Hugo Grotius’s Reply
“Defense of Chapter V of the
Which had been attacked by William Welwod, Professor of Civil Law, in Chapter XXVII of that book written in English to which he gave the title “An Abridgement of All Sea-Lawes”
A few years ago, when I saw that the commerce with that India which is called East was of great importance for the safety of our country and it was quite clear that this commerce could not be maintained without arms while the Portuguese were opposing it through violence and trickery, I gave my attention to stirring up the minds of our fellow-countrymen to guard bravely what had been felicitously begun, putting before their eyes the justice and equity of the case itself, whence I thought was derived “the confidence” (τὸ εὔελπι) traditional with the ancients. Therefore, the universal laws of war and of prize, and the story of the dire and cruel deeds perpetrated by the Portuguese upon our fellow-countrymen, and many other things pertaining to this subject, I treated in a rather long Commentary which up to the present I have refrained from publishing.
But when, a short time thereafter, some hope for peace or truce with our country was extended by the Spaniards, but with an unjust condition demanded by them, namely, that we refrain from commerce with India, a part of that Commentary, in which it was shown that this demand rested neither upon law nor upon any probable color of law, I determined to publish separately under the title of Mare Liberum, with the intention and hope that I might encourage our countrymen not to withdraw a title from their manifest right and might find out whether it were possible to induce the Spaniards to treat the case a little more leniently, after it had been deprived not only of its strongest argument but also of the authority of their own people. Both of these considerations were not without success. To this little book I had refrained from signing my name, because it seemed to me to be safe, like a painter skulking behind his easel, to find out the judgment of others and to consider more carefully anything that might be published to the contrary. For this purpose I had no idea that I would not have the leisure which is now wanting. In fact, I was expecting that some Spaniard would write a reply to my little book, a thing which I hear was done at Salamanca, but as yet I have not happened to see that book. Meanwhile, a man erudite and much disposed to defending paradoxes, William Welwod, Professor of Civil Law, published at London a book in English entitled An Abridgement of All Sea-Lawes, in Chapter XXVII of which he proceeded to attack directly Chapter V of the Mare Liberum.
Now the inscription of that Chapter V of my book was as follows: “Neither the Indian Ocean nor the right of navigation thereon belongs to the Portuguese by title of occupation.” With this inscription the order and continuity of the entire chapter is clearly in harmony. But, in order to prove what I had had in mind, I had divided the treatment there in such a way as to make clear this sea neither could be occupied nor in fact had been occupied by the Portuguese. To show that it could not have been occupied, I used the following argument. The sea can not become the property of anyone, but owes forever to all men a use which is common to all. To clinch the argument, I cited authorities who asserted that not even fishing on the sea could be prohibited by anyone. This argument had a twofold use. For the cause was demonstrated from the effect, namely, the community of the sea from the freedom of fishing; and the less from the greater, for if fishing should be free, which takes something from the sea, much more would navigation, which takes nothing. This question of fishing, therefore, was not “a general position” (στάσις), but “a special point” (εἰδιϰόν τι ϰεϕάλαιον), as is apparent to anyone who reads.
But Welwod, a man rather suspicious and who can see what does not exist, tries to persuade himself and others that the intention of the author was to assert the freedom of fishing and that the Indian controversy was used for the attempt. Now the argument which he adduces in support of this suspicion, namely, that it is ridiculous to defend the freedom of navigating the sea because that is not called into question, I do not see how I could more appropriately term than by the use of his word, ridiculous. If there were greater regard for justice and truth than for private interests, surely freedom of navigating the sea would not be called into question, but no more would freedom of fishing be called into question. For in support of the freedom of both is the very excellent testimony of nature and of the jurists.
But we live in an age in which there is nothing so certain that it may not be called into question. Every case finds its patron. So, Welwod attacks the freedom of fishing; others, in spite of Welwod’s denial, the freedom of navigation. That the Spaniards claim that freedom of navigation over certain parts of the ocean is prohibited to the other nations is known both to the French and to the British, who have participated in peace negotiations at Vervins and London. The same thing is experienced daily by the sailors of different nations, whom the Spaniard hostilely attacks on the ground that freedom of navigation has been usurped. Finally, the Spanish Senator Vázquez acknowledges it and these are his very words:
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.
Welwod surely ought not to have said this right has not been called into question by anyone. Because both the Venetians and the Genoese have defended it in word and deed as regards the Mediterranean, and both the Spaniards and the Portuguese as regards the ocean. Much less should he have, upon such a foundation, erected that suspicion, as if one thing were done and another pretended. We now show how the argument drawn from fishing pertains to the question of navigation. This can be made apparent even from Welwod’s book itself. For he, in order to destroy freedom of fishing, maintains that the sea can be the property of someone, and this, indeed, necessarily for his purpose. For the use of that which belongs to no one must necessarily be open to all, and among the uses of the sea is fishing. Now he who has conceded that the sea belongs to someone is very easily led to concede likewise that transit over it is not free, after the manner of an estate, entrance to which the owner can forbid to the non-owner.
It is certainly a very powerful argument, for maintaining the freedom of navigation, that the sea belongs to no one. For if anyone tries to say that the sea belongs to someone, but in such a way that it owes to others the servitude of transit, he will easily be refuted by the reply of Ulpian, who said that a servitude can not be imposed upon the sea for the reason that the sea is by nature open to all. Therefore those who, borne from abroad, navigate on the sea, do not do this on another’s property by the right of servitude, but on something that is common to all by the right of liberty. No other argument is used by the Emperor Justinian when he says: “And indeed by the natural law these things are common to all: air, running water and the sea, and, therefore, the shore of the sea. No one, therefore, should be prohibited access to the shore of the sea.” Here the word “therefore” shows that the cause of free access is the very community of the thing, and when this is removed, it follows that freedom of access also is removed.
Therefore by a certain nexus the right of fishing inheres in the right of navigation, and so Ulpian joins them together as cognate, “may anyone be prohibited from fishing or navigating on the sea?” and says that in both cases action for damages is competent. Far from that disputation in defense of the community of the sea giving just offense to the British, on the contrary that labor should be especially pleasing to them, seeing that it strongly supports the case of the British against the Spaniards. For no weapon could be more effectively opposed to the Spaniards in their desire to prevent the British and other nations from navigating the Indian Ocean than this: “The sea is common to all; therefore no one should be prohibited access thereto.”
Welwod fashions for himself a straw soldier when he says that the foundation of the Mare Liberum was determined by himself to be as follows: “Land and sea, by the first condition of nature, hath been and should be common to all, and proper to none.” Scarcely anything more foolish could have been said. Far different is the opinion of my little book, as is clear even from that Chapter V itself. For here it is shown that by nature neither land nor sea is the property of anyone, but that land through nature can become property, while the sea can not. A great difference, therefore, is established in this part between land and sea. These are the very words:
Which being so, all immovable things—to wit, fields—could not remain undivided.
Occupation or possession in movables is apprehension; in immovables, instruction and limitation.
And still farther on:
But occupation is made public after the same manner that it is made private. Seneca saith, “we call those the bounds of the Athenians or Campanians which afterward the borderers divide among themselves by private bounds.” For every nation,
- partita fines regna constituit, novas
- extruxit urbes.
After this manner Cicero saith, “the territory of the Arpinates is called Arpinatum, of the Tusculans, Tusculanum; the like description,” saith he, “is of private possessions, whereupon because every man’s own consisteth of those things which by nature were common, let every man hold that which fell to his share.” But contrariwise Thucydides calleth that land which fell to no people in division αοριστον, to wit, indefinite.
Of these things which hitherto have been spoken two things may be gathered. The first is that those things which cannot be occupied or were never occupied can be proper to none because all propriety hath his beginning from occupation. The other is that all those things which are so ordained by nature that anyone using them they may nevertheless suffice others whomsoever for the common use are at this day (and perpetually ought to be) of the same condition whereof they were when nature first discovered them.
Soon thereafter come the words:
Of this kind the air is for a double reason, both because it cannot be possessed and also because it oweth a common use to men. And for the same cause the element of the sea is common to all, to wit, so infinite that it cannot be possessed and applied to all uses, whether we respect navigation or fishing.
And some pages later:
The sea therefore is in the number of those things which are not in merchandise and trading, that is to say, which cannot be made proper.
Therefore he who wishes to express properly the opinion of that little book should not lay down the foundation which Welwod fashions for himself, but that which the author himself has expressed only too clearly: “The sea not only was common from its first origin, but also can not become the property of anyone by nature.”
This pronouncement of right reason is nowhere opposed by Holy Writ, nor is it out of harmony with those surest of witnesses, nature and Scripture. Welwod first cites what was said by God to Adam and Eve: “You shall have dominion over the fish of the sea and the birds of the air, and all the beasts crawling upon the earth.” But this passage has no connection with the question of property, for the ownership which God there confers is universal, not particular, as was properly explained in the Mare Liberum. God gave those things not to this person or that person, but to the human race. For Adam and Eve bore the personality of the whole human race, both because they were the only human beings of that time, and because the line of the human race that was to come was contained in those two as the very cause and principle of being. Therefore there is no question there of a right which is competent to men against other men, but of one to all men against the lower creatures. So, in the words that follow, God says that the grasses are granted by Him to the beasts, namely in the same way as He had granted the beasts themselves to man to be used, ordaining all lower things for the use of the higher. Hence it is clear that there is indicated by the divine words “a having and possession” (τὴν ἕζιν ϰαὶ σχέσιν), which “species” (τὰ εἴδη) have “with regard to species” (πρὸς τὰ εἴδη), not “individuals with regard to individuals” (ἕϰαστοι πρὸς ἕϰαστα).
But if anyone nevertheless should persist in claiming that there is question here also of the right of occupation by which individuals make individual things their own, not even then does this argument contribute anything to the point. For there is mention there only of living creatures, swimming, flying and crawling; no mention of the sea also. As for Welwod’s remark that the fish of the sea could not have been put in subjection unless the waters likewise were put in subjection, if by the word “subjection” he understands that use which the sea owes to the human race in common, we shall have no objection. But if he extends it to mean that the sea, no less than the fish themselves, can become the property of any men, this neither will the words of Scripture nor any reason bear out. For the difference between these is great, and we have shown in the Mare Liberum that it was not unknown to Athenaeus and Plautus.
Indeed, that argument is of such slight consequence that it could properly be altered and twisted back against Welwod in the following way. It is licit for anyone to catch fish in the sea, therefore it is clear that the sea belongs to no one. For if the sea belongs to anyone, it would no more be licit for others to catch fish there than it is licit to fish in another’s lake or fish-pond or to hunt in another’s hunting-ground. Just as Ulpian was right then, when he said that he who builds on the sea does not build on his own property, but makes the building his own by the law of nations, so no less right would it be for us to say that one who fishes in the sea does not fish on his own property, but makes the fish his own by the law of nations.
