Front Page Titles (by Subject) CHAPTER II: Of Things which belong in common to all Men. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER II: Of Things which belong in common to all Men. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of Things which belong in common to all Men.
I.The Division of what is our own.I. It follows now, that in treating of those Causes that justify a War, we speak of Injuries already done; and first of those that regard what is properly ours. There are some Things which are ours by vertue of a Right common to all Men; and others which are so by a particular Right. The Right common to all Men respects either certain corporeal Things, or certain Actions (which one requires of another). Corporeal Things are either without a Proprietor, or else belong to some particular Persons. The former are either not susceptible of Property, or else they are. For the better understanding of which, let us examine into the Original1 of Property, which our Lawyers do generally call Dominion or Demesne.
II.The Beginning and Improvement of Property.II. 1. Almighty GOD at the Creation, and again after the Deluge, gave to Mankind in general a Dominion over Things of this inferior World. All Things,<143> as1Justin has it, were at first common, and all the Worldhad, as it were, but one Patrimony. From hence it was, that every Man converted what he would to his own Use, and consumed whatever was to be consumed;Gen. i. 29. — ix. 2, 3. and such a Use of the Right common to all Men did at that Time supply the Place of Property, for no Man could justly take from another, what he had thus first taken to himself; which is well illustrated by that Simile of Cicero,2Tho’ the Theatre is common for any Body that comes, yet the Place that every one sits in is properly his own. And this State of Things must have continued till now, had Men persisted in their primitive Simplicity, or lived together in perfect Friendship. A Confirmation of the first of these is the Account we have of some People of America, who by the3 extraordinary Simplicity of their Manners, have without the least Inconvenience observed the same Method of Living for many Ages; and the latter appears by the Example of the4Essenes, of the primitive Christians at Jerusalem, and many who now live in religious Societies. That the first Men5 were created in a State of Simplicity, evidently appears from their Nakedness. They were rather ignorant of the Nature of Vice, than versed in the Knowledge of what was virtuous, as Justin6 testifies of the Scythians. The first Men, says Tacitus,7being free8from vicious Inclinations, lived in Innocence, without committing any Crime or dishonest<144> Action; and therefore there was no Need to keep them to their Duty through the Fear of Punishment. So Macrobius,9There was so much Simplicity amongst Mankind in the first Ages, that they were ignorant of Vice, and unacquainted with Deceit. This Simplicity is what was by a10 wise Jew called ἀϕθαρσία, Integrity, and by St. Paul,11 ἀπλότης, which he opposes to τῃ̑ πανουργία, Subtilty and Artifice.Prov. iii. 18. The Worship of GOD was their only Care, of which the12Tree of Life was a Symbol; according to the Explication of the antient Jewish Doctors, confirmed by a Passage in the Apocalypse. And they lived at their Ease on what the13 Earth, untilled, did naturally afford them.— xii. 2.
2. But Men did not long continue in this pure and innocent State of Life, but applied themselves to various Arts, whereof the Symbol was the14Tree of Knowledge of Good and Evil, that is, of the Knowledge of Things which one may use either well or ill: Which Philo calls Φρόνησιν μέσην,15a middle Prudence.Eccl. vii. 29. This Solomon had in View when he said, that GOD made Man upright, but that they had sought out many Inventions, ἔῤῥεπον εἰς πανουργίαν, they became subtile,16 as Philo on that Passage expresses himself. So Dion Prusaeensis, in his sixth Oration, ἀλλὰ τὴν πανουργίαν, &c.17The Cunning of those who came after the first Men, and their Sagacity in inventing Things18for the Use of Life, was not very advantageous; because Men made use of their Wit and Ingenuity to procure themselves Pleasure, rather than to distinguish themselves by Acts of Valour and Justice. The<145> most antient Arts were those of Agriculture, and Feeding Cattle; they were exercised by the first Brothers, so that there was between them some Sort of Division of Goods. The Diversity of Inclination, immediately produced Jealousy, and afterwards Murder. At last good Men being likewise insensibly corrupted by Intercourse with the bad, a Kind of gigantick Life19 prevailed, that is, they used all Manner of Violence, like those whom the Greeks termed χειροδίκας,20People that would attempt any Thing. To this savage Sort of Life succeeded after the Deluge,21 an Attachment to Pleasures,22 to which the Use of Wine newly invented did contribute; and from thence proceeded also abominable Lusts.
3. But that which tended most to disunite Men, was a more noble Vice, I mean Ambition,23 whereof the Tower of Babel is a Proof.Gen. x. xi They went afterwards some one Way, and some another, and thus divided the Lands amongst them. But even after this, there remained among Neighbours a Community, not of Cattle but of Pastures;Gen. xiii because the Extent of Grounds was as yet so great in Proportion to the small Number of Men, that it was sufficient to answer the Occasions of many, without their incommoding one another. It was not then permitted, says Virgil,24to distinguish Possessions, and to set Bounds to the Fields. But the Number of Men, as well as of Cattle, being very much increased, it was thought proper at last to assign a Portion of Lands to each Family; whereas before Gen. xxi they were only divided by Nations. And as the Wells of Water, a Thing very necessary in a dry Country, were insufficient to supply a Multitude,25 every one appropriated to himself those he could seize on. This is what we learn from the Sacred History, and is agreeable to what both Poets and Philosophers have spoken of that early State of Things, when all was common,Mar. liber. c. 5. and of the Divisions that followed. The Testimonies of these Authors I have had Occasion to produce in another Place.
4. From hence we learn, upon what Account Men departed from the antient Community, first of moveable, and then of immoveable Things: Namely, because Men being no longer contented with what the Earth produced of itself26 for their Nourishment; being no longer willing to dwell in Caves, to go naked, or covered only with the Barks of Trees, or the Skins of wild Beasts, wanted to live in a more commodious and more agreeable Manner; to which End Labour and Industry was necessary, which some employed for one Thing, and others for another. And there was no Possibility then of using Things in common; first, by Reason of the Distance of Places where each was settled; and afterwards because of the Defect of Equity and Love, whereby a just Equality would not have been observed, either in their Labour, or in the Consumption of their Fruits and Revenues.
5. Thus also we see what was the Original of Property, which was derived not from a mere internal Act of the Mind, since one could not possibly guess what others designed to appropriate to themselves, that he might abstain from it; and besides, several might have had a Mind to the same Thing, at the same Time; but it resulted from a27 certain Compact and Agreement, either expressly,28 <146> as by a Division; or else tacitly, as by Seizure. For as soon as living in common was no longer approved of, all Men were supposed, and ought to be supposed to have29 consented, that each should appropriate to himself, by Right of first Possession, what could not have been divided. ’Tis no more, saith Cicero,30than what Nature will allow of, that each Man should31acquire the Necessaries of Life rather for himself than for another. To which we may also add that of Quintilian,32If it be so established, that whatever has fallen to the Share of a Person for his Use, properly belongs to him; surely whatever we possess by a lawful Title, can never, without Injustice, be taken from us? And when the Antients stiled Ceres a Legislator,Macrob. Saturn. 3. 12. and her Mysteries Thesmophoria, they intimated,33 that the Division of Lands produced a new Sort of Right.
III.Some Things can never become a Property, as the Sea, either taken in Whole or in Regard to its principal Parts, and the Reason why.III. 1. This being admitted, we affirm that none can have a Property in the Sea, whether taken in the Whole, or in Respect to its principal Branches; and because some People are willing to allow this, with Regard to private Persons, but not with Regard to States and Nations, we will prove the contrary; first, from a moral Reason; and that is, the1 Cause which obliged Mankind to desist from the Custom of using Things in common, has nothing at all to do in this Affair: For the Sea is of so vast an Extent, that it is sufficient for all the2 Uses that Nations can draw from thence, either as to Water, Fishing, or Navigation. The same might be alledged of the Air too, could we put it to any Use,3 without being posted on the Surface of the Earth. But this is necessary, in Order to enjoy the<147> Benefit of it: And therefore Fowling,4 for Instance, is permitted so far only as the Owner of the Land thinks fit.
2. The same may be asserted of Banks of Sand, which are incapable of Culture, and serve only to supply Men with Sand, but can never be exhausted. There is also a natural Reason which forbids, that the Sea, thus considered, should be any Body’s Property, because the taking of Possession5 obtains only in Things that are limited. Hence Thucydides called a desert Country ἀόριστον,6unbounded; and Isocrates, the Lands which the Athenians were possessed of, τὴν ὑϕ’ ἡμω̂ν ἀϕορισθε͡σαν,7limited and bounded by us; but Liquids having no Bounds of their own, (τὸ ὑργὸν ἀόριστον οἰκεɩ̂ω ὅρω, says8Aristotle) can never be9 possessed, unless they are<148> inclosed by something else, as Lakes and Ponds; and also Rivers are subject to Property, because confined within their Banks. But the Sea is not contained in the Earth, as being equal to it, if not10 greater, as the11 Antients believed, and therefore affirmed, that the Earth was contained in it, τὸν ὠκέανον δεσμον̂ ἕνεκα, &c. The Ocean encompasses the Earth, and, as a Band, girds and ties it in, are the Words of Apollonius in Philostratus. And as Sulpitius Apollinaris says in Gellius, What can be said to be without the Ocean, when the Sea does on all Sides environ the Earth? And again, Since then on all Sides it flows round the Body of the Earth, nothing can be said to circumscribe it; but every Land being thus intrenched with the Circuit of its Waters, all Things which are shut up within its Borders are in the midst of it. So M. Acilius, the Consul, in his Harangue to the Soldiers, in Livy, The Ocean, says he, which incircles and confines the Globe. So in Seneca’s Advices, the Ocean is stiled the World’s Ligament, and the Earth’s Rampart. So by Lucan, unda mundum coercens; a Water that environs the World. Nor is there any Room to suppose12 a Division here: For when the Lands began to be divided, the Ocean, at least the major Part of it, was undiscovered; and therefore it cannot be conceived, that People so distant from each other should agree about any such Partition.
