Front Page Titles (by Subject) CHAPTER III: Of the original Acquisition of Things; where also is treated of the Sea and Rivers. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER III: Of the original Acquisition of Things; where also is treated of the Sea and Rivers. - 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 the original Acquisition of Things; where also is treated of the Sea and Rivers.
I.Original Acquisition made by Division or Seizure. Ch. 2. § 2.I. The particular Right we have to a Thing, is either by1 original or derivative Acquisition. Original Acquisition, when Mankind were so few in Number, as to be able to assemble together in one Place, might be made by first Occupancy and by Division, as we observed before. But now it can2 be made only by first Occupancy.
II.Other Means of Acquisition rejected; such as the granting an incorporeal Right.II. Some may say, perhaps, that when the Proprietor of a Ground grants his Neighbour a Right of Servitude, or when a Creditor receives any Thing in Pledge, both the one and the other acquire a Sort of primitive Right. But if the Matter be thoroughly considered, we shall find that this Right is only new in Appearance, and that it is only a Modification of a Right already established; for it was vertually1 included in the Property of the Master of the Ground, and of the Thing pledged.
III.Or a Specification.III. To the Ways of Acquisition, Paulus the Lawyer adds this, which indeed seems very natural, viz.1 when we are the Cause that a Thing exists in Nature. But since nothing can be naturally produced, except from some Matter that did itself exist before; if that be ours, we do but continue our Right of Property, by producing a new Form in it: If it be no Body’s, then is our Property in it acquired by the Right of a first Possessor: But if it be some other Person’s, it does not become our natural and absolute Property, as will appear2 in another Place.
IV.Possession is double. Jurisdiction and Property. The Distinction explained.IV. 1. Our Business then here, is to treat of taking Possession by Right of Prior Occupancy; which, since those early Times we just now mentioned, is the only natural1 and primitive Manner of Acquisition. Now, as to what belongs<160> properly to no Body, there are two Things which one may take Possession of,2 Jurisdiction, and the Right of Property, as it stands distinguished from Jurisdiction. Seneca has made that Distinction,3Kings, says he, have Power over every Thing in their own Dominions; but yet every Man has his distinct Property. Dion Prusaeensis thus, ἡ χώρα τη̂ς πόλεως· ἀλλ’ οὐθὲν, &c.4The Country belongs to the State; but yet is every Man in it Master of his own Possessions. Jurisdiction is commonly exercised on two Subjects, the one primary, viz. Persons, and that alone is sometimes sufficient, as in an Army of Men, Women, and Children, that are going in quest of some new Plantations; the other secundary, viz. the Place, which is called Territory.
2. But altho’ Jurisdiction and Property are usually acquired by one and the same Act,5 yet are they in themselves really distinct; and therefore Property may be transferred, not only to those of the same State, but even to6 Foreigners too, the Jurisdiction remaining as it was before. Siculus, in his Book of the Conditions of Lands, tells us, that amongst the antient Romans,7when the Lands as-<161>signed to a Colony were not sufficient, they took what was wanting from the neighbouring Territories; but that then the Magistrates of those Territories retained the Jurisdiction over what had been taken from them. And Demosthenes,8 in his Oration de Haloneso, calls those Lands that were possessed by the People of the Country, ἐγκτήματα, but those that belonged to Foreigners, κτήματα.
V.The taking of Things moveable may be hindered by a Law.V. We have before observed, that in a Place already possessed, so far as regards Jurisdiction, the Right of seizing upon and possessing Things moveable, may be rendered void by the Civil Law, for this Right1 is indeed permitted by the Law of Nature, but not commanded that it should always be so permitted; nor does human Society require it. But if any one objects, that this seems to be allowed by the Law of Nations, I answer, that altho’ in some Part of the World, this is or may have been commonly received, yet it has not the Force of a general Compact amongst Nations, but is only a Permission of the Civil Law of this, or that, or t’other People, which each of them may at any Time abolish if they think fit. And indeed there are many other Things2 of this Nature, which our Lawyers stile the Law of Nations, when they treat of the Division of Things, and of acquiring a Property in them.
VI.Upon what Right the Property of Infants and Madmen is founded.VI. It is also to be observed, that if we have Regard to the Law of Nature alone, Property can only be his who has the Use of Reason.1 But the Law of Nations has so ordained it, for the common Good, that not only Infants but Madmen may both have and keep a Property in Things; Mankind representing them, if I may say so, whilst they are in that State; for human Laws may enjoin many Things that are no where commanded by the Law of Nature, but can enforce nothing that is contrary to it. And therefore this Sort of Property, which, by the unanimous Consent of all civilized Nations, was introduced in Favour of Infants, and other Persons that resemble them, stops intra actum primum, and never passes ad actum secundum, as the Schools term it; that is, they have indeed the Right, but not the Power of exercising it by themselves. For Alienation, and such other Ways of disposing of Goods, do in their Nature suppose an Act of a reasonable Will, which cannot exist in such Persons. To which that of St. Paul may be applied, The Heir, tho’ he be Lord of all,Gal. iv. 1.yet during his Minority differs nothing from a Servant. That is, as to the exercise of his Right of Property.
VII.Rivers may be held in Property.VII. Let us now finish what we began to say1 concerning the Sea. Rivers might be held in Property, tho’ neither where they rise nor where they discharge themselves be within our Territory, but they join to both, or to the Sea. It is<162> sufficient for us, that the larger Part of the Water, that is, the Sides, is shut up in our Banks,2 and that the River, in Respect of our Land, is itself small and insignificant.
VIII.Whether the Sea may not be so too?VIII. By this Instance it seems to appear, that the Property and Dominion of the Sea might belong to him who is in Possession of the Lands on both Sides; tho’ it be open above, as a Gulph, or above and below, as a Streight; provided it is not so great a Part of the Sea, that when compared with the Lands on both Sides, it cannot be supposed to be some Part of them. And now what is thus lawful to one King or People, may be also lawful to two or three, if they have a Mind to take Possession of a Sea,1 thus inclosed within their Lands; for ’tis in this Manner that a River, which separates two different Nations, has first been possessed by both and then divided.
IX.’Twas not allowed formerly in Countries depending on the Roman Empire.IX. 1. But it must be owned, that in all Parts of the Sea that were known in the Time of the Roman Empire, from the first Ages, even down to the Time of the Emperor Justinian, ’twas the Law of Nations, that no People whatever should claim a Property in the Sea; no, tho’ it were no more than the Right of Fishing; neither are they to be regarded who think, that when by the Roman Laws the Sea is declared to be1common to all Men, it should be only understood to be the common Right of the Roman Citizens. For in the first Place, these Terms are in themselves so general, that they can no Ways admit of such a Restriction. For what the Latins meant by Omnium commune, common to all, Theophilus calls, κοινὸν πάντων ἀνθρώπων,2the common Right of all Mankind. And Ulpian3 says, that the Sea is by Nature open and free for all, and is as common as the Air itself. And Celsus,4 that the Use of the Sea is in common to all the World. Besides, the Lawyers do plainly distinguish those Things that are publick in Regard to one People only, among which Rivers are included, from those that are common in this Manner; for so we read in the Institutes,5There are some Things which are common6to all Men by the Law of Nature, and others which are only pub-<163>lick: By the Law of Nature these, the Air, running Waters, the Sea, and consequently, the Shores, are common; but all Rivers and Ports are publick. So in Theophilus, Φυσικῷ μὲν οὐν δικαίῳ κοινὰ πάντων ἀνθρώπων, &c. What by a natural Right are common to all Mankind, are these, the Air, Water that’s perpetually flowing, and the Sea. And then presently, ποταμὸι δὲ πάντες, &c. But all Rivers and Ports are publick, that is,7belong to the Roman People.
2. And Neratius, speaking of8 Shores, says, they are not publick in the same Manner as that which is the Patrimony of a People,9 but as that which is originally a Present of Nature, and which as yet has no Proprietor, that is, belongs to no private Person or Nation. Which seems to be contrary to what Celsus writes,10’Tis my Opinion, that through the whole Extent of the Roman Empire, the Sea-Coasts do properly belong to the Romans; but as for the Use of the Sea, ’tis in common to all Mankind. But these two Opinions may be easily reconciled, if we say that Neratius only meant, as far as the Shore was serviceable to those who sailed or passed by; but that Celsus speaks of the Shore as it is appropriated to some Use,11 as when one builds an Edifice upon it; which Pomponius12 informs us, could not be done without the Praetor’s Leave, no more than one might presume on a Right of Building in the Sea; that is, in that Part of it which is next the Shore, and is, as it were, the Shore itself.
