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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 VII

Neither the Sea nor the right of navigation thereon belongs to the Portuguese by title of prescription or custom

The last defense of injustice is usually a claim or plea based on prescription or on custom. To this defense therefore the Portuguese have resorted. But the best established reasoning of the law precludes them from enjoying the protection of either plea.

Prescription is a matter of municipal law; hence it cannot be applied as between kings, or as between free and independent nations. 1 It has even less standing when it is in conflict with that which is always stronger than the municipal law, namely, the law of nature or nations. Nay, even municipal law itself prevents prescription in this case. 2 For it is impossible to acquire by usucaption or prescription things which cannot become property, that is, which are not susceptible of possession or of quasi-possession, and which cannot be alienated. All of which is true with respect to the sea and its use.

And since public things, that is, things which are the property of a nation, cannot be acquired by mere efflux of time, either because of their nature, or because of the prerogatives of those against whom such prescription would act, is it not vastly more just that the benefits accruing from the enjoyment of common things should be given to the entire human race than to one nation alone? On this point Papinian has said: 1 ‘Prescription raised by long possession is not customarily recognized as valid in the acquisition of places known to international law as “public” ’. As an example, to illustrate this point, he cites a shore some part of which had been occupied by means of a building constructed on it. But if this building should be destroyed, and some one else later should construct a building on the same spot, no exception could be taken to it. Then he illustrates the same point by the analogous case of a res publica. If, for example, any one has fished for many years in a branch of a river, and has then stopped fishing there, after that he cannot prevent any one else from enjoying the same right that he had.

Wherefore it appears that Angeli 2 and his followers who have said that the Venetians and Genoese were able to acquire by prescription certain specific rights in the gulfs of the sea adjacent to their shores, either are mistaken, or are deceiving others; a thing which happens all too frequently with jurists when they exercise the authority of their sacred profession not for justice and law, but in order to gain the gratitude of the powerful. There is also an opinion of Marcianus, already cited above in another connection, which, when carefully compared with the words of Papinian, 3 can have no other interpretation than the one formerly adopted by Johannes and Bartolus, * and now accepted by all learned men, 4 namely, that the jus prohibendi is in effect only while occupation lasts; it loses its force if occupation cease; and occupation once interrupted, even if it had been continuous for a thousand years, loses its rights, as Paul de Castro * justly observes. And even if Marcianus had meant—which certainly was not in his mind at all—that acquisition by prescription is to be recognized wherever occupation is recognized, still it would have been absurd to apply what had been said about a public river to the common sea, or what had been said about an inlet or a river branch to a bay, since in the former case prescription would hinder the use of something common to all by the law of nations, and in the latter case would work no small injury to public use. Moreover, another argument brought forward by Angeli based on the use of aqueducts, 1 has quite properly been rejected by every one, being, as de Castro pointed out, entirely aside from the point.

It is not true then that such prescription rises even at a time beyond the period of the memory of man. For since the law absolutely denies all prescription, not even immemorial time has any effect on the question; that is, as Felinus 2 says, things imprescriptible by nature do not become prescriptible by the mere efflux of immemorial time. Balbus admits the truth of these arguments, 3 but says that the opinion of Angeli is to be accepted on the ground that time immemorial is believed to have the same validity as prerogative for setting up a title, since a perfect title is presumed from such efflux of time. Hence it appears that the jurists thought if some part of a state, say of the Roman empire for example, at a period before the memory of man had exercised such a right, that a title by prescription would have to be admitted on that ground, exactly as if there had been a previous grant from a Prince. But inasmuch as there is no one who is sovereign of the whole human race with competence to grant to any man or to any nation such a right against all other men, with the annihilation of that pretext, title by prescription is also necessarily destroyed. Therefore the opinion of the jurists is that not even an infinite lapse of time is able to set up a right as between kings or independent nations.

