The Spanish Scholastics and Academic Lawyers:

Francisco de Vitoria (Victoria), c. 1483–1546—De Indis et de iure belli relectiones (pub. postumously)

Domingo de Soto, 1494–1560—De justicia et jure (1556)

Diego Covarruvias y Layva, 1512–1577, the ‘Spanish Bartolus’

Thomas Sanchez, 1550–1610—Disputationes de sancto matrimonii sacramento (1602)

Francisco Suarez, 1548–1617—Tractatus de legibus et Deo legislatore (1612)

The Natural Law School:

Huigh de Groot (Hugo Grotius) 1583–1645—De jure belli et pacis [Concerning the law of war and peace] (1625)

Samuel von Pufendorf, 1623–1694—De jure naturae et gentium libri octo [Eight books on the law of nature and of nations] (1672)

Christian Thomasius, 1655–1728—Fundamenta iuris naturae et gentium [Fundamentals of natural law and of the law of nations] (1705); Institutionum jurisprudentiae divinae libri tres [Three books of institutes on divine law] (1687)

Jean Barbeyrac, 1674–1744—Translates and annotates Grotius and Pufendorf

Giambattista Vico, 1668–1744, De universi iuris uno principio et fine uno liber unus; De constantia jurisprudentis; Notae [One book concerning the single principle and single end of universal law; On the consistency of the juriprude; Notes] (1720–22)¹

Jean-Jacques Burlamaqui, 1694–1748, Principes du droit naturel [Principles of natural law] (1747)

International Law:

[Naturalist] Johannes Wolfgang Textor, 1683–1701, Synopsis iuris gentium [Synopsis of the law of nations] (1680)

[Positivist] Cornelis van Bynkershoeck, 1673–1743—De dominio maris [Concerning the dominion of the sea] (1702)

[Naturalist] Christian von Wolff, 1679–1754—Jus naturae methodo scientifico pertractatum [The law of nature treated by the scientific method] (1710–19); Institutiones juris naturae et gentium [Institutes of the law of nature and of nations] (1754)

[Moderate positivist] Emer (Emerich) de Vattel, 1714–1767—Le droit des gens ou principes de la loi naturel [The law of nations or principles of the natural law] (1758)

‘Elegant jurisprudes’:

Gerardus Noodt, 1647–1725, Probabilia juris [Probable opinions about law] (1678).

Bernard Reinold, 1677–1726, Observationes ad titulum Digestorum de acquirendo rerum dominio [Observations on the Digest title concerning the acquisition of ownership of things] (1719)

Christfried Wächtler, 1652–1732, Notae ad Noodt (1681)

Practical lawyers — usus modernus pandectarum:

Diodor von Tuldenus, ?1595–1645, Commentarius in quattuor libros Institutionum [Commentary on the four books of Institutes] (1622)

Samuel Stryk, 1640–1710, Usus modernus pandectarum (1690) [The Modern Use of the Pandects]

Johannes Voet, 1647–1713, Commentarius ad Pandectas [Commentary on the Pandects] (1698–1704)

Gottlieb Gerhard Titius, 1661–1714, Juris privati romano-germanici ... libri duodecim [Twelve books on Romano-germanic private law] (1709); Disputatio de dominio in rebus occupatis ultra possessionem durante [Disputation concerning dominion lasting beyond possession in thing occupied] (1704)

Augustin Leyser, 1683–1752, Meditationes ad Pandectas [Meditations on the Pandects] (1741–48)

Pierson v. Post, 3 Caines Reports 175 (N.Y. Supreme Court 1805)

Let us imagine that a huntsman has started a fox and is pursuing it with his hounds and horses.  As he is right on the verge of catching the beast, a neighbor emerges from the woods and kills the fox.  Let us also suppose that the huntsman alleges that the neighbor did what he did out of spite, not to get the fox for himself, but to prevent the huntsman from getting it.  These are the facts of Pierson v. Post.  In the case Post was the huntsman and Pierson was the neighbor.  The events are alleged to have taken place on a beach, on public property, and hence the possibly competing rights of the landowner are not at issue.  Over a strong dissent, the majority of the court held for Pierson, the man who shot the fox.

The following authorities were either (a) cited by the court in coming to its conclusion or (b) could have been known to the court. We’ve been pursuing this problem all semester. The questions are (a) granted this state of the authorities was the court in Pierson compelled to come out the way it did? (b) if not, why did it decide in the way that it did? (c) (more broadly) what does this examintion of the authorities tell us about the history of the concept of property from Justinian to 1805?

Justinian’s Institutes 2.1.12–.13.

Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. So far as the occupant’s title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though 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. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it. It has been doubted whether a wild animal becomes your property immediately [when] you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of any one who catches it: others have been of opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it.

Digest 41.1.55 (extract, full text Mats. VII–4)

. . . Still I think the governing principle to be this, that if he [the wild boar] has come into my power he has become mine.  But if you had released to his natural liberty a wild boar who had become mine and he had thereby ceased to be mine, then an actio in factum ought to be accorded to me, according to the opinion given when a man had thrown another’s cup overboard.

