[125] CHAPTER VIII.

Of Acquisitions commonly said to be Jure Gentium.

I. 1 THE order of our subject has led us to that acquisition which takes place jure gentium, as distinct from jus naturale, Natural Law; which we have above called Instituted Jus Gentium. Such are the things done by the Laws of War; but we shall treat of these hereafter.

The Roman Jurists, when they speak of acquiring the ownership of things, reckon many ways of such acquisition, which they say are juris gentium; but if we duly attend, we shall see that they all, if we except the Laws of War, do not pertain to that jus gentium of which we now speak; but are either to be referred to Natural Law (not mere Natural Law, but that which follows the introduction of ownership, and precedes all Civil Law,) or to the Civil Law, not of the Roman People alone, but of many other nations: I suppose, because the origin of such Law or custom came from the Greeks, whose Institutions, as Dionysius Halicarnassensis and others note, the peoples of Italy and the neighbourhood followed.

2 But this is not the jus gentium properly: for that does not pertain to the mutual society of nations amongst themselves, but to the tranquillity of each people: whence it might be changed by one people without consulting others; and also it might happen that in various places and times, very different usages, and thus, different jus gentium improperly so termed, might be introduced: which, we see, happened, in fact, from the time that the Germanic nations invaded almost the whole of Europe. For as the laws of Greece formerly, so now Germanic Institutions are everywhere received, and are still in authority.

126 The first mode of acquiring ownership which is called by the Romans juris gentium, is the occupation of things which belong to no one (res nullius): which mode is, doubtless, natural in the sense which I have mentioned; ownership being supposed to be introduced, and as long as the law has made no other appointment. For ownership may also take place by the Civil Law.

II. To this head is referred, first, the capture of wild beasts, birds, fishes. But how long these are res nullius, belong to no one, is not without question. Nerva says, that fishes in a pond are ours, fishes in a lake are not; beasts which are in a park are ours, not those which range in the woods, though surrounded by a fence. But fishes are included in a lake, which is private property, as much as in a pond; and a well-fenced wood shuts in beasts, no less than a park: these things differ only in that one is a narrower, the other a wider custody. And accordingly, in our time, the contrary opinion more rightly prevails: and beasts in private woods, and fishes in private lakes, as they can be possessed, so can they be owned.

III. The Roman jurists say, that when beasts recover their natural liberty they cease to be ours: but in all other things the ownership which begins with possession is not lost when we lose the possession; but, on the contrary, gives a right to recover possession. And it cannot make much difference whether it be a fugitive slave that takes them away, or that they take themselves away. Therefore the sounder opinion is, that the ownership is not lost because the beasts escape from our custody, but that it is lost from the probable conjecture, that we may be supposed to let them go as derelicts, on account of the difficulty of pursuing them; especially as it is impossible to know our beasts from others. But this conjecture may be refuted by other evidence: as if the beast be marked, or have a bell hung to it; as we know that deer and hawks have sometimes had, and thereby have been restored to the owners.

Some corporeal possession is required to make the ownership complete; and therefore it is not enough to have wounded them, as is rightly held, in opposition to Trebatius. Hence the proverb, You started the hare for him to catch. And so Ovid.

IV. But a possession which gives ownership may be acquired, not by the hands alone, but by instruments, as traps, snares, nets; on two conditions; first, that the instruments be in our power; next, that the creature be so caught that he cannot escape. And by this rule is to be decided the question of the boar which fell into the snare.

V. This is the rule, if no Civil Law intervene: for jurists are much mistaken who think that it is so decidedly Natural Law that it cannot be changed. It is Natural Law, not simply, but in a certain state of things, that is, if it be not otherwise provided. But the peoples of Germany, when they wished to assign to their princes and kings some rights to sustain their dignity, wisely thought that they might best begin with those things which can be given without damage 127to any one; of which kind are the things which have not yet become the property of any; [and thence they gave them a right to the game]. And this too was what the Egyptians did. For there the king’s proctor claimed things of that kind. The law might transfer the ownership of these things even before occupation, since the law alone is sufficient to produce ownership.