X.But the Law of Nature is not against a Property in a Part of the Sea, which is as it were inclosed in the Land.X. 1. But however true these Things be, it was yet in Consequence1 of an arbitrary Establishment, and not by Vertue of any Prohibition of the Law of Nature, that the Sea was not then possessed, or that it could not be lawfully possessed, in the Sense I spoke of. For tho’ a River certainly belongs to the Publick; yet, if it enters by any Place into the Lands of a private Person, that private Person may appropriate to himself the Right of Fishing2 in that Sort of Branch or Gulf of the River. Even in Reference to the Sea itself, Paulus3 says, that if any one has a Right of Property in it, he is admitted to demand an Order of the Praetor for Possession; because it is then a private Affair, and not an Affair that regards the Publick: Since the Question is concerning the Enjoyment of a Right that one possesses on Account of private Acquisition, and not concerning the Enjoyment of a common Right. Where, without Doubt, he is speaking of some small Portion of the Sea4 <164> let into the Land of some private Person, as L. 9. c. 1. we find it done by5Lucullus, and some others. So Valerius Maximus records of C. Sergius Orata, that He made himself several private Seas, by enclosing the Waters with Bars or Basons, and making Moles for keeping each Sort of Fish apart. The Emperor Leo afterwards extended this Right, contrary to the Decisions of the antient6 Lawyers, to7 those Parts of the Sea that are before Houses built on the Shore of the Thracian Bosphorus, so that he permitted each Proprietor to inclose with Damms that Space of Sea, and to appropriate it to himself.
2. Now if a certain Space of Sea may be, as it were, an Appurtenance to the Ground of a private Person, so far as it is shut up there, and so inconsiderable that it may be thought a Part of the Ground; and if this be not repugnant to the Law of Nature, why may not a Part of the Sea that is surrounded with the Land, belong to one or more Nations, who are in Possession of the Shores, when that Part of the Sea, compared with the Land, is not larger than a small Slip of the Sea, compared with the Ground of a private Person? Neither is it any Objection to say, that the Sea is not surrounded on all Sides with the Lands of one or more Nations. For notwithstanding that, it may be appropriated, as appears by the Example of a Corner of a River, or the Sea, that is brought up to some Gentleman’s Seat.
3. But there are many Things tolerated by the Law of Nature, which the Law of Nations, by8 common Consent, might prohibit and restrain; therefore, wherever this Law of Nations was in Force, and is not repealed by common Consent, the most inconsiderable Part of the Sea; nay, tho’ it be almost inclosed by the Shore, can never be the Property of a particular People.
XI.Such a Property may be had, and how long it may endure.XI. But it is here to be noted, that if in any Place this Law of Nations about the Sea should not be received, ortho’ it were, should be afterwards abolished, it does not follow that a People, merely because they are in Possession of the Lands, are likewise in Possession of the Sea inclosed in them: Nor is an intentional Act sufficient in this Case;1 but the taking of Possession must, by an Overt Act, be signified and made known. And if afterwards the Possession, thus gained by the Right of prior Occupancy, shall be quitted, then the Sea returns to its original Nature; that is, to the common Use of all Mankind; as Papinianus has decided,2 in Regard to an Edifice built on the Shore, and Fishing in the Turning of a publick River.<165>
XII.Such a Property can give no Right of obstructing an inoffensive Passage.XII. It is also certain that he, who is in Possession of any Part of the Sea, cannot lawfully hinder Ships that are unarmed, and give no Room to apprehend Danger, from Sailing there: Since1 such a Passage, even through another’s Country, cannot justly be hindered, tho’ it be commonly less necessary, and more dangerous.
XIII.That there may be a Jurisdiction over Part of the Sea, and how. Bossius. tit. de Aquis. n. 36. allegans Bal. Caepoll. & al. See Cod. l. 11. tit. 12. De Classicis. Leg. unic.XIII. 1. But it was more easy to take Possession of the Jurisdiction only,1 over some Part of the Sea, without any Right of Property: Nor do I think, that that Law<166> of Nations, of which we have spoken, did any Ways oppose or contradict it. The Argives formerly complained of the Athenians, that they suffered the Spartans, who were their Enemies, to pass unmolested through their Seas, looking upon this as a Breach of the Treaty that was betwixt them, in which it was stipulated that2 neither People should permit the Enemies of the other to pass, διὰ τη̂ς ἑαυτω̂ν, through any Part of their Jurisdiction. And by the one Year’s Truce, which was made during the Peloponnesian War, a free Passage was granted to the Megarenses3 not only through their own Seas, but those of their Confederates, τῃ̑ θάλασσῃ ὅσα ἂν κατὰ τὴν ἑαυτω̂ν καὶ κατὰ τὴν συμμαχίαν. So Dion Cassius said,4 θάλασσαν, τὴν τω̂ν ῥωμάιων πάσαν, Every Sea that belongs to the Romans. And Themistius speaking of a Roman Emperor, τήν γη̂ν καὶ θάλασσαν ὑπήκοον ἔχων, Having both Land and Sea subject to him. So Oppianus5 to the Emperor,
The Seas roll under thy Scepter. So Dion Prusaeensis, in his second Oration to the People of Tarsus, among the many Privileges that were granted by Augustus to that City, mentions, ἐξουσίαν τον̂ ποταμον̂ τη̂ς θαλάττης τη̂ς κατ’ αὐτὴν,6The Dominion of the River (Cydnus) and that Part of the Sea adjoining to it. So we read in Virgil,7 that The Romans should be absolute Masters of Sea and Land. In Gellius,8The Rivers that flow into such Seas as are subject to the Roman Empire. And Strabo observes,9 that the People of Marseilles took abundance of Prizes, when in their Engagements at Sea, They conquered τον̂ς ἀμϕισβητον̂ντας τη̂ς θαλασ σσης ἀδίκως, those who unjustly disputed the Dominion of the Sea with them. And that10Sinope commanded the Sea among the Cyaneae Islands.<167>
2. Now the Jurisdiction or Sovereignty over a Part of the Sea is acquired, in my Opinion, as all other Sorts of Jurisdiction; that is, as we said before, in Regard to Persons, and in Regard to Territory. In Regard to Persons, as when11 a Fleet, which is a Sea-Army, is kept in any Part of the Sea: In Regard to Territory, as when those that sail on the Coasts of a Country may be compelled from the Land, for then it is just the same as if they were actually upon the Land.
XIV.A Duty upon some certain Occasions may be imposed on those who go by Sea.XIV. Neither is it contrary to the Law of Nature, or that of Nations, that those who shall take upon them the Burden and Charge of securing and assisting Navigation, either by erecting or maintaining Light-Houses, or by affixing Sea-Marks, to give Notice of Rocks and Sands, should impose a reasonable1 Tax upon those who sail that Way. Such was that which the Romans levied upon the2Red Sea, to defray the Charge of a Fleet against the Excursions of Pirates; and that Duty3 which the Byzantines demanded in the Euxin Sea; and that which the Athenians4 long before imposed on the same Sea, when in Possession of Chrysopolis, both which are mentioned by Polybius. And that, which Demosthenes, in his Oration against Leptines, shews, the same Athenians required5 in the Hellespont; and which Procopius says,Cap. 25. in his secret History, that the Roman Emperors exacted in his Time.
XV.Of Treaties which forbid some People to pass beyond certain prescribed Bounds.XV. 1. We have some Instances of Treaties, by which one People has engaged to another, not to sail beyond such and such Bounds: So it was formerly agreed between1 the Kings bordering on the Red Sea, and the Egyptians, that the Egyptians should not come into the Red Sea with any Man of War, nor with above one Merchant Ship; so betwixt the Athenians and Persians,2 in Cymon’s<168> Time, that no Median Ship of War should sail between the Cyaneae and the Chelidonian Islands, and between the Cyaneae and Phaselis3 after the Battle at Salamin. In the one Year’s Truce of the Peloponnesian War4 it was stipulated, that the Lacedemonians should not send to Sea any Ships of War, or Ships of Burden above twenty Tun. And in the first Treaty which the5Romans made with the Carthaginians, immediately after the Expulsion of their Kings, they agreed, that neither the6Romans, nor any of their Allies, should sail beyond the Promontory Pulchrum; and that if at any Time they should be driven further, either by a Storm or an Enemy, those who were thus driven should carry nothing with them but only Necessaries, and should be obliged to depart in five Day’s Time. And in the second Treaty it was agreed,7 that the Romans should neither exercise Piracy, nor drive a Trade, beyond the Promontorium pulchrum, Massia, and Tarsejus.Appian in Illy. p. 760. Edit. H. Steph. In a Treaty of Peace with the Illyrians, the Romans required, that they should not pass beyond Lissus with more than two Frigates, and those unarmed. In the Peace with Antiochus, that he should not sail on this Side the Promontories of Calycadnus and Sarpedon,8 unless with such Ships as should carry Tribute, Ambassadors, or Hostages of War.<169>
2. But all this does not prove that those, who thus limited the Navigation of any other People, had taken Possession of the Sea, or of the Right to sail there. For Nations, as well as private Persons, may9 give up not only that Right which is properly their own; but that also which they have in common with all Mankind, in Favour of him for whose Interest it may be: And when this happens, we may say as Ulpian did,10 in the Case of an Estate sold, on Condition that the Purchaser should not fish for Tunny, to the Prejudice of the Seller: That indeed the Sea cannot be rendered subject to a Service; but yet Honesty requires that one should submit to the Clause of the Contract: And therefore the Purchaser, and those that succeed to his Rights, are personally obliged to observe such a Clause.
