The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

CHAP. II. Of such things wherein Men have a Right in Common.

• I. The division of that which we call Ours.
• II. The Rise and Progress of Propriety.
• III. That some things will not admit of Pro∣priety, as the Sea, taken universally, or as to its principal parts, and why.
• IV. Places ••ot Inhabited are the first occu∣piers; unless in the generality it belong to some one people.
• V. That Beasts, Birds, and Fish are the first occupiers, unless by some Law re∣strained.
• VI. That there remains a Right in Common to the use of things properly our own, in times of necessity, and whence this ari∣seth.
• VII. But not, in case that necessity be other∣wise avoidable.
• VIII. Nor if there be the like necessity in the possessour.
• IX. The things so used, to be restored as soon as we are able.
• X. An Example of this Right in War.
• XI. In things properly ours, there may be a Common Right, if those things bring pro∣fit unto others, without any detriment to our selves.
• XII. Hence ariseth a Right in Common to a running Water, which if not used, is lost.
• XIII. That there is a Right to pass either by Land, or through Rivers. This explain∣ed.
• XIV. Whether Taxes or Tolls may be im∣posed on Merchandises carried from place to place.
• XV. That there is a Right to stay or sojourn in any place for a while.
• XVI. That there is a Right of habitation ap∣pertaining to such as are banished their own Countrey, submitting to the present Govern∣ment.
• XVII. A Right to inhabit desart places, how to be understood.
• XVIII. A Right to such acts or things, without which men cannot conveniently live.
• XIX. A Right to buy things necessary.
• XX. But not, to sell their Commodities.
• XXI. A Right to contract Marriages: Ex∣plained.
• XXII. A Right to do such things as are permitted to all strangers promiscuously.
• XXIII. Which is to be understood, of such things as are permitted by the Law of Na∣ture, but not of such things as are permitted out of Grace and Favour only.
• XXIV. Whether it be lawful for one, people to contract with another, That they shall not sell their Commodities to any other Na∣tions, but themselves only.

I. The division of what we call Ours.

THat War may be undertaken for Injuries not done, we have seen proved. Now it follows, that according to the order we proposed, we discourse of the Second Branch of the causes justifying a War, namely, for Injuries actu∣ally done. And herein, first of Injuries done against that which is ours: Now of that which is ours, Some things are ours by a Right common with all Mankind, and some things are ours, in our own particular Right. We shall begin with that which is ours in common with others. This Common Right is either directly in some Corporeal thing, or to some Acts. Things Corporeal are either such as do admit of no propriety, or such as properly belong to some persons. Of things whereof there is as yet no propriety, some there are that cannot be impropriated, and some there are that may. Now that this may be rightly understood, we must search into the rise or be∣ginning of propriety, which Lawyers call Dominion.

II. The original and growth of Propriety.

Almighty God, as soon as he had created the World, did immediately confer a Right ge∣nerally to all mankind in things of this Inferiour Nature. And so again when he had renew∣ed the world after the Flood, as may be seen Gen. 1.29, 30. and Gen. 9.2. All things at first (saith Justin) were promiscuously common and undivided to all, and as it were one intire Patrimony bequeathed unto all. Whence it came to pass, that every man did catch whatsoever he would to his own use, and consume what could be consumed. And the free exercise of this Universal Right was then instead of Propriety: For whatsoever any man did thus catch unto himself, no man could take from him without injury. This may be very fitly illu∣strated by that Simile which we find in Cicero concerning a Theatre, which we know is a publick place, and common to all that come; yet may that particular place which I possess be right∣ly called mine. There are Seats that are common to all Roman Knights, but that amongst them is mine own, saith Seneca, which I actually possess. Which state of things might very well have lasted, had men either persisted in the same inoffensive simplicity, or could they have embraced each other with the same mutual endearments of charity. An experi∣ment

