A Methodical System of Universal Law. Johann Gottlieb Heineccius

is superiority in property; while the other terminates in affirming there is no distinction between power and right, or between power rightly and power unreasonably applied, i.e. no distinction between moral good and ill, i.e. no distinction between reasonable and unreasonable; which difference must remain, while there is such a thing as public good or benevolence, or such a thing as reason, as hath been already fully proved. 6. If the preceeding principles be true, due attention to them will lead us through most of our Author’s succeeding questions about derivative acquisitions and succession. Because the effect of property, which makes it the great reward of industry, is a right to dispose of our own in our life, or at our death, which admits no limitations but what benevolence sets to it; in consequence of which right and duty, succession to him who dies without making a disposition of his estate, ought to take place in the way a wise man, directed by benevolence, must be presumed to have intended to dispose of his own at his death, i.e. according to the natural course in which benevo-<201>lence ought to operate and exert itself, already taken notice of. For when the will of a person is not declared, his will ought to be inferred from his duty. We shall therefore for some time have but little occasion to explain or add to our Author.

CHAPTER X

       Of derivative acquisitions of dominion or property made during the life of the first proprietor.

      SECTION CCLXVI

      Transition to derivative acquisitions.

      Dominion being acquired, a change sometimes happens, so that one acquires either property or dominion in a thing, neither of which he before had; and such acquisitions we called above, (§240), derivative. Now, seeing the thing in which we acquire property was before that common: the thing in which we for the first time acquire dominion, was before that the property of some person: as often as we receive our own proper share of a common thing, there is division; as often as we acquire the whole thing in property, there is cession;^* and as often as another’s property passes by his will into our dominion, there is, as we called it above (§240), tradition, or transferring.

      SECTION CCLXVII

      By them is made alienation necessary, voluntary, pure, or conditional.

      In all these cases, what was ours ceases to be ours any longer in whole or in part, and passes into the dominion or property of another person; and <202> this we call alienation, which, when it proceeds from a prior right in the acquirer, is termed necessary; when from a new right, with the consent of both parties, it is called voluntary.^* But the effect of either is, that one person comes into the place of another, and therefore succeeds both to his right in a certain thing, and to all the burdens with which it is incumbered. Alienation is called pure, when no circumstance suspends or delays the transferrence of the dominion; and when the transferrence is suspended, it is called conditional alienation.

      SECTION CCLXVIII

      And that either for the present time, or for a time to come.

      Voluntary alienation cannot be understood or take place otherwise than by the consent of both parties: but there may be consent either for a present alienation, so that the dominion may be transferred from us to another in our own life, or for a future alienation, so that another shall obtain the possession of what is ours after our demise: and this consent to a future alienation, is either actual, or it is inferred from the design and intention of the person.^† Now by the first of these is what is called testamentary succession; and by the latter is what is termed succession to one who dies intestate. We shall now treat of present alienation, and in the succeeding chapter we shall consider future alienation. <203>

      SECTION CCLXIX

      What division is, and why one may demand it.

      The transition from community to property is made by division (§266), which is an assignation to any of the associates of his competent part of the whole in positive community. Now seeing any associate or sharer can exclude all but his fellow associates or sharers from the use of the thing common to them (§231); the consequence is, that any of the associates may demand the use of the thing according to the share belonging to him, and therefore <204> may demand a division; and the others, if they should oppose a division, are so much the less to be heard, that positive community doth very ill suit the present state of mankind (§238).^*

      SECTION CCLXX

      How it may be done whether the subject be divisible or indivisible.

      A subject is either easily divisible into parts, or it is indivisible; either because in the nature of the thing, or by laws and customs, it cannot be divided into parts. If therefore an associate demand a division of a thing in its own nature divisible, nothing is more equal than to divide it into as many parts as there are associates, and to commit the matter to the decision of lot. But if the thing be indivisible, it is either to be left to one of the associates, who can pay, and bids most for it, or to whom age or chance gives a preference, who, a valuation being made, is to satisfy the rest; or it is to be sold to the best advantage, and the price is to be divided proportionably among the sharers; or they are to have the use of it alternately, each in his turn.^* <205>

      SECTION CCLXXI

      When equality is to be observed in division of things perfectly common.

      Moreover, because with regard to a common thing all may have equal right, or some one may have more right than others (§231); it is evident that division is either equal or unequal. In the first case, all are called to equal shares, and in the second, to unequal shares. Now, since the natural equality of mankind obliges every one not to arrogate any prerogative to himself above any other without a just reason, in things belonging to many by perfect right (§177); it is manifest that division ought to be equal, and that none ought to claim any preference, unless his right to it can be clearly proved.^* <206>

      SECTION CCLXXII

      Whether it ought likewise to be observed in the division of things imperfectly common.

      These rules belong to perfect community. But there is likewise an imperfect community, as often as none of the partners hath a perfect right to the thing (§231). Now, when by the bounty of another any thing becomes thus common to many persons, it is at his option to give equal shares, or to give more or less according to merit.^† And in this case it would be most unjust for any one to complain that a person of less merit is put upon an equal footing with him (Mat. xx. 12, 15), or to take upon him to judge rashly of his own merit; or to think benefits conferred upon this or the other person, may be pled as precedents. <207>

      SECTION CCLXXIII

      What is cession of a thing in common?

      When a thing in common to many is resigned by the rest to one of the sharers, this is called cession. Wherefore, since in this case one succeeds into the place of all the others, the consequence is, that he succeeds into all their rights to that thing, and also into all the inconveniencies and burdens attending it (§267). And hence the Roman lawyers justly inferred that the same exceptions have force against the person ceded to, which would have had force against the ceder, l. 5. c. de her. vel act. vend.

      SECTION CCLXXIV

      The obligation of the partners to make good.

      Since, whether the thing in common be divided, or whether it be ceded to one of the sharers, this seems to be the nature of the deed, that those who get the thing by division or by cession, acquire the right of excluding all others from the use of that thing; (§231) it is manifest that in both cases the