The Law of War and Peace (1625)
by Hugo Grotius
Of Things Which Belong to Men in Common
I. The division of that which is our own.
NEXT in order among the causes of war is an injury actually received; and first, an injury to that which belongs to us. Some things belong to us by a right common to mankind, others by our individual right.
Let us begin with the right which is common to all men. This right holds good directly over a corporeal thing, or over certain actions. Corporeal things are either free from private ownership, or are the property of some one. Things not in private ownership are either such as cannot become subject to private ownership, or such as can. In order to understand the distinction fully, it will be necessary to know the origin of proprietorship, which jurists call the right of ownership.
II. The origin and development of the right of private ownership.
1. Soon after the creation of the world, and a second time after the Flood, God conferred upon the human race a general right over things of a lower nature. ‘All things,’ as Justin says, ‘were the common and undivided possession of all men, as if all possessed a common inheritance.’ In consequence, each man could at once take whatever he wished for his own needs, and could consume whatever was capable of being consumed. The enjoyment of this universal. right then served the purpose of private ownership; for whatever each had thus taken for his own needs another could not take from him except by an unjust act. This can be understood from the comparison used by Cicero in his third book On Ends: ‘Although the theatre is a public place, yet it is correct to say that the seat which a man has taken belongs to him.’
This primitive state might have lasted if men had continued in great simplicity, or had lived on terms of mutual affection such as rarely appears. Of these two conditions, one, exemplified in the community of property arising from extreme simplicity, may be seen among certain tribes in America, which have lived for many generations in such a condition without inconvenience. The second, again, exemplified in the community of property arising from affection, was formerly realized among the Essenes, afterward among the first Christians at Jerusalem; at the present time, also, by a goodly number who live an ascetic life.
Evidence showing the simplicity of the state of the first men s who were created is to be found in their nakedness. Among them there was ignorance of vices rather than knowledge of virtue, as Trogus says of the Scythians. ‘The most ancient mortals,’ says Tacitus, ‘were yet free from wicked excess of passion, living their lives without reproach, without crime, and in consequence without punishment or restraints.’ In Macrobius is the statement: ‘Among mankind at first there was a simplicity having no knowledge of evil, and hitherto quite devoid of guile.’ This simplicity seems to be called ‘incorruption’ s by the Hebrew sage, but ‘simplicity’ by the Apostle Paul, who opposes to it ‘craftiness,’ that is, crafty cunning. The only concern of these first men was the worship of God, whose symbol was the tree of life, as the ancient Hebrews explain; and this interpretation is supported by a passage of the Apocalypse. They lived easily on the fruits which the earth brought forth of its own accord, without toil.’
2. Men did not, however, continue to live this simple and innocent life, but turned their thoughts to various kinds of knowledge, the symbol for which was the tree of knowledge of good and evil,, that is, a knowledge of the things of which it is possible to make at times a good use, at times a bad use. This Philo calls the ‘middle understanding.’ In regard to it Solomon said. ‘God made man upright,’ that is, simple, ‘but they have sought out many inventions.’ ‘Men degenerated into craftiness,’ as Philo declares in the passage cited. Says Dio of Prusa in his sixth Oration: ‘But to the men who came after the first the craft and various inventions devised for the advantage of life proved not to be very useful; for men devoted their talents not so much to the cultivation of bravery and justice as to devising means of enjoyment.’
The most ancient arts, agriculture and grazing, were pursued by the first brothers, not without some interchange of commodities. From the difference in pursuits arose rivalry, and even murder; and at length, since the good were corrupted by contact with the wicked,’ there came the kind of life ascribed to the giants, that is given over to violence, like the life of those whom the Greeks characterized as ‘men that cultivate justice with the fist’ After the world had been cleansed by the Deluge, that brutish life was succeeded by a passion for pleasure, to which wine ministered; whence came also unlawful loves.
3. Harmony, however, was destroyed chiefly by a less ignoble vice, ambition, of which the symbol was the tower of Babel. Presently men divided off countries, and possessed them separately. Afterward, nevertheless, there remained among neighbors a common ownership, not of flocks to be sure, but of pasture lands, because the extent of the land was so great, in proportion to the small number of men that it sufficed without any inconvenience for the use of many;
- The field with bounds to mark, or limits set,
Was not allowed.