of the former we have in some people of America, who have continued in that happy Communion for many ages, with admirable simplicity: And for those that lived in the like Communion, through Charity, we have the like precedents in the Esseni, and in the Primitive Christians at Jerusalem, and their followers, the Pythagoreans; and now also in not a few, who lead lives purely Monastical. The nakedness wherein our first Parents were created, did sufficiently evidence their simplicity, which consisted rather in their Ignorance of Vice, than in their knowledge of Vertue: As Trogus testifies of the Scythian. The men of the first age (saith Tacitus) were free from inordinate affections, untainted with wickedness, clear from any thing that might occasion reproach; and consequently without restraint or punishment. Thus Seneca also testifies of them, They were, saith he, ignorantly Innocent: And afterwards, speaking of the four Cardinal vertues, he adds, Some resemblances of all these, there were in that plain and simple life they led: As having their minds distracted with no manner of Cares: As Josephus testifies, And to the same purpose writes Macrobius, At the first the Conversation of men was with such an Innocent Simplicity, as had no commixture at all of evil in it, being altogother unacquainted with that guile and subtilty that now rageth in the World. The Wise man terms it Sincerity; and so doth St. Paul, Eph. 6.24. and sometimes it is called singleness, which is opposed to craft and subtilty. They then made the worship of God their only care, which was symbolized by the Tree of Life or Divine Wisdom, Prov. 3.18. As Philo, and the learned among the Jew•• explain it; with whom agrees St. John, Apoc. 22.2. Their dyet was as simple as their lives; for they fed on nothing but what Nature liberally afforded them, with∣out Cultivation. But in this Innocent Simplicity they continued not long, but wan∣dring in devious paths, and making every day new experiments, they became by de∣grees acquainted with Sin, which stands Emblem'd out in Scripture by the Tree of Knowledge of Good and Evil, that is, of those things which they had power to use well or ill: which Philo calls 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, an Intermediate Prudence; or a Prudence which is conversant about things in themselves Indifferent. Whereunto Solomon had respect, when he tells us, That God made man upright, that is, Simple, but he hath found out many Inventions: Which Philo expounds, Many subtle Devices; Which, as Dion Prusaeensis ob∣serves, were no whit to those that succeeded to our first Parents, advantageous as to Life; For they made use of their Sagacity not so much to fortifie themselves with Justice and Temperance, as to corrupt themselves by voluptuousness. Those most ancient Arts, as the Tilling of the Earth, and the depasturing of Cattle were first exercised by the first brethren, not without some kind of distribution of the Fruits. This diversity of Arts begat a kind of Emulation, and this ended in Murther. And afterwards, when by Conversation the bad infected the good, there grew up a Race of men, who for their violence and oppression, were called Gyants; which the Greeks called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, because they observed no other rule of Justice but their own strength, and therefore thought all to be their own, which they could conquer. But the World being cleansed from blood and rapine by the Deluge; Lust, inflamed with Wine, succeeded to Cruelty, and brought forth Incest, and such like unnatural Coitions. But that which especially blew the Coals of discord among Princes and Nations, was that Heroick Sin of Ambition, whose Emblem was the Tower of Babylon; whence the division of Tongues caused their dispersion into several Countreys; some possessing one part of the Earth, and some another. But yet still among Neigh∣bours there remained a Communion not of Cattle, but of Pasturage; for so large a pro∣portion of ground (being but thinly peopled) might without any Inconvenience, suffi∣ciently supply all their necessities.

To mark their own, and trench out others Land Was not yet Lawful.

Until at length, the numbers both of Men and Cattle encreasing, the Land also became sub-divided, not into Nations and Provinces as before, but into single Families. And whereas in dry and sandy regions, Springs though very necessary, yet were not able to supply a multitude; Therefore did every man strive by taking the first possession of them to make them his own. All these things we may trace out of the Sacred story, where∣unto we might add the concurrent Testimonies both of Philosophers and Poets, who have treated of the first state of things held in common, and of the subsequent distribution of them, but that I have done it elsewhere. From hence we learn the true cause why men de∣parted from that Primitive Community of things, first of movables, and afterwards of immo∣vables: Namely, because repining to be at Natures bare allowance, that is, to feed on Roots and Herbs, to make their habitations in Caves, to go naked, or clad with barks of Trees, or Skins of Beasts (as the Scritefinni described by Procopius did) they made choice of a more delicate kind of living, which would roquire industry, which every particular man was in every thing to use for himself. Now that the Fruits of the Earth could not be conveni∣ently

laid up or disposed of in common, will easily be granted; First, by reason of the vast distance of the places inhabited, the one from the other. And Secondly, because of the great defect of Love and Charity among men: By reason whereof, no due equality could be observed, either of Labour in their Acquisition, or of Temperance in their Consumption. And from hence we may further learn, for what causes things were re∣duced into Propriety: Not by the sole act of the Mind; for no one man could possibly know what another would have to be his own, that he might forbear it. Besides, possible it is, that diverse men might be competitors for one and the same thing. But things became proper by compact or agreement, and that either express, or by partition; or tacite, as by present occupancy: But as soon as experience had taught them the incon∣veniencies of holding things in common, and yet before Division was first instituted, it is very probable, that they unanimously agreed, That what every man possest at that time should be his own. Thus Cicero, To the end that of what nature had made common, each man might call something his, it was agreed, That look what every man had in possession, he might hold as his own. And in another place†, It is generally granted, saith he, neither doth nature her self envy it, That as to things appertaining to life, Quisque sibi malit quam alteri acquiri; Every man had rather enjoy them himself, than that another should have them. Where∣unto we may add that of Quintilian, If this be the state and condition of things, That what∣soever is useful to Men, belongs properly to him that possesseth it; then surely whatsoever is justly ours, cannot justly be taken from us. Which very thing Cicero illustrates by a Similitude borrowed from Chrysippus of a race, Ʋbi currendo licet adversarium vincere, non detrudendo; Wherein a man might overcome his adversary by running, but not by detrusion. This was wise Solon's wish,

Riches I fain would have, but if ill got (Let them be ne're so great) I wish them not.

And when the Ancients stiled Ceres the Law-giver, and called her holy Mysteries Thef∣mophoria, they doubtless insinuated that the division of the Earth into Corn-fields, was as it were, the Creation of a new Right. For as an house or field unoccupied is common, but if possest, the possessors. So the Earth is divided into several parcels, that each man may till, and hold his own.

