Questions of Public Law (1737)
Cornelius van Bynkershoek
On the Limits of Possession of Immovables Taken in War
IT is worth considering how far extends the possession of immovables taken in war and the consequent rights of property. Grotius does not admit every land of possession as sufficient, but requires ‘firm possession’, a phrase which he explains thus: ‘the land which is included in permanent defences so that it is evident there is no access to it till these are carried’. May we decide then that when a city is taken, its lands also are taken, and if so, what are the limits of possession? Grotius has nothing to say about this, though he raises the question frequently in connexion with the capture and occupation of places. An example will make the matter clearer. The French had occupied Caselle and Turin in Piedmont, but when a truce was made it was agreed that each party should during the truce continue to hold possession on the principle of uti possidetis of the part he had occupied in the war. Then the question arose regarding the territories and townships which were dependencies of these cities, now in the hands of the French, and which provided services even to the French during the war. Some jurists decided the case against the French saying that possession by the law of nations, and naturally acquired, must be shown, and that the occupied part does not draw along with it the unoccupied part, that furthermore the services provided by the inhabitants did not inure to the French, since the citizens were themselves held against their will. This is the argument of Pierino Belli, whether or not Zouche agrees, I cannot say. At any rate Belli is certainly mistaken if he applies the principle to the case of a truce, as in the present instance, since that general phrase uti possidetis embraces an implied as well as an actual possession. This implied possession consisted in providing and, accepting services and duties that are generally rendered only to a master; what actual possession is will appear from the following.
We must accordingly adduce from reason what possession of immovables taken in war really is: it then becomes clear that when a part has been occupied, the whole is occupied and possessed if such is the intention of the captor, and thus Paulus also decides the matter. That this is a principle of natural as well as of civil law is abundantly proved by experience and by custom, that best of teachers. Possession extends over what is occupied, and by natural law, what is occupied is brought into our possession, but even that which has not been touched all around by our hands and feet is conceived of as occupied, if that be the intention of the occupant, and the nature of the object so requires, as is the case with lands. If you disagree you will find difficulty in defining what occupation and possession are; for if you should insist that everything must be touched, it would not suffice to touch the surface of the ground, you would even have to walk all about it and to dig down into it.
But though it be true that when a part is taken the whole is taken if it be taken with this intent, the statement will hold only provided no other person has taken a part of the land concerned, for if another also possessed a part of the same whole, he would by the same reason possess the whole. But this cannot be, since, as Paulus truly says, two persons cannot possess the whole of the same thing, for the ownership of one would exclude the ownership of the other. Accordingly, if one possesses a thing, and a second person takes a part which the first person does not bodily occupy, he has taken nothing beyond what he has occupied by natural means. Neither will it be possible to divide possession in the unseized part into halves or into shares apportioned according to the size of the parts occupied, for in that part the rights of the former occupant are paramount and cannot be excluded by the similar claims of a second, supposing that the strength of the two are equal. And in that part which he holds, the latter occupant has done away with the so-called legal possession of the former only because he has seized the portion by natural means, and natural possession has superseded the legal one. This is the very thing that Celsus says: ‘If an army has entered with great force it obtains possession only of that part which it has entered.’ When he says ‘with great force’ he implies that there was resistance and that there were those who defended even by force the property rights of the former owners. Hence the enemy’s army did not occupy the fields farther than it compelled ours to recede. This may perhaps be the meaning of Paulus when he says that upon a partial occupation the whole is indeed- occupied, if that be the intention, up to boundaries (usque ad terminum). This I interpret to mean: up to that part which another possesses, whether that other be a neighbour living upon the neighbouring estate, or some one else dwelling upon the very estate whose occupation is in question.