Finally, with increase in the number of men as well as of flocks, lands everywhere began to be divided, not as previously by peoples, but by families. Wells,’ furthermore a resource particularly necessary in a dry region, one well not sufficing for many were appropriated by those who had obtained possession of them. This is what we are taught in sacred history; and it is quite in accord with what philosophers and poets, whose testimony we have presented. elsewhere, have said concerning the first state of ownership in common, and the distribution of property which afterward followed.
4. From these sources we learn what was the cause on account of which the primitive common ownership, first of movable objects, later also of immovable property, was abandoned. The reason was that men were not content to feed on the spontaneous products of the earth, to dwell in caves, to have the body either naked or clothed with the bark of trees or skins of wild animals, but chose a more refined mode of life; this gave rise to industry, which some applied to one thing, others to another.
Moreover, the gathering of the products of the soil into a common store was hindered first by the remoteness of the places to which men had made their way, then by the lack of justice and kindness; in consequence of such a lack the proper fairness in making division was not observed, either in respect to labor or in the consumption of the fruits.
5. At the same time we learn. how things became subject to private ownership. This happened not by a mere act of will, for one could not know what things another wished to have, in order to abstain from them and besides several might desire the same thing-but rather by a kind of agreement, either expressed, as by a division, or implied, as by occupation.” In fact, as soon as community ownership was abandoned, and as yet no division had been made, it is to be supposed that all agreed, that whatever each one had taken possession of should be his property.’ ‘It has been granted,’ says Cicero, ‘that each may prefer to acquire for himself, rather than for another, whatever contributes to the advantage of life; and in this there is no conflict with nature.’ To this should be added the sentence of Quintilian: ‘If this is settled, that whatever has come into a man’s possession is the property of the possessor, certainly what is rightfully possessed is not taken away without injustice.” And when the ancients called Ceres a ‘lawgiver’ and named her sacred rites the Thesmophoria they implied that out of the division of lands a new law had arisen.
III. That certain things, such as the sea both as a whole and in its _principal divisions, cannot become subject to private ownership, and why.
1. Having laid down these fundamental principles, we say that the sea, viewed either as a whole or in its principal divisions, cannot become subject to private ownership. Since, however, such owner ship is conceded by some in the case of individuals but not in the case of nations, we bring forward proof, first on moral grounds.
The cause which led to the abandonment of common ownership here ceases to be operative. The extent of the ocean is in fact so great that it suffices for any possible use on the part of all peoples, for drawing water, for fishing, for sailing. The same thing would need to be said, too, about the air, if it were capable of any use for which the use of the land also is not required, as it is for the catching of birds.’ Fowling, therefore, and similar pursuits, are subject to the law laid down by him who has control over the land.
2. The same conclusion must be reached in regard to the Syrtes. These are absolutely devoid of cultivable soil; they have no value except as depositories of sand, the supply of which is inexhaustible.
There is, furthermore, a natural reason which forbids that the sea, considered from the point of view mentioned, should become a private possession. The reason is that occupation takes place only in the case of a thing which has definite limits.’ For this reason Thucydides calls unoccupied land ‘devoid of boundaries,’ and Isocrates characterized the land taken over by the Athenians as ‘having boundaries fixed by us.’ Liquids, on the contrary, have no limits in themselves.’ Water,’ says Aristotle, ‘is not bounded by a boundary of its own substance.’ Liquids therefore cannot be taken possession of unless they are contained in something else; as being thus contained, lakes and ponds have been taken possession of, and likewise rivers, because they are restrained by banks. But the sea is not contained by the land, since it is equal to the land, or larger; for this reason the ancients said that the land is bounded by the sea. ‘The ocean has been thrown about the land as a fetter’ are the words of Apollonius as quoted by Philostratus.