XVI.Whether if the Course of a River be changed, it alters the Territory, explained with a Distinction.XVI. 1. It is often disputed amongst neighbouring People, whether the Bounds of the Jurisdiction be not altered as often as the River that runs betwixt them changes its Course; and whether the Addition that the River thus makes does not accrue to them who are on that Side where the Addition is made? Which Controversy must be determined from the Nature and Manner of the Acquisition. Authors who have writ on The Boundaries of Lands, inform us,1 that there are three Sorts of Lands; one Sort is divided and assigned, which2Florentinus the Lawyer calls limited,3 because it is inclosed by Limits made by the Hands of Man: Another is4assigned in Gross, or comprised within some certain and determinate Measure, as5 Hundreds, suppose, and Acres: And a third arcifinious,<170> called so, as Varro observes,6 because it has (Fines arcendis Hostibus idoneos) Boundaries fit to keep the Enemy out; that is, it has7 natural Limits; such as Rivers and Mountains. And these are what Aggenus Urbicus stiles8Occupatory, because they are generally such Lands as are occupied or possessed, either as being vacant, or else by the Power of the Sword. In the two first Instances, tho’ the River should change its Course, yet is there nothing9 of the Territory changed: And what is added by Alluvion, belongs to the prior Occupant.
See Joan. And. and others, cited by Reinkink, 1. 1. class 5. c. 1.2. But in arcifinious Lands, the River, by gradually altering its Course, does also alter the Borders of the Territory; and whatever the River adds on one Side, shall be under his Jurisdiction who has his Lands there; because both Nations, between which the River runs, are supposed to have taken10 originally the Middle of the River for a natural Boundary of their Jurisdictions. Tacitus said,11That the Rhine began there to have a fixed Channel, which was proper to serve for a Boundary. And Diodorus Siculus,12 relating the Controversy that was between the Inhabitants of Egesta and Selinus, says, ποταμοὑ τὴν χώραν ὁρίζοντος, The River bounding the Country. And Xenophon13 calls such a River simply, τὸν ὁρίζοντα, The Bounder.
3. The Antients report, that the River Achelous, keeping no constant steddy Course, but one While dividing itself into several Branches, another While turning and winding about, (which gave Rise to the fabulous Story of its being changed in-<171>to a Bull and a Serpent) was Strabo. l. 10. p. 703. Ed. Amst. (458, Ed. Paris.) the Occasion of frequent Wars between the Etolians and Acarnanians about the adjacent Land, ’till Hercules confined it within Banks; and for the important Service, obtained in Marriage the Daughter of Oeneus, King of the Aetolians.
XVII.What Judgments must we make if the Channel be quite altered?XVII. 1. But this will only take Place where the River has not changed its Channel; for a River that separates two Jurisdictions, is not to be considered barely as Water, but as Water confined in such and such Banks, and running in such and such a Channel. Therefore the Additions, Diminutions, and other Changes of the Parts, which allow the Whole1 to subsist in its antient Form, do not hinder the River from being considered as the same. But if the Form of the Whole be changed at the same Time, ’tis then a quite different Thing: And consequently, as when any River is dammed up above,L.Proponebatur, D. de judiciis. and a Passage made to convey the Waters another Way, it is no more the same, but a new River. So in Case2 a River should force its Way through some unusual Passage, and entirely forsake its former Channel, it is no more the River that it was before, but a new one. So too, if a River should be exhausted or dried up, as the Middle of the neighbouring Channel would remain the common Boundary of the two Jurisdictions; because we are to presume,See Digest. l. 43 tit. 20. De Aqua quotid. & astiva. I. 3. §2. that the Intention of the People was to take the River for the natural Limit of their States, and that if the River should at any Time cease, each might possess what they had before; the same Thing is to be said if the Channel of a River should be altered.
2. But in any Doubt of the Bounds of a State, those Lands that reach to some River are to be reckoned arcifinious, because nothing is so proper to distinguish Jurisdictions, as3 that which is of such a Nature that it is not easily passed over. It rarely happens that such Sort of Lands are limited, or comprised in a certain Measure; and when it falls out so, it is not so much in Consequence of the original Acquisition, as by Vertue of another’s Concession.
XVIII.A River belongs sometimes wholly to one Territory.XVIII. But tho’, as I said, in Case of any Doubt, the Jurisdictions on each Side reach to the Middle of the River that runs betwixt them, yet it may be, and in some Places it has actually happened, that the River wholly belongs to one Party; either because the other Nation had not got Possession of the other Bank, ’till later, and when their Neighbours were1 already in Possession of the whole River, or else because Matters were so stipulated by some Treaty.
XIX.Things that are quitted, are the Right of the next Possessor, unless the State has acquired a Right to a general Property.XIX. 1. Nor is it undeserving our Observation, that the Acquisition of such Things as have had an Owner once,1 but are now without one, either because they are abandoned, or because the Owners themselves2 are dead and gone, is to be judged an original Acquisition: For in such a Case they return to the State in which all Things were at first.
2. But it is likewise to be observed, that the original Acquisition of a Country is sometimes made by a People, or a Prince, in such a Manner, that not only the Jurisdiction and Sovereignty, which comprehends that eminent Right we have elsewhere3 spoken of, but also the full and compleat Property is at first, in general, vested in that People or Prince; and that afterwards a particular Distribution is made amongst private Persons, but so that their Property should still depend upon that prior Property; if not, as4 the Right of a Vassal upon the Right of his<172> Lord; or the Right of a5 Tenant, upon the Right of him who owns the Farm; however, by some slighter Sort of Dependence, as there are many Kinds of6 Right to a Thing, among which is the Right of him who upon a certain Condition expects a7 Feoffment of Trust. Thus Seneca,8’Tis no Argument at all, that because you may not dispose of, consume, spoil, or mend, ’tis therefore not yours; for that too is yours, which is conditionally such. So Dion Prusaeensis,9 μυρίους γὰρ εὑρήσετε τρόπους, &c. There are many Ways, and those very different, by which Things are said to belong to one; so that sometimes he to whom they belong can neither sell nor dispose of them as he pleases. And in Strabo10 we meet with, κύριος ἡ̂ν πλὴν τον̂ πιπράσκειν, He was Master of it, excepting the Power of selling it. Now an Example of what we have been speaking of, Tacitus gives us in the Germans, They take Possession in common of as much Land as they are able to cultivate all together, and afterwards they divide it according to every Man’s Condition.
3. When the Property of private Persons depends on the general Property of the State, in the Manner I have just mentioned, that which has no particular Owner does not therefore belong to the first Occupant, but returns to11 the whole So-<173>ciety or superior Master. And even the Civil Law, without this Reason, may establish such a Right; as we12 have already hinted.
[1 ]When a Thing, which before belonged to no Man, begins to be the Property of some particular Person, this is called Original Acquisition. Consequently, Derivative Acquisition is that by which the Right of Property, already established, passes from one to another.
[2. ]But, beside that when a Multitude having possessed themselves of a Country in general, divides it afterwards, such Division is, in Regard to each Individual, a Title of primitive Acquisition; let us suppose several Persons landing at the same Time in a desart Island, without any previous Agreement among themselves, and that, before they go up into the Country, they agree that one shall have such a Part of the said Island, and another another; in this Case, will not the Division be the Foundation of an original Acquisition of the Island in general, and of each of its Parts in particular; since the Whole was not actually seized before, the Thing being only in the Power of such as should attempt it. To this it may be added, that the Author reasons both here, and in the Place quoted in the Margin, on the false Supposition, that the Establishment of the Property of Goods requires the general Consent, either tacit or express, of all Men, to whom they before belonged in common. See Note 12 on Paragraph 3 of the preceding Chapter.
[1 ]A Proprietor, as such, may dispose of his Goods as he shall judge proper: When therefore he shall allow his Neighbour a Right to pass over his Grounds, or go into them to draw Water, he only communicates to him a Part of what was included in his Right of Property. In like Manner, when a Debtor deposits a Pledge in the Hands of his Creditor, as a Security for his Money; this is no more than disseizing himself of Possession, and making a Step toward Alienation, in Case he becomes insolvent.
[1 ]Digest. Lib. XLI. Tit. II. De acquirendâ vel amittendâ possessione, Leg. III. The whole Passage runs thus, There are as many Kinds of Possessions as there are Means of acquiring what was not before our own; which may be done by Purchase, Gift, Legacy, Dowry, Inheritance, Fine, or Propriety; as in those Things which we take by Sea and Land, or from the Enemy, or such Things as we cause to exist in Nature. It is plain that the Lawyer here speaks of all Sorts of Acquisition in general, without distinguishing the original from the derivative.
[2. ]See Chap. VIII. of this Book, § 19, &c.