Another passage which Welwod cites as favoring his opinion is from the story of the sons of Noah. “Moses saith, These are the isles of the nations divided in their lands.” For the Hebrew word in that passage should more properly be translated “regions” or “provinces” than “islands,” since few nations have their abode in islands, while all are distributed into provinces and regions. And what is this but what was in the Mare Liberum, that the individual lands were occupied by individual peoples, whence one land was called that of the Arpinates, another of the Tusculans, these the territory of the Athenians, the others of the Campanians?
Moreover, Moses does not say that “the seas” were divided by the nations. Nor if that interpretation please which says that the islands were divided, does it therefore follow that the sea also was divided. For an island is one thing and the sea another. An island is circumscribed by limits, not so the sea. The sea owes a common use, islands do not. Indeed, it is on this very account that an island rising up in the sea becomes the property of the occupier, because the sea belongs to no one. For an island which arises in water that belongs to someone becomes the property of him to whom the water belongs. If the sea were bounded by islands, it might be possible to say that the sea was occupied at the same time as the islands were occupied. Now since the islands are in the sea and not the sea in the islands, what sane person will say that the islands could not have been occupied without the sea also being occupied?
There is no reason, therefore, why Welwod boasts of the authority of Holy Writ, in which there is not the least bit of support for his position. There is no reason also why in this attack he should escape the testimony of illustrious authorities in favor of the freedom of the sea. For when we have not the divine words, the next best thing to be considered in a question of the law of nations is, what have the different nations decided from ancient times; and if it is clear that they have held the same opinion, this should be considered as a great argument for truth. For, as Heraclitus rightly said, “the common word is the best criterion, for what seems best to all is trustworthy.”
Among these [common opinions] I greatly wonder that that statement of Cicero should be ridiculed, namely, that “there is nothing private by nature,” since it is of most evident truth. For Cicero does not mean thereby that nature is opposed to ownership, and, as it were, forbids anything at all becoming property, but that nature of itself does not cause anything to be property. This can be gathered from the following. Nature produces the rest of things for men, but without distinction, not “this for this one and that for that one.” Therefore, in order that this thing become the property of that man, some deed of the man should intervene, and therefore nature itself does not do this by itself. Hence it is evident that community is prior to property. For property does not occur except through occupation, and before occupation, there must precede the right of occupation. Now this right is not competent to this man or that man, but to all men equally, and is rightly expressed under the term “natural community.” And hence it happens that what has not yet been occupied by any people or by a man is still common, that is, belongs to no one, and open equally to all. By this argument it is surely proved that nothing belongs to anyone by nature.
Another argument can be added, namely, that necessity, which reduces everything to the natural law, because the mother of positive law is utility which should yield to necessity, makes common again things formerly owned. By this law, if food becomes scarce on board ship, what each one has is gathered together in a common store. By this law, for the sake of warding off fire, it is licit to cut down neighboring buildings. Many things of this tenor can be seen in Thomas Aquinas and his interpreters.
Add also the fact that eminent theologians are of the opinion that in the primeval state of Paradise there was no property, that is, as distinct from use, and that there would not have been, had not sin intervened. This can be all the more probably defended, because both the Essenes of old and some peoples in America have made use of community of property, which even now a few congregations make use of, and indeed without great inconvenience. By this example it is proved that the statement, which is usually made and is adduced by Welwod, that “what is common is neglected, that community carries with it difficulty of administration, and that discord even arises therefrom,” is not “absolutely necessary,” but “a result of hypothesis,” since we have taken into consideration the cupidity of men who consult their own interest to the neglect of others. For otherwise, if the human race were of such character as the Christian disciples of the Apostles were in the earliest times, whose hearts and souls were one, why could there not be observed what was then observed, namely, that nothing belong to anyone, but all things be common?
Why is it that today even, although amid such great corruption of morals, still we see many things remaining common, not among private individuals only, but likewise among peoples, and not only for many years, but for centuries? Welwod himself wishes the sea to be common to the citizens of a single people. Consequently, even from this it is apparent that it has not been always and universally true that the disadvantages of community of ownership are greater than the advantages.
Nor is it unworthy of mention that, shortly after the creation of the world, when the number of the human race was small and living was simpler, that ownership of individual things which is distinct from use was much less necessary than it is now, than it became afterwards. For a certain necessity of ownership as it were arose from the fact that some things were sufficient for the uses only of a few individuals. Thus we see in arid regions there has been a departure from community of land after competition over wells had arisen. Thus with the increase in the number of cattle, the lands which were common to Abraham and Lot soon began to be divided. Hence you may without rashness gather that, even after sin entered the world, many things remained common, which by degrees, as the human race grew and the desire for luxuries likewise increased, yielded to individual right.
I do not regret having said these things incidentally, in order that it might be evident that those statements, which very estimable authorities have set down with regard to the original community of property, had their origin in truth, whether an inference of reason led them to that conclusion or whether they themselves had transmitted to posterity the story received from their progenitors. Since all these same authorities relate that by degrees the earth was afterwards divided among many owners, while the sea remained perpetually common to all men, rightly should those who contend to the contrary be suspected of novelty, seeing that out of all antiquity they can not adduce even a single supporter of such unheard of doctrine.
Now let us come to the Roman jurists. Since Welwod knew they had great authority also in explaining the law of nations, he preferred to attribute his own opinion to them rather than to ridicule them likewise as he had ridiculed Cicero. Indeed, that nothing might be wanting to his boldness, the very authorities whom with great violence he attempts to draw over struggling and protesting to his side, these he dares to say were distorted by the author of the Mare Liberum. But which of the two did violence to them will be easy for him to judge who has both interpretations before his eyes. We affirm that this was their opinion, that the sea remained common to all men. He, however, denies this and says that they intended nothing else than that the seas were common to any citizen whomsoever of a single people and not likewise to other men, likewise that ownership of the sea belonged to him who commanded the land nearest, that is, in a democracy the sea belongs to the people, in a kingdom to the king. Now that these statements are quite foreign to the opinion of the Roman jurists, we make evident by the following arguments.
The first is one which I shall take from the universal term to which no restriction is found to have been added. The emperor says in the Institutes, following Marcianus, that the sea is common “to all,” and explaining this Theophilus says “common to all men” (ϰοινὸν πάντων ἀνθρώπων). From this universal assertion both Marcianus and the emperor infer the following universal negative: “No one therefore is prohibited access to the shore of the sea.” It would not be licit to do this, if the word “all” did not signify what Theophilus expressed, namely, “all men,” for “no one” is beyond controversy the same as “no man.” Therefore the following argumentation is valid. The sea and the shore (insofar as it is the approach to the sea) are common to all men, therefore no man is to be deprived of access thereto.
But if you should say, “The sea and the shore are common to all citizens of a single people,” it will not be possible therefrom to effect that no one is to be prohibited access, but only no one of the citizens of that people. Add also what Ulpian said, that the sea was by nature open “to all,” and elsewhere that the sea is common to all, and the shores, just as is the air: and Celsus, that the use of the sea is common “to all men,” which phraseology manifestly excludes every exception. For it is one thing to say “all men” and another to say “all citizens.” Neratius likewise stated no less absolutely that the shores have come into the dominion “of no one.” He did not say “of no private citizen,” but simply “of no one,” therefore neither of people nor prince.
Now whatever is affirmed of the shore is much more to be affirmed of the sea. For these qualities belong to the sea per se; to the shore, on account of the sea. Hence Justinian said that the sea was common and “therefore” the shores of the sea, likewise that ownership of the shores is of the same right as of the sea and the land or sand underneath the sea. But if one thing is of such and such a character on account of something else, much more is this something else of that character.
The second argument is the following very strong one, that in the jurists such terms as “to be common to all” and “to be public to the people,” “are opposed” (ἀντιδιαιρεῖται); therefore these expressions can not have the same value, which Welwod nevertheless wishes. This is evident from the Institutes, where the emperor first says: “By the natural law some things are common to all, some things public”; then: “By the natural law the following are common to all: air, running water and the sea, and therefore the shores of the sea”; and then there follows: “But all rivers and ports are public.” Herein should be noted incidentally this “sign of opposition” (σημεῖον διαιρέσεως). Not otherwise is Theophilus: “By the natural law the following are common to all men: air, running water, the sea”; thereafter: “But all rivers and ports are public, that is, to the Roman people.” But since the rivers belong to any people or to him to whom the rights of the people have been transferred, how can the sea be assigned under a different head from the rivers unless the community of the sea is of greater extent? Or how could “common to all” and “public” constitute different species, if they signify one and the same thing? What, therefore, is “the distinguishing characteristic” (εἰδοποιός) between these “differences” (διαϕορὰ)? And we must not omit here that passage of Celsus: “The shores over which the Roman people have sovereignty (imperium), I think, belong to the Roman people, but the use of the sea is common to all men.” Manifestly he opposes to one another those things which belong to the Roman people and those things which owe a common use not to the Roman people merely, but to all men, and in the latter category he enumerates the sea.
Nor should it offend anyone that Celsus lays down a distinction between the shore and the sea, which are treated together by others. For, although with regard to the shore Celsus may have had his own idea (which that expression “I think” seems to indicate), nevertheless with regard to the sea he does not dissent from the others. And yet it seems to me more probable that the word “shore” is taken by Celsus not according to the Aquilian definition, insofar as waves run out therefrom, but in a somewhat broader sense as is often wont to be done and as has been observed by the grammarians on that passage of Virgil: “The huge trunk lies on the shore.” This definition is proved from a passage of Paulus, where, naming the shores nearest to the sea, he tacitly distinguishes them from the other shores which are farther distant from the sea and are therefore not an approach to the sea. Meanwhile it can not be denied that the sea is expressly removed by Celsus from those things which belong to the Roman people. Neratius indeed says that even the shores (insofar as they are an approach to the sea) are not of the patrimony of the people, on the contrary he says that they belong to no one. His words are: “Whatever anyone has built on the shore will be his own, for the shores are not public in the same way as those things which are of the patrimony of the people, but as those things which were first produced by nature and have as yet come into the dominion of no one.” He could not have distinguished more clearly what belongs to no one from public property. But if Neratius thought so with regard to the shore, with regard to the sea certainly he had no doubt, since, as we have said before, he attributed to the shore nothing in this regard except insofar as it is the last part of the sands of the sea and therefore a continuation of the sea.
