OUTLINE — LECTURE 16
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BARTOLUS on D.41.1.1.
“Of certain things.” It is opposed that ownership is acquired by civil law.
Solution: Ownership is of the law of nations, but the means of acquiring
ownership are of the civil law. And see the gloss that states the modes and
begins: “ D.41.1.1:
GAIUS, Diurnal or Golden
Matters, book 2: “Of certain
things we obtain ownership by the law of nations, which is everywhere
followed among men, according to the dictates of natural reason; and we
obtain the ownership of other things by the civil law, that is to say, by the
law of our own country.”
ORDINARY GLOSS on “our
own county”: “ All animals, therefore, which are captured on land, on sea, or in the
air, that is to say, wild beasts and birds, as well as fish, become the
property of those who take them. 2. FLORENTINUS,
Institutes, book 6: The same rule applies to their offspring, born
while they are in our hands. 3. GAIUS,
Diurnal or Golden Matters, book 2: For what does not belong to anyone
by natural law becomes the property of the person who first acquires it. 1
Nor does it make any difference, so far as wild animals and birds are
concerned, whether anyone takes them on his own land, or on that of another;
but it is clear that if he enters upon the premises of another for the
purpose of hunting, or of taking game, he can be legally forbidden by the
owner to do so, if the latter is aware of his intention. 2
When we have once acquired any of these animals, they are understood
to belong to us, as long as they are retained in our possession; for if they
should escape from our custody and recover their natural freedom, they cease
to belong to us, and again become the property of the first one who takes
them, 4. FLORENTINUS,
Institutes, book 6: Unless, having been tamed, they are accustomed to
depart and return. 5. GAIUS,
Diurnal or Golden Matters, book 2: [Wild animals] are understood to
recover their natural freedom when our eyes can no longer perceive them; or
if they can be seen, when their pursuit is difficult. BARTOLUS on
D.41.1.1–5pr: “‘All.’ Read up to [D.41.5.5.1]. It is opposed that a man
belongs to no one, and nonetheless he is not granted to the occupant. Say as
in the gloss and in [JI.2.1.12]. [D.10.4.15] and [D.43.28.1] are opposed. I
wish to go into your field for fowling, and even though you prohibit it, I go
in; do I acquire a right by my hunting? And the gloss sends you to
[D.8.3.16]. The contrary is noted in [JI.2.1.12], but the gloss on [D.8.3.16]
is true, and Dy. holds to it. Take this case: someone taken captive in a
church is ordered by a judge to be released to his own liberty, you let him
go a little way and then seize him; have you fulfilled the judgment?
Certainly not because such liberty ought to be given to him that his pursuit
would be difficult, as in [D.41.01.5.pr].
I add for you [D.50.16.48] with its gloss.” ORDINARY GLOSS on “by
natural law becomes”: “This is not true in the case of a free man, and the
reason is that this rule speaks of those things which can be subjected to our
ownership, which does not exist in the case of a free man, as in [JI.3.19.pr,
1]. It is also not true in the case of a sick slave cast out by its owner,
who is made free. [C.7.6.1.3]. And since this rule seems not to be true in
the case of many other things say in how many ways something is said to be no
one’s [nullius in bonis], as notes
[D.1.8.1]. D.8.3.16: “Divine Pius
wrote thus to the fowlers: ‘It is not consonant with reason that you do your
fowling on others’ land when the owners are unwilling’.” ORDINARY GLOSS on
D.8.3.16: “The same is true in the case of hunting. But since fowling on another’s land is
prohibited by this law, therefore that which is taken does not become his who
takes it ... and if it happens, it seems that it ought to be restored ...
. But I say to the contrary, as in
[JI.2.1.12, 13 ...] But can the hunter
be distrained while he is still in the field so that he return what he has
captured? Say that he cannot ... but
let [the owner] bring an action of iniuria.”
D.41.1.5.1: “It has
been asked whether a wild animal which has been wounded in such a way that it
can be captured is understood immediately to become our property. It was held by Trebatius that it at once
belongs to us, and continues to do so while we pursue it, but if we should
cease to pursue it, it will no longer be ours, and will again become the
property of the first one who takes it.
Therefore, if during the time that we are pursuing it another should take
it with the intention of himself profiting by its capture, he will be held to
have committed theft against us. Many
authorities do not think that it will belong to us, unless we capture it,
because many things may happen to prevent us from doing so. This is the better opinion.” BARTOLUS on
D.41.1.5.1: “Natural freedom.” The Lombard Law, de venatoribus. l. pen. is
opposed. Solution: that law is one thing this law is another, but by custom
the opinion of Trebatius is approved. And keep in mind this gloss which is
cited in the treatise on mills. I begin to make a mill; someone finishes
before me; can I prohibit him? And according to the reasoning of the
jurisconsult no, because when we begin to build something but have not
completed it, it is not ours, as here, unless we completely take it. But the
gloss says that custom observes the contrary. [See above, XIII-3,
note 5.] But I hold to this law. And reply to this law and say as I said in
the matter about mills. BARTOLUS’s “Treatise
on Mills”: “So it was decided at “It is apparent that
he who began has a better right than he who began next if the latter could
foresee that his use would impede the use of him who began first.” “When moreover I have
said that he follows up on the work, you are not to understand it in the
Jewish fashion that it is necessary that he always and in such a way work
that he can neither eat nor sleep.” JOHANNES FABER on the Institutes:
“You should say that
the radical beginning of the law of nations proceeds along with human law,
viz. natural reason, which constitutes the same thing among all men … .But
the law of nations itself, he continues, proceeded afterwards with the
multiplication of the populace as you can see [in JI.1.2.2] at the words ‘But
the law of nations [is common to all human kind. For wars arose and
captivities and slaveries, which are contrary to the natural law. For by the
natural law from the beginning all men were born free].’ And when it says
here that it is older add ‘than the civil law, but pure natural law is
older.’” “‘What if after’ at
the end, the gloss holds the contrary of [D.8.3.16] … which seem to be truer.
