The Law of War and Peace (1625)
by Hugo Grotius
On Acquisitions Commonly Said to Be by the Law of Nations
I. That many rights are said to have their origin in the law of nations, of which, if we speak accurately, this is not true.
1. THE order of our subject has brought us to the acquisition of property which takes place by that law of nations that we previously called the volitional law of nations, distinct from the law of nature. Such is the acquisition made by right of war, but we shall treat of this more properly below, when the effects of war will be explained.
When the Roman jurists treat of acquiring ownership of property, they enumerate many methods, which they say are according to the law of nations. If, however, any one will examine these closely, he will find that with the exception of the right of war none of them have anything to do with that law of nations with which we are concerned; but that they must be referred, either to the law of nature not, to be sure, in its original state, but in the state which followed the introduction of property ownership and preceded all civil law or they must be referred to the civil law itself, not alone of the Roman people but of many surrounding nations. I believe that this is the case, because the origin of such law or custom had come from the Greeks, whose institutions, as Dionysius of Halicarnassus and others note, were followed by the peoples of Italy and their neighbors.
2. This law of nations is not international law, strictly speaking, .for it does not affect the mutual society of nations in relation to one another; it affects only each particular people in a state of peace. For this reason a single people can change its determination without consulting others; and even this happens, that in different times and places a far different common custom, and therefore a different law of nations (improperly so called), might be introduced. This, we see, did actually happen when the Germanic peoples invaded almost all Europe. For as formerly the Greek laws, so then the Germanic customs were everywhere accepted, and these are even now in force.
Now the first method of acquiring property, which by the Romans was ascribed to the law of nations, is the taking possession of that which belongs to no one. This method is without doubt in accord with the law of nature, in the state to which I referred, after the establishment of property ownership, and so long as no statute established any provision to the contrary. For property ownership can be brought about also by the civil law.
II. That fish in ponds and wild animals confined in parks are private property according to the law of nature, contrary to the ruling of the Roman law.
First under this head the capture of wild beasts, birds, and fish comes up for discussion. The question is by no means settled, how long these may be said to belong to no one. Nerva the son said that the fish which are in our fish-ponds belong to us, but not those in a lake; also that wild beasts which are confined in a park are our property, but not those which wander at large in forests that are fenced in. But fish in a private lake are no less shut in than in a fishpond, and well-fenced forests detain wild beasts no less effectively than parks, which the Greeks called ‘places for raising wild beasts’; and these differ in no other respect than that one is a narrower, the other a less restricted confinement. Therefore in our time with greater justice the opposite opinion has prevailed, so that it is understood that we have right of ownership over wild beasts in private forests, and fish in private lakes, just as we have possession of them.
III. That wild beasts, even if they have escaped, are none the less the property of those who captured them, if they can be properly identified.
The Roman jurists affirm that wild animals cease to be our property as soon as they regain their natural liberty. But in all other things ownership, which begins with possession, is not lost when possession is lost; rather, ownership gives us the right to recover possession. Besides it makes no great difference whether another takes away our possessions from us, or they themselves escape, as a runaway slave. The truth, then, is rather that ownership is not actually lost because the wild beasts have escaped, but because of the natural inference that we have abandoned ownership on account of the difficulty of pursuit, especially since the wild creatures which belonged to us cannot be distinguished from others.
This inference, however, can be made invalid by other inferences, such as would be warranted, for example, if ‘identification marks,’ or bells, were placed on the wild creature; this, we know, has been done in the case of deer and hawks, which, when identified thereby, have been restored to their owners. Moreover an actual physical possession is requisite in order to acquire ownership. It is, then, not sufficient to have wounded an animal, a view that is rightly held in opposition to Trebatius. Hence came the proverb, ‘You started the hare, but others caught it.’ Again, in the fifth book of Ovid’s Metamorphoses, we read that it is one thing to know where a thing is, and another to find it.
IV. Whether possession may be acquired with the help of appliances, and how?
Now this physical possession of wild creatures can be acquired not only by the hands, but also by appliances, such as traps, nets, and snares, provided that two conditions are observed: first, that the appliances are in our possession; then, that the wild creature has been caught in such a way that it cannot escape. On this basis the question of the boar caught in a snare should be decided.
