[69] CHAPTER II.

Of the Common Rights of Men.

I. WE treat now of the Causes of War; and first, of Injury done us with respect to what is ours. Some things are ours by the Common Right of mankind; others by our own Special Right. We will begin with the Common Right of mankind. This Right either directly regards corporal things, or certain acts. Corporal things are either unappropriated, or the property of some one. Unappropriated things are either such as cannot be appropriated, or such as can. Hence we must consider the origin of Property, or Ownership, which the jurists call Dominium.

II. 1 God gave the human race generally a right to the things of a lower nature, at the Creation, and again, after the Deluge. Every thing was common and undivided, as if all had one patrimony. Hence each man might take for his use what he would, and consume what he could. Such a Universal Use was then a Right, as Property is now. What each one had taken, another could not take from him by force without wrong. Cicero compares this state of things to the theatre, which though it be common, yet when a man has taken any place, it is his.

And this state might have continued, if men had remained in great simplicity, or had lived in great mutual good will. One of these two conditions, a community of goods arising from extreme simplicity, we may see in some of the peoples of America, who have lived for many generations in that state without inconvenience. The other, a community of goods from mutual charity, was exhibited formerly among the Essenes, and then among the first Christians at Jerusalem, and now in many places among Ascetics. The simplicity of the first races of men was proved by their nakedness. They were rather ignorant of vices than acquainted with virtue: as Trogus says of the Scythians. So Tacitus, Macrobius, the Book of Wisdom, St Paul. Their business was the worship of God, of which the Tree of Life was a symbol, (see Revelation xxii. 2). They lived easily on what the earth, without labour, spontaneously produced.

2 But men did not continue in this simple and innocent life, but applied their minds to various arts, of which the symbol was the Tree of the Knowledge of good and evil; that is, of these things which may be used ill or well. So Philo, Solomon, Dio Prusæensis. [See.] The oldest arts, agriculture and pasture, appeared in the first brothers (Cain and Abel); not without a division of possessions already showing itself, and even not without bloodshed. And at length when the good were corrupted by intercourse with the bad, came the life of the Giants, that is, times of violence. And when the world was cleared by the Deluge, instead of that ferine life, followed the pursuit of pleasure, with wine and lawless love.

3 But the concord was especially broken by a more generous vice, ambition: of which the Tower of Babel was the sign; and then different men divided the earth among them and possessed it. Yet still there remained among neighbours a community, not of their flock, and herds, but of their pastures; for there was enough for all for a time: until, cattle increasing, the land was divided, not according to nations as before, but according to families. And some made and occupied their own wells, things most necessary in a thirsty region, and not sufficing for many. This is the account of the sacred history, sufficiently agreeing with the account given by philosophers and poets.

4 There we learn what was the cause why men departed from the community of things, first of moveables, then of immoveables: namely, because when they were not content to feed on spontaneous produce, to dwell in caves, to go naked, or clothed in bark or in skins, but had sought a more exquisite kind of living, there was need of industry, which particular persons might employ on particular things. And as to the common use of the fruits of the earth, it was prevented by the dispersion of men into different localities, and by the want of justice and kindness which interfered with a fair division of labour and sustenance.

5 And thus we learn how things became Property; not by an act of the mind alone: for one party could not know what another party wished to have for its own, so as to abstain from that; and several parties might wish for the same thing; but by a certain pact, either express, as by division, or tacit, as by occupation: for as soon as community was given up, and while division was not instituted, it must be supposed to have been a matter of agreement among all, that what 71each had occupied he should have as his own. So Cicero, Quintilian. And the ancients when they called Ceres the Author of Laws, and her festival Thesmophoria, Law-bearing, had this meaning; that from the division of land arose a new origin of Rights.

III. 1 This being laid down, we say that the sea, whether taken as a whole, or as to its principal parts, could not become property. And as some concede this with regard to private persons, but not with regard to peoples, we prove it first from a moral reason; namely, that the cause why community was given up, here ceases. For the magnitude of the sea is so great that it is sufficient for all peoples for every use, either of drawing water, fishing, or navigation. The same might be said of the air, if there was any use of it to which the use of the earth is not also necessary, as in bird-catching it is; and therefore this employment is governed by the ownership of the land.

The same is true of sandy bays, where there is nothing which can be cultivated, and the only use, procuring sand, is inexhaustible.

