The modern law preserves much of this in the civil codes. Indeed it has been recognized repeatedly that law represents commonly not customary modes of popular action, but customary modes of judicial decision or juristic thinking, rooted in either case in a purely juristic tradition. Philosophical Jurisprudence. The philosophical jurist studies the philosophical and ethical bases of law, legal systems, and particular doctrines and institu- tions, and criticizes them with respect to such bases.
XVII, 2, Carver, 2 H. Ac- cordingly, the object of philosophy of law is the idea of the just on its formal side; the object of the philosophy of economics is the idea of the just according to its con- tent. The very beginnings of legal science may almost be said to he in the contact of Roman lawyers and Greek philosophers in the later years of the Roman republic; in that combination of comparative law and rational speculation called the ius gentium, 61 in the appeal to reason against traditions and forms called the ius naturale.
In the modern world, it begins at least with the seventeenth century. Indeed, the legal science of the seventeenth and eighteenth centuries was entirely philosophical. In the nineteenth century, along with all things philosophical, it fell into disrepute. There is no natural law with force to derogate from the positive law.
The con- trary idea in all its shades is only a result of confusing what ought to be with what is. The law which actually obtains, recognized as such, will always be incomplete; but it is always law. The true philosophy of law does not stand over against the existing law as something revolutionary, denying its authority, but only incites to reforms which correspond to the idea. But it is no mere history of law.
It does not explain why and how the law which actually exists has become what it is and not something else, but it criticizes the law from the ethical standpoint, and sets forth its ethical, but not its historical basis. The primary and most simple idea is that it is the philo- sophical part of law, that is, the rational element which enters into the complex formation of the legislation of every nation.
This science, then, may be called also 'rational law. Positive law having been defined as the aggregate of rules formulated by a law-maker and sanctioned by an external constraint, rational law should be conceived as the aggre- gate of rules which, in the eyes of reason, ought to be sanctioned by an external con- straint.
It is the ideal of the positive law, the type which the law-maker ought to realize, and almost always pretends to realize. The special science which may be called properly the philosophy of law is' the science of the just; the abundant and fertile development of the idea of absolute justice, which lies in every human soul, and its application to the diverse relations with which man is surrounded.
We investigate the ultimate material sources of the given law in general; and in that we recognize that a part, called ius civile, rests purely upon establishment by the state, another part, called, therefore, ius naturale, upon the high- est jural truth. We recognize also in the ius gentium this absolute jural material positively realized, this real ius naturale. On the other hand there is the purely positive- law standpoint, furnished by comparative jurisprudence, from which the ius gentium is used to support the decision in question.
In France and Italy it was not abandoned, and in France especially it is vital and vigorous. Are more apt to consider the ideal future of law than its past or present. While agreeing with the historical jurist that law is not made but is found, yet in general believe that when found its principles may, and, as a matter of expediency, should be stated definitely and in certain form. Look at the ethical and moral bases of rules rather than at their sanction. Have no necessary preference for any particular form of law. Hold very diverse philosophical views, so that, in a way, there is not so much a philosophical school as a group of philo- sophical schools.
It is not easy to induce the Anglo-American lawyer or legal scholar to consider the philosophical method seriously. But it is to be remembered that the discredit which attaches to it in Eng- land and America comes from taking the metaphysical method of the first half of the nineteenth century for philosophical jurispru- dence. By way of reaction from the over-strained idealism of the first part of the nineteenth century and in consequence of the failure of the attempt to explain everything "in a speculative- metaphysical way by a spiritual-logical principle," in the second third of that century "philosophy lost confidence in itself and was subjected to popular contempt.
Hence, when Mr. Bryce tells us that German jurists of the last half of the nineteenth century left Na- turrecht to others and were "philosophical in their use of the ana- lytical and historical methods," m he by no means disposes of the Philosophical School. For we are not bound to accept Naturrecht as the philosophy of law. It is as unfair to identify the philosophi- cal method absolutely with Krause or Ahrens or Roder or Lorimer as to identify analytical jurisprudence absolutely with the text of Austin. A new generation has shown that it is possible to have a philosophy of the law that is.
As was once true of the analytical method in England, too much has been claimed for the philosophi- cal method and often it has been misdirected sadly. For a time Austin was followed so blindly that there seemed danger presently he would be abandoned no less blindly. The present Anglo-Ameri- can attitude toward the philosophy of law has its counterpart in the phase of juristic thought from which we have happily emerged, in which it was fashionable for every dabbler in jurisprudence to have his fling at Austin.
Even when misdirected and overworked, the rationalizing in- 66 Studies in History and Jurisprudence American ed. Korkunov, who shows many traces of English influence, likewise conceives of the philosophy of law as necessarily identical with the metaphysical jurisprudence of the nineteenth century, denning it as " the metaphysical science of absolute legal principles. He conceives that it is an attempt "to establish a science of law by the deductive method. Even when he wrote, philosophical jurisprudence was getting away rapidly from such notions.
But the modern philosophy of law departs essentially from the natural-law philosophy in that the latter seeks a just, natural law outside of positive law, while the new philosophy of law desires to deduce and fix the element of the just in and out of the positive law — out of what it is and of what it is becoming. The natural-law school seeks an abso- lute, ideal law, 'natural law,' the law ko. The modern philosophy of law recognizes that there is only one law, the positive law; but it seeks its ideal side and its enduring idea.
Compare Wallaschek's formula, "the science of juristic thought," Studien zur Rechtsphilosophie, , and Kohler's position that the province of philosophical jurisprudence is philo- sophical study of the evolutionary processes by which law is formed. Holtzendorff, Enzyklopadie der Rechtswissenschaft 6 ed. In civil- ized countries, men are compelled to administer justice by for- mulas. These formulas are designed to express ideas of right and justice and as a means to promote right and justice. But there is always danger that we forget those ideas and lose sight of those ends and treat the formulas as existing for their own sake.
Since the time of the Stoics, men have appealed to "Nature" to save ethical, political, and juristic thinking from this danger; and by "Nature" they have meant reason and general principles of right. The appeal to reason and to the sense of mankind for the time being as to what is just and right, which the philosophical jurist is always making, and his insistence upon what ought to be law as binding law because of its intrinsic reasonableness, have been the strongest liberalizing forces in legal history. Analytical jurists and historical jurists often do a good service by exposing these "reasons" and ridding us of them.
Moreover a nai've philosophy of law will be found behind the juristic thinking of most of those who affect to despise philosophical jurisprudence.