[1 ]In the first Edition of this Work, as well as in those that have appeared latest, we have solus est naturalis, an & originarius Modus. But in that published in 1632, and corrected by the Author, we read only naturalis & originarius Modus. I know not how that an was replaced in the Edition of 1642, from which it has been copied in the succeeding Editions to that printed in 1712, which preceded mine, and from which it was once more struck out. As I think that Word very ill placed here, I have ventured to follow the Edition of 1632, for the following Reasons. According to the other Editions, the Author is made to say, that taking Possession by Right of prior Occupancy is, since the first Ages, in which the Right of Property was established, the only natural, and perhaps, the only original Manner of Acquisition. On this Foot he would have us consider taking Possession by Right of prior Occupancy, as the only Kind of natural Acquisition, that is, founded on the Law of Nature, since the Establishment of Property; and thus he would contradict what he himself teaches elsewhere, viz. that Alienation, on which a derivative Acquisition is grounded, is of natural Right, since the Establishment of Property. See Chap. VI. § 1. and Chap. VII. where he speaks of other derivative Acquisitions, which, according to him, are made by Vertue of the Law of Nature. Secondly, The Author would express himself doubtfully, in Regard to the second Part of his Proposition; now he entertained no Doubt on that Head, as appears from the whole Tenour of the preceding Paragraphs. Mr. De Courtin, tho’, as he owns in his Preface, he had the Edition before him, which I have followed in mine, renders the Sense of this Passage still more perplexed. For, not understanding the Elegance of the Particle an, he makes our Author speak as if he proposed to examine that Question in another Place: Il est donc question de parler ici de l’ Occupation, — & de voir aussi si c’est un moyen primitif & originel. But it will be objected, that it is not probable that either the Author, or his Printers, could let this Fault escape in the first Edition. As to the Printers, it is possible that the Author having written, naturalis ac originarius, they put an instead of ac. Nor is it improbable that the Author himself, for want of close Attention, expressed himself thus at first; and, having afterward considered better on the Matter, changed his Expression for the Reasons already offered. Since that Time, some Corrector having by Chance compared this Place with the first Edition, or some other anteriour to that of 1632, might imagine he did great Matters by restoring the Text, so as to give it a very different Sense.
[2. ]See Pufendorf, B. IV. Chap. VI. § 14. where he clears up the false Ideas which those Words of our Author are capable of giving.
[3. ]De Benef. Lib. VII. Cap. IV. That Philosopher makes the same Distinction a little after. Under the best of Kings, the Prince possesses all Things by Jurisdiction; but each Man has his distinct Property. Cap. V. Caesar possesses all Things; his Treasury only is his own private Property: All Things are subject to his Jurisdiction, tho’ each Man is Master of his own Patrimony. Cap. VI. Symmachus tells the Emperors Theodosius and Arcadius, that tho’ they governed all Things, they were obliged to leave every Man in quiet Possession of his own Property. Lib. X. Epist. LIV. (p. 297. Edit. Juret.) Philo the Jew observes, that tho’ Kings are Masters of all the Goods in their Dominions, without excepting the Possession of every private Person, they are Proprietors of that Money only which they remit to their Governors, and other Officers acting under them, and from which they receive their yearly Revenue. De Plant. Noe. (p. 222. Edit. Paris.) Pliny the Younger, says, in Commendation of Trajan, that, in his Reign, the Prince’s Dominions were larger than his Patrimony. Paneg. (Cap. L. Num. 2. Edit. Cellar.)
[4. ]Orat. XXXI. entitled Rhodiaca.
[5. ]So we find that the Lands of Arcadia, and those of Attica, were formerly divided in such a Manner that the whole Jurisdiction, (πα̂ν τὸ κράτος) remained to one only of those between whom the Division was made. (Apollodorus, Biblioth. Lib. III. Cap. IX. § 1. and Cap. XIV. § 6. Edit. Paris. Th. Gal.) Grotius.
[6. ]That is, to Foreigners, even living in their own Country. This appears to be our Author’s Meaning from the following Examples. See Chap. VIII. § 26. I should not have made this Remark, had not the learned Gronovius explained the Words of Strangers or Foreigners, settled in our Country without the Right of Citizens. He might have considered, that such Foreigners, while they live in the Country, are subject to the Jurisdiction of the State in the same Manner as the Natives; as our Author acknowledges in several Places. So that we are not to wonder if they cannot make the least Acquisitions there, without infringing the Right of the Sovereign, on whom they themselves depend. Whereas when a Foreigner, living in his own Country, acquires Lands in another, he is a Proprietor not personally subject to the Jurisdiction of the Lord of the Country where the Lands be, and the Jurisdiction in that Case is merely local.
[7. ]Page 25. Edit. Goës. The last Words of this Passage, as quoted by our Author, are, Sed Jurisdictio in agris, qui adsignati sunt, penes eos remansit, ex quorum territorio sumpti sunt. The Words, which are corrupted in the Manuscripts and printed Copies, stand thus, Sed Jurisdictio eis agris, qui adsignati sunt, per eos remansit. The Correction of penes instead of per, is incontestable, and is admitted by Salmasius, in his Exercitations onSolinus. But the same cannot be said of that of in agris, in the Place of eis agris. The late Mr. Vander Goes, Counsellor in the sovereign Court of Holland, who published a beautiful Edition of the antient Writers, De Re Agrariâ, in 1674, reads cis agros. This Conjecture comes nearer to the Manuscripts; and the other forms a Sense not conformable to Truth, as that learned Commentator has shewn against Salmasius, who was of Opinion, that the Magistrates of the neighbouring Country retained a Jurisdiction over the Lands taken from the former Possessors. But it is evident from other Passages of antient Authors, who have written on this Subject, that when a certain Extent of Land was taken out of the Neighbourhood, to make up what was wanting to a Colony, tho’ that whole Extent had been measured by Acres, yet, if only Part of it was assigned to those of the Colony, the Remainder still belonged to the Territory and Jurisdiction of those from whom it was taken. Which is what Siculus Flaccus means by the Words thus corrected.
[8. ]Ἐγκτήματα. Κτήματα. The Passage runs thus, They (the Cardians) pretend that they inhabit their own Land, and deny it to belong to you. They likewise affirm, that your Lands are ἐγκτήματα, as lying in the Country of others; and that those by them possessed, are κτήματα, as being their own Property. p. 34. Edit. Basil. 1572. where it is evident, our Author has directly reversed the Signification of the two Words in Question.
[1 ]Or rather such Things really belong either to the whole Body of the People, or to him who represents them; so that the Liberty enjoyed by particular Persons, of appropriating them to themselves by the Right of prior Occupancy, arises only from a Concession of the Sovereign, either express or tacit; who may revoke it, when, and as often, as he pleases. See Pufendorf, as quoted in Note 1 on § 5. of Book II.
[2. ]See Chap. VIII. of this Book, §1.
[1 ]See Pufendorf, B. IV. Chap. IV. § 15. In Order to acquire or preserve one’s Right, it doth not seem necessary that the Person should be actually in a Condition of making his Title good, or that he should even know his Right; as a Man may be wronged without knowing or comprehending the Matter. It is sufficient that he may hereafter have the Knowledge and Power, requisite for accepting of and exercising his Right. Till that Time, tho’ the Right is suspended, it is not therefore less real, in its own Nature, and independent of positive Laws, which, in my Opinion, in this Case only, afford their Protection to such as are not in a Condition of prosecuting their own Right.
[1 ]Concerning the Sea. Mr. Barbeyrac adds, and Rivers. Because in the foregoing Chapter the Author treats of the Dominion of both the Sea and Rivers; and in this goes on with, and finishes the Examination of Questions relating to Rivers, and even begins with them. He thinks he may lawfully follow his Author’s Thought, rather than his Expression; and imagines the two Words & fluminibus were omitted by the Printer.
[2. ]Neither of these is necessary, as appears from what we have said on the preceding Chapter.
[1 ]See Pufendorf, B. IV. Chap. V. § 8.
[1 ]Digest. Lib. I. Tit. VIII. De divisione rerum, &c. Leg. II. § 1. See also Institut. Lib. II. Tit. I. § 1. Mr. De Bynckershoek, in his Dissertation de Dominio Maris, Cap. IX. p. 73, &c. says, the Reason why the Roman Lawyers rank the Sea among Things that are common, is, because in their Time the greatest Part of the Sea was not occupied, or, perhaps, no Part of it, beyond the Space which Men can command from the Land.
[2. ]Lib. II. Tit. I. § 1.
[3. ]Digest. Lib. VIII. Tit. IV. Communia praediorum, &c. Leg. XIII.
[4. ]Digest. Lib. XLIII. Tit. VIII. Ne quid in loco pub. &c. Leg. III. § 1.
[5. ]Lib. II. Tit. I. § 1, 2. Mr. Noodt, in his Probabilia Juris, Lib. I. Cap. VII. VIII. has proved at large, that, according to the Language of the Antients on this Subject, the Terms publick and common meant the same thing. Whence he concludes, that either Tribonius forged a new Division, for want of understanding Marcian, whose Words he copies; or that here is an Error in the Text; so that, according to the Conjecture of some learned Men, instead of Quaedam naturali jure communia sunt omnium; quaedam publica, we ought to read, Quaedam naturali jure communia sunt omnium, quae eadem publica. That is, Some Things are common to all Men, which are also called publick. What that excellent Lawyer says on this Head, seems to me very plausible. As to the Merits of the Question itself, the Antients were agreed that, tho’ all Mankind are to be allowed an innocent Use of Shores, Rivers, &c. yet such Things still depended on the Jurisdiction of the People, so that if a Man had a Mind to build; for Example, on the Sea-Coast, a Permission from the Magistrate was necessary. See the Law cited hereafter, in Note 10. and Mr. Noodt, Probab. Juris, Lib. IV. Cap. I. This being granted, I do not see how we can avoid conceiving an Idea of Property, if we would think and reason justly. I easily conceive that the Jurisdiction of the Sovereign is reconcilable with the Property of particular Persons, in the Lands lying in his Territories; because that Jurisdiction, and that Property, tho’ separate, have an equal Tendency toward hindering any but the Proprietor and the Sovereign from having a Right to demand in Rigour a free Use of a Land. But I do not comprehend how Jurisdiction can be compatible with a Community, properly so called, of the Place over which this Jurisdiction is exercised; the Establishment of one, in my Opinion, is the Destruction of the other. Besides all that is said of this Community, implies no more at the Bottom than the Liberty of making an innocent Use of the Sea, Banks, Rivers, &c. which depend on another Man’s Jurisdiction. Now, on this Foot it no more excludes the Right of Property, than that Jurisdiction, which will plainly appear by the following Example. A Spring which rises in my Grounds, certainly belongs to me, but I am obliged by the Law of Nature, to allow such as want it to drink of it, or draw Water out of it, when that can be done without incommoding my self. Mr. Noodt allows this, after the Antients, Lib. IV. Cap. VII. § 2. And, even according to the Roman Law, the Banks of a River are of publick Use, tho’ they belong to the Proprietors of the adjacent Lands. See Chap. VIII. of this Book, § 8. Note. 1.