Digest 47.10.13.7 (extract, full text Mats. XVIII–10)

If someone prevent me from fishing in the sea or from lowering my net . . . , can I have an action for insult (actio iniuriarum)against him? . . . And Pomponius and the majority are of opinion that the complainant’s case is similar to that of one who is not allowed to use the public baths or to sit in a theater seat or to conduct business, sit or converse in some other such place, or to use his own property; for in these cases too, an action for insult is apposite. . . . Now what are we to say if I forbid someone to fish in front of my house on my approaches? . . . In this context, it has been frequently stated in rescripts that the sea and its shores, as also the air, being common to all, no one can be prohibited from fishing; no more can a person be from fowling, unless it be a case where he can be barred from entering another’s land.  However, the position has been adopted (by landowners), although with no legal justification, that one can be banned from fishing before my house or my approaches; hence, if someone be so barred, there can, in those circumstances, be an action for insult.  But I can prohibit anyone from fishing in a lake which I own.

The Glossators and Commentators on these and parallel passages.

Review the documents in Parts 7 and 13 of the Materials. Do they help?

The ‘natural law school’.

Hugo Grotius, De Jure Belli et Pacis 1:398–99 (W. Whewell abr. trans., 1854):

“Some corporeal possession is required for obtaining dominium ... But that possession can be not only with the hands, but with instruments, such as snares, nets, traps, so long as two elements are present: first, that the instruments themselves be in our power; second,  that the wild things be so encompassed that they cannot get out. It is Natural Law, not simply, but in a certain state of things, that is, if it be not otherwise provided.  But the peoples of Germany, when they wished to assign to their princes and kings some rights to sustain their dignity, wisely thought that they might best begin with those things which can be given without damage to any one; of which kind are the things which have not yet become the property of any; [and thence they gave them a right to the game].  And this too was what the Egyptians did.  For there the king’s proctor claimed things of that kind.  The law might transfer the ownership of these things even before occupation, since the law alone is sufficient to produce ownership.”

For Pufendorf and Barbeyrac, I’m going to have to refer to Part 18 of the Materials. They are too long to quote here. Pufendorf and Barbeyrac obviously disgree. Why? What’s at stake here? Consider the fact that the leading political philosopher when Pufendorf wrote was Hobbes (though Pufendorf disagreed with him). By the time that Barbeyrac wrote, Locke had written. (Barbeyrac cites him.) This difference can be seen clearly enough in the first two pairs of extracts:

Samuel von Pufendorf, The Law of Nature and Nations §§ 4.4.4–.5 at 366–67 [1st ed. 1672] (with the notes of Jean Barbeyrac [1st ed., 1706]) (B. Kennet trans., 5th ed., 1749) (this is probably the translation that was used by the participants in Pierson)

[Pufendorf, 4.4.4] “ ... [T]here is no precept of natural law to be discovered, by which men are enjoined to make such an appropriation of things, as that each man should be allotted his particular portion, divided from the shares of others, though the law of nature doth indeed sufficiently advise the introducing of separate assignments, as men should appoint, according to the use and exigencies of human society; yet [it does it] so as to refer it to their judgment, whether they would appropriate only some particular things, or whether they would possess some things without bringing them to a division and leave the rest as they found them, only forbidding any particular man to challenge them to himself alone. Hence too, the law of nature is supposed to approve and confirm all agreements made by men about the possession of things, provided they neither imply a contradiction, nor tend to the disturbance of society. Therefore the property of things flowed immediately from the compact of men, whether tacit or express. For although after the donation of God, nothing was wanting but for men to take possession; yet that one man’s seizing on a thing should be understood to exclude the right of all others to the same thing [2] could not proceed but from mutual agreement. And though right reason moved and persuaded men to introduce distinct properties, yet this doth not hinder, but that they might derive their rise and original from human covenant.”

[Barbeyrac, note 2] “Not at all. It is certain, on the contrary, that the immediate foundation of all particular right which any man has to a thing which was before common is the first possession. This is, also, the most ancient way of acquirement. For, indeed, when several things are given in general to a number of men which exist not at the same time and who neither can nor will possess all things in common, ... the intention of the donor doubtless is that those who come first shall gain a particular right to those things that they have gotten, exclusive of the pretentions of all others, without any consent of theirs needful to be given. All possession, according to the will of the donor, hath in it an effectual virtue to make the first occupant appropriate to himself lawfully any thing before held in common, provided he takes no more than he needs, and leaves enough for others. This is [shown by “Mr. Locke”] ... in his excellent Treatise of Civil Government, where amongst other things he has, with great accuracy and solidity, cleared up the manner how the property of goods is acquired. [Barbeyrac then paraphrases 2.27–2.28g Locke’s Second Treatise.] ... But it doth not hence follow that we may gather as many fruits, take as many beasts, or possess ourselves of as many acres of land or, in a word, appropriate to ourselves as many goods as we please. For the same law of nature, which hath given every one a particular right to those things, which, by his own industry, he has taken from that common stock, wherein they lay, the same law, I say, has set certain bounds to this right. ... Wherefore, the property of goods, acquired by labour, must be regulated by the good usage which may be made of them for the necessity and convenience of life. ... ”

[Pufendorf next quotes the arguments to the same effect of Lambert van Velthuysen (1622–85), Dutch philosopher and theologian, translator of Hobbes.] “‘That there is in nature no more reason why men should desire a right from the first occupancy of things, [6] than from the first discovery of them with the eye. ... ’”

[Barbeyrac, 6] “The reason of it is very clear, and ’tis this: that he declares thereby an intention to set apart such a thing for his use, or to appropriate it to himself, as he may by virtue of his common right to use it, which without that, would become useless to any man. The mere sight of a thing cannot have the same effect, because we see many things without any design of taking them to ourselves only. But if, at the same time, we perceive a thing first and we discover any ways an intention of reserving it to ourselves, others should no more pretend to it than if we were actually seized of it.”