The Law of War and Peace (1625)
by Hugo Grotius
On Assumed Abandonment of Ownership and Occupation Consequent Thereon
I. Why ownership by usucaption or by prescription properly so called does not occur between states or their rulers.
A SERIOUS difficulty arises at this point in regard to the right of usucaption. For since this right was introduced by municipal law (time, in fact, in its own nature has no effective force; nothing is done by time, though everything is done in time) it has no place, as Vazquez holds, in the relations between two independent states or kings, or between an independent state and a king; nor yet between a king and an individual not subject to him, nor between two subjects of different kings or states.
This seems to be true except in so far as a thing or an act is governed by the laws of the land. But if we admit this, a very serious inconvenience clearly follows, in that contests about kingdoms and the boundaries of kingdoms never come to an end with lapse of time. Such a condition, again, not only tends to disturb the minds of many and to occasion wars, but is also contrary to the common sense of nations.
II. That nevertheless possession of long standing is wont to be urged as a right even between states or rulers.
For in the Scriptures, when the king of the Ammonites laid claim to the lands between the Arnon and the Jabbok, reaching from the Arabian deserts to the Jordan, Jephtha alleged possession for three hundred years, and asked him why, during so long a time, he himself and his ancestors had entered no claim. According to Isocrates the Lacedaemonians laid it down as a most sure maxim, accepted among all peoples, that public, no less than private, possessions are so confirmed by long standing that they cannot be recovered; on the basis of this right they sent away those who demanded the return of Messene. The Greek words may be translated: ‘All people consider that both public and private possessions are legally valid and inheritable if a long period of possession has intervened.’
The same Isocrates used these words to Philip: ‘Since, the long lapse of time had rendered the possession fixed and irrevocable.’ Relying on this right the later Philip said to Titus Quinctius that he would set free the cities which he had captured, but he would not withdraw from those which had been received by him from his ancestors by lawful and inherited possession. Sulpicius, arguing against Antiochus, showed that he was unjust in claiming the right, after several centuries, of reducing the Greek peoples in Asia to slavery because they had formerly been enslaved.
The historians call the revival of old claims empty talk; Diodorus characterizes such claims as legendary and ancient tales. Cicero in the second book On Duties says: ‘But how is it just for the owner to lose a field that has previously been held for many years, or even centuries?’
III. The question is decided according to presumptions of human intent; and these presumptions are not based on words alone.
What shall we say? Actions at law, which are dependent on intent, cannot indeed be inferred from a mental act alone, unless that act has been indicated by certain outward signs. For to assign a legal effect to mere acts of the mind was not consistent with human nature, which is able to recognize such acts only from outward signs. And for this reason purely mental acts are not subject to human laws.
Outward signs, however, do not indicate mental acts with mathematical certainty, but only with probability. For men can say something different from what they desire and feel, and can disguise their intentions by their actions. Nevertheless the nature of human society does not allow that no effect be given to mental acts which are sufficiently indicated. And so whatever has been sufficiently indicated is considered as true in respect to him who has indicated it. Thus, as regards words, at any rate, the difficulty is solved.
IV. But such presumptions are based also on acts.
1. A thing which is thrown away is understood by the act to be abandoned, unless the circumstances of the case are such that we ought to think it was thrown aside for the moment and with the intention of recovering it later. Thus a debt is considered discharged by the return of the note.’An inheritance,’ says Paul, ‘can be refused not only by words, but also by act and any expression of intent.’ Thus if any one is the owner of a thing and knowingly treats with another who has it in possession, as if with its owner, he is deservedly considered to have abandoned his right. And there is no reason why this should not be the case also between kings and independent states.
2. Similarly, a higher officer who permits an inferior to do, or commands him to do, that which he cannot lawfully do unless he is freed by law, is understood to have freed him from the law.
The principle under consideration in fact has its origin not in municipal law but in the law of nature, according to which every man has the right to abandon his own; and further, in a natural presumption, in accordance with which one is believed to have wished that of which he has given sufficient indications. In this sense we can properly accept the statement of Ulpian, that verbal release of obligation belongs to the law of nations.
V. Such presumptions are based also on things not done.
Under acts, moreover, consistently with moral standards, failures to act are included, considered with relation to the circumstances which ought to be taken into account. Thus he who keeps silence, when present and cognizant of the facts, seems to give consent. This principle the Hebraic law also recognizes (Numbers 30:5 and 12) unless circumstances shove that the person was hindered from speaking by fear, or by some other condition. Thus a thing is considered lost if the hope of its recovery is abandoned. For example, Ulpian says that hogs carried off by a wolf, and what we lose in a shipwreck, cease to be ours, not immediately, but when recovery seems impossible; that is, in cases in which there is no reason why any one should be expected to retain the thought of ownership, when no indications of such an intent exist. If persons had been sent to look for the property, or ‘a reward’ had been offered, we should have had to judge otherwise.
