suspended by common consent, any portion of the sea, even though small and mostly included by shores, is not the property of any people.

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

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

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

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

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

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

The right of transit by land, which is here described as "more noxious," and used as an argument, was proved by assuming it to be absolutely innoxious. See B. 11. c. ii. § xiii. W. W.

G

and what the Athenians formerly had levied in the Hellespont, as Demosthenes shews; and the Roman emperors, as Procopius mentions, in his time.

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

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

XVI. 1 When a river changes its course, a question often arises between neighbouring peoples whether the boundary of the territory also changes, and whether the additions which the river makes to one side belong to the land to which they are added; which controversies are to be solved by regarding the nature and mode of the acquisition.

Those who write concerning land, tell us that there are three kinds, the limitatus, which is limited by an artificial boundary; the assignatus per universitatem, which is determined by its measured quantity, and the arcifinius, which is defined by natural boundaries,

as rivers or mountains.* In the two former kinds, if the river changes its course, the territory is not changed, and if any alluvial addition is made to it, it is an accession to the property of the occupier of the land.

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

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

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

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

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

XVIII. But though in doubtful cases, as we have said, national territory extends to the middle of the river, it may happen, and some• Gronovius says that these distinctions are wrongly given by Grotius, and wrongly applied; but Barbeyrac defends him.

In modern times, national territories have frequently been defined by boundaries entirely artificial, as parallels of latitude, and meridians; of which the map of America affords many examples. W. W.

times does, that the whole of the river belongs to one party; as when the second bank has been taken possession of at a later period, after the first bank and the river had been already occupied; or because the matter was so settled by compact.

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

2 This also is to be noted; that sometimes the first acquisitions of property are made by a people or its head in such a manner that not only the lordship, including that jus eminens of which we have spoken, (B. 1. c. iii. § vi;) but that also the private ownership, was acquired at first generally for the people or its head; and then the property was distributed particularly in special lots to private persons, in such a manner that their ownership depended on that former ownership; if not in the same way as the ownership of a Vassal from that of Seignior, or the ownership of the tenant-farmer from that of the landlord, yet in some slighter way; as in fact there are many species of ownership: among which is the ownership of a trustee. So Seneca and Dio Prusæensis, Strabo, Tacitus, speak of various ways in which a thing may be mine. [See.]

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

CHAPTER IV.

Of presumed Dereliction of Property, and the Occupation which follows; and how it differs from Usucaption and Prescription.

property?

Immemorial Possession.

XI.

Rights of Unborn Persons. Sovereignty by long Possession.

XII. Are sovereigns subject to Prescription?

XIII. Separable Rights of sovereigns are subject to Prescription.

XIV. May subjects always seize
their Freedom.

XV. Facultative Rights not lost by
Disuse.

ERE arises a great difficulty concerning the right of usucaption,

sessor.] This Right is introduced by the Civil Law,[not by Natural Law,] for time, of its own nature, has no effective power; for nothing is done by time, though everything is done in time. Hence this right, as Vasquius thinks, cannot have place between two free peoples, or kings, or a people and a king; nor even between a king and a private person who is not his subject, nor between the subjects of two different kings or peoples: which appears to be true, except so far as things and acts are governed by the laws of the territory: [for a person in one territory, knowing the laws of another territory as to usucaption, may act accordingly, in questions of right between him and another person in the stranger territory.] Yet if we admit this, there seems to follow this very inconvenient conclusion, that controversies concerning kingdoms and their boundaries are not extinguished by any lapse of time; which not only tends to disturb the minds of many and to perpetuate wars, but is also repugnant to the common sense of mankind.

II. For [the authority of time and usage has been generally acknowledged in disputes on such subjects]. So in Judges xi. 13, 26, when the king of the Ammonites claimed the land from Arnon to Jabbok and Jordan, Joshua said that Israel had dwelt there 300 years; why therefore did ye not recover them in that time? And the Lacedæmonians in Isocrates lay it down as a rule most certain, and acknowledged by all nations, that public possessions, as well as private, are so confirmed by length of time that they cannot be taken away; on this ground they