2 There is also a natural reason which prevents the sea from being made property; namely, because occupation can only be applied to a thing which is bounded. [Thucydides, Isocrates.] Now fluids are in themselves unbounded, as Aristotle says; and cannot be occupied except as they am contained in something else; as lakes and ponds are occupied, and rivers as far as their banks go. But the sea is not contained by the land, being equal to the land or greater, so that the ancients say the land is bounded by the sea. [Apollonius, Sulpicius Apollinaris, Livy, Seneca, Lucan.] Nor are we to feign a division of the sea: for when the earth was first divided, the sea was for the most part unknown; and therefore we cannot imagine any way in which distant nations could agree as to such division.

3 Therefore those things which were common to all, and were not divided in the first division, now do not become property by division, but by occupation, and are divided only after they have become property.

IV. Let us come to those things which may become property, but are not yet so. Such are many places hitherto uncultivated, uninhabited islands, wild beasts, fishes, birds. But here two remarks are to be made: first, that there are two kinds of occupation, in totality, and in particular shares. The former kind is commonly made by the people or the Ruler of the people; the other by individuals, but rather by assignation than by free occupation. And if anything occupied in totality is not assigned to special owners, that is not free of ownership, but belongs to the ownership of the first occupier, say, the people or the king. Such are rivers, lakes, marshes, woods, rocky mountains.

V. Concerning wild beasts, fishes, birds, this also is to be remarked; that he who has the ownership of the land and water, may, on that ground, prevent any one from taking those creatures, and thus acquiring property in them. The reason is, that it is morally neces72sary to the government of a people that they who mingle with the people even for a time, which is done by entering the territory, must conform to its institutions. Nor is this disproved by what we often read in the Roman Law, that jure naturæ or jure gentium men are free to pursue animals of chase. For this is true as long as no Civil Law interferes: as the Roman Law left many things in that primeval state which other nations settled otherwise. And when the Civil Law has settled anything otherwise, the Natural Law itself directs that it be obeyed. For though the Civil Law cannot ordain anything which the Natural Law prohibits, nor prohibit what that ordains: yet it may circumscribe natural liberty, and forbid what was lawful by Natural Law; and even interfere to prevent an ownership which might be acquired by Natural Law.

VI. 1 Let us consider whether men have any Common Right to those things which are already made private property. Some may think that this is a strange question, since property seems to have absorbed all the Right which flowed from the common state of things. But this is not so. For we must consider what was the intention of those who introduced private property: which we must suppose to have been, to recede as little as possible from natural equity. For if even written laws are to be construed in that sense as far as possible, much more is mere usage, which is not fettered by written words.

2 Hence it follows, that in extreme necessity, the pristine right of using things revives, as if they had remained common: for in all laws, and thus in the law of ownership, extreme necessity is excepted.

3 Hence the rule, that in a voyage, if the provisions run short, what each one has must be thrown into the common stock. So to preserve my house from a conflagration which is raging, my neighbour’s house may be pulled down: and ropes or nets may be cut, of which any ship has run foul, if it cannot be extricated otherwise. All which rules are not introduced by the Civil Law, but by the interpretations of it.

4 For among Theologians also, it is a received opinion, that in such a necessity, if any one take what is necessary to his life from any other’s property, he does not commit theft: of which rule the reason is, not that which some allege, that the owner of the property is bound to give so much to him that needs it, out of charity: but this, that all things must be understood to be assigned to owners with some such benevolent exception of the Right thus primitively assigned. For if the first dividers had been asked what was their intention, they would have given such a one as we have stated. [Of necessity, see Seneca, Cicero, Curtius.]

VII. But cautions are to be applied, that this liberty go not too far.

First, that we must first endeavour in every way to avoid this necessity in some other manner, as by applying to the magistrate, or by trying whether we cannot obtain the use of things from the owner by 73entreaty. Plato allows a man to take water from his neighbour’s well if in his own he has dug down to the chalk, seeking water; and Solon, if he has dug in his own ground forty cubits. For as Plutarch says, he thought that necessity was to be relieved, not idleness encouraged; and Xenophon says to the Sinopians, If we are not allowed to buy, we must take; not from contempt of Rights, but from necessity.

VIII. Secondly, such liberty is not granted, if the possessor be in like necessity; for cæteris paribus, the case of the possessor is the better. Lactantius says, that he does not do amiss who abstains to thrust a drowning man from a plank, or a wounded man from his horse, even for the sake of his own preservation. So Cicero: and Curtius.

IX. Thirdly, that when it is possible, restitution be made. There are some who think otherwise on this point, and consider that, as the man used his own Right, he is not bound to restitution. But it is more true that this Right was not plenary, but limited by the burthen of restoring what was taken, when the necessity was over: for such a Right suffices to preserve the natural equity of the case against the rigour of ownership.

