The Law of War and Peace (1625)
by Hugo Grotius
Of Original Acquisition of Things, With Special Reference to the Sea and Rivers
I. That original acquisition is accomplished through division or through occupation.
FROM the view-point of individual right a thing becomes our own through acquisition, either original or derivative.
Formerly, when the human race could assemble, primary acquisition could take place also through division, as we have said; now it takes place through occupation only.
II. In this connection other modes of acquisition, as the granting of an incorporeal right, are excluded from consideration.
Some one may perchance say that a kind of primary right is acquired through the granting of a servitude, or the giving of a pledge. To him who carefully weighs the matter, however, it will become apparent that under such conditions there is no new right except in form; for in essence the right was present in the proprietary right of the owner
III. The forming of a new property from existing materials is also excluded from consideration.
To the means through which acquisition may be accomplished Paul the jurist adds also this which seems altogether consistent with nature ‘that we have caused something to come into existence.’
In nature, however, nothing is produced except from matter which previously existed. If, then, the material belonged to us, the ownership of that which is produced will continue, even though a new form is presented. If the material belonged to no one, in that case acquisition will be classed under the head of acquisition by occupation. On the other hand, if the material used was the property of another, the thing produced naturally does not belong to us alone, as will become apparent later.
IV. Occupation is twofold, having relation to sovereignty and to ownership; this distinction is explained.
1. It is, then, occupation which since those primitive times has been, and remains, the only natural and primary mode of acquisition with which we are concerned.
Now in respect to that which, in a proper sense, belongs to no one, there are two possible types of possession, sovereignty and ownership, in so far as ownership is distinguished from sovereignty. The difference between the two types is thus brought out by Seneca: ‘To kings belongs the power over all things; to individuals, proprietorship.’ Dio of Prusa makes the distinction clear in this way ‘The territory belongs to the state, but none the less on that account does each person in it have his own property.’
Sovereignty is customarily extended over two kinds of subject matter, The one, primary, consists of persons; this alone is sometimes in itself sufficient, as in the case of an army of men, women, and children seeking new places of habitation. The other, secondary, is extended over the place, which is called territory.
2. Although sovereignty and ownership are generally acquired by a single act, they are nevertheless distinct. Consequently ownership passes not only to citizens but also to foreigners, white the sovereignty remains in the hands of him who previously held it. Siculus, in his work On the Condition of the Fields, says: ‘When the lands assigned to colonies proved to be insufficient, those who were in charge of the allotment and division assigned to future citizens lands which they had taken from neighboring territories. The jurisdiction over the lands which were assigned nevertheless remained under the control of those from whose territory they were taken.’
Demosthenes in his speech On Halonnesus calls the lands owned by residents of a territory ‘properties,’ and those in a foreign territory ‘non-resident properties.’
V. That the taking possession of movable things can be prevented by law.
We said above that in a place over which sovereignty has already been asserted the right to acquire movable things through occupation can be prevented by the municipal law.
This right exists, in fact, by permission of the law of nature, not by a positive provision that such permission should always be granted; for no such provision is demanded by the requirements of human society.
If some one says that there seems to be a law of nations implying such permission, I shall answer that, although in some parts of the world this is, or has been, the common usage, nevertheless such usage does not have the force of an agreement between nations, but is the expression of a law received by several countries individually, which can be abrogated by each of them. There are also many other practices which jurists, when they are dealing with the division of property and the acquisition of ownership, consider as belonging to the law of nations.
VI. On what right the ownership of property by infants and by insane persons rests.
It must be noted, further, that if we have in view the law of nature alone, ownership is restricted to those who are possessed of reason. But in the common interest the law of nations introduced the provision, that both infants and insane persons should be able to acquire and retain ownership the human race, as it were, meanwhile representing them.
Human laws indisputably have it in their province to go further than nature in regard to many points, but never to go contrary to nature. Hence this type of ownership, which by common acceptation of civilized nations has been introduced in favor of infants and those of similar condition, is limited to the first act, as the Schools say, and cannot extend to the second act; that is, it covers the right of proprietorship, but not the right of the owner himself to use what he owns. For alienation, and other acts similar thereto, by their very nature presuppose the action. of a will controlled by reason, and in such persons a will subject to reason cannot exist. At this point you might not inappropriately refer to the statement of the Apostle Paul, that an heir, although the owner of an ancestral estate, while he is under age, differs in no respect from the bond-servants, of course as regards the exercise of the right of ownership.