Moreover Angeli brought forward a most foolish argument, affirming that even if prescription could not create ownership, still an exception ought to be made in favor of a possessor. Papinian however in unmistakable words says there is no exception, 1 nor could he think otherwise, because in his day prescription was itself an exception. It is therefore true, as expressed also in the laws of Spain, 2 that prescription based on no matter how immemorial a time, sets up no title to those things which are recognized as common to the use of mankind. One reason among others which can be given for this definition is that any one who uses a res communis does so evidently by virtue of common and not private right, and because of the imperfect character of possession he can therefore no more set up a legal title by prescription than can a usufructuary. 3

A second reason not to be overlooked is that although a title and good faith are presumed in a prescriptive right created by the efflux of immemorial time, nevertheless if it appears from the nature of the thing itself that no title at all can be established, and if thus there becomes evident bad faith—a thing held to be permanent in a nation as well as in an individual—then prescription fails because of a double defect. 1 Also a third reason is that we have under consideration a merely facultative right which is not prescriptible, as we shall show below. *

But there is no end to their subtilties. There are jurists who in this case would distinguish custom from prescription, so that if they are debarred from the one, they may fall back upon the other. But the distinction which they set up is most absurd. They say that the right of one person which is taken away from him is given to another by prescription; 2 but that when any right is given to any one in such a way that it is not taken away from any one else, then it is called custom. As if indeed the right of navigation, which is common to all, upon being usurped by some one to the exclusion of all others, would not necessarily when it became the property of one be lost to all!

This error receives support from misinterpretation of what Paulus has to say about a private right of possession on the sea. 3 Accursius † said that such a right could be acquired by privilege or custom. But this addition which in no way agrees with the text of the jurist seems to be rather the interpretation of a mischievous guesser than of a faithful interpreter. The real meaning of the words of Paulus has been already explained. Besides, if more careful consideration had been given to the words of Ulpian 4 which almost immediately precede those of Paulus, a very different assertion would have been made. For Ulpian acknowledges that if any one is prohibited from fishing in front of my house, such prohibition is a usurpation of right, 1 allowed, it is true, by custom, but based on no law, and that an action for damages could not be denied the person thus prohibited from fishing.

He therefore condemns this practice, and calls it a usurpation; of the Christian jurists Ambrose 2 does likewise, and both are right. For what is clearer than that custom is not valid when it is diametrically opposed to the law of nature or of nations? 3 Indeed, custom is a sort of affirmative right, which cannot invalidate general or universal law. And it is a universal law that the sea and its use is common to all. Moreover what we have said about prescription applies with equal truth and force to custom; and if any one should investigate the opinions of those who have differed upon this matter, he would find no other opinion but that custom is established by privilege. No one has the power to confer a privilege which is prejudicial to the rights of the human race; wherefore such a custom has no force as between different states.

This entire question however has been most thoroughly treated by Vasquez, 4 that glory of Spain, who leaves nothing ever to be desired when it comes to subtle examination of the law or to the exposition of the principles of liberty. He lays down this thesis: ‘Places public and common to all by the law of nations cannot become objects of prescription’. This thesis he supports by many authorities, and then he subjoins the objections fabricated by Angeli and others, which we have enumerated above. But before examining these objections he makes the just and reasonable statement that the truth of all these matters depends upon a true conception both of the law of nature and the law of nations. For, since the law of nature arises out of Divine Providence, it is immutable; but a part of this natural law is the primary or primitive law of nations, differing from the secondary or positive law of nations, which is mutable. For if there are customs incompatible with the primary law of nations, then, according to the judgment of Vasquez, they are not customs belonging to men, but to wild beasts, customs which are corruptions and abuses, not laws and usages. Therefore those customs cannot become prescriptions by mere lapse of time, cannot be justified by the passage of any law, cannot be established by the consent, the protection, or the practice even of many nations. These statements he confirms by a number of examples, and particularly by the testimony of Alphonse de Castro 1 the Spanish theologian.

‘It is evident therefore’, he says, ‘how much to be suspected is the opinion of those persons mentioned above, who think that the Genoese or the Venetians can without injustice prohibit other nations from navigating the gulfs or bays of their respective seas, as if they had a prescriptive right to the very water itself. Such an act is not only contrary to the laws, 2 but is contrary also to natural law or the primary law of nations, which we have said is immutable. And this is seen to be true because by that same law not only the seas or waters, but also all other immovables were res communes. And although in later times there was a partial abandonment of that law, in so far as concerns sovereignty and ownership of lands—which by natural law at first were held in common, then distinguished and divided, and thus finally separated from the primitive community of use;—nevertheless 3 it was different as regards sovereignty over the sea, which from the beginning of the world down to this very day is and always has been a res communis, and which, as is well known, has in no wise changed from that status.

