Читать книгу The Free Sea - Hugo Grotius - Страница 17

CHAPTER 5

That the sea or right of sailing on it is not proper to the Portugals by title of possession

If then the Portugals obtained no right over the people, countries, and jurisdictions, let us see whether they can make the sea and navigation or traffic to be in their power. Let us first consider of the sea which, seeing it is everywhere said to be no man’s right, or common, or the public right of nations, what these words signify shall be most fitly declared if, following all poets from Hesiodus and philosophers and ancient civilians, we distinguish those things into times, which peradventure not a long time, yet notwithstanding by certain reason and their nature, are distinguished. Neither are we to be blamed if in the explanation of the law of nature we use their authority and words who (as it is manifest) were most powerful in the judgment of nature.

We are to know, therefore, in the first beginning of the life of man, dominion was another thing and communion differing from that which they are now.¹ For now dominion properly signifieth that which so appertaineth unto one that after the same manner it cannot be another’s, but we call that common whose propriety is conferred among many with a certain fellowship and agreement excluding the rest. The defect of tongues hath enforced to use the same words in a thing which was not the same. And so these names of our custom are referred to that ancient law by a certain similitude and resemblance. That, therefore, which at that time was common was no other thing than that which is simply opposed unto proper. But dominion is a just or lawful power to use a common thing, which it seemed good to the Schoolmen to call usum facti, non juris because that use which is now called use in law or right is a certain propriety, or (that I may speak after their manner) is said privatively unto others.²

By the first law of nations, which sometimes also is called natural and which the poets elsewhere describe in the golden age, and in another place in the kingdom of Saturn or Justice, nothing was proper, which Cicero affirmed: “For by nature nothing is private.”³ And Horace:

nam proprie telluris herum natura nec illum,

nec me, nec quemquam statuit. ⁴

For nature could not distinguish lords. In this signification, therefore, we affirm all things common at that time, signifying the same thing which the poets do when they say the first men sought the middle and justice held the middle of things by a chaste and inviolable covenant; which, that they might more plainly express, they deny that the fields were divided by bounds at that time or that there was any traffic:

promiscua rura per agros

praestiterant cunctis communia cuncta videri. ⁵

This word videri is rightly added by reason of the translation of the word as we have said. But this communion was referred unto use:

pervium cunctis iter,

communis usus omnium rerum fuit. ⁶

By reason whereof there was a certain kind of dominion, but universal and indefinite. For God gave all things not to this man or that but to mankind and after that manner many may be wholly lords of the same thing; but if we take dominion in that signification which it hath at this day it is against all reason, for this includeth a propriety which then no man had. But that is most aptly spoken:

omnia rerum

usurpantis erant. ⁷

But it seemeth we are come to that distinction of dominions which is now not violent but by little and little, nature showing the beginning thereof. For seeing there are many things the use whereof consisteth in abuse, or for that being converted into the substance of the user they admit no use after, or because by use they are made worse for use, in things of the former kind, as meat and drink, a certain propriety appeared not severed from use.⁸ For this is to be proper, so to appertain to any that it cannot also be another’s, which afterwards by a certain reason was derived to things of the latter kind, to wit, garments and chattels or movables; which being so, all immovable things—to wit, fields—could not remain undivided, although the use of them consist not simply in abuse, yet the use thereof was procured by reason of some abuse, as ploughed fields and orchards of fruit trees for food, pastures also for raiment, but they could not in common suffice for the use of all people. Property being found out, there was a law set down which should imitate nature. For, as in the beginning that use was had by corporal application whence, we said before, property had his original, so by the like application it seemed good they should be made the proper goods of everyone. This is that which is called occupation by a word most aptly applied unto those things which before were indifferent. Whereunto the tragedian Seneca alludeth,

in medio est scelus

positum occupanti, ⁹

and the philosopher, “All things pertaining to the Horsemen belonged to the gentlemen of Rome, yet amongst them is my proper place which I possessed.”¹⁰ Hereupon Quintilian saith it is natural to all that there should be a reward of industry and Tully that things by ancient occupation became theirs who in times past succeeded into the goods of the dead.¹¹ But this occupation in those things which resist possession, as wild beasts, ought to be perpetual; in other things it sufficeth that a corporal possession begun be retained in the mind. Occupation or possession in movables is apprehension; in immovables, instruction and limitation. Whereupon when Hermogenianus saith they were distinct dominions he added that the fields were bounded and houses built.¹² This state of things is declared of poets:

tum laqueis captare feras, et fallere visco

inventum; ¹³

tum primum subiere domos; ¹⁴

communemque prius, ceu lumina solis et aurae

cautus humum longo signavit limite messor. ¹⁵

After these things, intercourse of merchandise began to come in use, for which cause,

fluctibus ignotis insultavere carinae. ¹⁶

The same time commonwealths began to be instituted and established. And so of those which were divided or separated from the first common two kinds are made, for some things are public, to wit, proper to the people (which is the double signification of this word), some things mere private, to wit, proper to every particular man. But occupation is made public after the same manner that it is made private. Seneca saith, “we call those the bounds of the Athenians or Campanians which afterward the borderers divide among themselves by private bounds.”¹⁷ For every nation,

partita fines regna constituit, novas

extruxit urbes. ¹⁸

After this manner Cicero saith, “the territory of the Arpinates is called Arpinatum, of the Tusculans, Tusculanum; the like description,” saith he, “is of private possessions, whereupon because every man’s own consisteth of those things which by nature were common, let every man hold that which fell to his share.”¹⁹ But contrariwise Thucydides calleth that land which fell to no people in division ἀοριστον, to wit, indefinite.²⁰

Of these things which hitherto have been spoken two things may be gathered. The first is that those things which cannot be occupied or were never occupied can be proper to none because all propriety hath his beginning from occupation.²¹ The other is that all those things which are so ordained by nature that anyone using them they may nevertheless suffice others whomsoever for the common use are at this day (and perpetually ought to be) of the same condition whereof they were when nature first discovered them. Cicero meaneth this when he saith, “This society among all showeth itself far to all men among themselves, in the which a community of all those things which nature brought forth for the common use is to be preserved.”²² But all things are of this kind, wherein without the damage of one another may be pleasured. Hence, saith Cicero, is that “not to forbid running water.”²³ For running water as it is such, not as it is a river, is acknowledged of the civilians to be in the number of those things which are common to all; and of the poet,

quid prohibetis aquas? usus communis aquarum est.

nec solem proprium natura, nec aera fecit,

nec tenues undas: in publica munera veni. ²⁴

He affirmeth these things not to be proper by nature—as Ulpian saith, they lie open to all by nature²⁵—both because they were first discovered by nature and never came as yet into the dominion of any (as Neratius speaketh),²⁶ and also because (as Cicero saith) they seem to be brought forth of nature for the common use.²⁷ But he calleth those things public by a translated signification, not which appertain to any one country and people but to the whole society of mankind, which in the laws are called publica juris gentium: that is, common to all and proper to none.²⁸ Of this kind the air is for a double reason, both because it cannot be possessed and also because it oweth a common use to men. And for the same cause the element of the sea is common to all, to wit, so infinite that it cannot be possessed and applied to all uses, whether we respect navigation or fishing.²⁹ Whose ever the sea is, theirs also are those things which the sea, taking away from others’ uses, hath made for own, as the sands of the sea, part whereof joining to the land is called the shore. Cicero therefore saith well, “what is so common as the sea to them that float thereon and the shore for them that are cast out.”³⁰ Virgil also saith that the air, the water and the shore lie open unto all.³¹

These things therefore are those which the Romans call common unto all by the laws of nature, or which are said to be the same publica juris gentium, as also they call the use of them sometimes common and sometimes public.³² But although even those things are rightly said to be no man’s as touching the property, yet they differ much from those things which are no man’s and are not attributed to common use, as wild beasts, fishes and birds. For if any man possess these they may become his proper right, but those things by the consent of all mankind are perpetually exempted from propriety for use which, seeing it belongeth to all, it can no more be taken away by one from all than you may take away that from me which is mine. This is that which Cicero saith, that it is among the first or chief duties of justice to use common things for common things.³³ The Schoolmen would say that some things are common affirmatively and some privatively. This distinction is not only very common among the civilians but also it expresseth the confession of the common people, whereupon the master of the feast in Athenaeus saith the sea was common but the fishes theirs that could take them. And in Plautina, to one that said unto him, keeping his cable,³⁴ “The sea was common for all,” the fisherman consented, but when he added, “It was found in the sea; it is common,” it came well to hand: “That which my net and hooks have gotten is principally mine.”³⁵

The sea therefore cannot be altogether proper unto any because nature doth not permit but commandeth it should be common, no nor so much as the shore,³⁶ but that this interpretation is to be added: that if any of those things by nature may be occupied, that may so far forth become the occupant’s as by such occupation the common use be not hindered. Which is worthily received and approved, for seeing it is so, both exceptions cease whereby we said it came to pass that all things should not be transferred to proper right.