In Gellius, Sulpicius Apollinaris asks, ‘What can be said to be on this side of the Ocean, surrounding and encircling, as it does, all lands from all sides?’ Later he adds: ‘Since in fact the Ocean flows about all lands on all sides, nothing is on this side of it; but since all lands are enclosed by the circuit of its waters, all things which are confined within its shores are in the midst of it.’ Marcus Acilius, the consul, in his speech to his soldiers, which is found in Livy, refers to ‘the Ocean, which with its embrace fixes the boundary of the world.’ In Seneca’s Suasoriae the ocean is said to be the bond of the whole world and the bulwark of the earth, while Lucan speaks of it as ‘the earth-encircling wave.’
A division of the sea, further, is not to be imagined; for when the lands were first divided the sea was still for the greater part unknown. In consequence, no system can be conceived by which races so widely separated could have come to an agreement regarding such a division.
3. Those things, therefore, which were common to all men, and were not divided in the first division, no longer pass into private ownership through division, but through occupation. And they are not divided until after they have become subject to private ownership.
IV. That unoccupied lands become the property of the individuals who become occupants of them, unless they have been taken over as a whole by a people.
Let us proceed to the things which can be made subject of private ownership, but have not yet become private property. Of such sort are many places hitherto uncultivated,’ islands in the sea,’ wild animals, fish, and birds.
In this connection two points must be noted. Possession may be taken in two ways, either of an undivided whole, or by means of individual allotments. The first method is ordinarily employed by a people, or by the ruler of a people; the second, by individuals. Possession by individual allotments, nevertheless, is more often taken in consequence of a grant than by free occupation.
If, however, anything which has been occupied as a whole has not yet been assigned to individual owners, it ought not on that account to be considered as unoccupied property; for it remains subject to the ownership of the first occupant, whether a people or a king. To this class ordinarily rivers, lakes, ponds, forests, and rugged mountains belong.
V. That wild animals, fish, and birds belong to the man who has caught them, unless a law forbids.
In regard to wild animals, fish, and birds, this observation needs to be made, that whoever has control over the lands and waters can by his order prohibit any person from taking wild animals, fish or birds, and thereby acquiring them. Such an order is binding even upon foreigners, the reason being that for the government of a people it is morally necessary that foreigners who mingle with them even temporarily-as happens when foreigners enter a country should conform to the institutions of that people.
The principle stated is not at variance with what we often read in the Roman law, that according to the law of nature, or the law of nations, a man is free to hunt such animals. This holds true, in fact, so long as municipal law does not intervene; thus the Roman law left in their primitive condition matters concerning which different nations have established different usages. When, however, municipal law has laid down a different rule, the law of nature itself prescribes that this must be obeyed. For although municipal law cannot enjoin anything which the law of nature forbids, or forbid what the law of nature enjoins, it can nevertheless set limits to natural liberty, and forbid what by nature was permitted; thus, through exercise of the power which belongs to it, municipal law can by anticipation prevent an acquisition of ownership which by the law of nature might have been permitted.
VI. That in case of necessity men have the right to use things which have become the property of another, and whence this right comes.
1. Now let us see whether men in general possess any right over things which have already become the property of another.
Some perchance may think it strange that this question should be raised, since the right of private ownership seems completely to have absorbed the right which had its origin in a state of community of property. Such, however, is not the case. We must, in fact, consider what the intention was of those who first introduced individual ownership; and we are forced to believe that it was their intention to depart as little as possible from natural equity. For as in this sense even written laws are to be interpreted, much more should such a point of view prevail in the interpretation of usages which are not held to exact statement by the limitations of a written form.
2. Hence it follows, first, that in direst need the primitive right of user revives, as if community of ownership had remained, since in respect to all human laws the law of ownership included-supreme necessity seems to have been excepted.
3. Hence it follows, again, that on a voyage, if provisions fail, whatever each person has ought to be contributed to the common stock. Thus, again, if fire has broken out, in order to protect a building belonging to me I can destroy a building of my neighbor. I can, furthermore, cut the ropes or nets in which my ship has been caught,’ if it cannot otherwise be freed. None of these rules was introduced by the civil law, but they have all come into existence through interpretations of it.
