2 There are other persons whose grant does not comprehend either the one or the other of these things: and these have no case against the public; except either the custom of that country favours them, or a long possession, with due circumstances, have generated a right.

But if it be not the authority or lordship, but the land which is granted as a fief, we must see what is the nature of the land, as above stated. If it is arcifinial, the alluvium is to be considered as compre hended in the grant, not by the peculiar right of the prince, but by the nature of the land: for a tenant for a term would in such case also enjoy the profits of alluvium.

XVI. The Romans, in order to prove their own Law to be Natural Law, are wont to adduce that trite maxim: It is according to nature that he should have the advantages of anything who has the disadvantages: wherefore, as the river may often carry away a part of my land, it is reasonable that I should take what it gives. But that rule does not hold, except when the advantages come from a thing which is ours; but here they come from the river, which belongs to another party. But that what is destroyed is lost to the owner, is Natural Law. And that what they allege is not universally applicable, appears by the exception, admitted by themselves, of limitate land. The river enriches some, impoverishes others, as Lucan says.

XVII. What they further say, that even a public road [passing along the river-bank] does not bar the right of alluvium, is a doctrine for which there is no natural reason; except the private land be bound to keep up the road.

XVIII. There is another mode of acquisition, amongst those which are reckoned juris gentium, by the generation of animals: in which that which has been ruled by the Romans and some other nations, that the offspring follows the mother (as to property) is not Natural Law, as we have said above, (II. v. xxix.) except so far that the father is unknown in most cases. But if there were any probable certainty concerning him, no reason could be assigned why the offspring should not belong partly to him. For that what is born is part of the father is certain. Whether it derive more from the father or the mother is disputed among physiologists. So Plutarch. [See.] And this view was followed in the old laws of the Franks and Lombards.

XIX. 1 [There is a question concerning property in which materials and labour are mixed.]

If I make a new article of materials belonging to another, the Sabinians* determined it to be the property of him to whom the materials belonged; Proculus, the property of me who gave it the new form, by which the article began to be what it is. But at last the medium opinion was accepted: that if the matter could return to its former shape, the owner of the material should have it; if it could not, then the person who was the author of the new form.

The followers of Massurius Sabinus. Gronov.

But

Connanus condemns this, and is for having this point alone considered; whether there be a greater amount of value in the workmanship or in the material; and for directing that that which is the more valuable should prevail, and draw to it that which is of less value; arguing by reference to the doctrines of the Roman jurists concerning value added to a thing.

2 But if we look at Natural Law merely, as the Roman jurists decided that when materials of two kinds belonging to two persons are indistinguishably mixed, there is a common property produced, in proportion to each person's share, because otherwise there could be no natural termination of the question: so when things consist of matter and form as their parts, if the matter belong to one, the form to another, it follows by Natural Law that the article is common property, according to the share of value which belongs to each. For the form is part of the substance, but not the whole substance: which Ulpian saw, when he said that by the change of form the substance was almost destroyed.

XX. But that they who with fraudulent intent meddle with matter that belongs to another, lose their right to the form which they have given it, is indeed a rule not otherwise than equitable; but it is a penal Law, and therefore not a Natural Law; for Nature does not determine punishment, nor does she take away ownership for a delinquency per se; though by Natural Law delinquents are worthy of some punishment.

XXI. But that the minor thing becomes an appendage to the major thing, which is the ground on which Connanus rests, is a natural rule in fact, but not in law. He who is part-owner of an estate, for a twentieth part only, is as much part-owner as he who has the nineteen parts. Wherefore all that is settled in the Roman Law, or may further be settled, about one part becoming an appendage to the other on account of the prevalence of value, is not Natural Law, but Civil Law, introduced for the convenience of business; nature not repugning, because the law has the right of giving ownership. But there is scarce any part of law in which the opinions and errors of jurists are so various. For who will allow that if copper and gold are mixed together they cannot be separated, as Ulpian writes; or that in welding, [ferruminatio] there is an indistinguishable mixture, as Paulus; or that the rule is different for a written paper and a picture; the canvas being an appendage to the picture, but the writing to the paper?

XXII. That plantations and crops are appendages to the soil is similarly an established rule of law; of which the reason is, that they are nourished by the soil. On this account a distinction is made in a tree, according to whether it has shot out roots. But aliment makes only a part of a thing already existing: and therefore, as the owner of the soil acquires some right from the aliment supplied, so the owner of the seed, plant, or tree planted, does not thereby lose his right

according to Natural Law. Therefore this too will be a case of common property: and in the same way in a house, of which the parts are the ground and the superstructure; for if the building be moveable, the owner of the soil has no right in it, as Scævola also decided. XXIII. That a bona fide possessor, [one who believes that he has a right,] acquires a property in all the fruit or income which he draws from the property, is not Natural Law: but only so far as this; that he has a right to charge the expenses which he has bestowed upon the property, and his useful labour, and of deducting them from the income received: and even of retaining the rising crop if repayment is not otherwise made.

XXIV. The same may be said of a possessor male fide, [who knows that he has not a right,] when the penal law does not interfere. It is more considerate, says Paulus the jurist, that even in a man who has robbed us we should take account of his expenses; for the complainant ought not to derive gain from another's loss.