The third argument will be this, that the community of the sea is referred by the Roman jurists to a natural condition, which does not distinguish people from people. Pertinent hereto is that passage of Neratius just cited, “. . . as those things which were first produced by nature and have as yet come into the dominion of no one.” Now it is certain that things when they were first created did not belong more to a people than to any man, and what even now has remained in its natural condition, occupied by no one, for instance, unknown and desolate islands, belongs to no people or prince. Hereto is also to be referred the statement of Marcianus and the Emperor Justinian, “By the natural law they are common to all,” and of Ulpian, “The sea is by nature open to all.” For nations and kingdoms are not distinguished by nature but by human will. Therefore, in regard to those things which are common according to nature no people can have any preferential right over another people.
This reasoning is rightly explained by Faber when he says: “The sea and the shores have been left in their own right and primeval being, wherein all things were common; but rivers, ports, etc., are public, because they belong to the people so far as dominion goes.” Nothing could be said with greater truth or explicitness than this. And so I wonder much at Welwod’s statement that he has replied to this passage, for I certainly do not see what he has replied or even could reply. In point is that passage of Placentinus, praised likewise by Faber, that the sea itself is common and is under the dominion of no one save God, the sense of which is as follows: Although many things under God as supreme Master receive other masters, nevertheless besides that supreme and first Master the sea has absolutely no other master. Theophilus had said that “no master claimed it as his own property.” Otherwise if he had said nothing regarding the sea which was not applicable also to the land and other things, there would have been therein no “besides.” Rightly therefore with David do we say that the land is the Lord God’s, but it will not be correct to say that it is under no other dominion save God’s, unless to the word “dominion” is added the word “supreme,” “absolute” or something similar.
Upon these arguments therefore our opinion rests, not only upon the word “common” which the jurists use. Consequently Welwod strikes at his own shadow, when he attacks this one argument rather seriously, and, to show that the word “common” is sometimes taken in a more restricted sense, cites the passage from Modestinus: “Rome is the common country,” although nevertheless Modestinus would not write thus, but with a little more accuracy: “Rome is our common country.” “Our,” that is, as the constitution of Antoninus says, “of those who live in the Roman world.” But let Welwod show that in some place where it has been said “common to all men,” where this word “common” is distinguished from the word “public,” where it is added that it is common “by nature,” that there it is to be understood as “common to the citizens of a single people,” and then we shall confess that something has been brought forward by him which is not foreign to the subject.
The reason that the word “public” is sometimes applicable to the sea might seem more plausible, if this objection had not been met in the Mare Liberum with the surest of reasons. For since those things common to all (among which is the sea) are sometimes distinguished from those things which are public and sometimes are called public, it follows necessarily that the meaning of the word “public” is twofold. For sometimes the word is properly taken for that which belongs to the people and sometimes in a broader sense to include also those things which belong to the entire human race, by a metaphorical use of the word which is not obscure; because the human race is like a great people, and hence some philosophers call this world a city and themselves “cosmopolitans.” Nor is this transferred use of the word “public” found only among the jurists. We have cited that noble passage of Ovid:
- … The use of water is common:
- Nature hath made nor sun nor air nor billowing waters
- Proper to one alone: I have come for gifts that are public.
For Latona is speaking to the Lycians and she calls public what she had previously called common and indeed according to nature. Hence also come the following: “To publish a book,” “To publish a corpus.” It must likewise be noted that if “precision” (ἀϰριβολογία) be sought, it should be referred particularly to those passages of the jurists where this controversy is treated ex professo and not where this argument is touched upon in passing. Now the more appropriate passage is that wherein is treated the division of property (De rerum divisione). There indeed the sea is not enumerated among the public things, but is separated from the public things as if “heterogeneous,” as we have already shown. And what about the fact that the jurists themselves have given sufficient warning lest “the homonym” of the word “public” deceive anyone, as Neratius when he said that these “are not public in the same way as those things which are of the patrimony of the people, but as those things which were first produced by nature and have as yet come into the dominion of no one.” For manifestly there is here a distinction of an ambiguous word with regard to its signification, as if he were to say: “The word public indeed is properly taken for that which is of the people, as its origin indicates, but with regard to the sea and the shore it is taken in a special sense and means nothing else than common to all, belonging to no one.” And so other jurists for the sake of distinction call these same things “public under the law of nations” to distinguish them from those things which are under the law of the people. For what the expression “under the law of nations” indicates is sufficiently shown by those passages of Marcianus and Justinian, where they say that villas and monuments must not be placed on the shore, “because they are not under the law of nations as is the sea,” which Theophilus thus expresses: “For these things are not common to all men under the law of nations as is the sea.”
Let us conclude, therefore, from these very words of the Roman jurists that the sea is common to all and just as it was produced first by nature has come into the dominion of no one, and therefore is not in the patrimony of the people, is open by nature to all, is of the law of nations and its use common to all men.
From this let us proceed to infer that, if the use of the sea is common to all men, therefore no man should be prohibited from fishing on the sea. Thus the emperor says: “Because the use of the sea is public under the law of nations, therefore everyone is free to let down his nets from the sea,” which Theophilus thus expresses: “It is granted to all who wish it to let down their nets from the sea.” Marcianus argues in a similar fashion: “By the natural law the sea and the shores of the sea are common to all; no one therefore is prohibited access to the shore of the sea for the sake of fishing.” In these passages should be noted the universal terms, “to all,” “everyone,” and “no one,” and the universal cause, namely that the sea is “naturally common to all,” for a universal cause produces a universal effect.
Similar is the following argument of Ulpian: “And yet a servitude upon the sea, which by nature is open to all, can not be imposed by private law,” namely, that fishing be not exercised in a certain location. Here “emphasis” is not on the words “private law,” but on the word “servitude”; but there has been added “by private law,” because of the species of action which was in question, for that question had arisen between private individuals. The argument would have equal weight if you should say, “Servitude can not be imposed by people or prince upon that which is open by nature to all,” as if you were to say, “can not be imposed by a private individual”; for the force of the argument is evident in the particular words. The sea is open, that is, it is free, therefore it does not permit a servitude. It is open to all, therefore no one is to be excluded. It is open by nature to all, therefore there is no one who can make a decree against anyone else, since nature is no less potent against princes and peoples than against private individuals. Therefore he who prohibits anyone else from fishing on the sea, whoever he is, commits a wrong. Hence Ulpian: “If anyone is prohibited from fishing or navigating on the sea, use is to be made of action for damages,” and in another passage: “Yet even this, that anyone may be prohibited from fishing before my house or camp, was made use of, although by no right; therefore, if anyone be prohibited, action for damages is still possible.”
Let there be a second conclusion therefore from the selfsame words of the jurists. Since the sea by its nature is open to all and its use is common to all men, it is licit for anyone to let down nets from the sea and no one is to be prohibited from access to the shore for the sake of fishing, and if anyone is prohibited from fishing on the sea, action for damages is possible.
And since this is so, and the very opinion included in the Mare Liberum is enunciated in almost the same words in the ancient authorities of Roman law, it is a marvel with what confidence Welwod dares to say that laws and responses (responsa) advanced in behalf of the freedom of the sea have nothing at all to do with the case. But no doubt an evil case borrows perfidy from boldness. Therefore, with these hushed but not crushed, he attempts to clothe his own pronouncements with unwonted antiquity by means of the testimony of the ancient jurists. But could he not have found anyone to say that the sea belonged to a prince or a single people, and its use was open to the citizens of only a single empire, and therefore foreigners could be prevented from fishing on the sea? None of these. For how could they say such things, after they had stated so roundly that the sea was not in the patrimony of a people, but was open by nature to all, and that its use was common to all men, and that no one should be prohibited from fishing? For the jurists were not so simple as to dissent so openly from themselves, nor Tribonianus and his helpers so stupid as to insert in a single Corpus, as being entirely consistent, statements which were manifestly contradictory. Not therefore ingenuity, but material was lacking here to Welwod for erecting this edifice.
Nevertheless let us see what he could finally adduce. “The words of Ulpian,” he says, “I read to the following effect: There are some who think action for damages is possible to me.” But you who have read these words, have you not read also those presented a little below, where Ulpian makes the clear assertion: “If anyone is prohibited, action for damages is possible,” and indeed in a more serious question. For in the earlier words “in his thesis” the question is raised whether action for damages is competent to him who is prohibited from fishing on the sea or letting down his nets; but in the later words “in the hypothesis” which is of more difficult controversy, whether action for damages is competent also to him who is prohibited from fishing before the villa or camp of another, when it is taken for granted that he could be prohibited. Nevertheless Ulpian replies definitely ϰαὶ διαρρήδην (and explicitly) that action is possible.
It is customary for the jurists as well as the philosophers to speak at first after the manner of one doubting so that, when the question has been aired from every side, they might finally ornament and adorn the truth. So it is a fixed rule that in responses attention should be paid to the last part, because this contains the jurist’s own opinion. Had Welwod done this, he would not have struck that statement “There are some who think,” especially if he had been willing to consult still another passage of Ulpian, where without any hesitation he declares: “If anyone be prohibited from fishing or navigating on the sea, use is to be made of action for damages.”
Yet in order that it be more correctly understood what Ulpian intended by those words “There are some who think,” it must be noted that the doubt does not consist in whether he who prohibits another from fishing has committed an injustice, that is, “a wrong” (ἀδίϰημα), but whether he is bound by action for damages. For these are quite different things, and it is very clear from other examples adduced in the same response. “If anyone in decreeing honors, does not allow, for instance, an image or something else of this character to be decreed to some one, is he bound by action for damages; and Labeo says he is not bound, although he may have done it for the sake of disgrace.” He then goes on to say: “If duties or burdens are imposed on someone by way of damage, if sentence is imposed by way of damage, action for damages is not possible.” But there is in all these “a wrong” (ἀδίϰημα); nor is this questioned, but whether action for damages should be granted. So also he who prohibits another from fishing undoubtedly “does wrong” (ἀδιϰεῖ), for, as Ulpian says in that very passage: “The sea is common to all just as also the air,” but whether action for damages is competent against him is open to doubt.