We commenced above to say something about the sea; this ought now to be completed.
VII. That rivers can be acquired by occupation.
By occupation rivers can be acquired even though neither their upper nor their lower course is included in the same territory, but they are connected with water at the upper and the lower end, or with the sea. It is sufficient that the greater part, that is that the sides, shall be enclosed by banks, and that the river by itself shall be small in extent in comparison with the land.
VIII. That a part of the sea can likewise be acquired.
In the light of the example just given it would appear that the sea also can be acquired by him who holds the lands on both sides, even though it may extend above as a bay, or above and below as a strait, provided that the part of the sea in question is not so large that, when compared with the lands on both sides, it does not seem a part of them.
The same right, further, which is conceded to a single people or king, appears to be conceded also to two or three, if they have wished to occupy jointly a sea situated between them; in this way, in fact, rivers which flow between two peoples have been jointly occupied, and then divided.
IX. That formerly in the countries constituting the Roman Empire such ownership of a part of the sea was not conceded.
1. It must be admitted that, in the parts of the world that were known in connection with the Roman Empire, from the earliest times even down to Justinian, it was not permitted by the law of nations that the sea be acquired by states through occupation, even. in respect to the right to fish. Heed should not be paid to those who think that when, in the Roman law, the sea is spoken of as common to all, the meaning is that the sea is the common possession of all Romans. For in the first place the expressions are so general that they do not admit of such restriction. The expression in Latin meaning ‘the sea is common to all’ is interpreted by Theophilus in Greek, ‘is common to all men.’ Ulpian said that by nature the sea lies open to all, and so belongs to all just as the air does. Celsus declared that the use of the sea is common to all men.
The jurists, furthermore, clearly distinguish the public possessions of a people, in which rivers, too, are included, from things that are common. Thus we read in the Institutes,’ By the law of nature some things are common to all, some things are public property. .,, Common to all by the law of nature are the following: air, running water, the sea, and, in consequence, the shores of the sea. All rivers and harbors, however, are public property.’ The statement by Theophilus is: ‘Therefore by the law of nature these things are common to all men, the air, ever-flowing water, the sea’; presently he adds, ‘But all rivers and harbors are public possessions, and these now belong to the Roman people.’
2. Of the shores of the sea r Neratius said that they are not public possessions in the sense that those things are which have become the possession of a people by inheritance, but as those things which were at first the gift of nature and have not yet become subject to the ownership of any one, that is, not even of a people. This opinion is clearly at variance with what Celsus wrote: ‘I think that the seashores, over which the Roman people possesses sovereign power, are the property of the Roman people, but that the use of the sea is common to all men.’
These opposing views can evidently be reconciled if we say that Neratius is speaking of the seashore in so far as its use is necessary for those sailing the sea, or passing by, while Celsus is speaking of it with reference to possession for a use unlimited in time, as for a permanent structure. In the latter case, Pomponius tells us a permit was wont to be obtained from the praetor, just as a permit was required for the construction of a building in the sea, that is, in the part nearest the shore, which is reckoned as belonging to the shore.
X. That nevertheless the law of nature does not present any obstacle to such acquisition in respect to a part of the sea which is, as it were, shut in by lands.
1. Although what was just said is true, nevertheless it has resulted from established practice rather than from natural reason that the sea was not occupied, or could not lawfully be occupied, in the sense in which we have spoken. A river also is public property, as we know, and yet the right to fish in a branch of a river can be acquired by an individual by occupation. But even concerning the sea Paul said: ‘If a man does have a right of property in it, he is entitled to a decree of court protecting him in his possession’; the reason is that the case affects a private and not a public interest, since the question at issue concerns a right of user, which is inherent in a private, not a public matter. Paul’s statement without doubt refers to a small portion of the sea a which is admitted into a private estate; we have read that such use of the sea was made by Lucullus and others. Of Gaius Sergius Orata, Valerius Maximus says: ‘He made seas his individual possessions by shutting up waters in the inlets.’
