or proprietor, it is said to serve (res servit) or yield service to that other person (h). CCLXXXI. The doctrine of Servitus occupies an important place in the Roman Law; and in some shape, and under some appellation or other, exists of necessity in the jurisprudence of all nations (i). This obligation to service constitutes a right in the obligee or the person to whom it is due, and it ranks among the "jura in re," while it operates as a diminution and limitation of the right of the proprietor to the exclusive and full enjoyment (libertas rei) of his property (j). According to the Roman Law, the Servitus consisted either-1, in not doing something (in non faciendo), and was negative (servitus negativa); or, 2, in suffering something to be done (in patiendo), and was affirmative (servitus affirmativa) but it could not consist in the obligation to do something (in faciendo). Not that the owner of a thing might not be obliged to do something in relation to that thing, for the benefit of another person; but that this obligation assumed a technically different character, and was not a "jus in re"(k). (h) Dig. viii. passim. Instit. ii. 3. Cod. iii. t. 34. Domat. 1. i. t. 12, s. 1. Savigny, Recht des Besitzes, fünfter Abschnitt, p. 575. Mackeldey, Lehrbuch des R. R. s. 274 u. s. w. Schilling, Pandekten-Recht, s. 446 u. s. w. Puchta, Instit. s. 252. (i) "Aussi les servitudes ont-elles été reconnues partout où les hommes se sont fixés d'une manière permanente en formant des associations durables.”—Ahrens, Philosophie du Droit, p. 324. "When a thing or property was free from all servitus, it was called res optima maxima."-Dig. 1. t. xvi., 90, 169. Cicero, de Lege Agrar. iii. 2. (j) "Cum quis jus suum diminuit, alterius auxit, hoc est servitutem ædibus suis imposuit."-Dig. xxxix. t. i. 5, s. 22. (k) "Servitutum non ea natura est ut aliquid faciat quis (veluti viridaria tollat, aut amoniorem prospectum præstet, aut in hoc ut in suo pingat); sed ut aliquid patiatur aut non faciat.”—Dig. viii. t. i. 15, s. 1. It is not, however, necessary to examine with greater minuteness the provisions of the Roman Law upon this subject, though some mention of the general doctrine was a necessary preface to the application of it to the case of States; for some States, as well as individuals, have been and are entitled to exercise rights of this description, and others therefore are and have been subject to the obligations which correspond to them. CCLXXXII. The servitutes juris gentium must, however, be almost always the result either of certain prescriptive customs, or of positive convention. The entire liberty which each State naturally possesses over its own property cannot be curtailed upon presumption. The jus in re aliena is a derogation from the general principle of law, and requires, as a special and extraordinary right, the strictest proof of its existence. CCLXXXIII. History furnishes many examples of these servitutes voluntaria, both as to persons and things. As to persons, the stipulations of various Treaties between England and France provide that the Stuart Pretender should not be permitted to reside in France (1). And when Spain confirmed by Treaty the acquisition of Gibraltar to England, she stipulated that neither Moors nor Jews should be allowed. to reside there (m). As to places, there are various instances of servitutes, both negative and affirmative, but chiefly of the latter description. Of the negative kind was the engagement of France, the subject once of so much anxiety and so many conventions, that the port and fortifications of Dunkirk should be destroyed (n). British and Dutch Commissioners were empowered by Treaty to superintend the execution of these demolitions, and though ejected in time of war, they returned (1) Treaty of Utrecht (1713), between France and England, Art. 4. (m) Treaty of Utrecht, between Spain and England, Art. 10. (n) Traité d'Utrecht (1713), Art. 9. Traité de la Haye (1717), Art. 4. with the restoration of peace, and were only finally with drawn, in compliance with the provisions of the Treaty of Versailles, 1783 (0). By the Treaty of Paris, 1814 (p), it was stipulated that Antwerp should be an exclusively commercial port; and the stipulation was renewed by the Treaties of 1831 and 1839, which erected Belgium into a separate kingdom. By the same Treaty of 1831 (q), it was stipulated, negatively, that the fortresses of Menin, Ath, Mons, Philippeville, and Marienburg should be demolished before December 1, 1833; and affirmatively, that the other Belgian