The Rights of War and Peace: In Three Volumes

Chapter VII. Of an Acquisition derived to one by Vertue of some Law; where also of succeeding to the Effects and Estate of a Man who dies without a Will

579 u c h a p t e r v i i u Of an Acquisition derived to one by Vertue of some Law; where also of succeeding to the Effects and Estate of a Man who dies without a Will. I. Now that derivative 1 Acquisition, or Alienation, which is owing to some Law, is either from the Law of Nature, or the voluntary Law of Nations, or from the Civil Law. We are not treating of Civil Law here, for that would be an endless Task, neither are the most considerableDisputes in War to be determined by it: But we shall only observe, thatthere are some of the Civil Laws 2 that are plainly unjust; as those by which 3 all shipwrecked Goods are confiscated. For to take away a Man’s I. (1) See Chap. II. of this Book, § 1. 2. I have produced several Examples of this Kind in my Discourse On the Permission of the Laws, &c. printed in 1715. 3. As formerly in England, Britany, and Sicily. A Constitution of the Emperor Frederick supposes this practised in several Countries; for it orders, that Both theShips driven on any Coast, and the Goods found in them, should be kept entire for the Proprietors , &c. notwithstanding the Custom of some Places to the contrary. Except they be Pirates, Enemies to the Empire or Christianity. Code, Lib. VI. Tit. II. De Furtis, Authent . post. Leg. XVIII. Sopater and Syrianus, in Hermogen. (◊Eic stáseic, p. 107. Edit. Venet. 1509.) mention such a Law as established among the antient Grecians. Christian, King of Denmark, said, that by the Abolition of the Law for confiscating the Goods taken up after a Wreck, he lost an hundred thousand Crowns a Year. Notice is taken of this bad Custom, in the Revelations of Bridget Queen of Sweden, Lib. VIII. Cap. VI. and in the Speculum Saxonicum, II. 29. where the Author treats of Denmark. See also the Decretals, Lib. V. Tit. XVII. De Raptorib. &c. Cap. III. I. Some Civil Laws are unjust, and therefore do not transfer a Property; such are those that confiscate the Goods of shipwrecked People. 580 chapter vii Property, without any apparent Cause, is manifest Injustice. Very well then has Euripides said in his Helena, Nauago ’c h¤kw qénoc a ◊súlhton génoc. 4 Being Shipwrecked, and a Stranger, I am one of those who ought not to be plundered. For what Right can the Prince’s Treasury have (they are 5 Constantine ’s own Words) in the Calamity of any Man, that it should pursue its Advantage in so unfortunate an Affair? And Dion Prusaeensis, in his seventeenth Oration, speaking of a Shipwreck, Mh ’ ga ’r ei ⁄h pote ’, w fi zeu ÷, &c. GOD forbid that I should gain by Mens Misfortunes. Crantzius, Vandalic. XIII. 40. XIV. 1. Cromer, Polonic. Lib. XXII. (p. 509. Edit. Basil. 1555.) Grotius. See Pufendorf, B. IV. Chap. XIII. § 4. and my first Note on that Paragraph, in the second Edition. Tho’ this barbarous Custom is at present insisted on one Way or other in but too many Places; it must be acknowledged, that some Governments have had serious Thoughts of moderating or abolishing it. I could give the Example of the Republick of Venice, of which I have an authentick Proof in my Hands. It is a Law made by the Council of the Pregadi, in 1583, which, under severe Penalties, forbids the taking of any of the Goods belonging to such as are Shipwrecked; and regulates Things with all the Precautions necessary for putting the Masters of such Goods in a Way of recovering them easily. I find this Law in a curious Manuscript of Instructions, given, about that Time, by the Senate to a Governor sent by that Body into the Island of Cephalonia; a Manuscript, for which I am beholden to the Liberality of Mr. Bourguet, a worthy and learnedGentleman,whoresidedatVenice many Years. 4. Ver. 456. 5. Code, Lib. XI. Tit. V. De Naufrag. Leg. I. See also Digest. Lib. XLVII. Tit. IX. De incendio, ruinâ, naufragio &c. Leg. VII. Nicetas Choniates, in his History of the Emperor Andronicus, calls this a most unreasonable Custom, e ⁄joc a ◊logẃtaton. (Lib. II. Cap. III.) See likewise Cassiodore, Var. IV. 7. I cannot imagine how it came into Bodin’s Head to defend such a Practice. But the same Author blames Papinian for chusing to die rather than injure his Conscience. Grotius. The Place where Bodin blames Papinian, the Lawyer...