4. Even among the theologians the principle has been accepted that, if a man under stress of such necessity takes from the property of another what is necessary to preserve his own life, he does not commit a theft.
The reason which lies back of this principle is not, as some allege, that the owner of a thing is bound by the rule of love to give to him who lacks; it is, rather, that all things seem to have been distributed to individual owners with a benign reservation in favor of the primitive right. For if those who made the original distribution had been asked what they thought about this matter they would have given the same answer that we do. ‘Necessity,’ says Seneca the father, ‘the great resource of human weakness, breaks every law,’ meaning, of course, human law, or law constituted after the fashion of human law. Cicero in his eleventh Philippic averred ‘Cassius has set out for Syria, a province belonging to another, if men observed written laws; but since these have been suppressed, it becomes his province by the law of nature.’ In Curtius we read ‘In a common disaster each man has whatever falls to his lot.’
VII. That the right, in case of necessity, to use things belonging to others, holds when the necessity is in no way avoidable.
Admonitions, however, must be kept in mind, that this permission to use property belonging to another may not be carried beyond proper limits.
The first is, that every effort should be made to see whether the necessity can be avoided in any other way, as, for example, by appealing to a magistrate, or even by trying through entreaties to obtain the use of the thing from the owner. Plato authorizes the taking of water from a neighbor’s well only in case one in search of water has dug on his own land clear to the underlying stratum of chalk. Solon gives such authorization only in case one has dug on his own land to a depth of forty cubits; in regard to Solon’s rule Plutarch adds: ‘He thought to minister to need, not to show indulgence to laziness.’ In his answer to the people of Sinope Xenophon said; ‘Wherever the right to purchase is not granted to us, whether on Greek or on barbarian soil, we take what we have need of, not from lawlessness but from necessity.’
VIII. That the right, in case of necessity, to use things belonging to another, holds except when the possessor has equal need.
In the second place, this right cannot be conceded if the owner himself is under an equal necessity; for in like circumstances the position of the owner gives him the preference. ‘He is not foolish,’ says Lactantius, ‘who has not, even for his own safety, pushed a shipwrecked man from his plank, or a wounded man from his horse; for he has kept himself from the inflicting of an injury, which would be a sin; and to avoid such a sin is wisdom.’ Cicero had said, in his third book On Duties: ‘Should not the wise man, therefore, if he is exhausted with hunger, take food. away from another man who is of no account? By no means. For my life is no more precious to me than the possession of such a spirit that I would not harm any one for the sake of my own advantage.’ In Curtius we read ‘The man who will not part with his own has a better case than the man who demands what belongs to another.’
IX. That there is, further, an obligation to restore the things of another used in case of necessity, whenever restoration shall be possible.
In the third place, restitution of another’s property which has been used in case of necessity must be made whenever this can be done.
There are some who hold a different opinion. Their plea is, that the man who has availed himself of his own right is not bound to make restitution. But it is nearer the truth to say, that the right here was not absolute, but was restricted by the burden of making restitution, where necessity allowed. Such a right is adequate to maintain natural equity against any hardship occasioned by private ownership.
X. Application of this right in the case of wars.
From what has been said we can understand how it is permissible for one who is waging a just war to take possession of a place situated in a country free from hostilities. Such procedure, of course, implies these conditions, that there is not an imaginary but a real danger that the enemy will seize the place and cause irreparable damage; further, that nothing be taken except what is necessary for protection, such as the mere guarding of the place, the legal jurisdiction and revenues being left to the rightful owner; and, finally, that possession be had with the intention of restoring the place as soon as the necessity has ceased.’Henna was retained by an act either culpable, or justified by necessity,’ says Livy; for whatever departs in the least degree from necessity is culpable. When the Greeks who were with Xenophon were in pressing need of ships, on the advice of Xenophon himself they seized the vessels that were passing by, yet took possession in such a way that they kept the cargoes unharmed for the owners, furnished provisions also to the sailors, and paid passage money.
The first right then that, since the establishment of private ownership, still remains over from the old community of property, is that which we have called the right of necessity.
XI. That men possess the right to use things which have become the property of another, for a purpose which involves no detriment to the owner.