III. That some things will not admit of Propriety; as the Sea, taken Universally.

Now these things being admitted, we say, That the Sea, considered either Universal∣ly, or as to its principal parts, cannot be held in propriety by any: This, because granted by some, as to private persons only, but not unto people or nations, I shall en∣deavour to prove, first, by moral reason. For the cause that moved men to decline their tenure of Lands in common, doth not at all hold in the Sea, which being so vast and boundless, and Ships and Men thereon imployed, so few, must needs be abundantly sufficient to all nations, and for all uses; whether for Water, Fishing, or Navigation. The very same may be said of the air, if any such use could be made thereof; where∣unto the use of the Earth under it were not necessary; as in the sport of Hawking, and in the Right of Habitation; both which do receive Laws from him who is the Lord of the Soyl: For as Pomponius observes, Tam Soli quam Coeli mensura facienda est: And again Cajus, Cujus est Solum ejus est usque ad Coelum; Whose is the Soyl, his is all that is above it, even unto Heaven. The very same may be said of Shelves and Quick-sands, where no∣thing can be made to grow, and whereof there can be made no other use, but to ballast Ships, and whereof there is such store, that it cannot possibly be exhausted. There is al∣so a Natural reason, why the Sea so taken, cannot be held in propriety: because Occupa∣tio non procedit nisi in re terminata; Nothing can be said to be possest, that is not bound∣ed. Hence it is that Thucydides calls Land unoccupied, Lands unbounded: And Isocrates, of some Land occupied by the Athenians, saith, That that Land is by us bounded and limited. Now Aristotle tells us, That Liquid things cannot be contained within their own bounds. And if so, then they cannot be possest, unless they be contained in some∣what that is solid and comprehensive of them; as Ponds, Lakes, and Rivers are theirs properly whose the Land is, wherewith they are embanked. Now the Sea cannot pro∣perly be said to be contained in the earth, being equal to it, Nay greater than the Earth, as Jarchas in Philostratus thought of the Ocean: And therefore the Ancients held that the Sea did contain the Earth. What (saith Gellius) can be said to be about the Ocean, when the Ocean doth every where circumscribe, and encompass the Earth? And a little after, Since that every where, and in all manner of ways it flows about the Earth, nothing can be said to be about it: But all regions being entrenched and environed with its Waves, whatsoever is enclosed w••thin the brinks of the Ocean, are in the midst of it. So likewise speaks Livy of the Ocean, Q••i orbem terraram amplexu finit; Which encircles with its Waves the terrestrial globe. Seneca calls the Ocean, Vinculum totius orbis, custodiaque terrarum; The bond or ligament of the earth, and the safeguard of the Nations. Neither is a division of that vast body of Wa∣ters

to be imagined: For when at the first, Lands were divided, the Sea, at least, the greatest part thereof, was unknown; and therefore no means can possibly be invented whereby the nations so far distant should agree about the division of that which they know not: wherefore it is probable, that what then was the Common Right of all, and in the first division was left undivided, is not now the proper Right of any, either peo∣ple or person by division, but by occupancy, neither can be divided until they have first been occupied.

IV. Places not in∣habited are his that first possesseth them.

Let us now descend unto such things wherein we may have a Right of Propriety, though as yet we have none: Such are many places which are as yet desart and unoccupied; Islands in the Sea, Wild Beasts, Fish, and Birds. Concerning which, two things are observable; First, concerning places unpeopled: There is a two-fold Right of the occu∣pancy of Lands, the one Universal, or of the whole; the other Partial, as that of Man∣nors and Farms. The former is usually gained at the charge, and for the benefit of the Common-wealth, or of him who hath the Soveraignty over the people: The other by private Lords or Farmers, which is done, rather by assignation from the former, than by any free and unlimited occupancy. But in case there be any part or parcel of that Countrey or Island, (so universally occupied) that is not yet assigned to particular per∣sons, it is not therefore to be reputed as waste, but it is still supposed to be in the pos∣session of the first occupants, be they King or People. Such are usually Rivers, Lakes, Ponds, Woods, steep Mountains, and the like.

V. Birds, Beasts and Fish, the first occupi∣ers, unless re∣strained by Law.

Secondly, As to Wild Beasts, Fish, and Birds, this is to be observed, That he that hath the dominion over the Lands and Waters, may by his Laws interdict others from taking them; or being taken, from carrying them away: And by this Law shall strangers also be obliged. The reason whereof is, That to the Government of the people it is mo∣rally necessary, That whosoever shall sojourn among the people, though but for a while, yet as soon as he shall enter into their dominions, he shall render himself Conformable to the Laws and Customes of that people. Neither doth it avail to the contrary, to say, That in the Roman Law we often read, that by the Laws of Nature and Nations, it is free for any man to hunt such kind of creatures: For this might be, whilest there was no Civil Law to prohibit it, as indeed there were many other things that were left free and arbitrary, by the Roman Laws in the Infancy of their Common-wealth, which the Laws of other Nations did severely restrain. But when the Civil Law shall otherwise decree it, then the very Law of Nature doth require that we should observe it. For al∣though the Civil Law can enjoyn nothing that the Law of Nature forbids, nor forbid any thing that it commands; yet notwithstanding it may limit and circumscribe that which the Law of Nature leaves free, and forbid that which naturally may be lawful. And so the Civil Law may by interposing her authority, prevent that dominion which naturally might be acquired.

