use is to be preserved.”22 But all things are of this kind, wherein without the damage of one another may be pleasured. Hence, saith Cicero, is that “not to forbid running water.”23 For running water as it is such, not as it is a river, is acknowledged of the civilians to be in the number of those things which are common to all; and of the poet,
quid prohibetis aquas? usus communis aquarum est.
nec solem proprium natura, nec aera fecit,
nec tenues undas: in publica munera veni. 24
He affirmeth these things not to be proper by nature—as Ulpian saith, they lie open to all by nature25—both because they were first discovered by nature and never came as yet into the dominion of any (as Neratius speaketh),26 and also because (as Cicero saith) they seem to be brought forth of nature for the common use.27 But he calleth those things public by a translated signification, not which appertain to any one country and people but to the whole society of mankind, which in the laws are called publica juris gentium: that is, common to all and proper to none.28 Of this kind the air is for a double reason, both because it cannot be possessed and also because it oweth a common use to men. And for the same cause the element of the sea is common to all, to wit, so infinite that it cannot be possessed and applied to all uses, whether we respect navigation or fishing.29 Whose ever the sea is, theirs also are those things which the sea, taking away from others’ uses, hath made for own, as the sands of the sea, part whereof joining to the land is called the shore. Cicero therefore saith well, “what is so common as the sea to them that float thereon and the shore for them that are cast out.”30 Virgil also saith that the air, the water and the shore lie open unto all.31
These things therefore are those which the Romans call common unto all by the laws of nature, or which are said to be the same publica juris gentium, as also they call the use of them sometimes common and sometimes public.32 But although even those things are rightly said to be no man’s as touching the property, yet they differ much from those things which are no man’s and are not attributed to common use, as wild beasts, fishes and birds. For if any man possess these they may become his proper right, but those things by the consent of all mankind are perpetually exempted from propriety for use which, seeing it belongeth to all, it can no more be taken away by one from all than you may take away that from me which is mine. This is that which Cicero saith, that it is among the first or chief duties of justice to use common things for common things.33 The Schoolmen would say that some things are common affirmatively and some privatively. This distinction is not only very common among the civilians but also it expresseth the confession of the common people, whereupon the master of the feast in Athenaeus saith the sea was common but the fishes theirs that could take them. And in Plautina, to one that said unto him, keeping his cable,34 “The sea was common for all,” the fisherman consented, but when he added, “It was found in the sea; it is common,” it came well to hand: “That which my net and hooks have gotten is principally mine.”35
The sea therefore cannot be altogether proper unto any because nature doth not permit but commandeth it should be common, no nor so much as the shore,36 but that this interpretation is to be added: that if any of those things by nature may be occupied, that may so far forth become the occupant’s as by such occupation the common use be not hindered. Which is worthily received and approved, for seeing it is so, both exceptions cease whereby we said it came to pass that all things should not be transferred to proper right.
Because therefore building is a kind of occupation, it is lawful to build upon the shore if it may be without the hurt of the rest, as Pomponius speaketh, which we will expound out of Scaevola, unless the public, that is to say, the common use should be hindered.37 And he which hath built shall become lord of the soil because that ground was proper to none nor necessary for the common use; it is therefore the occupant’s, but no longer than the occupation continueth, because the sea seemeth to resist possession, by the example of a wild beast which, if it betake itself to the natural liberty, is no longer his who was the taker; so also the shore, which afterward giveth place unto the sea again.38
But whatsoever may become private by occupation we have declared that the same may also become public, that is to say, proper to the people. So Celsus thinketh that the shore enclosed within the bounds of the empire of Rome appertaineth to the people of Rome;39 which, if it be so, it is no marvel that the same people could grant a means (by their prince or praetor) to their subjects how to possess the shore.40 But even this occupation, no less than private, is so to be restrained that it stretch no further than that the public use may be preserved. No man therefore may be forbidden by the people of Rome to come unto the sea-shore and to dry their nets and do other things which once all men would have perpetually to be lawful for them.41
But the nature of the sea differeth in this from the shore in that the sea, unless it be in some small part thereof, cannot easily be built upon nor can be included, and though it could, yet this notwithstanding should scarce happen without the impediment of the common use, yet if any little part may so be occupied it is granted to the occupant. It is therefore a hyperbole:
contracta pisces aequora sentiunt
iactis in altum molibus. 42
For Celsus saith that planks or piles laid in the sea are his who laid them, but that is not to be granted if the use of the sea by that means shall become worse.43 And Ulpian saith that he that dams up the sea is so to be allowed and defended if no man be hurt thereby.44 For if this thing shall hurt any man surely he must be forbidden, that nothing be done in a public place.45 As Labeo also saith, if any such thing be built in the sea he will have him forbidden, “that nothing be done in the sea whereby the haven, road or way for ships may be made the worse.”46
And the same regard that is to be had of navigation is to be had likewise of fishing, that it may remain common unto all. Yet shall not he offend that encloseth a place of fishing for himself with stakes or piles in a creek of the sea and so maketh it private, as Lucullus who cut down a hill at Naples to let in the sea to his farm?47 And of this kind I think the fishponds upon the sea-coast were whereof Varro and Columella make mention.48 Neither did Martial mean otherwise when he speaketh of Formianus of Apollinaris:
si quando Nereus sentit Aeoli regnum,
ridet procellas tuta de suo mensa. 49
And Ambrose: “Thou bringest the sea within thy manors lest monsters50 should be wanting.”51 Hence it may appear of what mind Paul[us] was: “if the proper right of the sea appertain to any, as ye possess them,52 he must be forbidden.”53 That this interdiction was ordained for private causes not for public, wherein also those things are comprehended which by the common law of nature we may do, but here the right of enjoying is handled which happeneth upon a private cause, not public or common. For Marcian testifieth whatsoever is possessed or may be possessed, that now appertaineth not to the law of nations as the sea doth:54 as, for example, if any had forbid Lucullus or Apollinaris to fish in that which was private unto them in regard they enclosed a creek of the sea, Paulus thought they were to be forbidden, not only an action of trespass to be brought against them by reason of the private possession.
Nay, in a creek of the sea, as in a creek of a river, if I have possessed such a place and have fished there, specially if I have testified my purpose privately of possessing it by the continuance of many years, by that right I may forbid another to use the same (as we gather out of Marcian) no otherwise than in a lake in my jurisdiction, which is true so long as occupation continueth, as we said before of the shore.55 The same shall not be without the creek lest the common use be hindered.56
It is a very usual thing therefore that men forbid any to fish before my house or the prince’s palace, but by no right, so that Ulpian contemning that usurpation saith if any be forbid he may have an action of trespass.57 The emperor Leo (whose laws we