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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 40 the free sea 4. Code, VIII. 12. 6; Code, XI. 42, 9; Digest, XLIII. 11. 2. 5. Digest, XLI. 3. 45. 6. Angelus, Consilia, CCXC. This is the theme in the other chapters on peace [Grotius ’s note]. 7. Digest, XLIV. 3. 7. 8. Douaren on Digest, XLI. 3; Cujas on Digest, XLI. 3. 45; Doneau, Commentarii de jure civili, V. 22. 9. Castrensis on Digest, XLI. 1. 14, n. 4. given in common things to mankind than to one people?4 And this that which Papinianus hath left in writing, that prescription of long possession to obtain the public place of the law of nations is not wont to be granted. And he giveth an example thereof in a shore, part whereof was possessed by a building set upon it, for that being overthrown and another man’s building set up in the same place afterward could not be opposed as an exception, which he illustrateth by a similitude of a public thing.5 For although any man have fished many years in the creek river, afterwards, the fishing being interrupted, he could not forbid another by the same right. It is apparent therefore that Angelus and they who with Angelus said that the Venetians and Janueses might get sound right to a bay of their sea lying before their shore were either deceived or deceivers,6 which is too usual among lawyers, seeing they confer the authority of a holy profession not to reason and laws but to the favor of the more mighty. For surely Marcianus’ answer (whereof also we spake before),7 if it be rightly compared with Papinianus’ word, can receive no other interpretation than that which was sometimes allowed of Johannes and Bartolus and is now received of all the learned: to wit, that the right of prohibiting should proceed so long as the occupation continueth, but not if it be omitted.8 For being omitted it profiteth not, although it had been continued a thousand years, as Castrensis rightly observeth.9 And although Marcianus would have had it so (which he is not supposed to have thought) that prescription should be granted in the same place where the occupation is granted, yet to apply that which was spoken of a public river to the common sea, and of a creek to a bay, was absurd, seeing this prescription should hinder that use which by the law of nations is common, but that should not much [3.145.156.46] Project MUSE (2024-04-26...

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