VI. In times of necessity what is properly ours, may be common to o∣thers.

Let us now examine, Whether in what is properly ours, there may yet remain a Right in Common to others. Which question may by some be thought strange, considering that Property seems to swallow up all Right, which was at first held in Common. But it is not so; for our better understanding whereof, we must look back to the true mean∣ing of those who first introduced particular dominion: which may be presumed to be such as did (as little as might be) recede from natural equity. For if even our written Laws oblige us but to a Quatenus fieri potest; To what in natural equity may be done (as ap∣pears by our frequent Appeals from our Statute, and Common Laws, unto our Courts of Chancery:) much more may our Customes admit of such an exposition, which are not fitted to Words and Syllables. Hence then it follows, that in cases of extreme necessity that ancient Right of using every particular mans goods, as if they remained yet in Common, stands in force: For as in all humane Laws, so in this very Law of Dominion, cases of absolute necessity are generally excepted. Hence it is, that in Navigation, If the Common stock of Victuals be spent, what every particular man hath is held as Com∣mon. So in the case of Fire, If I cannot otherwise avoid it, I may pull down my neigh∣bours house to preserve mine own: And on the Seas, If my Ship fall foul, or be intan∣gled with another, I may cut their Cables to free my self. All which are not Introdu∣ced, but expounded by the Civil Law: But this (as Ʋlpian tells us) never holds, unless it be in cases of extreme and manifest necessity, where this case is added of the blowing up of another mans house to save mine own. For even among Divines, it is a received opi∣nion, That in a time of absolute necessity, if a man shall take away from another that without which he that takes it cannot live, he doth not commit Theft: Not, as some think, because it is to be presumed, that the right owner by the rule of Charity, is bound to give it to him that so wants it; but, that it may be presumed, that the reducing of things originally Common into private dominion, was to be understood with some grains of allowance in such Cases. For if they that first divided such things, had been demand∣ed, What they would to have been done in such a case, they would certainly have been

of this mind. Necessity (saith Seneca the Father) being a most benign Patroness to humane f••ailty, will not be bound up by any Law, i. e. Humane, or that is made after the manner of Hu∣mane Laws. Quicquid coegit, defendit; Whatsoever it commands, it also defends, saith the same Seneca. In a Storm it disburthens the Ship with the loss of the Goods, in a Fire it quencheth the stone with the ruine of the Fabrick: Necessity is indeed the Law of time. Thus Cicero, Cas∣sius (s••••th he) passed over into Syria, another mans Province: If men might freely enjoy the be∣nefit of our written Laws, but these being by Arms supprest into his own Province by the Law of Nature. So Curtius, In a common calamity every man must bear his portion, and be content with the fortune that befalls him.

VII. But not if the necessity be otherwise a∣voidable.

But some Cautions ought to be admitted, lest this License stray too far, the first where∣of is this, That all ways and means are in the first place to be tryed, whether this neces∣sity may be otherwise avoided, that so it may appear unto all men that this necessity is extreme: As we should first make our application to the Magistrate, and try whether he will relieve us; then to the owner of the Goods, whether we may by entreaty obtain that which we stand in need of. Plato would not permit any man to require water from anothers well, that had not dug for water in his own grounds, usque ad cretam, even till he came to chalk, but could find none. Solon required that he should dig forty Cubits in his own Lands, whereunto Plutarch adds, Subveniendum necessitati, non instruendum pigritiam; It is sit that mens necessities should be relieved, but not that idleness should be encouraged. And it was Xenophon's plea to the Sinopenses, Wheresoever we are denyed the common right of buying necessaries, there, whether from Graecians or Barbarians, we will take them by force, yet not out of perverseness but necessity.

VIII. Nor if there be the like ne∣cessity in the right owner.

2. This is not to be allowed, if the right owner be prest by the like necessity, for when the case it equal, Possidentis melior est conditio, The condition of the present Occupant is to be preferred. A wise man will rather dye (saith Lactantius) than be unjust: He will not dispossess the Shipwrackt of the plank he bestrides, though he might thereby save his own life; nor unhorse his wounded Comrade, although by betraying his life, he might save his own. Will not then a wise man (saith Cicero) being famished with hunger, take away meat from him whom he knows to be good for nothing? No surely, for life it self is not dearer unto me, than this resolution of mine, Nominem ut violem commodi mei gratia, Not to injure another to benefit my self. So Curtius, Melior est causa suum non tradentis, quam alienum poscentis; For better is his condition that gives not what is his own, than his that requires that which is another mans.

IX. Things thus taken are to be restored when we are able.

Thirdly, When the danger incumbent is past, restitution is to be made, if we are able: Some there are that think otherwise, being swayed by this argument, because he that useth his own right only, is not obliged to restitution. But to speak truly, this right is not his own fully and absolutely, but restrained and clog'd with the duty of restitution, when that necessity shall cease; for such a limited right sufficeth to preserve natural equity, against the rigour of absolute dominion.

X. An example of this right in war.

Hence we may collect, By what Right he that wageth a Just War, may lawfully surprise and hold some strong place in a Country that is at peace with him, being but weakly guarded; that is to say, if there be no imaginary but a certain danger that his enemy may possess himself of it, and thereby do him an irreparable damage, especially if nothing be taken but what is necessary for his own Security: As namely, the bare custody of the place, lea••ing the jurisdiction and profits thereof unto the right owner. And lastly, If it be done with a full purpose to restore even the custody of the place also, as soon as the necessity of keeping it for his own indemnity shall cease. Enna, saith Livy, was detained either by fraud or out of pure necessity: For whatsoever here doth in the smallest degree de∣cline from necessity, is injury. The Graecians that stood in great danger for want of Ships, by the advice of Xenophon, seized such as passed by, yet so; that the Goods were preserved entire for the Owners, and the Seamen well fed and paid. The First Right therefore, that since propriety was introduced, pleads for exemption, is this of Necessity.