The reason for doubt seems to have been this, that some have thought action for damages, just as other actions also, pertain only to what is done contrary to civil law and not to what is done contrary to the law of nations. So Pomponius says that he who builds on the sea has no civil action De faciendo. Therefore some, it seems, have thought that he who impedes fishing should be prohibited rather by force, just as in the same passage Pomponius said that he who with great disadvantage to others builds on the sea or on the shore should be prohibited by force. Not dissimilar is the fact that the interdict Uti possidetis is not granted to him who is prohibited from fishing on the sea by the common law, and the reason for this Papinian adduces: because interdicts are applicable to private cases, not to public ones. Also the fact that Ulpian says that the interdict Ne quid in loco publico fiat is not competent to him who is prohibited from fishing or navigating on the sea, while Labeo replied that, if anything is done on the sea whereby the way for navigation is made worse, since the proper interdict Ne quid in flumine could not be granted, a useful interdict conceived after the following manner, Ne quid in mari, is competent.
In all of these passages there is no question about the injustice of an action by which the use of a common thing is impeded, but about the proper remedy. Now although this doubt had some color, because the formulae of actions were found in the civil law, not in the law of nations, nevertheless concession has deservedly been made to the opinion that action for damages should be granted, because it has been established not only by the law of nations, but also by the civil law of the Romans, namely in rescripts of the emperors, that no one should be prohibited from fishing.
This is the reason why Ulpian added to his response: “And it has been very often handed down in rescripts that no one can be prohibited from fishing,” namely because the constitutions of the emperors form a very powerful part of the civil law. The law of nations sufficed to make the prohibition illicit, but that under this name a civil action be competent, the authority of the civil law from which civil actions emanate, was or certainly could seem to be necessary. But as to Welwod’s inference from this and from a not dissimilar passage of Marcianus, that those opinions of prudent men rest on the authority of the emperor, if he means that this which makes for his proposition rests primarily on that authority and that law derives its origin from the will of the emperors, manifestly this is opposed not only to those other responses which we have mentioned above, but also to those very passages of Ulpian and Marcianus.
“The sea,” says Ulpian, “is common to all and the shores, just as the air, and it has been very often handed down in rescripts that no one can be prohibited from fishing.” In the first place he posits the law of nations when he says that the sea is common just as the air, then by the interposition of the copulative conjunction he shows that this itself is approved also by the civil law. So also Marcianus: “By the natural law the following are common to all: air, running water and the sea and therefore the shores of the sea; no one therefore is prohibited access to the shore of the sea, provided however he abstains from villas and buildings and monuments, because they are not of the law of nations as is the sea; and this is what the Emperor Pius wrote in a rescript to the Formian and Capenatan fishermen.” I shall not dispute whether the Emperor Pius wrote in his rescript that no one should be prohibited from fishing, or whether he should refrain from villas and buildings, which is probable, because there is a similar rescript of the same emperor to birdcatchers: “It is not in keeping with the wishes of the emperor that you should hunt on others’ lands.” But, as I say, I shall not unwillingly grant that the Emperor Pius wrote in a rescript that no one should be prohibited from fishing. Didn’t Marcianus clearly, before the rescript of Emperor Pius, posit a natural law? Then he said: “and this the Emperor Pius also wrote in a rescript,” that is, besides the fact that this has been established by the law of nature or of nations, we have also a rescript of the Emperor Pius in harmony with the natural law. Who will infer from this that that law sprang from the will of the emperor and will not see that the contrary rather is contained in those words?
It is quite well-known that by the rescripts of a prince not always is a new law established or an ambiguity cleared up, but often new guards and sanctions are added to an old and well-known law. By the divine law it was clearly enough established what should be thought and taught about the Highest Trinity, yet the same is prescribed in the constitutions of the emperors. That children should be loved by parents and parents by children is commanded by the law of nature, yet the same thing was done by a Senatusconsultum. The freedom of a blameless defense proceeds from the law of nature, yet that this is licit has been handed down in rescripts by the emperors. The law of nations demands that contracts be fulfilled, nevertheless there are many statutes on this subject. And rightly all this, for the Prince is not only the legislator of the civil law, but the guardian and vindicator of the divine law, the natural law, and the law of nations. Falsely therefore does Welwod, from the fact that emperors have issued rescripts concerning the nonprohibition of fishing, infer that they have claimed for themselves ownership over the sea. Such argumentation would not proceed even in those cases wherein some new law has been established by the emperors, for princes make laws also with regard to the property of others, and the “law-making” (νομοθετικὴ) power comes from sovereignty, not from ownership. Hence the statement of Seneca: “Everything is under the sovereignty of Caesar, his own things in his patrimony.”
Welwod proceeds to ask to whom did the emperors issue such rescripts, was it not to their subjects? Therefore the use of the seas should be common only to the subjects. Again a wonderful deduction, as if it were said: “The king wrote to his subjects not to despoil anyone except a public enemy; therefore immunity from depredation is due to subjects alone.” Who does not see that there is considerable difference between the one for whom the law is laid down and the one whom the law benefits? A precept is given to fishermen subjects; but it is prescribed that they prohibit no one from fishing, without any distinction whether he be a subject or not. And yet even if the emperors had clearly forbidden their subjects to be prohibited from fishing, not even in this way could it be inferred that therefore foreigners could be prohibited. For what is affirmed of one species is not forthwith denied of another. Indeed on the contrary what is affirmed of a genus is rightly affirmed of the individual species. Consequently, not because it is proper to this species is it therefore improper to another. Moreover, that that statement “that no one be prohibited from fishing” is competent to a first genus and not to a species, that is, to subjects, is shown by those opinions which say that the use of the sea is common to all men and the sea is by nature open to all. For the phrase “to all men” denotes a genus, not a species, and what is natural can not be proper to that species which is distinguished from another not by nature but by institution.
There follows another argument of Welwod taken from Pomponius, wherein he said: “Although what is erected on the shore becomes ours, yet the decree of the praetor should be applied in order that it be licit to do this.” I shall not say that the question of building is different from the question of fishing; that by building that becomes one’s own which owed a common use, while by fishing only that which formerly simply belonged to no one. The very name of praetor shows well enough that no proper right to the sea or the shore either of people or of prince was indicated in that passage. For the Roman praetor had no administration of the property of the people while the commonwealth was free, nor of the property of the prince after the commonwealth was changed. Therefore he could not have granted anything out of the property of the people to anyone, but such a concession would have to be made either by a law, that is, by the will of the Roman people, or by a Senatusconsultum or by an edict or decree of the emperors, as is clearly witnessed in the formula of the interdict Ne quid in loco publico. Now the praetor, as the same M. Pomponius teaches elsewhere, was established for this purpose, to render the law; and that his functions have not been otherwise is very evident from all Roman history. Hence the statement of Cicero: “Let the praetor be the advocate of the law who shall judge or order to be judged private affairs.”
Falsely, therefore, does Welwod, in that passage wherein the decree of the praetor is treated, interpose another passage of Ulpian which pertains to the concession of an emperor. For Ulpian treats not of the shore or of the sea, but of the property of the people or even of a municipality. For when he was interpreting the edict Quod vi aut clam and had said that an exception should be granted to him who had done something with the permission of the possessor, he added that this permission should be so accepted not only if he whose property it was had permitted it, but also if the overseer, guardian or manager [had permitted it], because all these have the right of making the concession. But if the head or manager of the commonwealth had permitted [some one] to do something in a public matter, he says that an exception was written by Nerva: unless it were not permitted to take place, because indeed he had permitted who had not the right of permitting. For although, he says, the superintendence of public places is given to the head and manager of the commonwealth, nevertheless the concession was not given.
We see here that no mention has been made of the praetor, as one who has neither the superintendence nor concession. Afterwards Ulpian says that this reply of Nerva is true, if municipal law makes no further concession, that is, the power (arbitrium) of conceding, to the manager of the commonwealth. But that, if by the prince or by him to whom the prince shall have granted this right (jus) of conceding (in the affairs namely of the Roman people), the same should be approved: namely that in that case an exception was to be admitted. Who therefore does not see “to a human head a horse’s neck joined.” For Pomponius treats of the shore, Ulpian of the soil proper to a people or municipality; Pomponius of a decree of the praetor, that is, a judge, Ulpian of the concession of an owner or of him who acts in place of an owner; the owner or he who acts in his place gives the right to one who does not have it, the praetor declares what the right is and corroborates it by his authority.
But that it may be more correctly understood in what direction this decree of the praetor looks, it must be noted that what we have built on the shore becomes ours by the law of nations even without a decree of the praetor. “If anyone builds on the sea or on the shore,” says Ulpian, “he makes it his own by the law of nations.” And Justinian says that since the use of the shores is public “by the law of nations,” therefore anyone at all is free to place his house there. And Scaevola: “It is licit by the law of nations to build on the shore.” And Neratius says that that which anyone has built on the shore is his own, because the shores are in the same category as those things which were first produced by nature. Hence it is surely evident that both the right of building and ownership of the soil which has been built upon come from the law of nations as from a sole and sufficient cause. But by the law of nations this rule has the following exception: “unless public use is impeded,” as Scaevola says, “unless he does this to the inconvenience of the rest,” as Pomponius says, “unless the thing will be harmful to others,” as Ulpian said, “unless the use of the sea or of the shore become impaired,” which are the words of Celsus. Therefore if anyone builds to the hindrance of public use, he, as Pomponius says, may be forcibly prevented.
Hence will arise the great evil of conflicts and fights, if this one says he is building without hindrance to public use, while that one asserts public use is impeded. “Now why,” said Julian of old, “should the praetor allow those to proceed to arms and conflict whom he can compose by his own jurisdiction?” And that this was the meaning of Pomponius is evident from a similar statement of Paulus. “That is not to be conceded to individuals,” he says, “which may be done publicly through a magistrate, lest there be occasion for greater tumult.” Now it must be noted that this opinion of Paulus was taken from Book XIII to Plautius, in which he makes another fragment, cited from the same book, amply prove that he was dealing with the sea and the shore. And I scarcely doubt but that Paulus wrote this upon the same passage of Plautius from which Pomponius drew his statement about using a decree. For that that statement of Pomponius also was from Plautius, the inscription shows.
Not therefore because per se no one has sufficient right to build on the shore without hindrance to common use is a decree required; but lest there be occasion for greater tumult, if one denies and another asserts that the common use is impeded. Consequently it is better to have in advance the cognizance of the praetor as to whether the common use is impeded or not. Therefore those words “the praetor’s decree must be used, that it may be licit to do it” must be accepted with regard to the permissibility of fact, not of right. It is licit before the decree by the law of nations, but it is not safe. For it will be easy to find one who will wish to prevent forcibly; and if this is done, what formula will he try, since no interdict and not even a civil action has been put forth against such a deed? But if the praetor has interposed his cognizance, the one prohibited will be fortified not only by the law of nations, but by civil law also, and he will have someone to whom he may have recourse.
