The opinion of those who think that friendship arises from necessity alone, is rejected as false, by the more sound Philosophers; as we feel a spontaneous and natural inclination towards friendly intercourse. Charity indeed often persuades, and in some instances commands us to prefer the good of many to our own single advantage. To which the following passage from Seneca is very applicable. "It is not surprising that princes, and kings, or whatever name the guardians of the public welfare may bear, should be loved with a veneration and affection, far beyond those of private friendship. For all men of sober judgment, and enlarged information deem the public interest of higher moment than their own. Their attachment therefore must be warmest to the person on whom the well being and prosperity of the state depends." And to the same effect, St. Ambrose in his third book of Offices, says, "every man feels a greater delight in averting public than private danger." Seneca, the writer already quoted, produces two instances, the one of Callistratus at Athens, and the other of Rutilius at Rome, who refused to be restored from banishment thinking it better for two individuals to suffer hardship, than for the public to be plunged into calamities.
XI.15 The next object to be considered, relates to injuries affecting our property. In strict justice, it cannot be denied that we have a right to kill a robber, if such a step is inevitably necessary to the preservation of our property. For the difference between the value of life and property is overbalanced by the horror which a robber excites, and by the favourable inclination felt by all men towards the injured and innocent. From whence it follows, that regarding that right alone, a robber may be wounded or killed in his flight with the property, if it cannot otherwise be recovered. Demosthenes in his speech against Aristocrates, exclaims, "By all that is sacred, is it not a dreadful and open violation of law, not only of written law, but of that law which is the unwritten rule of all men, to be debarred from the right of using force against the robber as well as against the enemy; who is plundering your property?" Nor is it forbidden by the precepts of charity, apart from all consideration of divine and human law, unless where the property is of little value, and beneath notice; an exception, which some writers have very properly added.
XII. The sense of the Jewish law on this point is now to be considered. The old law of Solon, to which Demosthenes, in his speech against Timocrates, appeals, agrees with it. From hence the substance of the Twelve Tables, and Plato's maxim in his ninth book of laws were taken. For they all agree in making a distinction between a thief who steals by day, and the robber, who commits the act by night; though they differ about the REASON of this distinction. Some think this distinction arises from the difficulty of discerning by night, whether an aggressor comes with an intent to murder or steal, and therefore he ought to be treated as an assassin. Others think the distinction is made, because as it is difficult to know the person of the thief, there is less probability of recovering the goods. In neither case do the framers of laws seem to have considered the question in its proper light. Their evident intention is to prohibit the killing of any one, merely on account of our property; which would happen, for instance, by killing a thief in his flight in order to recover the goods he had stolen. But if our own lives are endangered, then we are allowed to avert the danger, even at the hazard of another's life. Nor is our having run into the danger any objection; provided it was done to preserve or to recover our goods, or to take the thief. For no imputation of guilt can attach to us in any of these cases, while we are employed in doing a lawful act, nor can it be said that we are doing wrong to another by exercising our own right.
The difference therefore made between a thief in the night and a thief in the day, arises from the difficulty of procuring sufficient evidence of the fact. So that if a thief is found killed, the person who says, that he was found by him with a destructive weapon, and killed by him in his own defence, will easily gain belief. For the Jewish law supposes this, when it treats of a thief in the act of piercing, or, as some translate it, with a stabbing instrument. This interpretation accords with the law of the twelve tables, which forbids any one to kill a thief in the day time, except he defend himself with a weapon. The presumption therefore against a thief in the night is that he defended himself in such a manner. Now the term weapon comprehends not only an instrument of iron, but as Caius interprets this law, a club, or a stone. Ulpian on the other hand, speaking of a thief taken in the night, says that the person who kills him will incur no guilt, provided that in saving his property he could not spare his life, without endangering his own. There is a presumption, as it has been already observed, in favour of the person who has killed a thief taken in the night. But if there be evidence to prove, that the life of the person who killed the thief was in no danger; then the presumption in his favour fails, and the act amounts to murder.
The law of the twelve tables indeed required, that the person who took a thief either in the day time, or in the night, should make a noise that, if possible, the magistrates or neighbours might assemble to assist him and give evidence. But as such a concourse could more easily be assembled in the day time than in the night, as Ulpian observes upon the passage before quoted from Demosthenes, the affirmation of a person declaring the danger he was in during the night is more readily believed. To which an additional observation may be made, that, even under equal circumstances, the danger which happens by night can be less examined, and ascertained, and therefore is the more terrible. The Jewish law therefore, no less than the Roman, acting upon the same principle of tenderness forbids us to kill any one, who has taken our goods, unless for the preservation of our own lives.
XVI.16 What has been already said of the right of defending our persons and property, though regarding chiefly private war, may nevertheless be applied to public hostilities, allowing for the difference of circumstances. For private war may be considered as an instantaneous exercise of natural right, which ceases the moment that legal redress can be obtained. Now as public war can never take place, but where judicial remedies cease to exist, it is often protracted, and the spirit of hostility inflamed by the continued accession of losses and injuries. Besides, private war extends only to self-defence, whereas sovereign powers have a right not only to avert, but to punish wrongs. From whence they are authorised to prevent a remote as well as an immediate aggression. Though the suspicion of hostile intentions, on the part of another power, may not justify the commencement of actual war, yet it calls for measures of armed prevention, and will authorise indirect hostility. Points, which will be discussed in another place.
XVII. Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorises one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favour. The causes which entitle a war to the denomination of just are somewhat different from those of expediency alone. But to maintain that the bare probability of some remote, or future annoyance from a neighbouring state affords a just ground of hostile aggression, is a doctrine repugnant to every principle of equity. Such however is the condition of human life, that no full security can be enjoyed. The only protection against uncertain fears must be sought, not from violence, but from the divine providence, and defensive precaution.