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This is very notice- able in the natural law of the practising lawyer, examples of which 68 On the idea of right as a source or creative agency of law, in that it is always critical of existing law, see Del Vecchio, II sentimento giuridico 2 ed. Some Definitions and Questions in Jurisprudence, 6 Harv. This doctrine, based wholly, in its origin, on Roman abhorrence of intestacy at a time when the rules of law as to intestate succession were grossly inequitable, is abandoned in modern codes. See my paper in 3 B Hegel, Grundlinien der Philosophie des Rechts 2 ed.
On the other hand the philosophical method in the past has proved to be liable to three abuses. In common with all methods of jurisprudence, it is not unlikely to be employed in too mechani- cal a fashion. In philosophical jurisprudence this tendency takes 62 For instance in a recent judicial discussion of admission to the bar, the court, looking at the matter solely from the point of view of the individual applicant and disregarding all social interest in the matter, said: "There is a law higher in this country, and one better suited to the rights and liberties of the American people, — that law which accords to every citizen the natural right to gain a livelihood by intel- ligence, honesty and industry in the arts, the sciences, the professions, or other voca- tions.
Another court tells us that the right to take property by will is an absolute and inherent right, not depending upon legislation. Nunemacher v. State, Wis. Another court says that a right of privacy, the existence whereof many of our courts deny, "is derived from natural law"; that it "has its foundation in the instincts of nature. Life Ins. Compare Jeffers v.
Natural law - Wikipedia
State, 33 Ga. Lanier, 5 Heisk. Crescent City Co. Chicago, U. Coler, N. Loomis, Mo. Goodwill, 33 W. People, What is said by Marshall, C. Peck, 6 Cranch U. Bull, 3 Dall. They belong to the period of eighteenth-century natural law and represent the best thought of their time. The latter styles the philosophy of the Historical School an "anonymous natural law.
Again, the philosophical method has led often to ambiguities productive of far-reaching confusion. This has been true particularly of the ideas of natural right and natural law. Much as these ideas have done for the liberalizing of law, they have sometimes undone almost as much in their obstruc- tion of clear juristic thinking.
Such is not infrequently the result when the philosopher whose acquaintance with law is superficial, attempts to deal with concrete legal institutions and relations. He learns quickly that there is danger in criticism, and turns to ingenious justification. A notable instance may be seen in Hegel's attempt to justify the unworkable doctrine of laesio enormis. He says: "By the very conception of contract a laesio enormis annuls the agreement, since the contractor in disposing of Ms goods must remain in possession of a quantitative equivalent.
An injury may fairly be called enormous if it exceeds half the value. In the days of natural law, it contained a mere pseudo-content by means of the contract theory. Legal conceptions seemed to stand upon their own basis; the form supplied the place of the content.
See Pollock, Essays in Juris- prudence and Ethics, See Lord Russell's remarks on the consequences of employment of the natural-law method in modern international law. International Law and Arbitration, 19 Rep. It is in human nature to accept most of the institutions with which one is familiar without much question. Hence we might reasonably expect that in any system of natural law nature would be found to dictate, for the greater part, the institutions with which the individual jurist who interpreted nature was familiar and under which he had grown up.
Such has been the event. In nearly every case, for the Continental jurist of the seventeenth and eighteenth centuries, natural law meant an ideal development of the principles of the Roman law, which he knew and had studied. Similarly, for the common-law lawyer by whatever name he may call it, nature means an ideal development of the principles of the common law.
Hence we find American jurists working out the applications of common law individualism after the individualist philosophy and economics have lost their momentum, and we find our courts and lawyers insisting upon views of liberty of contract, of risk of employment, and of the fellow-servant rule which are out of all relation to actual life. Rise of a Sociological School. To sum up what has been said with respect to the three methods of jurisprudence, the science of law seems to begin everywhere in the attempt to distinguish cases superficially analogous and to 87 It is worthy of note that Langdell, proceeding analytically, uses the same prin- ciple of equivalency, in treating of conditions in contracts, to reach some obviously unjust results.
In the event the decisions have not acquiesced in these results, and a different principle is now invoked. Coal Co. This is a part of that general American common law, resting upon con- siderations of right and justice that have been generally accepted by the people of the United States. New York, N. See my paper "Liberty of Contract," 27 Yale L. This was the theory of the Ius Gentium, and doubtless to some ex- tent the practice.
It is to be seen in our own law at least as far back as Fortescue, 69 and, though scorned by Coke, was well marked in the seventeenth and eighteenth centuries in the development of equity 70 and the rise of the Law Merchant. Law is felt to be reason, and the "artificial reason and judgment of the law," as Coke puts it, is subjected to scrutiny. It is not enough that a rule exist in one system or that it have its analogues in others.
The rule must conform to natural — i. This is the dominant idea of the Ius Naturale. It is seen in Continental Europe in the period after Grotius. In our law, in crude form, one must confess, it is to be seen in the eigh- teenth and nineteenth centuries in the giving of "reasons" in which Blackstone and the lecturers on law who followed him in America were so prolific. To this philosophical tendency, an ana- lytical tendency succeeds by way of revolt. The validity of the so- 69 De Laudibus Legum Angliae, chaps.
If Spence's account is somewhat overdrawn, yet resort to the Dutch publicists is well authenticated. At the same time we may note a tendency to treat the authorities of the civil law in a spirit very different from that of Coke. Lord Holt refers to the civilians and to the Roman law many times, e.
Lane v. Cotton, 1 Ld. Cambridge, 2 Ld. Bernard, 2 Ld. Wood, 12 Mod. Counsel cited the civil law to him and his colleagues very freely, e. Cambridge, 10 Mod. Wooddesson, Elements of Jurisprudence, lxxix , treats the law merchant as part of the law of nations. In America, the same phenomenon is to be seen in the early part of the nineteenth century. Thus in the first volume of Johnson's reports, reporting decisions of the Supreme Court of New York and the Court of Errors of New York during the year , Pothier is cited four times, Emerigon five times, Valin three times, Casaregis twice and Azuni twice.
The Institutes of Justinian are cited once. These citations are made by the court. In addition, counsel, so far as their arguments are reported, cite civilians mostly French repeatedly. In the seventh volume of the same reports, reporting decisions of the same courts during and 1, Pothier is twice cited, Huberus twice, fimerigon once and the French civil code once. There are also two citations of the Digest, one of the Institutes and one of the Code. Almost all these citations are in cases involving questions of mercantile law.
Being for the most part ex post facto and, though specious, neither historically sound nor critically adequate, they fall to the ground, and some- times carry the rules with them. Hence the analytical period usually coincides with a critical tendency and an era of reform through legislation. Such a tendency in the decadence of Roman institutions resulted in much valuable legislation on matters of private law.
