Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

Two Books of the Elements of Universal Jurisprudence - Samuel Pufendorf


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whatever damage was done to their own citizens by the enemy, either before the war or during its course. And soldiers ought to be content with their pay or with what takes the place of pay; if anything is given them out of the booty they will ascribe it to the liberality of the general.

      Into this class falls also that which is seized from the enemy in a just war.35 For although he who gives me a just cause for making war would also, as far as in him lay, be giving me the right of taking all that is his own, however far, perhaps, this would exceed the injury that has been done by him (as will be shown somewhere), and therefore, <41> assuming that I have a just cause for making war, nothing further is required for my laying hold of his possessions than the act of occupation; nevertheless, because, aside from the fact that these are imputed to the payment for damage which has been received, such occupation cannot take place without expenses, perils, and labours, not to mention the uncertain cast of the dice of Mars, property of this kind is regarded as passing from one owner to another under burden. In war, moreover, the property of the enemy becomes ours, his movable property, indeed, when it has been brought behind our outposts; but his immovable property, even though for a time it may be held under our power [potestate], becomes ours only when it has so been occupied by us that for the time being the enemy has left open to him no avenue of approach to it. Nevertheless, a quieted possession of the same is obtained only at the time when the enemy has either been utterly annihilated or scattered, or else has also by a pact given up his claim to such property. Here, furthermore, it must be noted that, if among the things taken from the enemy there be some which have been taken from some third party likewise, in case this third party has given up the effort to recover them, and has left them to the quieted possession of the second, then he cannot demand back that property from the last holder. For to property which has been taken away in a just war I am understood to have lost at the same time every right. The same thing happens when I suffer my right to a thing which has been taken away from me in any way at all, to expire by neglecting to recover it, or at least to protest against the wrong, or by entering into transactions with the one who took it away.36 Also the obligation of restoring a thing which has been taken away unjustly does not pass from the one who took it away to the latest holder, and that because this obligation inheres in the person of the former, and does by no means attend the thing which the first possessor has already regarded as derelict. But if, in truth, the first possessor has preserved his right, then he will be able rightly to recover his property from the last holder, with this proviso, however, that he is bound to make good to the latter the effort expended in recovering it.

      To the third class belong those increments and fruits in which the operation of nature as well as the industry and effort of men concur. Such are all manner of crops which are improved through cultivation by man, trees which put off their sylvan nature as a result of ingrafting, and the fruits of the same; likewise the offspring and fruits of animals which are fed by men, or of those animals whose offspring and fruits are not produced at all without human effort, or else have to be sustained thereby. The fruits of animals I call milk, wool, hair, feathers, teeth, deciduous horns, and the like.

      To the second class we assign those things which, due to human skill, put on a form that is fit for definite uses, such as are practically all things with which the industry of workmen and artisans is occupied. Their industry is accustomed to fashion these rude benefactions of nature, as it were, for the most convenient uses of human life.


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