XVIII. There is another opinion, not more admissible, maintaining that the hostile acts of an aggressor, may be considered in the light of defensive measures, because, say the advocates of this opinion, few people are content to proportion their revenge to the injuries they have received; bounds which in all probability the party aggrieved has exceeded, and therefore in return becomes himself the aggressor. Now the excess of retaliation cannot, any more than the fear of uncertain danger, give a colour of right to the first aggression, which may be illustrated by the case of a malefactor, who can have no right to wound or kill the officers of justice in their attempts to take him, urging as a plea that he feared the punishment would exceed the offense.
The first step, which an aggressor ought to take, should be an offer of indemnity to the injured party, by the arbitration of some independent and disinterested state. And if this mediation be rejected, then his war assumes the character of a just war. Thus Hezekiah when he had not stood to the engagements made by his ancestors, being threatened with an attack from the King of Assyria on that account, acknowledged his fault, and left it to the King to assign what penalty he should pay for the offence. After he had done so, finding himself again attacked, relying on the justice of his cause, he opposed the enemy, and succeeded by the favour of God. Pontius the Samnite, after restoration of the prizes had been made to the Romans, and the promoter of the war delivered up into their hands, said, "We have now averted the wrath of heaven, which our violation of treaties had provoked. But the supreme being who was pleased to reduce us to the necessity of restoration, was not equally pleased with the pride of the Romans, who rejected our offer. What farther satisfaction do we owe to the Romans, or to Heaven, the arbiter of treaties? We do not shrink from submitting the measure of YOUR resentment, or of OUR punishment to the judgment of any people, or any individual." In the same manner, when the Thebans had offered the most equitable terms to the Lacedaemonians, who still rose higher in their demands, Aristides says, that the justice of the cause changed sides and passed from the Lacedaemonians to the Thebans.
The general rights of things—Division of what is our own—The origin and progress of property—Some things impossible to be made the subject of property—The Sea of this nature, in its full extent, or in its principal parts—Unoccupied lands may become the property of individuals, unless they have been previously occupied by the people at large—Wild beasts, fishes, birds, may become the property of him who seizes them—In cases of necessity men have a right of using that which has already become the property of others—To sanction this indulgence, the necessity must be such that it cannot otherwise be avoided—This indulgence not allowed where the possessor is in an equal degree of necessity—The party thus supplying his wants from another's property, bound to make restitution whenever it is possible. The application of this principle to the practice of war—The right to use the property of another, provided that use be no way prejudicial to the owner—Hence the right to the use of running water—The right of passing through countries, and by rivers explained—An inquiry into the right of imposing duties on merchandise—The right of residing for a time in a foreign state—The right of exiles to reside in the dominions of a foreign state, provided they submit to its laws—In what manner the right of occupying waste places is to be understood—The right to certain articles necessary to the support of human society, and life—The general right of purchasing those articles at a reasonable price—The right to sell, not of equal force and extent—The right to those privileges which are promiscuously granted to foreigners—Inquiry whether it be lawful to contract with any people for the purchase of their productions on condition of their not selling the same to others.
I. Among the causes assigned to justify war, we may reckon the commission of injury, particularly such as affects any thing which belongs to us. Now we establish this claim to any thing as our own either by a right COMMON to us as men, or acquired by us in our INDIVIDUAL capacity. But to begin with that which is the common right of all mankind; we may observe that it comprises what is called by legal authorities, Corporeal and Incorporeal rights.17
Things corporeal are either unappropriated, or made the subjects of private property. Now the things unappropriated, are such that it may be either possible or impossible for them to be reduced to a state of private property.18 In order therefore to understand this more clearly, it will be necessary to take a survey of the origin of property.
II. God gave to mankind in general, dominion over all the creatures of the earth, from the first creation of the world; a grant which was renewed upon the restoration of the world after the deluge. All things, as Justin says, formed a common stock for all mankind, as the inheritors of one general patrimony. From hence it happened, that every man seized to his own use or consumption whatever he met with; a general exercise of a right, which supplied the place of private property. So that to deprive any one of what he had thus seized, became an act of injustice. Which Cicero has explained in his third book, on the bounds of good and evil, by comparing the world to a Theatre, in which the seats are common property, yet every spectator claims that which he occupies, for the time being, as his own. A state of affairs, which could not subsist but in the greatest simplicity of manners, and under the mutual forbearance and good-will of mankind. An example of a community of goods, arising from extreme simplicity of manners, may be seen in some nations of America, who for many ages have subsisted in this manner without inconvenience. The Essenes of old, furnished an example of men actuated by mutual affection and holding all things in common, a practice adopted by the primitive Christians at Jerusalem, and still prevailing among some of the religious orders. Man at his first origin, requiring no clothing, afforded a proof of the simplicity of manners in which he had been formed. Yet perhaps, as Justin says of the Scythians, he might be considered as ignorant of vice rather than acquainted with virtue; Tacitus says, that in the early ages of the world, men lived free from the influence of evil passions, without reproach, and wickedness; and consequently without the restraints of punishment. In primitive times there appeared among mankind, according to Macrobius, a simplicity, ignorant of evil, and inexperienced in craft: a simplicity which in the book of Wisdom seems to be called integrity, and by the Apostle Paul simplicity in opposition to subtilty. Their sole employment was the worship of God, of which the tree of life was the symbol, as it is explained by the ancient Hebrews, whose opinion is confirmed by the Book of Revelation.