V. That it is not contrary to the law of nations that wild creatures should be the property of kings.
The principles stated will therefore be applicable if no statute has prevented. Modern jurists, in fact, are greatly mistaken who think that these rules are so bound up with the law of nature that they cannot be changed. They are not a part of the law of nature absolutely, but are such only under a certain condition, that is, if no provision has otherwise been made. Thus the peoples of Germany, since properties had to be assigned to their kings and princes for the maintenance of the proper rank, wisely considered that a beginning ought to be made with those things which could be so assigned without loss to any one. To this class belong all things which have not become the property of any one.
I see that the Egyptians availed themselves of this right. For in Egypt also the revenue collector of the king, whom they called by a title meaning his personal representative, took possession of property of that kind. A statute law could transfer the ownership of such things before occupation, since a law alone is sufficient to produce ownership.
VI. How the possession of other things lacking an owner may be acquired.
In the same manner as wild animals, other ‘things without a master,’ as the Greeks say, that is other ownerless objects, are acquired. For, if we follow the law of nature alone, these also belong to the one who finds and takes possession of them. Thus the deserted island of Acanthus was adjudged to the Chalcidians, who had first entered it, and not to the Andrians, who had first thrown a javelin upon it. The reason is that the beginning of possession is the connection of body with body; such connection, in the case of movable things, is made with the hands; and, in the case of land, with the feet. To know where a thing is, is not the same as to find it, as we read in the fifth book of Ovid’s Metamorphoses.
VII. To whom a treasure-trove naturally falls; the diversity of the laws on this subject.
Among ‘ownerless objects’ is also treasure-trove, that is, money the owner of which is unknown. Now that which is not known is reckoned as if it did not exist. Therefore treasure-trove also naturally becomes the property of the finder, that is of the one who has removed it from its place of concealment and taken possession of it.
Nevertheless this natural presumption does not, hinder the possibility of establishing a different rule by laws or customs. In such cases Plato wished that information should be given to the magistrates, and that an oracle should be consulted. Apollonius would assign a treasure, as if a gift from God, to the person who seemed to him the best. From the parable of Christ found in Matthew, chapter xiii, the inference seems to be warranted that according to the accepted rule among the Jews a treasure that had been found belonged to the owner of the land. From the story in Philostratus, Book VI, chapter xvi, I infer that the same law held good in Syria.
The laws of the Roman Emperors on this subject vary greatly. This is apparent partly in their constitutions, partly in the Histories of Lampridius, Zonaras, and Cedrenus. The German peoples assigned treasure-trove, as other ‘ownerless objects,’ to their rulers. That is, in fact, now a common law, and in a sense a law of nations; for it is observed in Germany, France, England, Spain, and Denmark. Why the charge of injustice cannot be brought against this law, I have already sufficiently explained.
VIII. That the regulations of the Roman law regarding islands and alluvial deposits belong neither to the law of nature nor to the law of nations.
Let us now come to the fluvial additions of land, to which the ancient jurists devoted many rescripts, and modern jurists even entire commentaries.’
The principles which they have laid down regarding this subject, however, are for the most part drawn from the established custom of certain nations, and by no means from the law of nature, though often commended through reference to that source. For most of their definitions rest on this basic principle, that not only the river banks belong to the possessors of the nearest estates, but also the river beds, as soon as these, have been left dry by the river. The resulting inference is that islands which are formed in the stream belong to the same owners.
In the case of an overflow by a river, to be sure, the jurists do make the distinction that a slight overflow does not take away ownership, but a greater one does; with this condition, nevertheless, that if the river should recede all at once the estate which had been submerged would revert to its original owner by postliminy; but, if the river should recede gradually, ownership would not in like manner revert, but rather would fall to the nearest landowners.
Now I do not deny that all these regulations might have been introduced by law, and defended on account of a certain advantage in protecting the banks; but I do not for a moment concede that they belong to the law of nature, as the jurists seem to think.
IX. That by the law of nature an island in a river and a dried out bed belong to the one who owned the river or the part of the river, that is, to the people.
