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Chapter XII: Concerning the rights and duties which arise from property or dominion
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232 u c h a p t e r x i i u Concerning the rights and duties which arise from property or dominion. section cccvi Dominion is the right of excluding all others from the use of something (§231). But when we exclude others from the use of a thing, we pretend to have the sole right of using it. Hence the first effect of dominion is the free disposal of a thing; i.e. the right or faculty of granting any one the use of it; nay, of abusing it, and of alienating itathispleasure.Again, from what we can justly exclude others, that we retain to ourselves with that intention, and therefore possession is amongst the effects of dominion . Finally, we also exclude others from the use of a thing, when, being in another’s possession, we reclaim it. But to reclaim a thing in another’s possession, being to endeavour to recover it, it follows, that one of the noblest effects of dominion is the right of recovering our own from whomsoever possessing it.* * All these effects of dominion are acknowledged by the Roman law. For what is said by Caius, l. 2. D. si a par. quis man. “That it is unjust for men not to have the liberty of alienating their goods,” it is to be understood of free disposal. In like manner Paullus infers, from the right of possession belonging to the lord or master only, l. 3. §5. D. de adqu. vel amitt. possess. “That many cannot possess the same thing in whole; and that it is contrary to nature that you should possess what I possess. That two can no more possess the same thing, than you should occupy the same place in which I am.” All belonging to the reclaiming of a thing, which is the principalaction arising from dominion, is well known. Hence it is among the paradoxical themes of dispute, “That the lord of timber cannot recover it, if it be joined,” §29. Inst. de rer. divis. A three-fold effect of dominion. book i, chapter xii 233 section cccvii Since therefore the owner has a right to apply his own to any use whatsoever (§306), the consequence is, that he has a right to enjoy all the profits arising from the thing itself, and from its accessions and increments , as far as these can be acquired by the proprietor (§250);andtherefore to reap all the fruits, and either to consume or share them with others, or to transfer them to others upon whatsoever account. Nay, because the yearly fruits and profits of things may be increased by art and careful management, nothing hinders a master from altering the thing, and so rendering it more profitable, provided he do not by so doing deprive another of his right.* section cccviii Since he hath likewise the right of abusing (§256), i.e. of consuming, or of destroying the thing and its fruits, Donat. ad Terent. Andr. prolog. v. 5.1 the consequence is, that the master may destroy the thing which is his own, provided he do it not with that intention that another may thereby receive detriment.† For tho’ such a spoiling of our own goods, which may be beneficial to others, be repugnant to the love of * This right belongs to the master only, as is plain when we consider the right of usufruct, of use, of loan, of hire, all which, because they are exerced about a thing belonging to another, do not include the right of changing a thing at pleasure, tho’ all of them include the right of reaping the fruits. Therefore the right of taking the profits may be common to the master with others, but the faculty of changing the thing, i.e. the principal or substance, is proper to the master only, nor can he who has the right of use, usufruct, loan or hire, claim it without his permission. † For if any corrupts his own with an intention to hurt another, he does it with a design to injure another, and by doing hurt to him, really injures another. But it being the first and chief principle of natural law, not to hurt any one (§178), the consequence is, that he acts contrary to the law of nature who spoils his own goods with such an intention. And to this class belongs the wickedness of those who poison their flowers to destroy their neighbour’s bees, Quinct. Declam. 13. [[Quintilian,The...