CHAPTER 5
That the sea or right of sailing on it is not proper to the Portugals by title of possession
If then the Portugals obtained no right over the people, countries, and jurisdictions, let us see whether they can make the sea and navigation or traffic to be in their power. Let us first consider of the sea which, seeing it is everywhere said to be no man’s right, or common, or the public right of nations, what these words signify shall be most fitly declared if, following all poets from Hesiodus and philosophers and ancient civilians, we distinguish those things into times, which peradventure not a long time, yet notwithstanding by certain reason and their nature, are distinguished. Neither are we to be blamed if in the explanation of the law of nature we use their authority and words who (as it is manifest) were most powerful in the judgment of nature.
We are to know, therefore, in the first beginning of the life of man, dominion was another thing and communion differing from that which they are now.1 For now dominion properly signifieth that which so appertaineth unto one that after the same manner it cannot be another’s, but we call that common whose propriety is conferred among many with a certain fellowship and agreement excluding the rest. The defect of tongues hath enforced to use the same words in a thing which was not the same. And so these names of our custom are referred to that ancient law by a certain similitude and resemblance. That, therefore, which at that time was common was no other thing than that which is simply opposed unto proper. But dominion is a just or lawful power to use a common thing, which it seemed good to the Schoolmen to call usum facti, non juris because that use which is now called use in law or right is a certain propriety, or (that I may speak after their manner) is said privatively unto others.2
By the first law of nations, which sometimes also is called natural and which the poets elsewhere describe in the golden age, and in another place in the kingdom of Saturn or Justice, nothing was proper, which Cicero affirmed: “For by nature nothing is private.”3 And Horace:
nam proprie telluris herum natura nec illum,
nec me, nec quemquam statuit. 4
For nature could not distinguish lords. In this signification, therefore, we affirm all things common at that time, signifying the same thing which the poets do when they say the first men sought the middle and justice held the middle of things by a chaste and inviolable covenant; which, that they might more plainly express, they deny that the fields were divided by bounds at that time or that there was any traffic:
promiscua rura per agros
praestiterant cunctis communia cuncta videri. 5
This word videri is rightly added by reason of the translation of the word as we have said. But this communion was referred unto use:
pervium cunctis iter,
communis usus omnium rerum fuit. 6
By reason whereof there was a certain kind of dominion, but universal and indefinite. For God gave all things not to this man or that but to mankind and after that manner many may be wholly lords of the same thing; but if we take dominion in that signification which it hath at this day it is against all reason, for this includeth a propriety which then no man had. But that is most aptly spoken:
omnia rerum
usurpantis erant. 7
But it seemeth we are come to that distinction of dominions which is now not violent but by little and little, nature showing the beginning thereof. For seeing there are many things the use whereof consisteth in abuse, or for that being converted into the substance of the user they admit no use after, or because by use they are made worse for use, in things of the former kind, as meat and drink, a certain propriety appeared not severed from use.8 For this is to be proper, so to appertain to any that it cannot also be another’s, which afterwards by a certain reason was derived to things of the latter kind, to wit, garments and chattels or movables; which being so, all immovable things—to wit, fields—could not remain undivided, although the use of them consist not simply in abuse, yet the use thereof was procured by reason of some abuse, as ploughed fields and orchards of fruit trees for food, pastures also for raiment, but they could not in common suffice for the use of all people. Property being found out, there was a law set down which should imitate nature. For, as in the beginning that use was had by corporal application whence, we said before, property had his original, so by the like application it seemed good they should be made the proper goods of everyone. This is that which is called occupation by a word most aptly applied unto those things which before were indifferent. Whereunto the tragedian Seneca alludeth,
in medio est scelus
positum occupanti, 9
and the philosopher, “All things pertaining to the Horsemen belonged to the gentlemen of Rome, yet amongst them is my proper place which I possessed.”10 Hereupon Quintilian saith it is natural to all that there should be a reward of industry and Tully that things by ancient occupation became theirs who in times past succeeded into the goods of the dead.11 But this occupation in those things which resist possession, as wild beasts, ought to be perpetual; in other things it sufficeth that a corporal possession begun be retained in the mind. Occupation or possession in movables is apprehension; in immovables, instruction and limitation. Whereupon when Hermogenianus saith they were distinct dominions he added that the fields were bounded and houses built.12 This state of things is declared of poets:
tum laqueis captare feras, et fallere visco
inventum; 13
tum primum subiere domos; 14
communemque prius, ceu lumina solis et aurae
cautus humum longo signavit limite messor. 15
After these things, intercourse of merchandise began to come in use, for which cause,
fluctibus ignotis insultavere carinae. 16
The same time commonwealths began to be instituted and established. And so of those which were divided or separated from the first common two kinds are made, for some things are public, to wit, proper to the people (which is the double signification of this word), some things mere private, to wit, proper to every particular man. But occupation is made public after the same manner that it is made private. Seneca saith, “we call those the bounds of the Athenians or Campanians which afterward the borderers divide among themselves by private bounds.”17 For every nation,
partita fines regna constituit, novas
extruxit urbes. 18
After this manner Cicero saith, “the territory of the Arpinates is called Arpinatum, of the Tusculans, Tusculanum; the like description,” saith he, “is of private possessions, whereupon because every man’s own consisteth of those things which by nature were common, let every man hold that which fell to his share.”19 But contrariwise Thucydides calleth that land which fell to no people in division ἀοριστον, to wit, indefinite.20
Of these things which hitherto have been spoken two things may be gathered. The first is that those things which cannot be occupied or were never occupied can be proper to none because all propriety hath his beginning from occupation.21 The other is that all those things which are so ordained by nature that anyone using them they may nevertheless suffice others whomsoever for the common use are at this day (and perpetually ought to be) of the same condition whereof they were when nature first discovered them. Cicero meaneth this when he saith, “This society among all showeth itself far to all men among themselves, in the which a community of all