That the sea or right of sailing is not proper to
the Portugals by title of prescription or custom
The last defense of injustice is wont to be in prescription or custom. And the Portugals therefore come thronging hither, but the most certain reason of the law debarreth them of either defense. For prescription is from the civil law, wherefore it can have no place among kings or among free people, much less where the law of nature or nations resisteth it, which always is more forcible than the civil law. But here even the very civil law itself forbiddeth prescription. For those things are forbidden to be gotten by prescription which cannot be accounted in the nature of goods, next those things which at all cannot be possessed nor as it were possessed and whose alienation is prohibited. But all these are truly said of the sea and the use thereof.
And seeing public things—that is to say, appertaining to any people—can be said to be gotten by no possession of time, either by reason of the nature of the thing or by reason of their privilege against whom this prescription should proceed, how much more justly was that benefit to be given in common things to mankind than to one people? And this that which Papinianus hath left in writing, that prescription of long possession to obtain the public place of the law of nations is not wont to be granted. And he giveth an example thereof in a shore, part whereof was possessed by a building set upon it, for that being overthrown and another man’s building set up in the same place afterward could not be opposed as an exception, which he illustrateth by a similitude of a public thing. For although any man have fished many years in the creek river, afterwards, the fishing being interrupted, he could not forbid another by the same right.
It is apparent therefore that Angelus and they who with Angelus said that the Venetians and Janueses might get sound right to a bay of their sea lying before their shore were either deceived or deceivers, which is too usual among lawyers, seeing they confer the authority of a holy profession not to reason and laws but to the favor of the more mighty. For surely Marcianus’ answer (whereof also we spake before), if it be rightly compared with Papinianus’ word, can receive no other interpretation than that which was sometimes allowed of Johannes and Bartolus and is now received of all the learned: to wit, that the right of prohibiting should proceed so long as the occupation continueth, but not if it be omitted. For being omitted it profiteth not, although it had been continued a thousand years, as Castrensis rightly observeth. And although Marcianus would have had it so (which he is not supposed to have thought) that prescription should be granted in the same place where the occupation is granted, yet to apply that which was spoken of a public river to the common sea, and of a creek to a bay, was absurd, seeing this prescription should hinder that use which by the law of nations is common, but that should not much hurt the public use. But the other argument of Angelus, drawn from conduit, by the opinion of the same Castrensis is worthily exploded of all as furthest from the question.
It is false therefore that such a prescription should be created at that time whose beginning might exceed all memory. For where the law taketh away all prescription, this time surely is not admitted; that is to say, as Felinus speaketh, a matter unprescribable is not made prescribable by time out of mind. Balbus confesseth this to be true but saith that the opinion of Angelus was allowed for this reason: because time out of mind is supposed to be of the same validity that privilege is, seeing the best title may be presumed to be drawn from such a time. Hereby it appeareth that they meant nothing else than if any part of a commonwealth (as, for example, the empire of Rome) beyond all memory had used such a right, by this color a prescription was to be given unto it as though the grant of the prince had gone before. Wherefore, seeing no man may be lord of all mankind who might grant that right to any man or people against all men, that color being taken away it is necessary also that prescription should be overthrown. And so also by their opinion the course of infinite time among kings or free people can nothing avail.
But that also is most vain or foolish which Angelus taught: although prescription cannot profit for dominion yet an exception was to be given to the possessor. For Papinian in plain words denieth the exception. And he could not think otherwise, seeing in his time prescription was nothing else but exception. It is true, therefore, which the Spanish laws express: in those things which are attributed to the common use of men, no prescription of time at all can proceed, of which definition that reason before the rest may begin, that who so useth a common thing seemeth to use it as common, not in his proper right, and so can no more prescribe than he that taketh the benefit of a thing by the fault of possession.
This other also is not lightly to be regarded: that in prescription of time out of mind, although title and plain dealing may be presumed, yet if it appear indeed that no title may be given and so the deceit be manifest (which specially in the people, as in one body, is thought to be perpetual), the prescription faileth by reason of the double effect. But the third reason is because this thing is of mere faculty, whereof there is no prescription, as we will show hereafter.
But there is no end of subtle arguments. There are some found who in this argument would distinguish custom from prescription, that being excluded from that they might fly unto this. But the difference they make herein is ridiculous. They say that by prescription the right which is taken from one is applied unto another, but when any right is so applied to any that it be not taken away from another, then it is called custom. As if when the right of navigation (which commonly appertaineth unto all) is usurped of one, excluding others, it is not necessary that so much as cometh unto one should be lost unto all. The words of Paulus not rightly understood gave occasion to this error, who, when he spake of the proper right of the sea appertaining to any, Accursius said it might to be done by privilege or custom, which additament no way agreeing with the text of the lawyer seemeth rather to be the addition of an evil conjecturer than a good interpreter. The meaning of Paulus is before declared. But if they had advisedly considered but the very words of Ulpian which go a little before they would have said far otherwise. For he confesseth it was a usual thing to forbid any to fish before my house—that is to say, received by custom but by no right—and therefore an action of trespass was not to be denied him who was forbidden.
