The Law of Nations Treated According to the Scientific Method. Christian von Wolff
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[print edition page 88]
belong to his territory. Since this distinction is based on the concepts of property and sovereignty, by force of what has just been said, it is properly made.
§ 103. Of the effect of eminent domain over public property
§ 102.
§ 111, part 8, Jus Nat.
Since eminent domain over public property belongs to the ruler of the state, since, moreover, by force of eminent domain disposition is made of property for the public welfare in case of necessity, the ruler of the state for the public welfare in case of necessity can dispose of public property, as shall seem best to him.
§§ 98, 99.
So by power of eminent domain he can connect two navigable rivers by an artificial channel for the aid of commerce, or even direct the waters of one stream into another, to make it navigable, even if there should be some injury to the common use. And hence will be clearer the difference which exists between eminent domain over public property and ownership of the same, which is either with the people or transferred to the ruler of the state.
§ 104. Of the passing of civil laws concerning the use of public property and that of a corporation
§ 977, part 8, Jus Nat.
§ 978.
§§ 94, 99, and § 170, part 1, Phil. Pract. Univ.
The ruler of the state can pass laws concerning the use of public property and that of a corporation. For by civil law the ruler of a state can make obligatory or forbidden what is allowed by nature; moreover he can make a perfect obligation out of that which before was imperfect, as is best for the purpose of the state, and if anything can be done in several ways, he can direct that it be done in one way or another. Therefore, since the use of public property and that of a corporation is allowed by nature, and since that use can be exercised in several ways, as is plainly proved before, the ruler of a state can make laws concerning the use of public property and that of a corporation, by which a thing formerly allowed may be made forbidden or obligatory, or by which an imperfect obligation is made perfect and by which the use of that property is limited in a certain manner.
§ 5, part 8, Jus Nat.
So he can pass laws concerning fishing in rivers, for example, that common fishing should be forbidden in a certain part of a river, or
[print edition page 89]
that the smaller fish shall not be taken, and that one may not fish with nets, except such as allow the escape of fish not of a proper size, or that fishing should be forbidden at one time and allowed at another. Since still other 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.
[print edition page 90]
§ 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