‘And although’, he continues, ‘I have often heard that a great many Portuguese believe that their king has a prescriptive right over the navigation of the vast seas of the West Indies (probably the East Indies too) such that other nations are not allowed to traverse those waters; and although the common people among our own Spaniards seem to be of the same opinion, namely, that absolutely no one in the world except us Spaniards ourselves has the least right to navigate the great and immense sea which stretches to the regions of the Indies once subdued by our most powerful kings, as if that right has been ours alone by prescription; although, I repeat, I have heard both these things, nevertheless the belief of all those people is no less extravagantly foolish than that of those who are always cherishing the same delusions with respect to the Genoese and Venetians. Indeed the opinions of them all appear the more manifestly absurd, because no one of those nations can erect a prescription against itself; that is to say, not the Venetian republic, nor the Genoese republic, nor the kingdom of Spain nor of Portugal can raise prescriptions against rights they already possess by nature. 1 For the one who claims a prescriptive right and the one who suffers by the establishment of such a claim must not be one and the same person.

‘Against other nations they are even much less competent to raise a prescription, because the right of prescription is only a municipal right, as we have shown above at some length. Therefore such a right ceases to have any effect as between rulers or nations who do not recognize a superior in the temporal domain. For so far as the merely municipal laws of any place are concerned, they do not affect foreign peoples, nations, or even individuals, any more than if they did not exist or never had existed. Therefore it was necessary to have recourse to the common law of nations, primary as well as secondary, and to use a law which clearly had not admitted any such prescription and usurpation of the sea. For today the use of the waters is common, exactly as it has been since the creation of the world. Therefore no man has a right nor can acquire a right over the seas and waters which would be prejudicial to their common use. Besides, there is both in natural and divine law that famous rule: ‘Whatsoever ye would that men should not do to you, do not ye even so to them’. Hence it follows, since navigation cannot harm any one except the navigator himself, it is only just that no one either can or ought to be interdicted therefrom, lest nature, free in her own realm, and least hurtful to herself, be found impeding the liberty of navigation, and thus offending against the accepted precept and rule that all things are supposed to be permitted which are not found expressly forbidden. 1 Besides, not only would it be contrary to natural law to wish to prevent such free navigation, but we are even bound to do the opposite, that is, bound to assist such navigation in whatever way we can, when it can be done without any prejudice to ourselves’.

After Vasquez had established his point by the help of many authorities both human and divine, he added: 2 ‘It appears then, from what has gone before that the opinion held by Johannes Faber, Angeli, Baldus, and Franciscus Balbus, whom we have cited above, is not to be trusted, because they think that places common by the law of nations, even if not open to acquisition by prescription, can nevertheless be acquired by custom; but this is entirely false, and is a teaching which is both obscure and vague, which lacks the faintest glimmer of reasonableness, and which sets up a law in word but not in fact. 1 For it is well established from the examples taken from the seas of the Spaniards, Portuguese, Venetians, Genoese, and others, that an exclusive right of navigation and a right of prohibiting others from navigation is no more to be acquired by custom than by prescription. 2 And it is apparent that the reason is the same in both cases. And since according to the laws and reasons adduced above this would be contrary to natural equity and would not bring benefit but only injury, therefore as it could not be introduced by an express law, neither could it be introduced by a tacit or implied law, and that is what custom is. 3 And far from justifying itself by any lapse of time, it rather becomes worse, and every day more injurious’.

Vasquez next shows that from the time of the earliest occupation of the earth every people possessed the right of hunting in its own territory, and of fishing in its own rivers. After those rights were once separated from the ancient community of rights in such a way that they admitted of particular attachments, they could be acquired by prescription based upon such an efflux of time that “the memory of its beginning does not exist,” as if by the tacit permission of a nation. This comes about, however, by prescription and not by custom, because only the condition of him who acquires is bettered, while that of all other persons is made worse. Then after Vasquez had enumerated three conditions which are requisite in order that a private right of fishing in a river may become a right by prescription, he continues as follows:

‘But what are we to say as regards the sea? There is more to say about it, because even the combination of the three conditions mentioned is not sufficient here for the acquisition of such a right. The reason for the difference between the sea on one hand and land and rivers on the other, is that in the case of the sea the same primitive right of nations regarding fishing and navigation which existed in the earliest times, still today exists undiminished and always will, and because that right was never separated from the community right of all mankind, and attached to any person or group of persons. But in the latter case, that of the land and rivers, it was different, as we have already set forth.

