The Online Library of Liberty

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• Introductory Note
• Translator’s Preface
• Ad Principes Popvlosqve Liberos Orbis Christiani
• Capvt I: Iure Gentium Quibusvis Ad Quosvis Liberam Esse Navigationem
• Capvt II: Lusitanos Nullum Habere Ius Dominii In Eos Indos Ad Quos Batavi Navigant Titulo Inventionis
• Capvt III: Lusitanos In Indos Non Habere Ius Dominii Titulo Donationis Pontificiae
• Capvt IV: Lusitanos In Indos Non Habere Ius Dominii Titulo Belli
• Capvt V: Mare Ad Indos Aut Ius Eo Navigandi Non Esse Proprium Lusitanorum Titulo Occupationis
• Capvt VI: Mare Aut Ius Navigandi Proprium Non Esse Lusitanorum Titulo Donationis Pontificiae
• Capvt VII: Mare Aut Ius Navigandi Proprium Non Esse Lusitanorum Titulo Praescriptionis Aut Consuetudinis
• Capvt VIII: Iure Gentium Inter Quosvis Liberam Esse Mercaturam
• Capvt IX: Mercaturam Cum Indis Propriam Non Esse Lusitanorum Titulo Occupationis
• Capvt X: Mercaturam Cum Indis Propriam Non Esse Lusitanorum Titulo Donationis Pontificiae
• Capvt XI: Mercaturam Cum Indis Non Esse Lusitanorum Propriam Iure Praescriptionis Aut Consuetudinis
• Capvt XII: Nulla Aequitate Niti Lusitanos In Prohibendo Commercio
• Capvt XIII: Batavis Ius Commercii Indicani Qua Pace, Qua Indutiis, Qua Bello Retinendum
• Cvm Svb Hoc Tempvs Plvrimae Regis Hispaniarvm Litterae In Manvs Nostras Venissent, Qvibvs Ipsivs Et Lvsitanorvm Institvtvm Manifeste Detegitvr, Operae Pretivm Visvm Est Ex Iis, Qvae Pleraeqve Eodem Erant Argvmento, Binas In Latinvm Sermonem Translatas Exh
• To the Rulers and to the Free and Independent Nations of Christendom
• Chapter I: By the Law of Nations Navigation Is Free to All Persons Whatsoever
• Chapter II: The Portuguese Have No Right By Title of Discovery to Sovereignty Over the East Indies to Which the Dutch Make Voyages
• Chapter III: The Portuguese Have No Right of Sovereignty Over the East Indies By Virtue of Title Based On the Papal Donation
• Chapter IV: The Portuguese Have No Right of Sovereignty Over the East Indies By Title of War
• Chapter V: Neither the Indian Ocean Nor the Right of Navigation Thereon Belongs to the Portuguese By Title of Occupation
• Chapter VI: Neither the Sea Nor the Right of Navigation Thereon Belongs to the Portuguese By Virtue of Title Based On the Papal Donation
• Chapter VII: Neither the Sea Nor the Right of Navigation Thereon Belongs to the Portuguese By Title of Prescription Or Custom
• Chapter VIII: By the Law of Nations Trade Is Free to All Persons Whatsoever
• Chapter IX: Trade With the East Indies Does Not Belong to the Portuguese By Title of Occupation
• Chapter X: Trade With the East Indies Does Not Belong to the Portuguese By Virtue of Title Based On the Papal Donation
• Chapter XI: Trade With the East Indies Does Not Belong to the Portuguese By Title of Prescription Or Custom
• Chapter XII: The Portuguese Prohibition of Trade Has No Foundation In Equity
• Chapter XIII: The Dutch Must Maintain Their Right of Trade With the East Indies By Peace, By Treaty, Or By War
• Appendix Two Letters of Philip Iii, King of Spain
• Letter I
• Letter Ii

CHAPTER V

Neither the Indian Ocean nor the right of navigation thereon belongs to the Portuguese by title of occupation

If therefore the Portuguese have acquired no legal right over the nations of the East Indies, and their territory and sovereignty, let us consider whether they have been able to obtain exclusive jurisdiction over the sea and its navigation or over trade. Let us first consider the case of the sea.

Now, in the legal phraseology of the Law of Nations, the sea is called indifferently the property of no one (res nullius), or a common possession (res communis), or public property (res publica). It will be most convenient to explain the signification of these terms if we follow the practice of all the poets since Hesiod, of the philosophers and jurists of the past, and distinguish certain epochs, the divisions of which are marked off perhaps not so much by intervals of time as by obvious logic and essential character. And we ought not to be criticised if in our explanation of a law deriving from nature, we use the authority and definition of those whose natural judgment admittedly is held in the highest esteem.