A second right is that of innocent use.’Why,’ says Cicero, ‘when a man can do so without loss to himself, should he not share with another things that are useful to the recipient and can be spared without annoyance to the giver?’ Thus Seneca declares that opportunity to get a light for a fire is not to be considered a favor. In Plutarch we read the following, in the seventh book of his Symposiacs: ‘It is not right for us to destroy food, when we ourselves have more than enough; or to stop up or conceal a spring, when we have drunk all we wanted; or to obliterate the signs which mark the route for ships, or signs on land which have been useful to us.’
XII. Hence the right to the use of running water.
Thus a river, viewed as a stream, is the property of the people through whose territory it flows, or of the ruler under whose sway that people is. It is permissible for the people or king to run a pier out into it, and to them all things produced in the river belong. But the same river, viewed as running water, has remained common property, so that any one may drink or draw water from it.
- Who would forbid from lighted torch a light
To take, and guarded hold in hollow sea
The waters vast?
says Ovid. In the same author Latona thus addresses the Lycians:
- Why water me deny? Common to all
The use of water is.
There also he calls the waves a public blessing, that is a blessing common to mankind, using a less appropriate meaning of the word ‘public.’ In that sense certain things are said to be public by the law of nations; and with this meaning Virgil referred to the wave as open to all men.
XIII. Hence, also, the right of passage over land and rivers, with explanation.
1. Similarly also lands, rivers, and any part of the sea that has become subject to the ownership of a people, ought to be open to those who, for legitimate reasons, have need to cross over them; as, for instance, if a people has been forced to leave its own territories and is seeking unoccupied lands, or desires to carry on commerce with a distant people, or is even seeking to recover by just war what belongs to it. In such cases the reason is the same as that stated above; it is altogether possible that ownership was introduced with the reservation of such a uses which is of advantage to the one people, and involves no detriment to the other. Consequently it must be held that the originators of private ownership had such a reservation in view.
2. A noteworthy example we find in the history of Moses. When he found it necessary to pass through the territories of others, he offered first to the Idumaeans, then to the Amorites, these stipulations, that he would follow the king’s highway and would not turn aside into private possessions; that if he should have need of anything belonging to them he would pay them a fair price. When these terms were refused, for that reason he waged a just war against the Amorites. ‘A passage void of wrong,’ says Augustine, ‘which according to the most equitable law of human society ought to have been freely granted, was refused.’
3. The Greeks with Clearchus said: ‘We shall return home, if no one interferes with us; but if any one does us injury we shall endeavor, with the help of the gods, to defend ourselves.’
With much the same point of view Agesilaus, when on his return from Asia he had reached the Troad, asked whether they wished him to pass through as a friend or as an enemy. Lysander, too, put the question to the Boeotians, whether they wished him to pass through with spears raised, or lowered. According to Tacitus the Batavians announced to the inhabitants of Bonna, that ‘their march would be void of harm if no one should resist them, but if arms should be taken up against them they would make a way with the sword.’
When Cimon was bringing help to the Lacedaemonians, he led his forces through the Corinthian territory. He was criticized by the Corinthians for not having first obtained permission of the state; they declared that one who knocks at the door of another does not enter without the owner’s permission. ‘But,’ he replied, you did not knock at the doors of the Cleonians and Megarians, but you broke them down, thinking that all places ought to be open to the stronger.’
The correct view is that which lies between extremes. It holds that permission to pass ought first’ to be demanded; but, if it is refused, passage can be made by force. So when Agesilaus on his return from Asia demanded from the king of Macedonia permission to pass, and the latter had said that he would take the matter under advisement, Agesilaus replied: ‘Let him take it under advisement; in the meantime we shall go across.’
4. Furthermore no one will be justified in raising the objection that he fears the numbers of those passing through. My right is not extinguished by your fear; all the less in this case, for the reason that there are precautions which can be taken, as, for example, by arranging that troops be sent across in separate detachments; or, as the people of Colonia Agrippina proposed to the Germans, without their arms,’ a practice in vogue in ancient times, also in the country of the Eleans, as Strabo observed. Another precaution is, for the one who grants the passage to hire suitable garrisons for his own protection, at the expense of him who makes the passage; or to see that hostages are given,’ following the example of Seleucus, who demanded hostages of Demetrius in return for the permission to remain within the limits of his empire.