‘But why, it is asked, does the secondary law of nations which brings about this separation when we consider lands and rivers cease to operate in the same way when we consider the sea? I reply, because in the former case it was expedient and necessary. For every one admits that if a great many persons hunt on the land or fish in a river, the forest is easily exhausted of wild animals and the river of fish, but such a contingency is impossible in the case of the sea. Again, the navigation of rivers is easily lessened and impeded by constructions placed therein, but this is not true of the sea. Again, a river is easily emptied by means of aqueducts but the sea cannot be emptied by any such means. 1 Therefore there is not equal reason on both sides.

‘Neither does what we have said above about the common use of waters, springs, and rivers, apply in this case, for common use is recognized in them all for purposes of drinking and the like, such usages namely as do not injure at all or in the slightest degree him who owns a river or has some other right in one. 2 These are trifles for which we have no time. What makes for our contention is the fact that no lapse of time will give a prescriptive right to anything unjust. Therefore an unjust law is not capable of erecting a prescriptive right or of being justified by efflux of time’. A little farther on Vasquez says: ‘Things which are imprescriptible by the disposition of the law, may not become objects of prescription even after the lapse of a thousand years’. This statement he supports by countless citations from the jurists. 1

Every one perceives that no usurpation no matter how long continued is competent to intercept the use of a res communis. And it must also be added, that the authority of those who hold dissenting opinions cannot possibly be applied to the question here at issue. For they are talking about the Mediterranean, we are talking about the Ocean; they speak of a gulf, we of the boundless sea; and from the point of view of occupation these are wholly different things. And too, those peoples, to whom the authorities just mentioned concede prescription, the Venetians and Genoese for example, possess a continuous shore line on the sea, but it is clear that not even that kind of possession can be claimed for the Portuguese.

Further, even if mere lapse of time, as some think, could establish a right by prescription over public property, still the conditions absolutely indispensable for the creation of such a right are in this case absent. The conditions demanded are these: first, all jurists teach that he who sets up a prescriptive right of this sort shall have been in actual possession not only for a considerable period, but from time immemorial; next, that during all that time no one else shall have exercised the same right of possession unless by permission of that possessor or clandestinely; besides that, it is necessary that he shall have prevented other persons wishing to use his possession from so doing, and that such measures be a matter of common knowledge and done by the suffrance of those concerned in the matter. For even if he had continuously exercised his right of possession, and had always prevented from using his possession some of those who wished to do so, but not all; then, because some had been prevented from exercising and others freely allowed to exercise that use, that kind of possession according to the opinion of the jurists, is not sufficient to establish a right by prescription.

It is clear therefore that all these conditions should be present, both because law is opposed to the prescription of public things, and in order that he who sets up such a prescription may seem to have used his own private right, not a public right, and that too by continuous possession.

Now, inasmuch as time beyond the period of the memory of man is demanded for the creation of a prescriptive right, it is not always sufficient, as the best commentators point out, to prove the lapse of a hundred years, but as no one would be alive who had seen or heard the contrary, the tradition handed down to us by our ancestors ought to be undisputed. It was during the reign of King John, 1 in the year of our Lord 1477, at the time of the wars in Africa, that the Portuguese began to push their discoveries first into the more distant parts of the Ocean. Twenty years later, during the reign of King Emmanuel, they rounded the Cape of Good Hope, and somewhat later yet, reached Malacca, and the islands beyond, the very islands, indeed, to which the Dutch began to sail in the year 1595, that is, well within a hundred years of the time that the Portuguese first arrived. And in truth even in that interval, the usurpation of rights there by other parties had interrupted the competence of everybody else to create a prescriptive right. For example, from the year 1519, the Spaniards rendered the possession by the Portuguese of the sea around the Malaccas a very uncertain one. Even the French and English made their way to those newly discovered places not secretly, but by force of arms. And besides these, the inhabitants of the entire coast of Africa and Asia constantly used for fishing and navigation that part of the sea nearest their own several coasts, and were never interdicted from such use by the Portuguese.

The conclusion of the whole matter therefore is that the Portuguese are in possession of no right whereby they may interdict to any nation whatsoever the navigation of the Ocean to the East Indies.

CHAPTER VIII

By the Law of Nations trade is free to all persons whatsoever

If however the Portuguese claim that they have an exclusive right to trade with the East Indies, their claim will be refuted by practically all the same arguments which already have been brought forward. Nevertheless I shall repeat them briefly, and apply them to this particular claim.

