Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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СКАЧАТЬ 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-<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 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.

      Hence it is sufficient for the sea or any part of it to be called some one’s possession, if he has the right of so completely appropriating to himself the uses of it that, unless others are willing to recognize those same uses in the way of a benefaction of his own, he may be able with justice to keep them out; and this obtains even though the extent of the sea makes guarding and, as it were, exclusive possession of it difficult, and especially its superlative capacity for utilization makes such guarding and possession almost superfluous.

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 СКАЧАТЬ