1. For if we take into consideration that which generally happens, peoples have taken possession of lands not only with sovereignty, but also with property ownership, before the fields have been assigned to individuals. Seneca says: ‘We designate as territories of the Athenians, or of the Campanians, those lands which afterward neighbors divide among themselves by private boundaries.’ So also Cicero: ‘By nature, moreover, there is no private ownership, but such arises either from ancient occupation, as in the case of those who formerly entered unoccupied territory; or from victory, as in the case of those who have gained possession by war; or from some law, agreement, condition, or lot. The result is that the land of Arpinum is said to belong to the people of Arpinum, and the land of Tusculum to the Tusculans; and the characterization of the properties of individuals is similar.’
Dio of Prusa says in his Rhodian Oration: ‘Many things can be found which, as a whole, the state considers its own, but which have been divided among individual owners.’ Of the Germans Tacitus says: ‘Lands are taken possession of in common by villages’ (‘alternately’ is a bad reading), in proportion to the number of cultivators; and they presently divide the lands among themselves according to rank.’
Consequently, whatever was originally occupied by the people, and has not since been distributed, must be considered the property of the people. As an island formed in a privately owned river, or the bed of such a river that has dried out, is the property of individuals, so in the case of a public stream both belong to the people, or to him to whom the people has granted it.
2. What I have said about the bed of the river should in like manner be held in regard to the bank, which is the extreme edge of the bed, that is of that in which the river usually flows. And such we see is now the usual custom. In Holland and the neighboring regions, where in ancient times there were very frequent controversies in regard to these matters on account of the lowness of the land, the size of the rivers and the nearness of the sea, which takes up mud in one place and, by tidal changes, carries it away to another, it has always been the established rule that islands, which were really islands, belonged to the public domain; and likewise, abandoned beds of the Rhine and Meuse, a position often confirmed by court decisions, and supported by the best of reasons.
3. For the Roman jurists themselves concede that an island which floats in a river, supported, let us say, by bushes, is public property; in fact an island formed in a river ought to belong to the person who has a title to the river. But the legal status of the river and of the bed are the same, not only from that point of view which the Roman jurists took into consideration, because the bed is covered by the river, but also from the other point of view which we mentioned above, because the river and its bed were taken possession of by the people at the same time and have not passed into private ownership.
In consequence I do not accept, as in accord with the law of nature, the principle which they maintain, that if the fields have received definite boundaries the island belongs to the first occupant. Such an acquisition of ownership would take place only in case the river itself, and its bed along with it, had not been taken possession of by the people, and there should remain a possibility of occupation just as in the case of an island formed in the sea, which becomes the property of the first occupant.
X. That by the law of nature in an inundation the ownership of the land is not lost.
1. Again, if we follow natural reason only, loss of ownership ought not to be admitted any more in the case of a greater than of a smaller flood. For though the surface of the land may be completely turned into sand, nevertheless the lower part of the ground remains solid; and though it changes its quality somewhat, it does not change its essential character any more than the part of a field which is swallowed up by a lake, the right to which, as the Roman jurists correctly perceived, is not changed. Their assertion is not in accordance with nature, that rivers perform the function of treasury officials, and take from public ownership to transfer to an individual, and from the individual to transfer to the public treasury.
The Egyptians handled these matters rather well, and in regard to them we find the following in Strabo:
There was need of an accurate and minute division of fields for the reason that the Nile, adding and taking away by its overflows, changes the appearance of the surface and the landmarks, and confuses the boundaries by which the land of one is distinguished from that of another. On this account the surveying of the land had often to be done over.
2. This opinion is not contrary to the principle which the Roman writers themselves have handed down, that what is ours does not cease to be ours except by our own act, or, again, by law. But we have noted above that under acts are included also failures to act, in so far as they warrant an inference as to intention. Wherefore we grant this, that if there is a very great inundation, and there are no other indications which suggest an intention of retaining ownership, it is easily assumed that the land has been abandoned. Such an assumption from the nature of the case is indefinite, on account of the variety of circumstances, and such cases should be committed to the decision of an honest man; consequently they are ordinarily decided by municipal law. Thus in Holland land is considered abandoned which has been submerged more than ten years, if no indications of continued ownership exist. And in this case, not without adequate reason, we have accepted a principle which the Romans rejected, that possession may be considered as retained even by fishing, if not otherwise possible.
