quod etiam concursus istorum trium non sufficeret ad acquirendum ius. Ratio differentiae inter mare ex una parte, et terram et flumina ex altera, quia illo casu ut olim ita et hodie, et semper, tam quoad piscandum quam quoad navigandum mansit integrum ius gentium primaevum, neque umquam fuit a communione hominum separatum, et alicui, vel aliquibus applicatum. Posteriore autem casu, nempe in terra vel fluminibus aliud fuit, ut iam disseruimus’.
‘Sed quare ius gentium secundarium, ut eam separationem quoad terras et flumina facit, quoad mare facere desiit? respondeo, quia illo casu expediebat. Constat enim quod si multi venentur, aut piscentur in terra vel flumine, facile nemus feris, et flumen piscibus evacuatum redditur, id quod in mari non est. Item fluminum navigatio facile deterior fit et impeditur per aedificia, quod in mari non est. Item per aquaeductus facile evacuatur flumen, non ita in mari;[143a] ergo in utroque non est par ratio’.
‘Nec ad rem pertinet, quod supra diximus, communem esse usum aquarum, fontium etiam et fluminum. Nam intelligitur quoad bibendum et similia, quae fluminis dominium aut ius habenti vel minime vel levissime nocent.[144a] Minima enim in consideratione non sunt. Pro nostris sententiis facit, quia iniqua nullo tempore praescribuntur, et ideo lex iniqua nullo tempore praescribitur, aut iustificatur’. Mox: ‘Et
more to say about it, because even the combination of the three conditions mentioned is not sufficient here for the acquisition of such a right. The reason for the difference between the sea on one hand and land and rivers on the other, is that in the case of the sea the same primitive right of nations regarding fishing and navigation which existed in the earliest times, still today exists undiminished and always will, and because that right was never separated from the community right of all mankind, and attached to any person or group of persons. But in the latter case, that of the land and rivers, it was different, as we have already set forth.
‘But why, it is asked, does the secondary law of nations which brings about this separation when we consider lands and rivers cease to operate in the same way when we consider the sea? I reply, because in the former case it was expedient and necessary. For every one admits that if a great many persons hunt on the land or fish in a river, the forest is easily exhausted of wild animals and the river of fish, but such a contingency is impossible in the case of the sea. Again, the navigation of rivers is easily lessened and impeded by constructions placed therein, but this is not true of the sea. Again, a river is easily emptied by means of aqueducts but the sea cannot be emptied by any such means.[143] Therefore there is not equal reason on both sides.
‘Neither does what we have said above about the common use of waters, springs, and rivers, apply in this case, for common use is recognized in them all for purposes of drinking and the like, such usages namely as do not injure at all or in the slightest degree him who owns a river or has some other right in one.[144] These are trifles for which we have no time. What makes for our contention is the fact that no lapse of time will give a prescriptive right to anything unjust. Therefore an unjust law is not capable of