Men at that period subsisted upon the spontaneous productions of the ground: a state of simplicity to which they did not long adhere, but applied themselves to the invention of various arts, indicated by the tree of knowledge of good and evil, that is the knowledge of those things which may be either used properly, or abused; which Philo calls a middle kind of wisdom. In this view, Solomon says, God hath created men upright, that is, in simplicity, but they have sought out many inventions, or, in the language of Philo, they have inclined to subtilty. In the sixth oration of Dion Prusaeensis it is said, "the descendants have degenerated from the innocence of primitive times, contriving many subtile inventions no way conducive to the good of life; and using their strength not to promote justice, but to gratify their appetites." Agriculture and pasturage seem to have been the most ancient pursuits, which characterized the first brothers. Some distribution of things would necessarily follow these different states; and we are informed by holy writ, that the rivalry thus created ended in murder. At length men increasing in wickedness by their evil communications with each other, the race of Giants, that is of strong and violent men appeared, whom the Greeks denominate by a title, signifying those who make their own hands and strength the measure of justice.
The world in progress of time being cleared of this race by the deluge, the savage was succeeded by a softer and more sensual way of life, to which the use of wine proved subservient, being followed by all the evil consequences of intoxication. But the greatest breach in the harmony of men was made by ambition, which is considered in some measure, as the offspring of a noble mind. Its first and most eminent effects appeared in the attempt to raise the tower of Babel; the failure of which caused the dispersion of mankind, who took possession of different parts of the earth.
Still after this a community of lands for pasture, though not of flocks, prevailed among men. For the great extent of land was sufficient for the use of all occupants, as yet but few in number, without their incommoding each other. In the words of the Poet, it was deemed unlawful to fix a land mark on the plain, or to apportion it out in stated limits. But as men increased in numbers and their flocks in the same proportion, they could no longer with convenience enjoy the use of lands in common, and it became necessary to divide them into allotments for each family. Now in the hot countries of the East, wells would be objects of great importance, for the refreshment of their herds and flocks; so that in order to avoid strife and inconvenience, all would be anxious to have them as possessions of their own. These accounts we derive from sacred history, and they are found to agree with the opinions maintained upon this subject by Philosophers and Poets, who have described the community of goods, that prevailed in the early state of the world, and the distribution of property which afterwards took place. Hence a notion may be formed of the reason why men departed from the primaeval state of holding all things in common, attaching the ideas of property, first to moveable and next to immoveable things.
When the inhabitants of the earth began to acquire a taste for more delicate fare than the spontaneous productions of the ground, and to look for more commodious habitations than caves, or the hollow of trees, and to long for more elegant cloathing than the skins of wild beasts, industry became necessary to supply those wants, and each individual began to apply his attention to some particular art. The distance of the places too, into which men were dispersed, prevented them from carrying the fruits of the earth to a common stock, and in the next place, the WANT of just principle and equitable kindness would destroy that equality which ought to subsist both in the labour of producing and consuming the necessaries of life.
At the same time, we learn how things passed from being held in common to a state of property. It was not by the act of the mind alone that this change took place. For men in that case could never know, what others intended to appropriate to their own use, so as to exclude the claim of every other pretender to the same; and many too might desire to possess the same thing. Property therefore must have been established either by express agreement, as by division, or by tacit consent, as by occupancy. For as soon as it was found inconvenient to hold things in common, before any division of lands had been established, it is natural to suppose it must have been generally agreed, that whatever any one had occupied should be accounted his own. Cicero, in the third book of his Offices says, it is admitted as an universal maxim, not repugnant to the principles of natural law, that every one should rather wish himself to enjoy the necessaries of life, than leave them for the acquisition of another. Which is supported by Quintilian, who says, if the condition of life be such, that whatever has fallen to the private use of any individual, becomes the property of such holder, it is evidently unjust to take away any thing which is possessed by such a right. And the ancients in styling Ceres a law-giver, and giving the name of Thesmophoria to her sacred rights, meant by this to signify that the division of lands had given birth to a new kind of right.
III. Notwithstanding the statements above made, it must be admitted that some things are impossible to be reduced to a state of property, of which the Sea affords us an instance both in its general extent, and in its principal branches. But as some are willing to make this concession with regard to individuals, but not with regard to nations, the position advanced in the beginning of this section may be proved from the following moral argument, that as in this case the reason no longer subsists why men should hold all things in common, the practice ceases also. For the magnitude of the sea is such, as to be sufficient for the use of all nations, to allow them without inconvenience and prejudice to each other the right of fishing, sailing, or any other advantage which that element affords. The same may be said of air as common property, except that no one can use or enjoy it, without at the same time using the ground over which it passes or rests. So that the amusement of fowling cannot be followed, except by permission, without trespassing upon the lands of some owner, over which the birds fly.
The same appellation of COMMON may be given to the sand of the shore, which being incapable of cultivation, is left free to yield its inexhaustible supplies for the use of all.
There is a natural reason also, which renders the sea, considered in the view already taken, incapable of being made property: because occupancy can never subsist, but in things that can be confined to certain permanent bounds. From whence Thucydides gives the name of infinite space to unoccupied lands, and Isocrates speaking of that occupied by the Athenians calls it that which has been measured by us into alloted parts. But fluids, which cannot be limited or restrained, except they be contained within some other substance, cannot be occupied. Thus ponds, and lakes and rivers likewise, can only be made property as far as they are confined within certain banks. But the ocean as it is equal to, or larger than the earth, cannot be confined within the land: so that the ancients said the earth was bounded in by the sea like a girdle surrounding it. Nor can any imaginable division of it have been originally framed. For as the greatest part of it was unknown, it was impossible that nations far removed from each other could agree upon the bounds to be assigned to different parts.
Whatever therefore was the common property of all, and after a general division of all other things, retained its original state, could not be appropriated by division, but by occupancy. And the marks of distinction and separation by which its different parts were known, followed such appropriation.