3. Wherefore those Things that remained undivided after the first Partition, and were in common to all Mankind, begin now to belong to one, not by vertue of a Division, but by Right of First-Possession, and they are not divided till after they are become a Property.
IV.Lands not inhabited are his who takes Possession of them, unless a whole Nation lay Claim to them by the same Right of Possession. See Bembis, Hist. b. 6.IV. We now proceed to those Things which may become a Property, but are not so yet. Of this Kind are many desart and uncultivated Places, some1 Islands in the Sea, wild Beasts, Birds, and Fish. But here are two Things to be remarked, one is,2 that a Country is taken Possession of, either in the Lump, or by Parts: The former is usually done by a whole People, or by him who is their Sovereign; the latter by the particular Persons of which the People is composed, but yet so that it is more common to assign to every one his Share, than to leave each Portion to the first Occupant. But if, in a Country possessed in the Lump, any Thing remains unassigned to private Persons, it ought not therefore to be accounted vacant; for it still belongs to him who first took Possession of that Country, whether King or People; such as Rivers, Lakes, Ponds, Forests, and uncultivated Mountains.<149>
V.Wild Beasts, Fish, and Birds, are his who catches them, unless there be a Law to the contrary. Covarr. c. peccatum. part 2. § 8. Dd. in C. cunctos populos. C. de summ. Trin. Innoc. & panorm in Can. 21. 1. de Sent. excomm. Covarr. ubi supra.V. As to wild Beasts, Fish, and Birds,1 we must observe too, that whoever has Dominion over the Lands or Waters in which they are, may prohibit the taking of these Sorts of Animals, and so hinder any Person from acquiring them by taking them; and the same Law is obligatory on Foreigners. The Reason of which is this, that it is morally necessary for the Government of a People, that those who mingle with them, tho’ but for a Time, as one does by entering their Territories, should conform to their Laws, as well as the Natives of the Country. Neither is it any Argument to the contrary, what we often read in the2 Fragments of the Roman Lawyers, that every Man has by the Law of Nature and Nations, a Privilege to catch such Sort of Animals; which is only true, when there is no Civil Law in being to forbid it: So that in this Case, as in many other Things, the Roman Laws left the Liberty of the primitive Times, without Prejudice to the Right which other Nations believed they had to dispose of them otherwise, as we see they have actually done. But when a Civil Law regulates Things otherwise, the Law of Nature itself commands us to observe it. For tho’ the Civil Law can enjoin nothing which the Law of Nature forbids, nor forbid any Thing which that enjoins; yet it may restrain natural Liberty, and prohibit what was naturally lawful; and consequently, by its own Authority, may prevent and hinder that Property and Dominion which might otherwise be naturally obtained.
VI.In Case of Necessity Men have a Right of using that which others have a Property in, and from whence this Right arises.VI. 1. Let us now see whether Men may not have a Right to enjoy in common those Things that are already become the Properties of other Persons; which Question will at first seem strange, since the Establishment ment of Property seems to have extinguished all the Right that arose from the State of Community. But it is not so; for we are to consider the Intention of those who first introduced the Property of Goods. There is all the Reason in the World to suppose that they designed to deviate as little as possible from the Rules of natural Equity; and so it is with this Restriction, that the Rights of Proprietors have been established: For if even written Laws ought to be thus explained, as far as possible; much more ought we to put that favourable Construction on Things introduced by a Custom not written, and whose Extent therefore is not determined by the Signification of Terms.
2. From whence it follows, first, that in a Case of1 absolute Necessity, that antient Right of using Things, as if they still remained common, must revive, and be in full Force: For in all Laws of human Institution, and consequently, in that of Property too, such Cases seem to be excepted.
3. Hence it is, that at Sea, when there is a2 Scarcity of Provisions, what each Man has reserved in store, ought to be produced for common Use. So in Cases of Fire, I may demolish3 my Neighbour’s House, if I have no other Means of preserving my own; or if my Ship be entangled in4 the Cables of another Ship, or in the Nets of Fishermen, I may cut those Cables and Nets, if there is no other Way of being disengaged. All this is not introduced by the Civil Law; it only explains by such Regulations, the Maxims of natural Equity, and enforces them by its Authority.
Thom. 2. 2. 66. 7. Covarr. cap. peccatum. p. 2. § 1. Soto, l. 5. q. 3. art. 4.4. Even amongst Divines it is a received Opinion, that whoever shall take from another what is absolutely necessary for the Preservation of his own Life, is not from thence to be accounted guilty of Theft: That Sentiment is not founded on what some alledge, that the Proprietor is obliged by the Rules of Charity to give of his Substance to those that want it; but on this, that the Property of Goods is<150> supposed to have been established with this favourable Exception, that in such Cases one might enter again upon the Rights of the primitive Community. For had those that made the first Division of common Goods been asked their Opinion in this Matter, they would have answered the same as we now assert.5Necessity, says Seneca the Father, that great Resource of human Frailty, breaks through the Ties of all Laws; that is, all human Laws, or Laws made after the Manner, and in the Spirit of human Laws. So Cicero,6 Cassius passed over into Syria, another’s Province, if Men had regarded written Laws; but these suppressed, into a Province now his own by the Law of Nature. So Curtius7 says, that In a common Calamity, every Man looks to himself, and takes Care of his own Interest.
VII.This holds good, unless where the Necessity is avoidable some other Way.VII. But here some Precautions are to be observed, that the Privileges of Necessity may not be too far extended. And first, that all other possible Means should be first used, by which such a Necessity may be avoided; either, for Instance, by applying to a Magistrate, to see how far he would relieve us, or by entreating the Owner to supply us with what we stand in Need of. Plato1 did not permit one Man to draw out of another’s Well, ’till he had digged so far in his own Ground that there was no longer any Hopes or Expectation of Water. And Solon required, that a Man should first dig to the Depth of forty Cubits: Where Plutarch2 adds, ἀπορία λὰρ, &c. He thought it convenient to assist Mens Necessities, but not to indulge their Sloth. And Xenophon, in his Answer to the Sinopenses, ὁποι δ’ ἂν ἔλθοντες ἀγορὰν, &c.3Wherever we come, and have not the Freedom of a Market, whether in a Barbarianora Grecian Country, we take what we have Occasion for, not out of Insolence but Necessity.
VIII.Or unless the Owner’s Necessity is equal to ours.VIII. But secondly, this is no Ways to be allowed, if the right Owner be pressed by the like Necessity; for all Things being equal, the1 Possessor has the Advantage. He is no Fool, says Lactantius,2who tho’ it be for the Preservation of his own Life, will not rob the shipwrecked Wretch of his Plank, nor throw down the wounded from his Horse; because he thus abstains from doing an Injury which is a Sin, and to avoid this Sin is Wisdom. But what, said Cicero,3if a wise Man be ready to perish with Hunger, must not he take away Victuals from another, tho’ a perfectly useless and insignificant Fellow? No, by no Means; for the Preservation of Life is not more useful to us, than a Disposition of Mind which hinders us from consulting our own Conveniency at the Expence of another. And we read in Curtius,4He who will not part with his own, has still a better Cause than he that demands what is another’s.
IX.An Obligation to Restitution, where it can be made. Adr. quod lib. 1. art. 2. col. 3. Cov. ubi sup.IX. Thirdly, When my Necessities shall compel me to take any Thing from another Person, I certainly ought to make that Man Restitution as soon as I am able to do it. There are some tho’ of a contrary Opinion, and argue thus, that1 whoever makes use of his own Right only, is not obliged to Restitution: Where-<151>as the Truth of it is, this Right is not absolute, but limited to this, that Restitution shall be made when that Necessity’s over. For it is sufficient that it go so far and not further, to maintain the Laws of natural Equity against the Rigour of the Rights of a Proprietor.
X.An Instance of this Right in War.X. Hence we may infer, how far he that is engaged in a just War may possess himself of any Place in a neutral Country;1 provided that there be not an imaginary, but a certain Danger of the Enemy’s getting it into his Hands, and of his being thereby capable of doing irreparable Injuries; and provided too, that he takes nothing but what is necessary for his Security; that is, the bare Custody of the Place, leaving the Jurisdiction and the Revenue to the true Proprietor. And lastly, that this be done with an Intention of resigning even the Custody of the Place itself, as soon as ever the Danger is over. Enna, says Livy,2is detained either by Injustice or Necessity; because whatsoever does but deviate the least from Necessity, is Injustice.Expedit. Cyri. l. 5. c. 1. The Grecians who were with Xenophon, when they had the most pressing Occasion for Shipping, by Xenophon’s Advice, seized such as passed by; but so that the Cargo was preserved untouched for the Owners, and to the Seamen they not only gave Provisions, but paid them the Freight. The first Right therefore that remains of the antient Community, since Property was introduced, is this of Necessity.
