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CHAPTER VII. Note N. Primogeniture.
Much has been written in recent years about the origins of mediaeval jurisdiction and land tenure, and the peculiar complication of tenure with personal lordship and jurisdiction which we call feudalism; we mention, alınost at random, the names of Brunner, Waitz, Fustel de Coulanges, Flach, Luchaire ; but there is nothing to throw doubt on the general soundness of the luminous sketch given in this chapter. Maine returns to the subject in the latter part of ch. viii. At the end of that chapter an opinion is adopted, it seems from Kemble, that 'some shade of servile debasement' attached to a Germanic king's or chieftain's personal companions. I have never been able to discover Kemble's authority for this supposition, or to meet with any other acceptance of it. See, contra, Konrad Maurer in Kritische Überschau, ii. 391.
Further observations on Primogeniture by Maine himself will be found in the Early History of Institutions, pp. 124, 198–205. We may add to the brief mention of parage' at p. 205 that the paragium' of the Norman custumals has an important part in the Anglo-Norman nomenclature of Domesday Book. Groups of co-heirs holding 'in paragio,' and represented, for the purposes of the service due to their lord, by one of them who is sometimes called the senior, are common in several counties (Maitland, Domesday Book and Beyond, p. 145; Pollock and Maitland, H. E. L. ii. 263-4, 276; Pollock in Eng. Hist. Rev. 1896, xi. 228, note 65). This arrangement is a strong illustration of the practical convenience of primogeniture for the lord when feudal service was really military service. Maine's view that primogeniture originally had an official character seems to be thoroughly accepted; it would probably be found, if we had all the facts, that the occasional examples of primogeniture in servile or inferior tenures are to be explained by the tenement having been attached to some manorial or communal office. It would seem that, whether for reasons of convenience or because men like to imitate the fashion of their lords, the general introduction of primogeniture into England was to some extent a popular movement. In 1255 the burgesses of Leicester alleged that they were being ruined by partible tenures, and procured a charter from their lord, Simon de Montfort, which Henry III shortly afterwards confirmed, to change the course of descent to primogeniture (Records of the Borough of Leicester, ed. Bateson, Nog. xxiii, xxiv, the latter indorsed 'carta quod hereditas sit ad communem legem'). On the whole subject Mr. Evelyn Cecil's book Primogeniture: A Short History of its Development in various Countries, and its Practical Effects, Lond. 1895, may be studied with advantage.
CHAPTER VIII. Note 0. Capture, Occupation, Possession. The statements made in the early part of this chapter about the Roman doctrine of capture in war, its relation to the ordinary rules of occupatio, and the relation of both to the modern law of nations, are not easy to follow. Maine's general results do not depend on the accuracy of these statements, but it is necessary to indicate the points on which a reader unacquainted with Roman and international law might find the text misleading. First, there is really no authority for attributing to the Roman jurists the unqualified opinion that all spoil of war belonged to the individual captor, nor for deducing the rule of war from the law of occupatio in time of peace. Next, it is by no means clear that the Roman law of occupatio was more than one of many elements which went to form the modern rules as to belligerent rights. It is necessary to examine the authorities in some detail.
Maine seems to have relied on a passage of Gaius in the title of the Digest .de adquirendo rerum dominio' (41. 1. ll. 5, $ 7; 7, § 1; 1. 6 is clumsily interpolated by the compilers from another writer, and is not to our purpose). Gaius has spoken of the occupation' of res nullius, such as wild animals, and goes on to other classes of cases in which occupation or something like it confers ownership (and not merely possession) iure gentium. This last term would seem, in relation to hostile capture, to point to the actual usage of war rather than to the ideal law of nature, which at all events would not justify treating captives of free condition as slaves. 'Item quae ex hostibus capiuntur iure gentium statim capientium fiunt ... adeo quidem ut et liberi homines in servitutem deducantur.' Then Paulus says, at the head of the next title, 'de adquirenda vel amittenda possessione': 'Item bello capta et insula in mari enata et gemmae lapilli margaritae in litoribus inventae eius fiunt, qui primus eorum possessionem nanctus est.' Obviously no proof or authority was needed to show that a public enemy in arms could have no civil rights. The point is not that spoil of war ceases to belong to the enemy, but that capture, when it occurs, makes the captor an owner and not merely a possessor as between himself and his fellow-citizens. This does not tell us what is lawful spoil of war according to any specially Roman usage, nor does it exclude the restrictions of military discipline. Under the Empire, in fact, the commanding officer inight distribute booty if he pleased, but plunder for the individual soldier's benefit
or any kind of subsequent private appropriation was distinctly forbidden. 'Is, qui praedam ab hostibus captam subripuit, lege peculatus tenetur et in quadruplum damnatur': Modestinus in D. 48. 13, ad legem Iuliam peculatus, 15 (ed. Mominsen, vulg. 13). Indeed, it may well be that the dicta of Gaius and Paulus contemplate only the case of enemy property found on Roman ground at the outbreak of a war: 'quae res hostiles apud nos sunt non publicae sed occupantium fiunt': Celsus, D. 41, I. 51. Grotius coinments on this dictum of Celsus, understanding it in this sense, and holds the right of private capture to be confined to acts not in the course of service, 'extra ministerium publicum': De Iure Belli ac Pacis, III. vi. xii, $ 1; and so Girard, Manuel, p. 314. There is no doubt that land seized in war was acquired and distributed by the State : Pomponius in D. 49. 15, de captivis, 20, § 1. In considering these passages it is just as well to remember that problems arising out of a state of war between Rome and a civilized or wealthy enemy must have seemed a mere archaic curiosity to the jurists who flourished under the Antonines.
