‘SPATIA MARIS sibi vindicant IVRE MANCIPII, pisciumque iura sicut vernaculorum conditione sibi servitii subiecta commemorant. Iste, inquit, SINVS maris meus est; ille alterius. Dividunt elementa sibi potentes’.
Est igitur Mare in numero earum rerum quae in commercio non sunt,[90a] hoc est, quae proprii iuris fieri non possunt. Vnde sequitur si proprie loquamur, nullam Maris partem in territorio populi alicuius posse censeri. Quod ipsum Placentinus sensisse videtur, cum dixit: Mare ita esse commune, ut in nullius dominio sit nisi solius Dei; et Ioannes Faber, cum mare asserit relictum in suo iure, et esse primaevo, quo omnia erant communia.[91a] Alioquin nihil differrent quae sunt omnium communia ab his quae publica proprie dicuntur, ut mare a flumine. Flumen populus occupare potuit, ut inclusum finibus suis, mare non potuit.
Territoria autem sunt ex occupationibus populorum, ut privata dominia ex occupationibus singulorum. Vidit hoc Celsus, qui clare satis distinguit inter litora,[92a] quae Populus Romanus occupare potuit, ita tamen ut usui communi non noceretur, et mare quod pristinam naturam retinuit. Nec ulla lex diversum indicat.[93a] Quae vero leges a contrariae
themselves a wide expanse of sea by jus mancipii, and they regard the right of fishing as a servitude over which their right is the same as that over their slaves. That gulf, says one, belongs to me, and that gulf to some one else. They divide the very elements among themselves, these great men’!
Therefore the sea is one of those things which is not an article of merchandise,[90] and which cannot become private property. Hence it follows, to speak strictly, that no part of the sea can be considered as the territory of any people whatsoever. Placentinus seems to have recognized this when he said: ‘The sea is a thing so clearly common to all, that it cannot be the property of any one save God alone’. Johannes Faber[91] also asserts that the sea has been left sui juris, and remains in the primitive condition where all things were common. If it were otherwise there would be no difference between the things which are ‘common to all’, and those which are strictly termed ‘public’; no difference, that is, between the sea and a river. A nation can take possession of a river, as it is inclosed within their boundaries, with the sea, they cannot do so.
Now, public territory arises out of the occupation of nations, just as private property arises out of the occupation of individuals. This is recognized by Celsus, who has drawn a sharp distinction between the shores of the sea,[92] which the Roman people could occupy in such a way that its common use was not harmed, and the sea itself, which retained its primitive nature. In fact no law intimates a contrary view.[93] Such laws as are cited by writers who are of