Thus, again, fear of the ruler, against whom the one requesting passage is waging a lawful war, cannot be urged as a valid excuse for refusing passage. Equally inadmissible is it to say that passage could be had by another route, for any one might say the same thing, and in that way the right of passage would be altogether done away with. But it is enough if passage is demanded without evil intent, by the route which is nearest and most convenient.
If he who wishes to pass is obviously commencing an unlawful war, or if he is bringing enemies of mine with him,’ T can refuse the passage; it would be right to meet him on his own ground, and hinder his passage.
5. Such passage, furthermore, ought to be conceded not only for persons but also for merchandise. No one, in fact, has the right to hinder any nation from carrying on commerce with any other nation at a distance. That such permission be accorded is in the interest of human society and does not involve loss to any one; if one fails to realize an anticipated gain, to which he is not entitled, that ought not to be accounted a real loss. To the evidence which we have elsewhere cited upon this point, we shall add an excerpt from Philo:
The sea in every part is traversed without danger by merchant vessels, carrying the commerce which has grown up between nations out of a natural desire to maintain a social relationship, while the abundance of some ministers to the need of others.’ For envy has never gained the ascendancy either over the whole world, or over any large part of it.
Another bit of testimony comes from Plutarch, who speaks of the sea in the following words: ‘This element has united and has rounded out our life, which without it had been savage and without commercial intercourse; supplying, as it does, through mutual help what was lacking, and through the interchange of commodities fostering a social relationship and friendliness.’
In harmony with this is the statement of Libanius: ‘God did not bestow all products upon all parts of the earth, but distributed His gifts over different regions, to the end that men might cultivate a social relationship because one would have need of the help of another. And so He called commerce into being, that all men might be able to have common enjoyment of the fruits of earth, no matter where produced.’ Euripides also in the Suppliants, where he represents Theseus as speaking, reckons navigation among the things which human reason has devised for the common good., using these words:
- The sea we traverse, that by interchange
The lack of our own land we may supply.
In Florus are the words: ‘If you destroy commerce, you sunder the alliance which binds together the human race.’
XIV. Whether a tax may be imposed upon merchandise passing through a country.
1. But the question is raised, whether merchandise in transit through a country, transported across the land, or by river, or over a part of the sea which may be considered as belonging with the land, can be made subject to taxes by him who holds the sovereign power in the country.
Surely equity does not permit the imposition of any burdens that have no relation to the merchandise actually in transit. Similarly, a capitation tax levied on citizens to help carry the expenses of the state cannot be collected from foreigners who pass through.
2. If, however, expenses are incurred in furnishing protection for the merchandise, or other burdens also are increased on account of it, then a tax may be levied upon the merchandise in order to make reimbursement, provided that in determining the tax the amount actually required shall not be exceeded;’ for upon this depends the justice of a tax as well as of tribute.
In accordance with this principle King Solomon received a tax on horses and on linen thread which passed across the Isthmus of Suez. Of frankincense Pliny says: ‘It cannot be exported except through the territory of the Gebanites, and so a tax is paid to their king.’ Thus the people of Marseilles were enriched from the canal which Marius had dug from the Rhone to the sea, ‘collecting a tax a from those who went up or down the river by ship,’ as Strabo says in his fourth book. In the eighth book the same author tells us that the people of Corinth even from the most ancient times collected a tax on merchandise which, in order to avoid the circuitous voyage around Cape Malea, was carried across the land from sea to sea. In the same way the Romans received toll for the crossing of the Rhine. ‘Toll is paid even for crossing on bridges,’ says Seneca. In respect to the passage of rivers, the books of the jurists are full.
3. However, it frequently happens that the tax imposed is unfair. The emirs of the Arabs were charged with this abuse by Strabo, who adds: ‘It is, in fact, difficult, among peoples that are powerful and wild, to obtain the fixing of a tax that will not be burdensome to the trader.’