In our common-law system the analytical tendency coin- cides with the reform movement, inaugurated by Bentham, the force of which is not yet wholly spent. Along with this analytical tendency, sometimes beginning before it, sometimes after, but as another phase of the revolt from the philosophical, there is an historical tendency.
How far we see something of this in the clas- sical Roman law, — in Gaius, for example, 73 — need not be con- sidered. It preceded the analytical tendency in Germany, it fol- lowed that tendency in France. In England it seems to have fol- lowed. In either event, it completes the exposure of the specious explanations of the preceding period and insures the overthrow of pseudo-philosophy.
This done, there is room, and often need for a true philosophical jurisprudence, since the analytical and historical methods, pursued exclusively, lead to the setting up of fixed, arbitrary, external standards and an over-development of the mechanical. On the whole, we may say that analytical juris- prudence is attaining the best results in the present, that historical jurisprudence has accomplished most in the immediate past, and that philosophical jurisprudence, which had been most fruitful from the Reformation till the nineteenth century, but was sterile 72 See for example the preamble to Cod.
VII, I have as a matter of course thought it right to go back for my account of the law of the Roman people to the foundation of the city. Besides this, if with men who are arguing cases in the forum it is, so to speak, a monstrous thing to set the matter forth to the judge without first making some introductory statement, how much more unsuitable must it be for one who has undertaken to give an exposition to disregard the beginning and omit references to historical causes. But with the rise and growth of political, economic and social science, even in the closing years of the nineteenth century, the time was ripe for a wholly new tendency, and that tendency, which may be called the sociological tendency, has become well established in Continental Europe.
The Historical School began by applying historical method to the modern Roman law. Next arose a tendency to investigate the legal institutions of all Aryan peoples and to attempt reconstruction of an Aryan Urrecht in which the roots of modern law were to be found.
At first this wider historical jurisprudence was thought of as a compara- tive ethnological jurisprudence. In this work there is an avowed attempt to put jurisprudence on a sociological basis.
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Dahn in , reviewing one of Post's earlier works, said emphatically that a "scientific philosophy of law must be based upon comparative legal study" and that philo- sophical jurists must not forever draw their materials from the Roman law and certain phases of German legal development, but must make use of the legal life of all peoples.
Dahn defined law, indeed, but he de- fined it as an institution of society. A little later Nani, 83 writing in Italy, where the Philosophical School is still paramount, rejected both the historical and the natural-law standpoints, and ranged himself with Dahn, declaring that comparative ethnology and anthropology must be the basis of jurisprudence. These attempts to broaden the philosophical foundation, like the attempts to broaden the historical position which went on at the same time, go along with the earlier stage of social science, before Ward had made it clear that psychology was no less fundamental for sociology than anthropology and ethnology.
Wallaschek attempted to vor dem Forum der Jurisprudenz ; Rechtsvergleichende Studien iiber isla- mitisches Recht, etc. Zeitschrift fur verglei- chende Rechtswissenschaft, XII, See a noteof his papers on various topics of comparative ethnological jurisprudence in Berolzheimer, System der Rechts und Wirth- schaftsphilosophie, II, , n. Next stands Post, Die Geschlechtsgenossenschaft der Urzeit und die Entstatsung der Ehe; Beitrag zu einer allgemeinen vergleichenden Staats- und Rechtswissenschaft ; Ethnologische Jurizprudenz ; Studien zur Entwickelungsgeschichte des Familienrechtes; Beitrag zu einer allgemeinen verglei- chenden Rechtswissenschaft auf ethnologichen Basis ; tlber die Aufgaben einer allgemeinen Rechtswissenschaft See also Willutzky, Vorgeschichte des Rechts Compare a similar tendency in the English Historical School to broaden the foundation of historical jurisprudence by a " method of inductive generalization on the basis of historical and ethnographical observation.
This conception is approved by Professor Lefroy, Jurisprudence, 27 L. He asserted that the philosophy of law is " the science of juristic thought" and insisted that it was to be found in the actual methods of jurists. Professing to follow Hegel, but in reality, perhaps, merely taking his clew from a remark of Hegel's that right and law are phenomena of culture, he developed and limited the new movement in philosophical jurisprudence so as to set off the philo- sophy of law from history and anthropology on the one hand and from analysis of matured systems of law on the other, and yet give it an intimate relation to each.
Thus in his view historical and philosophical jurisprudence are merged in a social-philosophical jurisprudence, and lose their identity. No doubt the movement was accelerated by the influence of the comparative idea in other branches of learning. In the latter part of the nineteenth century great things were expected from this method on every hand. Freeman went so far as to say that "the establishment of the comparative method of study has been the greatest intellectual achievement of our time.
Sources of law
Legal history, the dis- covery and exposition of the actual course of development of a particular legal system or of a particular doctrine in a particular system, is not historical jurisprudence. The English analytical and historical schools used the comparative method from the be- ginning. On the Continent, the Germanic law had been arrested 84 Studien zur Rechtsphilosophie See especially p.
Schuppe carried this even further. Rechtswissenschaft und Rechtsphilosophie, Jahrb. I , 9, 14, 17, 20 Hence at first there was not the stimulus to comparison with another matured system which was at hand in England. Moreover, Con- tinental jurists, living under a system which showed a continuous written history extending back almost to the Twelve Tables, had to do with a body of law four times purged of its archaisms, whereas in England in the middle of the nineteenth century, with but six centuries of legal history as a system, the law was overhauling for the second time, in the legislative reform movement, in the en- deavor to rid it of the incubus of the past.
Thus there was every reason for the English historical jurist to look into the development of another system, older than his own, which had passed through the stages of remarking by equity and by legislation and to con- sider archaic systems analogous to that out of which his own had developed at a period by comparison so recent. In contradistinction from moral actions are natural actions, or actions of any forces whatsoever, in so far as they are considered in their natural being, as movements produced by powers which are in one by nature, but without respect to the decision of the will and to imputativity, and therefore are deprived of the foundation as well as of the formal element of morality.
And such are the actions not merely of the necessary powers which, granted all things requisite for action, cannot help but act, but also those of the free powers which, granted all things requisite for action, can act or not, if, indeed, they be Edition: ; Page: [ 6 ] considered in the manner just mentioned. Among these, nevertheless, there is this difference, namely, that the former in themselves and directly are not capable of the foundation of morality, but the latter are.
Moral actions, moreover, can be considered either in genus or in species. In genus according to 1 the object, 2 the principles, 3 the affections, 4 the effects. Edition: ; Page: [ 7 ]. In the next place, this object itself partakes of the designation of morality, and, considered in this respect, is itself also called moral. Concerning this in general it must be noted that its morality depends on imposition, that is, on the decision of free agents as such, and these free agents either of their own free will, or from some congruence of the nature of a thing with imposed morality, together with a tacit or expressed mutual agreement which has been entered into, have imposed morality upon things and persons, and have determined that definite effects should follow it.
