The Law of Nations Treated According to the Scientific Method. Christian von Wolff
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methods may be given, by which civil laws may be made out of natural laws and which we have proved in the natural theory of the civil laws, besides those to which we have called attention in the discussion, it is plainly evident that very many laws can be passed, not only concerning fishing, but likewise concerning every use of any public property and that of a corporation. But while we speak of things public and those of a corporation, we are tarrying among generalities, and do not descend to particulars, which very often can be inferred from them by way of corollary, or without much difficulty be derived by proof. If we attempted to descend to public property and that of a corporation in detail, the treatment would be more extensive than the present plan demands. Likewise it ought not to seem strange, if we extend the legislative power to the use of things common or of those of the whole nation, or of some particular corporation. For that deals also with private ownership, or the use of private property. For all the actions of subjects are under the control of the civil power, so far as they are referable in any way to the purpose of the state, and laws are only the means through which the purpose of the state is attained, consequently they prescribe how subjects ought to direct their actions to the purpose of the state. And so it would be absurd, if any one should desire to remove the use of public property or that of a corporation from the legislative power, so that the free abuse of it would be left to any one, or that in its use the purpose of the state should be opposed.
§ 105. Of the prohibition of the proper use of public property
§ 96.
No one of the people can be legally prohibited from using public property in a proper manner. This is shown in the same manner in which we have proved the same point in regard to the use of the property of a corporation.
Note, § 98.
§ 112, part 2, and § 5, part 8, Jus Nat.
So no one can be prohibited from going or driving on the public road or from sailing on a public river. We have already remarked above that public property can be made the property of a corporation, since even the whole people is a sort of a corporation.
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§ 106. Of a river separating two territories
§ 178, part 2, Jus Nat.
§ 85.
If a river separates two territories, the ownership and sovereignty over the river will belong to that nation which has first taken possession of it; ownership and sovereignty of either nation extend from either side to the middle of the river, if they take possession at the same time, and in a doubtful case this is presumed. But if the matter is decided by agreement, they must stand by it. For ownership is originally acquired by occupation, and if a certain nation occupies an uninhabited territory, it has sovereignty over it as soon as it occupies it. If then a river separates two territories and one nation gets possession of it first, ownership and sovereignty over the whole river belong to that nation. Which was the first point.
§§ 78, 81, part 1, Jus Nat.
If two nations occupy at the same time the territories which a river separates, since the use of rivers serves the advantages of each, they are understood to have occupied this also at the same time. And therefore, since by nature the right of each is equal, the ownership and sovereignty of either nation extend from either side to the middle of the stream, as shown above. Which was the second point.
§ 94, part 1, Jus Nat., and § 2.
If it does not appear whether one nation has taken possession of the river before the other, or whether anything has been laid down by stipulations concerning the ownership and sovereignty over the river, that is presumed which is the most natural. Therefore, since nature gives precedence to no nation over another, moreover since by natural equity it is especially fitting that ownership and sovereignty reach from either side just to the middle, this is presumed in this doubtful case. Which was the third point.
§ 789, part 2, Jus Nat.
Finally, since agreements must be observed, whatever shall have been determined by agreements concerning the ownership and sovereignty over a river must be observed. Which was the fourth point.
§23.
Since our times are very far away from the first occupation, the law of nations existing at the present time will scarcely be anything other than the stipulative. To be sure a case can be conceived, in which nations dwelling on either side of the same river have left the river in its original common holding, or have made it the common property of either nation, but since either case is scarcely consistent with
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sovereignty, as is easily understood, it will hardly be possible, and is easily considered as morally impossible. It more usually happens that a river is without ownership than without sovereignty, and positive common holding so far as regards the use of the river more usually happens than joint exercise of sovereignty. But since in either case very troublesome difficulties easily arise, the nations themselves take pains to make definite arrangements by agreements with each other. But it is evident, whether a river belongs to a single nation or the ownership and sovereignty of either extend from either side to the middle of it, that concerning the use of the river and the exercise of sovereignty over it various arrangements can be made, which then become matters of stipulative law.
§ 107. Of the abandoned channel of a river
§ 372, part 2, Jus Nat.
If the river which separates two territories shall have left its channel and broken through another way, a nation retains the ownership and sovereignty over the channel which it had in the river, and the ownership and sovereignty extend from either side to the middle of the channel, if they extended to the middle line of the river. For the natural channel abandoned by a river flowing in another direction belongs to the one by whom it had been before occupied. Therefore if the ownership and sovereignty in a river which separates two territories belonged to one nation, when the channel is abandoned by the river, the ownership and sovereignty of this nation remains. Which was the first point.
And in the same manner it is evident that the ownership and sovereignty of either nation ought to extend to the middle line of the channel, if before they extended to the middle line of the river. Which was the second point.
De Jure Belli ac Pacis, lib. 2, c. 3, § 17.
Grotius gives this reason, that the intention of the people must be considered to have been that if the river shall cease to be, then each should hold what it had held. But it does not seem to be necessary for us to seek a reason far away. For since a river consists of the channel and flowing water, the nation has such a right in the channel as it has in the river. Therefore, even if the river flowing in another direction should leave the whole channel and consequently should vanish so that there would be no river any longer where it had been before, nevertheless
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there is no reason why this should destroy the right in the part which still exists. Indeed if a building burns, your right in the foundation is not taken away by its destruction, but you retain ownership in it. The case is certainly the same if a river abandons its entire bed.
§ 108. Of territories having the river as their boundary
§ 363, part 2, Jus Nat.
If the territories separated by a river have the river as their boundary, the nations on either side have the right of alluvium.6 This is plain from the same proof which we have given in regard to land having a river as boundary.
§ 585, part 2, Jus Nat.
§§ 357, 358, part 2, Jus Nat.
Of course the land which is added by alluvium to either territory belongs to the territory to which it is added. The loss, which the nation dwelling on the opposite bank suffers, arises from the destruction of its own property, nor can it be said that the nation which has the right of alluvium is made the richer at the expense of the other, a thing which is opposed to the law of nature. See what we have noted concerning that point.
§ 109. Whether any change is made in the right in a river by alluvium