VI. Other ἀδέσποτα, ownerless things, are acquired in the same way as game. For these too, if we follow nature alone, belong to him who finds them and takes possession. Thus Acanthos was adjudged to the Chalcideans who entered it first, not to the Andrians who first cast a javelin into it: for the beginning of possession is the contact of body with body, which, with regard to moveables, is mostly performed with our hands, with regard to the soil, with our feet.

VII. Among ownerless things is treasure trove, that is, money of which the owner is unknown; for what does not appear is, so far, as if it did not exist. Hence by Natural Law such treasure belongs to the finder, that is, him who took hold of it or took it up. Nor is it an objection, that by laws and customs other rules may be established. Plato directs that the fact shall be reported to the magistrates, and the oracle consulted; and Apollonius adjudged it, as a boon of the gods, to him whom he thought the best man. That among the Hebrews the received rule was that the treasure should go to the owner of the soil, appears to follow from the parable, Matth. xiii. The same was the case in Syria. See Philostratus. The Laws of the Roman Emperors varied much on this point; as appears partly by the constitutions, and partly by the histories of Lampridius, Zonaras and Cedrenus. The peoples of Germany gave treasure trove, like other ownerless things, to the prince; and that is now the common law, as a sort of jus gentium. For it is observed in Germany, France, England, Spain, and Denmark. And that there is in this no wrong done, we have sufficiently explained.

VIII. Let us now come to the additions made to land by rivers; on which subject there are very many rescripts [opinions on cases] of the old jurists, and of the moderns, whole books. But the rules delivered on this subject by them are, for the most part, instituted rules of certain nations, not Natural Law; although they often give their rules as Natural Laws. For many of their determinations rest on this foundation, that the banks belong to the nearest landowners, and also the bed of the river when deserted by the stream: from which it follows that the islands which make their appearance in the river belong to the same persons. Thus in the inundation of a river they make a distinction that a small inundation does not take away ownership, a large one does; but so that if the river retires by a single impulse, the ground which was flooded returns to the owner by postliminium, [a resumption of the previous condition of property:] if the river recedes gradually, it is not so; but, on the contrary, passes to the nearest landowners. That all this might be established by law, and defended by 128the consideration of its being a useful rule for the preservation of the banks, I do not deny: that it is Natural Law, which they seem to think, I by no means concede.

IX. 1 For if we look at the general case, peoples occupied the land, not only as lords, but as owners, before it was assigned to private proprietors^*. Seneca, Cicero, Dio Prusæensis, Tacitus, speak of the occupation of land by peoples. [See.] What was thus occupied by peoples, and was not afterwards distributed, is to be considered as belonging to the people; and as in a river which is private property, an island which makes its appearance, or a deserted river-bed, is the property of the private person; so in a public river, both of these belong to the people, or to him to whom the people has given them­.

2 What we have said of the bed of the river, is true also of the bank, which is only the extreme portion of the bed, that is, where the river naturally stops. And we find that this is now the general usage. In Holland, and the neighbouring countries, where of old these controversies were more frequent on account of the lowness of the land, the magnitude of the rivers, and the neighbourhood of the sea, which receives the mud carried down, and brings it back by the reflux of the tide, it was always settled that islands which were true islands were the public property; and in like manner, the deserted beds of the Rhine and the Meuse; which has often been adjudged, and rests on the soundest reasons.

3 For even the Roman jurists allow that an island which floats in a river, for instance, one resting on roots and branches, is public property; because the party who has a right to the river has a right also to an island produced in the river. But the same reason holds for the bed as for the river: not only in the way in which the Roman jurists take it, because the bed is covered by the river, but for another, which we have mentioned above; that the bed and the river were occupied at the same time by the people, and have not since passed into private ownership. And therefore we do not accept as Natural Law what they say, that if the lands are marked by boundaries, the island belongs to him who takes possession of it. That would be so, only if the river and the bed of the river were not already occupied by the people; as an island which rises in the sea belongs to him who takes possession of it.

