Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

Two Books of the Elements of Universal Jurisprudence - Samuel Pufendorf


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for that purpose, such as the acceptance of keys, when, for example, some one buys a house, or buys merchandise in a storehouse, and the like.

      Furthermore, two kinds of possession are recognized: legitimate possession, when we have a right to the thing that we hold, and have also observed all things requisite in taking possession of it, if it so happen that some things are prescribed by positive laws; and illegitimate possession, when a man has no right, or no sufficient right, to that thing which he has brought under his power [potestatem].

      This possession is again either quieted, when no one has called into <31> question any right whatsoever of the possessor; and unquieted, when the same right has been brought by protestations, or in other ways, into controversy. Now of whatever kind the possession be, this effect always follows it in states, namely, that the thing is regarded as belonging to the possessor until the contrary is clearly proven. Although sometimes an illegitimate possessor also is helped by this presumption, namely, when the owner cannot bring forward in court arguments that carry conviction with them, for there it is allowable to penetrate to the truth of a matter only by external indications; still, in general, it was to the public good to have that principle accepted, because otherwise any one whatsoever might at the pleasure of any one else whatsoever be exhausted in proving title to his own possessions. And yet among those who use the simple law of nature between one another, this presumption is not valid as long as they subject themselves to no arbitrator or judge, because they are bound to prove the strength of their right to no third person. Hence the position of the possessor in a court of law is always better than that of the claimant, because, of course, the bare proof of possession is all that is incumbent upon the possessor, and that is most plain and simple; but the claimant is bound to prove his right, which is a much more intricate and difficult process, ownership and use of the property remaining also meanwhile with the possessor until the claimant has proved to the judges the justice of his petition. This makes clear that famous dictum of the Roman jurisconsults: “It is worth less to have a legal action than to have the property.”15 For, of course, even if you should have a right, based upon firm proofs, to a thing which is possessed by another, and therefore it may be regarded to some degree as your own; nevertheless, aside from the fact that for the time being you are compelled to go without the use of the thing, in a state, at all events, there is incumbent upon you the labour of proving to the judge your right, and if he happen to be a corrupt judge and render an unjust decision, you will assuredly have to acquiesce in it. Among those, however, who use merely the law of nature among one another, the dispute must be committed to the uncertain dice of Mars.

      On the other hand, what we wholly owe to another, although as long as we have not paid it, it has still to some degree a place among our goods, that is yet, in truth, not our own. Thus, he that has a thousand pieces of gold, but owes the same amount, has nothing; while it would be no absurd statement to make, that he who owes more than he has, has less than nothing. This throws light on the remark of a certain man who was in debt: “I need a number of talents, so as to have nothing.”


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