[6. ]Thus Michael Attaliates expresses himself, Some Things belong to all Men, as the Air, running Water, the Sea, and the Sea-Shore. (Pragmatic. Tit. II) Grotius.
[7. ]Lib. II. Tit. I. § 2.
[8. ]In the Body of the Greek Law we have this Expression, The Coasts, or Shores, are in every Man’s Power.Basilic. Eclog. Lib. I. Tit. I. Cap. XIII. See also Lib. LIII. Tit. VI. Grotius.
[9. ]Digest. Lib. XLI. Tit. I. De adquir. rerum Dominio. Leg. XIV.
[10. ]Digest. Lib. XLIII. Tit. VIII. Ne quid in loco publico, &c. Leg. III.
[11. ]Quatenus ad utilitatem assumitur. Mr. Barbeyrac, in his Latin Edition, adds perpetuam, which he translates durable; being persuaded that his Author designed to write so, as the Context manifestly requires; the Opposition being imperfect without that Word.
[12. ]Digest. Lib. XLI. Tit. I. De adquir. rerum Dominio, Leg I. The Term here used by Grotius, is Praetor, and the common Reading in the Place quoted is decretum Praetoris. Some, as the learned Gronovius observes, read decretum Principis; which Correction is followed by Mr. Noodt, in his Commentary on the Digest. Lib. I. Tit. VIII. p. 53. But Mr. De Bynkershoek, in his Dissertation De Dominio Maris, Cap. IX. p. 81. expresses his Surprize, that any one could think of such an Alteration in the Text. The Thing is of little Importance, in Regard to the Substance of the Question. Mr. Schulting is likewise of Opinion that the Correction is unnecessary. See his Enarratio primae partis Pandect. Tit. De divisione rerum. §5.
[1 ]The English alledge such an Establishment against the Danes. See Camden’s Reign of Queen Elizabeth, Anno 1600. Grotius.
[2. ]Digest. Lib. XLIV. Tit. III. De diversis tempor. praescript. &c. Leg. VII.
[3. ]Digest. Lib. XLVII. Tit. X. De injuriis & famosis libell. Leg. XIV.
[4. ]Sallust, speaking of the Luxury of his Times, says, Several private Persons beat down Mountains, and built in the Sea. (Bell. Catal. Cap. XIII. Edit. Wech.) Horace reproaches the Romans with straightening the Sea, and contracting the Habitation of the Fishes, by the Moles they built. Lib. II. Od. XVIII. v. 20, 21. and Lib. III. Od. I. 33, 34. The same Observation is made by Seneca, in Excerpt. Controv. Lib. V. Controv. V. Pliny tells us, that The Earth was suffered to be washed away by the Waters, to make Way for the Sea. Hist. Nat. Lib. II. Cap. LXIII. The Emperor Alexander Severus raised several magnificent Works at Baiae, in Honour of his Relations, and Ponds of a stupendous Bigness, by letting in the Sea.Lampridius, in his Life. (Cap. XXVI.) Cassiodore in his Time admired those Ponds, as appears from Variar. Lib. IX. Cap. VI. Tibullus represents the Fishes thus secured and screened in the enclosed Spaces of the Sea, as laughing at Storms:
Pliny mentions this Sort of Fish-Ponds, made out of the Sea, Hist. Nat. Lib. XXXI. Cap. VI. See Columella, De Re Rusticâ, Lib. VIII. Cap. XVI. XVII. where he observes, among other Things, that The Luxury of the Wealthy had inclosed the very Seas and Neptune. (p. 377. Edit. Commelin. 1595.) We find something to the same Purpose in St. Ambrose, Hexaem. Lib. V. Cap. X. and in his Treatise of Naboth, Cap. III. as also in several Places of Martial, (viz. Lib. X. Epigr. XXX. ver. 19, &c.) Grotius.
[5. ]Varro tells us, that Lucullus having hollowed a Mountain near Naples, and let the Waters of the Sea into Reservoirs for Fish, which had a Sort of Flux and Reflux, boasted he would not yield to Neptune in the Point of Fishing. (De Re Rusticâ, Lib. III. Cap. XVII. p. 129. Edit. 3. H. Steph.) Plutarch speaks of that celebrated Roman’s Country-Seats, round which he made the Sea pass, and had large Fish Ponds; and adds, that He built Apartments in the Sea. (Whereupon Tubero, the Stoick, called him the Roman Xerxes.) Vit. Lucull. (p. 518. Tom. II. Edit. Wech.) Pliny ascribes that Expression to Pompey the Great. Hist. Nat. Lib. IX. Cap. LIV. Velleius Paterculus relates it in the same Manner. (Lib. II. Cap. XXXIII.) Grotius.
[6. ]Digest. Lib. XLVII. Tit. X. De Injuriis, &c. Leg. XIII. § 7.
[7. ]Πρόθυρα. See Leonis, Novell. LVII. CII. CIII. CIV. Michael Attaliates, Pragmat. Tit. XCV. Harmenopulus, Prochir. Jur. Lib. II. Tit. I. § περὶ προθύρων. See also Cujas, Observ. Lib. XIV. Cap. I. Grotius.
[8. ]But this common Consent of Nations, supposed to have the Force of a Law, is a Thing that will never be proved.
[1 ]There is a certain Space which is supposed to belong to every People who has Lands on the Sea-Shore, without any corporal Act of taking Possession. See Pufendorf, B. IV. Chap. V. § 7, 8. with the Notes.
[2. ]It is not usual to allow the Prescription of long Possession, in Order to obtain Places publick by the Law of Nations. Which proceeds thus, if any one having entirely demolished a Building, which he had raised on the Shore, or abandoned the Building, another Man afterwards building on the same Ground, opposes the Occupier with the said Exception; or if any one, because he hath fished several Years in a Winding of a publick River, hinders another Man of the same Privilege.Digest. Lib. XLI. Tit. III. De usurp. & usucaption. Leg. XLV. In producing this Law, where the most able Lawyers agree there is some Mistake, I have followed the Florentine Edition; only I have used the Word occupanti which appears in other old Editions, instead of occupantis, which can have no Place here. Mr. Noodt, in his Commentary on the first Part of the Digest. p. 54, &c. conjectures that the Words or abandoned the Building, are a Gloss which was afterwards foisted into the Text; and his Explication of this Law appears very ingenious. Others give it a different Sense. The Reader may see Cujas on the Law under Consideration, p. 1165, 1166. Tom. I. Opp. Edit. Fabrott. and Mr. De Bynckershoek’s Dissertation, De Dominio Maris, Cap. IX. p. 85. We have something on the same Subject, in a Dissertation written by Mr. De Toullieu, De Luitione Pignoris, & Rebus morae Facultatis, § 45. to which I refer the Reader with Pleasure.
[1 ]But we have no Right, in Rigour, to pretend that any one should let us pass over his Lands, as I have shewed on the foregoing Chapter.
