[78] CHAPTER III.

Of the original acquisition of Things. The Sea, Rivers.

I. A THING may become our property by acquisition, original or derivative. Original acquisition formerly, when the human race could meet together and agree, might be made by division; at present it is only made by occupation.

II. It may be said perhaps that property may be originally acquired by being given on conditions, as a farm; or deposited as a pledge: but on consideration, it will appear that such ownership is not new, except in its form; by its own virtue, it resided in the ownership of the former owner.

III. Paulus the Jurist adds, to the enumeration of the causes of acquisition, this, if we have made anything, so as to cause it to exist. But since, in the course of nature, nothing can be made except out of pre-existing matter, if that matter was ours, the ownership continues when it assumes a new form; if the matter was no one’s property, this acquisition comes under occupation; if the matter belonged to another, the thing made is not ours alone, as will appear below.

IV. I Therefore we have to consider occupation; which, after that primitive time, is the only natural and original mode of acquisition. In things which are properly no one’s, two things are occupable; the lordship, and the ownership, so far as it is distinguished from the lordship. Kings have power over all things (the lordship); individuals have property (ownership.) The city is the king’s; but nevertheless in the city each has his own. Lordship has two kinds of matter subject to it; primary, persons, which matter alone sometimes suffices; as in the case of a body of people (men, women, and children,) seeking a new settlement; and secondary, a place, which is called a territory.

79 2 Therefore, though lordship and ownership are commonly acquired by one act, they are really distinct. The ownership may pass not only to citizens, but to strangers; while the lordship remains in the same hands as before. So Siculus De Conditionibus Agrorum. Demosthenes uses different words for landed property in our own territory and in another.

V. In a place in which the lordship is already occupied, the right of occupying moveable things (as wild beasts, birds, &c.) may be barred by the Civil Law, as we have said (B. II. c. ii. § v.). For the right to take such things is from a permission of Natural Law; not from a command, directing that there shall always be such liberty. Nor does human society require that it should be so. If any one should say that it appears to be a part of jus gentium that such a liberty should exist; I reply, that although in any part of the earth this be or should be so received, yet it has not the force of a general compact among nations: but is the Civil Law of several nations distributively, which may be taken away by nations singly. There are several such points which the jurists say are juris gentium, in what relates to the division and acquisition of property.

VI. It is to be observed also, if we regard Natural Law alone, that there is no ownership except in a creature endowed with reason. But the jus gentium has introduced an assumption, on the ground of common utility, that infants and insane persons can receive and retain ownership, the human race, as it were, performing their parts for them. And in fact many things besides nature may constitute Rights, though nothing can constitute Rights against nature. Therefore this ownership which is thus introduced in favour of infants and the like by the custom of civilized nations, stops at the primus actus, the potential fact of having; and does not go on to the actus secundus, the operative fact of using. For alienation and similar processes in their very nature include the use of reason, which cannot exist in such agents. To which we may refer, Gal. iv. 1, the heir, so long as he is a child, &c.

VII. We have above begun to speak of the sea; we must now finish what we have to say on the subject.

Rivers may be held as by occupation, though neither their upper nor lower extremity be included in the territory; but cohere with superior or inferior water, or with the sea. It is sufficient that the greater part, that is, the sides, are inclosed with banks, and that a river is something small in comparison with the land.

VIII. By this it appears that a portion of the sea also may be occupied by him who possesses the land on each side: although it be open at one end, as a bay, or at both, as a strait; provided it be not such a portion of the sea as is too large to appear part of the land. And what is lawful to one people or king, seems also to be lawful to two or three, if they, in like manner, wish to occupy the sea which lies among their dominions. And thus two rivers which flow between two peoples are occupied by both, and thus are divided.

80 IX. I It must be confessed, however, that in the parts of the earth known to the Roman empire from the earliest times down to Justinian, it was a part of the Law of Nations that the sea could not be occupied by any people, even for purposes of fishery. Nor are they to be attended to who say, that since, in the Roman Law, the sea is called commune omnium, common to all, it is to be understood as common to Roman citizens. For, in the first place, the expressions are too general; as in Theophilus, Ulpian, Celsus. [See.] And next, the jurists distinguish these publica populi, public property of one people, from things common to all. So in the Institutions and Theophilus. [See.]

2 As to shores of the sea, Neratius said that they are not public as belonging to any one people, but as still in a state of nature, never having come to belong to any, not even any people. This seems to be contradicted by what Celsus says, that the shore within the bounds of the Roman authority belongs to the Roman people; but that the sea is common. The two may be reconciled, if we suppose that Neratius meant the use of the shore as far as it is used by navigators or travellers; but Celsius, so far as it is taken up for some permanent use, as for a building. For this, as Pomponius teaches us, was obtained only by application to the judge, as also the right of building in the sea.

