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target="_blank" rel="nofollow" href="#ulink_9b10d1c7-d149-5a4f-ba5b-50421aecbc4f">8. 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.¹³ Laying aside, therefore, the use for purposes of drawing water and bathing, which is of no great consequence and is available only to those who live near the coast, there are found to be two reasons principally why a people cannot, without loss to itself, <28> allow others to go to and fro promiscuously on the sea that is close by; these are fishing and the defence of the region.

      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 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.

9. 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 prevent it from being subject to the claim of proprietorship, yet, on the other hand, it cannot be denied that its <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.

10. 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 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. Here, however, the observation must be made, that just as a prince can of his own right prevent any merchandise that is produced or manufactured in his jurisdiction from being exported by outsiders, unless by a pact or by a generous concession on his part they have acquired that faculty (yet no one is bound by the law of nature to enter upon such a pact, or to grant this <30> favour to any one, unless perchance extreme necessity be pressing him, so that without commerce with the other the first would perish); so, if, for example, a European nation has made some region in Africa or India its own in the way in which it is customary among the nations to introduce dominion, it would be justified at its pleasure in cutting off all access thereto on the part of others, or else allowing access only on a definite condition or at a definite charge.¹⁴ But, in truth, it is without all colour of right when one people presumes to interdict to another non-enemy people the passage across the ocean to a third people, likewise non-enemy, for the sake of carrying on commerce, and does so on this ground alone, namely, that thereby it would lose something from its own profits, unless it so happen that the third nation desires to exclude the second on some definite grounds. And this conclusion is not affected by the fact that merely that nation alone, even though it be for a long space of time, has gone thither for commercial purposes. For unless this third people has specially granted another, to the exclusion of all others, the faculty of access to it, that other people will no more be able justly to keep the rest away by virtue of its priority, than he who was the first to buy wine from a wine merchant can keep others from buying there also.

11. Furthermore, that which is, as it were, the final complement of proprietorship, upon the establishment of which proprietorship begins fully to exert its effects, is possession. By possession a certain thing is, either by a man’s own act or through another acting in his name, actually apprehended and occupied, as far as the nature of the thing admits, and the man so has it under his authority that he is able to exercise in action the force of ownership over it, and to make disposition of it. This possession begins in the bodily act of seizure, and that it may produce some effect there ought to be not merely in the mind of the one who seizes, the intention of taking possession of the thing by that act, but the act of seizure must be so ordered that others may be able to presume that the thing has been apprehended with that end in view. Now apprehension is understood to take place not only when the body is brought in contact with a thing, but frequently even by

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