IV. The next matters to be noticed are those things, which though not yet made property, may be reduced to that condition. Under this description come waste lands, desert islands, wild beasts, fishes, and birds. Now in these cases there are two things to be pointed out, which are a double kind of occupancy that may take place; the one in the name of the Sovereign, or of a whole people, the other by individuals, converting into private estates the lands which they have so occupied. The latter kind of individual property proceeds rather from assignment than from free occupancy. Yet any places that have been taken possession of in the name of a sovereign, or of a whole people, though not portioned out amongst individuals, are not to be considered as waste lands, but as the property of the first occupier, whether it be the King, or a whole people. Of this description are rivers, lakes, forests, and wild mountains.
V. As to wild beasts, fishes, and birds, it is to be observed that the sovereign of the respective lands, or waters where they are found, has a legal right to prohibit any one from taking them, and thereby acquiring a property in them. A prohibition extending to foreigners, as well as subjects. To foreigners; because by all the rules of moral law they owe obedience to the sovereign, for the time during which they reside in his territories. Nor is there any validity in the objection founded on the Roman Law, the Law of nature, or the Law of nations, which, it is said, declare such animals to be beasts of chace free to every one's hunting. For this is only true, where there is no civil law to interpose its prohibition; as the Roman law left many things in their primitive state, which by other nations were placed upon a very different footing. The deviations therefore from the state of nature, which have been established by the civil law, are ordained by every principle of natural justice to be obeyed by mankind. For although the civil law can enjoin nothing which the law of nature prohibits, nor prohibit any thing which it enjoins, yet it may circumscribe natural liberty, restraining what was before allowed; although the restraint should extend to the very acquisition of property, to which every man AT FIRST had a right by the law of nature.
VI. The next thing to be considered is the right, which men have to the common use of things, already appropriated; terms, in which at the first sight there appears to be some inconsistency, as it appears that the establishment of property has absorbed every right that sprung from a state of things held in common. But this is by no means the case. For the intention of those, who first introduce private property, must be taken into the account. And it was but reasonable to suppose, that in making this introduction of property, they would depart as little as possible from the original principles of natural equity. For if written laws are to be construed in a sense, approaching as nearly as possible to the laws of nature, much more so are those customs which are not fettered with the literal restrictions of written maxims. From hence it follows that in cases of extreme necessity, the original right of using things, as if they had remained in common, must be revived; because in all human laws, and consequently in the laws relating to property, the case of extreme necessity seems to form an exception.
Upon this principle is built the maxim that if in a voyage provisions begin to fail, the stock of every individual ought to be produced for common consumption; for the same reason a neighbouring house may be pulled down to stop the progress of a fire: or the cables or nets, in which a ship is entangled, may be cut, if it cannot otherwise be disengaged. Maxims, none of which were introduced by the civil law, but only explained by it according to the rules of natural equity.
Now among Theologians also it is a received opinion, that if in urgent distress, any one shall take from another what is absolutely necessary for the preservation of his own life, the act shall not be deemed a theft. A rule not founded, as some allege, solely upon the law of charity, which obliges every possessor to apply some part of his wealth to relieve the needy; but upon the original division of lands among private owners, which was made with a reservation in favour of the primitive rights of nature. For if those who at first made the division had been asked their opinion upon this point, they would have given the same reason that has just been advanced. Necessity, says Seneca, the great protectress of human infirmity breaks through all human laws, and all those made in the spirit of human regulations. Cicero in his eleventh Philippic, says, that Cassius went into Syria, which might be considered as another's province, if men adhered to written laws, but if these were abolished, it would be considered as his own by the law of nature. In the sixth book and fourth chapter of Quintus Curtius, we find an observation, that in a common calamity every man looks to himself.
VII. Now this indulgence must be granted with precautions and restrictions, to prevent it from degenerating into licentiousness. And of these precautions, the first requires the distressed party to try every mode of obtaining relief, by an appeal to a magistrate, or by trying the effect of entreaty to prevail upon the owner to grant what is necessary for his pressing occasions. Plato allows any one to seek water from his neighbour's well, after having dug to a certain depth in his own without effect. Solon limits the depth to forty cubits; upon which Plutarch remarks, that he intended by this to relieve necessity and difficulty, but not to encourage sloth. Xenophon in his answer to the Sinopians, in the fifth book of the expedition of Cyrus, says, "wherever we come, whether into a barbarous country or into any part of Greece, and find the people unwilling to afford us supplies, we take them, not through motives of wantonness, but from the compulsion of necessity."
VIII. In the next place this plea of necessity cannot be admitted, where the possessor is in an equal state of necessity himself. For under equal circumstances the owner has a better right to the use of his possessions. Though Lactantius maintains that it is no mark of folly to forbear thrusting another from the same plank in a shipwreck in order to save yourself. Because you have thereby avoided hurting another: a sin which is certainly a proof of wisdom to abstain from. Cicero, in the third book of his offices, asks this question, if a wise man, in danger of perishing with hunger, has not a right to take the provisions of another, who is good for nothing? To which he replies; By no means. For no one's life can be of such importance as to authorize the violation of that general rule of forbearance, by which the peace and safety of every individual are secured.
IX. In the third place, the party thus supplying his wants from the property of another, is bound to make restitution, or give an equivalent to the owner, whenever that is possible. There are some indeed, who deny this, upon the ground that no one is bound to give an indemnity for having exercised his own right. But strictly speaking, it was not a full and perfect right, which he exercised; but a kind of permission, arising out of a case of necessity, and existing no longer than while the necessity continued. For such a permissive right is only granted in order to preserve natural equity in opposition to the strict and churlish rigour of exclusive ownership.