XV. The right of temporary sojourn.
1. To those who pass through a country, by water or by land, it ought to be permissible to sojourn for a time, for the sake of health, or for any other good reason; for this also finds place among the advantages which involve no detriment. So in Virgil, when the Trojans were forbidden to sojourn in Africa, Ilioneus dared to appeal to the gods as judges. The Greeks viewed as well founded the complaint of the people of Megara against the Athenians, who forbade the Megarians to enter their harbors, ‘contrary to common right,’ as Plutarch says. To the Lacedaemonians no cause for war seemed more just.
2. A natural consequence of this is that it is permissible to build a temporary hut, for example on the seashore, even if we admit that possession of the coast has been taken by a people. For when Pomponius said that an order of the praetor must be obtained before one would be allowed to erect any building on a public shore or in the sea reference was made to permanent structures. To such the lines of the poet refer:
- The fish are conscious that a narrower bound
Is drawn the seas around
By masses huge hurl’d down into the deep.
XVI. Those who have been driven from their homes have the right to acquire a permanent residence in another country, in submission to the government there in authority.
Furthermore a permanent residence ought not to be denied to foreigners who, expelled from their homes, are seeking a refuge, provided that they submit themselves to the established government and observe any regulations which are necessary in order to avoid strifes. This fair distinction the divine poet observes when he represents Aeneas as offering the following terms:
- Latinus, as my sire, his arms shall keep,
And as my sire his sovereign sway shall hold
In the work of the Halicarnassian, Latinus himself says that the cause of Aeneas is just, if Aeneas had been forced to come to his county by the lack of an abiding-place.’It is characteristic of barbarians to drive away strangers,’ says Strabo, following Eratosthenes; and in this respect the Spartans failed to gain approval. In the opinion of Ambrose, also, those who keep foreigners out of their city are by no means worthy of approval.
In conformity with the principle stated the Aeolians received the people of Colophon; the Rhodians, Phorbas and his companions; the Carians, the people of Melos; the Lacedaemonians, the Minyae; and the Cumaeans, others who carne to them. But in. regard to the Minyae, when, after being admitted, they demanded a share in the government, Herodotus justly says: ‘They were insolent and did what it was not right to do’; Valerius Maximus declared that they returned a kindness by an injury.
XVII. The right of possession over desert places in respect to foreigners, and how this must be understood.
Again, if within the territory of a people there is any deserted and unproductive soil, this also ought to be granted to foreigners if they ask for it. Or it is right for foreigners even to take possession of such ground, for the reason that uncultivated land ought not to be considered as occupied except in respect to sovereignty, which remains unimpaired in favor of the original people.
To the Trojans seven hundred’ acres of hard, rough land were given, as Servius notes, by the Latin aborigines. In the seventh. Oration of Dio of Prusa we read: ‘They who bring under cultivation an untilled portion of the earth commit no wrong.’
Once the Ansibarii cried out: ‘As the heavens were granted to the gods, so the lands of earth were granted to the race of mortals, and all lands that are unoccupied are public property. Nay more, the barbarians raised their eyes to the sun and the stars and asked these, as if speaking face to face, whether they wished to look upon soil unoccupied; rather might they pour the sea over it against the monopolisers of the earth. However, the Ansibarii made an unfortunate application of these general principles to the case in hand, for the lands requested were not vacant, but furnished pasturage for the flocks and herds of the soldiers; and this consideration gave the Romans a just cause for refusal. With no less justice the Romans formerly asked the Senonian Gauls, ‘What right they had to demand land from the rightful owners, or threaten these with war?’
XVIII. The right to such acts as human life requires.
After the common right which relates to things follows the common right which relates to acts.