X. 1 Though this is so, yet that the sea, in the sense which we have spoken of, is not occupied, nor can lawfully be occupied, is a result of institution, not of natural reason. For a river is public property, as we know; and yet the right of fishing in a certain bend of the river may belong to a private person by occupation: and Paulus pronounced, that if any one could have property in the sea, he might obtain a sentence of the court in the usual form, uti possidetis, since the case would be a private, not a public one; but in this he speaks, doubtless, of a small part of the sea, such as can be taken into private grounds, as was done by Lucullus and others. C. Sergius Orata made seas of his own by shutting up estuaries, as Valerius says. And this authority was used by Leo the Emperor, for appropriating the entrance of the Bosphorus by shutting it with piers.

2 Since a portion of the sea may become part of a private estate, namely, if it be included in the estate, and so small as to seem part of it, and if Natural Law does not prohibit this; why should not a portion of the sea included within the territory of a people or of several peoples be the property of those whose the shores are? provided that the size of that portion of the sea compared with the territory be not larger than the creek of the sea compared with the estate. And it is not a reason against this, that the sea is not included on all sides, as we may understand by the example of a river, and of the sea admitted into the heart of a city.

3 But many things which are permitted by nature, the Law of Nations, by a bond of common consent, has prohibited. Wherefore in those places in which such a Law of Nations is in force, and is not 81suspended by common consent, any portion of the sea, even though small and mostly included by shores, is not the property of any people.

XI. It is further to be noted, that since, in those places in which that Law of Nations concerning the sea is not received, or is abolished, it is not to be inferred from the mere occupation of the land, that the sea is occupied: so also, that a mere mental act does not suffice for the occupation of the sea; but that there is need of some external act [as the presence of ships] by which the occupation may be understood to take place. And again, that if the possession which arose from occupation be given up by desertion, the sea forthwith returns to a state of nature; that is, to community of use; which was declared by Papinian to be the law respecting a shore not built on, and a fishery in a river.

XII. This is certain, that even he who holds the sea by occupation cannot prevent an unarmed and harmless navigation upon it; since even a transit of this character over land cannot be prohibited, which nevertheless is both less necessary, and more noxious^*.

XIII. 1 The empire of the sea, claimed over a portion of it without any other property [on which it depends] might easily proceed from such claims as we have spoken of, nor do I conceive that the Law of Nations, of which we have spoken, would stand in the way. It has often been asserted and conceded; thus the Argives expostulated with the Athenians for allowing the Spartans to pass over the sea, whereas the treaty was that neither party should allow the enemies of the other to pass through their domain.

And in the truce, in the Peloponnesian war, the Megareans are permitted to navigate the sea contiguous to their and their allies’ shores. So the sea is spoken of as part of the Roman empire, by Dio Cassius, Themiatius, Appian, Dio Prusæensis, Virgil, Gellius. So the Massilians and the Sinopians.

2 The empire of a portion of the sea is, it would seem, acquired in the same way as other lordship; that is, as above stated, as belonging to a person, or as belonging to a territory: belonging to a person, when he has a fleet which commands that part of the sea; belonging to a territory, in so far as those who sail in that part of the sea can be compelled from the shore as if they were on land.

XIV. Hence he does nothing contrary to the Law of Nature and Nations, who, undertaking the care of assisting navigation by providing lighthouses and buoying sand-banks, imposes an equitable tax upon navigators; like the Roman Erythræan tax to meet the expense of the expedition against the pirates; and the passage dues which were levied by the Byzantines in their sea; and those which the Athenians levied in the same sea when they occupied Chrysopolis: [See Polybius.] 82and what the Athenians formerly had levied in the Hellespont, as Demosthenes shows; and the Roman emperors, as Procopius mentions, in his time.

XV. 1 There are examples of treaties by which one people bound itself to another not to navigate beyond certain boundaries. Thus the kings of the region on the Red Sea, and the Egyptians, had a convention that the Egyptians should not come upon that sea with any ship of war, nor with more than one merchant-vessel. So the Athenians and Persians at the time of Cimon agreed that no armed Median ship should sail within the Cyanean and Chelidonian islands; and after the battle of Salamis, within the Cyaneans and Phaselis. In the truce of the Peloponnesian war, it was agreed that the Lacedæmonians should not send to sea ships of war, but only merchant-ships of not above 500 talents burthen. In the First Treaty of the Romans with the Carthaginians, it was agreed that the Romans and their allies should not navigate beyond Cape Fair (Pulchrum Promontorium), except compelled by tempest or hostile force; and that those who had come under such compulsion should only take necessaries, and should depart within five days: and in the Second Treaty it was agreed that the Romans should not plunder nor traffic beyond Cape Fair, Mastia, and Tarseium. In the peace with the Illyrians it was agreed that they should not navigate beyond Lissus with more than two barks, and those unarmed: in the peace with Antiochus, that he should not navigate beyond the promontories of Calycadnus and Sarpedon (in Cilicia), except with the ships which carried his subsidy, ambassadors, or hostages.