X. Hence it may be inferred, that, in the prosecution of a just war, any power has a right to take possession of a neutral soil; if there be real grounds, and not imaginary fears for supposing the enemy intends to make himself master of the same, especially if the enemy's occupying it would be attended with imminent and irreparable mischief to that same power. But in this case the restriction is applied that nothing be taken but what is actually necessary to such precaution and security. Barely occupying the place is all that can be justified: leaving to the real owner the full enjoyment of all his rights, immunities, and jurisdiction, and all the productions of his soil. And this must be done too with the full intention of restoring the place to its lawful Sovereign, whenever the necessity, for which it was occupied, may cease. The retaining of Enna, Livy says, was either an act of violence, or a necessary measure; by violence meaning the least departure from necessity. The Greeks, who were with Xenophon being in great want of ships, by Xenophon's own advice, seized upon those that were passing, still preserving the property untouched for the owners, supplying the sailors with provisions, and paying them wages. The principal right therefore, founded upon the original community of goods, remaining since the introduction of property, is that of necessity, which has just been discussed.
XI. There is another right, which is that of making use of the property of another, where such use is attended with no prejudice to the owner. For why, says Cicero, should not any one, when he can do it without injury to himself, allow another to share with him those advantages, which are useful to the receiver, and no way detrimental to the giver? Seneca therefore observes, that it is no favour to allow another to light his fire from your flame. And in the 7th book of Plutarch's Symposiacs, we find an observation, that when we have provisions more than sufficient for our own consumption it is wicked to destroy the remainder; or after supplying our own wants, to obstruct or destroy the springs of water; or after having finished our voyage, not to leave for other passengers the sea-marks, that have enabled us to steer our course.
XII. Upon the principles already established, a river, as such, is the property of that people, or of the sovereign of that people, through whose territories it flows. He may form quays, and buttresses upon that river, and to him all the produce of it belongs. But the same river, as a running water, still remains common to all to draw or drink it. Ovid introduces Latona thus addressing the Lydians, "Why do you refuse water, the use of which is common?" where he calls water a public gift that is common to men, taking the word public in a more general sense than as applied to any PEOPLE, a meaning in which some things are said to be public by the law of nations. And in the same sense Virgil has asserted water to be free and open to all men.
XIII. It is upon the same foundation of common right, that a free passage through countries, rivers, or over any part of the sea, which belongs to some particular people, ought to be allowed to those, who require it for the necessary occasions of life; whether those occasions be in quest of settlements, after being driven from their own country, or to trade with a remote nation, or to recover by just war their lost possessions. The same reason prevails here as in the cases above named. Because property was originally introduced with a reservation of that use, which might be of general benefit, and not prejudicial to the interest of the owner: an intention evidently entertained by those, who first devised the separation of the bounteous gifts of the creator into private possessions. There is a remarkable instance of this in the Mosaic history, when the leader of the children of Israel required a free passage for that people, promising to the King of Edom, and to the King of the Amorites, that he would go by the highway, without setting a foot upon the soil of private possessions, and that the people should pay the price of everything, which they might have occasion to use. Upon these equitable terms being rejected, Moses was justified in making war upon the Amorites. Because, says Augustin, an inoffensive passage, a right interwoven with the very frame of human society, was refused. The Greeks under the command of Clearchus, said, "we are upon the way to our home, if no one interrupt us; but every attempt to molest us, we are, with the assistance of heaven, determined to avenge."
Not unlike this answer of the soldiers under Clearchus is the question put to the different nations of Thrace by Agesilaus, who desired to know whether they wished him to pass through their country as a friend, or as an enemy. When the Boeotians hesitated upon some propositions made to them by Lysander, he asked them whether they intended that he should pass with erected or inclined spears, meaning by the expression in a hostile or a quiet manner. We are informed by Tacitus, that the Batavians, as soon as they came near the camp at Bonn, sent a message to Herennius Gallus, importing that "they had no hostile design; that if not obstructed, they would march in a peaceable manner; but if they met with opposition they would cut their way sword in hand." When Cimon in carrying supplies to the Lacedaemonians, had marched with his troops through some part of the Corinthian district, the Corinthians expostulated upon his conduct as a violation of their territory, because he had done it without asking their leave, at the same time observing, that no one knocks at another man's door, or presumes to enter the house without obtaining the master's leave. To whom he replied, you never knocked at the gates of Cleone and Megara, but broke them down, believing, I suppose, that no right ought to withstand the force of the mighty.
Now between these two extremes there is a middle course, requiring a free passage to be first asked; the refusal of which will justify the application of force. Thus Agesilaus in his return from Asia when he had asked a passage of the King of the Macedonians, who answered that he would consider of it, said, you may consider, if you please, but we shall pass in the mean time.
The fears, which any power entertains from a multitude in arms passing through its territories, do not form such an exception as can do away the rule already laid down. For it is not proper or reasonable that the fears of one party should destroy the rights of another. Especially, as necessary precautions and securities may be used, such as those, for instance, of requiring that the troops shall pass without arms, or in small bodies; a promise which the Agrippinians made to the Germans. And, as we are informed by Strabo, the practice still prevails in the country of the Eleans. Another security may be found in providing garrisons at the expense of the party, to whom the passage is granted; or in giving hostages; the condition, which Seleucus demanded of Demetrius, for permitting him to remain within his territories. Nor is the fear of offending that power, which is the object of attack, a sufficient pretext for refusing the passage of the troops to the state that is engaged in a just war. Nor is it a proper reason to assign for a refusal, to say that another passage may be found; as every other power might allege the same, and by this means the right of passage would be entirely defeated. The request of a passage therefore, by the nearest and most commodious way, without doing injury and mischief, is a sufficient ground upon which it should be granted. It alters the case entirely, if the party making the request is engaged in unjust war, and is marching with the troops of a power hostile to the sovereign of that territory; for in this instance, a passage may be refused. For the sovereign has a right to attack that power in his own territory, and to oppose its march.