X. 1 Nor can we admit that doctrine above stated concerning a very grave inundation, if we only follow natural reason. For mostly, though the surface part of the ground is dissolved into sand, the lower solid part of the soil remains; and though it may in some measure change the quality, it does not change the substance, any more than a part of the land from which a lake is drained, the right to which is not changed by such a process, as the Romans rightly decide. Nor is that Natural Law which they say, that the rivers, like the collectors of a land-tax [who have to seize and sell the property 129of defaulters, Gron.] increase private property by public, and public by private. The Egyptians judged better, who made a measurement and division of the land, which was independent of the inundations.

2 There is nothing contrary to this opinion in what the Roman writers have delivered, that what is ours does not cease to be ours except by our own act; add, or by law. But among our acts are included also the things which we do not do, so far as they supply a conjecture of the will. Wherefore we grant this, that if the inundation be very grave, and if there are no other signs which imply an intention of retaining the ownership, the land may easily be presumed to be a derelict; and this estimation, as it is naturally indefinite from the variety of circumstances, and one of those things which must be left to the judgment of a fair man, so is it often defined by the Civil Law. Thus in Holland land is held to be derelict, if it has been under water for ten years, and there are no signs of continuation of possession: and in this case we reasonably accept a rule which the Romans reject; that if you can do nothing else, you may be supposed to retain possession by fishing over it. So princes were accustomed to appoint a time within which the ancient possessors were bound to free their lands from water: and if they did not do this, warning was given, first to those who had mortgages upon the land, next to those who had jurisdiction, either civil only, or criminal also; and if all these parties were behindhand in doing what the law required, the whole right of the properly passed to the prince: and he either drained the lands himself; and added them to his patrimony, or gave them to others to be drained, retaining a part of the profit.

XI. Concerning alluvium, that is, the addition of particles which cannot be claimed by any one, because it is unknown whence they come, (for otherwise the part would not, by Natural Law, change its owner,) it should be considered as certain that this also belongs to the people, if the people have assumed possession of the river as owner, which in a case of doubt is to be supposed; otherwise, the property of him who takes possession of it.

XII. 1 But as the people may concede this right to others, so undoubtedly it may concede it to the possessors of the adjacent lands; and it is supposed to have done so, if those lands have no other boundary on that side than the natural boundary, that is, the river. Wherefore we are not to despise the laborious discussion of this subject by the Romans; in which they have distinguished limitatum, land bounded by artificial limits, from other lands; provided we recollect that land mensurâ comprehensum, determined by its measured quantity, (see II. iii. xvi.) is governed by the same rule as limitate land. For what we said before of ownership, when we spoke of occupation, obtains also with regard to private lands: adding this difference, that lordships (imperia) are, in a doubtful case, to be supposed to be arcifinial, bounded by natural limits, because that best agrees with the nature of the territory: but private lands are rather supposed not to be 130naturally bounded, but either limitate, or determined by measure; for this is more congruous to the nature of private possession.

2 We do not deny that it may be that a people assigns land to a private person by the same rule by which it had itself occupied it, that is, up to the river; and if that is the case, the possessor has a right to the alluvium: which in Holland, was some generations ago adjudged to be the case with the lands between the Meuse and the Yssel, because these, both in the leases and in the records of the land-tax, are always said to reach to the river. And if such lands be sold, although, in the articles of sale, some measure be mentioned, yet since they are sold, not by measure but bodily, they retain their nature and right of alluvium: which is also declared in the Roman Law, and everywhere acted on as usage.

XIII. What we have said of alluvium, is also to be considered to apply to a deserted river-bank and a part of the bed dried up; namely that, in places not occupied, they belong to him who takes possession; in occupied rivers, to the people; and to private persons only if they have received from the people, or from one who derives right from the people, land running on to the river, as such.