Then as to Grotius's use of the Roman law, he certainly quotes the words of Gaius already set out; but almost in the same breath be quotes the Old Testament, Plato, Xenophon, and Aristotle (op. cit. III. vi. ii, $ 4). He denies (iv, § 1) that enemy's land can be acquired by mere invasion short of permanent occupation in force. He seems to think private plundering admissible in strict right, but elsewhere, under the head of temperaments--a kind of counsels of perfection to mitigate the rigour of war, most of which have since been adopted as rules-he suggests that captured property should be restored on the conclusion of peace, so far as practicable (III. xiii, temperamentum circa res captas '). Again, an early trait of Grotius, De Iure Praedae, published only in our own time (ed. Hamaker, Hag. Com. 1868), altogether repudiates the occupation theory of the right to spoil of war. He likens it to the right of judicial execution, and explains away the dictum of Gaius by holding that the captor takes only as the servant and in the name of the State; and he fortifies his doctrine, after the manner of the time, which he continues to follow in his own later work, with Hebrew, Homeric, and other Greek examples. It is difficult to find here much adoption of the Roman law of Occupancy. Perhaps other publicists of the seventeenth or eighteenth century may have been less discriminating than Grotius. If this is to be verified, it must be by some one more familiar with their writings than myself. No further light is thrown on the point in Maine's Cambridge lectures on international law, which he did not live to revise finally for publication. These questions, however, have long been anti
quarian; modern practice has abrogated the old harsh customs of war, and the seizure of movables or other personal property in its bare form has, except in very few cases, become illegal (Hall, Intern. Law, 5th ed., p. 427: the whole chapter should be consulted).
Maine observes that the Roman law of Occupancy was altogether unequal to the task of settling disputes of title between different nations claiming new territories in right of their respective subjects who had discovered and more or less taken possession of them. Undoubtedly this is true, and it could not be otherwise. The difficulties have arisen in almost every case, down to the recent boundary question between Venezuela and British Guiana, from attempts to treat isolated, slight, and partial acts of dominion as equivalent to effective possession. Roman law knows nothing of any occupation' which does not amount to full and actual control. Hence the learning of occupation had to be supplemented by that of possession. Roman law, like the common law, recognizes the fact that a man cannot physically hold or control at the same time every square foot of a parcel of land, and therefore it allows legal possession to be acquired by entry on a part in the name of the whole and with intent to possess everything included in the boundaries. "Quod autem diximus et corpore et animo adquirere nos debere possessionem, non utique ita accipiendum est, ut qui fundum possidere velit omnes glebas circumambulet: sed sufficit quamlibet partem eius fundi introire, dum mente et cogitatione hac sit, uti totum fundum usque ad terminum velit possidere' (Paulus in D. 41, 2, de adq. vel amitt. poss. 3, § 1). In order to apply this rule, however, we have to assume that the boundaries are known or ascertainable, and also that there is no effective opposition; and when the facts to which the application is to be made are those alleged to amount to a national occupation of unsettled territory, it is often far from easy to say whether these conditions are satisfied, In case of dispute whether possession has been established, we must resort to the rule of common sense, which is expressly adopted by the authorities of the Common Law, and does not contradict anything in the Roman law, namely that regard must be had to the kind of use and control of which the subject matter is capable (authorities collected in Pollock and Wright on Possession, pp. 31-5). On the question what is the terminus' in the occupation of unsettled territory, certain conventional rules, which must be sought in the regular textbooks of international law, have been more or less generally adopted by the custom of nations, and in some cases express agreements have been made (Hall, op. cit. p. 114). The doctrine that occupancy produces ownership is of course not of the highest antiquity. Besides the reasons given by Maine, the conception of individual ownership as a legal right, the dominium of Roman law, is itself relatively modern. How and why Roman law developed that conception as early as it did is a historical problem which, so far as I have learnt, we cannot solve with our materials. We only know that Roman property law, for whatever reason, was already quite individualist at the time of the Twelve Tables. I am not sure that I fully understand Maine's passing remark about the influence of natural law in this point. At all events the transformation of the Hindu Joint Family to its modern type can hardly be set down to any such influence, and, so far as it has gone, the example appears fairly parallel.
Blackstone's account of the origin of property is loose enough to deserve nearly all of Maine's criticism. He wholly fails to distinguish between physical control or detention,' possession in law, and ownership, and be talks as if our refined legal conceptions bad come to primaeval man ready made, and in exactly the form and language of eighteenth-century publicists. But perhaps it was needless cruelty to suggest that Blackstone either did not understand the technical meaning of Occupation or intended to impose on his readers by playing with a verbal ambiguity. The word occupare is, after all, not purely technical in Latin ; it certainly has no technical meaning in the passage of Cicero which Blackstone quotes (Comm. ii. 4; Cic. de Fin. iii. 20, § 67). Cicero was neither an original philosopher nor a great jurist; but no one would charge him with supposing that the right of a spectator in a theatre to the place he has taken ( eum locum quem quisque occuparit') had anything to do with the permanent acquisition of dominium, It would be more plausible to credit him with an inkling of the historical truth pointed out by Maine in these pages, that the notion of absolute legal ownership,--and still more the presumption that everything ought to have an owner, or that, as our own books say, 'the law must needs reduce the properties of all goods to some man,'—are rather modern than primitive. Blackstone's neglect to observe that the detached individual man whom he postulates is a kind of person altogether unknown to archaic institutions is the common and fatal fault, as Maine has in effect said, of all individualist theories of society: of Hobbes's, which Locke's was intended to refute, no less than of Blackstone's, which is a slight modification of Locke's.
Incidentally, but with provoking brevity, Maine speaks of Savigny's aphorism that property is founded on adverse possession ripened by prescription. This aphorism is certainly true for English law. Property in goods is, in the terms and process of the Common Law, not distinguisbable from a right, present or