XI. In cases of in∣nocent profit.

The next is, That of Innocent profit. What should hinder us (saith Cicero† from commu∣nicating with others, when we may do it without any detriment to our selves, especially in those things that are profitable to those that receive them, and not damagable to us that give them? Seneca will not admit of this to be a courtesie, to kindle a Coal at our Fire, or to light a Torch or a Candle by ours: Plutarch accounts it an act of impiety, to cast away what we cannot eat, to seal up a Fountain when we have drank our selves full, to remove Land or Sea-marks which have been useful unto us: For, saith he, in these things after that we have satisfied our selves, every man hath a common Right.

So a River, as it is a River, is the propriety of those people whose the Banks are, or his, who hath the Soveraign Power over them, in whose power it is to make Dams or Mills in it, and whatsoever is bred in that River is his: But that River as it is a flowing Stream remains common, every man hath a Right to drink or to draw water out of it, as well as he that owns it.

Quis vetat apposito lumen de lumine sumi? Atque cavum vastas in mare servet aquas?

Who at his Torch, light to a Torch denyes? And wh'would engross the Seas vast Cavities?

saith Ovid, who also brings in Latona thus bespeaking the Lycians:

Quid prohibetis Aquas? usus communis aquarum.

Why water d'ye deny? Whose use should common lye.

Where also he reckons water among those publick Gifts that Nature bestows upon all men alike, the word Publick being improperly taken, in which sence some things are said to be publick by the Law of Nations: Virgil tells us the water is open and common to all, as well Strangers as Natives.

XIII. A right to tra∣vel by Land or Sea, com∣mon to all.

Thus both Lands, Rivers, and such parts of the Sea as are held by any Prince or Peo∣ple in propriety, ought to lye open and free to all such as have occasion to pass over them upon any just and lawful cause; as namely, either because being expelled their own, they seek after some other Country that lyes waste, or because they desire to traffick with some people remote from them; or even because they seek to recover what is their own by a just war. The reason is the same here as above, because it is very probable, that dominion was introduced at the first with this limitation, that such things should remain in com∣mon use, which might be profitable to some and not hurtful to others: And therefore the first Authors of Propriety are conceived to have thus agreed it. A signal example whereof we have in the History of Moses, Numb. 20.21. who being to march through the borders of the Edomites and Amorites, offers these Conditions, That he would travel only through their high-ways, without trespassing upon any private mans possessions; if he had need of any thing that was theirs, he would pay the just price of it. Which being rejected, was ground suffici∣ent for that War which he made against the Amorites: Whence St. Augustin thus, An inno∣cent passage was denyed them, which ought by the Laws of humanity to lye open and free to all who require it. Whereupon St. Augustin concludes, That the war made by the Israelites against the Amorites, was just. Hercules flew Amyntor King of the Orchomenians, because he denyed him a free passage: So did the Graecians make War against Josephus, because he refused to give them leave to pass through the borders of his Country. Thus also do the Graecians, which were under Clearchus, plead; We (say they) are travelling towards our own Country, peaceably, if none molest us; but if any shall hinder us, we will endeavour by the assistance of the Gods to force our way. So likewise Agesilaus returning out of Asia, when he came to Troas, demanded, An ut Amicum se an ut hostem transire mallent? Whether they desired that he should pass through their Country as a Friend or as an Enemy? The like demand was made by Lysander to the Boeotians, Rectis se hastis se transire vellent, an inclinatis? Whether they would have him to pass in a peaceful or in a warlike posture? Thus do the Batavians remonstrance to the Bon∣nenses in Tacitus, If none oppose us, our march shall be innocent; but if we find resistance, we will force our passage with our Swords. Cimon carrying Succours to the Lacedaemonians, led them through the Territories of Corinth; and being blamed by the Corinthians, that he had not first acquainted the City with his purpose, (for they that knock at other mens doors (say they) enter not but by permission) returns this answer, But ye (saith he) have not knockt at the doors of the Cleonaeans and of the Megarenses, but have broken them open: Censentes om∣nia potere debere plus valentibus, Conceiving that all places ought to lye open to the strongest. But the most moderate opinion is the best: Leave is first to be demanded, according to that of Aristophanes,

Whilst toward Delphos we our Army lead, First from Boeotians we free passage crav'd.

But if it be denyed, then may our passage be justly forced by Arms: When the Germans and the French made war one against the other for Maranus, the Venetians gave free passage to them both, whereof when the Germans complained, they were answered that they could not hinder it but by Arms, which it was not their custom to use, but against their publick Enemies. Agesilaus in Plutarch returning out of Asia, and demanding free passage for his Army through Macedon, was answered by the King that he would consult about it: Whereunto Agesilaus replyed, Consultet nos interea intrabimus, Let him consult; and we in the mean time will enter. Neither may it be justly objected, that the multitude of those that