XIV. But since we have said that the rule respecting an island is different from the rule for alluvium, a controversy often arises which of the two a piece of ground is, when there is an elevated promontory connected with the nearest land by a plain which is under water: which perpetually happens with us on account of the inequality of the ground. Here usages vary. In Gueldres it becomes part of the land, provided it be occupied and can be visited with a loaded cart: in the land of Putten, as far as a man on foot with a sword in his hand can reach. The most natural rule is, that an island should be considered as separate from the land when there is a strait through which a ship can commonly pass.

XV. 1 No loss frequent is the question between the sovereign prince, and his vassals who have subordinate authority. That the mere concession of sovereignty does not carry with it the increase made by rivers, is plain enough. But it is to be noted that some vassals have received, with their definite authority, the right to the whole land, saving what belongs to private persons; it may be, because the land formerly belonged to the prince or to the people, or was drained by the people. In this case it is not doubtful that the vassals have the same rights which the prince or the people had. And thus we see in Zealand, vassals who have only civil jurisdiction, [not criminal,] still pay the land-taxes for the whole of the land; of which they in return claim a part from private possessors according to their holdings. And in such cases there is no question about the right of alluvium.

In some cases, the river is given to a person, and then of course he rightly claims the islands that are produced, whether arising from accumulated mud, or parts of the bed which the river leaves.

131 2 There are other persons whose grant does not comprehend either the one or the other of these things: and these have no case against the public; except either the custom of that country favours them, or a long possession, with due circumstances, have generated a right.

But if it be not the authority or lordship, but the land which is granted as a fief, we must see what is the nature of the land, as above stated. If it is arcifinial, the alluvium is to be considered as comprehended in the grant, not by the peculiar right of the prince, but by the nature of the land: for a tenant for a term would in such case also enjoy the profits of alluvium.

XVI. The Romans, in order to prove their own Law to be Natural Law, are wont to adduce that trite maxim: It is according to nature that he should have the advantages of anything who has the disadvantages: wherefore, as the river may often carry away a part of my land, it is reasonable that I should take what it gives. But that rule does not hold, except when the advantages come from a thing which is ours; but here they come from the river, which belongs to another party. But that what is destroyed is lost to the owner, is Natural Law. And that what they allege is not universally applicable, appears by the exception, admitted by themselves, of limitate land. The river enriches some, impoverishes others, as Lucan says.

XVII. What they further say, that even a public road [passing along the river-bank] does not bar the right of alluvium, is a doctrine for which there is no natural reason; except the private land be bound to keep up the road.

XVIII. There is another mode of acquisition, amongst those which are reckoned juris gentium, by the generation of animals: in which that which has been ruled by the Romans and some other nations, that the offspring follows the mother (as to property) is not Natural Law, as we have said above, (II. v. xxix.) except so far that the father is unknown in most cases. But if there were any probable certainty concerning him, no reason could be assigned why the offspring should not belong partly to him. For that what is born is part of the father is certain. Whether it derive more from the father or the mother is disputed among physiologists. So Plutarch. [See.] And this view was followed in the old laws of the Franks and Lombards.

XIX. 1 [There is a question concerning property in which materials and labour are mixed.]

If I make a new article of materials belonging to another, the Sabinians^* determined it to be the property of him to whom the materials belonged; Proculus, the property of me who gave it the new form, by which the article began to be what it is. But at last the medium opinion was accepted: that if the matter could return to its former shape, the owner of the material should have it; if it could not, then the person who was the author of the new form. But 132Connanus condemns this, and is for having this point alone considered; whether there be a greater amount of value in the workmanship or in the material; and for directing that that which is the more valuable should prevail, and draw to it that which is of less value; arguing by reference to the doctrines of the Roman jurists concerning value added to a thing.