Thus a person who knows that his property is in the possession of another, and during a long period makes no claim against the possessor, unless some other reason is manifest, seems to have pursued this course with no other thought than because he no longer wished that object to be considered among his possessions. Ulpian has elsewhere said this, that after long silence a house seems to be considered as abandoned by the owner. ‘Unjustly,’ writes the Emperor Pius in a rescript, ‘do you demand overdue interest, which the length of time intervening indicates that you had abandoned, because you did not think that this ought to be demanded of your debtor evidently in order that you might be in greater favor with him.’
2. Very similar to this is what appears in the establishment of a custom. For a custom also, without regard to the laws of a state which fix a certain time and manner for its introduction, can be introduced by a subject people in consequence of the fact that it is tolerated by the one who holds the sovereignty. But the time within which a custom receives the effect of law is not definitely fixed, but arbitrary, to wit, whatever length of time is sufficient to accord with the implied consent.
3. However, in order that silence may establish the presumption of abandonment of ownership, two conditions are requisite, that the silence be that of one who acts with knowledge and of his own free will. For the failure to act on the part of one who does not know is without legal effect; and when another apparent cause for the action appears the inference of an act of will ceases to be in point.
VI. How length of time together with non-possession and silence amounts to an abandonment of right.
That these two conditions, then, may be considered to be present, is established by other indications, but, in the case of both, length of time is a paramount consideration.
In the first place it can hardly happen that, with length of time, property belonging to a man should not come to his notice, since apse of time offers many opportunities for such cognizance. Nevertheless in the case of those who are at hand a shorter space of time suffices to establish this inference than in the case of parties who are absent, aside from the stipulations of municipal law. Again, fear, once inspired, is believed to endure for a time, but not indefinitely, since length of time furnishes many opportunities for taking counsel against the fear, either by oneself or with the help of others, and even by leaving the territory of the one feared; in consequence, at length a complaint may be made concerning infringement of a right, or, what is better, an appeal may be made to judges or arbitrators.
VII. Time exceeding the memory of man ordinarily suffices for such a presumption; of what sort such time is.
Because a length of time exceeding the memory of man is in its essential character practically infinite, a silence for that length of time will always seem sufficient to imply abandonment of owner ship, unless there are very strong reasons to the contrary.” It has also been well remarked by the better jurists that time exceeding the memory of man is not the same as a century, although these two limits often are not far apart, for the reason that a hundred years ordinarily constitute the limit of human life. This period, again, generally equals three ages, or ‘generations,’ of men.
This fact was in point in the criticism of Antiochus by the Romans, when they showed that he was demanding the return of cities which he himself, his father, and his grandfather had never occupied.
VIII. Answer to the objection, that no one ought to be assumed to abandon his right.
1. The objection may be raised that, since men love themselves and their possessions, it ought not to be believed that they would abandon their own property; and that, in consequence, negative acts, even through a long space of time, are not sufficient to warrant the inference which I have mentioned. But again we ought to think that good should be expected of men; and for that reason it ought not to be supposed that they have such a disposition that, out of consideration for a mere perishable thing, they would wish a fellow man to live in a continual state of sin. Without such abandonment of ownership, such a result often cannot be avoided.
2. In regard to the exercise of sovereign power, although generally it is greatly esteemed, we ought to know that the burdens are great, and that failure to administer them well renders a man subject to divine wrath. just as it would be a wrong thing for two persons, who claim to be guardians, to go to law at the expense of the ward in order to determine which of the two should have the right of guardianship; or-to use the illustration which Plato has in connection with this subject for the sailors with danger to the ship to struggle in order to determine which of them would best do the steering, so those are not always worthy of praise who with the greatest loss, and often with the bloodshed of innocent people, desire to decide who is to control the government of that people.
The ancients praise the words of Antiochus, who gave thanks to the Roman people because, ‘freed from excessive cares of government, he enjoyed modest boundaries.’ Among many wise sayings of Lucan the following is not least:
- With such an onset of new crimes
Seek they to know which one shall rule the city?
It scarce were worth so great a price that either should.
3. It is, then, to the interest of human society that governments be established on a sure basis and beyond the hazard of dispute; and all implications which point in that direction ought to be looked upon with favor. For if Aratus of Sicyon thought it a hard thing that private possessions of fifty years’ standing be taken away,.how much more ought that saying of Augustus to be held in mind, that He is a good man and a good citizen who does not wish the present condition of the state changed; and who, as Alcibiades says in Thucydides, ‘will preserve the form of government which he received.’