But there due note must be made of the fact that, when morality is said naturally to inhere in a certain action, this is not to be understood as though it meant that the morality results from the physical principles of the thing or from the very nature of the action in itself; but that it does not derive its origin from the arbitrary imposition of men, but only from the disposition of God himself, who has so formed the nature of man that particular actions of necessity are or are not congruent with this nature.
But if the morality of actions which are called naturally honourable or base were to derive their origin from the nature of these acts in themselves, and not from the will of the Creator, to which, nevertheless, the nature of the rational creature has been attuned, no reason could be given why particular acts may be moral for men, although they are not moral for brutes. So, moreover, that state of man which is called a state of nature is in fact so from imposition, yet not the arbitrary imposition of men, but that of the Creator himself, who destined men thereto at their very creation.
Now one object of moral actions is suppositive, the other positive, at least in a moral sense. The former is called status; the latter is divided commonly into persons and things. Status is called a suppositive entity because it is made the basis, as it were, of positive moral affairs, so that on it they rest such moral existence as they have, and erect their actions and their effects. And thus it has a certain analogy with space, because space is likewise made the basis, as it were, of things natural, so that in it they rest such natural existence as they have and exercise their own physical motions.
Now status can be divided according to the analogy of space into status of place and status of time. The former is status which involves respect to some moral position, and it can be considered either indeterminately or determinately. Indeterminately considered, status is either natural or adventitious. The natural status of man, since it has no special designation, we shall for the time being call humanity, or human life. It is that condition in which every man whatsoever, by virtue of the very fact that he is a man, is constituted.
It also involves the obligation of observing the law of nature both towards himself and towards other men, and of living with them on terms of social intercourse; as, further, the right of enjoying from any and every man the offices due by the law of nature, and of exercising other privileges which universally attend human life; as also the capacity of acquiring special rights for himself among men. To this is opposed the status or life of brutes which are united by no mutual bond of right, so that Edition: ; Page: [ 9 ] they inflict upon one another whatever they can or will, even by violence, yet do no wrong thereby.
Therefore, inasmuch as that obligation of which we have spoken, as also the rights, attend the natural status of man, it is not inappropriate in this place to inquire into the limits of this status, that is to say, when it takes its beginning, and when its end. Obligation, furthermore, since it requires for its consummation the recognition both of itself and of that which is being done, displays its efficacy only when a man knows how to compare his actions with a given norm and to distinguish them from one another.
Rights, however, which cause to arise in others who already rejoice in the use of reason the obligation of performing something, and can profit those who are even ignorant of what is done, are in full force the instant a human being begins to exist. A wrong, however, cannot be done to the body of an infant unless it actually has a body, or has its material so disposed, that, from an injury done to it in the process of formation, harm comes to the body. Therefore, if one has wrongfully violated a mother, so that her offspring is thereby born disabled in some member, we think that this offspring on reaching maturity can bring an action for injury against that individual, unless the latter can establish effective ignorance.
However, since the shapeless seed within the first few days of conception can be called properly neither a man nor a human body, we are of the opinion that, if any one compass its corruption or abortion, it cannot be said that a wrong has been done against that seed; although, in fact, the individual in question is sinning against the law of nature by depriving human society of a member, and is doing a wrong both to the state, which he is despoiling of a Edition: current; Page: [ 29 ] citizen, and to the parents, whom he is despoiling of a hoped-for offspring.
Edition: ; Page: [ 10 ].
But the further question is raised, namely, whether a right can be acquired by one person for another even before he exists at all in nature; and with this effect, namely, that, if this right be alienated from him by another, or in any manner whatsoever diverted, he may, upon his birth in after time, be able to complain of a wrong, as it were, done to himself, and to demand complete restitution.
Laying aside the fictions of the civil law, by which in certain cases the law sustains the person of those who are not yet in existence, we are of the opinion that no right can be claimed by one who is not yet in existence, except indirectly through the person of one who is now in existence, through whom that right will be transmitted to the one who is to be born thereafter; in such wise, however, that this right will not have its effect with regard to the one to be born, until after he has been born.
For, in the former case, because the property, together with the manner of its possession, is entirely within the power of the possessor, if now he has alienated it or in any way whatsoever caused it to be no longer in his possession, absolutely all right to the same is extinguished; and therefore it cannot be transmitted to the one not yet born, Edition: current; Page: [ 30 ] who can claim no right to such possessions of his ancestors except that right which is turned over to him by the same, from hand to hand, as it were, when he is already in existence.
But if, on the other hand, that be done with the consent of both parties, of the one who possesses the property, as well as of the one who has the right to settle the manner of its possession, that right likewise is utterly extinguished before it can come to those who are born thereafter. Nor do the people by changing the manner of possession do wrong to the latter. Because not for the sake of these, but for their own sake did the people reserve to themselves the right concerning the manner of possession; and therefore it was for no one in this case except themselves that they sought or retained the right, and if they abdicate, or change it, no one else has any ground for complaint.
From all this it is clear how one must decide the otherwise thorny question, whether it be possible for the not yet born tacitly to give up their right owing to the dereliction of their ancestors. Now human status comes to its end through death in the course of nature, after which the reverence and honour accorded to remains and reputation is exhibited primarily for the sake of the survivors.
What, furthermore, we believe from the Christian religion concerning the status of men after death may be secured from the Sacred Scriptures. Subordinate to the natural status of man and proceeding immediately from it is peace; for every man whatsoever, just because he is a man, is under obligation to cultivate peace with every other man whatsoever, so long as care for his own safety does not persuade him to a breach thereof on account of the wrongs done him by others. Now peace is either universal or particular. The former extends to all men whatsoever who use the law of nature in their dealings with us, and consists first and foremost in this, namely, that no one injure another unjustly, and, if by chance controversies arise, that he be at pains to have them adjusted by a mutual arrangement or by arbitrators.
This peace stands solely by obligation of the law of nature, and unless the parties to the agreement come together into one body or society on that account, it is useless to fortify it by a pact or by treaties. For by a pact of that sort nothing is superadded to the obligation of the law of nature, nor does it become thereby a firmer bond, and violence is done to a man in this connexion with equal injustice whether a pact has intervened or not.
