and Diodorus Siculus, in speaking of the war of the Lacedaemonians against the Eleans gives them the name of 
and 
BOOK II.
CHAPTER I. DEFENCE OF PERSON AND PROPERTY
Footnotes for Chapter I
CHAPTER II. THE GENERAL RIGHTS OF THINGS.
Footnotes for Chapter II
CHAPTER III. ON THE ORIGINAL ACQUISTION OF THINGS, AND THE RIGHT OF PROPERTY IN SEAS AND RIVERS.
CHAPTER IV. TITLE TO DESERT LANDS BY OCCUPANCY, POSSESSION, AND PRECRIPTION.
(this edition is not a complete translation of the text)
CHAPTER IX. IN WHAT CASES JURISDICTION AND PROPERTY CEASE.
Footnotes for Chapter IX
CHAPTER X. THE OBLIGATION ARISING FROM PROPERTY.
Footnotes for Chapter X
CHAPTER XI. ON PROMISES.
Footnotes for Chapter XI
CHAPTER XII. ON CONTRACTS.
Footnotes for Chapter XII
CHAPTER XIII. ON OATHS.
(this edition is not a complete translation of the text)
CHAPTER XV. ON TREATIES AND ON ENGAGEMENTS MADE BY DELEGATES, EXCEEDING THEIR POWER.
Footnotes for Chapter XV
CHAPTER XVI. THE INTERPRETATION OF TREATIES.
Footnotes for Chapter XVI
CHAPTER XVII. ON DAMAGES OCCASIONED BY INJURY AND THE OBLIGATION TO REPAIR THEM.
CHAPTER XVIII. ON THE RIGHT OF EMBASSIES.
Footnotes for Chapter XVIII
CHAPTER XIX. ON THE RIGHT OF BURIAL.
CHAPTER XX. ON PUNISHMENTS.
Footnotes for Chapter XX
CHAPTER XXI. ON THE COMMUNICATION OF PUNISHMENT.
CHAPTER XXII. ON THE UNJUST CAUSES OF WAR.
Footnotes for Chapter XXII
CHAPTER XXIII. ON DOUBTFUL CAUSES.
Footnotes for Chapter XXIII
CHAPTER XXIV. PRECAUTIONS AGAINST RASHLY ENGAGING IN WAR, EVEN UPON JUST GROUNDS.
Footnotes for Chapter XXIV
CHAPTER XXV. THE CAUSES OF UNDERTAKING WAR FOR OTHERS.
Causes of War—Defence of person and property—What are called justifiable causes of war—Justifiable causes of War are Defence, recovery of one's property or debt, or the punishment of offences committed—War for defence of life, justifiable, and lawful—This kind of war lawful against an aggressor only— The danger must be present and real, not an imaginary danger— Lawful to kill any one attempting to maim one's person, or violate one's chastity—Occasions where this right may be lawfully waved—This right to be waved particularly with respect to the person of the Sovereign, which is sacred and inviolable—Homicide in defence of one's property allowed by the law of nature—How far homicide is permitted by the law of Moses—Self-defence in public war—Not lawful to attack any power solely on account of its increasing greatness—The hostile measures of an aggressor, not to be justified on the plea of self-defence.
I. THE causes of war by which are meant the justifiable causes, are now to be considered. For in some cases motives of interest operate distinctly from motives of justice. Polybius accurately distinguishes these motives from each other, and from the beginning of the war, or that which gave occasion to the first acts of hostility; as was the case when Ascanius wounded the stag, which gave rise to the war between Turnus and Aeneas. But though there is an actual distinction between the justifiable causes, the pretexts, and the beginning of war; yet the terms used to express them are often confounded. For what we call justifiable causes, Livy, in the speech which he has put into the mouth of the Rhodians, calls beginnings. The Rhodian deputies said, "You Romans profess to believe that your wars are successful, because they are just: nor do you boast so much of their victorious issue, as of the just principles, upon which you make them." In which sense Aelian styles them and Diodorus Siculus, in speaking of the war of the Lacedaemonians against the Eleans gives them the name of and
The principal drift of our argument rests upon these justifiable causes, to which the sentiment of Coriolanus in Dionysius of Halicarnassus, particularly applies, he says, "in the first place, I beseech you to consider how you may find pious and just pretexts for the war." And Demosthenes in his second Olynthiac, makes a similar observation, "I think, says he, that as in a ship, or house, or any other fabric, the lowest parts ought to be the strongest; so in all political measures the motives and pretexts ought to be laid deeply in the principles of truth and justice." The following language of Dion Cassius is no less applicable to the question. "Justice must be made the principal ground of our actions. For with such support there is the best hope of success to our arms. But without that, any point which may be gained for the moment has no firm ground to rest upon." To which may be added, the words of Cicero, who maintains those wars to be unjust, which are made without sufficient cause. And in another place, he reproves Crassus for having intended to pass the Euphrates, when there was no cause of war. Which is no less true of public than of private wars. Hence come the complaints of Seneca, "Why do we restrain homicide, and the murder of individuals, but glory in the crime of slaughter, which destroys whole nations? Avarice and cruelty know not any bounds. By decrees of the Senate, and of the people cruel acts are authorized, and measures, which are pursued by order of the state, are forbidden to individuals." Wars indeed undertaken by public authority are attended with certain effects of right, and have the sanction of opinion in their favour. But they are not the less criminal, when made without just cause. For which reason Alexander was not improperly styled a robber by the Scythian ambassadors, as may be seen in Quintus Curtius. Seneca and Lucan give him the same appellation; the Indian sages call him a madman; and a pirate once presumed to rank him with his own class. Justin speaks of Philip in the same terms, who, says he, in deciding a dispute between two rival kings, stripped both of their dominions with all the treachery and violence of a robber. Augustin has a pertinent remark on this subject. He says, what are unjustly acquired dominions, but the Spoils of robbery? In the same strain, Lactantius says, "Men, captivated with the appearances of vain glory, give the names of virtues to their crimes." Injury, or the prevention of injury forms the only justifiable cause of war. "And, in the language of the same Augustin, all the evil consequences of war are to be laid at the door of the aggressor." Thus the Roman Herald in a declaration of war makes a solemn appeal against the aggressor, as having violated the laws of nations, and refused proper satisfaction.