Now a free passage ought to be allowed not only to persons, but to merchandise. For no power has a right to prevent one nation from trading with another at a remote distance; a permission which for the interest of society should be maintained. Nor can it be said that any one is injured by it. For though he may be thereby deprived of an exclusive gain, yet the loss of what is not his due, as a MATTER OF RIGHT, can never be considered as a damage or the violation of a claim.
XIV. But it will form a subject of inquiry, whether the sovereign of the country has a right to impose duties on goods carried by land, or upon a river or upon any part of the sea, which may form an accession to his dominions. It would undoubtedly be unjust for any burdens foreign to the nature of trade to be imposed upon such goods. Thus strangers merely passing through a country would have no right to pay a poll-tax, imposed to support the exigencies of the state. But if the sovereign incurs expence by providing security and protection to trade, he has a right to reimburse himself by the imposition of moderate and reasonable duties. It is the REASONABLENESS of them, which constitutes the justice of customs and taxes. Thus Solomon received tolls for horses and linen that passed over the Isthmus of Syria. Pliny, speaking of frankincense, observes that as it could not be transported but by the Gebanites, a duty upon it was paid to their king. In the same manner, as Strabo informs us in his fourth book, the people of Marseilles derived great wealth from the canal which Marius had made from the Rhone to the sea, by exacting tribute of all that sailed upon it to and fro with vessels. In the eighth book of the same writer, we are told that the Corinthians imposed a duty upon all goods, which, to avoid the dangerous passage of Cape Malea, were transported by land from sea to sea. The Romans too made the passage of the Rhine a source of tribute, and Seneca relates that a toll was paid for going over bridges. The works of legal writers abound in instances of this kind. But it frequently happens that extortion is practised in these matters, which Strabo forms into a subject of complaint against chiefs of the Arabian tribes, concluding that it would be unlikely for men of that lawless kind to impose upon the goods of merchants any duties that were not oppressive.
XV. Those going with merchandise or only passing through a country, ought to be allowed to reside there for a time, if the recovery of health, or any other just cause should render such residence necessary. For these may be reckoned among the innocent uses of our right. Thus Ilioneus in Virgil calls heaven to witness the injustice of the Africans in driving him and his shipwrecked companions from the hospitable use of the shore, and we are informed by Plutarch in his life of Pericles that all the Grecians approved of the complaint, which the Megarensians made against the Athenians, who had prohibited them from setting foot upon the soil of their territories, or carrying a vessel into their harbours. So the Lacedaemonians regarded this as the most sufficient grounds to justify the war.
From hence results the right of erecting a temporary hut, upon the shore, although, for instance, the same shore is allowed to be the property of the people of that place. For what Pomponius says of its being necessary to obtain the Praetor's leave, before a building can be raised upon the public shore, relates to structures of a permanent kind, when the massy piles of stone, as the Poet says, encroach upon the sea, and the affrighted fish feel their waves contracted.
XVI. Nor ought a permanent residence to be refused to foreigners, who, driven from their own country, seek a place or refuge. But then it is only upon condition that they submit to the established laws of the place, and avoid every occasion of exciting tumult and sedition. A reasonable rule, which the divine poet has observed, when he introduces Aeneas making an offer that Latinus, who had become his father-in-law, should retain all military and civil power. And in Dionysius of Halicarnassus, Latinus admits the proposal of Aeneas to be just; as he came through necessity in quest of a settlement. To drive away refugees, says Strabo, from Eratosthenes, is acting like barbarians; and a conduct like this in the Spartans was also condemned. St. Ambrose passes the same sentence of condemnation upon those powers, who refuse all admission to strangers. Yet settlers of this description have no right to demand a share in the government. A proposal of this kind made by the Minyae to the Lacedaemonians, who had received them, is very properly considered by Herodotus as insolent, and unreasonable.
XVII. It is indeed but an act of common humanity in a sovereign to allow strangers, at their request, liberty to fix their residence upon any waste or barren lands within his dominions, still reserving to himself all the rights of sovereignty. Seven hundred acres of barren and uncultivated land, as Servius observes, were given by the native Latins to the Trojans. Dion Prusaeensis, in his seventh oration, says, that they commit no crime of trespass, who take upon them to cultivate waste lands. The refusal of this privilege made the Ansibarians exclaim, "the firmament over our heads is the mansion of the deity: the earth was given to man; and what remains unoccupied, lies in common to all." Yet that complaint did not apply exactly to their case. For those lands could not be called unoccupied, as they served to supply the Roman army with forage for their cattle, which certainly furnished the Romans with a just pretext for refusing to grant their request. And with no less propriety the Romans asked the Galli Senones if it were right to demand lands already possessed, and to threaten to take them by force.
XVIII. Since the COMMON RIGHT TO THINGS has been established, the COMMON RIGHT TO ACTIONS follows next in order, and this right is either absolute, or established by the supposition of a general agreement amongst mankind. Now all men have absolutely a right to do such or such acts as are necessary to provide whatever is essential to the existence or convenience of life. Convenience is included in this right; for there is no occasion here to imagine an existence of the same necessity as was requisite to authorize the seizing of another's property. Because the point of discussion here is not whether any act is done AGAINST THE WILL of an owner, but whether we acquire what is necessary for our wants ACCORDING TO THE TERMS to which the owner has agreed.19 Supposing there is nothing illegal in the contract, nor any wilful intention on his part to make it null and void. For any impediment created by the owner in such transactions, is repugnant to the very principles of natural justice, which suppose an equality of upright dealing to subsist in both the parties concerned. St. Ambrose calls a fraudulent conduct of that kind, an attempt to deprive men of their share in the goods of a common parent, to withhold the productions of nature which are the birthright of all, and to destroy that commerce which is the very support of life. For we are not treating of superfluities and luxuries, but of those things, which are essential to life, as physic, food and cloathing.
