testament on the part of citizens, but everything descends to the nearest blood relatives without testamentary disposition.

27. Properly, however, and by a certain necessity of natural law, ownership is not made void through defect of reason, as, for example, either childhood, or insanity which later supervenes. For property which is under ownership is for the most part subservient to the needs of the body, and since these needs rest no less heavily upon the aforementioned than upon those who are in possession of their reason, it would be absurd for the condition of age or for disease to be of any avail in taking away from them that ownership which has become a more precious thing to them because of the concomitant inability to acquire property. But, truly, because an intellectual defect prevents <50> them from being able to make a good use of their own property, in most countries civil laws out of humane consideration have entrusted the administration of their goods to others, in such a way that not the owners, who are not in full possession of their reason, but guardians can effectively dispose of that property, and this is done to prevent the owners from being dispossessed of their property because of their own lack of prudence and through the fraud of others. For it was thought to be incongruous that those who cannot understand what is being done, and therefore cannot consent, should be able to alienate something; and to accept something from such a person in whose case there is presumed to be no rightly considered will to give, is not without the appearance of fraud. Besides it is also to the public interest that no one make a bad use of his own property. It is due to this consideration that guardianship is extended also over those years which already possess an understanding of affairs, but wherein, because of the violence of emotions, persons are regarded as incapable of guarding their property.

28. Things are no man’s which pertain to no particular man, and to which no one possesses any special right for the present above others. Certain of these are absolutely incapable of proprietorship and have been excluded from interchange among men; to wit, those whose nature rejects every corporeal possession and seizure made by men, and those which admit no act out of which a special right can arise for some one above others.⁴¹ To this class we are of the opinion that air, wind, heat, and light of the sun, so far as they inhere in the air that surrounds us, or in circumjacent space, are by no means so simply to be referred. For, since these things cannot, like others, be transferred by men from one portion of space to another (in which respect, that is, separately, they do not enter into exchange), they can assuredly, as things inherent in space, also come under an estimate of value, and therefore, as far as proprietorship is concerned, they participate in the nature of space. Thence it follows in due consequence that the man whom I can exclude from my space I can also prevent from enjoying the air, the wind, the warmth and light of the sun existing in my space. Thus it is not unusual to charge up to another the clemency of the air, and the convenience of wind and sun which is enjoyed by the farm that I am renting or selling him; likewise it is not unusual that over space belonging to me I leave a path, as it were, for wind or for the light of the sun to another’s house, since otherwise I might shut out his light with a building.

      Now certain things are for the present, indeed, no man’s, although otherwise, by their nature they are capable of proprietorship and become in act subject to it when they are occupied by some person. Such <51> are the things which the nations have treated as derelict when they were appropriating other things to themselves as their very own. However, they have been unwilling for some among these to become the actual property of one or another person or people by act of occupation, but have ever tacitly agreed that they should be no man’s property, as we said above on the topic of those parts of the ocean which are far away from the shore. But other things yield to any one whatsoever who takes possession of them. Such were, according to the view of the ancient Roman jurisconsults, fishes, birds, and wild beasts, which it was permissible to catch even on another’s farm, although the owner of the farm might keep out any one who wanted to enter for the sake of hunting animals or birds.⁴² And these things, when once become one’s own property by right of occupation, became again no man’s property and returned to a free state, when they had escaped the custody of men.⁴³ Into this class they put bees, doves, peacocks, tamed wild animals when they had run away and had put off the habit of returning; likewise property exposed to looting in war, missiles, treasures, things thrown up on the shore, and whatever else there is of that sort. But about many of the things just mentioned the peoples of the world to-day have made different dispositions. Certain things were even regarded as derelict, as it were, at least in respect to those persons whom the same state or the same society included, yet those who were outside the state or the society were excluded from participating in them; and this is certain in the case of booty, missiles, and some other things. For who could believe that the Romans ever granted also to outsiders the privilege of carrying off booty from cities which they had themselves given over to plunder? Although those things are less accurately listed among no man’s property, when, in truth, they belong to the state, or to those persons by whom they are conceded, who by means of donation grant those same things, or symbols representing them, to the first who lay hands upon them. Under the heading of no man’s property come also those things which are treated as derelict by a former owner, in that he either intentionally throws them aside and does not desire them to be his any longer, so that he transfers his right to no one in particular; or else, when they have been lost by some accident, he neglects to recover them. Whence it appears that those things are not listed here which are thrown overboard for the sake of lightening the ship, or have been swallowed up by the sea after shipwreck, and are cast up upon the beach;⁴⁴ likewise things which are lost by travellers. For the owners retain their right to these things as long as they maintain the purpose of hunting for them again; and to the finders of such things no more is due by the law of nature than is the value of their effort in gathering them up and preserving them. And there is a certain flavour of piracy about those civil laws which appro-<52>priate to the fiscus, or to those who live along the coast, the goods of shipwrecked men even after they have been recognized by their owners.

29. A corporeal thing is an extended substance considered in a moral fashion. It is divided commonly into mobile and immobile. Things mobile are those which, not being attached to the soil, can be transported from place to place, like money, clothing, cattle, utensils, &c. First among immobile things is space, which is immobile both in its proper nature and from the beginning; and it can be divided into common space and proper space. By common space are designated public places, for example, markets, theatres, temples, military highways, &c. Proper space is that which perpendicularly hangs above or lies beneath the area of the possessor, upwards as well as downwards. Now since the areas of the terrestrial globe possess a spherical convexity, any one understands that perpendicular lines meet below in the centre of the earth, but diverge and expand upwards to infinity.⁴⁵ Thence it follows that I might lawfully build a structure above my ground, even beyond the lunar heaven, if that were possible, unless perhaps the territorial limits of the inhabitants of the moon were in my way; so, likewise, I might lawfully dig down until I reached only as far as the centre of the earth, even if it were possible to go farther. For that which in respect to us lies beyond the centre belongs to our antipodes. Yet in certain places positive laws assign not to the private owners of estates, but to the fiscus, that which is found in an area below such a depth that it cannot be reached by the ploughshare. Perpendicular lines, however, drawn in both directions, upward and downward from the circumference of my area, are to be observed carefully. For, just as my neighbour cannot erect a structure which overhangs my area, although it does not rest upon my soil, but is upheld by beams

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