[85] CHAPTER IV.

Of presumed Dereliction of Property, and the Occupation which follows; and how it differs from Usucaption and Prescription.

I. HERE arises a great difficulty concerning the right of usucaption, [by which a thing long used becomes the property of the possessor.] This Right is introduced by the Civil Law, [not by Natural Law,] for time, of its own nature, has no effective power; for nothing is done by time, though everything is done in time. Hence this right, as Vasquius thinks, cannot have place between two free peoples, or kings, or a people and a king; nor even between a king and a private person who is not his subject, nor between the subjects of two different kings or peoples: which appears to be true, except so far as things and acts are governed by the laws of the territory: [for a person in one territory, knowing the laws of another territory as to usucaption, may act accordingly, in questions of right between him and another person in the stranger territory.] Yet if we admit this, there seems to follow this very inconvenient conclusion, that controversies concerning kingdoms and their boundaries are not extinguished by any lapse of time; which not only tends to disturb the minds of many and to perpetuate wars, but is also repugnant to the common sense of mankind.

II. For [the authority of time and usage has been generally acknowledged in disputes on such subjects]. So in Judges xi. 13, 26, when the king of the Ammonites claimed the land from Arnon to Jabbok and Jordan, Joshua said that Israel had dwelt there 300 years; why therefore did ye not recover them in that time? And the Lacedæmonians in Isocrates lay it down as a rule most certain, and acknowledged by all nations, that public possessions, as well as private, are so confirmed by length of time that they cannot be taken away; on this ground they 86repel those who demand Messena. [See.] So Philip the Second of Macedon told Quintius that he would give up the cities which he had himself taken, but not those which had legitimately descended to him from his ancestors. Sulpitius in Livy, disputing against Antiochus, shews it to be unjust that because the Greeks in Asia had at one time been in subjection, he should make that the ground of an asserted right of reducing them to subjection again after several ages. The historians speak of the claim of ancient possessions as idle talk, mythical stories. See also Cicero.

III. In truth, the effects, as to Rights, which depend on man’s will, still do not follow the more internal act of the mind, except that act be indicated by some external signs. For to assign a jural efficiency to mere acts of the mind, would not be congruous to human nature, which cannot know the acts of the mind, except from outward signs. Yet signs denoting the acts of the mind have never a mathematical, but only a probable certainty; for men may express in words something different from what they feel and will, and may simulate in their acts. But the nature of human society does not suffer that the acts of the mind, sufficiently indicated, should have no efficacy: therefore what is sufficiently indicated in words, is to be held true, as against him who so indicates it.

This doctrine of the force of words is to be applied to derelicts.

IV. 1 A derelict may also be indicated by the fact; thus, that is a derelict which is thrown away; unless the circumstances of the case be such that it may be supposed to be put away for a time and with the intention of taking it again. Thus a debt is supposed to be remitted by giving up the note of hand which acknowledges it. An inheritance, as Paulas says, may be refused, not only by words, but by deed, and by any indication of will. So if he who is the owner of anything, knowingly contracts with another person in whose possession it is, as with the owner, he must be held to lose his right: and there is no reason why this should not hold also between kings and peoples.

2 In like manner a superior, making a concession to an inferior, or giving him a command which he cannot lawfully perform, except he be relieved from the tie of the law, is supposed to have loosed that tie. This rule flows, not only from the Civil Law, but from Natural Law, according to which any one may abdicate what is his; and from the natural presumption by which every one is supposed to intend what he has sufficiently indicated. And in this sense maybe accepted what Ulpian said, that the acknowledgment in court of the payment of a debt^*, is a part of jus gentium; (it being really a part of jus civile).

V. 1 Among “facts” we must also understand what is left un87done, considered with due circumstances. If any one, present and knowing, is silent, he may be assumed to assent; as also the Hebrew Law recognizes, Num. xxx. 4, 5, 11, 12: If a woman vow a vow, &c.; except circumstances shew that he was prevented from speaking by fear or other cause. Thus that is supposed to be lost, with regard to which the hope of recovering it is given up; as Ulpian says, that pigs carried off by wolves, and goods lost in shipwreck, cease to be ours, not at once, but when they cannot be recovered; that is, when there is no reason to believe that they keep any hold on the mind of the owner; when there is no indication of a purpose of recovering. For if persons have been sent to seek what is lost, or if a reward for finding it is offered, we must judge differently. If any one knows a thing which is his to be held by another, and in the course of a long time says nothing against it, he, except some other reason manifestly appear, must be supposed to have acted with the purpose of no longer having that thing as his. And so Ulpian says, that a house may, by long silence, be understood to be derelict by the owner. And Pius, the Emperor, in a rescript says, You have no right to ask for the interest of your money for the past period, for the length of time shews that you had given it up. You did not require this payment from your debtor, in order to gain favour with him.

2 Similar to this is the case of Custom. For Custom, without referring to the Civil Law, which fixes a certain time and manner for introducing it, may be introduced by a subject people, in virtue of its being tolerated by the Ruler. But the time in which such Custom receives the effect of Law, is not defined, but arbitrary; namely, as much as is necessary to signify the consent of the party.