It is also alien to the custom of men to enter into such a pact whose headings or conditions would contain nothing else than the mere direct non-violation of the law of nature. For in any pact whatsoever something is placed as a condition or a heading which another would not otherwise be able to demand of me by the law of nature, and therefore something which I did not owe him fully Edition: ; Page: [ 12 ] on the basis of the law of nature; just as I am not bound by the same law to enter into a pact with another, although in due consequence, and assuming my consent, I would bind myself in the matter of furnishing another with some matter that was otherwise not his due, because I would be unwilling to violate that law of nature which bids pacts to be preserved.
But what they call the pacts of friendship do superadd something to the universal peace. For assuredly we do owe something more to a friend than to any other man whatsoever, as being such, and not an enemy. Moreover, those pacts or instruments and documents by which passage is made from a state of war to mere universal peace, contain nothing else than the public attestation that there will be on both sides a cessation from war, and the conditions to be fulfilled by both or either side, if arms are to be laid down; after all this has been done, then universal peace proceeds from the sole obligation of the law of nature.
Particular peace is either internal or external. The former obtains among those who have come together into one body or society, when they supply that for the sake of which the society has been instituted, and do not violently resist the authority which the society rightfully exercises over them. This peace is not disturbed by every exercise of force whatsoever, but only by the exercise of that force against the exercise of which provision was made in the agreement to establish the society.
Thus, for example, internal peace is not disturbed in the state when the magistracy forcibly restrains and punishes evildoers; but civil war arises only when others attempt by the exercise of violence to save those men from punishment and to resist the magistracy in the exercise of its right. External particular peace is that which is fostered with other societies, consecrated and fortified by special treaties. For it is not required by the law of nature that I should allow another to conduct business in my country, especially if some danger threaten me therefrom, or advantage be lost thereby; and therefore such liberty of commercial intercourse must Edition: ; Page: [ 13 ] be sought by a pact.
The same is true of treaties of alliance and mutual aid, and that either against assailants alone, or against any one whatsoever, even the one whom we assail. Peace of this kind is broken when one party by the exercise of force attempts to inflict anything upon another which the other repels by force, or when a wrong that has been inflicted is avenged by force. But, in truth, since the obligation of observing the law of nature toward another ceases when that other does not observe the same law toward me in Book II we discuss this subject in greater detail , there arises thence, as a sort of subsidiary status for man, war, when our safety cannot be secured except by force.
Now war can be divided in the same way as peace into universal and particular. The former is the immediate consequence of the status of wild beasts, when no one exercises any right toward his fellow, but the conduct of all is governed by force alone. Such would have been the status of men had they not been bound by the law of nature to foster social relations with one another. The former exists between those who have come together into one particular society, when they break the bond of that society and rise up in arms against one another. Such war when it burns out within the period of what might be called its first effervescence, and without elaborate preparations on both sides, is called sedition.
When the subjects of a prince take up arms unjustly against him, it is rebellion. In democracies, however, and in aristocracies, when the people and the nobles separate into parties which act in hostile fashion against one another, it has become customary to call such a state of affairs properly civil war. External war is war between those who are not comprised in the same state. This is commonly wont to be divided into formal and less formal. The purpose of this declaration is not that the enemy may have time to prepare himself for resistance, but to make clear that the war is not being conducted as the private venture of a few, but as a public enterprise, and that the enemy may accordingly know with whom he will have to deal.
As for the rest, wars that are destitute of such requisites Edition: ; Page: [ 14 ] are less formal. But when others are attacked in secret raids and by an irregular band, upon no public authority [ autoritate ], without declaration and without just cause, this is called freebooting. The Roman jurisconsults, furthermore, formulated as the broadest and most general statuses of men of course as men were regarded in the Roman state or a state similar to it , liberty and servitude. Now there are two kinds of impediments which limit the faculty of undertaking; physical impediments, as bonds, fetters, prison, guards; and moral impediments, as obligation, law, sovereignty, authority.
These being assumed, it is clear that liberty is either of all kinds, or limited. The former is that which is circumscribed by neither natural nor moral impediments. Such liberty we believe that no one but God enjoys absolutely. But among men, those enjoy the highest grade of liberty who have been exempted from civil laws, or those who rejoice in the supreme authority in states.
For these, although they are subject to the Divine sovereignty and the law of nature, recognize nevertheless the sovereignty of no man, nor, so long as they are such, can they be coerced through the means of punishment by any one whatsoever. Of limited liberty there are several species and grades. In general, however, liberty denotes the status of those who serve merely the state, and not a fellow-citizen in addition; who may of their own free will direct any actions whatsoever Edition: current; Page: [ 35 ] of their own about which there has been made no disposition by general laws.
This liberty is the more restricted the more numerous are the particular obligations by which one is held. Thus, he who is his own master in the state and has not assigned to another a definite portion of his services, enjoys much more ample liberty than he who is under the authority of his father or guardians, or who has assigned his services to a fellow citizen, whether these services be more dignified, that is to say, intellectual, or more humble, that is to say, physical; under which latter class in our society come labourers and household servants.
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A further characteristic is that these men are understood to have no citizenship in the Edition: ; Page: [ 15 ] state and are enrolled under the head of things, and not of persons. In former times quite generally, and among some nations even to-day, prisoners are reduced to such servitude by a certain mixture of humanity and cruelty, in such wise that those who might legally have been put to death were to do lifelong service to their captors in return for the privilege of enjoying life.
Some states used to leave to masters the right of life and death over these slaves, because it seemed to them not unjust that the life which had once been in their power [ potestate ] should remain so. The children of slaves enter upon the same status, and those who of their own accord descend to that condition. On some persons also servitude is imposed by way of punishment. The lowest grade of servitude, however, is endured by those who are restrained also by physical bonds, as those who have been cast into workhouses or prisons, condemned to service at the oar, who are loaded down with shackles, or are compelled to work behind the barrier of walls.
And by the very act the status of servitude and its conditions have been introduced of the free will of men. But as for the fact that philosophers commonly call certain men naturally slaves, to wit those who are of a somewhat sluggish intelligence and are unfit to govern themselves, this must not be understood as though men of that kind are placed by nature in a state of slavery, or are necessarily to be carried off into it, as though it would be contrary to nature if they should remain free, but that their intellects have been so formed by nature that they can bear servitude with equanimity, and neither understand the blessings of liberty nor know how to use them aright.
Furthermore, those who live in states, especially Christian states, are divided commonly into three statuses, ecclesiastical, political, and economic. The ecclesiastical status claims as its own the service of the Edition: ; Page: [ 16 ] divine, which is to be exercised especially for the welfare of society. For although ecclesiastical persons care Edition: current; Page: [ 37 ] also for the salvation of individuals, nevertheless it is for the good of society, or the commonweal, that a particular status has been assigned them. The economic status handles, for the advantage of individuals as such, matters which have their use in communal life.
