XI. There is another right, which is that of making use of the property of another, where such use is attended with no prejudice to the owner. For why, says Cicero, should not any one, when he can do it without injury to himself, allow another to share with him those advantages, which are useful to the receiver, and no way detrimental to the giver? Seneca therefore observes, that it is no favour to allow another to light his fire from your flame. And in the 7th book of Plutarch's Symposiacs, we find an observation, that when we have provisions more than sufficient for our own consumption it is wicked to destroy the remainder; or after supplying our own wants, to obstruct or destroy the springs of water; or after having finished our voyage, not to leave for other passengers the sea-marks, that have enabled us to steer our course.
XII. Upon the principles already established, a river, as such, is the property of that people, or of the sovereign of that people, through whose territories it flows. He may form quays, and buttresses upon that river, and to him all the produce of it belongs. But the same river, as a running water, still remains common to all to draw or drink it. Ovid introduces Latona thus addressing the Lydians, "Why do you refuse water, the use of which is common?" where he calls water a public gift that is common to men, taking the word public in a more general sense than as applied to any PEOPLE, a meaning in which some things are said to be public by the law of nations. And in the same sense Virgil has asserted water to be free and open to all men.
XIII. It is upon the same foundation of common right, that a free passage through countries, rivers, or over any part of the sea, which belongs to some particular people, ought to be allowed to those, who require it for the necessary occasions of life; whether those occasions be in quest of settlements, after being driven from their own country, or to trade with a remote nation, or to recover by just war their lost possessions. The same reason prevails here as in the cases above named. Because property was originally introduced with a reservation of that use, which might be of general benefit, and not prejudicial to the interest of the owner: an intention evidently entertained by those, who first devised the separation of the bounteous gifts of the creator into private possessions. There is a remarkable instance of this in the Mosaic history, when the leader of the children of Israel required a free passage for that people, promising to the King of Edom, and to the King of the Amorites, that he would go by the highway, without setting a foot upon the soil of private possessions, and that the people should pay the price of everything, which they might have occasion to use. Upon these equitable terms being rejected, Moses was justified in making war upon the Amorites. Because, says Augustin, an inoffensive passage, a right interwoven with the very frame of human society, was refused. The Greeks under the command of Clearchus, said, "we are upon the way to our home, if no one interrupt us; but every attempt to molest us, we are, with the assistance of heaven, determined to avenge."
Not unlike this answer of the soldiers under Clearchus is the question put to the different nations of Thrace by Agesilaus, who desired to know whether they wished him to pass through their country as a friend, or as an enemy. When the Boeotians hesitated upon some propositions made to them by Lysander, he asked them whether they intended that he should pass with erected or inclined spears, meaning by the expression in a hostile or a quiet manner. We are informed by Tacitus, that the Batavians, as soon as they came near the camp at Bonn, sent a message to Herennius Gallus, importing that "they had no hostile design; that if not obstructed, they would march in a peaceable manner; but if they met with opposition they would cut their way sword in hand." When Cimon in carrying supplies to the Lacedaemonians, had marched with his troops through some part of the Corinthian district, the Corinthians expostulated upon his conduct as a violation of their territory, because he had done it without asking their leave, at the same time observing, that no one knocks at another man's door, or presumes to enter the house without obtaining the master's leave. To whom he replied, you never knocked at the gates of Cleone and Megara, but broke them down, believing, I suppose, that no right ought to withstand the force of the mighty.
Now between these two extremes there is a middle course, requiring a free passage to be first asked; the refusal of which will justify the application of force. Thus Agesilaus in his return from Asia when he had asked a passage of the King of the Macedonians, who answered that he would consider of it, said, you may consider, if you please, but we shall pass in the mean time.
