[370] Lib. ii., c. 1., § 8. Gronovius observes pithily and truly on this: melius occidi quam occidere injuria; non melius occidi injuria quam occidere jure.
[371] Hodie omnes ferme tam jurisconsulti quam theologi doceant recte homines a nobis interfici rerum defendendarum causa, § 13.
95. Injury to our rights, therefore, is a just cause of war. But what are our rights? What is property? whence does it come? what may be its subjects? in whom does it reside? Till these questions are determined, we can have but crude and indefinite notions of injury, and consequently of the rights we have to redress it. The disquisition is necessary, but it must be long; unless indeed we acquiesce in what we find already written, and seek for no stable principles upon which this grand and primary question in civil society, the rights of property and dominion, may rest. Here then begins what has seemed to many the abandonment by Grotius of his general subject, and what certainly suspends for a considerable time the inquiry into international law, but still not, as it seems to me, an episodical digression, at least for the greater part, but a natural and legitimate investigation, springing immediately from the principal theme of the work, connected with it more closely at several intervals, and ultimately reverting into it. But of this the reader will judge as we proceed with the analysis.
Its origin and limitations. 96. Grotius begins with rather too romantic a picture of the early state of the world, when men lived on the spontaneous fruits of the earth, with no property except in what each had taken from the common mother’s lap. But this happy condition did not, of course, last very long, and mankind came to separate and exclusive possession, each man for himself and against the world. Original occupancy by persons, and division of lands by the community, he rightly holds to be the two sources of territorial propriety. Occupation is of two sorts, one by the community (per universitatem), the other (per fundos) by several possession. What is not thus occupied is still the domain of the state. Grotius conceives that mankind have reserved a right of taking what belongs to others in extreme necessity. It is a still more remarkable limitation of the right of property, that he carries very far his notions of that of transit, maintaining that not only rivers, but the territory itself of a state may be peaceably entered, and that permission cannot be refused, consistently with natural law, even in the case of armies; nor is the apprehension of incurring the hostility of the power who is thus attacked by the army passing through our territory a sufficient excuse.[372] This of course must now be exploded. Nor can, he thinks, the transit of merchandise be forbidden or impeded by levying any farther tolls than are required for the incident expenses. Strangers ought to be allowed to settle, on condition of obeying the laws, and even to occupy any waste tracts in the territory;[373] a position equally untenable. It is less unreasonably that he maintains the general right of mankind to buy what they want, if the other party can spare it; but he extends too far his principle, that no nation can be excluded by another from privileges which it concedes to the rest of the world. In all these positions, however, we perceive the enlarged and philanthropic spirit of the system of Grotius, and his disregard of the usages of mankind, when they clashed with his Christian principles of justice. But as the very contrary supposition has been established in the belief of the present generation, it may be doubtful whether his own testimony will be thought sufficient.
[372] Sic etiam metus ab eo in quem bellum justum movet is qui transit, ad negandum transitum non valet. Lib. ii., c. 2, § 13.
[373] 16, 17.
Right of occupancy. 97. The original acquisition of property was in the infancy of human societies, by division or by occupancy; it is now by occupancy alone. Paullus has reckoned as a mode of original acquisition, if we have caused anything to exist, si quid ipsi, ut in rerum natura esset, fecimus. This, though not well expressed, must mean the produce of labour. Grotius observes, that this resolves itself into a continuance of a prior right, or a new one by occupancy, and therefore no peculiar mode of acquisition. In those things which naturally belong to no one, there may be two sorts of occupation, dominion or sovereignty, and property. And, in the former sense at least, rivers and bays of the sea are capable of occupation. In what manner this may be done he explains at length.[374] But those who occupy a portion of the sea have no right to obstruct others in fishing. This had been the subject of a controversy with Selden; the one in his Mare Liberum denying, the other in his Mare Clausum sustaining, the right of England to exclude the fishermen of Holland from the seas which she asserted to be her own.
[374] C. 3.
Relinquishment of it. 98. The right of occupancy exists as to things derelict or abandoned by their owners. But it is of more importance to consider the presumptions of such relinquishment by sovereign states, as distinguished from mere prescription. The non-claim of the owner during a long period seems the only means of giving a right where none originally existed. It must be the silent acquiescence of one who knows his rights and has his free will. But when this abandonment has once taken place, it bars unborn claimants; for he who is not born, Grotius says, has no rights; ejus qui nondum est natus nullum est jus.[375]
[375] C. 4.