XIX. From what has already been proved, it follows that all men have a right to purchase the necessaries of life at a reasonable price, except the owners want them for their own use. Thus in a great scarcity of corn, there would be no injustice in their refusing to sell. And yet in such a time of necessity foreigners, who have been once admitted, cannot be driven away; but as St. Ambrose shews in the passage already quoted, a common evil must be borne by all alike.
XX. Now owners have not the same right in the sale of their goods: for others are at full liberty to determine whether they will purchase certain articles or not. The ancient Belgians, for instance, allowed not wines and other foreign merchandise to be imported among them. The same rule, we are informed by Strabo, was practised by the Nabathaean Arabians.
XXI. It is supposed to be generally agreed among mankind, that the privileges, which any nation grants promiscuously to the subjects of foreign powers or countries, are the common right of all.20 Consequently the exclusion of any one people from these rights would be considered as an injury to that people. Thus, wherever foreigners in general are allowed to hunt, to fish, to shoot, to gather pearls, to succeed to property by testament, to sell commodities, or to form intermarriages, the same privileges cannot be refused to any particular people, unless they have by misconduct forfeited their right. On which account the tribe of Benjamin was debarred from intermarrying with other tribes.
XXII. It has sometimes been a subject of inquiry whether one nation may lawfully agree with another to exclude all nations but herself from purchasing certain productions, which are the peculiar growth of her soil. An agreement which, it is evident, may be lawfully made; if the purchaser intends to supply other nations with those articles at a reasonable price. For it is a matter of indifference to other nations OF WHOM they purchase, provided they can have a reasonable supply for their wants. Nor is there any thing unlawful in allowing one people an advantage over another in this respect, particularly for a nation who has taken another under her protection and incurred expence on that account. Now such a monopoly, under the circumstances already mentioned, is no way repugnant to the law of nature,21 though it may be sometimes for the interest of the community to prohibit it by express laws.
Specification of moveable property—The difference between sovereignty and property—The right to moveables by occupancy may be superseded by law—Rivers may be occupied—Right to seas—On the treaties binding a people not to navigate the seas beyond certain bounds—Inquiry into the nature of the change which a river, changing its course, makes in the adjoining territories—What determination is to be made, where the river has entirely changed its channel—Sometimes a whole river may accrue to a territory—Things deserted belong to the first occupier.
I. Among the means of acquiring property, Paulus the Lawyer reckons one, which seems most natural, and that is, if by the ingenuity of art, or the exertions of labour we have given to any production its existence among the works of man. Now as nothing can naturally be produced, except from some materials before in existence, it follows that, if those materials were our own, the possession of them under any new shape, or commodity is only a CONTINUATION of our former property; if they belonged to no one, our possession comes under the class of title by occupancy: but if they were another's, no improvement of ours can by the law of nature give us a right of property therein.
II. Among those things, which belong to no one, there are two that may become the subjects of occupancy; and those are jurisdiction, or sovereignty and property. For jurisdiction and property are distinct from each other in their effects. The objects over which sovereignty may be exercised are of a twofold description, embracing both persons and things. But this is not the case with property, the right of which can extend only to the irrational and inanimate part of the creation. Though it might originally, for the most part, be the same act by which sovereignty and property were acquired, yet they are in their nature distinct. Sovereignty, says Seneca, belongs to Princes and PROPERTY to INDIVIDUALS. The sovereignty therefore, not only over subjects at home, but over those in the prince's foreign dominions passes with the hereditary descent of the crown.
III. In places, where sovereignty is already established, the right to moveables by occupancy, and indeed every original right must give way to the superior sanction of law. And what any man before held by any such right, he would afterwards be considered as holding by the laws of the country. For those original rights were PERMISSIONS of the law of nature, and not commands that were to be PERPETUALLY enforced. For the continued establishment of such a right as that by prior occupancy, so far from promoting the welfare, would operate to the very destruction of human society. Although it may be said by way of objection, that the law of nations seems to admit of such a right, yet we may answer that if such a rule either is or has been commonly received in any part of the world, it has not the force of a general compact binding upon different independent nations; but may be considered as one branch of the civil law of many nations, which any state has a right to continue, or repeal according to its own pleasure or discretion. There are many other things indeed which legal writers, in treating of the division and acquisition of property, consider as forming a part of the law of nations.
IV. Rivers may be occupied by a country, not including the stream above, nor that below its own territories. But the waters which wash its lands form an inseparable part of the current, making its way to the main sea. For to constitute the right to a property in its channel, it is sufficient that its sides, inclosed by the banks of that territory form its greatest part, and that the river itself compared with the land, makes but a small portion.
V. In the same manner, the sea appears capable of being made a property by the power possessed of the shore on both sides of it; although beyond those limits it may spread to a wide extent, which is the case with a bay, and with a straight beyond each of its outlets into main sea or ocean. But this right of property can never take place where the sea is of such a magnitude, as to surpass all comparison with that portion of the land which it washes. And the right, which one people or prince possesses, may also be shared by a great number of states, among whose respective territories the sea flows. Thus rivers separating two powers may be occupied by both, to each of whom their use and advantages may be equal.