And this is what Ulpian said: “If no one is perceptibly injured, he who builds on the shore must be protected,” he must be protected namely by the office and authority of the praetor. So elsewhere the same Ulpian says that in order that anyone may demolish forcibly what another has built forcibly, he should proceed in no other way than from a great and necessary cause; otherwise all these things should be carried out by the office of the judge. Rightly therefore did Accursius say, in explanation of the response of Pomponius, that if the building did no injury to anyone, it would be valid even without a decree. For Pomponius had not said that a decree must be used for that which is built to become ours, nevertheless a decree must be used. In brief, where there is doubt whether public use is impeded by the building or not, a decree should be used, not because right is wanting, but because it is to the interest of the peace of subjects that it be done so; nor is the right granted by the decree, but the right is declared to be what it is and is placed beyond controversy.
Since therefore we have proved by the testimony of so many notable authorities that the use of the sea is common to all men by the law of nations and that consequently no one can be prevented from fishing, and since no patron of the opposite opinion can be adduced from all antiquity, I think the case is complete, even if I shall have adduced no reason why it should be so. For I do not see what is to prevent the dictum, that a reason can not be given for everything which has been established, from being extended also to certain precepts of the law of nations, especially if the reason be such that therefrom the precepts emanate as a necessary consequence.
For example, in the marriage of persons who are joined by proximate ties of blood or affinity, even if we did not have the written law of God, nevertheless it would by no means be licit to ignore that such a union is illicit, since the Roman jurists say that any such is incest by the law of nations and the Apostle Paul says that such a crime “was not even mentioned among the gentiles.” Now if anyone wishes to give a reason for this precept, he will not easily find one to which no objection can be made, or equally certain and evident as is the precept itself. And surely what need to scrutinize causes, when these are to be referred “to the judgment of God.” For in these also “the nations disclose the work of the law written in their hearts, their conscience bearing witness to them.”
Rightly therefore in the Institutes are the natural laws, among which are also to be included certain precepts of the law of nations, said to have been established by a certain divine providence. Hence not dissimilar is that phrase of Sophocles, “the unwritten and immutable laws of the Gods,” concerning which he also adds the following: “and no one knows whence they sprang.” Not otherwise is Isocrates: “An ancient custom under which all men continue to live, not as resting upon the nature of man, but as having been prescribed by the power of the deity.” Therefore this very fact, that God has insinuated such precepts in the minds of men, is sufficient to induce obligation even if no reason is apparent.
Again, there are other precepts of the law of nations which have their origin in tacit consent. These likewise can induce obligation even if none of them is a certain consequence of natural principles. Of this kind seems to be the precept with regard to the admittance of ambassadors. For just as among a single people, even if that people is not adapted to legislation, nevertheless usage and custom itself, which is the index of tacit consent, makes law, so also the primitive custom of the human race has the force of law. And hence it is that much of the law of nations is said to have been introduced by customs. Pertinent hereto is the statement in the Institutes, that the human nations established certain laws for themselves. Now these precepts, whether they arise from divine instinct or consent of the nations, are testified to both by the most ancient usage of civilized nations and by the authority of the wisest men. Since they abundantly support us in every particular in defense of the community of the sea, deservedly would this likewise have force as a precept of the law of nations even if the reason were obscure why it should have been thus established.
And here by the way we should correct the error of Welwod when he teaches that, whenever in this argument of the sea mention is made of the law of nations, it is not to be understood that a law made by the common consent of the nations, but only an example of the custom of other nations, is brought to our attention, as if the jurists intended to say: “The freedom of fishing in our seas and of doing a certain work on our shores is competent to every subject of the Roman Empire, just as the same fishing and right of doing work is competent to the subjects of other nations on their own seas and shores.” I do not wish to deny that sometimes, in the historians especially, the law of nations is taken improperly, not for that law which the nations have between themselves, but for that which certain nations, one following the example of another, have determined upon as law for themselves, that is, for the civil law of the different peoples. But this meaning, apart from being improper and rather rare, can not at all have place here. For we have shown above from the opinion of the jurists that the sea owes a common use to all men; but things which are of such a character are not governed by a civil law of one or more peoples but by the common law of nations. For the civil law governs those matters which pertain to the association of a single people, while the law of nations regulates those which look to the common association of the human race.
Now add the fact that the sea is not only said by the jurists to be common by the law of nations, but without any addition it is said to be of the right (jus) of nations. In these passages “right” (jus) can not mean a norm of justice, but a moral faculty over a thing, as when we say “this thing is of my right (jus), that is, I have ownership over it or use or something similar.” Besides, the same jurists, when they deal in this argument with law (jus) as the norm of justice, not only say that the sea is common by the law of nations, but in place of the same law of nations they frequently use the term natural law, as is clear from the Institutes. But this word can not be stretched to that law of nations improperly so-called, that is, to the law common by imitation to certain peoples. For nature is a universal principle, and those things which are natural are extended to all of the same nature, not by chance but by primitive destination. And therefore Aristotle defines “natural law” as “that which has the same force everywhere,” and so he distinguishes from that law “that which from the beginning did not differ in this or another way.”
We think nevertheless that the reason adduced by us why the sea can not become the property of any one is such that no one can prove it vain. Now it is such, because ownership of property began with natural possession, as Nerva the Younger says, and it can be shown “inductively.” But the sea can not be possessed naturally, neither its entirety nor any part which may remain joined and united to its entirety. For natural possession is, according to the definition of Theophilus, “a holding fast of a physical thing.” Paulus expressed the Greek ϰατέχειν (to hold fast) in Latin by “tenere” (to hold), and with Nerva makes its beginning to be apprehension. Now nothing can be apprehended unless limited corporally. But it is the nature of liquids to be limited by something else; and accordingly liquids can not be possessed except by means of that whereby they are limited, as wine is possessed by means of a vessel, rivers by means of their banks. Therefore an unlimited liquid is not to be possessed. But of such a character is the sea, and the river after it has passed outside of its banks; so far from it being possible for them to be possessed, on the contrary whatever is held by them ceases to be possessed.
Hence Labeo, Nerva, Paulus say that I cease to possess that place which the river or sea has occupied. And hence it is that, just as what has been built on the sea becomes private property (that is of the builder, because the sand under the sea has been limited by the building and is apprehended), so what has been occupied on the sea becomes public, as Aristo said —a statement which Neratius explains when he says that after the building which had been erected on the shore has been removed (for in this matter there is the same principle with regard to the shore as with regard to any maritime sea), the place does not remain his whose building it was, but reverts to its pristine condition and therefore becomes public as if there had been no building there. But he had said a little previously that by “public” in this matter should be understood not that which is a people’s but that which belongs to no one. Marcianus explaining the same thing says that the place, after the building is destroyed, reverts as if by the right of postliminium. Why, unless because only that part of the sea or shore can be possessed which is apprehended corporally, and the rest can not be possessed. Therefore the real reason why the sea can not become the property of anyone is expressed by Jean Faber, On the Institutes: “Because the sea is unapprehendable as is the air, therefore it was not connected with the property of the people.”
Now let us see how Welwod has attacked this reasoning. First, he says, the lack of solidity and the fact that it can not be trod upon in any manner, these do “not hinder the solid possession of it, far less the occupation and acquiring, if we will give to the sea, that which the jurisconsults indulgently grant to the land.” Then he cites the response of Paulus which is in full as follows: “It is not to be accepted in the sense that he who wishes to possess an estate walks around all the land (glebas), but it is sufficient for him to enter any part of his estate, provided he has this intention and thought, namely that he wishes to possess the estate to its limit.” Who does not see that this argumentation is vicious in a number of ways? To prove that a thing which is not solid and which can not be trod upon can be possessed, an example is adduced from an estate, that is, from a thing which is solid and can be trod upon. Then it is said that that must be granted to the sea which is granted to the land. But what is that? Namely that it is sufficient to have entered and walked upon a part? But there is no part of the sea which can be walked upon.
It is added that, if possession could not be impeded, much less could occupation be impeded. But the situation is far different; for since occupation is the cause of possession, more is accordingly required for it. For example, in the case of a wild beast, it should be captured and apprehended to be first occupied, while afterwards it is sufficient if it be guarded in any manner whatsoever. “For they are possessed,” as Nerva the Younger says, “insofar as they are under our custody.” He learnedly explains this as follows: “Since, if we wish, we can gain natural possession,” where natural possession is apprehension itself. Therefore for occupation the act of apprehension is required, for possession the power of apprehension is sufficient. And this indeed in the case of movables. But in the case of immovables, intention is sufficient for the retention of possession which has been begun by intention and physical apprehension. Therefore possession occurs much more easily than occupation and first acquisition.
But to press the point, the jurists describe possession in the case of movables by the physical apprehension (manuum prehensione), while in the case of immovables by the power of standing and sitting. Therefore that which can not be apprehended and can not be stood or sat upon, can not per se be possessed. Yet per aliud such a thing can be possessed, if it is comprehended in a more solid substance by which it may be possessed; for the contents are possessed by means of the container. The sea can not per se be apprehended, stood or sat upon. For it to be possessed per aliud, it would be necessary to establish two things, that the sea is contained by something else and that this container is possessed by someone—which it is quite certain does not happen.
With regard to the response of Paulus, there is no question there of the first occupation of the estate; for that estate under discussion had already been limited, as is clear from the words of the jurist. Now to limit a thing which belongs to no one is to occupy it, and without limitation occupation does not proceed. But once a thing has been occupied and limited, possession afterwards proceeds more easily, not indeed without physical apprehension, but in such a way that the act of the body over one part may be extended to the whole which has previously been limited physically. This too not otherwise unless there be something to hinder it. So if an army attacks with great violence an estate previously possessed by another, it obtains only that part which it has entered. Therefore there are three reasons why the response of Paulus can not be applied to the sea; because the sea has not been physically limited or fenced off by anyone, because not even any part of it can be stood upon, because the sea is opposed to possession in such a way that an extension can not be made from a part to the whole. For that the sea is opposed to possession is clear from the fact that even the sands of the sea, once occupied by some building or pier in such a way that they have become someone’s property, cease to be the property of the occupier after the building or pier has been destroyed. Whence it also follows: even if any navigator could be said to have obtained possession of the sea or any part of it (which is by no means so, because he who navigates does not stand on the sea, does not hold the sea, “does not hold fast,” but rather “is even held fast”), yet after the departure of the ship possession likewise would straightway cease.
Therefore the proximate reason why the sea can not be possessed is neither its fluid nature nor its “continually flowing to and fro” (which Welwod brings up against himself in vain), but its incomprehensibility the same as in the case of the air. Meanwhile that vigorous motion of the sea, as the untamed instinct in wild beasts, would make it impossible, even if occupation took place here, for possession to be continued, and ownership through possession, unless by a perpetual and close guardianship.