It is therefore necessary to explain that in the earliest stages of human existence both sovereignty and common possession had meanings other than those which they bear at the present time. 1 For nowadays sovereignty means a particular kind of proprietorship, such in fact that it absolutely excludes like possession by any one else. On the other hand, we call a thing ‘common’ when its ownership or possession is held by several persons jointly according to a kind of partnership or mutual agreement from which all other persons are excluded. Poverty of language compels the use of the same words for things that are not the same. And so because of a certain similarity and likeness, our modern nomenclature is applied to that state of primitive law. Now, in ancient times, ‘common’ meant simply the opposite of ‘particular’; and ‘sovereignty’ or ‘ownership’, meant the privilege of lawfully using common property. This seemed to the Scholastics 1 to be a use in fact but not in law, because what now in law is called use, is a particular right, or if I may use their phraseology, is, in respect to other persons, a privative right.

In the primitive law of nations, which is sometimes called Natural Law, and which the poets sometimes portray as having existed in a Golden Age, and sometimes in the reign of Saturn or of Justice, there was no particular right. As Cicero says: ‘But nothing is by nature private property’. And Horace: 2 ‘For nature has decreed to be the master of private soil neither him, nor me, nor anyone else’. For nature knows no sovereigns. Therefore in this sense we say that in those ancient times all things were held in common, meaning what the poets do when they say that primitive men acquired everything in common, and that Justice maintained a community of goods by means of an inviolable compact. And to make this clearer, they say that in those primitive times the fields were not delimited by boundary lines, and that there was no commercial intercourse. Avienus says: 3 ‘It seemed that all lands without distinction were common to all’.

The word ‘seemed’ is rightly added, owing to the changed meaning of the words, as we have noted above. But that kind of common possession relates to use, as is seen from a quotation from Seneca: 1

• “Every path was free,
• All things were used in common.”

According to his reasoning there was a kind of sovereignty, but it was universal and unlimited. For God had not given all things to this individual or to that, but to the entire human race, and thus a number of persons, as it were en masse, were not debarred from being substantially sovereigns or owners of the same thing, which is quite contradictory to our modern meaning of sovereignty. For it now implies particular or private ownership, a thing which no one then had. Avienus has said very pertinently: 2 ‘All things belonged to him who had possession of them’.

It seems certain that the transition to the present distinction of ownerships did not come violently, but gradually, nature herself pointing out the way. For since there are some things, the use of which consists in their being used up, either because having become part of the very substance of the user they can never be used again, or because by use they become less fit for future use, it has become apparent, especially in dealing with the first category, such things as food and drink for example, that a certain kind of ownership is inseparable from use. 3 For ‘own’ implies that a thing belongs to some one person, in such a way that it cannot belong to any other person. By the process of reasoning this was next extended to things of the second category, such as clothes and movables and some living things.

When that had come about, not even immovables, such, for instance, as fields, could remain unapportioned. For although their use does not consist merely in consumption, nevertheless it is bound up with subsequent consumption, as fields and plants are used to get food, and pastures to get clothing. There is, however, not enough fixed property to satisfy the use of everybody indiscriminately.

When property or ownership was invented, the law of property was established to imitate nature. For as that use began in connection with bodily needs, from which as we have said property first arose, so by a similar connection it was decided that things were the property of individuals. This is called ‘occupation’, a word most appropriate to those things which in former times had been held in common. It is this to which Seneca alludes in his tragedy Thyestes,

And in one of his philosophical writings he also says: 2 ‘The equestrian rows of seats belong to all the equites; nevertheless, the seat of which I have taken possession is my own private place’. Further, Quintilian remarks 3 that a thing which is created for all is the reward of industry, and Cicero says 4 that things which have been occupied for a long time become the property of those who originally found them unoccupied.

This occupation or possession, however, in the case of things which resist seizure, like wild animals for example, must be uninterrupted or perpetually maintained, but in the case of other things it is sufficient if after physical possession is once taken the intention to possess is maintained. Possession of movables implies seizure, and possession of immovables either the erection of buildings or some determination of boundaries, such as fencing in. Hence Hermogenianus, in speaking of separate ownerships, adds the boundaries set to the fields and the buildings thereon constructed. 1 This state of things is described thus by the poets Vergil and Ovid:

• “Then toils for beasts, and lime for birds, were found,” 2
• Then first men made homes.
• “Then landmarks limited to each his right,
• For all before was common as the light.” 3

In still another place, as Hermogenianus points out, Ovid praises commerce, for the sake of which: 4

• ‘Ships in triumph sail the unknown seas’.