The expression ‘to maintain the present form of government,’ Isocrates used in the oration Against Callimachus. Thus also Cicero, in a speech to the people against Rullus: ‘It is becoming for an advocate of quiet and harmony to defend the existing condition of the state’; and Livy says: ‘All the best citizens rejoice in the present state of government.’
4. Now if those indications, which I have mentioned, should not be present, nevertheless against the presumption, according to which it is believed that each man wishes to keep his own, the other presumption has greater weight, because it is not credible that anyone in a long time should give no clear indication of what he wishes.
IX. Without such presumption it seems that by universal customary law ownership is transferred by possession exceeding the memory of man.
Perhaps without improbability it can be said that this adjustment is not based on presumption alone, but that, in accordance with the volitional law of nations, the provision was introduced that possession beyond the limits of memory, not interrupted nor called in question by appeal to the courts, should absolutely transfer ownership. It is in fact credible that the nations agreed in this, since it was of the greatest importance for the preservation of the common peace.
Moreover, with justification I used the expression ‘uninterrupted possession,’ that is, as Sulpicius says in Livy: ‘According to a single lasting tenure of right constantly enjoyed and never interrupted’; the same writer elsewhere spoke of ‘a lasting possession never called in question.’ For intermittent possession has no effect. This is illustrated by the reply of the Numidians to the Carthaginians: ‘According to circumstances, now the Carthaginians, now the kings of Numidia, enjoyed the right, and possession was always in the hands of the one who was most powerful in arms.’
X. Whether unborn children can in like manner be deprived of a right.
1. At this point another and indeed an exceedingly difficult question arises, whether those not yet born can tacitly lose their right by such an abandonment. If we say that they cannot, the explanation just given has contributed nothing to the tranquillity of empires and estates, since most of these are held under such conditions that they ought to pass to the descendants. If we affirm that they can, it will seem strange that silence can harm those not able to speak, since in fact they do not exist; or that the act of one party should entail loss for another.
2. In order to solve this problem, the fact must be recognized that a person who is not yet born has no rights, just as a thing which does not exist has no attributes. If then the people, from whose will the right to rule arises, changes its will, it does no injustice to those yet unborn, since they have not yet acquired any right. Moreover as a people can change its will openly, so it can be believed to have changed its will tacitly. If, therefore, the people has changed its will, while the right of those who may be expected to come is not yet in existence and besides that very right has been abandoned by the parents from whom those may be born who were to possess the right in their own time-there is nothing to hinder another from occupying property under these conditions as ownerless.
3. We are treating of the law of nature. For as other fictions have been introduced by the civil law, so this provision may be introduced also, that meanwhile the law should defend the persons of those who do not yet exist, and should thus hinder anything from being seized to their disadvantage. Nevertheless we should not hastily judge that such is the intent of the laws, because in such cases private advantage is strongly opposed to public advantage.
Hence also, according to the more generally accepted opinion, those fiefs, which are not derived from the right of the last possessor but from the force of the original investiture, can be acquired in a sufficiently long time. Covarruvias, a jurist of excellent judgement, has with good reason extended this principle to the rights of the first-born and to property bequeathed in trust.
4. Nothing in fact makes it impossible that such a provision should be introduced into the law of a state that a thing, which cannot be lawfully alienated by a single act, can nevertheless, in order to avoid uncertainty of ownership, be lost by neglect for a fixed period of time; and even under such a provision those born later will have the right of personal action against those guilty of neglect, or against their heirs.
XI. Even the right of sovereignty is gained by a people or king by long-standing possession.
From what we have said, it is plain that a king can acquire a right as against a king, and an independent state as against an independent state, not only by express agreement, but also by abandonment of ownership and the occupation which follows it or assumes a new force from it. For the common saying, that ‘what is not valid from the beginning cannot become valid from a subsequent act,’ is subject to the exception, ‘unless a new cause has intervened capable in itself of producing a right.’
Similarly also the true king of a people may lose his sovereignty and become subject to the people; and he who in reality is not a king, but only the foremast citizen, can be made king with absolute power, and the supreme authority, which was wholly in the power of either king or people, can be divided between them.
XII. Whether the civil statutes concerning ownership by usucaption and by prescription hind the one who holds sovereign power; explanation, with distinctions.
1. It is also worth while to investigate this question, whether a law dealing with ownership by usucaption or by prescription, and established by one who has sovereign power, can apply also to the right of sovereignty itself, and to the necessary parts of it which I have explained elsewhere.