[1 ]Philo, the Jew, speaking of Kings, says they have no Reason to boast of having made themselves Masters of all the Rivers, and even of Seas infinite in Number, and immense in Extent. (De Plant. Noe, p. 223. Edit. Paris.) Lycophron introduces Cassandra foretelling the Romans should enjoy the Empire of both Sea and Land. (In Allusion to which, Virgil, to flatter Augustus, tells him) Tethys should give all her Waters to purchase him for her Son-in-Law. (Georg. Lib. I. v. 31.) And Julius Firmicus says, that such as are born under a certain Situation of the Stars, shall be Masters of Land and Sea, wherever they lead their Armies. (Mathes. Lib. VI. Cap. I.) Nonnus speaks of Beroe, (or Berythus, a City of Phenicia) as being possessed of the Empire of the Sea. (Dionysiac. Lib. XLIII. p. 1106. Edit. Wech.) Quintus Curtius says, that Tyre was a long Time Mistress, not only of the neighbouring Sea, but of all the Seas where her Ships had sailed. (Lib. IV. Cap. IV. Num. 19.) Hence arose the proverbial Expression Maria Tyria; the Tyrian Seas.Festus under the Word Tyria. The Athenians and Lacedemonians, as Isocrates observes, had in their Turns the Empire of the Sea, so that as each of them prevailed, they held most of the Cities (of Greece) in Subjection. (Panathen. p. 243. Edit. H. Steph.) Demosthenes says, The Lacedemonians formerly commanded all the Sea, and all the Land (of Greece). Philip. III. (p. 49. Edit. Basil. 1572. See also his Oration on the Crown, p. 326.) The Author of the Life of Timotheus, (Cornelius Nepos) says, that after the Exploits of that General, the Lacedemonians willingly yielded the Athenians the Empire of the Sea, which they had long disputed with that People. (Cap. II. Num. 2. Edit. Cellar.) The Author of the Oration concerning the Island of Halonesos, which appears among the Works of Demosthenes, says, that Philip had no other View than that the Athenians should put him in Possession of the Sea, and acknowledge they could not keep the Dominion of the Sea without him. (p. 31.) According to the Emperor Julian, Alexander the Great, in his military Expeditions, proposed to make himself Master of the whole Earth and Sea. (Orat. III. p. 107. Edit. Spanhem.) Josephus, the Son of Gerion, makes Antiochus Epiphanes, one of Alexander’s Successors, ask, Are not the Earth and the Sea mine? (Lib. III. Cap. XII. Edit. Munster.) Ptolomy Philadelphus, another of his Successors, is commended by Theocritus for extending his Dominions over much Sea and Land. Idyll. XVII. ver. 76, 91, 92. So much for the Grecians, it is now Time to speak of the Romans. Hannibal, speaking to Scipio Africanus, the first of that Name, tells him that The Carthaginians, enclosed by the Shores of Africa, consented that the Romans, since such was the Pleasure of the Gods, should command elsewhere, both by Sea and Land.Livy, (Lib. XXX. Cap. XXX. Num. 26) Claudian represents the other Scipio, as subjecting the Spanish Ocean to the Laws of Rome, (De secundo Consul. Stilicon. Praef. ver. 7, 8.) Hence it is that the Roman Authors, as Sallust, Florus, Pomponius Mela, &c. frequently call the inward Sea our Sea. (See Bell. Jugurth. Cap. XX. with Wasse’s Notes. Florus, Lib. III. Cap. VI. Numb. 9. Pomponius Mela, Lib. I. Cap. I. Numb. 34. Edit. Wass. 1700.) But Dionysius Halicarnassensis goes still further, and pretends that the Romans were Masters not only of all the Sea on this Side of Hercules’ s Pillars, but also of the Ocean, where it is navigable. (Antiq. Rom. Lib. I. Cap. III. p. 3. Edit. Oxon.) Dion Cassius says, They reigned over almost the whole Earth and Sea. [Grotius perhaps quotes this Historian by Heart, instead of the Orator Themistius, who, speaking of Theodosius the Emperor, says, What would you say of one who commands almost the whole Earth and Sea? Orat. V.] Appian, in his Preface, describing the Grandeur of the Roman Empire, comprehends in it the Euxin Sea, the Propontis, the Hellespont, the Egean, Pamphylian, and Aegyptian Seas. A Decree of the Senate gave Pompey a Power of commanding all the Sea on this Side of Hercules’ s Pillars.Appian. Alexandr. (Bell. Mithridat. p. 391. Edit. Amstel. 235. H. Steph.) Plutarch, (in his Life of Pompey, p.631. Tom I. Edit. Wech.) Ovid introduces Jupiter foretelling, that even the Sea should obey Augustus. Metam. Lib. XV. ver. 831. An antient Inscription in Honour of that Emperor, tells us, He shut the Temple of Janus, after he had established Peace both by Sea and Land. (In Gruter 1 Edit. p. 194. Numb. 4.) See also Suetonius, in his Life, (Cap. XXII.) That Historian elsewhere speaks of two Fleets which Augustus had, one at Misenus, the other at Ravenna, for guarding the upper and the lower Sea. (Cap. XLIX.) Valerius Maximus tells Tiberius, that he had been made Master of the Earth and Sea, by the joint Consent of Gods and Men. (Prefat. p. 2.) Philo the Jew observes, that the same Emperor held the Empire of the Earth and Sea twenty-three Years. (De Legat. ad Caium. p. 1012. Edit. Paris.) He attributes the like Extent of Dominions to Caligula, Successor to Tiberius. (Ibid. p. 993.) Josephus, the Jewish Historian, calls Vespasian Lord of the Earth and Sea. (De Bell. Jud. Lib. III. Cap. XXVII.) Aristides says the same of Marcus Antoninus in several Places. (See, for Example, Orat. IX. p. 119. Tom. 1.) Procopius relates, that there were some Statues of the Emperor, representing him holding the World in one Hand, in Order to signify that the whole Earth and Sea were subject to him. (De Aedific. Justinian. Cap. II. de Augustaeo). Constantine Monomachus, Emperor of the East, is stiled Lord and Master of the Earth and Sea. (Joannes, Episcop. in Euchaït. p. 51.) The Egean Sea is reckoned among the Provinces of the Roman Empire. (ConstantinePorphyrogon. Lib. I. Them. XVII.) The antient Francs commanded the Sea of Marseille, and the adjacent Places; as we learn from Procopius, Hist. Gothic. Lib. III. (Cap. XXXIII.) In the Letter of Lewis II. to Basil. Emperor of the East, we read of Nicetas, a noble Venetian, who was Master of the Adriatick Sea. (Goldast. Constit. Imperial. Tom. I. p. 118.) Concerning the Jurisdiction of the Republick of Venice, see Paruta, Lib. VII. and the particular History of the Uscochi. The Bounds of the Kingdom of Sweden are in the Middle of the Streights of Oresand.Joannes Magnus, Hist. Metropolit. seu Episcop. & Archiepiscop. Upsal. Cap. XV. Add to all this the modern Lawyers on the Decretals, in VI. Lib. I. Tit. VI. De Electione, &c. Cap. III. Bartolus, Angelus, Felinus on Lib. V. Tit. VI. De Judaeis. Cap. XVII. Baldus, on the Title of the Digest. de rerum divisione, Col. II. Afflictus, on the Title Quae sunt Regalia.Feud. Lib. II. Tit. LVI. Cacheranus, Decis. Pedemont. CLV. Numb. 4. where it is said, after Baldus, that this Right is established through the whole World. And lastly, Alberic Gentilis, Advocat. Hispan. Lib. 1. Cap. VIII. Grotius.
[2. ]Thucydides, Lib. V. Cap. LVI. Edit. Oxon.
[3. ]Idem. Lib. IV. Cap. CXVIII.
[4. ]Lib. XLVI. p. 211. Edit. H. Steph.
[5. ]Halieutic. Lib. III. ver. 4, 5.
[6. ]Orat. II. ad Tarsenses, § 34.
[7. ]Aeneid. I. ver. 235, 236.
[8. ]It is agreed, that the Nile is the largest of all those Rivers which flow into the Sea, subject to the Romans, called by the Grecians ἡ εἴσω θάλασσα. Sallust writes that The Ister is the next to it in Greatness. Noct. Attic. Lib. X. Cap. VII.
[9. ]Georg. Lib. IV. p. 272. Edit. Amst. (180, Paris.)
[10. ]Lib. XII. p. 821. Edit. Amst. 545, Paris.
[11. ]That is, when a Prince, or a People, keeps a Fleet constantly on Foot, in a certain Place of the Sea, with a Design to make themselves Masters of it. Mr. De Bynckershoek, (De Dom. Mari, Cap. IX.) draws his Advantage from this Confession against our Author. If, says he, a Prince or a People may, with a small Fleet, make themselves Masters of a small Part of the Sea, why may they not, with a larger Fleet, make themselves Masters of a larger Part of the Seas, and with several Fleets, of the whole Mediterranean, as the Romans formerly did?
[1 ]The Romans formerly exacted an Impost of the Islands as far as Pharos of Alexandria; as appears from Ammianus Marcellinus, Lib. XXII. (Cap. XVI. p. 373. Edit. Vales. Gron.) Caesar, speaking of the Veneti, the antient People of Vennes, observes, that Tho’ their Sea was very impetuous, entirely open, and furnished with but few Ports, they received a Tribute from almost all who sailed in that Sea. (De Bell. Gall. Lib. III. Cap. VIII.) Florus tells us, that after the first Punic War, the Romans (the Carthaginians) were ashamed of the Loss of the Sea and Islands, and being obliged to pay Tribute, which they had been used to command from others. (Lib. II. Cap. VI. Num. 2.) Pliny, in his Nat. Hist. Lib. VI. Cap. XXII. speaks of one Annius Plocamus, who had farmed the Customs of the Red Sea. And in the following Chapter, where he treats of the Navigation to the Indies, he says, The Ships that sailed thither every Year, carried Companies of Bow-Men on board, as a Defence against Pirates. (p. 350. Edit. Elziv.) As to the Quantity of Customs, see Cambden’s excellent Discourse, in his Life of Queen Elizabeth, Anno 1582, and 1602. Grotius.
[2. ]In all Editions of this Work, we have Strabo, Lib. XVII. and Pliny, Hist. Nat. Lib. XIX. Cap. IV. in the Margin. The first Passage is p. 1149. Edit. Amst. (798, Paris.) but I can find nothing like the second. Our Author certainly had his Eye on those Passages of Pliny which he had quoted in the preceding Note.