XI.Men have a Right to use those Things which are another’s Property, if thereby there arises no Detriment to the Proprietor. Sympos. 7.XI. The next is that of1 innocent Profit; when I only seek my own Advantage, without damaging any Body else. Why should we not, says Cicero,2when we can do it without any Detriment to ourselves, let others share in those Things that may be beneficial to them who receive them, and no Inconvenience to us who give them. Seneca therefore denies that it is any Favour, properly so called, to permit3 a Man to light a Fire by ours. And we read in Plutarch, οὔτε γὰρ τροϕὴν, &c.4’Tis an impious Thing for those who have eat sufficiently, to throw away the remaining Victuals; or for those who have had Water enough, to stop up or hide the Spring; or for those who themselves have had the Advantage of them, to destroy the Sea or Land Marks; but we ought to leave them for the Use and Service of them, who, after us, shall want them.
XII.From hence is there a Right to running Water.XII. So a River, considered merely as1 such, is the Property of the People through whose Lands it flows, or of him under whose Jurisdiction that People is; and they may, if they please, make Sluices, and appropriate to themselves whatever that River produces. But if this River be considered2 as a running Water, it is so far common, that any Body may drink or draw thereof. What Man would refuse to let another light a Candle by his? Or who would guard the Waters of the Sea, to hinder others from taking of them? says Ovid,3 who also brings in Latona thus speaking to the Lycians,4Why do you refuse me Water? The Use of Water is common. Where also he calls Water a5 publick Gift, that is, a Gift common to all Mankind; the Word publick being improperly used; in which Sense some Things are said to be publick by the Law6of Nations. So Virgil asserted7 Water to be cunctis patentem, open to all Men.<152>
XIII.The Right of passing Lands and Rivers, explained. Bald. III. Consil. 298.XIII. 1. So likewise a free Passage ought to be granted to Persons where just Occasion shall require, over any Lands and Rivers, or such Parts of the Sea as belong to any Nation: As for Instance, if being expelled their own Country, they want to settle in some uninhabited Land, or if they are going to traffick with some distant People, or to recover, by a just War, what is their own Right and Due. The Reason is the same with that which we have applied above, viz. that the Right of Property may have been established with the Reservation of such a Use,1 as is advantageous to some, without injuring others; and therefore the Authors of that Establishment are to be supposed to have done it on that Foot.
Numb. xx. — xxi.2. A remarkable Instance we have of this in the History of Moses, who being to march through another People’s Country, offered first to the Edomite, and then to the Amorite, these Conditions, that for his Part he would pass by the King’s Highway, neither would he turn to the Right or the Left, nor enter any Man’s private Possessions, and if he should have Occasion for any Thing that was theirs, he would pay them the full Value of it; which being rejected, was a sufficient Reason for that just War2 he made on the Amorites. They refused him, says Saint Augustin,3a Passage which could not do them any Prejudice; a Passage that, by the most equitable Laws of human Society, ought to have been granted him.
3. Thus too the Greeks4 under Clearchus, πορευόμεθα δὲ, &c. We intend to go home peaceably, if no Body obstruct or molest us; but, by the Assistance of the Gods, we will endeavour to defend ourselves against any who shall injure us.Plut. Apoph. Not much unlike this was Agesilaus’s Question, who returning out of Asia, and being come to5Troas, asked them whether they would permit him to pass as an Enemy or a Friend. So Lysander to the Baeotians,Idem. Apo. & Vit. Lysand. whether they were willing that he should march through them with Pike erected or inclined. And the antient Batavians, in Tacitus, declare to the Inhabitants of Bonne,6If no one oppose us we will go peaceably along; but if Resistance is made, we will cut out our Passage with our Swords. Cimon, the Athenian General, going to the Assistance of the Lacedemonians, led his Troops through the Territories of the Corinthians, without giving them Notice of it. The Corinthians reproved him on that Account, and told him,7 <153> that When one wanted to go into a House, it was usual to knock at the Door, and to wait for Admission. Very well, replied he, and did you yourselves knock at the Door of the Cleonians and Megarenses? Did you not break it down, thinking that all ought to lie open to the strongest? The middle Opinion then is the best, that the Liberty of Passing ought first8 to be demanded, and if that be denied, it may be claimed by Force. So Agesilaus, when in his Return from Asia he demanded of the King of Macedon Leave to pass through his Dominions,Plut. in ejus Vit. & Apoph. and that Prince told him he would consider of it, answered briskly, Yes, let him consider of it, and in the mean Time we will pass through.
4. Neither can it be reasonably objected, that there may be Suspicion of Danger from the Passing of a Multitude; for one Man’s Right is not diminished9 by another Man’s Fear; and much less so, because there are Methods of providing against it; as, for Instance, they may be divided into small Bodies, or be obliged to pass10 unarmed, as the Inhabitants of Cologne11 formerly required of the Germans; which Custom, as Strabo remarks, was antiently observed amongst the12Aelians; or he that permits another to pass through his Dominions, may have Garrisons or Troops maintained at the Expence of him who demands this Passage; or Hostages may be given,See an Example in Procopius. Persic. I. 2. Plut. in Demet. as Seleucus required of Demetrius, before he would agree to let him stay any Time in his Dominions. Nor is a Fear of provoking that Prince, against whom he that thus passes is engaged in a13 just War, a sufficient Reason for refusing him Passage. Nor is it any more an Excuse, that he may pass some other Way; for this is what every Body may equally alledge, and so this Right of passing14 would be intirely destroyed: But ’tis enough that the Passage be requested, without any Fraud or ill Design, by the nearest and most convenient Way. If indeed he who desires thus to pass, undertakes an unjust War, or if he brings People who are my Enemies along with him,15 I may deny him a Passage; for in this Case I have a Right to meet and oppose him, even in his own Land, and to intercept his March.
5. Neither is this Liberty of Passing due to Persons only, but also to Goods and Merchandize; for no Body has a Right to hinder one Nation16 from trading with another distant Nation; it being for the Interest of Society in general, and no<154> Way detrimental to any Person; for if any one be disappointed of a Profit which he only expected but had no Title to, this ought not to be reputed an Injury. To the Testimonies we have elsewhere17 produced to this Purpose, we shall subjoin one out of Philo, πα̂σα δὲ θάλαττα, &c.18Under a good Government, Merchant Ships sail securely on every Sea, in Order to carry on Trade,19whereby different Countries, from the natural Desire of Society, mutually communicate what each affords peculiar to itself. For Envy never yet possessed the whole World, nor even any great and entire Part of it. And another out of Plutarch, who speaking of the Sea, delivers himself thus, ἄγριον ὄνγα, &c.20Human Life would have been wild and savage, there would have been no Intercourse between Men, were it not for this Element, which furnishes them with the Means of supplying one another’s Wants; and of forming Acquaintances and Friendships by the Exchanges they make. To which agrees that of Libanius,21 οὐ μὲν τοɩ̂ς, &c. GOD has not bestowed all his Gifts on every Part of the Earth, but has distributed them among different Nations, that Men wanting the Assistance of one another, might maintain and cultivate Society. And to this End has Providence introduced Commerce, that whatsoever is the Produce of any Nation may be equally enjoyed by all. And Euripides,22 in the Person of Theseus, reckons Navigation in the Number of those Things that human Reason has found out for publick Advantage; the Expression is this,
What Nature denies to one Country, is supplied from another, by Means of Navigation. So Florus,23Take away Commerce, and you break the Bond that ties Mankind together.
XIV.Whether a Duty may be laid on Goods that only pass by.XIV. 1. But it is questioned, whether the Sovereign of the Country1 can impose a Duty on Goods that are transported either by Land, or upon a River, or some Part of the Sea, which may be called an Accessory to his Dominions. Now it is certain, that Equity does not permit the Exacting of Duty for Goods, which has no Manner of Relation to them, as it would be unjust to make Strangers, who only pass through a Country, pay a Poll-Tax which is laid on the Subjects to defray the Charges of the State.
2. But if one is obliged to be at any Charge,2 either expressly, and merely for securing the Transportation of Goods, or amongst other Things for that Use: Then<155> to recompense this, some Duty may be laid on those foreign Commodities; provided it be not higher than the Reason for exacting it requires; for on that depends the Justice3 of Customs and Taxes: Thus Solomon received Tolls for Horses and Linnen,1. Kings x. 28. that passed over the Syrian Isthmus. So Pliny says,4 that Frankincense could be no otherwise transported than by the Gebanites, and therefore a Duty was paid to that King. So, as Strabo5 informs us, the People of Marseilles were greatly enriched by a Canal, which Marius had made from the Rhone to the Sea, πραττόμενοι τοὺς, &c. exacting a Duty from all Ships that went up or down. The same Writer informs us,6 that the Corinthians did by a very antient Custom impose Duties on all Goods that passed over from the Aegean to the Ionian Sea, by Land, to avoid going about the Cape of Malea: The same did the Romans7 require for the Passing of the Rhine, and was likewise given for going over Bridges, as Seneca8 testifies;Chap. de Dom. l. 1. tit. 9. Pereg. de jure Fisci, c. 1. n. 22. Ang. Cons. 199. Zabar. Con. 38. Firm. in Tract. de Gabell. and as to what relates to the passing over Rivers, our Law-Books are all very particular.