2 But these examples do not prove possession of the sea, or of the right of navigating, by occupation. For peoples as well as individuals may, by compact, concede to another not only the Rights which are theirs specially, but also those which they have in common with all men and when this is done, we may say, what Ulpian said when an estate was sold on condition that the purchaser should not carry on a thunny fishery to the prejudice of the seller:—namely, that there could not be a servitude over the sea, but that the bona fides of the contract required that the rule of the sale should be observed; and therefore that the possessors and their successors were under a personal obligation to observe the condition.

XVI. I When a river changes its course, a question often arises between neighbouring peoples whether the boundary of the territory also changes, and whether the additions which the river makes to one side belong to the land to which they are added: which controversies are to be solved by regarding the nature and mode of the acquisition.

Those who write concerning land, tell us that there are three kinds, the limitatus, which is limited by an artificial boundary; the assignatus per universitatem, which is determined by its measured quantity, and the arcifinius, which is defined by natural boundaries, 83as rivers or mountains.^* In the two former kinds, if the river changes its course, the territory is not changed, and if any alluvial addition in made to it, it is an accession to the property of the occupier of the land.

2 In land defined by a river, its natural boundary, if the river changes its course gradually, it changes also the boundary of the territory; and whatever the river adds to one side belongs to him to whose land it in added; because each people must be supposed to have settled their claims on the understanding that the river, as a natural terminus, should divide them by a line drawn along its middle. So Tacitus speaks of the Rhine as a boundary, so Diodorus of another river; and Xenophon calls such a river simply the Horizont, the boundary.

3 The ancients relate that the Achelous, perpetually changing its course, was the constant cause of war between the Etolians and Acarnanians; and that Hercules confined it within banks, and thus put an end to the quarrel.

XVII. 1 But this is only true if the river has not at once changed its channel. For a river, as bounding territories, is not considered simply as water, but as water flowing in a certain channel and bounded by certain banks. And therefore any addition or subtraction of particles which leave, to the whole the same general aspect, allows the thing to be taken for the same. But if the aspect of the whole be changed at once, it becomes another thing. If a river is dammed up in the upper pert, and turned into a new cut made by hand, it ceases to be that river; and in like manner if the river leave its old bed and break its way by a new channel, it is not the same river as before, but a new river, the old one being extinguished. And since, if the river had dried up, the boundary of the territory would remain the middle of the channel as it was just before; so, because the intention of the peoples must be supposed to have been that their lands were to be naturally divided by the river, but that if the river ceased to be, then each should hold what he had held; therefore when the channel is thus changed the same rule must be observed.

2 In doubtful cases, the territories which border on the river are to be supposed to have that for their boundary: because nothing is more suitable for separating the lands of different nations than a river which is not easily crossed.

That national territories are defined by the rules of ager limitatus^† or ager mensura comprehensus more rarely happens; and then, not from primeval occupation, but from concession, [or by treaty.]

XVIII. But though in doubtful cases, as we have said, national territory extends to the middle of the river, it may happen, and some84times does, that the whole of the river belongs to one party; as when the second bank has been taken possession of at a later period, after the first bank and the river had been already occupied; or because the matter was so settled by compact.

XIX. 1 This also is worth observing; that there may be an original acquisition of those things which have had an owner, but have ceased to have one; as being derelict, or because the owners have been removed; for then things return into the state of nature in which they were at first.

2 This also is to be noted; that sometimes the first acquisitions of property are made by a people or its head in such a manner that not only the lordship, including that jus eminens of which we have spoken, (B. I. c. iii. § vi;) but that also the private ownership, was acquired at first generally for the people or its head; and then the property was distributed particularly in special lots to private persons, in such a manner that their ownership depended on that former ownership; if not in the same way as the ownership of a Vassal from that of Seignior, or the ownership of the tenant-farmer from that of the landlord, yet in some slighter way; as in fact there are many species of ownership: among which is the ownership of a trustee. So Seneca and Dio Prusæensis, Strabo, Tacitus, speak of various ways in which a thing may be mine. [See.]

3 And since private properties thus depend on the general proprietorship, if any portion of property ceases to have a special owner, it does not then become the property of the occupier, but reverts to the community, or to the superior lord. And a rule similar to this of Natural Law, might be introduced by Civil Law, without the reason we have given.