are to pass, may give just cause of fear; for Jus meum metis tuo non tollitur, My Right is not taken away by thy fear: And the rather, because there are certain Remedies provided against this fear; as that they shall march in smal parties, that they shall march unarmed, or that they shall give security to repair all damages that shall be done, which was requi∣red from Isacius for his passage through Germany, (which custom, as Strabo notes, was anciently observed in the Country of the Aeleans) or that he through whose Country the Army is to pass, may at the charge of him that demands leave, hire sufficient Forces to guard his own Subjects; or that Hostages may be given, which Seleucus required of Deme∣trius, to suffer him to stay a while within the borders of his Empire. Many notable Cau∣tions and Remedies we may read of in Nicetas, made and agreed on by Frederick Barbaros∣sa, and Isacius Angelus, concerning the free passage of an Army: Yet Caesar we read deny∣ed the Switzers passage through his Province, because he believed them to be a people so rapacious that they could not abstain from acts of violence. So likewise neither is the fear of him, against whom he that craves passage makes a just War, any sufficient reason to deny passage: Nor is it sufficient to say he may pass some other way, for so may any other say, and consequently by that means all right of passage shall be taken away. But it is enough that without any fraud or ill meaning, passage is demanded the nearest or most convenient way; yet certainly if he that craves passage do make an un∣just war, or shall lead with him such as are mine enemies, I may deny them; for it is law∣ful for me to meet him even in his own Territories, to intercept his passage into mine: Neither is there only a Right in common due for persons to pass to and fro about their lawful affairs, but for their merchandises; for to hinder any one Nation from maintain∣ing commerce and traffick with another that is remote from them, is unjust. For that this freedom may be admitted and maintained, is for the common interest of humane society, neither can it bring damage unto any: For although a man do sometimes fall short of that gain, which was not due, but hoped for only, we ought not to register this among the number of our losses. To these Testimonies which we have already produced to this purpose, we shall add this one out of Philo, Merchants Ships do sail over the Seas without dan∣ger, with such Goods as Nations, out of a desire to participate of each others Commodities, do carry for exchange, whilst they mutually relieve the wants of the one, with the superfluities of the other. And another out of Plutarch, who concerning the Sea, speaks thus, Our life, which is otherwise wild and unfit for commerce, this Element perfects and makes sociable, supply∣ing whatsoever is wanting in one Nation, out of the stores of the other; and by the exchange of Merchandises, contracting a friendly consociation. Wherewith accords that of Libanius, God, saith he, Hath not made any one part of the World, the Storehouse of all his blessings, but hath wisely distributed them through all Nations, that so each needing anothers help, he might there∣by lead men to Society: And to this end he discovered unto them the Art of Merchandising, that so whatsoever any Nation produced, might be communicated unto others. And therefore Euri∣pides reckons Navigation amongst those things, which humane reason had found out for a publick good: So Theseus speaks very pertinently,

What, to one Nation, Nature doth deny, That, She from others, doth by Sea supply.

XIV. Whether Tolls may be imposed on Merchandises.

But a Question will arise, whether upon such Merchandises as are thus transported ei∣ther on Land, or in a River, or in some small parts of the Sea, which may be called Ac∣cesses to Land, Tolls may be imposed by him who hath the Soveraign Power in that Land. And doubtless if such Impositions have no respect to the Goods, there can be no colour of equity to impose them on the Goods: As if a Tax be laid by the Pole upon Subjects, to defray the charges of the Common-wealth; it cannot be required of Merchants, who pass as Strangers. But if either for the better securing of their Merchandises, or if for this among other things, the Prince shall be at any great charge, then to recompence that charge, Tolls may be imposed upon those goods that shall be thus secured, so that they be not excessive; for hereupon depends the Justice of Taxes and Tributes. Thus we read that King Solomon received Tolls for Horses and Linen Thred, passing by the Syrian Isthmus: So Pliny of Frankincense, that it could not be transported by any but the Gebanites; there∣fore there was a Toll paid unto the King for them: So the people of Marselles being ex∣ceedingly enriched by a Channel or Trench, which Marius caused to be made out of the Rhine into the Sea, imposed a Toll for all Ships importing or exporting any kind of Merchandises, as Strabo notes. And in another place he tells us, that the Corinthians did by a very anci∣ent custom, require Toll for all such Goods as were carried over Land from Sea to Sea, to avoid that dangerous passage of Malea. The like did the Romans receive for passing the Rhine. Thus did the King of Denmark exact a quarter of an ounce of Gold, for every Ship passing the Sound, and as much for the Lading, with some other smaller Sums to mountain Fires, and Barrels to guide Merchants, that they might avoid Rocks and Shelves,

as Mr. Cambden relates. Nay for passing over Bridges is Toll in some places paid, saith Seneca. Yea and for passing over Rivers, as all our Law Books testifie. But these Tolls are sometimes very excessive, whereof Strabo complains thus, Difficile est ut inter validos & feroces definia∣tur modus mercatori non gravis; It is very hard to find amongst fierce and warlike Nations, such Impositions as are not to the Merchants grievous.

XV. A right in common to stay for a time.

There is likewise a common Right for all that travel as well by Sea as by Land, to stay and rest for a while, in any Foreign parts, either for health or for any other just cause. This being comprehended among things innocently profitable, and therefore Ilioneus in Virgil being forbidden to stay on the African Shore, presumed to invoke the Gods as Judg∣es, and the complaint of the Megarenses against the Athenians for denying them admittance into their Ports, was allowed by the Graecians to have been just, as being against common Right, as Plutarch notes. The Shore is his that occupies it, and therefore they must needs be cruel who deny us things that are common. Hercules slew Laomedon for denying him the benefit of his Port: And the Lacedaemonians thought no cause of War could be more just, than to be denyed the benefit of the Shore. And consequently it is likewise lawful to erect a little slight Cottage on the Shore for present shelter, notwithstanding that, we do grant that shore to be possest by the people that are Natives: For whereas Pomponius requires an Order from the People or Praetor, to license any man to erect any thing upon the common shore or in the Sea, it is to be understood of such Edifices, as are lasting and permanent; whereunto tends that of the Poet,

Contracta pisces aequora sentiunt, Jactis in altum molibus.