3. But it is too frequent, that Impositions of this Nature are excessive, on which Account Strabo9 complains of the Phylarchi, (or Chiefs of divers Nations of Arabia) adding, καλεπὸν γὰρ, &c. With such poor and brutish People as they are, it is difficult to regulate the Imposts on a Footing that is not grievous to the Merchants.
XV.A Right to stay for some Time. Vict. de Indis. Rel. 2. n. 1.XV. 1. Persons also that pass either by Land or Water, may, on Account of their Health, or for any other just Cause, make some Stay in the Country; this being likewise1 an innocent Utility. And therefore Ilioneus, in Virgil,2 when the Trojans were not permitted to refresh themselves on the Coasts of Africa, presumed to invoke the Gods to be Judges of the Injury. And the Complaint that was made by the Megarenses, that the Athenians had refused them Entrance into their Harbours, was thought well grounded by the Grecians, as being, according to Plutarch,Thuc. l. 1. c. 67. Diod. l. 12. c. 39. παρὰ τὰ κοινὰ δίκαια,3contrary to the Law of Nations: So that the Lacedemonians looked on it as one of the most just Causes of War.
2. And consequently, any little Cottage or Hut may be built upon the Shore, tho’ we grant that this Shore belongs to the People of the Place. For what Pomponius4 says, that Leave must be first asked, and an Order had of the Magistrate, before we build any Thing in the Sea, or on the Shore, relates only to such Structures as are permanent and lasting. To which Purpose is that of the Poet,
5The Fish perceive the Waters of the Sea shrunk, by the huge Piles of Stone that are raised in it.
XVI.Those who are driven out of their own Country have a Right to settle in any other, provided that they submit to the Rules and Government of the Place.XVI. So likewise, a fixed Abode ought not to be refused to Strangers, who being expelled their own Country, seek a Retreat elsewhere:1 Provided they submit to the Laws of the State, and refrain from every Thing that might give Occasion to Sedition: Which just Distinction the divine Poet has judiciously observed, when he introduces Aeneas offering these Conditions,2King Latinus then become my Father-in-Law, shall still retain the sovereign Authority, both in War and in Peace. And Latinus himself, in Dionysius Halicarnassensis, [[3 pronounced the Cause of Aeneas to be just, if having no other Habitation he were forced thither. Strabo, from Eratosthenes4 says, it belongs to Barbarians only to drive away Strangers: and the Spartans5 who did so, have not been commended on this Account. So in the Opinion of St. Ambrose,6 those People who refuse to admit Foreigners amongst them, are very much to blame. Thus the Eolians kindly received the Colophonians, the Rhodians,Herod. l. 1. c. 150. Paus. l. 7. c. 11. Diod. 5. c. 58. Herod. 4. c. 145. Oros. l. 7.Phorbas and his Companions; the People of Caria, those of Melos; the Lacedaemonians, the Minyae; and the Cumaeans, some others who came over to them. But when the Minyae, after their Reception, demanded a Share in the Government, what Herodotus says of them is very just, ἐξύβρισαι καὶ ποιήσαι οὐκ’ ὅσια,7They acted insolently, and against all Right and Reason. And Valerius,8 that They basely requited a Favour with an Injury.
XVII.A Right to waste Places, how to be understood.XVII. And if there be any waste or barren Land within our Dominions, that also is to be given to Strangers, at their Request, or may be lawfully possessed by them,1 because whatever remains uncultivated, is not to be esteemed a Property, only so far as concerns Jurisdiction, which always continues the Right of the antient People. And Servius2 remarks, that seven hundred Acres of bad unmanured Land were granted to the Trojans, by the original Latins: So we read in Dion Prusaeensis, οὐδεν ἀδικον̂σιν, &c. that3They commit no Crime who cultivate and manure the untilled Part of a Country. Thus the Ansibarians formerly cried, that4As the Gods have Heaven, so the Earth was given to Mankind, and what is possessed by none, belongs to every one. And then looking up to the Sun and Stars as if present, and within hearing, they asked them, whether they could bear to look on those uninhabited Lands, and whether they would not rather pour in the Sea upon those who hindered others to settle on them. But these general Maxims were ill applied by them to the present Case; for those Lands were not waste and desolate, but were employed in the Feeding of their Soldiers Cattle; which was a just Reason that the Romans should refuse them. Neither was it less just what the Romans formerly inquired of the Galli Senones,5What Right any one had to demand a Country from the lawful Owners, and, in Case of Refusal, to threaten them with a War?<157>
XVIII.A Right to such Actions as the Occasions of human Life require.XVIII. Having already spoken of the common Right to Things, the next in Course is the common Right to Actions: And this is to be considered either absolutely, or by Supposition.1 The absolute Right extends2 to certain Acts whereby those Things may be procured, without which we cannot conveniently subsist; I say conveniently, for here is not required a Necessity, like that which justifies the taking of what is another Man’s; because we are not discoursing now of what may be done without the Owner’s Leave, but the Question is about acquiring in a certain Manner, what one has Occasion for, with the Consent of the lawful Possessors; and that only so as they cannot hinder him, either by any Law, or by Combination: For such an Impediment would, in the Things I mentioned, be contrary to the Nature of human Society; and this is what St. Ambrose3 calls, the cutting off4from Men the Communication of the Goods of their common Mother, the refusing one the Fruits of the Earth that grow for all; the destroying of Commerce, which is necessary for Life. For we are not talking here of what is superfluous, and what serves only for Pleasure, but of such Things as there is no living without, such as Food, and Cloaths, and Medicines.
XIX.A Right to purchase Necessaries. Covarr. Var. Res, l. 3. c. 14. ibi, tertio. De Offic. l. 3. c. 7.XIX. We affirm therefore, that every Man has a Right of buying these Things at a reasonable Rate, unless the Persons from whom we would purchase them, have themselves an Occasion for them; as in the Time of Famine, the common Sale of Corn1 is prohibited, and yet even in such an Extremity as this, we cannot2 expel those Foreigners we have once admitted, but must, as St. Ambrose shews, be common Sharers in a common Calamity.
XX.But no Right always to sell their own Commodities. Molina, Disp. 105. Aegi. Reg. de Act. supern. Disp. 31. du. 2. n. 52. Caes. 1. Bell. Gall.XX. But one has not the same Right1 to sell his own Commodities as to buy those of another. For every Man is at Liberty to purchase, or not purchase, as he thinks fit. Thus the antient Belgae prohibited the Importation of Wine, and other foreign Goods. So Strabo,2 speaking of the Nabatean Arabians, says, εἰσαγώγιμα δὲ, &c. that Some Commodities may be imported there, and some not.
XXI. 1. I am of Opinion, that in the Right I just now spoke of, is also included, a Liberty to contract Matrimony amongst neighbouring Nations; when, for Instance, a People, consisting only of Men,1 having been banished their own Country, is settled in another.XXI.A Right to Marriage explained. Fortho’ Celibacy be not intirely repugnant to human Nature, yet it is contrary to the natural Disposition of most Men, and is suitable only to Minds exalted above the common Level. And therefore Marriage ought not to be denied. Upon this Foundation Romulus2 intreated his Neighbours, that they would not refuse to mix their Blood, and join in Affinity with his People, who were Men as well as they. So Canuleius,3We desire to contract Marriage with you, a Thing that is usually granted, not only to Neighbours, but even<158> to Foreigners. And St. Augustin testifies,4 that By the Right of War the Victor might justly take away her, who was unjustly denied him in Marriage.]]
2. But the Civil Laws of some Countries, which prohibit Foreigners the Privilege of Marrying, do it either for this Reason, that when such Laws were made there was no Scarcity of Women in any Nation, or else that they do not here design Marriages in general, but only such as are called lawful, that is, such as produce some particular5 Effects of Civil Right.
XXII.A Right of doing what is permitted indifferently all Strangers to do. Vict. ubi supra Rel. 2. n. 2, 3. Judges xx.XXII. By Supposition there is a common Right to all those Actions which any Nation is supposed to allow to all Strangers indifferently; for then it would be an Injustice to exclude any People:1 For if it be allowed that Foreigners may any where hunt, fish, fowl, gather Pearls, inherit by Will, sell their Goods, and even, where there is no Scarcity of Women, contract Marriages, the same cannot be refused to any particular People, unless by some Crime they have rendered themselves unworthy of it: For which Reason it was, that the Tribe of Benjamin was denied the Privilege of Marrying with the other Tribes.
XXIII.This Right is to be understood of those who are entitled to it by the Law of Nature, and not through Favour and Indulgence. Disp. 105.XXIII. But what we have said of Permissions, is to be understood of such Acts as are allowed, as it were, by Vertue of natural Liberty,1 never taken away by any Law whatever; not of such as are permitted in Favour of certain People,2 in Regard to whom the Law is dispensed with: For ’tis no Injustice to deny a Man a Favour. And thus, I think, we may reconcile3 what Molina observes, with the Principles of Francis Victoria, tho’ the former pretended to establish something contrary to them.
