But some things there be, that can neither be divided, nor enjoyed in common. Then, the law of nature, which prescribeth equity, requireth, that the entire right; or else, making the use alternate, the first possession, be determined by lot. For equal distribution, is of the law of nature; and other means of equal distribution cannot be imagined.
The fourteenth, of primogeniture, and first seizing.
Of lots there be two sorts, arbitrary, and natural. Arbitrary, is that which is agreed on by the competitors: natural, is either primogeniture, which the Greek calls κληρονομία, which signifies, given by lot; or first seizure.
And therefore those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot.
The fifteenth, of mediators.
It is also a law of nature, that all men that mediate peace, be allowed safe conduct. For the law that commandeth peace, as the end, commandeth intercession, as the means; and to intercession the means is safe conduct.
[Illustration: The sixteenth, of submission to arbitrement.]
And because, though men be never so willing to observe these laws, there may nevertheless arise questions concerning a man’s action; first, whether it were done, or not done; secondly, if done, whether against the law, or not against the law; the former whereof, is called a question of fact; the latter a question of right, therefore unless the parties to the question, covenant mutually to stand to the sentence of another, they are as far from peace as ever. This other to whose sentence they submit is called an ARBITRATOR. And therefore it is of the law of nature, that they that are at controversy, submit their right to the judgment of an arbitrator.
The seventeenth, no man is his own judge.
And seeing every man is presumed to do all things in order to his own benefit, no man is a fit arbitrator in his own cause; and if he were never so fit; yet equity allowing to each party equal benefit, if one be admitted to be judge, the other is to be admitted also; and so the controversy, that is, the cause of war, remains, against the law of nature.