X. Hence we may collect how he who carries on a righteous war may lawfully seize a place situate in a land which is not at war; namely, if there be a danger, not imaginary, but certain, that the enemy will seize that place, and thence do irreparable damage: and next, on condition that nothing be taken which is not necessary for this purpose of caution, for example, the mere custody of the place, leaving to the true owner the jurisdiction and the revenues: finally, if it be done with the intention of restoring the custody to the true owner as soon as the necessity is over: Livy says, Enna retained by a step necessary, or unjustifiable; because in such a case every thing is unjustifiable which is not necessary. So the Greeks who were with Xenophon, in their need took the ships which they found passing, spared the lading for its owners, fed and paid the sailors. This then is the first Right which, when ownership has been established, remains out of the old community of goods; namely, the Right of Necessity.

XI. Another Right is the Right of Harmless Use. Why, says Cicero, when a man can without any loss to himself, should he not impart what is useful to the receiver, and not inconvenient to the giver? So Seneca denies that we have a Right to refuse a man permission to light his fire at ours. So in Plutarch, we are not to destroy meat when we have more than we need, nor to conceal or to muddy a spring of water, when we have used it, nor to pull down guide-posts or sea-marks which have done their service to us: they are to be left to be of use to others.

XII. So a river, as it is a river, is the property of the people within whose boundary it flows, or of him under whose authority the people is. He may run a pier into the river; and what is produced 74in the river is his. But the same river, as it is flowing water, remains common, for drawing or drinking: so Ovid. Water Is In this way public property. So Virgil.

XIII. 1 And so land, and rivers, and any part of the sea which is become the property of any people, ought not to be shut against those who have need of transit for just cause; say, because being expelled from their own country they seek a place to settle; or because they seek traffic with a remote nation; or because they seek their own in a just war. The reason is the same as above; that ownership might be introduced with the reservation of such a use, which is of great advantage to the one party and of no disadvantage to the other; and the authors of ownership are to be supposed to have intended this^*.

2 We have a valuable example of this in the history of Moses, who applied first to the Edomites, and then to the Amorites (Numb. xx. and xxi.), for leave to pass through the land on condition of going by the king’s high way, and paying for what they took. And when these conditions were rejected, he on that account made war on the Amorites; justly, as Augustine says.

3 The Greeks, of the ten thousand under Clearchus, claimed the same Right; so Agesilaus, Lysander, the Batavi, Cimon. The middle opinion is the true one; that a transit is first to be requested; but if denied, may be asserted by force. So Agesilaus, when the king of Macedon, thus applied to, said he would consult, replied, Let him consult, meantime we shall pass through.

4 Nor can any one properly object that he is afraid of the multi­tude of those who make the transit. For my Right is not taken away by your fear; and this the less, because there are ways of providing against danger; as by sending the body of persons in small parties, and without arms, as the Colognese proposed to the Germans; by placing guards at the expense of the transit-seekers; by taking hostages. So too fear of war from him against whom the transit-seeker makes a righteous war, does not justify him in refusing. Nor is it enough to say that he may pass another way: for every one might say the same, and thus the Right of Transit be destroyed. It is enough if he pass bonâfide by the shortest and most convenient way. If indeed he who seeks transit makes an unjust war, or brings my enemies with him. I may deny the transit; for in such a case I might meet him on his own ground and stop his way.

5 Transit is to be granted not only to persons, but to merchandise; for no one has a right to impede one nation in cultivating trade with another remote nation; for it is of advantage to the human race that such intercourse should be permitted: nor is that a damage to any one; for if any one misses some gain which he had reckoned upon but never had, that is not to be reckoned loss^*. So Philo, Plutarch, Libanius, Euripides, Florus.

XIV. 1 It is made a question whether, when merchandize thus passes through a country, the Rulers of that country may impose a transit-duty. And certainly whatever taxes have no respect to the articles of merchandise, cannot equitably be imposed on them. So neither a capitation tax, nor taxes for the general purposes of the State, can be required of foreigners passing through.

2 But if, either to provide security for the merchandize, or for this along with other objects, a burthen fall on the country, a tax may be imposed on the merchandise, if it do not go beyond the measure of the cause. That is the measure of the equity, as of other taxes, so of duties on merchandize. Thus Solomon (1 Kings x. 28) had a tax upon horses and linen yarn which passed the isthmus of Suez. So transit duty was demanded by the Gebanites, Massilians, Corinthians, Romans. And the jurists have much to say of the passage of rivers.