Because therefore building is a kind of occupation, it is lawful to build upon the shore if it may be without the hurt of the rest, as Pomponius speaketh, which we will expound out of Scaevola, unless the public, that is to say, the common use should be hindered.³⁷ And he which hath built shall become lord of the soil because that ground was proper to none nor necessary for the common use; it is therefore the occupant’s, but no longer than the occupation continueth, because the sea seemeth to resist possession, by the example of a wild beast which, if it betake itself to the natural liberty, is no longer his who was the taker; so also the shore, which afterward giveth place unto the sea again.³⁸

But whatsoever may become private by occupation we have declared that the same may also become public, that is to say, proper to the people. So Celsus thinketh that the shore enclosed within the bounds of the empire of Rome appertaineth to the people of Rome;³⁹ which, if it be so, it is no marvel that the same people could grant a means (by their prince or praetor) to their subjects how to possess the shore.⁴⁰ But even this occupation, no less than private, is so to be restrained that it stretch no further than that the public use may be preserved. No man therefore may be forbidden by the people of Rome to come unto the sea-shore and to dry their nets and do other things which once all men would have perpetually to be lawful for them.⁴¹

But the nature of the sea differeth in this from the shore in that the sea, unless it be in some small part thereof, cannot easily be built upon nor can be included, and though it could, yet this notwithstanding should scarce happen without the impediment of the common use, yet if any little part may so be occupied it is granted to the occupant. It is therefore a hyperbole:

contracta pisces aequora sentiunt

iactis in altum molibus. ⁴²

For Celsus saith that planks or piles laid in the sea are his who laid them, but that is not to be granted if the use of the sea by that means shall become worse.⁴³ And Ulpian saith that he that dams up the sea is so to be allowed and defended if no man be hurt thereby.⁴⁴ For if this thing shall hurt any man surely he must be forbidden, that nothing be done in a public place.⁴⁵ As Labeo also saith, if any such thing be built in the sea he will have him forbidden, “that nothing be done in the sea whereby the haven, road or way for ships may be made the worse.”⁴⁶

And the same regard that is to be had of navigation is to be had likewise of fishing, that it may remain common unto all. Yet shall not he offend that encloseth a place of fishing for himself with stakes or piles in a creek of the sea and so maketh it private, as Lucullus who cut down a hill at Naples to let in the sea to his farm?⁴⁷ And of this kind I think the fishponds upon the sea-coast were whereof Varro and Columella make mention.⁴⁸ Neither did Martial mean otherwise when he speaketh of Formianus of Apollinaris:

si quando Nereus sentit Aeoli regnum,

ridet procellas tuta de suo mensa. ⁴⁹

And Ambrose: “Thou bringest the sea within thy manors lest monsters⁵⁰ should be wanting.”⁵¹ Hence it may appear of what mind Paul[us] was: “if the proper right of the sea appertain to any, as ye possess them,⁵² he must be forbidden.”⁵³ That this interdiction was ordained for private causes not for public, wherein also those things are comprehended which by the common law of nature we may do, but here the right of enjoying is handled which happeneth upon a private cause, not public or common. For Marcian testifieth whatsoever is possessed or may be possessed, that now appertaineth not to the law of nations as the sea doth:⁵⁴ as, for example, if any had forbid Lucullus or Apollinaris to fish in that which was private unto them in regard they enclosed a creek of the sea, Paulus thought they were to be forbidden, not only an action of trespass to be brought against them by reason of the private possession.