For no one can prohibit fowling but entry. … But he has no action [i.e., the
landowner has no action to prevent the fowling] and the prohibition ought not
operate unless with respect to the entry because he did it injuriously, nor
does it impede the act. … See [D.41.1.55, that’s the case of the boar that
fell into the trap] in that it reproves the distinction between of mine and
another’s. And in [C.3.32.17, 22, both of which are cited in the gloss], two
things are required so that someone may profit from fruits, receipt and good
faith. Here, however, occupation alone suffices. [JI.2.1.13.] But what if he
has him impeded by a judge? Surely then he does not make it his own if the
inhibition was made with knowledge. [D.41.4.7.5; D.50.12.8 at the end; the
first citation is on point. The second is a bit of a stretch, but both
support that notion that judicial action can take away property rights.]. For
the prohibition of the judge impedes the transfer of ownership, much more its
acquisition. [That’s a bad argument; the point is that we are not talking
about transfer of ownership.] And cite what Innocent notes [X 5.1.27]. And
this applies if the judge inhibits hunting; it is otherwise if he inhibits
entry for the reason stated above. And by this it appears that he cannot be
detained on the land as notes the said law [D.8.3.16]. Today, however, by the
custom by which warrens and enclosures are tolerated, it does not seem that
the captor makes it his own and that he ought to restore it. For if the
prohibition of the judge can do this, as is said, much more so the customary
law which can more than interdict the transfer of ownership. [D.47.14.16; C.11.48.7.
Both citations seem to be a bit of a stretch, since both fragments concerns
fraudulent sales (fraus legis).]
Whence when such an occupation grants a right by the law of nations, as I
said in the last section, by custom it can be taken away and overcome, as I
said above, … which otherwise might seem to stand in the way. [citing
JI.1.2.12, ?JI.1.2.11 is probably meant, though he doesn’t quite say it in
either place. The argument seems to be that just as the primitive natural law
was supplanted with regard to the establishment of private property by the
law of nations, so too the law of nations may be superseded by custom.] By
the feudal law, moreover, hunting with traps is prohibited except for boars,
wolves, etc., in [Libri feudorum
2.27.5: Constitution of the Emperor Frederick [?I]): ‘No one shall lay nets
or traps or any other instrument for taking game (venationes), except for taking bears, boars, or wolves’.]” JOHANNES CHRISTOPHERUS PORTIUS (Parcus, Porcus) (fl. 1434 to mid-1450’s) and JASON DE MAYNO
(1435–1519)
“Dynus, however, holds
to this gloss, and I like his opinion, first by the laws alleged in this
gloss, but I urge by a reason [sed
suadeo ratione]: for from the time that the entrant by entering falls
into a state condemned by the law, he ought not get any benefit. … And by
this reason the rule that when something is no one’s, etc., does not stand in
the way because that [rule] does not win primacy of place when the entry was
vicious. This is proved here in ‘it is clear [that if he goes on another
man’s land for the sake of hunting or fowling, the latter may forbid him
entry if aware of his purpose]’, as if to say, ‘Although I told you that so
far as acquiring ownership of those things that are no one’s is concerned, it
makes no difference whether someone captures on his own land or another’s;
nonetheless, this is true unless he takes having entered against the will of
the owner’. And by this also it does not stand in the way, because the entry
is punished by the action of iniuria,
because one could by capture take greater profit than one suffered mulct by
vicious entry. I confess, however, that the owner of the land may not hold
the hunter until he restore what he has captured, if he knows him, and in
this I approve the gloss in [D.8.3.16] which expresses this.” “In the gloss on the
word ‘catch it’ at the end: This gloss is commonly held so that all this
resides in the opinion of the judge. If the beast were so wounded that it
could not have turned out other than that he would be captured, for it is
prostrate, half-dead, immediately it certainly becomes the wounder’s. This is
proven in the verse possessore at
the place quia multa a contrario sensu.
[Unidentified] And I cited this text in the determination of a question
committed to me. Someone who at that time was a reverend prelate promised a
graduate student [spectabili], now
a doctor, to checkmate with a black knight. With a knight he drove the king
onto the line of [another] knight on which there was a rook behind the
knight. Then he removed the knight and said that he had captured the king
with the knight. The other said ‘No way [nequaquam]’,
because the king was captured by the rook not by the knight. I inclined to
this judgment because of this text. Although the knight had so forced the
king that it could be captured, that was not yet its effect, and therefore it
was conceded to the previously occupying rook.” |
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