II. The grounds of war are as numerous as those of judicial actions. For where the power of law ceases, there war begins. Now there are methods in law to prevent intended injuries, as well as actions for those actually committed. For CIVIL INJURIES various methods of redress, or prevention are appointed by the law; and by the same power securities are provided to prevent the commission of crimes and misdemeanors. In civil cases, the party aggrieved may recover damages for the injuries sustained; and in crimes, which are offences against the public, the aggressor must submit to actual punishment. Plato, in his ninth book on laws, very properly makes the same distinction, as Homer had done before him.
Now reparation or indemnity relates to what either does or did belong to us; which gives rise to real and personal actions. These ascertain our right to the damages, which are our due, either from an agreement, or from an injury received. A right which is termed in law a right by contract, or injury. Crimes, which are offences against society, are prosecuted by indictment, that is by an accusation in the name of the sovereign.
The justifiable causes generally assigned for war are three, defence, indemnity, and punishment, all which are comprised in the declaration of Camillus against the Gauls, enumerating all things, which it is right to defend, to recover, and the encroachment on which it is right to punish.
There is an omission in this enumeration, unless the word recover be taken in its most extensive sense. For recovering by war what we have lost, includes indemnity for the past, as well as the prosecution of our claim to a debt. Plato has not omitted to notice this distinction, for he has said, "that wars are made to punish not only oppression or robbery, but also fraud and deception." With whom Seneca agrees; for to command payment of what you owe, he calls, "an equitable sentence, stamped with the authority of the law of nations." Indeed the form which was prescribed for the Roman heralds to use in declarations of war, bears exactly the same import. For therein the aggressor is charged with having neither given, paid, nor done what was due. Sallust in one of his fragments, has made a Tribune, in his harangue to the people, say, "As a final settlement of all discussions, I demand restitution according to the law of nations."
St. Augustin, in defining those to be just wars, which are made to avenge injuries has taken the word avenge in a general sense of removing and preventing, as well as punishing aggressions. This appears to be his meaning from the following sentence of the passage, in which he does not enumerate the particular acts, which amount to injury, but adds, by way of illustration, that "the state or nation, which has neglected to punish the aggressions of its own subjects, or to make reparation for the losses occasioned by those aggressions, is a proper object of hostility and attack." Promoted by this natural knowledge of right and wrong, the Indian King, as we are informed by Diodorus, accused Semiramis of having commenced war against him without having received any injury. Thus the Romans expostulated with the the Senones, that they ought not to attack a people who had given them no provocation. Aristotle in the second book and second chapter of his Analytics, says, war generally is made upon those who have first done an injury. Quintus Curtius describes the Abian Scythians, as the best acquainted with the principles of justice of any of the Barbarians. For they declined having recourse to arms, unless provoked by aggression. A just cause then of war is an injury, which though not actually committed, threatens out persons or property with danger.
III. It has already been proved that when our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided: an instance, as it has been shewn, on which the justice of private war rests. We must observe that this kind of defence derives its origin from the principle of self-preservation, which nature has given to every living creature, and not from the injustice or misconduct of the aggressor. Wherefore though he may be clear of guilt, as for instance a soldier in actual service, mistaking my person for that of another, or a madman in his frenzy, or a man walking in his sleep, none of these cases deprive me of the right of self-defence against those persons. For I am not bound to submit to the danger or mischief intended, any more than to expose myself to the attacks of a wild beast.