2 But if we look at Natural Law merely, as the Roman jurists decided that when materials of two kinds belonging to two persons are indistinguishably mixed, there is a common property produced, in proportion to each person’s share, because otherwise there could be no natural termination of the question: so when things consist of matter and form as their parts, if the matter belong to one, the form to another, it follows by Natural Law that the article is common property, according to the share of value which belongs to each. For the form is part of the substance, but not the whole substance: which Ulpian saw, when he said that by the change of form the substance was almost destroyed.

XX. But that they who with fraudulent intent meddle with matter that belongs to another, lose their right to the form which they have given it, is indeed a rule not otherwise than equitable; but it is a penal Law, and therefore not a Natural Law; for Nature does not determine punishment, nor does she take away ownership for a delinquency per se; though by Natural Law delinquents are worthy of some punishment.

XXI. But that the minor thing becomes an appendage to the major thing, which is the ground on which Connanus rests, is a natural rule in fact, but not in law. He who is part-owner of an estate, for a twentieth part only, is as much part-owner as he who has the nineteen parts. Wherefore all that is settled in the Roman Law, or may further be settled, about one part becoming an appendage to the other on account of the prevalence of value, is not Natural Law, but Civil Law, introduced for the convenience of business; nature not repugning, because the law has the right of giving ownership. But there is scarce any part of law in which the opinions and errors of jurists are so various. For who will allow that if copper and gold are mixed together they cannot be separated, as Ulpian writes; or that in welding, [ferruminatio] there is an indistinguishable mixture, as Paulus; or that the rule is different for a written paper and a picture; the canvas being an appendage to the picture, but the writing to the paper?

XXII. That plantations and crops are appendages to the soil is similarly an established rule of law; of which the reason is, that they are nourished by the soil. On this account a distinction is made in a tree, according to whether it has shot out roots. But aliment makes only a part of a thing already existing: and therefore, as the owner of the soil acquires some right from the ailment supplied, so the owner of the seed, plant, or tree planted, does not thereby lose his right 133according to Natural Law. Therefore this too will be a case of common property: and in the same way in a house, of which the parts are the ground and the superstructure; for if the building be moveable, the owner of the soil has no right in it, as Scævola also decided.

XXIII. That a bona fide possessor, [one who believes that he has a right,] acquires a property in all the fruit or income which he draws from the property, is not Natural Law: but only so far as this; that he has a right to charge the expenses which he has bestowed upon the property, and his useful labour, and of deducting them from the income received: and even of retaining the rising crop if repayment is not otherwise made.

XXIV. The same may be said of a possessor male fide, [who knows that he has not a right,] when the penal law does not interfere. It is more considerate, says Paulus the jurist, that even in a man who has robbed us we should take account of his expenses; for the complainant ought not to derive gain from another’s loss.

XXV. The last mode of acquisition which is called juris gentium is by tradition or delivery. But we have said above that delivery is not required by Natural Law for the transfer of ownership; as indeed the Jurists themselves in some cases acknowledge: as in a thing which is given to another, while the present enjoyment of it is retained by the donor, or which is made over to a person who already holds it, or has it as a loan, or in things thrown among a crowd for them to catch. And in some cases, even now, a man may transfer the ownership before be is owner himself; as [by a certain Roman law,] in inheritances, legacies, things given to churches or pious places, or to communities, or for the sake of aliment, or in cases when a joint property in the goods is established.

XXVI. We have noted these things, in order that when any one finds the term juris gentium in the Roman jurists, he may not, as a matter of course, understand that jus which is immutable: but may carefully distinguish precepts of Natural Law from those which, in a certain state, are natural; and rights which are common to many peoples independently, from those which contain the bond of human society, [and therefore are truly juris gentium].

But this is to be noted, that if by this jus gentium improperly so called, or by the law of one people, a mode of acquiring property be introduced without any distinction of citizen and stranger, this, of course, gives a right to foreigners also: and if the person be prevented from taking possession of the right, there may arise a wrong which gives a just occasion of war.