3 But this limit is often transgressed; as by the Arabian chiefs.

XV. 1 It ought also be permitted to those that travel through the land, to tarry there for a short time for the sake of health or other just cause; for this also is a harmless use. So Ilioneus in Virgil; and when the Megareans complained that the Athenians excluded them from their ports contrary to the known rules of justice, their complaint was approved by the Greeks.

2 It is consequent upon this, that the transit-maker may erect a momentary hut, on the shore for instance, though the shore be occupied already. For the rule that it requires the order of a judge to build on the shore or in the sea, refers to permanent structures.

XVI. Further, a place of settlement is not to be denied to foreigners who are expelled from their own country; provided that they submit to the constituted government, and such other regulations as are requisite to avoid confusion. So Virgil, Dionysius of Halicarnassus, Eratosthenes, the Eolians, Rhodians, Carians, Lacedæmonians, Cumæans. But when the Minyans coming thus, asked the Lacedæmonians to share their power with them, they were injurious aggressors, as Herodotus speaks; and Valerlus says that they turned a benefit into an injury.

XVII. And if there be any portion of the soil of a territory desert and barren, that also is to be given up to immigrants who ask for it; or even may be rightly occupied by them; because that which is not cultivated, is not to be conceived as occupied, except as to the ownership, which continues to be in the old people. So the Latin Aborigines granted land to the Romans; so Dio Prusæensis says; so the Anaibarii in Tacitus held: though their general doctrine was wrongly 76applied in that case; for the lands were occupied; so the Romans rightly resisted the Senones on the same ground.

XVIII. After the Common Right to things follows the Common Right to acts; and this is given either simply or hypothetically. There is given simply a Right to those acts without which life cannot conveniently be sustained, and others which may be compared with these. The same necessity is not required here, as in taking what belongs to another; for here we do not speak of what may be done, the owner being unwilling; but of the mode of acquiring things with the owner’s consent; asserting only, that he may not prevent the acquisition either by law or by conspiracy. For such impediment in such matters is contrary to the nature of human society. This is, as Ambrose says, to separate ourselves from the intercourse of our common parent; to deny what is given for all; to tear up the root of our common life. For we do not now speak of superfluities, the mere instruments of pleasure; but of the necessaries of life, food, clothing, medicaments.

XIX. We say then that these things, all men have a Right to purchase at a fair price; excepting when they from whom they are asked, themselves need them: as in a great scarcity of corn, it is forbidden to be sold. And yet even in such a necessity, foreigners once admitted cannot be expelled, but the common evil is to be borne in common, as Ambrose says.

XX. We have not the same Right to sell what we have; for every one is free to decide what he will acquire, and what not. Thus formerly the Belgians would not admit wine and other foreign merchandize: and the Arabians admitted some articles and not others.

XXI. 1 In the Right of which we speak is included, we conceive, the Right of seeking and making marriages with neighbouring nations: if for instance, a population entirely male expelled from some other place come thither. For to live without marriage, though not entirely repugnant to human nature, is repugnant to the nature of most men. Celibacy suits only superior minds; therefore men ought not to be deprived of the means of getting wives. So Romulus in Livy: so Canuleius. So Augustine.

2 The Laws of some nations, which deny marriage to strangers, either depend on this ground, that at the time when they were made there was no people which had not a sufficient supply of women; or they do not treat of marriage in general, but of that marriage which is legitimate in a peculiar sense, that is, which produces some special kind of legal effects.

XXII. The Right hypothetical to acts, refers to acts which any nation has permitted to strangers generally: in this case, if one people be excluded from such acts, it is wronged. Thus if it be permitted to strangers to catch beasts, fish, birds, in certain places, or to get pearls; to take legacies, to sell goods, to contract marriages, even without the 77plea of want of women, that cannot be denied to one particular people, except on account of a delinquency; on which account the rest of the Hebrews took away from the Benjamites the right of intermarriage with them.

XXIII. But what is said of such permissions, is to be understood of such things as are permitted in virtue of natural liberty not taken away by law; not of those things which are permitted by indulgence, as a relaxation of law: for there is no wrong in denying an indulgence. And thus Francis Victoria and Molina may be reconciled.

XXIV. I recollect a question raised, Whether it be lawful for one people to make an agreement with another, that they will sell to them alone fruits of a certain kind, which grew nowhere else. I conceive it to be lawful, if the buying people be ready to sell them to others at an equitable price: for it makes no difference to other nations, from whom they buy what gratifies their natural desires. And one party may anticipate another in a gainful trade; especially if the people making this bargain have taken the other people under its protection, and have incurred expense on that account. Such forestalling and monopoly, made with the intention which I have described, is not contrary to Natural Law; although sometimes it is prohibited by Civil Law, on account of public utility.

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