IV. It admits of some doubt, whether those, who unintentionally obstruct our defence, or escape, which are necessary to our preservation, may be lawfully maimed or killed. There are some, even Theologians, who think they may. And, certainly if we look to the law of nature alone, according to its principles, our own preservation should have much more weight with us, than the welfare of society. But the law of charity, especially the evangelical law, which has put our neighbour upon a level with ourselves, does not permit it.
Thomas Aquinas, if taken in a right sense, has justly observed, that in actual self-defence no man can be said to be purposely killed. Indeed, it may some times happen that there is no other way for a person to save himself, than by designedly doing an act, by which the death of an aggressor must inevitably ensue. Yet here the death of any one was not the primary object intended, but employed as the only means of security, which the moment supplied. Still it is better for the party assaulted, if he can safely do it, to repel or disable the aggressor than to shed his blood.
V. The danger must be immediate, which is one necessary point. Though it must be confessed, that when an assailant seizes any weapon with an apparent intention to kill me I have a right to anticipate and prevent the danger. For in the moral as well as the natural system of things, there is no point without some breadth. But they are themselves much mistaken, and mislead others, who maintain that any degree of fear ought to be a ground for killing another, to prevent his SUPPOSED intention. It is a very just observation made by Cicero in his first book of Offices, that many wrongs proceed from fear; as when the person, who intends to hurt another, apprehends some danger to himself unless he took that method. Clearchus, in Xenophon, says, I have known some men, who partly through misrepresentation, and partly through suspicion, dreading one another, in order to prevent the supposed intentions of their adversaries, have committed the most enormous cruelties against those who neither designed, nor wished them any harm.
Cato in his speech for the Rhodians, says, "Are we to prevent them by doing first, what we say they intended to do to us?" On this subject there is a remarkable passage in Aulus Gellius, "When a Gladiator prepares to enter the lists for combat, such is his lot that he must either kill his adversary, or be killed himself. But the life of man is not circumscribed by the hard terms of such an over-ruling necessity, as to oblige him to do an injury to prevent him from receiving one." Quintilian has quoted a passage from Cicero, wherein the orator asks, "Whoever made such a decision, or to whom could such a point be yielded without the most imminent danger, that you have a right to kill the person, by whom you say, you fear that you shall afterwards be killed yourself?" To which this passage of Euripides, may be applied, "If your husband, as you say, intended to have killed you, you ought to have waited, till he actually did make the attempt." Conformably to which Thucydides, in the first book of his history, has expressed himself in the following terms, "The issue of war is uncertain, nor ought we to be so far transported by our fears, as to engage in immediate and open hostilities." The same writer too in his luminous description of the dangerous factions, that had arisen in the Grecian states, condemns the approbation bestowed on the person, that injured or destroyed another from whom he himself apprehended injury or destruction."
Livy says, "Men, to guard against their alarms, make themselves objects of terror; averting the danger from their own heads, by imposing upon others the necessity of either doing or suffering the evil which they themselves fear." Vibius asked a person, that appeared armed in the forum, "Who gave you permission to shew your fear in this manner?" A question not inapplicable to the present subject, and much commended by Quintilian. Livia also in Dion says, that great infamy redounds to those, who by anticipation perpetrate the criminal act, which they fear.
Now if any one intend no immediate violence, but is found to have formed a conspiracy to destroy me by assassination, or poison, or by false accusation, perjury, or suborned witnesses, I have no right to kill him. For my knowledge of the danger may prevent it. Or even if it were evident that I could not avoid the danger without killing him; this would not establish my right to do so. For there is every presumption that my knowing it will lead me to apply for the legal remedies of prevention.
VI. and VII. The next thing to be considered is, what must be said upon the mutilation of a limb. Now, as the loss of a limb, especially that of a principal limb in the body, is a grievous detriment, and nearly equal to the loss of life, to which may be added the probability of death ensuing from such a calamity; the lawfulness of killing any one, who makes such an attempt, if the danger cannot otherwise be avoided, scarce admits of a doubt. Neither is there any more difficulty in allowing the same right for the personal defence of chastity, the preservation of which, both in the common estimation of men, and by the divine law, is deemed of equal value with life itself. We have an example of this in Cicero, Quintilian, and Plutarch, in the person of one of Marius's tribunes, who was killed by a soldier. Among the actions of women, who have defended themselves. Heliodorus records that of Heraclea, which he calls a just defence of her injured honour.
VIII. Though some, as it has been already said, admit the lawfulness of killing the person, who attempts with open violence to destroy one's life, yet they deem it more commendable to spare the life of another, even at the hazard of one's own. Yet to persons, in whose preservation the public interest is involved, they will grant an exemption from this rule of forbearance. Indeed it seems unsafe to impose upon ANY, whose lives are of importance to others, a rule of forebearance so contrary to all the principles of all law. This exemption therefore must be allowed to all vested with any public office, which makes them responsible for the safety of others; as the generals who conduct armies, or the rulers of the state, and many others in similar situations; to whom may be applied the lines of Lucan—"When the lives and safety of so many nations depend upon yours, and so great a portion of the world has chosen you for its head; it is cruelty to expose yourself willfully to death."
