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CHAPTER IV.

TITLE TO DESERT LANDS BY OCCUPANCY, POSSESSION, AND PRESCRIPTION.

Why Usucaption or Prescription cannot subsist between independent States, and Sovereigns-Long possession alledged as a ground of right-Inquiry into the intentions of men, which are not to be judged of by words alone-Intention to be judged of by actsIntentions also to be judged of by omissions - How far length of time, silence, and non-possession, may confirm the conjecture of an abandoned right-Time immemorial generally thought to bar any claimWhat constitutes time immemorial — Objections to a presumed desertion of property, considered without any conjecture, time immemorial appears to transfer and constitute a property — Inquiry whether persons yet unborn may thus be deprived of their right-Rules of civil law respecting Usucaption and Prescription as applied to the case of Sovereign Princes, explained.

I. A GREAT difficulty arises here respecting the right to property by uninterrupted possession for any certain time. For though time is the great agent, by whose motion all legal concerns and rights may be measured and determined, yet it has no effectual power of itself to create an express title to any property. Now those rights were introduced by the civil law; and it is not their long continuance, but the express provisions of the municipal law, which gives them their validity. They are of no force therefore, in the opinion of Vasquez, between two independent nations or sovereigns, or between a free nation and a sovereign: between a sovereign and an individual who is not his subject, or between two subjects belonging to different kings or nations. Which indeed seems true; and is actually the case; for such points relating to persons and things, are not left to the law of nature, but are settled by the respective laws of each country. As the unqualified admission of this principle would lead to great inconvenience, and prevent the disputes of kings and nations respecting the bounds of territory from ever being adjusted; in order to eradicate the seeds of perpetual warfare and confusion, so repugnant to the interests and feelings of every people; the settlement of such boundaries is not left to the claims

of prescriptive right; but the territories of each contending party are, in general, expressly defined by certain

treaties.

II. To disturb any one in the actual and long possession of territory, has in all ages been considered as repugnant to the general interests and feelings of mankind. For we find in holy writ, that when the King of the Ammonites demanded the lands situated between the rivers Arnon and Jabok, and those extending from the deserts of Arabia to the Jordan, Jepthah opposed his pretentions by proving his own possession of the same for three hundred years, and asked why he and his ancestors had for so long a period neglected to make their claim. And the Lacedaemonians, we are informed by Isocrates, laid it down for a certain rule admitted among all nations, that the right to public territory as well as to private property was so firmly established by length of time, that it could not be disturbed; and upon this ground they rejected the claim of those who demanded the restoration of Messena.

Resting upon a right like this, Philip the Second was induced to declare to Titus Quintius, "that he would restore the dominions which he had subdued himself, but would upon no consideration give up the possessions which he had derived from his ancestors by a just and hereditary title. Sulpitius, speaking against Antiochus, proved how unjust it was in him to pretend, that because the Greek Nations in Asia had once been under the subjection of his forefathers, he had a right to revive those claims, and to reduce them again to a state of servitude. And upon this subject two historians, Tacitus and Diodorus may be referred to; the former of whom calls such obsolete pretentions, empty talking, and the latter treats them as idle tales and fables. With these opinions Cicero, in his 2nd book of Offices, agrees, asking "what justice there can be in depriving an owner of the land, which he has for many ages quietly possessed?"

III. Can it be said, in order to justify the disturbance of long enjoyed possessions, that the rightful owner INTENDED to assert his claim, when he never manifested such intention by any outward visible act? The effect of right which depends upon a man's intentions can never follow from a bare conjecture of his will, unless he has declared and proved it by some express and visible act. For actions being the only evidence evidence of intentions,

intentions can never of themselves alone without such acts be the object of human laws. No conjectures indeed respecting the acts of the mind can be reduced to mathematical certainty, but only to the evidence of probability at the utmost. For men by their words may express intentions different from their real ones, and by their acts counterfeit intentions which they have not. The nature of human society, however, requires that all acts of the mind, when sufficiently indicated, should be followed by their due effects. Therefore the intention, which has been been sufficiently indicated, is taken for granted against him who gave such indication.

IV. But to proceed to proofs derived from actions. A thing is understood to be abandoned, when it is cast away; except it be under particular circumstances, as throwing goods overboard in a storm to lighten a ship, where the owner is not supposed to have abandoned all intention of recovery, should it ever be in his power. Again, by giving up or cancelling a promissory note, a debt is deemed to be discharged. Paulus the Lawyer, says, a right to property may be renounced not only by words, but also by actions, or any other indication of the will. Thus, if an owner knowingly make a contract with any one who is in possession, treating him as if he were the rightful proprietor, he is naturally supposed to have relinquished his own pretensions. Nor is there any reason, why the same rule may not take place between sovereign princes, and independent states, as between individuals. In the same manner, a Lord by granting certain privileges to his Vassal, which he could not legally enjoy without a release from his former obligations, was supposed by such act to have given him his freedom. A power derived not from the civil law only, but from the law of nature, which allows every man to relinquish what is his own, and from a natural presumption that a person designed to do the act which he has given manifest proofs of his intention to do. In this sense, Ulpian may be rightly understood, where he says, that ACCEPTILATION or the verbal discharge of a debt is founded upon the law of nations.

V. Even omissions, taking all proper circumstances into consideration, come under the cognizance of the law. Thus the person, who knowing of an act, and being present at the commission of it, passes it over in silence, seems to give his consent to it: this was admitted by the Mosaic Law. Unless indeed it can be shewn that the

same person was hindered from speaking either by fear or some other pressing circumstance. Thus a thing is accounted as lost when all hope of recovering it is given up; as for instance, if a tame animal, which was in our possession, be seized and carried off by a wild beast. Goods too lost by shipwreck, Ulpian says, cease to be considered as our own, not immediately, but when they are lost beyond all possibility of being reclaimed, and when no proofs of the owner's intention to reclaim them can be discovered.

Now the case is altered, if persons were sent to inquire after the lost goods, or property, and a reward was promised to the finder. But if a person knows his property to be in the possession of another, and allows it to remain so for a length of time, without asserting his claim, unless there appear sufficient reasons for his silence, he is construed to have entirely abandoned all pretentions to the same. And to the same purpose he has said elsewhere, that a house is looked upon to be abandoned on account of the long silence of the proprietor.

The Emperor Antoninus Pius, in one of his rescripts, said there was but little justice in claiming interest upon money after a long period; for the length of time elapsed was an indication that the debtor had been excused from payment, from some motive of kindness.

There appears something similar to this in the nature of custom. For apart from the authority of civil laws, which regulate the time and manner of custom, and its introduction, it may arise from the indulgence of a sovereign to a conquered people. But the length of time from which custom derives the force of right, is not defined, but left to the arbitrary decision of what is sufficient to indicate general consent. But for silence to be taken as a valid presumption that property is deserted, two things are requisite: it must be a silence with a knowledge of the fact, and with a perfect freedom of will in the person concerned. For a silence founded in ignorance can have no weight; and where any other reason appears, the presumption of free consent must fail.

VI. Although the two requisites already named may be produced, yet other reasons have their weight; among which length of time is not the least important. For in the first place, it can scarcely happen, that for a great length of time a thing belonging to any one should not some way or other come to his knowledge, as time might

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