Afterward, in opposition to the opinions of the earlier jurists, Leo the Emperor extended the same law to the proqnra, that is, the waters in front of villas, on the Thracian Bosporus, so that these waters also could be shut in by certain barriers, which they called epocaV (bars), and could thus be claimed as private property.
2. Now if a part of the sea can be added to estates of individuals, provided, of course, that it is enclosed and is so small that it can be considered a portion of an estate, and if the law of nature presents no obstacle to such procedure, why, also, may not a part of the sea enclosed by shores belong to that people, or to those peoples, to which the shores belong, provided that part of the sea, when compared in extent with the land of the country, is not larger than an enclosed inlet of the sea compared with the size of the private estate? That no objection can be raised on the score that the sea is not enclosed on all sides, can be understood from the example of the river and the admission of the sea into a villa.
3. But many things, which were permitted by nature, universal customary law, by a kind of common understanding, has been able to prohibit. Consequently, wherever such a law is in force, and has not, by common consent, been abrogated, a portion of the sea, however small and almost enclosed by shores, cannot become subject to the ownership of any people.
XI. In what way such possession may be taken, and how long it will last.
It must also be noted that if in any place this universal customary law in regard to the sea has not been accepted, or has been abrogated, from the mere fact that a people has taken possession of the land, the inference would nevertheless not be warranted that it has obtained possession of the sea also; that, further, an act of the mind is not sufficient, but that there must be an outward act from which the taking of possession may be understood.
But if, on the other hand, possession resulting from occupation is abandoned, the sea again comes under the law of nature, that is, it is restored to common use. This opinion Papinian gave regarding the right to build on a shore and to fish in a branch of a river.
XII. That such possession does not give the right to impede innocent passage.
It is certain that one who has occupied a part of the sea cannot hinder navigation which is without weapons and of innocent intent, when such a passage cannot be prevented by land, where it is generally less necessary and more productive of damage.
XIII. That sovereignty can he acquired over a part of the sea, and in what way.
1. It has, however, been a fairly easy matter to extend sovereignty only over a part of the sea without involving the right of ownership; and I do not think that any hindrance is put in the way of this by the universal customary law of which I have spoken. In ancient times the Argives complained to the Athenians because the Athenians had permitted the Spartans, enemies of the Argives, to pass through their sea; the Argives alleged a violation of the treaty, in which it had been provided that neither of the two peoples should permit the enemies of the other to pass ‘through places under its jurisdiction.’
During the year’s truce in the Peloponnesian war, furthermore, permission was granted to the people of Megara to sail on ‘the sea belonging to their own land and that of their allies.’ Similarly, Dio Cassius, in his forty-second book, spoke of ‘all the sea which belongs to the Roman Empire.’ Themistius refers to the Roman Emperor as ‘holding the land and the sea as subject to himself.’ Oppian thus addresses the Emperor:
- For subject to thy law sea’s waters roll.
Dio of Prusa, again, in his second speech to the people of Tarsus, said that many favors had been bestowed on that state by Augustus, among them ‘the jurisdiction over the river Cydnus and the nearest part of the sea.’ In Virgil we read:
- That they in uncontested sway the sea,
The lands, should hold.
Gellius writes of the ‘rivers that flow into the sea, which is subject to the power of Rome.’ Strabo notes that the people of Marseilles had taken much booty, having conquered in naval battles ‘those who unjustly contended for control of the sea.’ The same author says that Sinope asserted sovereignty over the sea as far as the Symplegades.
2. It seems clear, moreover, that sovereignty over a part of the sea is acquired in the same way as sovereignty elsewhere, that is, as we have said above, through the instrumentality of persons and of territory. It is gained through the instrumentality of persons if, for example, a fleet, which is an army afloat, is stationed at some point of the sea; by means of territory, in so far as those who sail over the part of the sea along the coast may be constrained from the land no less than if they should be upon the land itself.
XIV. That for certain reasons a tax can he laid upon those who rail upon the sea.
It will not, therefore, be contrary to the law of nature or of nations if he who has taken upon himself the burden of protecting navigation and of making it safe by night-flares and marks indicating shoals shall impose a fair tax on those who sail.