At the same time, however, states began to be established, and so two categories were made of the things which had been wrested away from early ownership in common. For some things were public, that is, were the property of the people (which is the real meaning of that expression), while other things were private, that is, were the property of individuals. Ownership, however, both public and private, arises in the same way. On this point Seneca says: 5 ‘We speak in general of the land of the Athenians or the Campanians. It is the same land which again by means of private boundaries is divided among individual owners’. ‘For each nation’, Seneca says in another place, ‘made its territories into separate kingdoms and built new cities’. 1 Thus Cicero says: “On this principle the lands of Arpinum are said to belong to the Arpinates, the Tusculan lands to the Tusculans; and similar is the assignment of private property. Therefore, inasmuch as in each case some of those things which by nature had been common property became the property of individuals, each one should retain possession of that which has fallen to his lot.” 2 On the other hand Thucydides 3 calls the land which in the division falls to no nation, ἀόριστος, that is, undefined, and undetermined by boundaries. 4

Two conclusions may be drawn from what has thus far been said. The first is, that that which cannot be occupied, or which never has been occupied, cannot be the property of any one, because all property has arisen from occupation. The second is, that all that which has been so constituted by nature that although serving some one person it still suffices for the common use of all other persons, is today and ought in perpetuity to remain in the same condition as when it was first created by nature. This is what Cicero meant when he wrote: “This then is the most comprehensive bond that unites together men as men and all to all; and under it the common right to all things that nature has produced for the common use of man is to be maintained.” 5 All things which can be used without loss to any one else come under this category. Hence, says Cicero, comes the well known prohibition: 6 ‘Deny no one the water that flows by’. For running water considered as such and not as a stream, is classed by the jurists among the things common to all mankind; as is done also by Ovid: 1 ‘Why do you deny me water? Its use is free to all. Nature has made neither sun nor air nor waves private property; they are public gifts’.

He says that these things are not by nature private possession, but that, as Ulpian claims, 2 they are by nature things open to the use of all, both because in the first place they were produced by nature, and have never yet come under the sovereignty of any one, as Neratius says; 3 and in the second place because, as Cicero says, they seem to have been created by nature for common use. But the poet uses ‘public’, in its usual meaning, not of those things which belong to any one people, but to human society as a whole; that is to say, things which are called ‘public’ are, according to the Laws of the law of nations, the common property of all, and the private property of none.

The air belongs to this class of things for two reasons. First, it is not susceptible of occupation; and second its common use is destined for all men. For the same reasons the sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries. Now, the same right which applies to the sea applies also to the things which the sea has carried away from other uses and made its own, such for example as the sands of the sea, of which the portion adjoining the land is called the coast or shore. 4 Cicero therefore argues correctly: 5 ‘What is so common as the sea for those who are being tossed upon it, the shore for those who have been cast thereon’. Vergil also says that the air, the sea, and the shore are open to all men.

These things therefore are what the Romans call ‘common’ to all men by natural law, 1 or as we have said, ‘public’ according to the law of nations; and indeed they call their use sometimes common, sometimes public. Nevertheless, although those things are with reason said to be res nullius, so far as private ownership is concerned, still they differ very much from those things which, though also res nullius, have not been marked out for common use, such for example as wild animals, fish, and birds. For if any one seizes those things and assumes possession of them, they can become objects of private ownership, but the things in the former category by the consensus of opinion of all mankind are forever exempt from such private ownership on account of their susceptibility to universal use; and as they belong to all they cannot be taken away from all by any one person any more than what is mine can be taken away from me by you. And Cicero says that one of the first gifts of Justice is the use of common property for common benefit. The Scholastics would define one of these categories as common in an affirmative, the other in a privative sense. This distinction is not only familiar to jurists, but it also expresses the popular belief. In Athenaeus for instance the host is made to say that the sea is the common property of all, but that fish are the private property of him who catches them. And in Plautus’ Rudens when the slave says: 2 ‘The sea is certainly common to all persons’, the fisherman agrees; but when the slave adds: ‘Then what is found in the common sea is common property’, he rightly objects, saying: ‘But what my net and hooks have taken, is absolutely my own’.

Therefore the sea can in no way become the private property of any one, because nature not only allows but enjoins its common use. 1 Neither can the shore become the private property of any one. The following qualification, however, must be made. If any part of these things is by nature susceptible of occupation, it may become the property of the one who occupies it only so far as such occupation does not affect its common use. This qualification is deservedly recognized. For in such a case both conditions vanish through which it might eventuate, as we have said, that all of it would pass into private ownership.

Since therefore, to cite Pomponius, building is one kind of occupation, it is permissible to build upon the shore, if this can be done without inconvenience to other people; 2 that is to say (I here follow Scaevola) if such building can be done without hindrance to public or common use of the shore. And whoever shall have constructed a building under the aforesaid circumstances will become the owner of the ground upon which said building is; because this ground is neither the property of any one else, nor is it necessary to common use. It becomes therefore the property of the occupier, but his ownership lasts no longer than his occupation lasts, inasmuch as the sea seems by nature to resist ownership. For just as a wild animal, if it shall have escaped and thus recovered its natural liberty, is no longer the property of its captor, so also the sea may recover its possession of the shore.