Not a few jurists, who treat of sovereignty in accordance with Roman municipal law, think that such a law does apply. But I think otherwise.” For in order that any one may be bound by a law, both power and intent, at least presumed, are requisite in the maker of the law. No one can bind himself after the manner of a law, that is after the manner of a superior. Hence it is that the makers of laws have the right to change their own laws. Still, one can be bound by his own law, not directly, but by implication; inasmuch as he is a member of the community, he is under an obligation imposed by natural fairness, which desires that the parts be adjusted in relation to the whole. Sacred history notes that such an observance was characteristic of Saul in the beginning of his reign (I Samuel 14:40). But here this is not in point, because we are considering the maker of laws not as a part of the community but as the one in whom the power of the entire body resides. We are in fact treating of sovereignty as such.
Again, the intent is not presumed to have been present, because the makers of laws are not considered as intending to include themselves, except in cases where both the subject-matter and the reason for the law are universal, as in fixing prices. But sovereignty is not of like character with other things; rather, in its exalted rank it far exceeds other things. I have not seen any civil statute treating of prescription which included sovereignty, or could be considered with probability to have intended to include it.
2. From these considerations it follows that the time defined by such a statute is not sufficient for acquiring sovereignty or a necessary part of it, if the natural implications which we mentioned above are lacking; that so great a length of time is not required if such implications are present within the time to a sufficient degree; and, lastly, a civil statute, which forbids that property be acquired within a fixed time, does not have anything to do with matters of sovereignty.
Nevertheless, in a transfer of sovereignty, the people could express its will as to the manner and time in which the sovereignty might be lost by failure to exercise it. This expressed will would undoubtedly have to be followed, and could not be infringed upon even by a king possessed of sovereign power, because it applies not to the sovereignty itself but to the manner of holding it. But of this distinction I have spoken elsewhere.
XIII. Those rights of sovereignty which can he separated from it, or shared with others, are gained and lost by right of ownership based on usucaption or on prescription.
Those powers which do not belong to the nature of sovereignty, and do not have relation to it as essential parts, but can be naturally separated from it or at least shared with others, are entirely subject to such statutes of each people as have been passed concerning ownership by usucaption and by prescription. Thus we see that there are subjects who have acquired by prescription the right to judge without appeal; yet in such a way that there is always some sort of appeal from them, as by petition, or by some other means. For that any one should be beyond the right of appeal is inconsistent with the character of a subject, and therefore this right belongs to sovereignty or to a part of it, and can be acquired in no other way than by the law of nature, to which sovereignties are subject.
XIV. Refutation of the opinion alleging that subjects are always allowed to assert their liberty.
1. From this it is apparent to what extent we can accept the assertion of some, that it is always permissible for subjects to regain their liberty, that is, the independence of the people, if they can. The reason given is that a sovereignty won by force can be overthrown by force, while a sovereignty which has arisen from the will of the people may be repented of, and the will may change.
In truth sovereignties which were at first won by force may receive lawful confirmation by tacit acceptance; and the will of the people, either at the very establishment of the sovereignty, or in connection with a later act, may be such as to confer a right which for the future is not dependent on such will.
According to Josephus, King Agrippa in an address to the Jews, who were called Zealots from their untimely zeal for the recovery of liberty, spoke thus:
It is not now the proper time to strive for liberty. Formerly you ought to have fought not to lose it. For it is a hard thing to run the risk of slavery, and the strife to avoid it is honorable. But he who revolts, after having been once subdued, must be called not a lover of liberty but a disobedient slave.
Josephus himself also says to the same Jews: ‘It is indeed honorable to fight for liberty, but that ought to have been done formerly. But if those who have once been conquered and have obeyed for a long time shake off the yoke, they act like desperadoes and not like lovers of liberty.’ This very remark Cyrus once made to the Armenian king, who, as the excuse for his rebellion, alleged the desire to recover his lost liberty.
2. For the rest, I think it not in the least open to doubt that long indifference, such as I have described above, on the part of a king may suffice to warrant a people in recovering their freedom, on the ground of presumed abandonment of sovereign rights.
XV. Whatever belongs to faculty pure and simple is not lost by lapse of time; explanation.
There are rights which do not involve daily exercise, but an adjustment once for all when it shall be convenient, as the redeeming of a pledge by payment. Also there are rights of free action, to which the act engaged in is not directly opposed, but is included therein as a part in the whole; an illustration would be if any one has had an alliance with one neighbor only during a hundred years, while nevertheless it was in. his power to have alliances with others also.
These rights are not lost, except in consequence of a prohibition or restraint, and when obedience has been rendered thereto, with a sufficient indication of consent. Since this is in accord not only with municipal law but also with natural reason, it will properly apply also in the case of men of the highest rank.