The fears, which any power entertains from a multitude in arms passing through its territories, do not form such an exception as can do away the rule already laid down. For it is not proper or reasonable that the fears of one party should destroy the rights of another. Especially, as necessary precautions and securities may be used, such as those, for instance, of requiring that the troops shall pass without arms, or in small bodies; a promise which the Agrippinians made to the Germans. And, as we are informed by Strabo, the practice still prevails in the country of the Eleans. Another security may be found in providing garrisons at the expense of the party, to whom the passage is granted; or in giving hostages; the condition, which Seleucus demanded of Demetrius, for permitting him to remain within his territories. Nor is the fear of offending that power, which is the object of attack, a sufficient pretext for refusing the passage of the troops to the state that is engaged in a just war. Nor is it a proper reason to assign for a refusal, to say that another passage may be found; as every other power might allege the same, and by this means the right of passage would be entirely defeated. The request of a passage therefore, by the nearest and most commodious way, without doing injury and mischief, is a sufficient ground upon which it should be granted. It alters the case entirely, if the party making the request is engaged in unjust war, and is marching with the troops of a power hostile to the sovereign of that territory; for in this instance, a passage may be refused. For the sovereign has a right to attack that power in his own territory, and to oppose its march.
Now a free passage ought to be allowed not only to persons, but to merchandise. For no power has a right to prevent one nation from trading with another at a remote distance; a permission which for the interest of society should be maintained. Nor can it be said that any one is injured by it. For though he may be thereby deprived of an exclusive gain, yet the loss of what is not his due, as a MATTER OF RIGHT, can never be considered as a damage or the violation of a claim.
XIV. But it will form a subject of inquiry, whether the sovereign of the country has a right to impose duties on goods carried by land, or upon a river or upon any part of the sea, which may form an accession to his dominions. It would undoubtedly be unjust for any burdens foreign to the nature of trade to be imposed upon such goods. Thus strangers merely passing through a country would have no right to pay a poll-tax, imposed to support the exigencies of the state. But if the sovereign incurs expence by providing security and protection to trade, he has a right to reimburse himself by the imposition of moderate and reasonable duties. It is the REASONABLENESS of them, which constitutes the justice of customs and taxes. Thus Solomon received tolls for horses and linen that passed over the Isthmus of Syria. Pliny, speaking of frankincense, observes that as it could not be transported but by the Gebanites, a duty upon it was paid to their king. In the same manner, as Strabo informs us in his fourth book, the people of Marseilles derived great wealth from the canal which Marius had made from the Rhone to the sea, by exacting tribute of all that sailed upon it to and fro with vessels. In the eighth book of the same writer, we are told that the Corinthians imposed a duty upon all goods, which, to avoid the dangerous passage of Cape Malea, were transported by land from sea to sea. The Romans too made the passage of the Rhine a source of tribute, and Seneca relates that a toll was paid for going over bridges. The works of legal writers abound in instances of this kind. But it frequently happens that extortion is practised in these matters, which Strabo forms into a subject of complaint against chiefs of the Arabian tribes, concluding that it would be unlikely for men of that lawless kind to impose upon the goods of merchants any duties that were not oppressive.
XV. Those going with merchandise or only passing through a country, ought to be allowed to reside there for a time, if the recovery of health, or any other just cause should render such residence necessary. For these may be reckoned among the innocent uses of our right. Thus Ilioneus in Virgil calls heaven to witness the injustice of the Africans in driving him and his shipwrecked companions from the hospitable use of the shore, and we are informed by Plutarch in his life of Pericles that all the Grecians approved of the complaint, which the Megarensians made against the Athenians, who had prohibited them from setting foot upon the soil of their territories, or carrying a vessel into their harbours. So the Lacedaemonians regarded this as the most sufficient grounds to justify the war.
From hence results the right of erecting a temporary hut, upon the shore, although, for instance, the same shore is allowed to be the property of the people of that place. For what Pomponius says of its being necessary to obtain the Praetor's leave, before a building can be raised upon the public shore, relates to structures of a permanent kind, when the massy piles of stone, as the Poet says, encroach upon the sea, and the affrighted fish feel their waves contracted.