IX. On the other hand it may happen, that the aggressor may be one whose person is rendered sacred and inviolable by all divine, human, and natural laws; which is the case with respect to the person of the Sovereign. For the law of nature regards not only the principles of STRICT JUSTICE, but comprises other virtues also, as temperance, fortitude, and discretion, making the observance of them in certain cases, binding as well as honourable. To observe these we are bound also by the law of charity.
Nor is the truth of this argument at all weakened by what Vasquez has advanced, who maintains that the Sovereign who attempts the life of an individual loses, in reality, the character of Sovereign: a doctrine fraught with equal absurdity and danger. For sovereignty cannot any more than property be forfeited by any particular act of delinquency; unless it has been previously and expressly so enacted by the fundamental laws of the state. For such a rule of forfeiture, which would be productive of universal anarchy and confusion, never has been, nor ever will be established among any civilized people. For the maxim, "that all government is framed for the benefit of the subject and not of the Sovereign," which Vasquez and many other writers lay down as a fundamental law, though it may be generally true in theory, is by no means applicable to the question. For a thing loses not its existence, by losing some part of its utility. Nor is there sufficient consistency in his observation, that every individual desires the safety of the commonwealth on his own account, and therefore every one ought to prefer his own safety to that of the whole state. For we wish for the public welfare not on our own account alone, but also for the sake of others.
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.1 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 suppose 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 Ulpain 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.2 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.
1. The tenth section is omitted in the translation; as the subject of Christian forbearance of which it treats, has already been discussed in the preceeding book.—TRANSLATOR.
2. Sections XIII. XIV. and XV. of the original are omitted in the translation.—TRANSLATOR.
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.1
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.2 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 woulddestroy 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 inexhaustable 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 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 lawfulSovereign, 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 nor 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 prejudical 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 conditions, 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 from 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 Males, 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 introduced Aeneas making an offer the 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 of insolent, and unreasonable.
XVII. It is indeed but an act of common humanity in a sovereign to allow strangers, at their request, liberty to fixtheir 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 Prusaseensis, in his seventh oration, says, that they commit no crime of tresspass, 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 nor 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.3 Supposing there is nothing illegal in the contract, nor any willful 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.4 Consequently the exclusion of any one people from these rights would beconsidered 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, thesame 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,5though it may be sometimes for the interest of the community to prohibit it by express laws.
1. Actus aliquos, which literally signifies certain acts, may be rendered by the term incorporeal rights, which imply the right of ways, dignities, franchises, and many other personal privileges arising out of certain corporeal kinds of property.
2. The words of Judge Blackstone will elucidate the meaning of Grotius in this place. The learned Commentator says, "There are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had: and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition: which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has a right to seise and enjoy them afterwards.
3. The meaning of Grotius in this Section will be more clearly understood by a brief explanation of the nature of Contracts. "Now contracts are of two kinds, either express or implied. Express contracts are openly uttered and avowed at the time of making, as to deliver an ox, or ten load of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes, that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labor deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes, that I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and convenants, viz. that if I fall in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal. Blackst. Com. b. ii. c. 30. p. 442. country, which is so indulgent to them. That country becomes a market both more extensive and more advantageous for their goods: more extensive, because the goods of other nations being either excluded or subjected to heavier duties, it takes off a great quantity of theirs: more advantageous, because the merchants of the favoured country, enjoying a sort of monopoly there, will often sell their goods for a better price, than if exposed to the free competition of all other nations." —Vol. 2. b. iv. ch. vi.
4. There are cases in which monopolies, and the exclusive privileges of trading companies are not only allowable but absolutely necessary."for there are,says Vattel, commercial enterprizes that cannot be carried on without an energy that requires considerable funds, which surpass the ability of individuals. There are others that would soon become ruinous, were they not conducted with great prudence, with one regular spirit, and according to well supported maxims and rules.These branches of trade cannot be indiscriminately carried on by individuals: companies are therefore formed, under the authority of the government; and these companies cannot subsist without an exclusive privelege. It is therefore advantageous to the nation to grant them:hence have arisen in different countries, those powerful companies that carry on commerce with the East."—Law of Nat. b. i. c. viii. sect. 97.p.42.
5. Adam Smith in his Wealth of Nations, speaking of treaties of commerce, observes, that "when a nation binds itself by treaty, either to permit the entry of certain goods from one foreign country which it prohibits from all others, or to exempt the goods of one country from duties to which it subjects those of all others, the country, or at least the merchants and manufacturers of the country, whose commerce is SO favoured, must necessarily derive great advantages from the treaty.Those merchants and manufacturers enjoy a sort of monopoly in the country, which is so indulgent to them. That country becomes a market both more extensive and more advantageous for their goods:more extensive, because the goods of other nations being either excluded or subjected to heavier duties, it takes off a great quantity of theirs: more advantageous, because the merchantsof the favoured country, enjoying a sort of monopoly there, will often sell their gods for a better price, than if exposed to the freecompetition of all other nations."—VoL 2. b. iv. ch. vi
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 occupany: 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 two fold 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 may 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 the 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 Pelonnesian 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 neighbouring 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 enclosed 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 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 sometimes 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.