He therefore contemneth this custom and calleth it usurpation, as also Ambrose doth amongst the Christian doctors. And worthily. For what is more clear than that such a custom should not be of force which is opposed clean contrary to the law of nature or the law of nations? For custom is a kind of positive law which cannot derogate from the perpetual law. But that law is perpetual that the sea should be common in use unto all. But what we said in prescription, the same is true in custom; if any man examine the meaning of them who have delivered the contrary, he shall find no other thing but that custom is equivalent to privilege. But no man hath power to grant a privilege against mankind. Wherefore between divers commonwealths this custom hath no force.
But Vasquius, the honor of Spain, hath most carefully handled all this question, whose subtlety in sifting the law and liberty in teaching you would never look for. He, therefore, setting down the question that public places and such as are common by the law of nations cannot be prescribed, confirmeth it by many authorities and after addeth the exceptions framed by Angelus and others which we have before recited. And being about to examine these things, he rightly judgeth that the truth thereof dependeth as well upon the true knowledge of the law of nature as of the law of nations. For seeing the law of nature proceedeth from the divine providence, it is immutable. But part of this natural law is the law of nations, which is said to be that of the first age, diverse from the secondary or positive law of nations, whereof the latter may be changed. For if any customs be contrary to the ancient laws of nations, those be not human (thyself being judge) but brutish corruption and abuses not laws and customs. Therefore they could be prescribed by no time, justified by no law, nor be established, although it were by the consent, entertainment or exercise of many nations, which he confirmeth by some examples and the testimony of Alphonsus Castrensis the Spanish divine:
By the which it appeareth (saith he) how much their opinion, of whom we spoke before, is to be suspected who think the Genoese or also the Venetians might lawfully prohibit others to sail through the gulf of their sea, as if they would prescribe for the sea itself, which is not only against the laws but also against the law of nature itself or the ancient law of nations which, as we have said, cannot be changed. That it is against that law it is manifest, because not only the sea or air by that law were common, but also all things else that were immovable. And albeit in part they afterward varied from that law, to wit, as concerning dominion and property of countries, the dominion whereof by nature being common was distinguished and divided, and so there was a separation from that community. Yet it was and is differing in the dominion of the sea which from the beginning of the world even to this day and always hath been in common, in no part changed, as is well known.
And although I have often heard a great multitude of the Portugals to be of this opinion that their king hath so prescribed for navigation of the West Indian (peradventure the East), yea and that a most huge sea, that it should not be lawful for other nations to cross those seas, and among our Spanish nation the common sort seem almost to be of the same opinion that it should not be lawful for others save only the Spaniards to sail through that huge and vast sea to the Indies which our most puissant kings have conquered, as if they prescribed for that right. Yet all these men’s opinions are no less foolish than theirs who, as touching the Genoese and Venetians, are wont to be in the same dream, which opinions that they are fond appeareth more clearly even by this, that every one of these nations cannot prescribe against themselves. That is to say, the commonwealth of the Venetians cannot prescribe against itself, nor the commonwealth of the Genoese against itself, nor the kingdom of Spain against itself, nor the kingdom of Portugal against itself. For there ought to be a difference between the agent and the patient.
But against other nations they can prescribe much less because the right of prescription is mere civil, as we have before declared at large. Therefore, such a right ceaseth when the case is between princes or people not acknowledging a superior in temporal things. For laws which are mere civil, of what country soever, as touching foreign people, nations, or particular men, are no more in consideration than if indeed there were no such law or never had been, and we must have recourse to the ancient common or secondary law of nations and are to use the same, by which law it is sufficiently known that such prescription and usurpation of the sea was not admitted. It maketh for our purpose, for even at this day the use of waters is common no otherwise than it was from the beginning of the world. Therefore in the seas and waters no other right can be to mankind than for the common use. Moreover, by law natural and divine it is commanded that thou do not that to another which thou would desire not have done to thee. Whereupon, seeing navigation can be hurtful to none but to him that saileth, it is meet that none either ought or can be barred, lest in a thing which is free by nature and nothing at all hurtful unto him he hinder or hurt the liberty of such as sail contrary to the said precept and contrary to the rule, especially seeing all things are understood to be permitted which are not found expressly forbidden. Furthermore, it should not only be against the law natural to be willing to hinder such navigation, but also we are bound to do the contrary: to wit, to profit those whom we may when it may be done without our damage.