Such was the toll collected by the Romans for the navigation of the Red Sea, in order to defray the costs of the maritime force maintained against the expeditions of pirates. Such, too, was the ‘transit tax’ which the people of Byzantium collected for the navigation of the Black Sear which, in earlier times, the Athenians, obtaining possession of Chrysopolis, had collected for the use of the same sea; to both facts Polybius bears witness. That the same Athenians formerly collected such a tax for the passage of the Hellespont Demosthenes shows in his speech Against Leptines; and Procopius in his Secret History relates that the Roman Emperors levied such a tax also in his time.
XV. Of the agreements which forbid a people to sail beyond certain bounds.
Examples of treaties are to be met with in which one people binds itself to another not to sail beyond a certain limit. Thus in ancient times an agreement was made between the kings, who were in power about the Indian Ocean and the Egyptians, that the latter should not come into the Indian Ocean with a war-ship, or with more than one merchant ship. Thus in. the time of Cimon it was agreed between the Athenians and the Persians that no armed Persian ship should sail between the Symplegades and the Swallow Islands; after the battle of Salamis, the agreement defined the limits as between the Symplegades and Phaselis. In the year’s truce of the Peloponnesian war it was agreed that the Lacedaemonians should not go to sea with war-ships, and not with other ships of more than five hundred talents burden.
In the first treaty which, immediately after the expulsion of the kings, the Romans made with the Carthaginians, they agreed that neither the Romans nor their allies should sail beyond Cape Bane, except when driven by storm or by the force of an enemy; further, that any who might have been forced to pass that limit should take nothing except necessaries and should leave within five days. In the second treaty,” the agreement was that the Romans should not go for plunder or for trade beyond Cape Bone, Massia, and Tarseia. In the treaty of peace with the Illyrians it was determined that the Illyrians were not to sail beyond Lissus with more than two boats, such boats to be unarmed. In the terms of peace with Antiochus, it was stipulated that he should not sail this side of the promontories of Calycadnus and Sarpedon, excepting with ships which carried tribute, ambassadors, or hostages.
2. Such examples, nevertheless, do not show that occupation is had of the sea or possession of the right of navigation. Peoples, just as individuals, can in fact by agreements grant in favor of one concerned not only a right which they possess in their own name but also a right which they hold in common with all men. When this is done, the principle must hold which Ulpian stated in a case of this kind, in which an estate had been sold on the condition that tunnyfishing should not be carried on to the detriment of the seller; Ulpian declared that a servitude could not be imposed upon the sea, but that good faith in the contract demanded that the stipulation of sale be lived up to; that in consequence the persons of the possessors, and of those succeeding to their right, were bound by the agreement.
XVI. Whether or not a change in the course of a river involves a change of territory is set forth, with a distinction.
1. When a river has changed its course frequently strifes arise between neighboring states over the question whether at the same time the limits of jurisdiction are changed, and whether any additions made by the river belong to those to whose territories they have been added.
Disputes of this sort should be settled according to the nature and mode of acquisition. The surveyors tell us that there are three kinds of lands: the first, divided and allotted land, which the jurist Florentinus calls delimited, because it has limits set off by artificial boundaries; the second, land allotted as a whole, or designated by measure, as by hundred-acre parcels and by acres; and land having natural frontiers, which is so called, as Varro says, because it has boundaries suitable for keeping off enemies, that is, natural boundaries, as rivers and mountains. These last are called by Aggenus Urbicus ‘lands under occupation,’ since in most cases they are lands occupied either because they are vacant, or by right of war.
In the case of the first two kinds of lands, even though a river changes its course no change of territory is occasioned; and if anything is added by alluvial deposits this will fall under the jurisdiction, of the previous occupants.
2. In the case of lands having natural frontiers, a river by gradually changing its course changes the boundary also, and whatever the stream adds to either side becomes subject to the jurisdiction of the state to whose territory it is added; it is in fact believed that both states originally took possession of their territories with the intention that the river lying between should separate them as a natural boundary. Tacitus said: ‘From this point the Rhine has a well-defined channel, which is suitable to serve as a boundary.’ In his account of the dispute between the peoples of Segesta and Selinus Diodorus Siculus remarks: ‘A river serves as boundary between their territories.’ Xenophon calls such a river simply ‘the marker of limits,’ that is a boundary stream.