By the law of nations the principle was introduced that the opportunity to engage in trade, of which no one can be deprived, 1 should be free to all men. This principle, inasmuch as its application was continually necessary after the distinctions of private ownerships were made, can therefore be seen to have had a very remote origin. Aristotle, in a very clever phrase, in his work entitled the Politics, 2 has said that the art of exchange is a completion of the independence which Nature requires. Therefore trade ought to be common to all according to the law of nations, not only in a negative but also in a positive, or as the jurists say, affirmative sense. 3 The things that come under the former category are subject to change, those of the latter category are not. This statement is to be explained in the following way.

Nature had given all things to all men. But since men were prevented from using many things which were desirable in every day life because they lived so far apart, and because, as we have said above, everything was not found everywhere, it was necessary to transport things from one place to another; not that there was yet an interchange of commodities, but that people were accustomed to make reciprocal use of things found in one another’s territory according to their own judgment. They say that trade arose among the Chinese in about this way. Things were deposited at places out in the desert and left to the good faith and conscience of those who exchanged things of their own for what they took. 1

But when movables passed into private ownership (a change brought about by necessity, as has been explained above), straightway there arose a method of exchange by which the lack of one person was supplemented by that of which another person had an over supply. 2 Hence commerce was born out of necessity for the commodities of life, as Pliny shows by a citation from Homer. 3 But after immovables also began to be recognized as private property, the consequent annihilation of universal community of use made commerce a necessity not only between men whose habitations were far apart but even between men who were neighbors; and in order that trade might be carried on more easily, somewhat later they invented money, which, as the derivation of the word shows, is a civic institution. 4

Therefore the universal basis of all contracts, namely exchange, is derived from nature; but some particular kinds of exchange, and the money payment itself, are derived from law; 5 although the older commentators on the law have not made this distinction sufficiently clear. Nevertheless all authorities agree that the ownership of things, particularly of movables, arises out of the primary law of nations, and that all contracts in which a price is not mentioned, are derived from the same source. 1 The philosophers 2 distinguish two kinds of exchange using Greek words which we shall take the liberty to translate as ‘wholesale’ and ‘retail’ trade. The former, as the Greek word shows, signifies trade or exchange between widely separated nations, and it ranks first in the order of Nature, as is shown in Plato’s Republic. 3 The latter seems to be the same kind of exchange that Aristotle calls by another Greek word 4 which means retail or shop trade between citizens. Aristotle makes a further division of wholesale trade into overland and overseas trade. 5 But of the two, retail trade is the more petty and sordid, and wholesale the more honorable; but most honorable of all is the wholesale overseas trade, because it makes so many people sharers in so many things. 6

Hence Ulpian says that the maintenance of ships is the highest duty of a state, because it is an absolutely natural necessity, but that the maintenance of hucksters has not the same value. In another place Aristotle says: “For the art of exchange extends to all possessions, and it arises at first in a natural manner from the circumstance that some have too little, others too much.” 7 And Seneca is also to be cited in this connection for he has said that buying and selling is the law of nations. 8

Therefore freedom of trade is based on a primitive right of nations which has a natural and permanent cause; and so that right cannot be destroyed, or at all events it may not be destroyed except by the consent of all nations. So far is that from being the case, that any one nation may justly oppose in any way, any other two nations that desire to enter into a mutual and exclusive contractual relation.

[1 ]Vasquius, Controversiae illustres, c. 51.

[2 ]Donellus, V. 22 ff.; Digest XVIII, 1, 6; XLI, 3, 9, 25; Lib. VI, V, 12 (Reg. Sine possessione); Digest L, 16, 28; XXIII, 5, 16.

[1 ]Digest XLI, 3, 45; Code VIII, 11, 6; XI, 43, 9; Digest XLIII, 11, 2; XLI, 3, 49.

[2 ]Consilia 286 [Angelus Aretinus a Gambellionibus (?-1445), a voluminous commentator on the Digest and the Institutes].

[3 ]Digest XLIV, 3, 7.

[* ][Bartolus de Saxoferrato (1314–1357) the most famous of the Post-glossators, was called by many of his biographers ‘Optimus auriga in hac civili sapientia’.]

[4 ]Duren, De usucapionibus, c. 3; Cujas on Digest XLI, 3, 49; Donellus V, 22 on Digest XLI, 1, 14.

[* ][The celebrated Italian jurist (?-1420 or 1437) of whom Cujas said: “Si vous n’avez pas Paul de Castro, vendez votre chemise pour l’acheter.” (Note from page 55 of the French translation of Grotius by de Grandpont.)]

[1 ]Code XI, 43, 4; cf. XI, 43, 9; cf. Digest XLIII, 20, 3.