Nay, in a creek of the sea, as in a creek of a river, if I have possessed such a place and have fished there, specially if I have testified my purpose privately of possessing it by the continuance of many years, by that right I may forbid another to use the same (as we gather out of Marcian) no otherwise than in a lake in my jurisdiction, which is true so long as occupation continueth, as we said before of the shore.⁵⁵ The same shall not be without the creek lest the common use be hindered.⁵⁶

It is a very usual thing therefore that men forbid any to fish before my house or the prince’s palace, but by no right, so that Ulpian contemning that usurpation saith if any be forbid he may have an action of trespass.⁵⁷ The emperor Leo (whose laws we use not) changed this against the reason of the law and would have προθυρα, that is to say, the front of the sea, to be proper unto them who inhabited that coast, and that they have right of fishing there;⁵⁸ which yet he would have proceed so far, that the place should be possessed with certain stopping enclosures or sluices, which the Greeks call ἐποχας, thinking doubtless it should not come to pass that any should envy another a little portion of the sea who should be admitted himself to fish in the whole sea.⁵⁹ Surely, howsoever any take away a great part of the sea from public utility, although he be able to do it, it is intolerable wickedness against which the holy man Ambrose inveigheth: “They challenge unto themselves the length of the sea by the law of a bondslave, and mention the right of fishes as of slaves subject to them in a servile condition. This gulf of the sea,” saith he, “is mine; that, another’s. Thus mighty men divide the elements unto themselves.”⁶⁰

The sea therefore is in the number of those things which are not in merchandise and trading, that is to say, which cannot be made proper.⁶¹ Whence it followeth, if we speak properly, no part of the sea can be accompted in the territory of any people. Which thing Placenti[n]us seemeth to have meant when he said, “That the sea was so common, that it may be in the dominion of none but God alone,” and Johannes Faber, “When the sea shall depart, left in his ancient right and being, wherein all things were common,” otherwise those things which are common to all shall differ nothing from those things which are properly called public, as the sea from a river.⁶² The people of a country might possess a river as included within their bounds, but so could they not the sea.

But territories are of the possession of a people as private dominions are of the possessions of particular men. Celsus saw this, who clearly enough distinguisheth between the shores which the people of Rome might occupy, yet so that the common use should not be hurt and the sea which retained her ancient nature.⁶³ Neither doth any law show the contrary. But those laws which are cited out of authors of contrary opinion either speak concerning islands (which is clear might be possessed) or else concerning a haven, which is not common but properly public.⁶⁴

But they who say that some sea appertaineth to the empire of Rome interpret their saying so that they affirm that right over the sea proceedeth not beyond protection and jurisdiction,⁶⁵ which right they distinguish from propriety; nor peradventure do they sufficiently observe that, in that the people of Rome might appoint a convoy for the aid and succor of such as passed the seas and punish such pirates as were taken on the sea, it happened not by any proper right but of the common right which also other free nations have in the sea. In the mean space we yet confess this that some nations might agree among themselves that such as were taken in this or that part should be judged by this or that commonwealth, and so for the benefit of distinguishing jurisdictions the bounds in the sea to be described, which truly bindeth the making that law to themselves which could not bind other people in like manner. Neither doth it make the place proper to any but conferreth the right upon the persons of the contractors.⁶⁶

Which distinction, as it is agreeable to nature, so it was approved by a certain answer of Ulpian who, being demanded whether the lord of two manors upon the sea could impose servitude upon one of them which he would sell, that it should not thereby be lawful to fish in a certain place of the sea, answered the thing itself, that the sea could not have any servitude imposed on it because by nature it should be open to all, but seeing the true meaning of a contract required the law of sale to be kept, the persons of the possessors and such as succeeded in their right were bound by this law.⁶⁷ It is true that the lawyer spoke of private manors and a private law but in a territory and law of the people here is the same reason, because the people in respect of all mankind have the place of private men.

In like manner, the rents which are set down for fishing upon the sea-coast are reckoned in the number of royalties, and bind not the thing, that is, the sea or fishing, but the persons.⁶⁸ Wherefore subjects over whom the commonwealth or prince have power to make a law by consent may peradventure be compelled to these burdens and impositions, but the right of fishing everywhere ought to be free to foreigners, that servitude be not imposed on the sea, which cannot serve.

For the reason of the sea and of a river is not the same, which seeing it is public, that is to say, the people’s, the right also of fishing in it may be granted or letten by the people or prince,⁶⁹