Welwod proceeds to say that, although the sea is fluid in its parts, nevertheless by reason of its entirety it retains its own limits which it scarcely transgresses. If Welwod concedes that for the initiating of possession it is required that the thing be limited, while the parts of the sea cohering in the whole are not acknowledged to be terminated, it must be acknowledged at the same time that at least the parts of the sea could not be occupied. Again, if he concedes, which is true, that a thing which is fluid and (to use the word) not stand-on-able, is not possessed otherwise than through the possession of a terminator which is stand-on-able, while he wishes this terminator to be the maritime shore, it will follow that the whole sea is not possessed, because no one possesses all the maritime shores at the same time. Add now the fact that not even the maritime shores are the limits of the sea; for the lands are girdled by the sea, the sea goes around “and surrounds” the lands, as all the Latin and Greek geographers and authorities call it. And reason makes it clear; for parts of the earth do not cohere, all the sea properly so-called coheres and is one and continuous. Therefore great parts of land are islands of the sea and are so-called by noteworthy writers, while islands are in salo (in the brine) whence their name. Therefore the limit of lands is the air and sea, the limit of the entire sea is only the air.
Then Welwod acknowledges that “not in every part of the sea” are there islands, shallows, rocks, by which marks are distinguished “the limits of the divisible parts.” But when he says this, he takes too much for granted. For no one has said that any part of the sea which is united to its entirety can be physically divided; but an intellectual division posits nothing in fact and does not make for possession. So islands, shallows, rocks standing out in the sea do not physically limit the sea, but are limited by the sea; nevertheless they can be of service in directing intellectual lines and so placing intellectual limits. But this too does not make for possession.
Welwod urges: “But God,” he says, “. . . hath given an understanding heart to man,” which is capable of such a distinction by means of assisting instruments, such as the nautical compass, the astrolabium, etc. I admit that the sea can be distinguished and that there is a certain use for this distinction, both in matters which the intellect performs per se, such as geographical observations, and in matters which the intellect performs with the aid of the will, to which contracts of men should be referred. And consequently if any treaties had been made which rested on such a distinction, I said in the Mare Liberum that the thing is not affected but the persons are obligated. But for the purpose of seeking ownership those considerations are not pertinent. For ownership does not occur without possession, while possession does not begin with the intention only, but an act of the body must be added. But if the drawing of an intellectual line were sufficient for this matter, what the laws dictate would already be false, namely that we do not obtain possession by intention. Moreover, it is a wonder that Welwod does not solve that surest of arguments, which he himself calls “a scoff,” namely, if the drawing of a line were sufficient for occupation, the astronomers should be said to be the possessors of the heaven and the geometers of the earth.
Although that rule of law is well known, namely that possession does not begin by an act of the mind, nevertheless if anyone stubbornly opposed it, its proof is at hand in the manifest absurdity of the contrary. For if possession were begun by an act of the mind, and with possession ownership, since two at the same time could exercise the same act of the mind with regard to the same thing, it would follow that both obtain possession of the thing and ownership over the whole. This is as impossible in law, as the jurist Paulus says, as it is impossible in nature for two bodies to be in the same place at the same time. Besides, acts of the mind are not visible, and therefore it can not be known which of the two exercised an act of the mind first, and accordingly the ownership of property would be uncertain. But all this is different in the physical act of occupation, for two can not exercise that on the same body at the same time. For, as Paulus says, it is against nature that you seem to hold what I hold. Then too, such an act is visible and consequently capable of proof, so that it can be known which of two first occupied the property, and therefore who is the certain owner of the property,
With a few words interjected, with which we shall soon deal, he cites this statement of Papinian: “In questions of boundaries old monuments are to be followed.” But what is this to the point? For the judgment of regulating boundaries, as Ulpian said, refers to rural lands. None of the ancients teaches us that the sea comes under this judgment. Then from a thesis to an hypothesis he drags me against my will. I humbly respect the majesty of the King of Britain and do not think any empire could fall to his lot commensurate with his excellent virtues. But although he deserves much greater things, it is to be set down among his praises that he is content with its present size and surpasses the great deeds of his forbears by coveting nothing. Then too, so great is his sense of justice towards all, and singular his benevolent attitude toward allies and associates, that the Batavians dare to hope from his goodness many things which are not due them by right. But because he has interjected something about the English islands, and even the “covenant twixt Scottish men and Hollanders,” I shall set forth these truths again.
A very learned man, Professor at the University of Cambridge, who has reduced English law to the method of the Justinian Institutes, under the title “On the division of property” distinguishes things which are common by natural law from things which are public. Among the things common by natural law he places the sea, and the shores of the sea as if accessory. Consequently, he says, no one is prohibited access to the shore of the sea, provided however he abstains from villas and buildings, because, he says, the shores are common by the law of nations just as the sea also. Then passing over to the second group, he says rivers and ports are public. But these public things, he says, which were at one time the entire people’s, are transferred by our law to the King, namely, him who sustains the person of all the people and consequently of the commonwealth itself. Therefore those who today build ships on the banks of public rivers under this name pay a tax to the King or those who exercise his right; and in a public river no one fishes who has not obtained this license from the King.
Now in the treaty, which was entered into in 1495 between Henry VII, king of England, and Philip, ruler of Holland and Zeeland, there are the following words “With regard to the fishermen of either party of the aforenamed parties, of whatsoever condition they may be, they shall be able everywhere to go, sail over the sea, fish in security without any hindrance, license or safe-conduct.” And with regard to this treaty, so far as it pertains to fishing, nothing new has been added in later acts. Again in that treaty, which was agreed to in 1540 between James VI, king of Scotland, and Maria, queen of Hungary, as ruler of Belgium and specifically of Holland and Zeeland, there was provision with regard to the immunity of fishermen. But in another of the year 1550, the Emperor Charles, ruler of Holland and Zeeland, and the same King James of Scotland promise that those agreements concerning fishing and the free use of the sea would be observed sincerely. The words of this treaty were repeated in the latest treaty which in the year 1594 the greatest of rulers, James, then king of Scotland, now of all Britain and Ireland, made with the United Estates of our nations. To these treaties and the law of nations with which those treaties are in harmony, the usage likewise and custom of time antedating all memory of man are added. For in every age the Batavian fishermen have fished freely under the very shores of England and Scotland no less than in the other parts of the ocean, nor have they allowed themselves to be hindered in any way in that use of liberty; so that even if prescription should have any place here, so far from possibly being put forward against them, it would manifestly be in their favor.
Now as to the fact that Welwod labors to show that succession of parts does not hinder possession, and points to Alfenus for testimony to prove that with the gradual changing of the particles the thing does not become something else, he tires himself needlessly. For nonoccupability does not properly rest upon this foundation nor does the comparison proceed correctly. For the parts of a region, a ship or a man are not changed by a certain impetus simultaneously, but little by little and entirely insensibly, while the parts of the sea stand still at no moment. But as to his repetition here that the entire body of the sea is restrained as it were in its own limits, this is not pertinent to the subject. For if he means that the essence of the sea is finite, it does not follow hence that it is occupable; for the element of the air also is finite. If he means besides that the sea is limited by the land, it has already been shown above that the land is not the entire limit of the entire sea. Indeed the land is not the entire limit of parts of the sea, which in the mind constitute a certain entirety per se, such as the Spanish, French, Cimbrian Sea, for no such sea is surrounded by land.
Up to this point indeed we have forged the physical reason why the sea could not become property. We add another moral reason why it seems the sea should not become property. Let us remember what Aristotle said, that in a moral matter “proofs” (ἀποδείξεις) are not given, but we ought here “seek out the precision which the nature of the thing admits of.” We have shown above that all things are common by nature, i.e., the right over other things was given to the human race by nature or God, the Author of nature. Now nature does not effect that this individual may have his right over this thing to the exclusion of the rest. Neither does she prohibit it, but permits it to be done provided a reasonable cause subsists, and, with this failing, reason persuades that nothing be changed. In the case of movable things, the cause of instituting property was that such things perish by use. Hence quarrels could scarcely fail to arise from common ownership, since this one would use a thing so that another having as much right in the same thing would not be able afterwards to use it. Moreover, in matters of the soil there was another reason, because things of the soil do not bear fruit “to a great extent” (which is sufficient in moral matters) unless stirred up by human labor and industry. Here again it was proper that fights be feared as a result of common ownership, since the industrious and hard-working men would be sorely tried that others whose labor was by no means equal bear off as much or even more of the fruits. Now both these reasons fail in the case of the sea. For by using, the sea itself is not at all impaired, and it needs no cultivation to bear fruit. Therefore the sea deservedly remained common; while fish, because they perish by use, become property, but in such a way as all things which belong to no one (res nullius), namely by occupation. For conflicts were being excellently met in the following manner. If any things could not remain common, they became the property of the first taker, both because the uncertainty of ownership could not otherwise be avoided and also because it was equitable that a premium be put upon diligence.
How explicitly the Roman jurists have said that the sea is the property of no one and that its use is common to all men, we have previously shown, in such a way as not to have done violence to them, but let him do violence who denies it. Yet Welwod, to charge this fault to me, in the last place adduces two responses, the first of Marcianus, the other of Papinian. I doubt much whether he has seen them. For he says that Marcianus deals with a diverticulum of the sea, when nevertheless he openly deals with a diverticulum of a public river and not of the sea. The words are: “If anyone has been for many years the only one to fish in a diverticulum of a public river, he shall prohibit another from using the same right.” But this is to be taken, however, in accordance with what he asserts the same Papinian says, since the latter far from saying what Welwod claims, seems rather to support the contrary. “Prescription,” he says, “of long custom is not usually granted for the acquisition of places which are public by the law of nations. This is the case, if anyone, after a building which he had placed on the shore had been completely destroyed and another’s building afterwards had been constructed in the same place, should oppose the granting of an exception to the occupier, or if anyone, because he had been for many years the only one to fish in a diverticulum of a public river, should prohibit another from the same right.” I do not say that these passages can not be properly conciliated, if we say that Marcianus was speaking of him who had continued fishing, and Papinian of him who had abandoned fishing—which is not absurd to infer from the other example of the building destroyed on the shore. But meanwhile I can not marvel enough that, for the purpose of meeting the number of responses which we adduced in support of the community of the sea, two passages are produced, one of which does not properly pertain to the subject and the other upsets that for which it is adduced rather than confirms it.