3. The ancients relate that the Achelous river was of uncertain course, now dividing up into channels, now winding about in circuitous detour (whence it is said to have assumed the form of a bull and a serpent); and that for a long time it furnished a cause of war to the Aetolians and Acarnanians regarding the lands bordering upon it, until Hercules restrained it by dikes. In recognition of this service Hercules obtained in marriage the daughter of Oeneus, king of the Aetolians.
XVII. What conclusion is to be reached if the bed of a river has been completely changed.
1. What has been said will be applicable only in case the river has not changed its bed. For a river, even where it serves as a boundary between countries, is not considered to be merely where the water is, but where the water flows in a certain channel, and is confined by certain banks. Wherefore the addition or removal of particles, or such a change as leaves the former appearance of the stream substantially unchanged, permits the river to seem the same.
If, however, the appearance of the river as a whole be at the same time changed, the case will be different. As a river which has been blocked by a dam in the upper part of its course ceases to exist, and a new river is formed in the excavated channel into which its water is conducted, so if a river, abandoning its old course, has burst through in a different channel,” it will not be the same as it was before, but a new river, the former river having ceased to be. In such a case the boundary of a country would remain in the middle of the channel which had last existed, just as if the river had dried up. For it must be held that the purpose of the peoples was to accept the river as a natural boundary between them. If, then, the river had ceased to exist, in that case each would retain what he had previously possessed. In like manner, when the channel changes; the same rule ought to be observed.
2. In cases of doubt, however, sovereign states which border on a river must be considered as having a boundary set oft by a natural frontier; nothing, in fact, is more suitable for separating such states than a boundary which is not easily crossed. It less often happens that states have boundaries set off by an artificial line of demarcation, or designated in terms of extent; but such cases arise less frequently from primary acquisition than from a grant made by another.
XVIII. That sometimes an entire river belongs to a territory.
Although, as we have said, in case of doubt the jurisdiction of two states bordering on the same river extends to the middle of the stream, nevertheless it might happen, and we see that in some places it has happened, that the river as a whole belongs to the one state; the reason being, of course, that jurisdiction over the opposite bank began to be exercised at a later time, after the river had already been occupied, or that the matter had been settled in such a way by agreement.
XIX. That things which have been abandoned become the property of him who takes possession of them, unless a state has acquired a general right of ownership over them.
1. It is not out of place to remark also that primary acquisition must be conceded as possible in. the case of those things which have had an owner, but have ceased to have one, either because they have been abandoned, or because there are no longer persons having the right of ownership over them. Such things have returned to the condition in which they originally were.
2. The following point, however, must at the same time be noted, that sometimes primary acquisitions by a state or by the head of a state have been so made that not only the sovereignty in which is included the right of eminent domain, of which I have treated elsewhere but also full private ownership was first acquired in common for the state or its head; and that then a distribution was made individually to private persons, in such a way, nevertheless, that their ownership was dependent on that earlier ownership if not in the way that the right of a vassal is dependent on the right of his lord, or the right of the permanent tenant on that of the landowner; yet in some other way that is less binding; for there are many forms of right over property, among which also is the right of one who administers a bequest for the benefit of some one else.
Says Seneca: ‘It is no proof that a thing is not yours, because you cannot sell it, or use it up, or injure or improve it. For that also belongs to you which is yours under a definite stipulation.’ Dio of Prusa in his Speech to the Rhodians said: ‘There are many and very different ways in which a thing may be said to belong to one; sometimes it is not permitted to sell, or to use according to one’s own desire.’ In Strabo I find the statement: ‘He was owner except for the right to sell.’
Tacitus presents among the Germans an example of what we have been saying: ‘Lands proportionate to the number of cultivators are taken possession of in common, and these they forth with divide up among themselves according to individual standing.’
3. When, therefore, private properties distributed in the manner just described are dependent on common ownership, if any property is found to lack an individual owner, it does not belong to the occupant, but reverts to the community or to the higher lord. Even without such a cause a right similar to this right of the law of nature could be conferred by a municipal statute, as we have already noted.