But princes were accustomed to set a limit of time within which the original possessors of the lands were obliged to drain their lands. If they did not do this, then those who held mortgages on the lands were warned; and then again, those who held civil jurisdiction merely, or both civil and criminal jurisdiction over the lands. If all these delayed action, then their entire right fell to the prince, and he either himself drained the lands and made them a part of his patrimony, or he assigned them to others to drain, while retaining a part for himself.
XI. That in cases of doubt alluvial deposits also belong to the people.
As regards alluvial deposits, that is, the addition of soil particle by particle, these can be claimed by no one because the place of origin is unknown; otherwise, according to the law of nature, they would not change ownership.
It ought to be considered certain that such deposits also belong to the people, if the people owned the river, as must be believed in case of doubt; otherwise such accretion would belong to the first occupant.
XII. But that such alluvial deposits seem to be conceded to those whose lands have no other boundary than the river.
1. But as the people can grant to others the right to such lands, so also it can grant the same right to the possessors of the nearest estates. The people seems indeed without doubt to have so granted this right in case the lands have no boundary on that side except the natural boundary, that is, the river itself. On this point, then, we ought not to view with contempt the painstaking of the Roman jurists, who distinguished fields limited by natural bounds from other fields, if only we remember that in this respect a measured field has equal rights with a field so bounded. For what we said above of states, when we were treating of their acquisition, likewise holds good of private lands, but with this distinction, that when in doubt it is to be believed that states have natural boundaries, since this is most in accord with the nature of a country; private lands, on the contrary, are not supposed to have natural boundaries, but are either measured or bounded by a certain measure, because this is more consistent with the nature of private possessions.
2. Yet we do not deny that a people can assign its lands with the same right with which it has itself held them, that is, up to the stream itself; and if this is apparent, then it can assign the right over the alluvial deposits. This, in fact, was so decided in Holland some centuries ago in regard to the fields bordering on the Meuse and Issel, the reason being that both in the deeds and in the tax lists they had always been described as bordering on the river. Further, if such lands are sold, they retain their special character and the right over alluvial deposits, even though some measurement has been mentioned in the terms of sale, provided nevertheless they are not sold according to measure, but as a whole. This practice has come down to us in the Roman laws also, and is now general.
XIII. That the same opinion is to be held in regard to a bank abandoned by a river, and a part of the bed that has dried out.
What I have said about alluvial deposits ought also to be held in regard to a bank abandoned by a river and a part of a river bed that has dried out; to wit, that in the case of rivers having no owners such parts belong to the first occupant, but to the people in the case of rivers owned by the people. Moreover, such parts belong to individuals in case these have received from the people, or from some one acting for the people, the land bordering on the river as so bounded.
XIV. What is to be considered alluvial deposit and what an island.
Since, as we have said, the ownership of islands is subject to one law and of alluvial deposits to another, disputes frequently arise in regard to the title under which that land ought to be held which, though somewhat raised, is so joined to the nearest estates that the level ground between is under water. We see that this condition is common enough in our country on account of the inequality of the ground.
In this matter customs vary. In Gelderland all such ground that can be reached with a loaded cart is assigned to the nearest estates, if also there is ownership by right of possession. In the region of Putten such ground is similarly assigned, if a man on foot with a drawn sword can make his way to it. But it is especially in accord with the law of nature that decision in such matters be governed by the consideration whether the passage is ordinarily made by boat during the greater part of the time.
XV. When alluvial deposits belong to vassals.
1. No less hackneyed is the question regarding ownership of alluvial deposits arising between a prince, who enjoys sovereign authority over his people, and his vassals, who have received a power inferior to his.