We have now shown that whatever by occupation can become private property can also become public property, that is, the private property of a whole nation. 3 And so Celsus considered the shore included within the limits of the Roman Empire to be the property of the Roman people. There is not therefore the least reason for surprise that the Roman people through their emperors or praetors was able to grant to its subjects the right of occupying the shore. This public occupation, however, no less than private occupation, was subject to the restriction that it should not infringe on international rights. Therefore the Roman people could not forbid any one from having access to the seashore, 1 and from spreading his fishing nets there to dry, and from doing other things which all men long ago decided were always permissible.

The nature of the sea, however, differs from that of the shore, because the sea, except for a very restricted space, can neither easily be built upon, nor inclosed; if the contrary were true yet this could hardly happen without hindrance to the general use. Nevertheless, if any small portion of the sea can be thus occupied, the occupation is recognized. The famous hyperbole of Horace must be quoted here: “The fishes note the narrowing of the waters by piers of rock laid in their depths.” 2

Now Celsus holds that piles driven into the sea belong to the man who drove them. 3 But such an act is not permissible if the use of the sea be thereby impaired. And Ulpian says that whoever builds a breakwater must see to it that it is not prejudicial to the interests of any one; for if this construction is likely to work an injury to any one, the injunction ‘Nothing may be built on public property’ would apply. Labeo, however, holds that in case any such construction should be made in the sea, the following injunction is to be enforced: ‘Nothing may be built in the sea whereby the harbor, the roadstead, or the channel be rendered less safe for navigation’. 4

Now the same principle which applies to navigation applies also to fishing, namely, that it remains free and open to all. Nevertheless there shall be no prejudice if any one shall by fencing off with stakes an inlet of the sea make a fish pond for himself, and so establish a private preserve. Thus Lucullus once brought the water of the sea to his villa by cutting a tunnel through a mountain near Naples. 1 I suspect too that the seawater reservoirs for fish mentioned by Varro and Columella were of this sort. And Martial had the same thing in mind when he says of the Formian villa of Apollinaris: 2 ‘Whenever Nereus feels the power of Aeolus, the table safe in its own resources laughs at the gale’. Ambrose also has something to say on the same subject: 3 ‘You bring the very sea into your estates that you may not lack for fish’. In the light of all this the meaning of Paulus is clear when he says 4 that if any one has a private right over the sea, the rule uti possidetis applies. This rule however is applicable only to private suits, and not to public ones, among which are also to be included those suits which can be brought under the common law of nations. But here the question is one which concerns the right of use arising in a private suit, but not in a public or common one. For according to the authority of Marcianus whatever has been occupied and can be occupied 5 is no longer subject to the law of nations as the sea is. Let us take an example. If any one had prevented Lucullus or Apollinaris from fishing in the private fish ponds which they had made by inclosing a small portion of the sea, according to the opinion of Paulus they would have the right of bringing an injunction, not merely an action for damages based on private ownership. 1

Indeed, if I shall have staked off such an inclosure in an inlet of the sea, just as in a branch of a river, and have fished there, especially if by doing so continuously for many years I shall have given proof of my intention to establish private ownership, I shall certainly prevent any one else from enjoying the same rights. I gather from Marcianus that this case is identical with that of the ownership of a lake, and it is true however long occupation lasts, as we have said above about the shore. But outside of an inlet this will not hold, for then the common use of the sea might be hindered. 2

Therefore if any one is prevented from fishing in front of my town house or country seat, it is a usurpation, but an illegal one, although Ulpian, who rather makes light of this usurpation, does say that if any one is so prevented he can bring an action for damages. 3 The Emperor Leo, whose laws we do not use, contrary to the intent of the law, changed this, and declared that the entrances, or vestibules as it were, to the sea, were the private property of those who inhabited the shore, and that they had the right of fishing there. 4 However he attached this condition, that the place should be occupied by certain jetty or pile constructions, such as the Greeks call ἐποχαί, thinking doubtless that no one who was himself allowed to fish anywhere in the sea would grudge any one else a small portion of it. To be sure it would be an intolerable outrage for any one to snatch away, even if he could do so, from public use a large area of the sea; an act which is justly reprehended by the Holy Man, 5 who says: ‘The lords of the earth claim for themselves a wide expanse of sea by jus mancipii, and they regard the right of fishing as a servitude over which their right is the same as that over their slaves. That gulf, says one, belongs to me, and that gulf to some one else. They divide the very elements among themselves, these great men’!

Therefore the sea is one of those things which is not an article of merchandise, 1 and which cannot become private property. Hence it follows, to speak strictly, that no part of the sea can be considered as the territory of any people whatsoever. Placentinus seems to have recognized this when he said: ‘The sea is a thing so clearly common to all, that it cannot be the property of any one save God alone’. Johannes Faber 2 also asserts that the sea has been left sui juris, and remains in the primitive condition where all things were common. If it were otherwise there would be no difference between the things which are ‘common to all’, and those which are strictly termed ‘public’; no difference, that is, between the sea and a river. A nation can take possession of a river, as it is inclosed within their boundaries, with the sea, they cannot do so.