[3. ]Herodian speaks of this Impost which the Byzantins demanded, in his History of the Emperor Severus. (Lib. III. Cap. I. Num. II. Edit. Boecler.) Procopius, both in his Publick and Secret History, (Cap. XXV.) mentions the antient Impost laid on the Hellespont; as also, the new one established at the Entrance of the Euxin Sea, and in the Streights of Byzantium.Theophanes tells us, that the Byzantin Impost was paid in the Place where the Church of Blacherns now stands; and that of the Hellespont at Abydos.Agathias, Lib. V. calls the latter an Impost of a Tenth, Δεκατευτήριου. But it was afterwards reduced by the Empress Irene. Immanuel Comnenus gave some Monasteries maritime Revenues, θαλάσσια δίκαια, as we are assured by Theodorus Balsamon, in Concil. Chalced. Can. IV. and Can. XII. Synod. VII. Grotius.
[4. ]In B. V. of his History, Chap. XLIV.
[5. ]He says in the same Place, that when Thrasibulus took Possession of Byzantium, the Athenians became Masters of the Hellespont. Orat. ad Leptinem. (p. 369). On which the Scholiast Ulpian observes, that The Athenians received the Tenth of the Value of all the Goods and Merchandize that sailed through that Sea: That the Athenians sold those Customs, and thus enriched their Country. p. 134. Tom. II. Opp. Demosthen. and Aeschin. Ed. Basil.Grotius.
[1 ]Philostratus, whom our Author here quotes in the Margin, speaks only of King Erythras, who, he says, was Master of the Red Sea. Vit. Apollon. Tyan. Lib. III. Cap. XXXV. Edit. Lips. Olear.
[2. ]This is that famous Treaty of Peace, εἰρήνη περιβόητος, as Plutarch terms it, in which it was also stipulated, That the Persians should not come nearer to the Grecian Sea than the Distance of a Horse-Race; that is, XL. Stadia. p. 486, 487. Edit. Wech. in Vit. Cimon. See likewise Diodorus Siculus, Lib. XI. (Cap. XLI.) Isocrates takes Notice of this Treaty in his Penathenaic. (p. 244. Edit. H. Steph.) Grotius.
[3. ]This new Treaty is a chimerical Treaty, as the learned Gronovius remarks. There was none made after the Battle of Salamis, which was soon followed by those of Platea and Mycale. Besides, it appears from the Thing itself, that there is no Difference between those two pretended Articles of Peace; for the Chelidonian Islands are three Islands situated in the Pamphylian Sea, over-against the City of Phaselis; so that it is exactly the same Space of Sea. I do not understand what induced our Author thus to multiply Beings without Necessity, for in the first Edition we read only, Ne qua navis Medica Cyaneas navigaret.
[4. ]Thucydides, Lib. IV. Cap. CXVIII.
[5. ]Polybius, Lib. III. Cap. XXII.
[6. ]Servius, on Aeneid. IV. (628.) observes, that By this Treaty, neither the Romans were allowed to land on the Carthaginian Coasts, nor the Carthaginians on those of the Romans. The People last mentioned, made a like Treaty with the Tarentins, by which they engaged themselves, not to send any of their Ships beyond the Cape of Lacinium. Excerpt. Legat. ex Appiano. We learn from Strabo, that The Carthaginians made a Practice of sinking all foreign Ships which they found sailing toward Sardinia, or Hercules’ s Pillars. Geogr. Lib. XVII. p. 1154. Edit. Amst. (802, Paris.) Grotius.
[7. ]Polybius, Hist. Lib. III. Cap. XXII. In the same Treaty it was stipulated, That no Roman should land in Sardinia, or Libya, unless it was to take in Provisions, or refit their Vessels. Ibid. Cap. XXIV. After the third Punic War, a Complaint was made of the Senate of Carthage for fitting out a Fleet, and raising a naval Army. EpitomeLivii, Lib. XLVIII, XLIX. An Article of the Treaty of Peace with Antiochus obliged that Prince to Have only twelve Ships of War, for keeping his Subjects in Order.Appian, De Bello Syriac. (p. 181. Edit. Amst. 112. H. Steph.) By an Agreement between the Sultan of Egypt and the Grecians, the former was allowed to send two Ships beyond the Bosphorus every Year. Niceph. Gregorius, Lib. IV. The Venetians pretend, that, by Vertue of Several Treaties, no Ship of War ought to enter their Gulf. See Mr. De Thou. Lib. LXXX. at A. C. 1584. (p. 200. Edit. Franckfort.) Grotius.
[8. ]Livy, Lib. XXXVIII. Cap. XXXVIII. Num. 9.
[9. ]True: But still, when Men enter into Treaties, like those under Consideration, they may have a Design of securing to themselves, by such Negotiations, the Property of some one Sea, and obliging others to acknowledge their Right. Mr. Vitriarius, in his Abridgment of our Author, Lib. II. Cap. III. § 18. pretends, that if the Person engaged by such a Treaty, was before that Time Master of the Sea, which he would hinder another contracting Party from using, it would be unnecessary to insert such a Clause. But he forgets what he had himself laid down, after our Author, Lib. II. Cap. XV. viz. that some Treaties turn on Things, before due, even by the Law of Nature.
[10. ]Lib. VIII. Tit. IV. Communia Praediorum, &c. Leg. XIII.
[1 ]Frontinus, De Agrorum Qualitatibus. p. 38. Edit. Goës.
[2. ]Digest. XLI. Tit. I. De adquirendo rerum Dominio. Leg. XVI.
[3. ]Gronovius, and the late Mr. Goes, Editor of the Writers, who treat on the Res Agraria, criticize our Author in this Place, as not rightly understanding the Nature of these three Sorts of Lands, and the Difference made between them by the antient Romans. They tell us, the Limited Lands were not called so, because as to their exterior Extent, they were enclosed by Limits made by the Hands of Man; but because their whole Extent, both interior and exterior, was cut and divided by Limits, which distinguished the Acres, or hundreds of Acres, to be allotted to each of those, to whom the Distribution of those Lands was to be made. Besides, these Sorts of Lands might be bounded by a River; and in that Case, the Portions assigned to such and such Persons, sometimes reached to the River, which served as a Boundary to them. See Aggenus Urbicus, De Controversiâ Agrorum, p. 70. I observe, however, that our Author has some Kind of Authority for his Manner of explaining the Termsin Question; the same Aggenus Urbicus understanding by Limits, whatever is made by the Hand of Man, for determining the Bounds. Comment. p. 46. Mr. Goes indeed maintains, that this Work either doth not belong to him whose Name it bears, or has been corrupted by the Interpolation of a great Number of Falsities and Absurdities. It is certain, however, that the Lands under Consideration were commonly bounded by some exterior Limits, made by the Hand of Man, which determined their just Extent, and this is sufficient for our Author’s Purpose, who, in my Opinion, was not ignorant that the interior Extent was divided by Limits, as well as the exterior.
[4. ]These were such as were given in the Whole to any one City or People, without Division, so that they belonged to the Publick, not to any one in particular. Frontinus, p. 38. Thus the Imposts were paid out of Lands belonging to the Publick, not out of the Property of each private Person. See Mr. Goes’s Notes, p. 153, 198.
[5. ]Per Centurias ac Jugera. An Acre, Jugerum, was a Measure of 120 Feet in Breadth, and 240 in Length. Centuria contained 200, or 250, such Jugera; and was called Centuria, because it was the Portion of a hundred Persons; for no one had less than two Acres or, Jugera; so that it may with good Reason be said, this Sort of Measure does not agree to the Lands in Question, which were measured only by the Extremities. Here again I find our Author has been misled by Aggenus Urbicus’s Commentary on Frontinus; for he says there expressly, that Some give the Name of Centuria to a Measure taken by the Extremities. p. 45. I imagine our Author conceived, that tho’ the Lands under Consideration, were not divided and intersected by Boundaries, yet there was a Necessity of measuring their whole Extent in some Manner, in Order to determine the Measure of their Extremities. He may have taken up this Notion from a Passage in Frontinus, who says, that In many Places the Measurers, tho’ they measured such Lands by their Extremities, formed the Plan of them, as if they were limited. p. 38. But whatever our Author’s Mistake may be, it is sufficient for his Purpose, that the two first Sorts of Lands, which he distinguishes, are opposite to the last, in having fixt Boundaries. Mr. Goes owns that the Emperor Antoninus Pius, who by a Constitution, mentioned in the Digest. De adquirendo rerum Dominio. Lib. XLI. Tit. I. Leg. XVI. refused the Alluvions to the Proprietors of limited Lands, would have reisfused them likewise to a People, in Regard to such Lands as had been given them in the Whole; his Reason is, Because this Land (assigned in gross) has its certain and determinate Extremities.—And, says he, what is it to the Purpose, that one is divided by interior Limits and not the other, as long as there is no Difference in the Exterior? Not. p. 198. I shall however observe another Mistake of our Author, which has escaped the Censure of his Commentators. It is in a short Note on this Place, where, in Order to give his Readers an Example of Lands enclosed within a certain Measure, he refers them to Servius, on the ninth Eclogue of Virgil. Now it is certain, the Lands there mentioned were limited, since the Poet is speaking of such as were taken from the Mantuans, to make up for the Defect of the Territories of Cremona, which Augustus divided among his Soldiers. See that antient Commentator on Verses 7, and 28.