—Whilst Hills in Seas are cast, Fish frighted from their Holds, do stand agast.

XVI. A right to in∣habit for such as are expel∣led their own Country.

Neither may we justly deny such Strangers as are driven from their own Seats, a right of perpetual cohabitation, whilst they shall submit to the Government established, and to other things necessary to avoid Sedition, which was very well observed by the Poet, where he brings in Aeneas tendring these reasonable Conditions,

—Socer arma Latinus habeto, Imperium solenne socer.

And Latinus himself in Halicarnassensis adjudged Aeneas his cause to be just, if being desti∣tute of any other place of habitation, he were inforced thither. Barbarum est hospites pel∣lere; To drive those from us who come like Friends to visit us, or to dwell amongst us is barbarous. Neither are the Spartans herein to be approved of: So St. Ambrose, Their advice is not to be followed who would not have Strangers to live among them. Thus did the Graecians receive the Colophonians, the Rhodians Phorbantes with his Associates, the Lacedaemonia••s the Minyans, as the Cumaeans did others that came to cohabit with them. But when the same Minyans, being so received, demanded to share with the Lacedaemonians in their Government, He∣rodotus justly condemns them as ungrateful, for pretending to that whereunto they could have no Right; whereby (as Valerius Maximus observes) that was turned into an injury, which was intended as a Courtesie.

XVII. Especially places desart, and untilled.

And if there be within the Territories of any Prince or People, any Land that is desart and incultivated, that also is to be granted unto Strangers if they request it, or they may lawfully possess it, because that which is not cultivated is reputed as desart, unless it be in respect of the Soveraignty, which remains notwithstanding with the people or Prince within whose Territories it lyes. Servius notes, that seven hundred Furlongs of Land be∣ing barren and hard, was by the old Latines granted to the Trojans: And we read in Dio∣nysius Prusaeensis, that Nihil peccant qui partem terrae incultam colunt, They do no wrong that are willing to inhabit places desert and unoccupied. The Ansibarii of old (in Tacitus) cry out against the Romans, for denying them some grounds that (as they conceived) lay waste. Thus, As the Gods have reserved Heaven to themselves, so have they given the Earth to Mankind, every part whereof that lyes unoccupied, is common. And then looking up to the Sun, and the Stars, he thus demands of them, Vellent ne intueri inane solum? Whether they were willing to behold the Earth to lye desolate, and not rather that the Sea should overflow it, than to suffer such destroy∣ers

of the Earth to engross it, and to make no use of it? But these general sayings, though true, yet were ill applyed to the matter then in question: For those Lands did not at all lye waste, but served for the depasturing of all manner of Cattle belonging to the Souldiers, and might therefore justly be denyed them. No less just was that Query which the ancient Romans made to the Gallisinones, By what Right they exacted Land from the Right owners, and in case of refusal threatned War?

XVIII. A right to such acts with∣out which men cannot well live.

After the Right that is Common to things, follows that which is Common to some acts: And this Right is granted either simply, or upon supposition. Simply, This Right in Common is granted to such Acts, whereby those things may be acquired, without which we cannot conveniently subsist. I mean not here, such a necessity as justifies us in the ta∣king away of another mans goods: For we discourse not here, of things taken away against the will of the right owner, but of the means how to obtain things convenient, with the consent of the owner; at least, that no impediment be given either by a publick Law, or any private Conspiracy: For in such things whereof we have spoken, such an Impediment is repugnant to humane Society. Thus Plutarch concerning the Megarenses, They bitterly complained, that contrary to the Law of Nations, they were denyed traffick, and driven from all Ports which were held by the Athenians. What every Countrey abounds with, saith Seneca, is made known to all Nations, that all men might see the necessity there was of main∣taining commerce among themselves, in case any Nation did want what another Nation had. And again, Whatsoever any people hath, that doth Commerce give to all, and those Countreys that are disperst and distant from each other, Traffick unites and knits together. I speak not here, as to things superfluous or voluptuous, but of such only as conduce to the preservation of our Lives, as Aliment, Vestments, Medicaments, and the like.

XIX. A right of buying neces∣saries.

To procure those things at an equal rate, every man (we say) hath a Common Right; unless they from whom such things are required, do themselves stand in need of them: As in the time of a Common dearth we usually forbid the transportation of Corn; For, that the Natives should first be fed with the fruits of their own Land is but reasonable. And yet in so necessitous a time, the strangers whom we have once admitted, we can∣not expel. For, Commune Malum communiter tolerandum; Common Calamities must be born in Common.

XX. But not al∣ways to sell.

But to sell their Commodities, it is not fit to allow every man the same Right; For every man is free to prescribe what he will buy, and what he will not. So the Belgians of old would not admit of Wine, and other exotick Commodities, to be sold amongst them. The like Strabo testifies of the Arabians, amongst whom some things might be imported, and others not.