Now, public territory arises out of the occupation of nations, just as private property arises out of the occupation of individuals. This is recognized by Celsus, who has drawn a sharp distinction between the shores of the sea, 3 which the Roman people could occupy in such a way that its common use was not harmed, and the sea itself, which retained its primitive nature. In fact no law intimates a contrary view. 4 Such laws as are cited by writers who are of the contrary opinion apply either to islands, which evidently could be occupied, or to harbors, which are not ‘common’, but ‘public’, that is, ‘national’.

Now those who say that a certain sea belonged to the Roman people explain their statement to mean that the right of the Romans did not extend beyond protection and jurisdiction; this right they distinguish from ownership. Perchance they do not pay sufficient attention to the fact that although the Roman People were able to maintain fleets for the protection of navigation and to punish pirates captured on the sea, it was not done by private right, but by the common right which other free peoples also enjoy on the sea. We recognize, however, that certain peoples have agreed that pirates captured in this or in that part of the sea should come under the jurisdiction of this state or of that, and further that certain convenient limits of distinct jurisdiction have been apportioned on the sea. Now, this agreement does bind those who are parties to it, 1 but it has no binding force on other nations, nor does it make the delimited area of the sea the private property of any one. It merely constitutes a personal right between contracting parties.

This distinction so conformable to natural reason is also confirmed by a reply once made by Ulpian. Upon being asked whether the owner of two maritime estates could on selling either of them impose on it such a servitude as the prohibition of fishing in a particular part of the sea, he replied that the thing in question, evidently the sea, could not be subjected to a servitude, because it was by nature open to all persons; but that since a contract made in good faith demands that the condition of a sale be respected, the present possessors and those who succeed to their rights were bound to observe that condition. It is true that the jurist is speaking of private estates and of private law, but in speaking here of the territory of peoples and of public law the same reasoning applies, because from the point of view of the whole human race peoples are treated as individuals.

Similarly, revenues levied on maritime fisheries are held to belong to the Crown, but they do not bind the sea itself or the fisheries, but only the persons engaged in fishing. 1 Wherefore subjects, for whom a state or a ruler is by common consent competent to make laws, will perhaps be compelled to bear such charges, but so far as other persons are concerned the right of fishing ought everywhere to be exempt from tolls, lest a servitude be imposed upon the sea, which is not susceptible to a servitude.

The case of the sea is not the same as that of a river, 2 for as a river is the property of a nation, the right to fish in it can be passed or leased by the nation or by the ruler, in such a way (and the like is true with the ancients) that the lessee enjoys the operation of the injunction de loco publico fruendo by virtue of the clause ‘He who has the right to lease has leased the exclusive right of enjoyment’. 3 Such a condition cannot arise in respect to the sea. Finally those who count fishing among the properties of the Crown have not examined carefully enough the very passage which they cite to prove their contention, as Isernia * and Alvotus † have noticed.

It has therefore been demonstrated 4 that neither a nation nor an individual can establish any right of private ownership over the sea itself (I except inlets of the sea), inasmuch as its occupation is not permissible either by nature or on grounds of public utility. The discussion of this matter has been taken up for this reason, namely, that it may be seen that the Portuguese have not established private ownership over the sea by which people go to the East Indies. For the two reasons that stand in the way of ownership are in this case infinitely more powerful than in all others. That which in other cases seems difficult, is here absolutely impossible; and what in other cases we recognize as unjust is here most barbarous and inhuman.

The question at issue then is not one that concerns an INNER SEA, one which is surrounded on all sides by the land and at some places does not even exceed a river in breadth, although it is well known that the Roman jurists cited such an inner sea in their famous opinions condemning private avarice. No! the question at issue is the OUTER SEA, the OCEAN, that expanse of water which antiquity describes as the immense, the infinite, bounded only by the heavens, parent of all things; the ocean which the ancients believed was perpetually supplied with water not only by fountains, rivers, and seas, but by the clouds, and by the very stars of heaven themselves; the ocean which, although surrounding this earth, the home of the human race, with the ebb and flow of its tides, can be neither seized nor inclosed; nay, which rather possesses the earth than is by it possessed.

Further, the question at issue does not concern a gulf or a strait in this ocean, nor even all the expanse of sea which is visible from the shore. [But consider this!!] The Portuguese claim as their own the whole expanse of the sea which separates two parts of the world so far distant the one from the other, that in all the preceding centuries neither one has so much as heard of the other. Indeed, if we take into account the share of the Spaniards, whose claim is the same as that of the Portuguese, only a little less than the whole ocean is found to be subject to two nations, while all the rest of the peoples in the world are restricted to the narrow bounds of the northern seas. Nature was greatly deceived if when she spread the sea around all peoples she believed that it would also be adequate for the use of them all. If in a thing so vast as the sea a man were to reserve to himself from general use nothing more than mere sovereignty, still he would be considered a seeker after unreasonable power. If a man were to enjoin other people from fishing, he would not escape the reproach of monstrous greed. But the man who even prevents navigation, a thing which means no loss to himself, what are we to say of him?