More properly therefore would he have adduced the opinion of Paulus in Digest, XLVII. x. 14, for this is almost the only one in the entire Corpus Juris which seems to favor it. “Surely,” says Paulus, “if property right over the sea belongs to anyone, the interdict Uti possidetis is competent to him, if he is prohibited from exercising his right, since this matter pertains to a private case, not to a public case, seeing that there is question of the enjoyment of a right arising out of a private case, not out of a public case.” But we have really said in the Mare Liberum that by these words of Paulus is understood a diverticulum of the sea, just as Marcianus speaks of a diverticulum of a river. Welwod can not deny this, for in Chapter XXVI are his very words:
Yea, nowadays, in rivers and in parts of the seas accrest to the possessions of men having grant and infeftment from the King, may fishing be forbidden; but no private man, without the grant of the prince, upon any pretense or allegation of long consuetude and prescription, may acquire the propriety of any such part of the sea so as to prohibit others to fish there also, for such prescriptions only pertain to princes.
Welwod concedes here that no portion of the sea can be acquired by a private individual by way of possession. But Paulus is dealing with a private individual, upon Welwod’s admission. It follows therefore that Paulus is not dealing with a portion of the sea. Therefore since nevertheless Paulus lays down that property right over the sea could belong to anyone, it remains that he is dealing not with the entire sea or with a portion of the sea, but with a diverticulum of the sea, which is improperly called the sea itself, just as the Lake of Asphalt is called the sea. That this is the opinion of Paulus is evident likewise from the response of Marcianus. For if in the case of a river, which is the property of the people, nothing can be acquired by way of possession except a diverticulum, much less will any of the sea, which is common to all, become property, except a diverticulum. Add that the chief reason impeding occupation, namely, because the sea can not be enclosed, does not cease except in the case of a diverticulum alone; and a diverticulum of the sea is very like the air shut up in a building, which it is not absurd for anyone to say becomes property.
To Welwod’s query why that is not permitted to a prince which is permitted to a private individual and his broad praise of the prince’s care in conserving the safety of the sea, I shall reply that we deny nothing to a prince which is granted to a private individual, but grant much to him which is not granted to a private individual. A prince therefore can make a diverticulum his own property. But a portion of the sea united to its entirety should not be concealed under the name of a diverticulum. For there is a great difference between these two. For just as a part of the entire river is within the bank, while a diverticulum is beyond the strict line of the bank, so a part of the sea is this side the shore, a diverticulum beyond. The word itself indicates this, for divertere is to depart from the way. The reason likewise is different. A part of the sea is united to the entire sea, a diverticulum is as it were torn away from it. A part of the sea is restrained by no limits, while a diverticulum is sea water obtruding upon and as it were enclosed in the land. A part of the sea exists by nature, a diverticulum more by art, as we have proved by the testimony of Columella, Varro, Pliny, Martial. If a diverticulum becomes property, it takes nothing away from the sea, while if parts of the sea could become property, the entirety which consists only of its parts could also. But we ought to remember that the question here is whether through the nature of things and the law of nations a certain thing could become property. Now in this question the name and majesty of a prince adds no weight, since he can change neither the nature of things nor the law of nations. A prince no more than a private individual can hold that which can not per se be held. And with regard to the law that dictum of Harmenopulus is true: “And the universal laws prevail over the king.” Nor does guardianship make anything for ownership; for the prince is the guardian also of other properties, much more of common property.
I had cited the Constitutions of Leo “On the diverticula (πρόθύρα).” Welwod therefore asks whether he had less authority “than the rest of the Roman emperors.” Over their own subjects surely Justinian and Leo had the same right. But for us they have not the same authority, because it is evident that Justinian made use of the most learned assistants in compiling the law, so that in the entire Corpus of Justinian law a wonderful sense of justice and consummate knowledge of the ancient law of the Quirites stands out. Therefore it has happened that many peoples have of their own accord accepted the Justinian laws, as the Romans of old the Rhodian laws. But never has that honor been given to the laws of Leo or the other emperors.
And yet in this question surely, just as the authority of Leo is not prejudicial to us, so we do not depend upon the authority of Justinian. In controversies of the law of nations, not the commands of a single prince, but the voices of many centuries, of many men, must be listened to. The Emperor Claudius willed marriages between uncles and their brothers’ daughters to be legitimate (justas); yet no one has conceded this to be law. Nor indeed will the deed of Leo or that which was decreed by him make much for the present controversy. For Leo does not ascribe ownership of the sea to himself so that he may grant it to anyone he wishes in accordance with his judgment, but that he may proclaim what is of right. Even if therein he had decreed something new, he could not have done this as a result of the nature of the thing, but of that compliance which subjects owe their prince. For, as Ulpian says, although a servitude could not be imposed upon the sea, nevertheless persons could be obliged either to do or to permit something.
Not even this, however, does Leo arrogate to himself, but he confirms by his own law what he thought was just and equitable per se. Whether he is deceived herein or not I do not argue. Certainly his meaning is clear.
This law also (he says) which takes away the right of maritime estates from those from whose shores the sea is visible, and which moreover subjects their owner to action for damages if he prohibits those who desire from fishing there, seemed to us to decree injustice.
But for my part I see no reason why it should be done so.
For just as it is of right, in places on land, that whoever may be the owner of a house, besides its use he possesses the vestibule and courtyard also, so we think it is in harmony with reason that this should obtain also in places on the sea.
Nor does that which has been decreed put an end to our inquiry. From the Constitutions of the same Leo (LVII, CII, CIII, CIV), it is apparent that in the Thracian Bosphorus the owners of maritime estates were accustomed to erect certain barriers (epochas), that is, fences (septa), by which they enclosed in their estates some part of the sea to which they laid claim. If anyone else wished to fish here, it was doubtful whether he could be prohibited. The ancients had said no and had granted an action for damages to the one prohibited. Leo on the contrary thinks the right of prohibition is competent to the owners. It is in Leo’s favor that that fencing is either occupation or something approximating occupation, and the little gate of the sea, thus limited by the barriers after the nature of a diverticulum and like a pier erected in the sea, seems to be in the class of things which can become property. On the other hand, it is in favor of the ancient jurists that the entire sea owes a common use to men, and that the right of a part should be the same as of the whole. In this inquiry, if anyone prefers to follow the opinion of Leo rather than that of all the ancients, I shall not quarrel with him, provided however Leo’s decree with regard to a little part enclosed be not extended, against the intention of Leo, to portions that are open and in fact indistinguishable from the sea.
Welwod says that I have made two concessions from which he promises himself victory. The first is with regard to the diverticulum; and to this we have already replied, indeed we had previously replied in the Mare Liberum itself. The other is this, which he says I wrote: “And if any of these could be prohibited, say for example, fishing, by which it can be said in a certain fashion that fish are exhaustible.” These words thus arranged have no sense. The entire sentence therefore should be described, which is as follows:
Moreover, also he that should have authority over the sea could diminish nothing of the common use, as the people of Rome could hinder none from using all things in the shore of the empire of Rome which were permitted by the law of nations. And if it could forbid any of those things, to wit, fishing, whereby it may be said after a sort that fishes should be taken, yet they could not forbid navigation, whereby the sea loseth nothing.
Who does not see that there is no concession here, but an argument is carried along which is frequent in law, that to him to whom something less is not permitted, much less is something greater permitted. Now it is less to prohibit fishing than navigation, because there are more reasons forbidding the prohibition of navigation than of fishing. A reason common to both is that the sea is open to all. There is added in the case of navigation the particular reason that through navigation nothing is taken away from the sea. And here is in point that passage I adduced from Cicero’s On Duties, Book I, which Welwod improperly ties up with fishing.
Moreover, that I have not conceded that fishing on the sea can be prohibited by anyone, is sufficiently apparent from the whole of Chapter V. If I had conceded it, Welwod would have undertaken this labor in vain. Indeed he who has properly taken the sequence and sense of my words, will easily see in that very passage what he takes as if conceded is in fact impugned. For I said that there was less injustice in the prohibition of fishing than of navigation, so that, since I had shown that the prohibition of fishing was illicit, it would on this account be more apparent how opposed the prohibition of navigation would be to every species of right.
But if anyone wishes to argue thus: since the fact that a thing is by nature communicable without any detriment is the reason why its use should not be prohibited, and this is wanting in the case of fishing, therefore fishing can be prohibited; whoever is not unskilled in logic will reply that the argument proceeds from the removal of the cause to the removal of the effect only if beyond that cause other sufficient causes can not be given. But here are many other sufficient causes which forbid the prohibition of fishing, as this, that the sea, since it is not occupable, can become the property of no one; moreover, because of the fact that it is no one’s property, its fruits may be gathered by anyone, as can be shown from the example of herbs and other things growing in lands newly discovered. Secondly, although there may be no other causes, nevertheless the law of nations itself, whether it arises from a secret instinct of nature or from the primitive custom of the human race, would be sufficient to introduce the obligation.
Welwod complains that great injuries to the British are inflicted by the Batavian fishermen. How then? Because they catch fish indeed? But he is not to be considered as inflicting an injury who makes use of his own right. If the Batavians prohibited the British from fishing, they would be doing them injury. Now why unless they are using a common thing in common. If the British please, they can not only fish beside the Batavians, but also outstrip the Batavians, since they themselves are nearer the sea where fish are plentiful. But if they weary of the great labor, weary of the expense which with the greatest frugality nevertheless frequently eats up all the profit, why begrudge the fact that what is neglected by themselves is taken by their neighbors? Add now the fact that if he who fishes in the sea is to be considered as inflicting injury upon another, because the other can not fish in the same place and at the same time, to this example add also that he who navigates can be considered as injuring another, because the two can not navigate at the same time in the same place. But if Welwod intended this, namely, that those fish are dispersed and scattered which are not caught, this, apart from the fact that we do not believe it true, certainly should be attributed to navigation, not to fishing; so that he who wishes to prohibit this, should prohibit navigation up to the shore. But it is well known in law that those things which happen on account of the destination “and per accidens” are never imputed to those using their own right.
We have shown that we conceded nothing to Welwod which pertains to claiming the sea or the right of fishing in one’s own right. Let us see whether I can not rather draw forth some weapons for myself out of his armory.