3 But in order that silence may be valid for the presumption of derelict, two things are required; that it be the silence of a party knowing, and freely willing; for the inaction of a party which is in ignorance, has no effect; and when there is another cause known which influences the will, conjecture as to what it is ceases.

VI. To establish the assumption of these two conditions, other conjectures are of force: but for the most part, the effect of time, in both points, is great. For in the first place, it can hardly happen that in a long time, a thing pertaining to any one should not come to his knowledge, since time supplies many occasions. And a shorter time is sufficient for this purpose in a case between persons present, than absent, even without referring to the Civil Law. So fear once impressed is understood to last for a certain time, but not for ever, since a long time affords many occasions of taking counsel against the danger, either by one’s own means or by means of others; as by going out of the bounds of the authority of him who inspires the fear; or at least, it affords the means of renewing our right by protest, or, what is better, of referring to judges or arbitrators.

VII. Since time beyond the memory of man is morally, as it were, infinite, a silence for such a time will always suffice to esta88blish derelict, except there are very strong reasons on the other side. It is well remarked by the more prudent jurists, that time beyond the memory of man is not the same thing as a century, though the two periods are often not very different; because the common term of human life is a hundred years; which period commonly includes three generations of men; as the Romans objected to Antiochus, when they pointed out that he asked for cities which neither he, nor his father nor his grandfather, had ever had.

VIII. I It may be objected that men are fond of their property, and that negative acts, even in a great length of time, ought not to be taken as proving that they throw it away. But, on the other hand, we ought to think well of men, and not to suppose that they would allow another man to be perpetually in the wrong, for the sake of a perishable thing.

2 And as to political authority, though highly valued, it has also heavy burthens, and such as bring divine wrath on those who administer them ill: and as it would be cruel for different asserted guardians to litigate, at the expense of the ward, which has a right to manage his affairs; or, to use Plato’s comparison, for the crew of a vessel to contend, with much danger to the vessel, who should steer; so are they not always to be praised who with great loss, and much effusion of the innocent people’s blood, are ready to fight who shall govern the people. The ancients praise Antiochus for expressing his thanks to the Romans who had reduced his kingdom within manageable limits. So Lucan implies that a rivalry for empire is absurd.

3 Then again, it is for the good of human society that governments should at some time be placed beyond the risk and doubt of controversy; and the modes of settling the matter which have this tendency are to be preferred. If Aratus thought it hard that private possession of 50 years should be disturbed, we must still more hold by the saying of Augustus, that a good citizen does not wish the present state of the republic to be changed. So Alcibiades in Thucydides, Isocrates, Cicero, Livy.

4 And even if these arguments were wanting, the presumption that each man wishes to keep what he has, may be met by another presumption, that no man will stay a very long time without giving some indication what his wishes are.

IX. And perhaps we may say that this is not merely a matter of presumption, but that this law was introduced by an instituted law of nations, that a possession going beyond memory uninterrupted, and not accompanied with any appeal to justice, absolutely transfers ownership. It is credible that nations have agreed upon this, since such a rule tends greatly to peace. But it is essential to require uninterrupted possession, as stated in Livy. For a desultory possession is of no efficacy, as the Numidians urge against the Carthaginians, also In Livy. [See.]

89 X. 1 But another and an important question arises here: whether those not yet born may tacitly lose their rights by such dereliction. If we say they cannot, the definition just given is of no avail for the tranquillity of authority and ownership, since most kinds of these are such that they belong to posterity. If we say that they can, it will appear strange how silence can prejudice those who cannot speak because they do not exist; and how the act of others can be allowed to harm them.

2 For the solution of this difficulty, it is to observed, that he who is not yet born has no rights, as a thing not existing has no attributes. Wherefore if the people, from whose will the right of reigning proceeds, changes its will, it does no injury to those who are not yet born, and who have not yet acquired any right. And as the people may change its will expressly, it may also tacitly be presumed to have changed it. If then the will of the people be changed, and since the right of the expected progeny does not yet exist, and the parents from whom they are to be born relinquish their right, nothing prevents its being occupied by another as a derelict.

3 In this we speak of Natural Law: for by the Civil Law, as other fictions may be introduced, so this also, that the law may represent the part of the persons who do not yet exist, and may thus prevent adverse occupation being a prejudice to them: which purpose of the law, however, is not lightly to be assumed, because that private advantage is much at variance with public utility. Whence those fiefs which [by law] are conveyed, not by the right of the last possessor, but by a primitive investiture in each vacancy, may, by a sufficiently long usage, be acquired [as territory], as the best jurists hold. Covarruvias has asserted this with strong reasons, respecting rights of primogeniture and entailed estates.

4 For nothing prevents the Civil Law from introducing such a Right as cannot be alienated by one act, but yet, in order to avoid the uncertainty of ownership, may be lost by neglect after a certain time: but in such a way that future claimants shall retain a right of personal action against those who have committed the neglect, or their heirs.

