in the second chapter of the second part of “The Law of Nature.”
§ 88. Of the division of things
Those things which were left in the original common holding when occupation occurred are called by the Roman jurists res communes [things common]; those which were brought into the mixed common holding of the entire nation and have continued in it, res publicae [things public]; those which came into the mixed common holding of definite groups or communities, res universitatis [things corporate]; finally those which
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have become subject to ownership of individuals are called res singulorum [things of individuals].
Note, § 87.
This division of things made by the Romans is usually considered complicated, especially if things common are to be distinguished from things public. But if you consider those things which we have just said concerning the occupation of territory, by our definitions all those things are distinguished one from the other with sufficient clearness, just as they were divided by the Romans, so that no ambiguity remains. Moreover, it is quite plain that much must here depend upon the whim of those occupying, where the particular things belonging to this or that class are to be enumerated. Among the Romans things considered common were air, flowing water, the sea, shores, fish, birds, and wild animals; for all these things were left by them in the original common holding. Things public were all the rivers, which, seeing that they are under the control of the people, nevertheless as regards use were considered common to individuals, so that it was allowed any one to fish and sail in them as he liked. Things corporate were theatres, racecourses, and the like, as fountains, the forum, the curia, and open squares in cities. Here, too, to-day belong pastures in the country, forests fit for cutting, common groves. Here likewise are to be included temples and ecclesiastical property in city or country. All these things are in the mixed common holding of definite groups, inasmuch as the ownership is with a definite corporation, but the use is open to individuals who belong to the corporation. But since these rights can be changed by the act of men, by agreement between those to whom they belong, and because the use of the things belongs either to the whole or to the individuals, therefore things corporate can be still more minutely subdistinguished, and from this have arisen the difficulties which distract the interpreters of the Roman law. So by force of agreement there seem to be added to the positive common holding things which of themselves are to be referred to the mixed common holding, as when it is not allowed to individuals to drive into the common pastures more than a definite number of cattle, or hay growing in the common meadow is to be distributed to individuals in definite shares. But the mixed common holding suffers no change, if any one is allowed to hew down the quantity of wood which he needs, or mow down grass with a sickle in the common meadow in
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accordance with his needs, or even drive into the common pasture as many cattle as he pleases. Likewise the common use of the temples has reference to the people as a whole, but the use of common meadows and pasture lands belongs to individuals. Nay, the use of those things also, which none except the people as a whole can have, belongs either directly or indirectly to the people as a whole. The temples are an example of the direct use, in which the people as a whole in general are free to attend sacred services; goods assigned to the support of the pastor of the church are an example of the indirect use, since the use of these goods only indirectly belongs to the people as a whole. A like distinction worthy of note occurs also in things public—a thing which we consider superfluous to pursue more at length. But now if you will really depend on our definitions, by which we have distinguished things occupied by a nation, no ambiguity or difficulty seems to be left. But if you shall be pleased to subdistinguish these more minutely, we shall not object. Nevertheless it will be difficult to find in the Latin language words suitable to characterize things so distinguished.
§ 89. Of the derivative way in which a corporation acquires things
§ 12, part 3, Jus Nat.
§ 11, part 3, Jus Nat.
§ 88.
Any one can turn his own property into the property of a corporation, either directly or indirectly, either simply or under a definite condition, as shall seem best to him. For any one can transfer the ownership of his own property to another, whomsoever he shall desire, and in whatever way he shall desire. Therefore he can likewise transfer the ownership of his property to a certain definite group of men, or community, as shall seem best to him; consequently since things belong to a corporation, which come into such a mixed common holding either directly or indirectly, any one can turn his own property into the property of a corporation, either directly or indirectly, either simply or under a definite condition, as shall seem best to him.
§§ 176, 177, part 2, Jus Nat.
So an owner can give or sell, or when dying can bequeath his property to a corporation, nay, he can even appoint any corporation as heir. And so it is plain not only that the property of a corporation can be acquired by original acquisition, but also that a derivative method of acquiring the property of a corporation is allowed. Here, too, belongs
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the case of some one providing for the building, at his own expense, of a fountain for common use in the forum or in another public square that belongs to a corporation.
§ 90. Of the alienation and pledge of property of a corporation
§ 484, part 8, Jus Nat.
§ 507, part 8, Jus Nat.
§ 88.
The property of a corporation cannot be alienated from the corporation at will, nor can it be pledged, unless some pressing necessity exists or the evident advantage of the corporation recommends it. Since a particular church is a certain corporation or community, since, moreover, ecclesiastical property by nature belongs to a particular church in a certain definite place, that property belongs to a corporation. Therefore that the property of a corporation cannot be alienated or pledged at will is proved in the same manner as we have shown likewise in the case of ecclesiastical property. Which was the first point.
§§ 510, 516, part 8, Jus Nat.
§§ 514, 516, part 8, Jus Nat.
That in case of pressing necessity it is allowable to sell or to pledge, is likewise plain in the same manner as we have proved the same in the case of ecclesiastical property. Which was the second point.
§ 511, part 8, Jus Nat.
Finally, if the evident advantage of the corporation recommends the alienation or pledge of the property of a corporation, when nothing is done to the disadvantage of the corporation for the future, but rather there is due consideration for it; nothing prevents the alienation or pledge from being made, since in fact nothing stands in the way of the alienation or pledge, such as a disadvantage which may come to the corporation in the future, as is evident from the proof of the limitation of the right of the church in ecclesiastical property. Which was the third point.
Although we discussed ecclesiastical property in universal public law, nothing as yet had been said of public property, which we were obliged to postpone to the law of nations. Therefore it was not feasible first to prove the things which must be held concerning the alienation and pledge of the property of a corporation, and then apply those same things to ecclesiastical property; but the general demonstration had to be applied to the particular case. Nor is this wrong in any way. So Euclid, when in his “Elements” he discussed the circle as a certain
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