XXV. The last mode of acquisition which is called juris gentium is by tradition or delivery. But we have said above that delivery is not required by Natural Law for the transfer of ownership; as indeed the Jurists themselves in some cases acknowledge: as in a thing which is given to another, while the present enjoyment of it is retained by the donor, or which is made over to a person who already holds it, or has it as a loan, or in things thrown among a crowd for them to catch. And in some cases, even now, a man may transfer the ownership before he is owner himself; as [by a certain Roman law,] in inheritances, legacies, things given to churches or pious places, or to communities, or for the sake of aliment, or in cases when a joint property in the goods is established.

XXVI. We have noted these things, in order that when any one finds the term juris gentium in the Roman jurists, he may not, as a matter of course, understand that jus which is immutable: but may carefully distinguish precepts of Natural Law from those which, in a certain state, are natural; and rights which are common to many peoples independently, from those which contain the bond of human society, [and therefore are truly juris gentium].

But this is to be noted, that if by this jus gentium improperly so called, or by the law of one people, a mode of acquiring property be introduced without any distinction of citizen and stranger, this, of course, gives a right to foreigners also: and if the person be prevented from taking possession of the right, there may arise a wrong which gives a just occasion of war.

I.

VI. Or the form.

W

TE have sufficiently explained how both private ownership and public authority is acquired, and how it is transferred; let us now consider how it ceases.

That it ceases by derelict, is above shewn in passing; because the will ceasing, the ownership does not remain. There is also another mode of its ending: the subject or person in whom the lordship or ownership resides being removed, that is, before alienation either express at least, or tacit, such as there is in successions to intestates. Wherefore if any person die without giving any indication of his will, and without leaving any relative, every right which he had perishes, and therefore his slaves (except some human law prevent it) will be free; the peoples who had been under his authority will be their own masters, because these things (slaves and governments) are not things which can be taken possession of by the first comer; but his other property may be so occupied.

II. The same which we have said of a person may be said of a Family which fails, and which had any rights.

III. 1 The same, if a People fails. Isocrates, and after him the Emperor Julian said, that states are immortal; that is, that they may be so; because a People is that kind of body which consists of separate elements, but is subject to one name, and has one habit, as Plutarch says, one spirit, as Paulus. This spirit or habit in a people is the full and perfect common participation of civil life; the first production of which is the sovereignty, the bond by which the State is held together, the vital breath drawn by so many thousands, as Seneca speaks. And these artificial bodies have plainly an analogy with natural bodies. A natural body does not cease to be the same, though the particles are gradually changed, the Form remaining the same, as Alphenus, after the philosophers, discourses.

2 And thus we can explain what Seneca says, that no one of us is

the same in age which he was in youth, this being understood of the matter of which we consist; as Heraclitus said, according to the quotation of Plato in the Cratylus, and Seneca in the above cited place, that we cannot bathe twice in the same river : which Seneca rightly corrects, by saying the name of the river remains, the water passes. So Aristotle, comparing a river to a people, says, that rivers are called the same, though new water is constantly coming in, old water going out. Nor is it the empty name which remains; but that habit, which Conon defines as a habit holding the body together, and Philo, as a spiritual bond, and which the Latins also call the spirit of the thing. Thus a People, as Alphenus and Plutarch say, is reckoned the same now as it was a hundred years ago, though none of those who lived then is alive now, As long as that communion which makes a people and binds it together with mutual bonds preserves its unity, as Plutarch expresses it. And hence arises the mode of speaking, that when we address a people now existing, we attribute to it what happened to the same People several generations ago; as we may see both in the historians, and in the Scriptures. [See the passages.] So in Tacitus, Antonius Primus reminds the veterans of the Third Legion, that, Under M. Antonius, they had repelled the Parthians, under Corbulo, the Armenians.

3 It is therefore through spite, and not as speaking truly, that in the same Tacitus, Piso denies that the Athenians of his time are the Athenians, those being extinct by a succession of calamities; and says, that they are a mixture of the dregs of nations. For that accession of strangers had perhaps detracted something from the dignity of the people, but had not made it another people. Nor was he ignorant of this, since on those very Athenians of his time he charged the old faults which they had committed, their failures against the Macedonians, their violence against their own citizens.

But while the change of component parts does not make a people cease to be what it was, even for above a thousand years; it cannot be denied that a people may cease to be: and this may happen in two ways; by the destruction of the body, or by the departure of the form or spirit of which I have spoken.

IV. The body is destroyed, either by the simultaneous removal of the parts, without which the body cannot subsist, or by taking away their connexion as a body. To the former mode, you must refer peoples swept away by the sea, as the peoples of the island of Atlantis, of whom Plato speaks, and others whom Tertullian mentions. Also such as have been swallowed up by an earthquake or a chasm opened in the ground, of which there are examples in Seneca and Ammianus Marcellinus, and elsewhere: and those who voluntarily destroyed themselves, as the Sidonians and the Saguntines. Pliny says that fifty-three Peoples of ancient Latium perished, leaving no trace.

If, of such a people, so few survive that they cannot make a People, what are we to say? In that case, the ownership which the people had in the way of private persons may subsist; but not anything