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[001] nature, cannot be taken away by the jus gentium but only obscured by it,38 for
[002] natural rights are immutable. But say that he who manumits does properly give
[003] liberty, though he does not give his own but another's, for one may give what he
[004] does not have, as is apparent in the case of a creditor, who [may alienate a pledge
[005] though the thing is not his,39 and in that of one who] constitutes a usufruct in his
[006] property.40 For natural rights are said to be immutable because they cannot be
[007] abrogated or taken away completely, though they may be restricted or diminished
[008] in kind41 or in part. 42It was by virtue of this jus gentium that wars were introduced
[009] (that is, when declared43 by the prince for the defence of his country44 or to repel
[010] an attack) and nations separated, kingdoms established and rights of ownership
[011] distinguished. Individual ownership was not effected de novo by the jus gentium but
[012] existed of old, for in the Old Testament things were already mine and thine, theft
[013] was prohibited45 and it was decreed that one not retain his servant's wages.46 By
[014] the jus gentium boundaries were set to holdings, buildings erected next to one
[015] another, from which cities, boroughs and vills were formed.47 And generally, the
[016] jus gentium is the source of all contracts48 and of many other things. What long
[017] custom is will be explained below.49



Notes

38. Cortese, i. 75-8

39. Inst. 2.8.1: ‘qui pignus, quamvis eius res non sit, alienare potest’

40. Om: ‘non’; D. 7.1.63: ‘Quod nostrum non est transferemus ad alios: veluti is qui fundum habet, quamquam usum fructum non habeat, tamen usum fructum cedere potest.’ Azo: ‘in creditore et in eo qui constituit usumfructum in re sua, ut D. 7.1.63 et Inst. 2.8 in principio.’ Cf. Br. and Azo, 37, n. 8, 41; Kantorowicz, 85-6, Schulz in L.Q.R., lix, 172 n.

41. Cortese, i, 77, 118-20

42-49. Azo, Summa Inst. 1.2, no. 7

43. ‘indicuntur,’ as Azo; Br. and Azo, 37, n. 9, 40, n. 2

44. ‘ad tuitionem patriae,’ is Br's addition

45. Lev. 19:11

46. Lev 19:13; for this problem: Cortese, i, 86-90

47. Infra iii, 137

48. Azo: ‘comercium est inductum [ex hoc iure] quod generale est nomen ad omnes contractus’; cf. Kantorowicz, 107-8

49. Not dealt with as such in treatise


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