fortresses should be kept in repair by the King of the Belgians. At one time Holland insisted that the Ostend East India Company, founded in 1723, and abolished by the Treaty of Vienna in 1731, was under a servitus non navigandi (r). The Treaty of Vienna (1815), which reinstated the Pope in the possession of the Marches, Camerino, Beneventum, Pontecorvo, and the Legations of Ravenna, Bologna, and Ferrara, on the right bank of the Po, subjected his Holiness at the same time to the servitus of suffering Austrian garrisons" dans les places de Ferrare et Commachio." To cite one more instance. In 1856 (March 30), by a Convention between England, France, and Russia, the latter Power declared "that the Aland Islands shall not be forti"fied, and that no military or naval establishment shall be "maintained or erected there "(s). (0) Koch, Hist. des Tr. vol. i. pp. 333-4. See, too, the Treaties of Radstadt and Baden between France and the Emperor of Germany, Arts. 5, 8, 9. (p) Art. 15. (9) Art. 1. (r) Klüber, s. 133, n. c. Ompteda, tit. ii. 600. (8) Ann. Reg. 1856, p. 321. CHAPTER XVI. EXTINCTION OF DOMINION (a). CCLXXXIV. As Dominion is acquired by the combination of the two elements of fact and intention, so, by the dissolution of these elements, or by the manifestation of a contrary fact and intention, it may be extinguished or lost (b). In this case the dominion is lost, actually or by presumption, with the consent of the State which loses it. CCLXXXV. The title of Prescription in another State is often, though not necessarily, founded on the presumed dereliction of the possession by the original owner. It must be borne in mind that this presumption, like all others, is liable to be repelled by proof of sufficient strength (c), that is, by evidence of a state of facts wholly inconsistent with such presumption. On the other hand, it should be observed that there is a conduct, and that there are acts on (a) Grotius, 1. ii. c. ix.—Quando imperia vel dominia desinunt, 1. iii. c. ix. 9. Martens, t. ii. 1. ix. pp. 340 4. Mühlenbrück, 1. ii. c. iii. s. 270. (b) "Fere quibuscunque modis obligamur, iisdem in contrarium actis liberamur; quum quibus modis acquirimus, iisdem in contrarium actis amittimus. Ut igitur nulla possessio acquiri, nisi animo et corpore potest, ita nulla amittitur, nisi in qua utrumque in contrarium actum est."-Dig. L. t. xvii. 153; xli. t. ii. 8. (c) "Quia vero tempus memoriam excedens quasi infinitum est moraliter, ideo ejus temporis silentium ad rei derelictæ conjecturam semper sufficere videbitur, nisi validissimæ sint in contrarium rationes."Grotius, de J. B. 1. ii. c. iv. s. 7. the part of a State, which must be construed as an abandonment of her previous rights. For instance, a State may make herself a party to some convention upon another matter, but in which the possession or right originally belonging to her is indirectly, though of necessity, treated as belonging to the claimant by prescription; and such convention being concluded without any reservation on the part of the nation, would be very strong evidence of the abandonment of her right. 66 Again, if a nation suffer other nations in their mutual arrangements to deal with the right of possession in question as belonging to one of them, and makes no protest in favour of her claims, she must be held to have acquiesced in the transaction. An individual may indicate his acquiescence by his words or by his deeds. "Recusari hæreditas non tantum verbis, sed etiam re potest, et alio quovis indicio volun"tatis" (d) is the doctrine of the Roman Law; and upon it Grotius (e) remarks," Sic si is qui rei alicujus est dominus, "sciens cum altero eam rem possidente tanquam cum domino "contrahat, jus suum remisisse merito habebitur: quod cur "non et inter reges locum habeat, et populos liberos nihil "causæ est." And again: "Venit enim hoc non ex jure civili "sed ex jure naturali, quo quisque suum potest abdicare, et "ex jure naturali præsumptione, qua voluisse quis creditur quod sufficienter significavit : quo sensu recte accipi "potest quod Ulpianus dixit, juris gentium esse acceptila"tionem " (f). 66 Heineccius, in his Commentary on Grotius, expresses concisely the same doctrine: "inter gentes loco signi est pa"tientia scientia" (g). It is indeed true that, according to Grotius, silence cannot be construed as an assent, unless it be "scientis et libere (d) Dig. xxix. t. ii. 95. (e) L. ii. c. iv. s. 4. (f) Ib. Dig. xlvi. t. iv. 8. (g) Prælect. 1. ii. c. iv. s. 4. See, too, Mably, Droit public, t. ii. pp. 21, 22. |