The common seed-bed, as it were, of these is the scholastic status, in which minds are imbued with a liberal culture. Entering into details one meets a number of particular statuses, which any one will find easy to reduce to their proper classification. Determinately considered, a status is either honourable or less so.
A special status, moreover, is produced either by the mere place in which a person lives, or by the condition under which he lives. He who goes about on a foreign soil, intending to remain but a short time, is called an alien, and his status alienage. In general, however, one ought to be advised that sometimes because of the poverty of language, and sometimes because of the carelessness of philosophers concerning moral entities, we are frequently compelled to use one and the same word to express both the status and the attributes, as well as the quality proper to the status.
And yet these are in fact distinct, and are differently conceived. Thus, for example, liberty as a status is conceived after the analogy of space; as a faculty of action it is conceived in the manner of an active quality. But there is yet another point which must not be passed by, and this is that just as several statuses can exist concurrently in the case of a single person, so the obligations which accompany a certain status may be derived in parts from diverse principles.
Thus, he who from the Sacred Scriptures alone gathers together the separate parts of the duty of priests, does not by any means deny that these same priests are bound to perform also those duties which are required by the ecclesiastical constitutions of individual states. So we also, who are devoting ourselves here merely to those duties of man, the necessity for which can be gathered from the light of reason, do not by any manner of means insist that the status of men ever has been, or ever ought to be, such that those obligations alone belong to it.
Status of time is that which involves respect to the question when, or to time considered in a moral light, and it can be divided into 1 juniority and seniority. In the former class can be included, perhaps, even primogeniture, a status in which one has no elder brothers by the same parent.
Status of time can also be divided into 2 majority, a status in which someone is reckoned as being able to attend to his own affairs in his own way; and minority, in which one has need of a tutor or guardian. The limits of this status vary among different peoples. Edition: ; Page: [ 18 ]. This is the most general definition of a moral person. Otherwise, primarily among the jurisconsults, a person is said to be that which possesses a civil condition [ caput ], that is, personal liberty; a signification by which slaves are listed under things.
Now moral persons can be considered either separately or collectively. Separately considered, according to the difference of their statuses, there are public persons, those, namely, who are situated in a public status; and private persons, those, namely, who are in a private status.
Public persons are either ecclesiastical or political, and these are either principal or less principal. Among principal persons some rule the state with supreme authority, such as emperors, kings, princes, or by whatever name they are listed in whose hands is supreme sovereignty. Some exercise a part of sovereignty, by an authority delegated by majesty, and these are called by the general word magistrates. Their names are different in different states. Less principal persons are those who, without exercising authority, let out their services to princes or magistrates; among these, attendants and bailiffs occupy the lowest place, and last of all come executioners.
From association with these last, although they are not branded with any legal infamy, even Edition: current; Page: [ 40 ] men who are but slightly more worthy commonly turn away; and this they do primarily because the habits of these men are very generally apt to correspond to their ministrations, which are associated with a certain degree of severity and unseemliness, or else because only mean spirits betake themselves readily to that kind of life. In war officers of higher and lower rank correspond to magistrates. Under them are private soldiers who are also listed among public persons, because by the highest civil authority they are directly or indirectly authorized to carry arms for the state.
This is understood to be the case when they take the oath of allegiance or are sent forth by the special command of their superiors to undertake the operations of warfare. A special kind of political persons also can be constituted of those Edition: ; Page: [ 19 ] whom you might call representatives.
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These are equipped with power [ potestate ] and authority [ autoritate ] to act by some one in whose place they transact affairs with another to the same effect as though they had been handled by the same person himself. Such are ambassadors, vicegerents, plenipotentiaries, and likewise syndics.
Among private persons trustees and guardians occupy an equivalent position. As for the ecclesiastical persons, to the extent to which any one has been brought up in some religion, it will be easy for him to take cognizance of their variety; nor can scholastic persons fail to be recognized by the learned. Among private persons distinctions are drawn from 1 sex, whence are male, female, and hermaphrodite. Although these distinctions are properly physical, they nevertheless belong here because of a certain moral respect, in so far as the sexes are differently treated in civil life.
And as for the hermaphrodite we turn away from one as from a monstrosity of nature. So also the authority [ autoritas ] of an old man is different from that of a young man. Hence one man is a citizen, another a sojourner, another a resident, another an alien.
As these men are bound in different ways to the state, so also they are not rated in the same way in regard to the distribution of advantages and the imposition of burdens. These are differently distinguished in different states. This is either liberal or illiberal. Here belong merchants, who make their living by the exchange of goods. In this class hucksters bring up the rear. Edition: ; Page: [ 20 ]. Considered collectively persons constitute a society or an association when several persons are so united that both their action and their will are regarded as the action and will of a single individual, and not of several.
It is understood that this takes place when individuals coming together into a society so subject their will to the will of a single individual who is the head of that society, or to the whole association, that they are willing to recognize and have regarded as their own will and action whatever the head, or the majority of the society, has decided or done in matters concerning the society. Hence also a society acquires its special rights and goods, which cannot at all be claimed by Edition: current; Page: [ 42 ] individuals, as such.
Here must be made the further observation, that, just as individual persons remain the same, although in the passage of time the body undergoes marked changes through various additions and losses of particles, so through the particular succession of individuals a society does not change but remains the same, unless at a single time such a change befall that it utterly destroys the true character of the former body or society. We can divide societies or moral persons, furthermore, like individual persons, into public and private. The former, again, are either sacred and ecclesiastical, or political.
Among sacred societies some are general, as the Catholic Church, so likewise particular churches bounded by the definite limits of regions and states, or distinguished by public formulae of confessions. Some are special, as a council, either oecumenical, national, or provincial, a diocesan synod, a consistory, the gathering of a cathedral chapter, or a presbytery.
A scholastic society exhibits the same diversity. Private societies are not merely families, but also what are called guilds of merchants, and of craftsmen, and the like. It would be a long task to enumerate these one by one. Let it suffice us to have touched merely upon the most salient features.
Edition: ; Page: [ 21 ]. The respect of pertinence, considered indeterminately and absolutely, as it is the formal reason for moral things, is either affirmative or negative. Now considered determinately respect of pertinence has established the significance of mine and thine. Considered materially, moreover, and in themselves, things are divided into corporeal and incorporeal.
Men divide ownership commonly into three species, which you may call modes of possession; that is, eminent domain, and direct ownership both common and for purposes of utilization. By the first is meant that authority which belongs to a state or its head over the property of citizens for the commonweal. Its effect is, that it can effectively Edition: ; Page: [ 22 ] restrain, as far as it may seem advisable to do so for the common good, the force of ordinary ownership. By ordinary ownership private persons possess their goods, in regard to which they have full faculty of making disposal, except in so far as that faculty is restrained by the eminent authority.