Why Usucaption or Prescription cannot subsist between independent States, and Sovereigns—Long possession alledged as a ground of right—Inquiry into the intentions of men, which are not to be judged of by words alone—Intention to be judged of by acts— Intentions also to be judged of by omissions—How far length of time, silence, and non-possession, may confirm the conjecture of an abandoned right—Time immemorial generally though to bar any claim—What constitutes time immemorial—Objections to a presumed desertion of property, considered without any conjecture, time immemorial appears to transfer and constitute a property— Inquiry whether persons yet unborn may thus be deprived of their right—Rules of civil law respecting Usucaption and Prescription as applied to the case of Sovereign Princes, explained.
I. A GREAT difficulty arises here respecting the right to property by uninterrupted possession for any certain time. For though time is the great agent, by whose motion all legal concerns and rights may be measured and determined, yet it has no effectual power of itself to create an express title to any property. Now those rights were introduced by the civil law; and it is not their long continuance, but the express provisions of the municipal law, which gives them their validity. They are of no force therefore, in the opinion of Vasquez, between two independent nations or sovereigns, or between a free nation and a sovereign: between a sovereign and an individual who is not his subject, or between two subjects belonging to different kings or nations. Which indeed seems true; and is actually the case; for such points relating to persons and things, are not left to the law of nature, but are settled by the respective laws of each country. As the unqualified admission of this principle would lead to great inconvenience, and prevent the disputes of kings and nations respecting the bounds of territory from ever being adjusted; in order to eradicate the seeds of perpetual warfare and confusion, so repugnant to the interests and feelings of every people; the settlement of such boundaries is not left to the claims of prescriptive right; but the territories of each contending party are, in general, expressly defined by certain treaties.
II. To disturb any one in the actual and long possession of territory, has in all ages been considered as repugnant to the general interests and feelings of mankind. For we find in holy writ, that when the King of the Ammonites demanded the lands situated between the rivers Arnon and Jabok, and those extending from the deserts of Arabia to the Jordan, Jepthah opposed his pretentions by proving his own possession of the same for three hundred years, and asked why he and his ancestors had for so long a period neglected to make their claim. And the Lacedaemonians, we are informed by Isocrates, laid it down for a certain rule admitted among all nations, that the right to public territory as well as to private property was so firmly established by length of time, that it could not be disturbed; and upon this ground they rejected the claim of those who demanded the restoration of Messena.
Resting upon a right like this, Philip the Second was induced to declare to Titus Quintius, "that he would restore the dominions which he had subdued himself, but would upon no consideration give up the possessions which he had derived from his ancestors by a just and hereditary title. Sulpitius, speaking against Antiochus, proved how unjust it was in him to pretend, that because the Greek Nations in Asia had once been under the subjection of his forefathers, he had a right to revive those claims, and to reduce them again to a state of servitude. And upon this subject two historians, Tacitus and Diodorus may be referred to; the former of whom calls such obsolete pretentions, empty talking, and the latter treats them as idle tales and fables. With these opinions Cicero, in his and book of Offices, agrees, asking "what, justice there can be in depriving an owner of the land, which he has for many ages quietly possessed?"
III. Can it be said, in order to justify the disturbance of long enjoyed possessions, that the rightful owner INTENDED to assert his claim, when he never manifested such intention by any outward visible act? The effect of right which depends upon a man's intentions can never follow from a bare conjecture of his will, unless he has declared and proved it by some express and visible act. For actions being the only evidence of intentions, intentions can never of themselves alone without such acts be the object of human laws. No conjectures indeed respecting the acts of the mind can be reduced to mathematical certainty, but only to the evidence of probability at the utmost. For men by their words may express intentions different from their real ones, and by their acts counterfeit intentions which they have not. The nature of human society, however, requires that all acts of the mind, when sufficiently indicated, should be followed by their due effects. Therefore the intention, which has been sufficiently indicated, is taken for granted against him who gave such indication.
IV. But to proceed to proofs derived from actions. A thing is understood to be abandoned, when it is cast away; except it be under particular circumstances, as throwing goods overboard in a storm to lighten a ship, where the owner is not supposed to have abandoned all intention of recovery, should it ever be in his power. Again, by giving up or canceling a promissory note, a debt is deemed to be discharged. Paulus the Lawyer, says, a right to property may be renounced not only by words, but also by actions, or any other indication of the will. Thus, if an owner knowingly make a contract with any one who is in possession, treating him as if he were the rightful proprietor, he is naturally supposed to have relinquished his own pretensions. Nor is there any reason, why the same rule may not take place between sovereign princes, and independent states, as between individuals. In the same manner, a Lord by granting certain privileges to his Vassal, which he could not legally enjoy without a release from his former obligations, was supposed by such act to have given him his freedom. A power derived not from the civil law only, but from the law of nature, which allows every man to relinquish what is his own, and from a natural presumption that a person designed to do the act which he has given manifest proofs of his intention to do. In this sense, Ulpian may be rightly understood, where he says, that ACCEPTILATION or the verbal discharge of a debt is founded upon the law of nations.