Hence in an occupied region it is not difficult to discover what ought to be considered as properly occupied. The metropolitan law has no bearing upon the case, for this is civil government which the defeated prince has established wherever he chooses. And if this be so, we readily comprehend that if the stronghold should be seized from which a region is ruled it does not follow that the cities, towns, and forts still in the possession of the sovereign shall also be considered occupied; their condition must be judged from the act itself of occupation and possession. Consequently we hold that, when a part of a region has been occupied, the whole is considered occupied unless the vanquished sovereign retains some part; if he still holds a part, only that may be considered occupied which the victor has forcibly taken from the vanquished and retains in his possession. But regarding several different countries that belong to one sovereign we may well ask whether we should use the same distinction that we employ in the case of contiguous private estates. If Titius has three contiguous farms, A, B, and C, and Gains occupies a part of A, it is agreed that he occupies the whole of it, but that he does not occupy B and C; for in taking possession of a given property we take possession up to its boundaries but not beyond. He who has entered upon a part of farm A is supposed to do so with the sole purpose of taking full possession of the one of which he has occupied a part; he is not supposed to have farms B and C in mind. When a part is seized, the boundary of possession is marked by the whole which constitutes a distinct thing separated from the rest, and that boundary we do not overstep whether the thing in question be a house, a farm, a storehouse, or anything else that falls in civil law under the term ‘immovable property’. But in my opinion immovables that are occupied by right of conquest fall under a different principle. It is the intention of the victor not only to invade one country but the whole of the hostile empire, and to possess himself of all the countries of that empire, and the only boundary in question here is the territory which the vanquished sovereign still retains in his actual possession. If there is nothing that the victor cannot make his own, what is going to prevent him from progressing and taking possession? If the vanquished retains nothing, and the victor has occupied only one country, or even only the capital city, that will give him possession of the whole empire. Accordingly, the words were truly spoken which the envoy of the Emperor Justinian said to Chosroes, the Persian King: ‘Is not he who is master of the ruler, also master of the ruler’s subjects?’ However, if the vanquished still retains something, then what the victor has taken from his empire and holds forcibly will not properly be considered ‘a subject’. Deservedly, therefore, have sovereigns been ridiculed who because they held Rome and Constantinople claimed the dominion of the whole Roman world, while at that very time other princes occupied other important parts of the empire. Of the same nature was the arrogance of Belisarius as described by Procopius, for when Justinian had reduced Carthage and King Gelimer, he boasted openly that now everything belonged to him which Gelimer had possessed in Sicily. This was of course incorrect, for the right which he had over Carthage and the person of the King could not transfer to him the possession of the things which were in Sicily. Sicily defended itself by its own forces, and his whole dominion was not captured by his capture. Actual occupation is essential, or a cession, if this be agreed upon in the treaty. Now let us see what edicts and decrees the estates of the United Provinces have issued upon this subject. When by Article 3 of the truce between the Archduke of Austria and the States-General (April 9, 1609) it was agreed that each should continue during the truce to hold what he then possessed, and the Archduke had posted his edicts in the territory of Cuyk, the States-General, on August 20, 1609, decreed that this territory belonged to them, since they possessed the city of Grave to which that territory was subject, and they prohibited all others from exercising dominion there. Again, when the States-General had taken some forts in the Overmaze, and the Spaniards had nevertheless ordered the inhabitants not to submit themselves to the jurisdiction of the council of Brabant, sitting at The Hague, the States-General in retaliation opposed them by the decree of March 8, 1634. Furthermore when Bois-le-Duc belonged to the States-General, and the Spaniards created disturbances over the territory of that town, the States-General retorted by a number of decrees, namely on January 30, 1630, August 3, 1630, May 13, 1631, June 20, 1634, February 2 and December 2, 1636, and December 24, 1642. In two decrees, namely those of March 8, 1634, and February 2, 1636, there is cited the edict of the Spanish King dated July 10, 1628, in which that King argues at length that the territory that belongs to a city follows the conquest of the city. And this is the law that the States-General also with entire propriety adopted in the aforementioned edicts, because those who rule at pleasure over a territory are considered to have occupied that territory. However, if there be some as yet unoccupied stronghold in the territory, the possession and dominion of the invader does not extend over the port dominated by said stronghold.
If, as I think, the foregoing conclusions are correct, the council of Brabant, which legislates at The Hague for those regions of Brabant that the States-General have taken in war, was entirely correct when on October 26, 1629, it decreed that the fiefs of the territory of Bois-le-Duc must request the proper investiture from them, not from the Council of Brabant sitting at Brussels. And it also appears that the King of Spain had no right to issue the contradictory decree of November 15, 1629, of which Aitzema relates in detail. For when Bois-le-Duc was captured by the States-General the surrounding territory fell to them, and they became lords of the fiefs situated there, for a conquered vassal owes allegiance and services to the victor, not to the vanquished lord. There is even less doubt that if a province is ceded, the whole of it is ceded. Regarding this matter there is an edict of the States-General dated December 22, 1610, concerning Twent, a part of Overyssel.