XXIV. I remember I have heard it questioned,1 whether one Nation may contract with another, to purchase all the Commodities of a particular Kind,XXIV.Whether a Contract made with a People to oblige them to sell their Commodities to those only with whom they have bargained, and not to any others, be lawful? which are the Produce of that Country only; and I think it may be lawful, provided the Buyer shall be ready to dispose of them to others, at a reasonable Rate; for it signifies nothing to other People, from whom they are supplied with what Nature has Occasion for. But in Matter of mere Profit, one may lawfully prevent another, especially if there be any particular Reason for it, as when a Nation has taken under their Protection the People with whom they make such a Contract, and are therefore obliged to be at an extraordinary Expence. This Sort of Monopoly, practised in the Manner, and with the Intention I observed, is no Ways repugnant to the Law of Nature,2 tho’ the Civil Laws, out of Regard to the publick Advantage, do sometimes prohibit it.<159>
[1 ]See Pufendorf, B. IV. Chap. IV. with the Notes in the second Edition, where this Subject is treated more at large, and with greater Exactness.
[1 ]Lib. XLIII. Cap. I. Num. 3. The Words immediately preceding those here quoted, are, We are told that Saturn, King of that People, (the Aborigines) was so just, that during his Reign, no Man was a Slave to another, nor possessed any Thing as his private Property. Where we see the Historian is speaking of the Reign of Saturn. Thus some Remains of this antient Custom of having all Things in common, were preserved in the Bacchanalian [Saturnalian] Feasts, as our Author here observes. And the Historian here already quoted, says the same in the Words immediately following, In Memory of whose Example, it is ordered, that, during the Saturnalia, every Man’s Right being reduced to an Equality, Slaves shall eat promiscuously with their Masters. Num. 4.
[2. ]De finib. Bon. & Mal. Lib. III. Cap. XX. Seneca also observes, that in the Amphitheatre, the Places reserved for the Roman Knights, were common to the whole Equestrian Order; but that which I occupy becomes my own. De Benefic. Lib. VII. Cap. XII. Grotius.
[3. ]Horace, speaking of the Scythians and the Getae, represents their Way of living in the following Manner, that they lived in the Fields, and drew their moveable Huts with Waggons, whenever they changed Place, that they did not divide their Lands by Acres; that the Corn and Fruits which their Grounds produced, were free and common to all; that they sowed no more than would suffice for one Year, and chearfully succeeded one another in their annual Labour. Lib. III. Od. XXIV. ver. 9, &c. Grotius.
[4. ]And of the Pythagoreans, who sprung from them. See Porphyry, (de Vit. Pythag. Num. 20. Edit. Kuster.) Diogenes Laertius, (Lib. VIII.§ 10.) Aulus Gellius, Noct. Attic. Lib. I. Cap. IX. Grotius.
[5. ]Adam was a Type of Mankind. See Origencontra Cels. To this Purpose are the following Words of Tertullian, What is reasonable ought to be considered as natural, and engrafted in the Soul from the Beginning of our Existence, by a reasonable Creator: For how should that not be reasonable which GOD has produced by his bare Command; and much more what he has produced by his own Breathing on us? We are therefore to consider what is unreasonable, that is, Sin, as something posterior, and an Effect of the Solicitations of the Serpent; so that this Sin, having since taken Root in the Soul, has grown up in it, and is become as it were natural to it, because the Transgression was committed at the very Beginning of Nature. De Animâ. (Cap. XVI.) Grotius.
[6. ]Lib. II. Cap. II. Num. 15.
[7. ]Annal. Lib. III. Cap. XXVI. Num. 1.
[8. ]Seneca maintains that the first Men lived in Innocence, because they were ignorant. Epist. XC. Having afterwards said they were endowed neither with Justice, Prudence, Temperance, nor Fortitude, he adds, that their simple and uncultivated Life afforded something that bore a Resemblance to those Virtues.Josephus, the Jewish Historian, represents our first Parents, in the State of Innocence, as not ruffled or disturbed with Cares. (Antiq. Jud. Lib. I. Cap. II.) Grotius.
[9. ]In Somn. Scipion. Cap. X.
[10. ]Wisdom ofSolomon, Chap. ii. 23. Saint Paul uses this Word in Ephes. vi. 24. and employs another of like Signification, ἀδιαϕθορία, Tit. ii. 7. Grotius.
[11. ]2 Cor. xi. 3. But our Author, in his Notes on the New Testament, doth not fix the same Idea to the Word Simplicity; for he understands by that Term, such a Purity of Doctrine and Morals as is worthy of a Christian.
[12. ]Philo, in his Treatise Of the Creation of the World, observes, that the Tree of Life represents Piety, the most excellent of Virtues; which the Rabbins call the superior Virtue; and Arethas on the Apocalypse, ἔνθεος σοϕία, Divine Wisdom. See Ecclesiasticus xl. 17. concerning the terrestrial Paradise, and Chap. xxiv. 25, &c. of the same, concerning the four Rivers in it. Grotius.
[13. ]See a beautiful Passage of Dicaearchus on this Subject, quoted by Varro, De Re Rusticâ, Lib. I. (Cap. II. p. 9. Edit. 3. H. Steph. 1581.) which may be compared with what Porphyry says after the same Author, in his Treatise of Abstinence from Animal Food. (Lib. IV. p. 342, &c. Edit. Ludg. 1620.) Grotius.
[14. ]Josephus says, The Fruit of that Tree bestowed Understanding and Penetration. (Antiq. Jud. Lib. I. Cap. I.) Telemachus, as a Proof that he was not then a Child, declares, that he knows every Thing, both good and bad.Homer, (Odyss. XX. ver. 309, 310.) Zeno defined Prudence, the Knowledge of Good and Evil, and of Things indifferent. Diogenes Laertius, (Lib. VII. § 92. Edit. Amst.) And Plutarch, in his Treatise against the Stoicks, reasons thus, Where would be the Damage if there was no Evil in the World? and consequently, no Prudence? which is the Knowledge of Good and Evil; and another Virtue was substituted in its Room, which should consist in the Knowledge of Good only? De communib. Notitiis. (Tom. II. p. 1067. Edit. Wech.) Grotius.
[15. ]Treating the History contained in the first Chapter of Genesis in an allegorical Manner, he says, that, by the Knowledge of Good and Evil, we are to understand a middle Prudence, by which Men distinguish between Things contrary in their own Nature. De Mundi Opific. p. 35. Edit. Paris. I observe that in the same Treatise, he bestows the Appellation of a middle Man, or middle and earthy Mind, on him who is neither virtuous nor vicious; and opposes his Character to that of a perfect Man, adding, that the latter doth not stand in need of Admonitions and Instructions like the former, for engaging him to embrace Virtue and avoid Vice, p. 57. Hence it appears what the Jewish Philosopher means by his middle Prudence, an Epithet of which the Reason could not otherwise be comprehended.
[16. ]Philo’s Words are, But as they had now degenerated into Craftiness, and neglected the Practice of Sanctity and true Prudence,—GOD banished them from Paradise, p. 35. where he speaks of the Sin of our first Parents; which is nothing to the present Purpose.
[17. ]Orat. VI.
[18. ]This is explained at large by Seneca, Epist. XC. and in the Passages of Dicaearchus produced by the Authors already quoted. (Note 13.) Grotius.
[19. ]Seneca, speaking of the Deluge which was to happen according to the Notions of the Stoicks, says, that all Mankind will perish by that Calamity, and at the same Time the wild Beasts will be destroyed, whose savage Nature Man had put on. Natural. Quaest. Lib. III. Cap. XXX. Grotius.
[20. ]Χειροδίκαι. See Hesiod, Oper. & Dier. ver. 189. and the Annotators on that Place.
[21. ]Seneca, in the Place already quoted, says, that the Innocence of those Men, whom he supposes would be produced after the Deluge, will be preserved only for a short Time. Quaest. Natur. III. 30. Grotius.
[22. ]That Philosopher says, in the same Place, that monstrous Lusts, and criminal Pleasures, are the great Fruits of Drunkenness.Grotius.
[23. ]Lib. III. Cap. VI. Num. 1.
[24. ]Georgic. Lib. I. ver. 126.
[25. ]The Wells in Oasis were common to great Numbers of People, as we learn from Olympiodorus, in a Fragment of his History, preserved by Photius. Grotius.
[26. ]Thus the Scritofinnians lived, of whom Procopius gives us an exact Account. Gothic, Lib. II. (Cap. XV.) See likewise Pliny, Hist. Nat. Lib. XII. Prooem. and Vitruvius, Architect. Lib. II. Cap. I. Grotius.
[27. ]There was no Need of a Contract for founding the Right of the first Occupant; as I have shewn in my Notes on Pufendorf, B. IV. Chap. IV. § 4, &c.
[28. ]See the Passages of the Talmud and the Alcoran, quoted by Selden, the Glory of England, in his Mare clausum, (Lib. I. Cap. IV. p. 24. Edit. Lond. 1636.) Grotius.
[29. ]Cicero says, that since those Things which were by Nature common, become the Property of particular Persons, each Man has a Right to maintain himself in the Possession of what has fallen to his Share. (De Offic. Lib. I. Cap. VII.) He illustrates this (Lib. III. Cap. X.) by a Comparison taken from Chrysippus, the Stoick, who observes, that When a Man runs a Race with another, he may exert himself, and do all in his Power for carrying the Prize; but he is by no Means allowed to trip up his Antagonist’s Heels, or thrust him out of the Course with his Hands.Horace’s Scholiast says, that A House, or Land, which has no Master is common; but when it comes into the Possession of any one, it becomes his Property. In Art. Poet. (ver. 128. p. 127. Edit. Cruq.) In a Fragment of Varro we are told, that In the early Times, Lands were assigned to such or such Persons in particular, that they might be cultivated. Thus Etruria fell into the Hands of the Tuscans, and the Country of Samnium came into the Possession of the Sabellians. In Age Modo.Grotius.