[6. ]Frontinus, p. 38. But Siculus Flaccus tells us, these Lands were called Arcifinales, (or Arcifinii) because every Man appropriated to himself as much Ground as he hoped he should be able to cultivate, and thus kept off his Neighbours, (arcendovicinos) p. 3. The Etymology, given by Gronovius, seems to me more natural, and comes to the same in the Main. He derives it ab arcendis finibus; because such Lands had no Boundaries fixt and determined by any Measure. This is in my Opinion, the very Idea which our Author would give us of these Agriarcifinii; and if he speaks of natural Boundaries, it is because Lands which have such Boundaries, are not usually measured. As Mr. Goes observes, after Frontinus, the Boundaries of the Agri arcifinii were sometimes made by the Hands of Men, and the Disputes which afterwards a rose among Neighbours, made it necessary to limit the Extent of them by some Measure. But it is sufficient, that originally such Lands were in themselves unlimited.
[7. ]Tacitus observes, that Germany was divided from the Sarmatae and the Dacians, either by their mutual Fear, or by Mountains. De morib. Germ. Cap. 1. Num. 1. Pliny, speaking of the Alps, says, We carry away what was designed as Boundaries between different Nations. Hist. Nat. Lib. XXXVI. (Cap. 1.) Grotius.
[8. ]Page 45; Edit Goes.
[9. ]Because their Extent and Bounds are fixed and determined. See Pufendorf, B. IV. Chap. VIII. § 11.
[10. ]See an Example of this Kind in Mariana, Hist. Hisp. Lib. XXIX. Cap. XXIII. in Regard to the River Vedasus, (now called Bidassoa). Grotius.
[11. ]De morib. Germ. (Cap. XXXII. Num. 1.) Spartian, in his Life of the Emperor Hadrian, (Cap. XII.) tells us, that Prince Planted great Posts joined together, like a Sort of Wall, in several Places, (on the Frontiers of the Roman Empire) where there were no Rivers for separating them from the Barbarians.Constantine, Porphyrogennetus, calls the River Phasis σύνορος, as serving for a Boundary. Cap. XLV. Grotius.
[12. ]Lib. XII. Cap. LXXXII. p. 328. Edit. H. Steph.
[13. ]He there speaks of a River, without naming it, which discharged itself into another, not named. The former divided the Country of the Macronians, from that of the Scythinians. De Exped. Cyri. Lib. IV. Cap. VIII. § 1. Edit. Oxon.
[1 ]See a Law in the Digest. referred to in the Margin, which shall be produced, in Note 3. on § 3. of Chap. IX. of this Book.
[2. ]As did formerly the River Bardanus (or rather Vardarus) according to Ann. Comnen. Hist. Lib. 1. (Cap. V.) Grotius.
[3. ]Darius called the Tigris and Euphrates the two great Bulwarks of his Kingdom. Q. Curtius, Lib. IV. Cap. XIV. Num. 10.
[1 ]Thus the Romans, as Gronovius observes, were sole Masters of the Rhine, the Danube, and some other Rivers; because the Barbarians, who inhabited on the opposite Bank, having no Boats, the Romans constantly kept what they called Naves Lusoriae, on them. See Salmasius, on Vopiscus, Vit. Bonosi. Cap. XV.
[1 ]See Pufendorf, B. IV. Chap. VI. § 12.
[2. ]When a Man dies without leaving an Heir: On this is founded a Passage of Justin, which the learned Gronovius quotes in this Place. Imilcar, General of the Carthaginians, having lost his Army in Sicily, by the Plague that raged in that Island, consoles himself, after his Return to Carthage, by observing, that The Enemy had plundered his Camp, not in Quality of Conquerors, but as Persons who seized on such Goods as, by the Death of the Owners, belonged to the first Occupant. Lib. XIX. Cap. III. Num. 6.
[3. ]B. 1. Chap. 1. § 6.
[4. ]See Note 4. on Pufendorf, B. IV. Chap. VIII. § 12.
[5. ]See Pufendorf, B. IV. Chap. VIII. § 3.
[6. ]Jus in rem, or rather, in re, as we commonly say, in Opposition to Jus ad rem; a Distinction used by the scholastick Interpreters of the Roman Law. The Reader may see what I have said on it in my second Note on Pufendorf, B. IV. Chap. IX. § 8. as also Mr. Noodt’s Commentary on the first Part of the Digest. p. 60, 61.
[7. ]Institut. Lib. II. Cap. XXIII. De Fidei commissariis hereditatibus, § 2. Our Author is censured for placing this Right, as he understands it, contrary to the scholastick Notions, among Rights over a Thing. It is observed against him, that, according to the Civil Law, a Legacy bequeathed under a certain Condition, is not acquired by the Legatee, but when the Condition is accomplished by the Event. ’Till that Time, the Legatee is not considered as a Creditor (See Digest. Lib. XLIV. Tit VII. De obligat. & Actionib. Leg. XLII. And Cujas’s publick Lectures on that Law. Tom. VIII. Opp. Edit. Fabrot. p. 400.) and if he dies before the Condition is performed, he even transmits no Hope to his Successors. Much more ought the same to hold good in Regard to an Heir in Trust, while the Condition is depending: As he yet acquires nothing, he has neither a Right over the Thing, nor even a Right to the Thing; and only amuses himself with vain Hopes. All this is true, according to the Roman Law; but, when we consider the Simplicity of natural Law, tho’ the Right of such a Person has no Effect, and may never have any, in Regard to the actual Acquisition of the Thing; it is not therefore less real, or falls less on the Thing. This is evident, because he who is charged with a Feoffment of Trust, cannot dispose of the Goods according to his own Fancy, till the Condition fails entirely.
[8. ]De Benef. Lib. VII. Cap. XII. The Philosopher had said, a little before, that Some Things belong to some Persons, under a certain Condition. Grotius.
[9. ]Orat. Rhod.
[10. ]Lib. XII. p. 558. Edit. Casaub.
[11. ]From a Passage in the Close of the second Book of the Odyssey, it may be gathered, that the Estate of a Man who died without Children, fell to the People. And thus Eustathius explains that Place in the Iliad. B. V. where the Poet says, that The Magistrates of the City divided the Estate, of such a Person,
For by Χηρωστὴς he understands a Magistrate, who undertook the Administration of the Estates of such as left no Children. We learn from History, that something like this was formerly practised in the Kingdom of Mexico.Grotius.
Verses 335, 336. See also Verse 368. But I do not see how the Inference made by our Author can be sufficiently grounded on those Words. It is more probable, that Homer only insinuates, as Madam Dacier observes, that Penelope’s Suitors had agreed, that, if they could get rid of Telemachus, they would make an equal Division of all his Effects among themselves, that thus the Persons rejected by Penelope might have some Sort of Consolation. In Regard to the Passage of the Iliad, the Poet is there speaking of Phenops, an old Trojan, who had only two Sons. Diomedes killed them both, and thus, says the Poet, left their Father sufficient Cause for Mourning and Affliction. Then follow the Words in Question. The Word Χηρωσταὶ does not, in any Greek Author with whom we are acquainted, plainly signify such Magistrates as Eustathius mentions; so that this looks very like an Invention of his own. Pollux and Hesychius make this Word signify distant Relations, who succeed a Father thus deprived of his Children. Madam Dacier indeed thinks the Word Χηρωσταί was not explained by collateral Relations, who had a Right of Succession, till after Homer’s Time. But then she ought first to have proved that Homer speaks of such. I shall here insert her Translation, which gives a great Light to the Original, Dans une Affliction & dans un Deuil, qu’ augmentoit encore la Douleur de voir des Curateurs s’ emparer de sa Succession, pour la conserver à des Collatéraux éloignez, qui la dévoroient déja des Yeux, & auxquelles elle n’étoit pas Destinée. That is, In an Affliction and Mourning, which was encreased by the Grief at seeing the Guardians seize on the Succession, in Order to keep it for distant collateral Relations, who already devoured it with their Eyes, and for whom it was not designed. She here supposes, that these pretended Guardians took the Administration of a Man’s Estate into their Hands, even in his Life-Time, if he died without Children, But where did she learn this? It appears clearly, from a like Passage of Hesiod, that this Division was not made till after the Decease of the Person who left no Issue.
That Lady indeed makes the Χηρωσταὶ here mentioned, those very collateral Relations who enjoyed the Succession. But in Vertue of what does she give a different Sense to this Passage, which visibly treats of the same Thing, and which belongs to a Poet, who lived either at, or very near the same Time with the other? And what Probability is there, that the Administration of a Man’s Estate, who had no Children, was taken out of his Hands, in Order to secure the Succession to his distant Relations? In Reality, this Passage of Homer is not clear enough for proving either what Madam Dacier thinks she finds in it, nor what our Author infers from it. I do not, however, deny, that even in those Times, vacant Estates might be considered as devolving to the Publick. It is certain, that Sovereigns have long attributed to themselves a Right of appropriating such Estates to themselves, with the Consent of the People.
[12. ]See the foregoing Chapter, § 4, 5.