CHAPTER XII 

      On Duty as regards the Acquisition of Ownership



1. Such is the constitution of the human body, that it needs for its 

nourishment things which it takes from without, as also for its protection 

against whatever tends to destroy its structure, and that this life can be 

made more comfortable and easy by a number of different things. Hence it is 

a safe inference that it is with the entire consent of the great Ruler of 

the universe that man makes use of other creatures for his own needs, and 

even destroys many of them. And this obtains not only as regards vegetables, 

and things that are destroyed without sensation, but also concerning 

innocent animals, which, in spite of the pain of their death, are killed and 

consumed by man for food without sin.



2. But in the beginning all these things are understood to have been set out 

by God in the midst, as it were, of awn. so that they belonged no more to 

one than to another; but so, however, that men should make such arrangements 

in regard to them as the constitution of the human race, regard for its 

peace and quiet, and the maintenance of good order seemed to demand. And 

thus, while the race of mortals was limited to a few, it was decided that 

whatever a man had laid hold of, with the intention of applying to his own 

needs, should be his. and ought not to be taken away from him by another; 

but that the substances from which these things were derived, should remain 

in common, not pertaining to any one in particular. But later, when men had 

multiplied, and cultivation had come to be applied to the things from which 

food and clothing are produced for man, in order to avoid quarrels, and to 

introduce good order, even the substances of things were also divided among 

men, and to each his own portion was assigned. And this convention was 

added, that whatever in the first division of things was left common, could 

thereafter become the property of the first claimant. So then by the will of 

God, the consent of men in advance, and an agreement at least tacit, 

property in things, or ownership, was introduced. 



3. Ownership then is the right by which the substance, so to speak, of a 

thing belongs to ft man, so that it does not belong as a whole in the same 

way to another. Hence it follows that we can dispose as we please of things 

belonging properly to us, and can have acquired a special right from us by 

agreement. Yet in states it usually happens that ownership is not always 

unrestricted in the case of all men, but circumscribed with certain limits 

by civil authority, or by an arrangement or convention which men have made 

with each other. When one thing, however, belongs to several in the same way 

and without division, it is said to be common to those persons.



4. But as things have not come to be owned all together or at once, but 

successively, and as the need of the human race seemed to require; so it was 

not necessary for every single thing to be appropriated; but without 

detriment to the peace of the race some things could, and others should, 

remain in the primeval common condition. For if things are useful indeed to 

men, but yet inexhaustible, so that they can be free for all to use, and 

still the individual's use is not thereby more niggardly, it would be 

superfluous and foolish to wish to divide them. Examples are the sun's heat 

and light, air, running water, and the like. Here belongs also the vast 

ocean, lying between great continents, so far as concerns those parts of it 

very distant from the coasts; since not only is it entirely sufficient for 

the varied needs of all, but also its custody is morally impossible for any 

one people. For when a thing is so constituted that others cannot by any 

means be excluded from its use, to divide it, or make property of it, is 

superfluous, and also apt to furnish occasion for vain litigation.



5. The methods of acquiring ownership are either original or derivative. By 

the former a thing becomes property in the beginning; by the latter an 

ownership already established passes from one to another. Again the former 

are either absolutely such, -- and by these ownership of the substance of a 

thing is acquired, -- or relatively, by which property already ours receives 

some accession.



6. After individual ownership of things had been adopted among men, it was 

agreed by them that whatever had not come under the primitive division 

should fall to the occupant, that is, the first man to seize the thing by 

physical means, with intent to keep it for himself. Hence to-day the only 

original method of acquiring ownership of the substance of a thing is 

occupancy. By this means then we acquire desert regions which no man ever 

claimed as his. These become the property of him who first enters them with 

the intent to keep them for himself, bringing them under cultivation, and 

establishing certain limits up to which he claims ownership. But when a 

numerous company jointly occupies any tract of land, the common practice is 

to assign some part of it to the individual members of the company, and to 

count the remainder as belonging to the whole company. By occupancy also are 

acquired wild beasts, birds, fishes in the sea, rivers, or lakes; also 

whatever is usually thrown up by the sea upon the shore; provided, however, 

the promiscuous capture of things of this sort has not been interdicted by 

the civil authority, or assigned to some particular person. If these are to 

become ours, we must seize them by physical means, and bring them into our 

power. By occupancy also we acquire things, when the ownership to which they 

had previously been subject has been clearly extinguished. For instance, 

things thrown away with the intent that they are no longer to be ours, or 

things which we lose unwillingly in the first place, but later count as 

abandoned. Here too belongs the treasure-trove, that is, money whose owner 

is unknown. This falls to the finder, when it has not been ordained 

otherwise by the civil laws.



7. But very many things which are subject to ownership do not always remain 

in the same condition, but enlarge their substance by various kinds of 

increase. Some others receive accession from without; still others bring 

forth fruit; many have their value increased by the form which human 

industry has added to them. All of which can be comprehended under the term 

accessions, and they are divided into two classes. For some things are 

produced by their nature alone, without act of man; some are procured by the 

act and industry of men, either wholly or in part. With regard to these 

there is this rule, that if a man is the owner of a thing, to him also 

belong accessions and any profits; and that he who has made a new product 

out of his own material, is the owner of that product.



8. Frequently, however, it has happened that other men, as the result of a 

contract, or other means, have acquired a right to receive a certain benefit 

from a thing belonging to us, or to hinder us from using a thing of ours 

without restriction. These rights are commonly called servitudes, and are 

divided into personal servitudes, in which an advantage accrues directly to 

the person from the property of another; and real servitudes, in which the 

advantage is derived from another's property through the medium of our own. 