[30. ]De Offic. Lib. III. Cap. V.
[31. ]He elsewhere says, A Man is not to be blamed for improving his Fortune, whilst he does it without Damage to another; but that we are ever to be particularly careful to commit no Injustice. Lib. I. Cap. VIII. Solon declared, He indeed wished for Riches; but would not acquire them unjustly. Ex Eleg v. 7, 8. Grotius.
[32. ]That Rhetorician speaks here in particular of Bees, which may be a Man’s Property, Ut quicquid ex his Animalibus in usum hominis cessit, &c. Declam. XIII. Cap. VIII. p. 281. Edit. Burm.
[33. ]This is an Observation made by Servius on Aeneid. IV. 58. Grotius.
[1 ]Tho’ the Property of Goods was introduced on the Multiplication of Mankind, which did not every where leave what was sufficient for supplying the Necessities of each particular Person, it doth not thence follow, that in the primitive State of Community, each Man might not lawfully seize on what Portion he pleased of the Things possessed in common, which were of such a Nature that there was enough still remaining for the Use of others; because, for that very Reason, no one could take Offence at the Liberty. The Retortion is unanswerable; and I have the Pleasure to find it employed by John Strauchius, an able Lawyer of Germany, who flourished in the last Age, in an academical Dissertation De Imperio Maris, (Cap. II. § 8.) which has lately fallen into my Hands. So that, how sufficient soever a Thing may be for supplying the Necessities of the whole World, it may nevertheless be appropriated, as far as can be possessed. See what I have said on this Subject, in my Notes on Pufendorf, B. IV. Chap. V. § 3, 4. Second Edition. And on the Abridgment of The Duties of a Man and a Citizen, B. I. Chap. XII. § 4. last Edition.
[2. ]This is not true in every Respect, nor in Regard to all Parts of the Sea. See the learned Selden’s Mare clausum, Lib. I. Cap. XXII. and Pufendorf, B. IV. Chap. V. §. 7, 8.
[3. ]But hence it would follow, that we cannot hinder a Man not only from passing on the High-Ways, but even from going into what Lands he pleased. For if the Air, considered as Air, cannot be possessed in Property, and yet no Means is left for enjoying the Benefit of it, without being posted on the Surface of the Earth; the Surface of the Earth also must every where remain common; otherwise this pretended Community of the Air is intirely useless. Besides, there are some Cases in which one may make Use of the Air which corresponds with another Man’s Lands, without touching the Soil, as when a Building projects, or a Balcony hangs over the Court of a neighbouring House. But this is not permitted by the Roman Law, except when a Right of Servitude (projiciendi, protegendive) is annext to the Building; which amounts to a Proof, that the Air is in itself considered as part of a Man’s Property.
[4. ]Such likewise is the Right of Habitation. Pomponius the Lawyer says, that if any one has raised a new Work, (or Building) either in a forcible or private Manner, on another Man’s Ground, or to his Prejudice, the Heaven (or Air) must be measured, as well as the Ground, or Soil. Digest. Lib. XLIII. Tit. XXIV. Quod vi aut clam. Leg. XXI. § 2. See also Lib. XVII. Tit. II. Pro Socio. Leg. LXXXIII. Grotius.
[5. ]For this Reason Horace, speaking of such Lands as have no Proprietor, calls them Lands not distinguished by Bounds. Immetata jugera (Lib. III. Od. XXIV. v. 12.) Grotius.
[6. ]Charging the People of Megara, with ploughing Ground that was sacred, and not distinguished by Boundaries, ἀορίστου. Lib. I. Cap. CXXXIX. Ed. Oxon. The Historian is there speaking of a Piece of Ground, situated between the Country of Athens, and that of Megara. It was consecrated to some Divinity, and ought to have remained uncultivated, to serve as a Boundary. See Demosthenes, Orat. De Repub. Ordinanda. p. 71. Edit. Basil. 1572. And Harpocration, under the Word Ὀργὰς; as also Polluk [[sic:Pollux, Lib. I.§ 10. with the Commentators on those Authors.]]
[7. ]In his Panegyric, p. 48. Edit. H. Steph. where the Word ἀϕορισθε͡σαν may likewise be rendered assigned, as it is by the Latin Interpreter.
[8. ]De Generat. & Corrupt. Lib. II. Cap. II.
[9. ]This is by no Means a solid Reason. Here is no other physical Obstacle than the Impossibility of Possession. But a Man may possess a Thing, at least in part, which is inclosed in another, without possessing at the same Time what encloses it. Thus, tho’ it is not possible to possess the whole Ocean, may not a Man become Master of some of its Parts, to a certain Distance? As to Boundaries, there are always Shores on one Side; and on the other several Ways of limiting the Extent of the Sea possessed; as Selden has shewn at large, in his Mare clausum, Lib. I. Cap. XXII. See also Pufendorf, B. IV. Chap. V. § 3, &c. with the Notes in the second Edition; and Mr. De Bynkershoek’s Dissertation De Dominio Maris, Cap. IX.
[10. ]This was the Opinion of Iarchas, one of the Indian Sages, as is observed by Philostratus, Vit. Apoll. Tyan. Lib. III. Cap. XI. (Edit. Morell. Cap. XXXVII. Edit. Lips. Olear.) Grotius.
[11. ]Vita Apoll. Tyan. Lib. VII. Cap. XII. (Edit. Morell. Cap. XXVI. Edit. Olear.) Aulus Gellius, Noct. Attic. Lib. XII. Cap. XIII. Livy, Lib. XXXVI. Cap. XVII. Num. 15. Seneca, Suasor. I. p. 2. Edit. Elzivir, 1672. LucanPharsalia, Lib. V. ver. 619, 620.
[12. ]Nor is it necessary to suppose a Division: It is sufficient, that, as the several Parts of the Sea came to be known, People sooner or later possessed themselves of some of them to a certain Extent. The first Division of Things, which our Author conceives as prior to the Acquisition of Right in the first Occupant, is a mere Chimera. See what I have said on Pufendorf, B. IV. Chap. IV. § 4. Note 4. and § 9. Note 3. second Edition.
[1 ]As the Echinades, which Alcmaeon made his own by prior Occupancy; as we learn from Thucydides, Lib. II. Grotius.
[2. ]See Pufendorf, B. IV. Chap. VI. § 3, 4.
[1 ]See Pufendorf, B. IV. Chap. VI. § 4, 5, 6, 7. with the Notes. As also Note 2. on the Abridgment of the Duties of a Man and a Citizen, B. I. Chap. XII. § 6. third and fourth Editions.
[2. ]The following Passage in the Institutes is sufficient, Wild Beasts, Birds, and Fishes, that is, all Animals bred in the Sea, in the Air, or on the Earth, are, by the Law of Nations, the Property of the Person who takes them. Lib. II. Tit. I. De rerum Divisione, § 12. See Chap. VIII. of this Book, § 2, &c.
[1 ]See Pufendorf, B. II. Chap. VI. § 5, 6, 7.
[2. ]Digest. Lib. XIV. Tit. II. Ad Leg. Rhod. De Jactu. Leg. II. § 2.
[3. ]Digest. Lib. XLVII. Tit. IX. De Incendio, &c. Leg. III. § 7.
[4. ]Digest. Lib. IX. Tit. II. Ad Leg. Aquil. Leg. XXIX. § 3. As Ulpian observes, this is not to be done, but when something considerable is at stake, and in a pressing Necessity. Digest. Lib. XLIII. Tit. XXIV. Quod vi aut elam. Leg. VII. § 3, 4. where he adds the Case of pulling down a House, to stop the Progress of a Fire. Grotius.
[5. ]He adds, that It justifies those Actions to which it forces us. Lib. IV. Controv. XXVII. The same Author illustrates this Maxim by the Example of Goods thrown into the Sea to save the Ship, and that of Houses demolished to stop a Fire. Excerpt. Controv. Lib. IV. Controv. IV. Theodore Priscian, an antient Physician, makes Use of the Example last mentioned, for proving the Necessity of destroying a Child in the Birth, in Order to save the Mother’s Life. In that Passage he had an Instrument in View, called by the Grecians Ἐμβρυοθλάστης, of which we have a Description in Galen and Celsus, (Cap. XXIX.) a Word which ought to be restored in a Passage of Tertullian, De Animâ.Grotius.
[6. ]Orat. Philippic. XI. Cap. XII. p. 844.
[7. ]Lib. VI. Cap. IV. § 11.
[1 ]De Legib. Lib. VIII. p. 844. Tom. II. Edit. H. Steph.
[2. ]In Vit. Solon. p. 91. Tom. I. Edit. Wech.
[3. ]Expedit. Cyri, Lib. V. Cap. V. § 9. Edit. Oxon.
[1 ]See Pufendorf, B. II. Chap. VI. § 6. Note 3. second Edition.
[2. ]The Author in this Place has given us the Sense rather than the Words of Lactantius, which occur Lib. V. Cap. XVII. Num. 27. Edit. Cellar.
