Right over persons. By generation. 99. A right over persons may be acquired in three ways, by generation, by their consent, by their crime. In children we are to consider three periods: that of imperfect judgment, or infancy; that of adult age in the father’s family; and that of emancipation or foris-familiation, when they have ceased to form a part of it. In the first of these, a child is capable of property in possession but not in enjoyment. In the second, he is subject to the parent only in actions which affect the family. In the third, he is wholly his own master. All beyond this is positive law. The paternal power was almost peculiar to the Romans, though the Persians are said to have had something of the same. Grotius, we perceive, was no ally of those who elevated the patriarchal power in order to found upon it a despotic polity; nor does he raise it by any means so high as Bodin. The customs of Eastern nations would, perhaps, have warranted somewhat more than he concedes.[376]
[376] C. 5.
By consent. In marriage. 100. Consent is the second mode of acquiring dominion. The consociation of male and female is the first species of it, which is principally in marriage, for which the promise of the woman to be faithful is required. But he thinks that there is no mutual obligation by the law of nature; which seems designed to save the polygamy of the patriarchs. He then discusses the chief questions as to divorce, polygamy, clandestine marriages, and incest; holding that no unions are forbidden by natural law except in the direct line. Concubines, in the sense of the Roman jurisprudence, are true Christian wives.[377]
[377] Id.
In commonwealths. 101. In all other consociations except marriage, it is a rule that the majority can bind the minority. Of these the principal is a commonwealth. And here he maintains the right of every citizen to leave his country, and that the state retains no right over those it has banished. Subjection, which may arise from one kind of consent, is either private or public; the former is of several species, among which adoption, in the Roman sense, is the noblest, and servitude the meanest. In the latter case, the master has not the right of life and death over his servants, though some laws give him impunity. He is perplexed about the right over persons born in slavery, since his theory of its origin will not support it. But, in the case of public subjection, where one state becomes voluntarily subject to another, he finds no difficulty about the unborn, because the people is the same, notwithstanding the succession of individuals; which seems paying too much deference to a legal fiction.[378]
[378] C. 5.
Right of alienating subjects. 102. The right of alienating altogether the territory he grants to patrimonial sovereigns. But he denies that a part can be separated from the rest without its consent, either by the community or by the sovereign, however large his authority may be. This he extends to subjection of the kingdom to vassalage. |Alienation by testament.| The right of alienating private property by testament is founded, he thinks in natural law;[379] a position wherein I can by no means concur. In conformity with this, he derives the right of succession by intestacy from the presumed intention of the deceased, and proceeds to dilate on the different rules of succession established by civil laws. Yet the rule that paternal and maternal heirs shall take respectively what descended from the ancestors on each side, he conceives to be founded in the law of nature, though subject to the right of bequest.[380]
[379] C. 6, § 14.
[380] C. 7. In this chapter Grotius decides that parents are not bound by strict justice to maintain their children. The case is stronger the other way, in return for early protection. Barbeyrac thinks that aliment is due to children by strict right during infancy.
Rights of property by positive law. 103. In treating of the acquisition of property by the law of nations, he means only the arbitrary constitutions of the Roman and other codes. Some of these he deems founded in no solid reason, though the lawgivers of every country have a right to determine such matters as they think fit. Thus, the Roman law recognises no property in animals feræ naturæ, which that of modern nations gives, he says, to the owner of the soil where they are found, not unreasonably any more than the opposite maxim is unreasonable. So of a treasure found in the earth, and many other cases, wherein it is hard to say that the law of nature and reason prescribes one rule more than another.[381]