If a medicinal spring were discovered in a piece of ground which was private property, copious enough for every purpose which it could be applied to, I would award a compenfation to the owner of the field, and a liberal profit to the author of the discovery, especially if he had bestowed pains or expence upon the search; but I question whether any human laws would be juftified, or would justify the owner, in prohibiting mankind from the use of the water, or fetting fuch a price upon it, as would almost amount to a prohibition. If there be fisheries, which are inexhaustible; as the cod-fishery upon the Banks of Newfoundland, and the herring-fishery in the British feas are faid to be; then all thofe conventions, by which one or two nations claim to themselves, and guarantee to each other, the exclufive enjoyment of these fisheries, are so many encroachments upon the general rights of mankind. Upon the fame principle may be determined a question, which makes a great figure in books of natural law, utrum mare fit liberum ? that is, as I understand it, whether the exclusive right of navigating particular feas, or a control over the navigation of these feas, can be claimed, confiftently with the law of nature, by any nation ? H 3 What What is neceffary for each nation's fafety we allow; as their own bays, creeks, and harbours, the sea contiguous to, that is, within cannon fhot, or three leagues of their coaft: and upon this principle of fafety (if upon any principle) must be defended, the claim of the Venetian state to the Adriatic, of Denmark to the Baltic fea, and of Great Britain to the feas which inveft the island. But, when Spain afferts a right to the Pacific ocean, or Portugal to the Indian feas, or when any nation extends its pretenfions much beyond the limits of its own, territories, they erect a claim which interferes with the benevolent designs of Providence, and which no human authority can juftify. III. Another right, which may be called a geheral right, as it is incidental to every man who is in a fituation to claim it, is the right of extreme neceffity: by which is meant, a right to use or destroy another's property, when it is neceffary for our own prefervation to do fo; as a right to take, without or against the owner's leave, the firft food, clothes, or shelter we meet with, when we are in danger of perithing through want of them; a right to throw goods overboard, to fave the fhip; er to pull down a house, in order to ftop the progrefs of a fire; and a few other inftances of the fame kind. Of which right the foundation feems to be this, that, when property was first instituted, the inftitution was not intended to operate to the destruction of any; therefore, when such consequences would follow, all regard to it is fuperfeded. Or rather, perhaps, these are the few cases, where the particular confequence exceeds the general consequence; where the remote mischief refulting from the violation of the general rule, is over-balanced by the immediate advantage. Reftitution however is due, when in our power; because the laws of property are to be adhered to, so far as confifts with safety; and because reftitution, which is one of those laws, fuppofes the danger to be over. But what is to be reftored? not the full value of the property deftroyed, but what it was worth at the time of destroying it; which, confidering the danger it was in of perishing, might be very little. |