[3. ]De Offic. Lib. III. Cap. VI. This Passage contains a Decision as extravagant in itself, as misapplied by our Author. For the Roman Orator doth not suppose the useless Person in the same necessitous Condition with the wise Man.
[4. ]Lib. VII. Cap. I. Num. 33.
[1 ]This Difficulty is very well grounded, admitting our Author’s Principles; but it vanishes when we lay it down as a Rule, as we ought to do, that Necessity only gives a Right to make Use of another Man’s Goods, and doth not revive a Right to all Things in common. See Pufendorf, B. II. Chap. VI. § 6.
[1 ]This Question is discussed, and that with more Exactness, by Pufendorf, in the last Paragraph of the Chapter quoted in the foregoing Note.
[2. ]Lib. XXIV. Cap. XXXIX. Num. 7. But the Historian there speaks of a Roman Governor, who had ordered the Inhabitants of that City to be massacred, upon being informed of their Design to revolt; so that the Example is not to the Question in hand.
[1 ]See Pufendorf on these innocent Advantages, B. IV. Chap. III. § 3, 4.
[2. ]This Passage, tho’ distinguished in Italick Character, is not quoted exactly; and the learned Gronovius even finds a Barbarism in it, as it stands in our Author. The Roman Orator’s Words are, Unâ ex re satis praecipit [Ennius] ut quicquid sinè detrimento possit commodari, id tribuatur, vel ignoto. Ex quo sunt illa communia; non prohibere aquâ profluente: Pati ab igne ignem capere, si quis velit: Consilium fidele deliberanti dare; quae sunt iis utilia, qui accipiunt, danti non molesta. De Offic. Lib. I. Cap. XVI.
[3. ]De Benef. Lib. IX. Cap. XXIX. The same Philosopher asks likewise, Who ever reckoned it a Favour (Beneficium) to bestow a Bit of Bread, or a small Piece of Money on a poor Man? ibid.
[4. ]Symposiac. Lib. VII. Quest. IV.
[1 ]That is, considered as a Collection of Waters, flowing in a certain Bed. See the following Note.
[2. ]That is, in Regard to the Particles of Water gliding along each Moment. But this Distinction is not well grounded, as has been observed by Pufendorf, B. III. Chap. III. § 4. See what I have said on the Abridgment of the Duties of a Man and a Citizen, B. I. Chap. XII. § 6. Note 2. of the third and fourth Edition.
[3. ]Art. amat. Lib. 3. ver. 93, 94.
[4. ]Metamorph. Lib. VI. ver. 349.
[5. ]Ibid. 350, 351.
[6. ]See the following Chap. V. § 9. Note 5.
[7. ]Aeneid. VII. 230.
[1 ]Servius, on the Passage quoted from the Aeneid, in the preceding Note, Litusque rogamus, Innocuum, &c. explaining the Epithet innocuum, observes, that the Shore on which Men land is not called innocuum, because it hurts no one, but because such a Demand doth no Man any Prejudice. Cujus Vindicatio nulli nocere possit.Grotius.
[2. ]Thus Hercules killed Amyntor, King of Orchomenus, who obstructed his Passage through his Dominions; as we learn from Apollodorus, (Bibliothec. Lib. II. Cap. VII. § 7.) The Scholiast on Horace, in his Remarks on Epod. XVII. against Caninia, says, that the Grecians made War on Telephus, King of Mysia, for refusing to letthem pass through his Country, in their Way to Troy. See also the Laws of the Lombards, B. II. Tit. LIV. Cap. II. Grotius.
[3. ]On Numb. XX. Quaest. XLIV. This Passage is quoted in the Canon Law, Caus. XXIII. Quest. II. Cap. III. But begging St. Augustin’s Pardon, no Consequence can be drawn from this Example. For, first, Sihon King of the Amorites, not only denied the Israelites Passage, but marched out against them, met them in the Wilderness, at the Head of an Army, and thus reduced them to a Necessity of Fighting him in their own Defence, rather than for forcing their Passage. Secondly, it is true, the Israelites certainly designed to pass, by some Means or other; but as GOD had given them the Land of Canaan, with express Orders, not only to destroy the seven accursed Nations, but also to combat all Opposition to the Execution of the Designs of Heaven, their Case was extraordinary, and such as cannot reasonably give Occasion to a general Rule for deciding the Question in hand.
[4. ]De Exped. Cyri. Lib. II. Cap. III. § 12. Edit. Oxon. See likewise what Cherisophus says to Mithridates, Lib. III. Cap. III. § 3.
[5. ]Or rather, into the Country of the Trallians, Τραλλεɩ̂ς, as Plutarch himself calls them, in the Life of Agesilaus, Tom. I. p. 604.
[6. ]Tacitus, Hist. Lib. IV. Cap. XX. Num. 2.
[7. ]Plutarch, in Cimon. p. 486. Tom. I. Edit. Wech.
[8. ]Aristophanes introduces one saying, that when the Athenians went for Delphos, they desired Leave of the Boeotians to pass through their Country. Avib. ver. 188, 189. On which the Scholiast observes, that at that Time they only desired a Passage for an Army. The Venetians granted the Germans and French the same Liberty, when those two People disputed the City of Marano.Paul Paruta, Hist. Venet. Lib. XI. The Germans complaining that their Enemies were allowed a Passage, the Venetians said, by Way of Excuse, that it was not in their Power to hinder them, without appearing in Arms, and that it was not their Custom to proceed so far, but when they had to do with a declared Enemy. Ibid. The Pope had Recourse to the same Apology. Idem. Lib. XII. Grotius.
[9. ]This is supposing the very Thing in Question.
[10. ]We have an Example of this Kind in the Excerpta Legation XII. And in Bembo, Hist. Ital. See also some remarkable Treaties about Passage, between Frederick Barbarossa, Emperor of Germany, and Isaac Angelus, Emperor of Constantinople, in Nicetas, Lib. II. De Vit. Isaaci, (Cap. IV. and VII.) In the German Empire, he who demands a Passage, gives Security for repairing what Damage he may do. See Albert Krantzius, Saxonic. Lib. X. and Mendoza, Belgic. The antient Suisses, demanding a Passage through the Roman Province, it was refused by Julius Caesar, who was apprehensive that a People like them, who bore no good Will to the Commonwealth, would hardly forbear committing some Disorders. De Bell. Gall. Lib. I. (Cap VII. VIII.) Grotius.
[11. ]Tacit. Hist. Lib. IV. Cap. LXV. Num. 6.
[12. ]Those who marched through that Country, delivered up their Arms, which were restored to them on their leaving it. Geograph. Lib. VIII. p. 548. Edit. Amst. (358, Paris.)
[13. ]But how just a Cause soever he may have for making War (which is not always easy to determine) we are not on that Account more obliged to expose ourselves to the Vengeance of his Enemy, by granting him a Passage, than to assist a Person when we are not strong enough to undertake his Defence.
[14. ]This is once more begging the Question.
[15. ]Under this Pretence the Francs, who were in the Venetian Territories, formerly refused to let Narses Pass, who had some Lombards in his Army. Procopius, Gothic. Lib. IV. (or Hist. Miscellan. Cap. XXVI.) See other Instances of such a Refusal, in Bembo, Italic. Lib. VII. and in Paul Paruta, Hist. Venet. Lib. V. and VI. Grotius.
[16. ]That is, either mediately or immediately. See my first Note on Pufendorf, B. III. Chap. III. § 6. that Paragraph, and the Notes on it, may serve to rectify our Author’s Notions on this Subject.
[17. ]In his Treatise De Mari Libero. Cap. VIII.
[18. ]De Legat. ad Caium. p. 998, 999. Edit. Paris.
[19. ]Servius on Virgil, Eclog. IV. (ver. 39.) Omnis feret omnia tellus, observes, that Navigation owes its Rise to Commerce. And, from those Words in Georgic. Lib. I. ver. 137.
He takes Occasion to remark, that The Invention and Improvement of Navigation, are owing to a Necessity of procuring certain Things in other Countries. St. Ambrose, speaking of the Usefulness of the Sea, calls it The Receptacle of Rivers, the Source of Rain; and adds, that it is convenient for transporting Provisions, and uniting distant Nations. De Creatione (Hexaëm. III. 5.) A Thought borrowed from St. Basil, Hexaëm. IV. Theodoret elegantly called the Sea the common Market of the World; and the Islands so many Stations in the Sea. De Provid. Lib. II. To all which let us add the following Words of St. Chrysostom, Can we sufficiently express our great Facility, of trading one with another? For, that the Length of the Way might not deter us from a mutual Converse, GOD has given us a shorter Road, the Sea, which lies near every Country; that the whole World being considered as one House, we may frequently visit one another, and mutually and easily communicate what each Country affords peculiar to itself; so that each Man who inhabits a small Portion of the Earth, enjoys whatever is produced elsewhere, as freely as if he were Master of the Whole: And, as if we were at a well furnished Table, we need only stretch out our Hand, and give what stands before us to those who are placed at a Distance from us, and in our Turn receive from them what stands within their Reach. Ad Stelechium. Grotius.
[20. ]De Aquae & Ignis compar. p. 957. Tom. II. Edit. Wech.
[21. ]Our Author has given no Hint for guessing out of what Part of Libanius these Words are taken.
[22. ]Supplic. ver. 209, 210.
[23. ]Lib. III. Cap. VI. Num. I.
[1 ]See Pufendorf, B. III. Chap. III. § 7. with the Notes.