XI. From what we have said, it appears that both a king as against a king, and a free people as against a free people, may acquire a right, not only by express consent, but by dereliction and possession following this, or taking a new force from it. For as to what is said, that what is not legally valid at first cannot become valid by the subsequent fact, it is to be taken with this exception, except a new cause intervene, fit of itself to produce such validity. And thus [by the course of usage] the king of any people may lose his authority and become subject to the people; and he who was not king, but only governor, may become king with absolute authority; and the sovereign authority, which at first was in the king or in the people wholly, may be shared between them.

90 XII. 1 This also is a question worth examining^*: Whether the law of usucaption or prescription, made by the sovereign, may affect the right of sovereign authority, and its necessary parts, which we have elsewhere explained (B. I. c. iii. § vi). Not a few of the Jurists seem to think that it may, treating this question of the sovereignty as a matter of Civil Law. We think otherwise. For in order that any one may be bound by a law, there is required both power and will, at least presumed, in the author of the law. But no one can bind himself in the manner of a law, that is, in the character of a superior: and hence it is that the authors of laws have the right of changing their laws. However, a person may be bound by his own law, not directly, but by reflexion; namely as being a part of the community, in virtue of natural equity, which requires the component parts to follow the analogy of the whole. So Saul put himself and his son Jonathan on the same footing as the rest of the people, 1 Sam. xiv. 40. But this does not apply in the case which we are now treating; for we consider the author of the law, not as a part of the community, but as him in whom the whole legislative virtue resides; for we speak of the sovereignty as such. [Therefore the sovereign has not the power of binding himself by such laws.] But neither can he be presumed to have the will; for the authors of laws are not supposed to include themselves, except both the matter and the reason of the law are universal; as in settling prices by law. But the sovereignty has not parity of reason with other things; on the contrary, it is a matter of a higher order than other things.

Nor have I ever seen a civil law treating of prescription, which comprehended in its sphere the sovereign power, or could be probably supposed to have comprehended it.

2 Whence it follows that the time defined by law in not sufficient to acquire the sovereignty or any necessary part of it, if there are wanting those natural conjectures of which we have before spoken; and that if those conjectures exist to a satisfactory extent, so great a space of time is not required; and that the Civil Law, which prohibits a possession being acquired in a certain time [by prescription], does not apply to the Sovereignty.

91 It would however be possible that the people, in conferring the sovereignty, should express its will in what way and in what time the supreme authority might be lost by disuse; which will would undoubtedly be to be followed, and could not be infringed, even by a king possessed of the sovereign power; because it pertains, not to the sovereignty itself, but to the mode of holding it; of which difference we have elsewhere spoken.

XIII. But [though the sovereignty is thus exempt from the Rules of the Civil Law] those things which are not of the nature of the sovereignty, and do not belong to it as natural properties, but can either be naturally separated from it, or communicated to others, are altogether subject to the rules of Civil Law concerning Usucaption and Prescription. So we see that there are subjects who have by prescription acquired the Right that there is no appeal from them; but yet so that there is always some mode of carrying the matter to a higher tribunal, by petition, or in some other way. For that there should not be in any way an appeal from a person, is at variance with the notion of a subject: it belongs to a sovereignty or a part of it; and cannot be acquired otherwise than according to Natural Law, which regulates the sovereignty.

XIV. 1 Hence it appears how far we are to receive the doctrine which some put forth, that it is always lawful for subjects, if they can, to obtain their liberty, that is, Civil liberty; because the authority which was gained by force maybe taken away by force; and in regard to that which was given voluntarily, they may repent and change their mind. [But this goes too far.] For authority gained at first by force may by tacit consent receive firm right: and the will exercised, either in the original institution of a government, or at an after period, may be such as to give a right which afterwards does not depend upon the will. King Agrippa said to the Zealots who were clamorous for liberty, It is now out of season to demand liberty. You should have fought formerly, not to lose it. For submission is a hard lot, and it is honourable to fight in order to avoid it. But when a person has once been overcome in such a struggle, if he shake off the yoke, he is no longer a lover of liberty, but an insurgent slave. And so Josephus himself said; and Cyrus to the king of Armenia. [See.]

2 But that a long forbearance of the king, such as we have before described, may be a sufficient ground of the people obtaining its liberty from a presumed relinquishment of imperial authority, is not to be doubted.

XV. But rights which do not involve daily exercise, but are exercised, once for all, at a convenient time, as the loosing of a pledge; also freely used rights^*, to which the act exercised is not directly contrary, 92but is contained in it as a part in the whole;—as if any one should for a hundred years have alliance with one only of his neighbours, when he might have it with others also;—are not lost, except for the time when prohibition or coaction intervenes, and obedience is rendered to it with a sufficient signification of consent; and since this agrees, not only with Civil Law, but with natural reason, it will properly have place also among the most exalted persons. [Such persons will not attempt to control the exercise of those rights.]