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Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf
Читать онлайн.Название Two Books of the Elements of Universal Jurisprudence
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isbn 9781614872061
Автор произведения Samuel Pufendorf
Жанр Философия
Серия Natural Law and Enlightenment Classics
Издательство Ingram
After space as a thing immobile from the beginning, follows the natural substance of earth, which here appears under the name of land. After earth follow those structures attached to the earth, together with all things which are made fast by nails and bolts. Here can be referred not only windmills whose foundations remain firmly fixed to the soil, despite the fact that at a breath of wind the structure itself can be turned around to all points of the compass; but also floating mills, as they are called, which, although they admit a change of location, must nevertheless be firmly fixed to the land by means of <53> anchors or stakes, so that we get any good out of them. These are not built for the purpose of being in motion like ships, but for the purpose of being fixed. Although herein positive laws or customs of places differ, as they do also in regard to ships, which, although they have been built for the purpose of being in motion, and properly supply the use of vehicles and not houses, are in some places classed among immobile things.
30. An incorporeal thing,46 which is a mode considered as a subject in respect to pertinence, can be divided into qualitative and quantitative. To the former belong primarily titles, authorities or moral powers, rights, aptitudes, and other things of the same sort, if there are any. To the latter pertains value, which is sometimes of persons, and is then called esteem, sometimes of things and actions, and those either good for man, and called worth, or bad for man, in which case there is no special word, unless one be willing to call it, after the analogy of demerit, an unworth (depretium). <54>
1. The distinction between titles and their effect.
1. TITLES have primarily a twofold distinction. Some mark directly the intensifying of the esteem of persons in communal life, or their peculiar qualities, and connote and suggest their status more clearly or more obscurely in proportion as that title is wont to be granted to one status or to several. The extremely copious crop of these titles which has sprung up in this present age among certain nations is wearisome to gather together here. Now some directly denote the status, or position in status, as well as indirectly connote the intensifying of esteem which is wont to adhere to that status and office. Such are any and all names of moral persons, which are here regarded not so much in themselves, in so far as they are notions representing to the intellect of another the status and office of a certain person; as in regard to the degree to which they denote the rights, authority, and function of a certain person as fixed by the imposition of men. Hence it is not for nothing that sometimes titles are fought for with the greatest ardour among men, because, when the title is denied, it is understood that a person is denied also the status, authority, right, and office, which that title is wont to express or to connote. <55>
1. Perfect authority and imperfect.
2. Personal and communicable.
3. Division of authority on the principle of the object, where also sovereignty is treated of.
4. Authority over alien things.
5. The effect of authority.
1. AUTHORITY, as it here comes into consideration, is either perfect or imperfect. It is the former when he who interferes with its exercise violently and illegally does wrong (which happens when that authority does not depend upon his own will), and it is this authority which gives the injured party ground for action in a human court against that man. War takes the place of this authority among those who are not subject to a common judge, unless one subjects oneself to the other as a supreme judge. Authority is imperfect when, if a man has been prohibited illegitimately and violently from the exercise of it, he is, indeed, inhumanely treated, in such wise, however, that he has no ground for action in a human court, unless, perchance, the accident of necessity has supplied that which is lacking to his right. Thus, for example, he who violently keeps me from entering my own land, does an injury which gives me ground for action against him; but he who denies me innocent passage through his land, a passage which must be sought somewhere else only by a troublesome, roundabout route, does, indeed, act inhumanely, yet I can by no means for that reason bring an action against him in a human court of law; except that, for example, when an enemy is attacking me from the rear, I have the right to escape even by cutting down the man who hinders me, in order to save my own life. The former can, moreover, be called the right to bring action, the latter, the aptitude.1
2. In the second place authority is either personal or communicable. The former is that which one cannot transfer legitimately to another. In that authority itself, however, not a few differences occur. For some authorities are so closely united with a person, that their employment cannot at all be exercised properly by any other person. Such is the authority of a husband over the body of his wife, which the laws will by no means allow him to exercise through a representative. Among certain others, moreover, although they cannot be transferred from us to another, the employment can be delegated for others to exercise, <56> in such wise, however, that they have all their authority [autoritatem] from those in whom the authority [potestas] roots and rests. Finally, certain authorities can be indirectly transferred by us to another, while we abdicate from them in his favour and resign them, as it were, into his own hands; with the proviso, however, that this transfer is to be confirmed by the authority [autoritate] of a superior. Of this kind was the authority [potestas] of a father according to the ancient Roman laws, which, although it arose naturally from the fact of generation by a personal incommunicable act, a father was able to transfer to another, when, after abdicating his authority, he gives over his son to be adopted by another. This adoption, however, had to be confirmed by the authority [autoritate] of the praetor or of the people, and from this authority alone did it borrow its force.2 For in a state no private citizen is able to give to another the right of life and death over a free man, except it be that he who holds the rights of majesty authorizes it.
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