There, if the usufruct be with another, it is called direct ownership, such as that which the owner has of a piece of land given in implantation. Finally we are said to have ownership for the purposes of utilization over those goods whose usufruct alone belongs to us, but the direct ownership to another; such as what we possess as lessees in the tenure of implantation. Ownership is also either plenary or limited. It is plenary when the same person actually possesses both the proprietorship of the thing and of its usufructs.
In this way are possessed not merely those things over which we have eminent domain united with ordinary ownership just as sometimes a certain region is acquired by a prince or a people together with every kind of ownership rights, over parts of which afterwards a limited ownership is granted to individuals , but also those things over which we have merely ordinary ownership, from which the usufruct has not been separated except Edition: current; Page: [ 45 ] temporarily by way of a revocable benefaction.
By that fact, however, the force of sovereignty is not at all diminished, because, of course, it is merely the authority of alienating it that has been taken away, which does not in itself affect the faculty of exercising sovereignty. Property is held also in a limited manner, when ownership of it, of whatever kind that ownership may be, is circumscribed by a definite length of time, after the lapse of which it expires.
Thus, with reference to the same piece of land the state has eminent domain, the owner of the land direct ownership, and the lessee in tenure of implantation has ownership for purposes of utilization. The expression wholly was also used, for it is also true that several persons can hold a thing in the same manner of possession, yet not wholly, but each in proportion to a fixed share. This happens in the case of those goods which are possessed indivisibly by several, who appear possessed of the same kind of ownership with reference to the same thing.
These things are called common, seeing that they belong indivisibly to a number of persons in the same manner of possession. For common ownership differs from proprietorship not in regard to the manner and force of ownership for a number have, of course, the same right to a common thing that one man has to a thing which is his own, and just as proprietorship of a certain thing which pertains to one man excludes the right of all other persons whatsoever from that thing, so also from a thing in common possession all others are excluded who are outside the number of those for whom the thing is called common , but only as far as the limit of pertinence, because his own property pertains to one person, whereas common property pertains to several.
Since none of these obtains to the thing a right which extends, as it were, to cover the whole, but a right which is valid only to a part thereof, it is perfectly patent that a single individual cannot dispose of that whole thing in his own right, but only of his fixed share in the same; and if some decision has to be made regarding the whole thing, the agreement and authority [ autoritatem ] of each of those to whom it pertains is required. Now not only those things which belong to single individuals are our own possessions, but also those which belong to moral persons in conjunction, or societies as such.
For these are a certain kind of unit. Edition: ; Page: [ 24 ] Thus they have also their own goods and their own rights, which, wholly Edition: current; Page: [ 47 ] or in part, not only no one outside the society, but not even the members which are included in the same society, in so far as they are not conceived of as the whole society, can claim as their own in that manner of proprietorship which the society enjoys.
Now things which belong to a public society or state come under what is essentially a threefold classification. For over some the state exercises merely eminent domain, but has left or assigned ordinary ownership to individuals. The force of that eminent domain expresses itself in this, namely, that individuals are bound to pay assessments or taxes imposed on these things, nay more, to yield the whole of them to public uses, if, indeed, the Commonweal demand that.
From certain things, moreover, the state has removed absolutely all ownership on the part of individuals as such, and has reserved the disposal and utilization of the same wholly to itself. Such are the public revenues, tolls, the treasury, the privy purse, and the like. The use of certain other things, finally, the state has left to citizens indivisibly, and has assigned ordinary ownership to no one in particular.
And these are otherwise listed under the head of public property, to the use of which, if, indeed, there are not enough portions of them to go around, his claim is the best who was the first to put them into actual use. Thus, for example, the seat which any one has occupied in a theatre he retains by right against the late comer, unless it so happens that some particular disposition has been made about such matters. Here also belongs sacred property, like temples, sacred utensils, ornaments and revenues of churches, and the like.
For they are not the property of no man, but in fact belong to the state, nor are they entirely removed from human authority or uses. But they are called sacred from the end to which they are destined by the state, which is that they may especially serve the exercise of divine worship until some different disposal be made of them. All this, Edition: ; Page: [ 25 ] however, rests on the proviso that this right is to be utilized only under the pressure of extreme necessity, so that no suspicion of irreverence towards the Deity be incurred in the minds of the common people.
What has hitherto been said about the goods of the state can be applied by analogy also to the goods of other societies which do not constitute states. Here, however, it must be further noted concerning the possessions of a state, that some are so appointed as to make it possible for their use whether that use be of all kinds or only restricted to be free promiscuously even to non-enemy outsiders, without detriment to that state. The faculty of conducting commerce with foreign nations includes the employment of these for the purpose of travel.
Since generally the more civilized states grant promiscuously to non-enemy outsiders the use of these things, upon this fact some have based the claim that they are not subject to any proprietary right, moreover that the law of nature altogether forbids proprietorship in them, and enjoins that an unlimited use of the same should be granted to all men; and that therefore those are violating a law of nature who, claiming for themselves proprietorship in these things, have desired to put restriction upon their use by outsiders, or to shut them off entirely from such use.
Moreover, as far as public roads are concerned, it is well established that the owners of a region can keep absolutely any outsider from passing through it, or else can refuse to grant passage except on a definite regulation, or a definite charge. For, inasmuch as no one would deny them the proprietorship over the region, a part of which consists of public roads, it is clear that the same persons have also the right of disposition regarding roads, and that therefore they have the right of interdicting to others the use of these roads, if, indeed, it appear to them that such an action is in their own interest.
Although, as long as the use keeps within the limits of innocent utilization, that right should not be exercised, because of the common obligation of men toward one another, by which any person whatsoever is bound to relieve the needs of any other person whatsoever, as far as that may be done without injury to himself.
And yet nothing but extreme necessity gives one the authority to assert a claim to the use of such a road by violence; 4 since, on the other hand, if all had an equal right to the road, whoever was prohibited from the use of it on any cause whatsoever would have just cause for war. Thence it follows that Dido acted properly and within her rights when she refused the comrades of Aeneas a reception Edition: ; Page: [ 26 ] to her shores until it was well established that from them there boded no evil to the new state. For these wars would otherwise have been most unjust, had not a special mandate of God authorized the Jews to destroy nations which, although they were exceedingly contaminated with sins, had nevertheless not called upon themselves the arms of the Jews by any injury which they had done the latter.
