ownership remains with the testator, while the right of the heir begins only at the moment of the testator’s death. The evident proof of this position is the fact that, even after the making of a testament, the testator is able to alienate the property, nay more, he can utterly change the heirs as well as the testament, without any complaint on the part of the previously recorded heir.
As for the rest, although natural equity and ordinary affection (which, however, does not render unavailing whatever has been done in its despite) has been wont to urge that a man should leave his goods to his children or to relatives, rather than to aliens, unless by some notable fault the former have rendered themselves unworthy; yet, since nothing is required from parents as a natural debt other than that they should be at pains, according to their means, to have their children well brought up until they may be able to look out for themselves adequately; it rests in the free will of any man whatsoever, quite apart from the disposition of civil laws, to decide what he chooses to leave his children beyond that debt, and what, if anything at all, he chooses to leave relatives, out of his own goods. To have this situation the more clearly recognized, a number of civil laws have ordered that certain formalities be observed, and that, if they are not in evidence, the testament should be void, and this for the reason that it is not presumed that this was truly his desire, which he did not express in that way in which alone he knew it could be valid. Although, truly, <49> civil laws can define what a man ought to leave and to whom, nevertheless, the very complaints about a testament which is contrary to one’s duty do not so much raise the doubt as to whether the testator had the right to dispose of his own property according to his free will, as they seek from the judge that the reasons which moved the deceased be looked into, because he willed to do something which was contrary to common inclination, so that, if it be found that he had abused his authority [potestate], owing to the deception or fraud of others, the goods may by public authority [autoritatem] be assigned those to whom they would otherwise have come, if, indeed, he had brought reason to counsel rather than inconsiderate emotions. And the statement is not unqualifiedly true that parents acquire all things for the sake of their children, for each one primarily acquires for his own sake, and that which exceeds his own particular needs he is willing then to have go to those who are dearest to him, such as are ordinarily considered to be his children and his next of kin. But this is easily understood, namely, that he whose goods are held in a restricted mode of tenure can make no disposition of anything to the injury of the one who has had some superior or prior right in those goods; and this follows from the common axiom that no one can confer more right to another than he himself possesses.40 Hence, in testaments, not only can no valid disposition be made which is contrary to the laws of the state, but even that which is owed to others by the testator, by contracts, or under some other head, must first be subtracted from his goods before anything comes to the heirs. For right had been acquired by all other creditors before the heir, his right beginning only after the death of the testator. And therefore a person is understood to be transmitting to the heir no more than is left to himself at the time of death, after subtracting that which is needed to pay his debts. There are, however, states in which a man by testament may dispose of only that which he has acquired by his own industry, but not that which he has himself inherited. Elsewhere there is even no such thing as the making of a testament on the part of citizens, but everything descends to the nearest blood relatives without testamentary disposition.
27. Properly, however, and by a certain necessity of natural law, ownership is not made void through defect of reason, as, for example, either childhood, or insanity which later supervenes. For property which is under ownership is for the most part subservient to the needs of the body, and since these needs rest no less heavily upon the aforementioned than upon those who are in possession of their reason, it would be absurd for the condition of age or for disease to be of any avail in taking away from them that ownership which has become a more precious thing to them because of the concomitant inability to acquire property. But, truly, because an intellectual defect prevents <50> them from being able to make a good use of their own property, in most countries civil laws out of humane consideration have entrusted the administration of their goods to others, in such a way that not the owners, who are not in full possession of their reason, but guardians can effectively dispose of that property, and this is done to prevent the owners from being dispossessed of their property because of their own lack of prudence and through the fraud of others. For it was thought to be incongruous that those who cannot understand what is being done, and therefore cannot consent, should be able to alienate something; and to accept something from such a person in whose case there is presumed to be no rightly considered will to give, is not without the appearance of fraud. Besides it is also to the public interest that no one make a bad use of his own property. It is due to this consideration that guardianship is extended also over those years which already possess an understanding of affairs, but wherein, because of the violence of emotions, persons are regarded as incapable of guarding their property.
28. Things are no man’s which pertain to no particular man, and to which no one possesses any special right for the present above others. Certain of these are absolutely incapable of proprietorship and have been excluded from interchange among men; to wit, those whose nature rejects every corporeal possession and seizure made by men, and those which admit no act out of which a special right can arise for some one above others.41 To this class we are of the opinion that air, wind, heat, and light of the sun, so far as they inhere in the air that surrounds us, or in circumjacent space, are by no means so simply to be referred. For, since these things cannot, like others, be transferred by men from one portion of space to another (in which respect, that is, separately, they do not enter into exchange), they can assuredly, as things inherent in space, also come under an estimate of value, and therefore, as far as proprietorship is concerned, they participate in the nature of space. Thence it follows in due consequence that the man whom I can exclude from my space I can also prevent from enjoying the air, the wind, the warmth and light of the sun existing in my space. Thus it is not unusual to charge up to another the clemency of the air, and the convenience of wind and sun which is enjoyed by the farm that I am renting or selling him; likewise it is not unusual that over space belonging to me I leave a path, as it were, for wind or for the light of the sun to another’s house, since otherwise I might shut out his light with a building.
Now certain things are for the present, indeed, no man’s, although otherwise, by their nature they are capable of proprietorship and become in act subject to it when they are occupied by some person. Such <51> are the things which the nations have treated as derelict when they were appropriating other things to themselves as their very own. However, they have been unwilling for some among these to become the actual property of one or another person or people by act of occupation, but have ever tacitly agreed that they should be no man’s property, as we said above on the topic of those parts of the ocean which are far away from the shore. But other things yield to any one whatsoever who takes possession of them. Such were, according to the view of the ancient Roman jurisconsults, fishes, birds, and wild beasts, which it was permissible to catch even on another’s farm, although the owner of the farm might keep out any one who wanted to enter for the sake of hunting animals or birds.42 And these things, when once become one’s own property by right of occupation, became again no man’s property and returned to a free state, when they had escaped the custody of men.43 Into this class they put bees, doves, peacocks, tamed wild animals when they had run away and had put off the habit of returning; likewise property exposed to looting in war, missiles, treasures, things thrown up on the shore, and whatever else there is of that sort. But about many of the things just mentioned the peoples of the world to-day have made different dispositions. Certain things were even regarded as derelict, as it were, at least in respect to those persons whom the same state or the same society included, yet those who were outside the state or the society were excluded from participating in them; and this is certain in the case of booty, missiles, and some other things. For who could believe that the Romans ever granted also to outsiders the privilege of carrying off booty from cities which they had themselves given over to plunder? Although those things are less accurately listed among no man’s property, when, in truth, they belong to the state, or