Which, when he had confirmed by many divine and human authorities, he added after:
By those things which have been formerly delivered it appeareth also that the opinion of Faber, Angelus, Baldus, and Franciscus Balbus (whom we before recited) is suspected, who thought that common places, by the law of nations although they could not be gotten by prescription yet by custom they might, which is altogether false, and that tradition is a blind tradition and of no force and without any light of reason and making a law for words and not for things. For in the examples of the sea of the Spaniards, Portugals, Venetians, Genoese and the rest, it is manifest that such a right of sailing and of forbidding others to sail is no more gained by custom than by prescription. For in both cases, as appeareth, the reason is alike. And because by the laws and reasons before alleged it had been against natural equity nor should procure any benefit but only hurt, and so as by express law they could not be brought in, so also nor by the secret law such as custom is. And it could not be justified by time, but should daily be made worse and more injurious.
After that he showeth that from the first possession of countries, as the right of hunting so the right of fishing in their own river may belong to a people, and after those things are once separated from the ancient community so that they admit a particular application by prescription of that time, the memory of whose beginning is not extant, they may, as it were by the secret grant of the people, be gotten and obtained. But that this cometh to pass by prescription not by custom, because the condition only of the getter should be made the better and the estate of the rest the worse. And when he had reckoned up three things which are required to prescribe a property for fishing in a river, he addeth:
But what for the sea? And therein it is more, that even the concurring of these three things would not suffice to get a right. The reason of the difference of the sea on the one part and the earth and rivers on the other is this: because in that case, as in times past so at this day and always, as well for fishing and for navigation, the ancient law of nations remained entire, nor was it ever separated from the community of men and applied to a particular man or to any. But in the latter case, to wit, in the land or rivers, it was otherwise, as we have now disputed.
But why did the secondary law of nations, as it maketh that separation for countries and rivers, cease to do the same in the sea? Answer, because in that case it was expedient it should be so, but in this case it was not expedient. For it is manifest that if many hunt on the land or fish in a river, the forest will soon be without game and the river without fishes, which is not so in the sea. Further, a river is easily emptied by conduit; it is not so in the sea. Therefore in both the reason is not alike.
Nor doth it appertain to the matter which we said before, that the use of waters was common, even of fountains and rivers. For it is understood concerning drinking thereof and the like which lightly, or little or nothing, hurt him who hath the right or dominion of the river. For the least things are not respected in the law. It maketh for our opinions because unjust things can be prescribed by no time and therefore an unjust law is prescribed or justified by no time.
Again, those things which are unprescribable by the disposition of the law should not be prescribed, though by a thousand years, which he maintaineth by innumerable testimonies of doctors.
No man but now seeth that for the intercepting or forestalling of the use of a common thing no usurpation of any time how long soever can profit or avail. Whereunto we must also add that their authority who dissent or disagree can no way be applied to this question, for they speak of the Midland Sea, we of the ocean, they of a gulf, we of the huge sea, which in the manner of occupation differs much. And they to whom they lightly grant prescription, even they possess the shores bordering on the sea, as the Venetians and the Genoese, which even now was plainly proved could in no wise be said of the Portugals.
Nay, but if time could profit anything, as something it may in public things which appertain unto the people, yet those things appear not which are necessarily required. For first all men teach that it is required that he who prescribeth for such an act should exercise the same not only a long time but such a time as exceedeth memory; then, that for so long time no man else exercised the same act, but by his grant, though it were secretly; and further that he hath forbid others that would use it, they to whom the matter appertaineth knowing and suffering it. For although he had always exercised it and had always forbid some who would have exercised it yet not all, because some were forbidden but some exercised it freely, that truly was not sufficient by the doctors’ opinion.
But it appeareth that all these things must concur, both because the law is an enemy to prescription of public things and also that he which prescribeth may seem to have used his own right and not the common right, and that without interrupting his possession. And seeing such a time is required of whose beginning there is no memory, it is not always sufficient, as the best interpreters declare, to prove that one age is run out. But it ought to be manifest that the fame or report of the thing was delivered over by our elders unto us, so that none remaineth alive who hath seen or heard the contrary.
The Portugals by occasion of the affairs in Africa, in the reign of king John in the year of our Lord God 1477, began first to search into the farthest parts of the ocean. Twenty years after, under king Emmanuel, they sailed beyond the Cape de Bona Esperanza, and long after they came to Malacca and the further islands, unto the which the Hollanders began to sail in anno 1595, doubtless within an hundred years. But now also, forasmuch as the usurpation of others came between in that time, it hath hindered or barred prescription, even against all others. The Castilians from the year 1519 have made the possession of the sea about the Moluccas doubtful to the Portugals. The French also and English, not privily but by open violence, have broke through thither. Besides, the borderers of all the coast of Africa or Asia have every one of them usurped by fishing and sailing part of the sea next unto them never forbidden of the Portugals.
Let us therefore conclude that the Portugals have no right whereby they may forbid any other nation from sailing the ocean to the Indians.