In the mere grant of the right to govern, it is quite clear that the right to alluvial additions is not included. But we should note that along with this limited authority some of the vassals at the same time received the full ownership of the land, with the exception of that which was in private possession, either because such land formerly belonged to the people or to the prince, or because it had been drained by the prince. In such cases there is no doubt that the vassals possess the right which belonged either to the people or to the prince. Thus we see that in Zeeland even the vassals, who appoint the judges only for civil cases, pay the land tax for the whole district, collecting a part from the individual owners according to their individual possessions; and with these vassals no contest is raised on the score of alluvial additions.
There are some to whom the river itself has been granted, who therefore rightly claim as their own the islands, whether formed by mud deposits or from a part of the river bed which the water has surrounded.
2. There are others in whose grants neither of the rights specified has been included, and they have a poor case against the public treasury unless the custom of the district favors them, or a sufficiently long and uninterrupted possession, reinforced by the requisite conditions, has given a right to them.
But if the land has been granted as a fief without any right of governing, the nature of the land must be considered, as we have said above. For if the land has natural boundaries alluvial additions will be considered as included in the fief, not from any special right belonging to the prince, but from the character of the land. For in such a case the alluvial addition would be of value only to the one who had the right of user.
XVI. Answer to the arguments by which the Roman jurists defend their law as the law of nature.
In order to prove that the law regarding alluvial additions adopted by them is according to nature, the Roman jurists are accustomed to quote this maxim: ‘It is in accord with nature that a man should acquire the advantages of anything to the disadvantages of which he is subject. Therefore since the river often washes away a part of my land, it is fair that I should enjoy a favor granted by it.’ This rule, however, is not in point, except where the advantages acquired arise from our own property. But in the case under consideration the advantages arise from the river, which belongs to another. Again, it is in accord with nature that whatever loss there is should fall upon the owner. And finally, the fact that the jurists make an exception of measured lands shows that their proposition is not universal. I may pass over the fact that it generally happens that the river enriches some and impoverishes others. Lucan says:
- The land escapes its owners there, but here new fields are won
By farmers through the bounty of the Po.
XVII. Naturally a road prevents gain by alluvial addition.
Also the assertion, that a public highway does not prevent gain by alluvial addition, has no foundation in nature, unless the land is private property that has to furnish thoroughfare.
XVIII. That it is not according to nature that the ownership of the offspring should be determined from the mother alone.
Another method of acquiring property, which is said to be based on universal legal principles, is through the breeding of animals. In this matter the rule established by the Romans and some other peoples, that the ownership of the offspring is determined from the mother, is not according to nature, as I have said above, except in so far as the sire is in most cases unknown. But if the sire should be determined on satisfactory grounds no reason can be assigned why the offspring should not in some measure belong to him. For it is certain that the offspring is a part of the father also; but whether more comes from the father or from the mother is a subject of dispute among the natural philosophers. Plutarch discusses the matter thus ‘Nature so mingles the persons of the two sexes that it blends the elements taken from each and makes the offspring the common result of the two to such a degree that neither parent can distinguish what is his own and what is the other’s.’ And this rule the ancient laws of the Franks and the Lombards followed.
XIX. That according to nature a thing fashioned out of another’s material becomes common property in the same manner as in the intermingling of properties.
1. If any one had fashioned a thing out of material belonging to another, the school of Sabinus maintained that it belonged to the one who had been the owner of the material. Proculus assigned the thing to the one who had made it, because through the maker that which before had no existence had come into being. At length an intermediate position was adopted, that if the material could be restored to its previous form the owner of the material should be the possessor of the thing; but if it could not, then he who had fashioned the thing should have it.
Connan disapproves of this view and wishes only one point considered, whether there was greater value in the work or in the material; whichever, then, had the greater value should by its superior force draw to itself that which was of less value. His proof is obtained from what the Roman jurists have handed down on the subject of accession.
2. If, however, we consider the truth of nature just as the Roman jurists also have concluded that in the case of mingling of materials common ownership is introduced in proportion to what each has furnished, because an adjustment could be made naturally in no other way, so when things consist of material and form, as if of parts, if the material belongs to one and the form to another, it naturally follows that the ownership becomes common in proportion to the value that each has. The form in fact is a part of the substance, not the whole substance; and this was perceived by Ulpian, when he said that the substance was almost destroyed by changing the form.
