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38 the free sea 1. Vitoria, De Indis, II. 2. 2. Sylvester Prierias, Summa Sylvestrina, on the word Papa, XVI. chapter 6 The sea or right of navigation is not proper to the Portugals by title of the Pope’s gift The donation of Pope Alexander, which may be alleged in the second place by the Portugals challenging the sea or right of sailing only to themselves , seeing the title of invention faileth, is sufficiently convinced of vanity by that which hath been spoken before. For donation hath no force in things which are without the compass of merchandise, wherefore, seeing the sea or the right of sailing in it can be proper to no man, it follows that it could neither be given by the Pope nor received of the Portugals. Further , seeing it is before declared by the opinion of all men of sound judgment that the Pope is not a temporal lord of the whole world, it is sufficiently understood that he is not lord of the sea. Although that be granted, yet the right annexed to the papacy should in no part be transferred to any king or people, as the emperor could not convert or alien at his pleasure the provinces of the empire to his own uses.1 That no man, at the least that hath any shame, will deny, seeing no man will grant the Pope right of disposing in temporal things unless peradventure so much as his necessity of spiritual things requireth, but these things whereof we now treat—to wit, the sea and the right of sailing—respect gain and mere profit, not the affairs of piety; it follows that his power in this was nothing. What, cannot princes indeed, that is temporal lords, by any means hinder any from navigation, seeing if they have any right in the sea it is only the right of protection and jurisdiction? That also is well known among all that the Pope hath no authority to do these things which are contrary to the law of nature.2 But it is contrary to the law of nature that anyone should have the sea or the use thereof proper to himself, as we have now sufficiently declared. To conclude, therefore: seeing the Pope cannot take any man’s right from him, what defense shall this fact have if the free sea 39 1. Vázquez, Controversiae illustres, I. 23. 3–4. 2. Doneau, Commentarii de jure civili, V. 22 ff. 3. Digest, XVIII. 1. 6; Digest, XLI. 3. 9, 25; Sext, V. 12, ult. reg. 3; Digest, L. 16. 28; Digest, XXIII. 5. 16. with one word he should exclude so many people, undeserving, uncondemned and harmless, from that right which no less appertained unto them than to the Spaniards? Therefore we must either say that such a pronouncing was of no force or, which is no less credible, that the Pope’s meaning was such that he desired the strife between the Castilians and the Portugals should be mediated but nothing of others’ right diminished. chapter 7 That the sea or right of sailing is not proper to the Portugals by title of prescription or custom The last defense of injustice is wont to be in prescription or custom. And the Portugals therefore come thronging hither, but the most certain reason of the law debarreth them of either defense. For prescription is from the civil law, wherefore it can have no place among kings or among free people , much less where the law of nature or nations resisteth it, which always is more forcible than the civil law.1 But here even the very civil law itself forbiddeth prescription.2 For those things are forbidden to be gotten by prescription which cannot be accounted in the nature of goods, next those things which at all cannot be possessed nor as it were possessed and whose alienation is prohibited.3 But all these are truly said of the sea and the use thereof. And seeing public things—that is to say, appertaining to any people— can be said to be gotten by no possession of time, either by reason of the nature of the thing or by reason of their privilege against whom this prescription should proceed, how much more justly was that benefit to be ...

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