THE JURIDICAL CONTROVERSIES 345 



ideas which inspired his work that gave it its reputation 

 and charm. He entered into a subtle and learned disquisition 

 as to the origin of the idea of property from the primitive 

 times when all things were held in common; the conditions 

 under which private property is possible or lawful, and 

 the distinction between what is private, what is public, and 

 what is common. Much of the argument appears to us 

 now to be of the nature of hair-splitting and word-play; 

 but inasmuch as it was made use of subsequently in the 

 numerous controversies regarding the freedom or the 

 sovereignty of the sea, as well as in diplomatic negotiations, 

 it is necessary to summarise it here. All property, he says, 

 is based upon possession or occupation (occupatio), which 

 requires that all movable things shall be seized and all 

 immovable things enclosed; things that can neither be seized 

 nor enclosed cannot become property: they are common to 

 all, and their use pertains not to any particular people but 

 to the whole human race. The distinction is also made 

 between things which are exhausted by promiscuous use and 

 those which are not : the latter are common, and their free 

 use belongs to all men. Thus the air is common, because 

 it cannot be occupied and because it cannot be exhausted by 

 promiscuous use ; it therefore belongs to all mankind. And 

 in the same way the sea is common to all ; it is clearly so 

 infinite that it is not capable of being possessed, and is 

 fitted for the use of all both for navigation and fishing. 1 

 It is also among those things which cannot be bought and 

 sold that is, which cannot be lawfully acquired ; whence 

 it is, strictly speaking, impossible to look upon any part of 

 it as belonging to the territory of a people. The sea is 

 under no one's dominion except God's; it cannot by its 

 very nature be appropriated ; it is common to all, and its 

 use, by the general consent of mankind, is common, and 

 what belongs to all cannot be appropriated by one; nor 

 can prescription or custom justify any claim of the kind, 



1 " Hujua generis et Aer, duplici ratione, turn quia occupari non potent, turn 

 quia URum promiscuum hominibus debet. Et eisdem de causis commune est 

 omnium Maria Elementum, int'mitum scilicet Jta, ut posaideri non queat, et 

 omnium usibus accommodatum : sive navigationem respicimua, sive etiam pUea- 

 turum." Cap. v. 



