trovertible a proposition as that the property and peace of individuals rest upon the same doctrine (c). To these remarks should be added the observation of a great modern jurist (d): "The general consent of mankind has established the "principle, that long and uninterrupted possession by one "nation excludes the claim of every other. Whether this "general consent be considered as an implied contract or as "positive law, all nations are equally bound by it, since all "are parties to it; since none can safely disregard it without impugning its own title to its possessions; and since it is "founded upon mutual utility, and tends to promote the "general welfare of mankind." 66 In one of those treatises (e) which show how deeply the Vattel, Le Droit des Gens, t. i. 1. ii. c. xi. s. 142. And again: "Mais si la nation protégée ou soumise à certaines conditions ne résiste point aux entreprises de celle dont elle a recherché l'appui, si elle n'y fait aucune opposition, si elle garde un profond silence quand elle devrait et pourrait parler, sa patience, après un temps considérable, forme un consentement tacite qui légitime le droit de l'usurpateur. Il n'y aurait rien de stable parmi les hommes, et surtout entre les nations, si une longue possession, accompagnée du silence des intéressés, ne produisait un certain droit. Mais il faut bien observer que le silence, pour marquer un consentement tacite, doit être volontaire. Si la nation inférieure prouve que la violence et la crainte ont étouffé les témoignages de son opposition, on ne peut rien conclure de son silence, et il ne donne aucun droit à l'usurpateur."-Vattel, t. i. c. xvi. s. 199. See list of authorities on the doctrine of International Prescription given by Ompteda, 512, s. 213, Lit. des Völkerrechts. (c) Vattel, l. ii. c. xi. s. 142. (d) Wheaton, vol. i. c. iv. s. 5, p. 207. "Es liessen sich viele Beispiele, unter andern in Deutschland nachweisen, wo das Recht der Staatsgewalt nur auf langen Besitzstand gegründet ist, ohne erweislichen Rechtstitel."-Heffter, s. 69, 1. (e) Vol. ix. p. 449. Letter to R. Burke, Esq. See, too, vol. x. p. 97: Reform of Representation in the House of Commons. "Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to Government." And vol. v. p. 274: "With the National Assembly of France possession is nothing, law and usage are nothing. I see the National Assembly openly reprobate the doctrine of Prescription, which one of the greatest of their own Lawyers (Domat) tells us, with great truth, is part of the Law of mind of the writer was imbued with the principles of general jurisprudence, Mr. Burke uses the following admirable expressions:- "If it were permitted to argue with power, might one not "ask one of these gentlemen, whether it would not be more “natural, instead of wantonly mooting these questions con"cerning their property, as if it were an exercise in law, to "found it on the solid rock of prescription?-the soundest, "the most general, the most recognized title between man "and man that is known in municipal or in public jurispru"dence; a title in which not arbitrary institutions but the "eternal order of things gives judgment; a title which is not "the creature, but the master of positive law; a title which, "though not fixed in its term, is rooted in its principles in the "Law of Nature itself, and is indeed the original ground of "all known property; for all property in soil will always be "traced back to that source, and will rest there. "These gentlemen, for they have lawyers amongst them, "know as well as I that in England we have had always a "prescription or limitation, as all nations have against each "other. . . . All titles terminate in Prescription; in which "(differently from Time, in the fabulous instances) the son "devours the father, and the last Prescription eats up all "the former" (ƒ). Nature. He tells us that the positive ascertainment of its limits and its security from invasion were among the causes for which civil society itself was instituted."-Reflections on the Revolution in France. (f) The Abbé de Mably, speaking of the Treaty of the Pyrenees, which followed the Treaty of Westphalia (1659), observes: "Le Roi de France proteste contre toute prescription et laps de temps, au sujet du Royaume de Navarre, et se réserve la faculté d'en faire la poursuite par voie amiable, de même que tous les autres droits qu'ils prétend lui appartenir, et auxquels lui ou ses prédécesseurs n'ont pas renoncé (Traité de Vervin, rappelé par le Traité des Pyrénées, art. 23. Traité des Pyrénées, art. 89.) "Tous les auteurs qui ont écrit sur le Droit des Gens conviennent que la prescription rend légitimes les droits les plus équivoques dans leur origine; et ce qui prouve la sagesse de ce principe, c'est qu'il est de l'intérêt de chaque nation en particulier de l'adopter. La difficulté consiste à savoir, comment la prescription s'acquiert; pour moi je croirois qu'elle ne peut être établie que par le silence de la partie lésée, CCLX. In the foregoing observations, the foundation