V. Even omissions, taking all proper circumstances into consideration, come under the cognizance of the law. Thus the person, who knowing of an act, and being present at the commission of it, passes it over in silence, seems to give his consent to it: this was admitted by the Mosaic Law. Unless indeed it can be shewn that the same person was hindered from speaking either by fear or some other pressing circumstance. Thus a thing is accounted as lost when all hope of recovering it is given up; as for instance, if a tame animal, which was in our possession, be seized and carried off by a wild beast. Goods too lost by shipwreck, Ulpian says, cease to be considered as our own, not immediately, but when they are lost beyond all possibility of being reclaimed, and when no proofs of the owner's intention to reclaim them can be discovered.
Now the case is altered, if persons were sent to inquire after the lost goods, or property, and a reward was promised to the finder. But if a person knows his property to be in the possession of another, and allows it to remain so for a length of time, without asserting his claim, unless there appear sufficient reasons for his silence, he is construed to have entirely abandoned all pretentions to the same. And to the same purpose he has said elsewhere, that a house is looked upon to be abandoned on account of the long silence of the proprietor.
The Emperor Antoninus Pius, in one of his rescripts, said there was but little justice in claiming interest upon money after a long period; for the length of time elapsed was an indication that the debtor had been excused from payment, from some motive of kindness.
There appears something similar to this in the nature of custom. For apart from the authority of civil laws, which regulate the time and manner of custom, and its introduction, it may arise from the indulgence of a sovereign to a conquered people. But the length of time from which custom derives the force of right, is not defined, but left to the arbitrary decision of what is sufficient to indicate general consent. But for silence to be taken as a valid presumption that property is deserted, two things are requisite: it must be a silence with a knowledge of the fact, and with a perfect freedom of will in the person concerned. For a silence founded in ignorance can have no weight; and where any other reason appears, the presumption of free consent must fail.
VI. Although the two requisites already named may be produced, yet other reasons have their weight; among which length of time is not the least important. For in the first place, it can scarcely happen, that for a great length of time a thing belonging to any one should not some way or other come to his knowledge, as time might supply many opportunities. Even is the civil law did not interpose to bar remote pretensions, the very nature of things would shew the reasonableness of a shorter period of limitation being allowed to present than to absent claimants. If impressions of fear were pleaded by any one in excuse, yet their influence would not be of perpetual duration, and length of time would unfold various means of security against such fears, either from resources within himself, or from the assistance of others. Escaping beyond the reach of him he dreaded, he might protest against his oppression, by appealing to proper judges and arbitrators.
VII. Now as time immemorial, considered in a moral light, seems to have no bounds, silence for such a length of time appears sufficient to establish the presumption that all claim to a thing is abandoned, unless the strongest proofs to the contrary can be produced. The most able Lawyers have properly observed, that time according to the memory of man is not an hundred years, though probably it may not fall far short of that space. For a hundred years are the term beyond which human existence seldom reaches; a space, which in general completes three ages or generations of men. The Romans made this objection to Antiochus, that he claimed cities, which neither he himself, his father, nor his grandfather had ever possessed.
VIII. From the natural affection which all men have for themselves, and their property, an objection may be taken against the presumption of any one's abandoning a thing which belongs to him, and consequently negative acts, even though confirmed by a long period of time, are not sufficient to establish the above named conjecture.
Now considering the great importance deservedly attached to the settlement of CROWNS, all conjectures favourable to the possessors ought to be allowed. For if Aratus of Sicyon thought it a hard case, that PRIVATE possessions of fifty years' standing should be disturbed, how much weightier is that maxim of Augustus, that it is the character of a good man and a good subject to wish for no change in the present government, and, IN THE WORDS, WHICH THUCYDIDES HAS ASSIGNED TO ALCIBIADES, to support the constitution, under which he has been born? But if no such rules in favour of possession could be adduced, yet a more weighty objection might be found against the presumption, drawn from the inclination of every one to preserve his own right, which is the improbability of one man's allowing another to usurp his property for any length of time, without declaring and asserting his own right.
