The Law of Nations Treated According to the Scientific Method. Christian von Wolff

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СКАЧАТЬ of the state has sovereignty over the rivers and public roads, in desert places, or those not yet under cultivation, although ownership of those places is with the people, and it is not held to have been transferred to the ruler of the state. For sovereignty always remains distinct from ownership nor are these two rights ever necessarily of themselves united. And so although ownership of public property may belong to the ruler of the state, nevertheless the sovereignty over public places does not therefore belong to him, which of itself is extended to all places, so far as in them individuals can do certain acts, the right to do which belongs to the one having sovereignty. But inasmuch as eminent domain is contained in this sovereignty itself as a potential part thereof, so it is not to be confused with the ownership of public property transferred from the people to the ruler of the state, and the things which by force of this he can do are rightly to be distinguished from those which are done by force of eminent domain, a thing which must be kept in mind, if you wish accurately to prove details and get at the true reasons for all those things which the ruler of the state does as concerns public property. For we desire that those things be drawn from the source whence they flow. But public rivers and public roads may be looked at from two standpoints, either in so far as men can do in them the things which have no bearing at all upon their use, for example, if any one should kill another in the river or on the road, or assault him with blows, or speak ill of him; or in so far as they serve a definite use, for example, sailing on the river, or driving cattle to it to be watered or washed, or walking or driving on the public road. With respect to the former, public rivers and public roads are properly speaking public places; but with respect to the latter, they are public property. And therefore over these the ruler of the state has sovereignty as over public places and the public places

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      belong to his territory. Since this distinction is based on the concepts of property and sovereignty, by force of what has just been said, it is properly made.

      § 103. Of the effect of eminent domain over public property

      § 102.

      § 111, part 8, Jus Nat.

      Since eminent domain over public property belongs to the ruler of the state, since, moreover, by force of eminent domain disposition is made of property for the public welfare in case of necessity, the ruler of the state for the public welfare in case of necessity can dispose of public property, as shall seem best to him.

      §§ 98, 99.

      So by power of eminent domain he can connect two navigable rivers by an artificial channel for the aid of commerce, or even direct the waters of one stream into another, to make it navigable, even if there should be some injury to the common use. And hence will be clearer the difference which exists between eminent domain over public property and ownership of the same, which is either with the people or transferred to the ruler of the state.

      § 104. Of the passing of civil laws concerning the use of public property and that of a corporation

      § 977, part 8, Jus Nat.

      § 978.

      §§ 94, 99, and § 170, part 1, Phil. Pract. Univ.

      The ruler of the state can pass laws concerning the use of public property and that of a corporation. For by civil law the ruler of a state can make obligatory or forbidden what is allowed by nature; moreover he can make a perfect obligation out of that which before was imperfect, as is best for the purpose of the state, and if anything can be done in several ways, he can direct that it be done in one way or another. Therefore, since the use of public property and that of a corporation is allowed by nature, and since that use can be exercised in several ways, as is plainly proved before, the ruler of a state can make laws concerning the use of public property and that of a corporation, by which a thing formerly allowed may be made forbidden or obligatory, or by which an imperfect obligation is made perfect and by which the use of that property is limited in a certain manner.

      § 5, part 8, Jus Nat.

      So he can pass laws concerning fishing in rivers, for example, that common fishing should be forbidden in a certain part of a river, or

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      that the smaller fish shall not be taken, and that one may not fish with nets, except such as allow the escape of fish not of a proper size, or that fishing should be forbidden at one time and allowed at another. Since still other methods may be given, by which civil laws may be made out of natural laws and which we have proved in the natural theory of the civil laws, besides those to which we have called attention in the discussion, it is plainly evident that very many laws can be passed, not only concerning fishing, but likewise concerning every use of any public property and that of a corporation. But while we speak of things public and those of a corporation, we are tarrying among generalities, and do not descend to particulars, which very often can be inferred from them by way of corollary, or without much difficulty be derived by proof. If we attempted to descend to public property and that of a corporation in detail, the treatment would be more extensive than the present plan demands. Likewise it ought not to seem strange, if we extend the legislative power to the use of things common or of those of the whole nation, or of some particular corporation. For that deals also with private ownership, or the use of private property. For all the actions of subjects are under the control of the civil power, so far as they are referable in any way to the purpose of the state, and laws are only the means through which the purpose of the state is attained, consequently they prescribe how subjects ought to direct their actions to the purpose of the state. And so it would be absurd, if any one should desire to remove the use of public property or that of a corporation from the legislative power, so that the free abuse of it would be left to any one, or that in its use the purpose of the state should be opposed.

      § 105. Of the prohibition of the proper use of public property

      § 96.

      No one of the people can be legally prohibited from using public property in a proper manner. This is shown in the same manner in which we have proved the same point in regard to the use of the property of a corporation.

      Note, § 98.

      § 112, part 2, and § 5, part 8, Jus Nat.

      So no one can be prohibited from going or driving on the public road or from sailing on a public river. We have already remarked above that public property can be made the property of a corporation, since even the whole people is a sort of a corporation.

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      § 106. Of a river separating two territories

      § 178, part 2, Jus Nat.

      § 85.

      If a river separates two territories, the ownership and sovereignty over the river will belong to that nation which has first taken possession of it; ownership and sovereignty of either nation extend from either side to the middle of the river, if they take possession at the same time, and in a doubtful case this is presumed. But if the matter is decided by agreement, they must stand by it. For ownership is originally acquired by occupation, and if a certain nation occupies an uninhabited territory, it has sovereignty over it as soon as it occupies it. If then a river separates two territories and one nation gets possession of it first, ownership and sovereignty over the whole river belong to that nation. Which was the first point.

      §§ 78, 81, part 1, Jus Nat.

      If two nations occupy at the same time the territories which a river separates, since the use of rivers serves the advantages of each, they are understood to have occupied this also at the same СКАЧАТЬ