Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

Two Books of the Elements of Universal Jurisprudence - Samuel Pufendorf


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target="_blank" rel="nofollow" href="#ulink_9b10d1c7-d149-5a4f-ba5b-50421aecbc4f">8. To this point, therefore, the essential controversy reduces itself: Whether, namely, as the nations have made portions of the earth their own, so they have also made portions of the sea their own. Or, indeed, whether by tacit consent they have treated the whole, or certain parts of it as derelict. For answering this question it is helpful to consider just what uses the sea furnishes to mortals, which uses are so appointed that, if they should be thrown open promiscuously to all men, the condition of some one state would be the worse. For from that it will be easy to judge as to just what parts of the sea should be regarded as occupied and under ownership, and just what should be regarded as derelict.13 Laying aside, therefore, the use for purposes of drawing water and bathing, which is of no great consequence and is available only to those who live near the coast, there are found to be two reasons principally why a people cannot, without loss to itself, <28> allow others to go to and fro promiscuously on the sea that is close by; these are fishing and the defence of the region.

      Now although fishing in the sea is far richer than in rivers or lakes, yet it is manifest that it becomes harder for those who live near the sea, or can be partially exhausted, if different nations desire to fish along the coasts of a certain region. Since the same sea, indeed, acts in the way of defence also (though an equivocal defence, whereby, although land ways are broken off, still there is wide open access by ships), it is of course plain that it is by no means to the interest of maritime peoples that any and every one should have the right to sail the sea which extends along their districts, without being on his guard against giving offence; no more so than that any and every one should be allowed to take short cuts across the moats and ramparts of cities. It is presumed, therefore, that every maritime state whatsoever has desired to reserve to itself such dominion over the sea which extends along its coast, as will suffice to prevent some peril being threatened against itself by ships which come too close. Thence it follows that, although otherwise the use of travel by sea is a matter of innocent and inexhaustible utilization (and it would be a matter of the utmost inhumanity to deny or to charge such things to any one, unless something else induce one to do so), still, for the aforesaid reason of defence, a certain people can rightly prevent any outsider from coming within a definite distance from its own shores, except by a previous announcement and with the consent of that same people, or else by giving a definite sign that the approach or passage is friendly. The distance out to sea which serves the function of this kind of defence, in respect to which ownership is exercised by some people over that distance, cannot be so accurately determined in general, but must be recognized from the accepted custom among different nations. But if a bay or a channel opens out between two peoples, their several sovereignty is understood to terminate in the middle of the bay or channel, unless one of the two, by pact or agreement on the part of the other, has acquired domain over the whole stretch of water. From this it is clear that that people or those peoples whose territory is washed by a bay of the sea obtain in due order sovereignty over that same bay. So it cannot be doubted that the Romans, when they held all the lands that bordered on the Mediterranean Sea, possessed such sovereignty over that same sea, or were properly able to exercise it, that they could prevent any ships whatsoever of outsiders from passing through the straits at Gades.


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