IX. Perhaps it may reasonably be said, that this matter does not rest upon presumption only, but that it is a rule, introduced by the voluntary law of Nations, that uninterrupted possession, against which no claim has been asserted, will entirely transfer such property to the actual possessor. For it is most likely that all nations by consent gave their sanction to such a practice, as conducive to their common peace. The term uninterrupted possession therefore has been very properly used to signify, as Sulpitius says in Livy, "that which has been held by one uniform tenour of right, without intermission." Or as the same author, in another place, calls it, "perpetual possession, that has never been called in question." For a transitory possession creates no title. And it was this exception which the Numidians urged against the Carthaginians, alleging that as opportunity offered, sometimes the Kings of the Numidians had appropriated to themselves the disputed possessions, which had always remained in the hands of the stronger party.
X. But here another question, and that of considerable difficulty, arises, which is, to decide, whether, by this desertion, persons yet unborn may be deprived of their rights. If we maintain that they MAY NOT, the rule already established would be of no avail towards settling the tranquillity of kingdoms, and security of property. For in most things some thing is due to the interests of posterity. But if we affirm that they MAY, it then seems wonderful that silence should prejudice the rights of those, who were unable to speak, before they had any existence, and that the act of OTHERS should operate to their injury. To clear up this point, we must observe that no rights can belong to a person before he has any existence, as, in the language of the schools, there can be no accident without a substance. Wherefore if a Prince, from urgent motives of policy, and for the advantage of his own native dominions, and subjects, should decline to accept an additional sovereignty, or for the same reasons, should relinquish that, which he had already accepted, he would not be charged with injuring his heirs and successors, then unborn, who could have no rights before they had a natural existence.
Now as a sovereign may EXPRESSLY declare a change of his will respecting such dominions, so that change may, in certain cases, be implied without such declaration.
In consequence of such a change either expressed or implied, before the rights of heirs and successors can be supposed to have any existence, the possession may be considered as entirely abandoned. The case here has been considered according to the LAW OF NATURE: for the civil law, among other fictions, introduced that of the law's personating those, who are not yet in being, and so preventing any occupancy from taking place to their prejudice; a regulation of the law established upon no slight grounds in order to preserve estates in families, although every means of PERPETUATING property to individuals, which prevents its transfer from hand to hand, may in some measure be detrimental to the public interest. From whence it is a received opinion, that length of time will give a property in those fees, which were originally conveyed, not by right of succession, but by virtue of primitive investiture. Covarruvias, a lawyer of great judgment, supports this opinion with the strongest arguments in favour of primogeniture, and applies it to estates left in trust. For nothing can prevent the civil law from instituting a right, which, though it cannot be lawfully alienated by the act of one party without consent of the other, yet, to avoid uncertainty in the tenure of present proprietors, may be lost by neglect of claim for a length of time. Still the parties thus deprived may maintain a personal action against those, or their heirs, through whose neglect their right has been forfeited.
XI. It is an inquiry of importance whether the law of usucaption and prescription, if it prevail in a prince's dominions, can be applied to the tenure of the crown, and all its prerogatives. Many legal writers, who have treated of the nature of sovereign power according to the principles of the Roman civil law, seem to affirm that it may be so applied. But this is an opinion to which we cannot accede in its full extent. For to make a law binding upon any one, it is requisite that the legislator should possess both power and will. A legislator is not bound by his law, as by the irrevocable and unchangeable controul of a superior. But occasions may arise that will demand an alteration or even a repeal of the law which he has made. Yet a legislator may be bound by his own law, not directly as a legislator, but as an individual forming part of the community: and that too according to natural equity, which requires that all the component parts should bear a reference to the whole. We find in holy writ, this rule observed by Saul in the beginning of his reign.
Now that rule does not take place here. For we are considering the lawgiver, not as a part but as the REPRESENTATIVE and SOVEREIGN of the whole community. Nor indeed can any such intention in the lawgiver be presumed to have existed. For legislators are not supposed to comprehend themselves within the rule of the law, except where the nature and subject of it are general. But sovereignty is not to be compared with other things; it so far surpasses them in the nobleness of its end, and the dignity of its nature. Nor is any civil law to be found which either does, or designs to comprehend sovereign power within the rules of prescription.
Jurisdiction and property cease, when the family of the owner has become extinct—In what manner the rights of a people may become extinct—A people becomes extinct when its essential parts are destroyed—A people does not become extinct by emigration—The existence of separate states not destroyed by a federal union.
I. and II. AFTER the preceding inquiries into the manner in which private property as well as sovereign power may be acquired and transferred, the manner, in which they cease, naturally comes next under consideration. It has been shewn before that the right to property may be lost by neglect; for property can continue no longer than while the will of ownership continues. There is also another manner in which property may cease to exist, without any express or implied alienation: and that is where the family either of a sovereign, or an owner, becomes extinct, a contingency for which provision must be made somewhat similar to a succession to the property of one who dies intestate. Wherefore if any one die, without any declaration of his will, and have no relations by blood, all the right, which he had, becomes extinct, and reverts, if a sovereign, to the hands of the nation, except where express provisions of law have been made to the contrary.
