Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf
upon the end of the life of him from whom it descends, has the force of plenary right against all who in any way whatsoever have temporary possession or administration of that property. For, by the death of the owner, plenary right to the goods devolves upon the heir, whether he be the heir according to the testament and desire of the former owner, or by the laws of the state. But, so long as the testator is still among the living, there belongs as yet to the heir, no matter in what way he be called to succession, no right which is valid against the testator and can keep him from being able still to make disposal of his goods to please himself, notwithstanding the fact that he has once signified his desire; unless, perchance, civil laws should order that all goods, or a definite part of the same, should altogether be turned over to certain persons, and should not grant the free making of a testament, just as in certain states the authority to dispose by will is allowed in the case of no goods at all, in other states only in the case of goods which have been acquired by one’s own industry. In this case inheritance comes very close to the efficacy of a right, even before the death of the owner, to such a degree that he may not transfer to another, on any ground at all, to the injury of his necessary heir, a notable part of his own goods.
4. It is customary, of a truth, for a number of things to come commonly under the rating of rights, which, if we should care to speak accurately, are a sort of composite made up out of authority and right, both properly so called, involving at the same time either things which presuppose obligation and honour, or something of that sort. Of this kind is citizenship, or the right of citizenship. For this embraces the faculty of exercising with full effect the acts of that state peculiar to its members, and the right of enjoying advantages which are its very own, positing an obligation toward that same state. Thus also civil dignities, for example, nobility and its grades, likewise the honours of learned men, embrace the authority of exercising definite acts proper to that dignity, and the right of enjoying the advantages of that order, to which advantages there adheres in addition a certain honour and intensification of esteem.
5. Now it is an imperfect right, which is called by some an aptitude,1 when something is owed some one by another in such wise that, if he should deny it, he would, indeed, be acting unfairly, and yet the injured party would by no means be receiving a wrong which would furnish him with an action against the injurer; nor would he be able to assert for himself that right by force, except when necessity does not admit of any other means to secure his safety. In regard to all those things <60> which others owe us on the basis of some imperfect obligation we possess only an aptitude. This is a topic which we shall have to discuss at greater length below. Thus, I am able neither to compel another to do me benefactions, nor to bring an action for ingratitude against another, although, in very truth, he is doing wrong who neglects an occasion for doing a benefaction to others, or does not return the favour as best he can in requital for benefactions received. The following case also frequently occurs, namely, that some one may be able to admit rightly, indeed, that something has been given him by another, in such a way, however, that there is no obligation upon the latter to give it, nor has the former a perfect right to possess it, but merely the bare ability. Thus, for example, when a number of persons equally fit contend for some post, and no one of them has any peculiar right to it before another, he who has the authority to confer the post can select whom he will at pleasure, without leaving at the same time to those who have been rejected any cause for complaint. <61>
1. Simple esteem.
2. Intensive esteem.
1. ESTEEM of persons in communal life is either simple or intensive. The former is considered either outside of states or inside the same. Simple esteem of a man outside a state consists in this, that he is regarded as the kind of person with whom, as with a man who observes the law of nature, it may be possible to have intercourse. Hence it is clear that all those who use commonly against any men whatsoever, or at least against those who are outside their own fellowships, the same licence which they do against beasts, have no such esteem. Such are states with powers unimpaired, if there be any of that kind, by which all outsiders are regarded indiscriminately as enemies, and especially if they themselves attack these outsiders of their own volition. Likewise, pirates, brigands, highwaymen, assassins, cut-purses, and others of that ilk; whom, unless they are on the way to give up that life of rapacity, it is no more appropriate for others to spare, than to spare wolves or other fierce monsters; nor are the offices of humanity to be shown them, by which, forsooth, they are made stronger to inflict damage upon others; nor should any confidence be put in a pledge which they have themselves given, the value of which in the minds of others is destroyed by the wickedness of their life.
Now that is simple esteem inside a state, by which each one is regarded at least as an ordinary and a complete member of the state, or as one who has not been declared a defective member of the state according to laws and statutes. And any and all free men and respected, or those who have not been branded by disgrace in process of law, rejoice in that esteem. Furthermore, this esteem in a state fails one either from mere status or from misdeed. The former is the case among slaves, who are not regarded as civil persons, or are understood not to have the standing of a citizen. For that slaves, at Rome, for example, were formerly regarded as no persons at all, and therefore lacked civil esteem,1 is perfectly clear from the fact that they had nothing of their own and acquired nothing for themselves; from the fact that anything could be inflicted upon them by their masters with impunity; moreover, that, according to the law of Aquila, an action <62> was brought against some one else who had done harm to slaves, just as though he had injured the cattle of another;2 that no kinship among slaves was recognized, nor was cohabitation among slaves regarded as marriage, exactly as is the case among beasts; that no credence was given in a court to their testimony even when under oath; and by other facts of this nature.
This esteem is lost as a result of antecedent misdeed, when some one, in accordance with the laws, because of a definite kind of misdeed (for not all misdeeds extinguish esteem in a civil sense), is branded with infamy; and this consists either in his being eliminated at the same time from natural existence; or utterly ejected from the state; or else retained, indeed, in the state, yet not as a complete member, but as a defective member, so that he rejoices, indeed, in domicile within the state, and in the common protection of the laws, but is excluded from public official duties and honourable associations, and is disdainfully deprived even of individual intercourse with all but the base. Such infamy can be invoked only by those in whose hands is the execution of the laws. By the judgement of private persons no one is brought into infamy in such a manner before that fact has been declared openly by a competent tribunal. And much less can any obligation of true infamy adhere by virtue of the mere undertaking of private citizens, without the authority [autoritatem] of the magistracy, because of failure to perform some act, any more than those private citizens are able by their own authority [autoritate] to grant effectively the rights of citizenship to any one. For it belongs to the same authority both to give, as it were, civil life, and to inflict civil death.
2. That is intensive esteem, in accordance with which persons