If any person should prevent any other person from taking fire from his fire or a light from his torch, I should accuse him of violating the law of human society, because that is the essence of its very nature, as Ennius has said:

Why then, when it can be done without any prejudice to his own interests, will not one person share with another things which are useful to the recipient, and no loss to the giver? 2 These are services which the ancient philosophers 3 thought ought to be rendered not only to foreigners but even rendered for nothing. But the same act which when private possessions are in question is jealousy can be nothing but cruelty when a common possession is in question. For it is most outrageous for you to appropriate a thing, which both by ordinance of nature and by common consent is as much mine as yours, so exclusively that you will not grant me a right of use in it which leaves it no less yours than it was before.

Nevertheless, even those who lay burdens upon foreigners, or appropriate things common to all, rely upon a possession which is to some extent real. For since original occupation created private property, therefore detention of a thing, though unjust, gives an appearance of ownership. But have the Portuguese completely covered the ocean, as we are wont to do on land, by laying out estates on it in such a way that they have the right to exclude from that ocean whom they will? Not at all! On the contrary, they are so far from having done so, that when they divide up the world to the disadvantage of other nations, they cannot even defend their action by showing any boundaries either natural or artificial, but are compelled to fall back upon some imaginary line. Indeed, if that were a recognized method, and such a delimitation of boundaries were sufficient to make possession valid, our geometers long since would have got possession of the face of the earth, our astronomers of the very skies.

But where in this case is that corporal possession or physical appropriation, without which no ownerships arise? There appears to be nothing truer than what our learned jurists have enunciated, namely, 1 that since the sea is just as insusceptible of physical appropriation as the air, it cannot be attached to the possessions of any nation.

But if the Portuguese call occupying the sea merely to have sailed over it before other people, and to have, as it were, opened the way, could anything in the world be more ridiculous? For, as there is no part of the sea on which some person has not already sailed, it will necessarily follow that every route of navigation is occupied by some one. Therefore we peoples of today are all absolutely excluded. Why will not those men who have circumnavigated the globe be justified in saying that they have acquired for themselves the possession of the whole ocean! But there is not a single person in the world who does not know that a ship sailing through the sea leaves behind it no more legal right than it does a track. And as for the assumption of the Portuguese that no one has sailed that ocean before themselves, that is anything but true. For a great part of that sea near Morocco, which is in dispute, had already been navigated long before, and the sea as far east as the Arabian gulf has been made famous by the victories of Alexander the Great, as both Pliny and Mela tell us. 1

There is also much to substantiate the belief that the inhabitants of Cadiz were well acquainted long ago with this route, because when Gaius Caesar, * the son of Augustus, held command in the Arabian gulf, pieces were found of shipwrecks recognized as Spanish. Caelius Antipater also has told us in his writings that he himself saw a Spaniard who had sailed from Spain to Ethiopia on a commercial voyage. Also the Arabians knew those seas, if the testimony of Cornelius Nepos is to be believed, because he says that in his own day a certain Eudoxus, fleeing from Lathyrus, king of Alexandria, sailed from the Arabian gulf and finally reached Cadiz. However, by far the most famous example is that of the Carthaginians. Those most famous mariners were well acquainted with that sea, because Hanno, when Carthage was at the height of her power, sailing from Cadiz to the farthest confines of Arabia, and doubling the promontory now known as the Cape of Good Hope (the ancient name seems to have been Hyperion Ceras), described in a book the entire route he had taken, the appearance of the coasts, and the location of the islands, declaring that at the farthest point he reached the sea had not yet given out but his provisions had.

Pliny’s description of the route to the East, 2 the embassies from the Indies to Augustus, and those from Ceylon to the emperor Claudius, and finally the accounts of the deeds of Trajan, and the writings of Ptolemaeus, all make it quite clear that in the days of Rome’s greatest splendor voyages were made regularly from the Arabian gulf to India, to the islands of the Indian ocean, and even so far as to the golden Chersonesus, which many people think was Japan. Strabo says 1 that in his own time a fleet of Alexandrian merchantmen set sail from the Arabian gulf for the distant lands of Ethiopia and India, although few ships had ever before attempted that voyage. The Roman people had a large revenue from the East. Pliny says 2 that cohorts of archers were carried on the boats engaged in trade as protection against pirates; he states also that every year India alone paid into the Roman imperial treasury 500,000 sesterces, * or 1,000,000 sesterces if the revenues from Arabia and China be added; further, that the merchandise brought from the East sold for one hundred times its original cost.