III. The same mode of reasoning applies to a nation. Isocrates, and after him the Emperor Julian, has said that states are immortal, or may be so. For a people is one of that kind of bodies which are formed of distinct parts, following each other in regular succession, and supplying the place of the deceased. This body goes under one name, forming, as Plutarch says, one constitution; or, in the language of Paulus the Lawyer, one spirit. Now the spirit or constitution in a people is the full and perfect harmony of civil life, from which emanates the sovereign power, the very soul of all government, and, as Seneca says, the vital breath which so many thousands draw.
These artificial bodies bear a close resemblance to the natural body, which, notwithstanding the alteration of its component particles, loses not its identity, so long as the general form remains. And therefore in the passage of Seneca, where he says, that no one is the same in his old age that he was in his youth, he means only as to natural substance. In the same manner Heraclitus, as cited by Plato in Cratylus, and Seneca in the place already quoted, has said, that we cannot descend TWICE into the same river. But Seneca afterwards corrects himself, adding, that the river retains its name, though the watery particles of which it is composed are perpetually changing. So Aristotle, too, in comparing nations to rivers, has said that the rivers are always called by the same name, though their several parts are fluctuating every moment. Nor is it the name alone which continues, but that principle also which Conon calls the constitutional system of the body, and Philo the spirit, that holds it together. So that a people, as Alphenus and Plutarch, in speaking of the late, but unerring approach of divine vengeance, maintain, though not one of its members of a former period be now living, is the same at present that it was a hundred years ago, as long as the spirit, which first framed and afterwards kept the body together, preserves its identity.
Hence has originated the custom, in addressing a people, of ascribing to them, who are now living, what happened to the same people many ages before; as may be seen both in profane historians, and in the books of holy writ. So in Tacitus, Antony the First serving under Vespasian, reminds the soldiers of the third legion of what they had done in former times, how under Mark Antony they had beaten the Parthians, and under Corbulo the Armenians. There was more of prejudice, therefore, than truth in the reproach, which Piso cast upon the Athenians of his own time, refusing to consider them as Athenians since they had become extinct by so many disasters, and were nothing more than a base mixture of all nations of the earth. We say there was more of prejudice than truth in this reproach. For though such a mixture might diminish the dignity, it could not destroy the existence of a people. Nor was he himself ignorant of this. For he reproaches the Athenians of his own day with their feeble efforts in former times against Philip of Macedon, and their ingratitude to their best friends. Now as a change of its component parts cannot destroy the identity of a people, not even for a thousand years or more; so neither can it be denied that a people may lose its existence in two ways; either by the extinction of all its members, or by the extinction of its form and spirit.
IV. A body is said to die, when its essential parts, and necessary form of subsistence are destroyed. To the former case may be referred the instance of nations swallowed up by the sea, as Plato relates, and others whom Tertullian mentions: or if a people should be destroyed by an earthquake, of which there are many instances in history, or should destroy themselves, as the Sidonians and Saguntines did. We are informed by Pliny, that in ancient Latium, fifty-three nations were destroyed without a single trace of them remaining.
But what, it may be said will be the case, if out of such a nation so few remain that they cannot form a people? They will then retain that property, which they had before as private persons, but not in a public capacity. The same is the case with every community.
V. A people loses its form, by losing all or some of those rights, which it had in common; and this happens, either when every individual is reduced to slavery, as the Mycenaeans, who were sold by the Argives; the Olynthians by Philip, the Thebans by Alexander, and the Brutians, made public slaves by the Romans: Or when, though they retain their personal liberty, they are deprived of the rights of sovereignty. Thus Livy informs us respecting Capua, that the Romans determined, though it might be inhabited as a city, that there should be no municipal body, no senate, no public council, no magistrates, but that deprived of political deliberation, and sovereign authority, the inhabitants should be considered as a multitude; subject to the jurisdiction of a Praefect sent from Rome. Therefore Cicero, in his first speech against Rullus, says that there was no image of a republic left at Capua. The same may be said of nations reduced to the form of Provinces, and of those subjugated by another power; as Byzantium was to Perinthus, by the Emperor Severus, and Antioch to Laodicea, by Theodosius.
VI. But if a nation should emigrate, either spontaneously, on account of scarcity or any other calamity, or if by compulsion, which was the case with the people of Carthage in the third Punic war, while she retains her form, she does not cease to be a people; and still less so, if only the walls of her cities be destroyed, and therefore when the Lacedaemonians refused to admit the Messenians to swear to the peace of Greece, because the walls of their city were destroyed, it was carried against them in the General Assembly of the Allies.
Nor does it make any difference in the argument, whatever the form of government may be, whether regal, aristocratical, or democratical. The Roman people for instance was the same, whether under kings, consuls, or emperors. Even indeed under the most absolute form, the people is the same that it was in its independent state, while the king governs it as head of that people, and not of any other. For the sovereignty which resides in the king as the head, resides in the people likewise as the body of which he is the head; and therefore in an elective government, if the king or the royal family should become extinct, the rights of sovereignty, as it has been already shewn, would revert to the peopl