Among the former are numbered usufruct use, the right of dwelling, the 

services of slaves. Again the real servitudes are divided into urban and 

rural. In the former class are, for example, the servitude of a supporting 

wall or column, that of windows, those which prevent the blocking of our 

light or view, that which requires one to receive the drippings of a roof, 

etc. To the latter class belong, for instance, right of passing, that of 

driving, that of building a road or an aqueduct, of drawing water, of 

driving cattle to water, of pasturage, etc. Nearly all of these have been 

introduced as a result of proximity.



9. Among the derivative methods of acquisition there are some in which a 

thing passes to another in accordance with the provision of a law, others in 

view of an act of the former owner. And the result is either that a man's 

entire property is transferred, or a certain portion thereof.



10. An entire property passes by law to another through the death of the 

former owner in intestate successions. For it would be repugnant to the 

general inclination of men, and not in the least conducive to the peace of 

the human race, that property which a man had acquired with such labor in 

his lifetime, should after the death of the owner be regarded as abandoned, 

and open to the occupancy of anybody. Hence, under the guidance of reason, 

it has been accepted among all peoples, that, if a man had himself made no 

disposition of his goods, these should devolve upon those whom, in 

accordance with the common affection of men, he is thought to hold most 

dear. Such are regularly those who descend from us, and then others 

connected with us by blood, each according to the degree of propinquity. And 

though there are some men who, either on account of benefits received, or 

out of peculiar affection, love certain strangers more than their own 

relatives, still the interests of peace required men, neglecting the 

affection of a few, rather to follow the common inclination of mortals, and 

to observe the simplest method of succession, and one exposed to no 

intricate disputes. These would have cropped out, if benefactors and friends 

could compete with those who rest their claim upon blood. And if the man had 

any wish to prefer benefactors or friends to kinsmen, he should have made an 

express statement of the matter.



11. It follows then that a man's nearest heirs are his own children, whose 

maintenance and rearing Nature has earnestly commended to parents; and every 

parent is supposed to have wished to provide for them as amply as possible, 

and to leave to them by preference whatever remains to himself. And by 

children we understand especially those born in lawful wedlock. For reason 

itself, and the proprieties of the civil life, and the laws of the more 

civilized nations, favor such more than natural children. But what has been 

said does not hold good, if a father has, for sufficient reasons, refused to 

recognize a person as his son, or has disinherited him on account of 

shameful depravity. Under children are further included those who belong to 

the remoter degrees. These the grandfather is bound to support, their own 

parents being dead; and hence it is entirely just that grandchildren should 

share the grandfather's estate, along with their uncles on both sides. 

Otherwise, in addition to the misfortune of losing their father prematurely, 

they would be excluded from the grandfather's estate. When there are no 

descendants, it is right that the property of deceased children devolve upon 

their parents. Those who have no surviving children and parents, will be 

succeeded by their brothers. When these too are lacking, the heirs will be 

determined by their degrees of consanguinity to the deceased. In order, 

however, to avoid the suits which can very frequently arise in these cases, 

and that the matter may be well adjusted to the interests of the state, we 

find that in most states the order of succession has been precisely 

determined. And it is safest for citizens to follow this order, unless 

important reasons force them to make a special disposition.



12. By act of the former owner an entire property passes after his death to 

another by virtue of a will. For as a poor consolation for our mortality it 

has been established among most peoples that a man can in his lifetime 

transfer his possessions in the event of death to him whom he loves most. 

But whereas in the earliest times it appears to have been the practice, when 

death was imminent, to name one's heirs openly, and to pass over the 

property actually into their hands, later, for weighty reasons, many peoples 

preferred another form of will. This namely enabled a man, at any time he 

pleased, either openly to indicate his last will, or silently to 

authenticate it in writing. And this he could change at his discretion, 

while from it the heirs named viva voce or in writing derived no right until 

the death of the testator. Such last wills deservedly enjoy high favor; yet 

they must be regulated as the interests of relatives and the good of states 

requires. Hence the latter are accustomed to prescribe by law how a man is 

to draw up his will. And whoever departs from such prescription, is unable 

to complain that his will has been disregarded. 



13. Among the living, things pass by act of the former owner either gratis, 

or by means of a contract. Transfers of the former kind are called 

donations. Of contracts we must treat later.



14. Sometimes things are transferred even against the will of the former 

owner, and in states this is especially by way of penalty, when men 

convicted of crimes have, now all their possessions, now a certain part of 

them, taken away, and applied to the state or else to the injured party. So 

too in war, things are taken away from unwilling owners by an enemy in 

superior force, and acquired by him who seizes them. But the former owner 

does not lose his right to recover them by similar violence, until by a 

subsequent treaty of peace he has renounced all claim to them.



15. Finally, there is a particular kind of acquisition called usucapio, or 

prescription, by which a man who in good faith and by fair title has gained 

possession of a thing, and has held it long in peace and without 

interruption, is at length regarded as its absolute owner, so that he can 

repel the old owner, if he wishes later to reclaim it. The reason for the 

introduction of this right was partly that a man who neglected for a long 

time to reclaim a thing was considered to have abandoned it, since in the 

long interval it was thought that opportunities therefor could scarcely have 

been lacking; and partly because the interests of peace and quiet required 

that possessions should finally be put beyond controversy. And this 

especially because it seemed much more serious to be deprived of a thing 

gamed in good faith after long possession, than to lack permanently a thing 

formerly lost, the desire for which had been dissipated long ago. But in 

states peace and quiet require that certain periods he defined, within which 

prescription may be completed, according as reason and the need of the state 

suggest