[2. ]This and other such Reasons only tend to render the Imposition of Duties more just. But even independent of that Consideration, something may be demanded for the bare Permission of Passage, which, strictly speaking, one was not obliged to grant. Every Proprietor, in Consequence of his Right of Property, is at full Liberty not to allow another the Use of his Property, but on certain Terms.
[3. ]See the Laws of the Lombards, Lib. II. Tit. XXXI. and the Letter from the Bishops to King Lewis, which may be found among the Capitularies of Charles the Bald, Cap. XIV. Grotius.
[4. ]Hist. Nat. Lib. XII. Cap. XIV. We have something of the same Kind towards the Beginning of Leo of Africa’s Voyage. Aristophanes in his Comedy of the Birds, (ver. 190, &c.) alludes to such Sorts of Imposts, when he proposes shutting the Passage of the Air, that the Gods might be obliged to pay some Duty, for the Smoke arising from their Victims. Grotius.
[5. ]Strabo, Lib. IV. p. 279. Edit. Amst. (183, Paris.)
[6. ]Lib. VIII. p. 580. Edit. Amst. (378, Paris).
[7. ]The Author here quotes in the Margin Tacitus, Hist. Lib. IV. The following Passage in Cap. LXV. Num. 6. is probably what he had in View; for I find nothing more to his Purpose, either in that Book or any other. The Tencterians, who inhabited on this Side of the Rhine, having sent a Deputation to those of Cologn, who lived on the other Side of that River, soliciting them to shake off the Roman Yoke; received for Answer, among other Things, that they were ready to excuse the Payment of Customs, and other Impositions on Goods.
[8. ]De Constantiâ. Sap. Cap. XIV.
[9. ]Geo. Lib. XVI. p. 1085. Edit. Amst. (748, Paris.)
[1 ]This doth not always take Place. See Pufendorf, B. III. Chap. III. § 8.
[2. ]Aeneid. Lib. I. ver. 543, &c.Servius on this Place observes, that, according to the Law of Nature, The Coast was common to all, and belonged to the first Occupant. From whence he infers, that It was a Piece of Cruelty to hinder any one from Landing. The same Commentator, (on Ver. 619.) says, that Hercules killed Laomedon for opposing his Entrance into the Port of Troy.Grotius.
[3. ]In Vit. Pericl. p. 168. Tom. I. Edit. Wech. where it is added, that this was done also in Violation of Oaths. But Thucydides speaks only of the Infraction of Treaties, Lib. I. Chap. LXVII. Edit. Oxon. Besides the Thing disputed, there was a Liberty of Trading, not a bare Permission of Landing for Refreshment, or on any such Account.
[4. ]Digest. Lib. XLI. Tit. I. De adquir. rerum Dominio. Leg. I. See the following Chapter, § 9.
[5. ]Horat. Lib. III. Od. I. ver. 33, 34.
[1 ]See Pufendorf, B. III. Chap. III. § 10.
[2. ]Aeneid. Lib. XII. 192, 193.
[3. ]Antiq. Rom. Lib. I. Cap. LVIII.
[4. ]That Author doth not say it belongs to Barbarians only, to drive Strangers out of their Country; he only relates this historically, as a Custom common to all the barbarous Nations; that is all but the Grecians.Strabo, Geog. Lib. XVII. p. 1154. Edit. Amst. (802, Paris).
[5. ]See the Treatises written by Nicolas Cragius, De Repub. Lacedaem. Lib. III. Tab. III. Instit. 3. p. 210, &c.
[6. ]De Offic. Lib. III. Cap. VII.
[7. ]Lib. IV. Cap. CXLVI.
[8. ]Lib. IV. Cap. VI. extern. Num. 3.
[1 ]I am not of our Author’s Opinion in this Point; nor can I think the Reason here alledged solid. All the Land within the Compass of each respective Country is really occupied; tho’ every Part of it is not cultivated, or assigned to any one in particular: It all belongs to the Body of the People. The Author here reasons on a false Idea of the Nature of taking Possession. He has himself owned, § 4. that not only the Rivers, Lakes, Ponds, and Forests, but also the rough and uncultivated Mountains (Montes asperi) belong (manent in Dominio) to that People, or King, who has first taken Possession of the Country. He does not there distinguish Jurisdiction from Property; and that Distinction is equally ill grounded in this Case, and liable to great Inconveniences. The Inundations of so many barbarous People, who under Pretence of seeking a Settlement in uncultivated Countries, have driven out the native Inhabitants, or seized on the Government, are a good Proof of what I advance. See Pufendorf, B. III. Chap. III. § 10.
[2. ]Therefore we are rather to adhere to the Authority ofLivius [[sic:Lucius SisennaandCato;for almost all the antient Writers agree in this Point.Cato, in his Origines, tells us, that the Trojans received from Latinus the Land lying between Laurentum and the Trojan Camp. He likewise gives us the Measure of that Land, which he says was seven hundred Acres. On Aeneid. XI. 316.]]
[3. ]Orat. VII.
[4. ]Annal. Lib. XIII. Cap. LV. Num. 4, 5.
[5. ]Livy, Lib. V. Cap. XXXVI. Num. 5.
[1 ]That is, supposing the Liberty of doing such or such a Thing, once granted to all in general.
[2. ]The Author by these Terms understands Contracts of Sale, Exchange, or such other Agreements, in Consequence of which, we provide for the Necessaries of Life in a strange Country. See Pufendorf, B. III. Chap. III. § 11.
[3. ]De Offic. Lib. III. Cap. VII.
[4. ]See a Passage in Plutarch’s Life of Pericles, already quoted, (§ 15. Note 3.) Seneca, having mentioned two Verses of Virgil, where the Poet says every Country doth not produce all Things, (Georgic. I. 53, 54.) adds, that This was thus ordered by Nature, to render Commerce among Men necessary. Epist. LXXXVII. In another Place, he considers the Establishment of Commerce, which unites distant Nations, as one of the Wonders of Providence. Quaest. Natur. Lib V. Cap. XVIII. See the Complaints of the English, in Regard to the Spaniards, in Mr. De Thou’s History, Lib. LXXI. at the Year 1580. Grotius.
[1 ]Cassiodore observes, that It is just the Inhabitants of a Country, should be first provided with the Corn that grows in it: Var. Lib. I. Epist. XXXIV.
[2. ]See Pufendorf, B. III. Chap. III. § 9.
[1 ]Consult Pufendorf, § 12. of the Chapter specified in the preceding Note.
[2. ]Strabo, Geogr. Lib. XVI. p. 1130. Edit. Amst. (784, Paris).
[1 ]All the Inconveniencies that would result to those Men, from their being refused Wives, would be that, their Race failing, the Body of that People would be entirely extinct. But it is not necessary that every Body of People should be perpetual; nor consequently, that, to prevent the Extinction of a People, Persons should lose their natural Liberty of marrying only such as they themselves chuse, or bestowing their Daughters on those only whom they approve of for Sons-in-Law. Besides, how difficult soever it may be for the Generality of Men to live without Wives, this is not one of those Cases of extreme Necessity which gives us a Right to force others to grant us what we want. See Pufendorf, B. III. Chap. III. § 13.
[2. ]Livy, Lib. 1. Cap. IX. Num. 4.
[3. ]Idem. Lib. IV. Cap. III. Num. 4.
[4. ]De Civit. Dei, Lib. II. Cap. XVII. where that Father gives his Opinion with Caution, Aliquo fortasse jure belli, &c. Perhaps by some Right of War, &c. He says that tho’ the Sabines were to blame for refusing the Romans their Daughters, the Romans were still more so for forcing them; that therefore the Sabins engaged in a just War against the Ravishers. But he afterwards says, the Romans would have had more Justice on their Side, if they had only revenged the Affront by Force of Arms, and thus made their Way to the Women whom they desired. It is easy to see this is not very consistent.
[5. ]See Chap. V. § 15.
[1 ]But see Pufendorf, B. III. Chap. III. § 14.
[1 ]But since the Things in Question are such as the Sovereign may take away the Liberty of doing them; it follows, that they are allowable only as far as he pleases. So that while there is no particular Agreement, by Vertue of which he is obliged to permit them, it will be a Favour, whether he grants them to some Foreigners only, or to all without Distinction; even tho’ there was a Law which allowed such Kind of Things to all Foreigners in general; yet, as the Legislator has a Power of abolishing or changing that Law, he may either revoke the Permission in Regard to all Foreigners, or let it subsist only with Relation to some of them. Much more ought a bare tacit Permission to be considered as merely precarious; so that, when a Sovereign, for Reasons which he is not obliged to lay before Foreigners, has excluded some from the Privilege which he before refused to none, he only makes Use of his Right; and consequently, those whom he from that Time refuses, what he was not obliged to grant, have no Reason to think themselves injured. It is another Question, whether the Sovereign may not, in so doing, transgress the Rules of Prudence? Here, as in other Cases, we must distinguish between Equity and Policy.
[2. ]As when some Foreign Nation is excused the Payment of Customs, or other Imposts, while they are demanded of others.
[3. ]It is with good Reason doubted whether this Way of reconciling the two Writers be sufficient. See Pufendorf, B. III. Chap. III § 9.
[1 ]See above, § 13. Note 15.
[2. ]This will be treated more fully in Chap. XII. § 16. of this Book.