XXI. A Right to contract Ma∣trimony.

By this right it is Lawful for the people of one Nation to contract Matrimony with the people of another; especially, if being driven out of their own Countrey, they shall come to inhabit another. For though some men may live without the use of Wo∣men, yet others cannot. They are men of excellent tempers that can content them∣selves to lead single lives: And therefore to abridge them of the liberty of Marriage is an Injury offered to humane Nature. Romulus, in Livy, makes it his request to his Neigh∣bours, That they would not disdain by Interchangable Marriages to mix generations with them. And Canuleius in the same Author pleads thus, We, saith he, require but lawful Wedlock, which to Neighbour Nations and Foreigners is usually granted. What is unjustly deny∣ed, may by the right of War be justly taken, saith Aug. Now whereas the Civil Laws of some people do carefully provide against such Marriages; they seem to be grounded upon this reason, Because in the times when those Laws were made, there was hardly any Nation or People but were sufficiently stored with Women, or that those Laws were not intended to interdict all such Marriages, but such only as were Legitimate or Just; that is, which should produce some special effects of a Civil Right.

XXII. A Right to do such acts as were permit∣ted to all strangers.

Among such acts whereunto a Right in Common is given by supposition, we are to reckon those which a Prince or People do promiscuously permit to all strangers; for that Nation is injured which is excluded. Thus if it be permitted in any place for strangers to Hunt, Fish, Hawk, gather Pearls; If it be allowed them to receive Legacies, to sell Commodities, if (even where there is no scarcity of Women) to contract Marriages, these cannot be denied to any one people, unless they have some ways abused their Liberty; for which cause it was, that the rest of the Hebrews denied to inter-marry with the Ben∣jamites.

XXIII. I mean such as are permitted by the Right of nature, not out of grace and favour.

But this is to be understood of such Acts only, as are permitted, as it were, by ver∣tue of that liberty which nature gives, being restrained or taken away by no Law: but not of such as are indulged to any Nation as acts of Grace, dispensing with the Laws; For to deny a Courtesie is no Injury.

XXIV. Whether to engross all the fruits of one kind be law∣ful.

Another Question is frequently started, which is this, Whether it be lawful for one Nation to contract with another for all their Fruits of such a kind, which are no where else to be found, so that they shall sell none to any other Nation. This in mine opinion may be lawful: If that people that shall so buy them, be willing to communicate to others at a reasonable price. For it concerns not other Nations much by whom they are sup∣plied with their Natural wants, so as they are supplied. And it is lawful for any to anticipate others in matters of profit, especially if there be any special cause for it; as in case the people making this Contract, shall undertake the protection of the other people, and shall for that cause be at some expence or charge. For such an Ingrossing made with such an Intent, as I have said, is no way repugnant to the Natural Right; although it be sometimes prohibited by the Civil Law, for the benefit of the Common-wealth.

Notes

• Gen. 1.29, 30.9.2.
• De s••••ibus l. 3.
• De benefic. l. 7. c. 12.
• A Commu∣nity of all things.
• Gell. l. 1. c. 9. ad finem. Porphyr. Diog. Laert.
• The Simplici∣ty of the first age, wherein it consisted. Ep. 90.
• 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Wisd. 3.24. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• Arbor vitae.
• See Ecclus. 40.17. And of the four Ri∣vers. Ecclus. 24.55. The Tree of Knowledge of Good and E∣vil, what it signified. Eccl. 7.29.
• The Age of the Giants.
• Ambition. Gen. 13.
• Virg. Georg. 1.
• Gen. 13. Gen. 21.
• Mari libero•• c. 15.
• Got. 2.
• See as to this matter what the honour of the English Nation, Selden hath traduced unto us out of the Gemara and the Al••o∣ran, in his Thalassocra∣tico.
• †

  De sinib. l. 3.
• The Ocean not bounded.
• Paneg.
• De gener. l. 2. c. 2.
• Greater than the Earth.
• Lib. 3. c. 11.
• Though the Civil Law can enjoyn nothing that the Law of Nature for∣bids, yet it may bound that which the Law of Nature leaves Free.
• In Navigati∣on.
• In the case of Fire.
• Philip 11.
• Cyr. exped. l. 5.
• Lactant. l. 5. c. 17.
• Off. l. 3.
• Livy l. 24.
• De exped. Cyri lib. 5.
• †

  De off. l. 1. De benef. lib. 4.
• Numb •••• ••1
• Li. quaest. 4 sup. Numb. c. 20.
• Apollodor.
• Scholiast. in Hor. Carmen in Canidiam.
• Plut. Ages.
• Hist. l. 4.
• Leave to be first asked.
• Which if de∣nyed may be forced.
• Paruta lib. 11.
• Remedies a∣gainst this fear.
• Nicetas l. 2.
• De bell. Gall. lib. 1.
• To hinder traffick with remote Nati∣ons is unjust.
• In legatione ad Cajum.
• 1 Kin. 10.28.12.14.
• Lib. 4. Lib. 8.
• Vit. Perici.
• Lib. 1.
• Lib. 17.
• De off. l. 3. c. 7. Herod. l. 1. & 4. Paus. l. 7. Oros. l. 7. Diod. l. 5.
• Lib. 4. c. 6.
• Ad xi. Aen. Orat. 7.
• Annal. l. 13.
• Livy l. 5.
• Pericle.
• The Right of Traffick com∣mon to all. E••. 87.
• Cassiod. l. 1. Ep. 34.
• Lib. 1.
• De Civit. Dei lib. 2. c. 17.
• Judg. 20.