But whether the sea also be subject to the claim of proprietorship has been ardently disputed by the most illustrious intellects in our generation, some saying that it is so subject, and others denying it. In this concession, which has the character of a privilege and not a command, 10 since there is express mention Edition: current; Page: [ 51 ] quite as much of the fish of the sea as of the beasts of the field, 11 whose ownership cannot be conceived unless at the same time there is the right to utilize the element which they inhabit as far as its nature admits—on this side, surely, there is nothing to prevent men from being able to claim for themselves dominion of the sea.
That this same dominion is rightful by the law of nature results from the need and necessity of man, who, since he cannot maintain life without the utilization and consumption of other things, is recognized to have authority also to utilize and consume them. Seeing that the sea also is to some degree able to remedy that state of need, here also there will be nothing to prevent man from appropriating to himself any uses whatsoever of the sea that he can, after that he himself, a terrestrial animal, has learned to go to and fro upon an alien element.
But that this pro- Edition: ; Page: [ 27 ] prietorship be acquired in actuality and obtain its proper effects as much in due order toward the things themselves as toward other men, it is necessary that it be acquired in some way which is recognized among men, one, namely, which supposes or involves a pact by which other men are understood to have renounced their pretension to that thing. Whether, therefore, men wish to exercise proprietorship over the sea as they do over land, or, on the contrary, to regard it as derelict, the privilege of doing one thing or the other has been conceded to them by the law of nature and the law of God, and it has been placed within the range of their free choice.
For the objections that have been raised to this conclusion, namely, that the sea is fluid, that it has capacity and is sufficient for the uses of all men, and that there is uncertainty as to its limits, pass for the most part into witticisms, 12 and it has long ago been shown by others that such objections do not at all stand in the way of proprietorship. Also one should well observe that the effects of proprietorship show themselves clearly or Edition: current; Page: [ 52 ] obscurely in proportion to the measure in which the physical nature of the thing under consideration allows them to show themselves; and that proprietorship does not, nevertheless, immediately expire, although it may appear that the utilization of proprietorship can be less conveniently compassed, as it were, by some one individual.
To this point, therefore, the essential controversy reduces itself: Whether, namely, as the nations have made portions of the earth their own, so they have also made portions of the sea their own. Or, indeed, whether by tacit consent they have treated the whole, or certain parts of it as derelict. For answering this question it is helpful to consider just what uses the sea furnishes to mortals, which uses are so appointed that, if they should be thrown open promiscuously to all men, the condition of some one state would be the worse.
For from that it will be easy to judge as to just what parts of the sea should be regarded as occupied and under ownership, and just what should be regarded as derelict. Now although fishing in the sea is far richer than in rivers or lakes, yet it is manifest that it becomes harder for those who live near the sea, or can Edition: current; Page: [ 53 ] be partially exhausted, if different nations desire to fish along the coasts of a certain region. Since the same sea, indeed, acts in the way of defence also though an equivocal defence, whereby, although land ways are broken off, still there is wide open access by ships , it is of course plain that it is by no means to the interest of maritime peoples that any and every one should have the right to sail the sea which extends along their districts, without being on his guard against giving offence; no more so than that any and every one should be allowed to take short cuts across the moats and ramparts of cities.
It is presumed, therefore, that every maritime state whatsoever has desired to reserve to itself such dominion over the sea which extends along its coast, as will suffice to prevent some peril being threatened against itself by ships which come too close. Thence it follows that, although otherwise the use of travel by sea is a matter of innocent and inexhaustible utilization and it would be a matter of the utmost inhumanity to deny or to charge such things to any one, unless something else induce one to do so , still, for the aforesaid reason of defence, a certain people can rightly prevent any outsider from coming within a definite distance from its own shores, except by a previous announcement and with the consent of that same people, or else by giving a definite sign that the approach or passage is friendly.
The distance out to sea which serves the function of this kind of defence, in respect to which ownership is exercised by some people over that distance, cannot be so accurately determined in general, but must be recognized from the accepted custom among different nations. But if a bay or a channel opens out between two peoples, their several sovereignty is understood to terminate in the middle of the bay or channel, unless one of the two, by pact or agreement on the part of the other, has acquired domain over the whole stretch of water.
From this it is clear that that people or those peoples whose territory is washed by a bay of the sea obtain in due order sovereignty over that same bay. So it cannot be doubted that the Romans, when they held all the lands that bordered on the Mediterranean Sea, possessed such sovereignty over that same sea, or were properly able to exercise it, that they could prevent any ships whatsoever of outsiders from passing through the straits at Gades.
However, the dispute is not so much over these parts of the sea, as over that vast expanse of ocean. Its broad extent may, to be sure, not absolutely Edition: current; Page: [ 54 ] prevent it from being subject to the claim of proprietorship, yet, on the other hand, it cannot be denied that its Edition: ; Page: [ 29 ] possession will be practically useless, whether that possession pertain to one people only or to several. For those boundless stretches do not readily admit of fishing, or else this rewards the effort made; nor are those parts of the ocean which are very far removed from land regarded any longer as defences.
For I should not believe any nation to be so timid that it regarded as a concern of its safety that no foreign vessel should sail, let us say, within two hundred miles of its coast; and therefore on this account it will not be able to interdict navigation thereon to any one, provided he does not come inside that limit within which he can effectively threaten peril. Hence the Spaniards or the Portuguese, for example, should no more be listened to, if under this head they should desire to interdict to the English or the Dutch navigation to the Indies, than, for example, the citizens of Cologne, if they should want to prevent any one at Speyer from crossing the Rhine.
But if, in truth, it should be altogether expedient for the whole ocean to be under dominion, because of the convenience that would accrue to navigation, then assuredly not one people or another would be able to claim the ocean for itself, excluding all others, but all the peoples that dwell by the ocean ought to unite for its possession, each in proportion to its own region, unless it so happen that some one nation should yield its right and grant it to another.
Since there is no record that such a division of the ocean among the nations has ever been made, and it would be useless to have it made, it is a correct judgement, that the ocean, if you except the portions adjacent to coasts, has been regarded by the nations as derelict, in so far as proprietorship is concerned; in such a manner, however, that no nation is able to appropriate to itself alone the use of it. And therefore no one ought to appropriate to himself beyond others a special right over it, for the reason that he was the first to cross it, any more than the men of Amalfi can exclude others from the use of the magnetic needle, because it was one of their fellow-citizens who is said to have demonstrated the use of it.
From all this it is clear that the navigation and commerce of all people whatsoever who dwell by the ocean, with all other persons whatsoever who likewise dwell by the ocean, is, in respect to a third party, mutually free, and that those who appropriate this navigation and commerce to themselves Edition: current; Page: [ 55 ] alone, are oppressing other nations with an unjust monopoly, unless they have acquired such a right for themselves by the consent of those other parties.