XX. The principle stated holds true even if the material has been intentionally injured.
It is not an unjust rule that those who, with fraudulent intent, expend labor on material belonging to another, should lose their labor. That nevertheless is a penal enactment, and so does not come under the law of nature. Nature, in fact, does not fix penalties, nor take away ownership, on account of an offence in and of itself, although those who do wrong naturally deserve punishment.
XXI. That it is not natural that a thing of less value should be absorbed by one of greater worth on account of superiority in value. Here also errors of the Roman jurists are noted.
However, that a thing of less value should be taken over by one of greater value, which is the basis of Connan’s argument, is naturally consistent with the facts but not with right. He in fact who is the owner of one twentieth of an estate remains a part owner as well as the one who has the nineteen twentieths. Therefore what the Roman law has decreed in some cases, or what may be decreed in others, concerning accession on account of superiority in respect to worth, is not law of nature but civil law, and has in view the transacting of business more easily. Nevertheless the law of nature is not opposed, because statute law has the right of conferring ownership.
Yet there is scarcely any legal question regarding which there are so many divergent opinions and errors of the jurists. For who would allow that, if copper and gold have been mixed, the one cannot be separated from the other, as Ulpian has written; or that by soldering a blending of materials is produced, as Paul says; or that there is one rule for writing and another for painting, so that the panel belongs with the painting, the writing with the tablet?
XXII. That by planting, sowing, or building on another’s ground a community of ownership naturally is produced.
In like manner it is an established rule of law that what is planted and sown goes with the soil, and the reason for this is that such things are supported by the soil. Thus a distinction is made in regard to a tree, according to whether it has put out roots. Yet the nourishment forms only a part of the thing, which was already in existence. So just as the owner of the ground acquires a certain right over the produce from the nourishment of it, so the owner of the seed, plant, or tree does not on that account naturally lose his right. Consequently in such cases also a common ownership is produced.
The same principle is not less applicable to a house, of which the component parts are the ground and the structure. For if the house is movable the owner of the ground has no right over it, as Scaevola also decided.
XXIII. That in community of ownership a person who merely has possession of a thing is not entitled to the income of it, but can charge for expenses incurred.
In such cases of community of ownership it is likewise not in accord with nature that one, who has in good faith become the possessor of a thing, should consider as his own all the income he has received from it; but he should merely have the right of charging for expenses incurred and useful labor expended, and on this account to deduct from the income received. Such a possessor may even retain the growing crops, if he is not otherwise repaid.
XXIV. The same right holds even if possession has been obtained fraudulently.
Also it seems that the same rule should be applied to one who has gained possession fraudulently, in case the penal law does not prevent. The jurist Paul says: ‘It is more considerate that an account of expenses incurred should be allowed, even in the case of a thief. The plaintiff, in fact, ought not to acquire gain from another’s loss.’
XXV. That actual delivery is not required naturally in order to establish transfer of ownership.
The last way of acquiring property that is classed under the volitional law of nations is by actual delivery. But we have said above that such delivery is by nature not necessary for transfer of ownership. This the Roman jurists themselves also recognize in certain cases, as in donations subject to the former owners right of use; or in the transfer of ownership to one who already has possession, or to one who keeps property loaned to him; and in the case of things thrown out for distribution. Further, in some cases ownership passes even before acquiring possession, as in inheritances and legacies, and in gifts made to churches, holy places, or states, or for the support of the poor; and in the case of property over which a common partnership has been established.
XXVI. The application of what has thus far been said.
These observations I have written down in order that he who finds the expression ‘law of nations’ in the Roman legal writers may not at once take as meant that right which cannot be changed, but may carefully distinguish precepts according to nature from those which are according to nature only under certain circumstances; and may distinguish, further, the laws common to many peoples separately from those which contain the bond of human society.
For the rest, this should be understood, that if by this law of nations, improperly so called, or even by a statute of a people, a single method of acquiring property has been introduced without distinction of citizen or foreigner, immediately thereupon foreigners acquire a right; and if the enjoyment of. that right is hindered the injury is such that it may furnish a just cause of war.