[2 ]On the Decretals of Pope Gregory IX, II, 26, 11 [Felinus Maria Sandeus (c. 1427–1503), Bishop of Lucca].

[3 ]De praescriptionibus IV, 5, q. 6, n. 8 [Johannes Franciscus Balbus, a priest and jurisconsult at Muentz-hof].

[1 ]On Digest XLI, 3, 49.

[2 ]Par. 3, tit. 29, 1. 7 in c. Placa.; Zuarius, Consilia, num. 4.

[3 ]Fachinham VIII, c. 26 and c. 33; Duaren, De praescriptionibus, parte 2, § 2, n. 8; § 8, n. 5 and 6. [Nicholas Fachinham (?-1407), a Franciscan, who taught Theology at Oxford.]

[1 ]Fachinham VIII, c. 28.

[* ][See chapter XI.]

[2 ]Angelus Aretinus on Digest I, 8; Balbus, De praescriptionibus IV, 5, q. 6, n. 2; see Vasquius, Controversiae illustres c. 29, n. 38.

[3 ]On Digest XLVII, 10, 14.

[† ][Franciscus (?) Accursius (?-1259) (a pupil of the famous Monarcha juris Azzo), with whose name the Glossa Magna is almost synonymous. He was called Advocatorum Idolum.]

[4 ]Digest XLVII, 10, 13.

[1 ]Glossators on the reference in note 4, page 51.

[2 ]De officiis ministrorum I, 28; Gentilis I, 19.

[3 ]Auth. Ut nulli Iudicum § 1, c. cum tanto de consuetudine.

[4 ]Controversiae illustres c. 89, n. 12 ff. [Ferdinand Manchaea Vasquez (1509–1566) the famous Spanish jurisconsult, who held many high honors of the realm].

[1 ]De potestate legis poenalis II, 14, part 572 [Alphonse de Castro (?-1558). Theologian at Salamanca, confessor to the Emperor Charles V.].

[2 ]Digest XLI, 1, 14; XLI, 3; Institutes II, 1, 2; Digest XLIV, 3, 7; XLVII, 10, 14.

[3 ]Digest I, 1, 5; Institutes I, 2, § 2.

[1 ]Digest XLI, 3, 4, 26 (27); Institutes IV, 6, 14; Bartolus and Jason on Digest XXX, 11.

[1 ]Digest I, 5, 4; Institutes I, 3, 1; Digest XLIII, 29, 1–2; XLIV, 5, 1; Code III, 28, 35; Digest IV, 6, 28.

[2 ]Code III, 44, 7.

[1 ]Code VI, 43.

[2 ]Digest IX, 2, 32.

[3 ]Dist. IV, C. II; Digest I, 3, 1–2, 32; Decretals of Pope Gregory IX, II, 26, 20.

[1 ]Digest XLIII, 13.

[2 ]Digest IV, 4, 3; Vasquius, De successionum progressu I, 7.

[1 ]Balbus, De praescriptionibus 5, 11; 16, 3; Alphonse de Castro, De potestate legis poenalis II, 14; Balbus and Angelus on Code VII, 39, 4.

[1 ]Osorius, De rebus Emmanuelis regis Lusitaniae I [Hieronymus Osorius (1506–1580) was known as the Portuguese Cicero].

[1 ]Digest I, 1, 5.

[2 ]I, 9 (1257a 30).

[3 ]Cf. Covarruvias in c. Peccatum, § 8.

[1 ]Pomponius Mela, De situ orbis III, 7.

[2 ]Digest XVIII, 1, 1.

[3 ]Natural History XXXIII, 1.

[4 ]Aristotle, Nicomachean Ethics 5, 5, 11 (1133a 20); Politics I, 9 (1257b 10) [Nummus = νόμος. The fact that this is an incorrect derivation does not of course affect the argument].

[5 ]Dist. I, C. VII; Aristotle, see note 4 above.

[1 ]Castrensis from Cinus and others on Digest I, 1, 5.

[2 ]Plato, Sophista 223d.

[3 ]II (p. 371) cited in Digest L, 11, 2.

[4 ]Politics I, 11 (1258b 22–23).

[5 ][The text here is somewhat expanded.]

[6 ]Cicero, De officiis I, 150–151; Aristotle, Politics I, 9.

[7 ]Politics I, 9 (1257a 14–17) [Jowett’s translation, Vol. I, page 15].

[8 ]De beneficiis V, 8 [Not a quotation, but a summing up of the chapter].