VI. Instances may be found of treaties by which one nation binds itself to another, not to navigate particular seas beyond certain bounds. Thus between the Egyptians and the Princes inhabiting the borders of the Red Sea, it was agreed, in ancient times, that the former should not enter that sea with any ship of war, nor with more than one merchant ship. In the same manner, in the time of Cimon, the Persians were bound by a treaty, made with the Athenians, not to sail with any ship of war between the Cyanean rocks and the Chelidonian islands; a prohibition, which, after the battle of Salamis, restricted any Persian armed vessel from sailing between Phaselis and the above named rocks. In the one year's truce of the Peloponnesian war, the Lacedaemonians were prohibited from sailing with any ships of war whatever, or indeed with any other ships of more than twenty tons burden. And in the first treaty, which the Romans, immediately after the expulsion of their kings, made with the Carthaginians, it was stipulated that neither the Romans, nor their allies should sail beyond the promontory of Pulchrum, except they were driven thither by stress of weather, or to avoid being captured by an enemy. But in either case they were to take nothing more than necessaries, and to depart before the expiration of five days. And in the second treaty, the Romans were prohibited from committing any acts of piracy, or even from trading beyond the promontory of Pulchrum, Massia and Tarseius.
In a treaty of peace between the Illyrians and Romans, the latter required that they should not pass beyond the Lissus with more than two frigates, and those unarmed. In the peace with Antiochus, he was bound not to sail within the capes of Calycadnius and Sarpedon, except with ships carrying tribute, ambassadors, or hostages. Now the instances alluded to do not prove the actual occupancy of the sea, or the right of navigation. For it may happen that both individuals and nations may grant as a matter of favour or compact, not only what they have a competent right to dispose of, but that which is the common right of all men as well as of themselves. When this happens, we may say as Ulpian did on a like occasion, where an estate had been sold with a reservation, that the purchaser should not fish for Tunny to the prejudice of the seller. He observed that the sea could not be rendered subject to a service, but still the purchaser and those who succeeded to his possession, were bound in honour to observe that part of the contract.
VII. Whenever a river has changed its course, disputes have arisen between neighboring states to decide whether such an alteration creates any change in the adjoining territories, and to whom any addition of land occasioned by that change accrues. Disputes which must be settled according to the nature and manner of such acquisition. Writers, who have treated of the division of land, have described it as of a threefold nature: one kind they name DIVIDED and ASSIGNED land, which Frontinus the Lawyer calls LIMITED, because it is marked out by artificial boundaries. By land ASSIGNED, is meant that which has been appropriated to a whole community, comprehending a certain number of families; a hundred for instance: from whence it has derived that name. And those portions are called hundreds. There is another division called ARCIFINIUM, which is applied when the land is defended against an enemy by the natural boundaries of rivers or mountains. These lands Aggenus Urbicus calls OCCUPATORY, being such as have been occupied either by reason of their being vacant, or by the power of conquest. In the two first kinds of lands, because their extent and bounds are fixed and determined, though a river should change its course, it occasions no change of territory, and what is added by alluvion will belong to the former occupant.
In arcifinious lands, where the bounds are formed by nature, any gradual change in the course of the river makes a change also in the boundaries of territory, and whatever accession is given by the river to one side, it will belong to the possessor of the land on that side. Because the respective nations are supposed originally to have taken possession of those lands, with an intention of making the MIDDLE of that river, as a natural boundary, the line of separation between them. Thus Tacitus in speaking of the Usipians and Tencterians, who border on the Cattians, says, "their territory lies on the banks of the Rhine, where that river, still flowing in one regular channel, forms a sufficient boundary."
VIII. Decisions like those above can only take place in instances, where the river has not altered its channel. For a river, dividing territories, is not to be considered barely as so much water, but as water flowing in a PARTICULAR CHANNEL, and inclosed WITHIN CERTAIN BANKS. For which reason an addition, a decrease, or such a change of small portions, as leaves the ancient appearance, upon the whole, nearly the same, allows us to consider the river as still the same. But if the whole face of the river is changed, the case will be entirely altered. For as a river may be entirely destroyed by the erection of dams upon the higher parts of its stream, or by digging canals, which carry off its waters in another direction: so by the desertion of its old channel, and breaking out for itself another course, it will not continue to be same river it was before, but will be completely a new one. In the same manner if a river has been dried up, the middle of its channel will remain as the boundary between neighbouring states, who in taking possession of the neighbouring territory originally intended the middle of such a river to be the line of separation, and under all changes to preserve the same as a permanent limit. But in doubtful cases, the territories bordering upon a river ought to be considered as arcifinious, because nothing can be a more apt mark of distinction than those impassable bounds assigned by nature. It very seldom indeed happens, that the artificial or civil admeasurements of territory can be regulated by such natural bounds, as they are, in general, the effect of original acquisition, or have been ceded by treaty.
IX. Although in doubtful cases, it has been said that the territories on each side of a river are determined by the middle of the channel; yet it may happen, and has happened, that the sole right to a river may belong to the territories on one side of it. Because that on the opposite side was of later occupancy, and subsequent to the possession of that river by the other power: or because this sole right may have been so settled by treaty.
X. It is not unworthy of observation that things which have had an owner, but have ceased to have one, become subject to the right by original acquisition. They are supposed to have been abandoned from the want of an owner, and therefore have returned to the original state of common stock. But at the same time it is proper to observe, that some times the original acquisition may have been made by a people or their sovereign, in such a manner as to give them or him not only those pre-eminent rights which constitute prerogative, but also the full title of property.
And this property again may be divided into smaller grants, and those again subdivided into other portions, to be held as dependent upon the original grantor, the Sovereign, or the Lord. Though the land may not be held by base service, or vassalage, yet it is possessed by some conditional tenure. For things are occupied by many kinds of right; among which may be reckoned the right of a person who expects property to be left to him under the condition of a trust. Seneca says, that an owner's being debarred from selling his lands, committing waste upon them, or even making improvements, is not to be taken as a proof that the property is not his. For that is a man's own, which he holds under any certain conditions. Since then property distributed in the manner above named is held of the sovereign, or of some intermediate Lord, who himself is tenant of the sovereign, it follows that any thing which wants an owner does not become the property of him, who can first seize it, but reverts to the state or to the sovereign.