The common right relating to acts is conceded either directly or by supposition. It is conceded directly in respect to acts indispensable for the obtaining of the things without which life cannot be comfortably lived. Here in fact the same degree of necessity is not required as for taking another’s property; for it is not now a question of what may be done against the will of an owner, but rather of the mode of acquiring things with the consent of those to whom they belong; provided only that no obstacle be interposed by the passing of a law or by conspiracy. Such a hindrance, in fact, is at variance with the nature of society in relation to those matters of which I have spoken. This is what Ambrose calls ‘to separate men from relation with their common parent, to refuse fruits freely produced for all, and to do away with the community of life.’ For we are here dealing not with things which are superfluous and ministrant to pleasures only, but with things which life requires, as food, clothing, and medicines.
XIX. The right to such acts as human life requires includes the right to buy the things that are necessary.
We affirm, therefore, that all men have the right to buy such things at a fair price, unless they are needed by the person from whom they are sought; thus in times of extreme scarcity the sale of grain is forbidden.
Not even in circumstances of so great need, however, can foreigners, who have once been admitted to a country, be expelled; but Ambrose shows, in the passage already cited, that a common misfortune must be endured in common.
XX. T he right to such acts as human life requires does not oblige a man to sell what belongs to him.
But there is not an equally valid right obliging a man to sell what belongs to him; for every one is free to decide what he will or will not acquire.
Thus the Belgians formerly did not permit the importation of wine and other foreign wares. Of the Nabataean Arabs Strabo says Some goods it is permissible to import,’ but not others.’
XXI. The right to such acts as human life requires includes the right to seek marriages in foreign countries; explanation.
1. In this right, of which we have spoken, we think there is included also liberty to seek and contract marriages among neighboring peoples; as, for example, in case a large number of men has been expelled from one place and has come to another. Although, to be sure, it is not entirely repugnant to human nature for a man to live without a woman, nevertheless this is repugnant to the nature of most men. Celibacy is suited only to those who possess superior endowments.
Men ought not, therefore, to be cut off from the opportunity to secure wives. In Livy Romulus urges his neighbors ‘that as men they should not be reluctant to mingle their blood and race with men.’ In the same author, Canuleius says: ‘We ask the right of marriage, which is customarily granted to neighbors and to foreigners.’ In the opinion of Augustine, ‘The victor might by right of war justly secure marriages which had been unjustly denied.’
2. The civil laws of some peoples, which deny the right of marriage to foreigners, either support their contention by this consideration, that at the time when the laws were passed there were no peoples without an abundance of women, or else they do not treat of marriages of all kinds but only of those which are regular, that is, marriages which produce certain special effects in civil law.
XXII. The right to do those things which are permitted without distinction to foreigners.
A common right by supposition relates to the acts which any people permits without distinction to foreigners; for if under such circumstances a single people is excluded, a wrong is done to it. Thus if foreigners are anywhere permitted to hunt, fish, snare birds, or gather pearls, to inherit by will, to sell property, and even to contract marriages in case there is no scarcity of women, such rights cannot be denied to one people alone, except on account of previous wrong-doing.
It was for this reason that the rest of the Jews took away the right of intermarriage from members of the tribe of Benjamin.
XXIII. Such a right must be understood as applying only to things.
permitted as it were by the law of nature, not granted as a favor What we have said about permissible acts must be understood as applying to acts which have been permitted as deriving from the force of natural liberty, which have not been annulled by any statute law; not as applying to acts which have been permitted by favor, as an exception to the law. In the refusal of a favor there is no ‘injustice.
In this way, we believe, it is possible to reconcile what Molina said, after Franciscus de Victoria, and as if in opposition to him.
XXIV. Whether a contract is permissible with a people that it should sell its crops to those with whom it has made the contract, and not to others.
I recall that the question has been raised, whether it is permissible for a people to make an agreement with another people to sell to it alone products of a certain kind, which do not grow elsewhere.
I think that this is allowable, if the people which buys is prepared to sell to others at a fair price. It makes no difference, in fact, to other nations, from whom they buy what satisfies the demands of nature. It is lawful, however, for one people to anticipate another in obtaining a pecuniary advantage, especially if there is a reason; As, for instance, if the people which has obtained the concession has taken the other under its protection and on that account is incurring expense.
Such an arrangement to purchase, made with the intent of which I have spoken, is not at variance with the law of nature, although in practice it is sometimes forbidden by municipal law in the public interest.