This is the first one given by Welwod, namely, that private individuals, unless they have received it from a prince, can not acquire for themselves any portion of the sea or the right of prohibiting fishing, because a right of this kind of prescriptions belongs to the prince alone. His words are in Chapter XXVI and from them we may argue as follows. Whatever belongs to a prince, if it is alienable, can be sought also by a private individual by prescription. But a portion of the sea and the right of prohibiting fishing can not be sought by a private individual by prescription, nor does this happen because they are not susceptible of being conceded. It follows therefore that they do not belong to the prince. The major proposition is proved from the fact that by the law of nations, so far as ownership of property is concerned, there is no distinction between prince and private individual, while it is a most certain rule of civil law that whatever can be acquired by privilege or concession can be acquired by a possession of time exceeding memory. The assumption is from Welwod’s words. He confesses that it is not inalienable or unsusceptible of being conceded when he posits that such a right can be sought through the beneficence of a prince, and yet denies that it can be acquired by prescription.
Again it will be permissible to argue in another way as follows. Whatever belongs to the people can be acquired by a private individual by a possession exceeding memory. But the sea can not be acquired by a private individual by such a possession. Therefore it does not belong to the people. The assumption here is from Welwod’s words. But the major proposition can be proved “by induction.” And there is excellent testimony to this fact in Code, XI. 42. 4, if you compare Digest, XXXIX. 3. 18. § 1, and Digest, XLIII. 20. 20. § 42.
Moreover, from this statement, that this prescription, whereby a portion of the sea or the right of fishing is acquired, belongs to the prince alone, another argument is at hand for him as follows. No one can obtain by prescription what is his before, because what is mine can not become more mine. But the prince is here said to obtain by prescription a portion of the sea or the right of fishing. Therefore it is not his before prescription. If it is not his before, then such things do not belong to the prince by any common law nor can they be acquired by occupation. For there is no need to do anything to acquire that which belongs to us ipso jure, and occupation is completed in a single act, whereas prescription requires a continued act and indeed of very long duration.
Therefore all those arguments of Welwod fail, which either aim to make the prince owner of the sea ipso jure or claim that from the beginning the sea was occupied no less than the lands. Finally, let it be added that, when Welwod denies that a portion of the sea or the right of prohibiting fishing can be acquired by private individuals apart from the beneficence of the prince, the law of the Digest, XLVII. 10. 14, does not help him, since there is question there of that right which arises from a private case, not from a public case. Yet this is the one place in all the law, which has led into error all those who hitherto have departed from the opinion we defended.
The second argument which Welwod has given is that navigation can not be prohibited by anyone whomsoever in any part of the sea. Since this is quite true, it can arise only from such a law of nations as obliges all nations. Now who believes that such a principle of the greatest importance has been overlooked by the ancient jurists who so diligently pursued all of the law of nations? But he will find no mention of it save in those words which assert that the sea is owned by no one or that its use is common to all men. Whence I infer that these very axioms, that the sea is owned by no one and its use is common to all men, are not of that civil law which by imitation has become common to many peoples and which is incorrectly called law of nations, but of the law of nations properly so-called, which obliges nations to nations. For from the effect the cause is recognized. But that it is illicit to prohibit navigation comes from those axioms. Hence also I infer that in those axioms the words “no one” and “all” are to be understood absolutely universally and not of the citizens of one people, because navigation can not be prohibited not only to citizens, but neither also to foreigners. Universal effects can not proceed from a particular cause.
Upon the supposition that those axioms are of the real law of nations and are to be taken universally, it will easily be apparent that fishing likewise is open to all without distinction. For fishing likewise is using the sea, and the fruits of what belongs to no one become the property of the occupier. And therefore Ulpian and Marcianus by denying ownership and positing the common use of the sea itself are arguing freedom of fishing. The force of this consequence led Angelus and those who have the same hallucination with him to assert that, because as a result of a misinterpretation of a response of Paulus they had decided that fishing on the sea could be prohibited, therefore a part of the sea could become the property of someone. But on this hypothesis they could extend the argument so as not to be afraid to assert that navigation can likewise be prohibited. How absurd and injurious this is Welwod sees. He should be asked therefore to permit the sources of his errors to be closed up.
The third argument accepted by me as a gift from Welwod is as follows: “ ‘The sea can not become the property of anyone because nature bids it be common.’ … To whom I could also assent concerning the great, huge, and main body of the sea.” And afterwards: “I think that the sea should be proclaimed free, I mean that part of the main sea or great Ocean, which is far removed from bounds.” Here again I shall repeat that, since this is quite true and of great moment, it has not been overlooked by the ancient jurists. But nowhere have they handed this down unless in the passages cited by us, wherein it is proclaimed that the sea has come into the ownership of no one and by the law of nations its use is common to all men. Hence it is clear again, as I have just said, that in those passages the question is of the true and proper law of nations and those propositions are to be understood absolutely universally. Now these same jurists simply mention the sea and make no distinction whether it is nearer or farther from the land whether it is vast or not vast. Whence therefore that distinction for us? Why, that distinction can not only not be proved, but it is even easily refuted. For quantity and situs do not make different species of substances. Moreover how can the law of one species be different, and indeed from the law of nations which especially is equal and universal?
Add the fact that Welwod claims that certain parts, not of the Mediterranean Sea but of the ocean, become property, and everything which he brings forward to defend the ownership of those parts can be applied less properly to other vaster parts of the ocean. For if in those parts with which Welwod is concerned are islands, rocks, shallows, you may find them also in the Atlantic Ocean. If those parts have shores, so has the Atlantic Ocean. And what reason operates, if the sea can be occupied up to one hundred miles, to prevent it being occupied up to 150, thence to 200 and so on? If water is property up to the 100th mile, why can not the water which is immediately contiguous to the property be equally property? These are the “impasses” (ἄποριας) to which you must come, once you have departed from the truth. Indeed if Welwod’s statement is correct, that, although the parts of the sea are not limited, nevertheless the entire body of the sea is limited and therefore occupable, it will follow that the entire Ocean can more easily become property than the individual parts, since they cohere to the Ocean and therefore are not bound by certain limits.
And so far indeed we have defended, sufficiently, I think, the opinion already proposed by us concerning the community of the sea and the freedom of fishing. Purposely have we refrained from treating of the dominion (imperium) and jurisdiction of the sea, because that question has no connection with ownership (dominium) and the right of fishing and consequently is improperly confused by Welwod with this controversy of ours. Therefore although I could have passed over the treatment of this matter, nevertheless, in order that the reader may find nothing lacking, I shall say what I think: that to be done properly, I think we should have regard not so much for the interpreters, who lived a few centuries back and who often disagree from others and from each other, as for the ancient authorities and the very principles and rules of the law themselves.
Wherefore lest different matters be falsely confused, I think a distinction should be made between that jurisdiction which is competent to each in common and that which is competent to each one properly speaking. All peoples or their princes in common can punish pirates and others, who commit delicts on the sea against the law of nations. For even supposing a land that has been occupied by no people, there will be the same right against brigands lurking there. Now jurisdiction, which is competent to each one in his own right is directed toward either a person or a thing or place. A jurisdiction over a person is competent without taking account of the place. For a prince can forbid his subjects even not to do such and such a thing outside his territory, and in this way those who send ambassadors command the ambassadors though they act at a distance. In turn jurisdiction can be directed toward a place without taking account of the person. So laws are decreed for transient visitors by him who has dominion over the soil through which the passage is made. Again jurisdiction over a person results either from the institution of the state itself, as that of the supreme power over subjects, or from agreement over allies. Consequently not only can the prince make law for the maritime actions of his subjects, judge these acts, even impose tribute, but also do this for his allies, if this has been agreed to by treaty. For, as we have said following Ulpian, even when a thing can not be subject, nevertheless persons can be put under obligation by convention. Nor do I deny that what can be induced by treaty can be induced by tacit consent, that is, by custom, provided the custom be not extended beyond those who by long sufferance can be considered to have bestowed their assent.
So far I do not oppose those who maintain some jurisdiction over the sea. But if anyone insists further that over the sea no less than over ground that has been occupied there is also a certain local or real jurisdiction, I should very much like to learn by what reasons or testimony of the ancients it can be proved. I have read no reasons for this opinion. Indeed I think there are not lacking strong reasons for the contrary view, if one properly considered that territories arose from the occupation of peoples, just as private ownerships from the occupation of private individuals. The ancient authorities, especially the jurists whom this treatise properly concerns, have nowhere, if I mistake not, handed this down. There are Rhodian laws, there are Attic laws, there are Roman laws on maritime matters, but all these are directed toward subjects. Therefore there is no reason why we should refer them to dominion of place, since, as we have just said, subjects are wont to be commanded even when acting in foreign territory, how much more when they are in that place over which the jurisdiction of all peoples is common. But I do not find laws or tributes imposed upon foreigners when acting on the sea.
Some perhaps may be moved by the reply of Celsus (for beyond this I see nothing which can be adduced in point) when he says that the shores are among those places over which the Roman people have dominion, and he even calls the shores the Roman people’s. But when he forthwith notes that the use of the sea, as of the air, is common to all men, it seems manifest that he makes a distinction in this matter between the sea and the shores. We have discussed above what could be understood by the term “shore” in that passage. Certainly no one could deny that the shore is more easily occupied than the sea, being permanent in its very nature. Plutarch, Velleius and others relate that pirates on the sea were captured by Gaius Julius Caesar while still a private citizen and that when the proconsul neglected to punish them, Caesar sailed back on the sea and there the pirates were crucified by him. Caesar would no more have dared this on the sea than in the province, indeed would have committed lese majesty, if the sea had been as much the territory of the Roman people as the province itself. Such is my view, but if any one should point out a better, I shall gladly yield mine.
But, as I began to say, our controversy is over the ownership of the sea and the prohibition of fishing. Now foreign to this is the question of jurisdiction. For first, ownership is separate from dominion (imperium), consequently law (jus) is declared with regard to other matters; secondly, the authority of declaring the law or of exercising dominion is restrained by the law of nations. The prince exercises dominion and declares the law not with regard to human matters only, but also with regard to divine matters, but he can not order what has been forbidden by God or forbid what has been ordered by God. The supreme power has the judgment over civil laws and guardianship and protection over divine law, natural law and the law of nations. Therefore even if a prince has real jurisdiction over the sea and indeed the Ocean, this would not have anything to do with his claiming ownership of the sea, but with his guarding its community; not with his prohibiting fishing to any man, but with defending the freedom of fishing. Nor is anything else meant by those more recent writers, whom Welwod adduces to prove that territory extends into the sea also.
Although in all this dissertation I have trod in the footprints of the old writers, almost omitting the more recent masters, who through too much or too little time or zeal for a cause undertaken have wandered from the true reason of law, yet that it may be evident that I am defending not only my own commentary but also the received opinion of the greater and better part, I shall add here what others have written on the same subject, and shall summon as the judge of this controversy like a Senate one of the most learned men from Italy, Germany, France, Britain and Spain.