These examples cited from ancient times are sufficient proof that the Portuguese were not the first in that part of the world. Long before they ever came, every single part of that ocean had been long since explored. For how possibly could the Moors, the Ethiopians, the Arabians, the Persians, the peoples of India, have remained in ignorance of that part of the sea adjacent to their coasts!

Therefore they lie, who today boast that they discovered that sea.

Well then, some one will say, does it seem to be a matter of little moment that the Portuguese were the first to restore a navigation interrupted perhaps for many centuries, and unknown—as cannot be denied—at least to the nations of Europe, at great labor and cost and danger to themselves? On the contrary, if they had laid weight upon the fact that they were pointing out to all what they alone had rediscovered, there is no one so lacking in sense that he would not acknowledge the greatest obligation to them. For the Portuguese will have earned the same thanks, praise, and immortal glory with which all discoverers of great things have been content, whenever they have striven to benefit not themselves but the whole human race. But if the Portuguese had before their eyes only their own financial gain, surely their profit, which is always the largest for those first in a new field of enterprise, ought to have satisfied them. For we know that their first voyages returned a profit sometimes of forty times the original investment, and sometimes even more. And by this overseas trade it has come about that a people, previously for a long time poor, have leaped suddenly into the possession of great riches, and have surrounded themselves with such outward signs of luxurious magnificence as scarcely the most prosperous nations have been able to display at the height of their fortunes.

But if these Portuguese have led the way in this matter in order that no one may follow them, then they do not deserve any thanks, inasmuch as they have considered only their own profit. Nor can they call it their profit, because they are taking the profit of some one else. For it is not at all demonstrable that, if the Portuguese had not gone to the East Indies, no one else would have gone. For the times were coming on apace in which along with other sciences the geographical locations of seas and lands were being better known every day. The reports of the expeditions of the ancients mentioned above had aroused people, and even if all foreign shores had not been laid open at a single stroke as it were, yet they would have been brought to light gradually by sailing voyages, each new discovery pointing the way to the next. And so there would finally have been accomplished what the Portuguese showed could be done, because there were many nations with no less ardor than theirs to engage in commerce and to learn of foreign things. The Venetians, who already knew much about India, were ready to push their knowledge farther; the indefatigable zeal of the French of Brittany, and the boldness of the English would not have failed to make such an attempt; indeed the Dutch themselves have embarked upon much more desperate enterprises.

Therefore the Portuguese have neither just reason nor respectable authority to support their position, for all those persons who assume that the sea can be subjected to the sovereignty of any one assign it to him who holds in his power the nearest ports and the circumjacent shores. 1 But in all that great extent of coast line reaching to the East Indies the Portuguese have nothing which they can call their own except a few fortified posts.

And then even if a man were to have dominion over the sea, still he could not take away anything from its common use, just as the Roman people could not prevent any one from doing on the shores of their dominions all those things which were permitted by the law of nations. 2 And if it were possible to prohibit any of those things, say for example, fishing, for in a way it can be maintained that fish are exhaustible, still it would not be possible to prohibit navigation, for the sea is not exhausted by that use.

The most conclusive argument on this question by far however is the one that we have already brought forward based on the opinions of eminent jurists, namely, that even over land which had been converted into private property either by states or individuals, unarmed and innocent passage is not justly to be denied to persons of any country, exactly as the right to drink from a river is not to be denied. The reason is clear, because, inasmuch as one and the same thing is susceptible by nature to different uses, the nations seem on the one hand to have apportioned among themselves that use which cannot be maintained conveniently apart from private ownership; but on the other hand to have reserved that use through the exercise of which the condition of the owner would not be impaired.

It is clear therefore to every one that he who prevents another from navigating the sea has no support in law. Ulpian has said 1 that he was even bound to pay damages, and other jurists have thought that the injunction utile prohibito could also be brought against him. 2

Finally, the relief prayed for by the Dutch rests upon a common right, since it is universally admitted that navigation on the sea is open to any one, even if permission is not obtained from any ruler. And this is specificially expressed in the Spanish laws. 3

[1 ]Paul de Castro on Digest I, 1, 5; Dist. I, C. VII.

[1 ]Vasquius, Controversiae illustres, c. 1, n. 10; Lib. VI, V, 12, 3; Clem. V, 11.

[2 ]Satires II, 2, 129–130.

[3 ]Aratus 302–303.

[1 ]Octavia 413–414 [Translation by E. I. Harris (Act II, Scene 1)].

[2 ]Aratus 302.

[3 ]Digest VII, 5; Extravagantes of Pope John XXII, XIV, 3 and 5; Thomas Aquinas, Summa II. II, q. 78.

[1 ]203–204 [E. I. Harris’ translation (Act II, Scene 1)].

[2 ]De beneficiis VII, 12, 3.

[3 ]Speech XIII, In behalf of the poor man.

[4 ]De officiis I.

[1 ]Digest I, 1, 5.

