Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

be absurd that the error of another could produce a right to my property against my will, which would outweigh my own right to it, especially when the value of his effort does not exceed the value of the material. Thus, why should he who through an error has from my olives, grapes, or grain pressed out oil or wine, or has cooked bread, as though the materials had been his own, have a better right than I? Or why should he have the right of choice rather than I, especially when, as often happens, we neither can do without things of that kind nor desire to do so? But, indeed, where the cost of the material is out of all proportion to the form, as is the case in painted pictures, and in those articles which are manufactured out of less valuable materials, as, for example, bronze, iron, or wood, equity assuredly demands that the owner should yield the object to the artisan after receiving the value of the material, inasmuch as materials of that kind are generally of such a nature that, when their value has been restored, no loss redounds to the owner. But, whatever has been done under these conditions, on the credibly presumed consent of the owner, is just as valid as if the express consent of the owner had been given. Thus, for example, if I make a statue or anything else out of another’s bronze which was otherwise for sale, after I have presented a credible reason why I made use of his property without his knowledge, and after I have offered him the money for it, he cannot rightfully compel me to yield him possession of the object. But, when some one has built a house on another man’s land, or has sowed grain and planted trees, he has not thereby acquired any right to the soil, nor can he compel the owner of the soil to pay him any return at all for materials and labour, for the reason that an accident of this kind can scarcely happen except in consequence of utter and crass negligence. And, indeed, he who has built a structure can tear it down again and carry off the material, and claim that for himself; provided, however, that he is bound to repair whatever damage has been done to the land by that structure. But he cannot at all in the same way carry off a tree and a crop and keep them for himself, because they draw their nurture from the land, and the owner will have been prevented from having his own trees and crops put in their place. If, however, there was no <44> intent to deceive on the part of the other, it is fair for the owner of the soil to restore him as much benefit as has been rendered to his own land by the other’s tree or crop.

23. It remains for us to examine into illegitimate modes of acquisition. They can be brought under two principal heads, force and fraud; that is to say, when some one destitute of legitimate authority either extorts by violence, or fraudulently and surreptitiously steals away from another, that to which he himself has no right, and in such a way that the other’s right is injured. Here two things must be noted. (1) It frequently happens that a man has the right to a certain thing which is in the hands of another; as, for example, when that same thing or its equivalent value is owed him; and yet in states it is judged that he has not rightly taken possession of it, when he takes it to himself in private enterprise, violently or surreptitiously. For within states it is the established usage that no citizen should by his private authority [autoritate] extort from a fellow-citizen against the latter’s will that which is owed him, but he should use the assistance of the magistracy; although, by the mere law of nature, I may by any means at all take to myself from him who refuses to give it to me freely, that which is owed me. And thence it comes about that he who herein exercises violence in a state, commits the crime, not of theft or robbery, but of a breach of the peace, and of extortion by means of threat. (2) One may have to the goods of another a right which is either perfect, and, as it were, double, or a right which may be called one-sided (μονόπλευρον). It is the former, when, in very truth, my right to a certain thing has been acquired by some preceding act, in such wise that the other party also is under obligation to give it to me. It is the latter, when I, indeed, without doing injury, am able to appropriate something, in such wise, however, that on the other party there rests no obligation to give it to me. This is the case in war, where he who did the first injury is bound to make good nothing but the original damage which he did, and that which proceeds therefrom. Because, nevertheless, that same person, as far as he was concerned, broke the common bond of right with the other, and gave the injured party an unlimited authority over himself and what was his own (as will be set forth below),³⁸ the injured party can, without himself doing injury, appropriate by any means at all any goods whatsoever of the other’s, although the other is by no means bound to offer them or to yield possession of them freely to him; I mean thereby, of course, those goods which are in excess of the damage which has been done by him. Exactly as between two persons who by mutual agreement have come to fight, each has the authority to inflict blows upon the other, but neither is bound to offer himself freely to the one who is aiming a blow at him. Although that mode of acquisition has not been associated with wrong, and therefore should not be pronounced <45> out and out illegitimate, nevertheless, nature grants no further use of it than in the case of war, which, in a subsidiary manner, as it were, comes to the rescue of the security of men, when it is not permitted to employ peace.

24. Now under the aspect of species, various names are given to illegitimate modes of acquisition. Under the former class are listed rapine, brigandage, piracy, driving off of property, &c.; under the latter class, theft, peculation, sacrilege, and all manner of defrauding in contracts.

      But, in truth, the following point requires profounder consideration, whether, namely, the fault which adheres to a thing from the illegitimate means of acquisition may not possibly be corrected by a subsequent deed, or even by the mere lapse of time; and whether the fault remains even at the time when the thing comes to a third party by a good title.³⁹ Here this much is certain, namely, that as long as a thing which has been unjustly taken away remains in the hands of the first robber, the fault always adheres to it, as long as that fault has not been quashed by the former owner, and that no matter how long the robber has possessed the thing. For mere time in itself can neither eliminate a fault nor produce a right, because, of course, by time a fault or right which was originally inherent is merely continued. But by the usage of nations, there have been introduced, and in most states accepted, usucaptions and prescriptions, by the force of which a thing that has been acquired with a good title, and in good faith, and has been possessed in quiet, is regarded, after a certain length of time, as possessed by a good right, so that the otherwise legitimate claim of a third party no longer obtains. That is both because no one is presumed knowingly to have desired to have his own property remain so long in the hands of another, when he might easily have asserted his right to it (at least without having made any contest of his right, whereby a full right is preserved), unless he himself regarded it as derelict, and approved of the other’s possession of it—and neglect so careless as that seemed to deserve the loss of such property; and also in order that the limitless crop of litigation should be suppressed, which litigation would necessarily be excited, when, after so long a lapse of time, the same property should be demanded from the fourth or fifth possessor, who had come into possession of the thing by a just, and possibly also by a burdensome title, especially since a number of accidents might happen by which this latter will be prevented from being able to demand restitution for the damage from the robber. And there is no obstacle to this conclusion in the fact that my property cannot be transferred to another without my own act, or that no one ought to be enriched by another’s loss. For here a non-deed, that is to say, supine negligence in claiming one’s own right, is regarded as a deed, and that is not regarded <46> as a loss, which one was willing to have inflicted upon himself. Now willingness here is presumed from such long-continued silence. Thence it comes about that he who has the thing in usucaption is safe in conscience also. For, before the time of usucaption, he possessed the property in good faith, as is supposed; and afterwards, if he live in a state, by civil law also the thing in question is adjudged to be his, which civil law utterly extinguishes the claim of the former owner. Among those who are not included in the same state, the same result is produced by natural equity itself. Furthermore, just as by the law of nature he who has done another damage by violence or by guile is bound to repair the same; so, since any one whatsoever can yield his right, the fault pertaining to the property expires, and the obligation of making restitution ceases with the one who did the damage, when he to whom it was done condones it voluntarily to the other, and does so, not from fear of further evil or molestation, or, as men commonly say, for the purpose of buying