of International Prescription has not been necessarily laid upon the abandonment or dereliction of the State to whom the possession formerly belonged. It has been placed upon the length of time during which the possession has been held by the State which prescribes for it. It is important to establish clearly that dereliction does not, in the case of nations, necessarily precede prescriptive acquisition. Much of the uncertainty and confusion in the writings of International Jurists upon this subject may be ascribed to the want of firm discrimination and clear statement upon this point. Dereliction or voluntary abandonment by the original possessor may be often incapable of proof between nations after the lapse of centuries of adverse possession; whereas the proofs of prescriptive possession are simple and few. They are, principally, publicity, continued occupation, absence of interruption (usurpatio), aided no doubt generally, both morally and legally speaking, by the employment of labour and capital upon the possession by the new possessor during the period of the silence, or the passiveness (inertia), or the absence of any attempt to exercise proprietary rights by the former possessor. The period of time, as has been repeatedly said, cannot be fixed by International Law between nations as it may be by Private Law between individuals: it must depend upon variable and varying circumstances; but in all cases these proofs would be required. Now it has been well observed by a recent writer (g), that in cases where the dereliction is capable of proof, the new possessor may found his claim upon original Occupation alone, without calling in the aid of Prescription. The loss quand elle traite avec le Prince qui possède son bien, ou que celui-ci le vend, le cède et l'aliène en quelque autre manière. Le silence dans ces occasions équivaut à un consentement."-Droit public, t. i. p. 31. (g) Monsieur Eugène Ortolan. See his chapter on Prescription acquisitive, in his work Du Domaine international (Paris, 1851). of the former, and the gain of the later possessor, are distinct and separate facts. Whereas, in cases of Prescriptive Acquisition, the facts are necessarily connected; the former possessor loses, because the new one gains. CCLXI. There was a dispute of long standing between France and England respecting Santa Lucia, one of the Antilles Islands. After the Treaty of Aix-la-Chapelle (1748), the matter was referred to the decision of certain Commissioners, and it was the subject of various State Papers (h) in 1751 and 1754. The French negotiators maintained, that though the English had established themselves in 1639, they had been driven out or massacred by the Caribbees in 1640, and they had, animo et facto and sine spe redeundi, abandoned the island; that Santa Lucia being vacant, the French had seized it again in 1650, when it became immediately, and without the necessity of any prescriptive aid, their property. The English negotiators contended that their dereliction had been the result of violence, that they had not abandoned the island sine spe redeundi, and that it was not competent to France to profit by this act of violence, and surreptitiously obtain the territory of another State; and that by such a proceeding no dominium could accrue to them. The principal discussion turned, not upou the nature of the conditions of Prescriptive Acquisition, but upon the nature of the conditions of Voluntary Dereliction, by which the rights of property were lost, and the possession returned to the class of vacant and unowned (adéσπOTα) territories (i). (h) Eugène Ortolan, Du Domaine international, p. 111. CHAPTER XIV. DERIVATIVE ACQUISITION. CCLXII. WE now enter upon the second kind of Acquisition, viz. that which in the system of Private Law is called Derivative. Derivative Acquisition (a) is said to be that which takes place by the act of another, or by the act of the law (acquisitio derivativa, vel facto hominis, vel facto legis). In this system not only Individuals, but Corporations or legal persons, are enabled to acquire and to alienate rights of property, through the medium of a representative, as minors and lunatics are in all systems of jurisprudence enabled to act through their guardian or tutor. Who the representative of the corporation may be, depends upon the constitution of this legal person. But, as a general rule, the will of a corporation is expressed not only by the unanimous assent, but by the assent of the major part of its members. The rule that the will of the corporation may be collected from the agreement of a part of its members seems to be founded in Natural Law, as otherwise the body might be prevented from acting at all (b). (a) Eugène Ortolan, p. 23. Heffter, s. 71. (b) quod a majore parte ordinis salubriter fuit constitutum."Cod. x. t. 32, 46. De Decur. "Quod major pars curiæ effecit, pro eo habetur, ac si omnes egerint." -Dig. 1. 1, 19. Savigny R. R. s. 97. But see Burke, vol. vi. p. 212: Appeal from the New to the Old Whigs. VOL. I. B B |