[2 ]Vergil, Georgics I, 139–140 [Dryden’s translation I, 211].

[3 ]Ovid, Metamorphoses I, 135–136 [Dryden’s translation I (English Poets XX, 432)].

[4 ]Ovid, Metamorphoses I, 134.

[5 ]De beneficiis VII, 4, 3.

[1 ]Octavia 431–432 [Grotius here takes a slight liberty with the context].

[2 ]De officiis I, 21 [Walter Miller’s (Loeb) translation, page 23].

[3 ]History I, 139, 2.

[4 ]Duaren [a French humanist (1509–1559)], on Digest I, 8.

[5 ]De officiis I, 51 [Walter Miller’s (Loeb) translation, page 55].

[6 ]De officiis I, 52.

[1 ]Metamorphoses VI, 349–351.

[2 ]Digest VIII, 4, 13.

[3 ]Digest XLI, 1, 14; Comines, Memoirs III, 2; Donellus IV, 2; Digest XLI, 3, 49. [Philippe de Comines (1445–1509), a French historian, and one of the negotiators of the treaty of Senlis (1493).]

[4 ]Digest I, 8, 10.

[5 ]De officiis I, 52.

[1 ]Institutes II, 1, 1 and 5; Digest I, 8, 1, 2, 10; XLI, 1, 14 and 50; XLVII, 10, 13; XLIII, 8, 3, and 4–7.

[2 ]Act IV, Scene 3 (975, 977, 985).

[1 ]Donellus IV, 2.

[2 ]Digest XXXIX, 2, 24; other references same as note 1, page 29.

[3 ]Donellus IV, 2 and 9; also references in note 1, page 29.

[1 ]Digest I, 8, 4; XLIII, 8, 3.

[2 ]Odes III, i, 33–34 [Bennett’s (Loeb) translation, page 171].

[3 ]Digest XLIII, 8, 3; 8, 2.

[4 ]Digest XLIII, 12, 1.

[1 ]Pliny, Natural History IX, 54, 170.

[2 ]Epigrams X, 30, 19–20.

[3 ]De Nabuthe, cap. 3.

[4 ]Digest XLVII, 10, 14.

[5 ]See note 1, page 31.

[1 ]Digest XLIV, 3, 7.

[2 ]Digest XLI, 3, 45.

[3 ]Digest XLVII, 10, 13.

[4 ]Novels of Leo, 102, 103, 104; See also Cujas XIV, 1.

[5 ]Hexameron V, 10, 27 [St. Ambrose (c. 333–397), Bishop of Milan, is meant].

[1 ]Donellus IV, 6.

[2 ]On Institutes II, 1; Digest XIV, 2, 9 [Johannes Faber (c. 1570-c. 1640) was Bishop of Vienna, and Court preacher to Emperor Ferdinand. He was known popularly as ‘Malleus Haereticorum’].

[3 ]Digest XLIII, 8, 3.

[4 ]Digest V, 1, 9; XXXIX, 4, 15; Glossators on Digest I, 8, 2; Institutes II, 1; Baldus on L. Quaedam, in Digest I, 8, 2.

[1 ]Baldus, Quibus modis feudi amittuntur, chapter beginning In principio, second column; Code XI, 13, 1; Angeli on Digest XLVII, 10, 14; Digest VIII, 4, 13 and 4.

[1 ]C. Quae sint Regalia, in Feudis.

[2 ]Balbus, De praescriptionibus IV, 5; 1, q. 6, n. 4.

[3 ]Digest XLVII, 10, 13; XLIII, 9, 1.

[* ][Andrea d’Isernia (c. 1480–1553), an Italian commentator, called often Feudistarum Patriarcha.]

[† ][Probably a misprint for Alvarus (Alvarez).]

[4 ]See note 1.

[1 ][Quoted in Cicero, De officiis I, 51, and here taken from Walter Miller’s (Loeb) translation, page 55.]

[2 ]Cicero, De officiis I, 51.

[3 ]Seneca, De beneficiis III, 28.

[1 ]Johannes Faber on Institutes II, 1, 5.

[1 ]Pliny, Natural History II, 69; VI, 27; Pomponius Mela, De situ orbis III.

[* ][Strictly speaking, Gaius was the grandson of Augustus, but was adopted as his son.]

[2 ]Natural History VI, 20.

[1 ]Geography II and XVII.

[2 ]Natural History XII, 19.

[* ][A Roman sestertius was about four cents.]

[1 ]Glossators on Lib. VI, I, 6, 3; on Digest II, 12, 3.

[2 ]Digest I, 8, 4; Gentilis, De jure belli I, 19.

[1 ]Digest XLIII, 8, 2.

[2 ]Glossators on Digest XLIII, 14.

[3 ]Baldus on Digest I, 8, 3; Zuarius, Consilia duo de usu maris I, 3, 28, L. 10 and 12. [Philippus Zuerius (?—1606) of Antwerp.]