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CHAPTER IV: Of a Thing presumed to be quitted, and of the Right of Possession that follows; and how such a Possession differs from Usucaption and Prescription. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of a Thing presumed to be quitted, and of the Right of Possession that follows; and how such a Possession differs from Usucaption and Prescription.
I.Why Usucaption or Prescription, properly so called, has nothing to do among different People or their Sovereigns. Controv. Illus. l. 2. c. 51. n. 28.I. A Great Difficulty1 arises here, concerning the Right of Prescription. For whereas this Right receives its Being from the Civil Law, (Time, as such, having no Power to produce any Thing, for nothing is done by Time, tho’ every Thing be done in Time) in Vasquez’s Opinion, it cannot take Place between two free Nations, or two Kings, or between a free People and a King; no nor between a King and a private Person who is no Subject of his, nor between2 two Subjects of different Princes or States; which seems true3 enough, unless the4 <174> Thing or the Act depends on the Laws of the Country. But if we should admit this to be true, a very great Inconvenience would follow; the Disputes about Kingdoms, and their Boundaries, would never be at an End: Which, as it directly tends to create Uneasiness, Troubles, and Wars amongst Men, so is it contrary to the common5 Sense of Nations.
II.But even among these long Possession is frequently urg’d as a Right. Judges xi. 14, &c.II. For in the Holy Scriptures, when the King of the Ammonites demanded of Jepthah, the Lands that lay between Arnon and Jabbok, and from the Desarts of Arabia, as far as the River Jordan, he pleaded three hundred Years Possession; and asked why he and his Ancestors had so long neglected to lay claim to them. And we find in Isocrates, that the Laconians laid it down as1 an avowed Maxim, established by the Consent of2 all Nations, that publick, as well as private Possessions, are, in a long Course of Years, so secured and confirmed that they can never be recovered; and they make Use of the same Reason to destroy the Pretensions of those who required Messena of them. The Greek Words are, Τὰς κτήσεις καὶ τὰς ἰδιὰς καὶ τάς κοινὰς, ἠν ἐπιγένται πολὺς χρόνος, κυρίας καὶ πατρώας, ἅπαντες εἲναι νομίζουσι. And the same Isocrates, writing to Philip, Κάτοχον καὶ βέβαιον τὴν κτη̂σιν πεποιηκότος τον̂ χρόνου. Time hath made the Possession firm and lasting. And it was this Right that induced Philip the second to declare to Tit. Quintius, that3he would evacuate those Cities which he had taken, but that he would by no Means part with the just and hereditary Possession of those which were derived down to him from his Ancestors. Sulpitius, speaking against Antiochus,4 maintains that it was unjust in him to pretend, that because the Greeks in Asia had been formerly under the Dominion of his Ancestors, he had a Right to reduce them to his Obedience, so many Ages after the Recovery of their Liberty.Tacitus5 considersasan Impertinence, the reviving of6 old Pretensions. And Diodo-<175> rus,7 Μυθικὰς καὶ παλαιὰς ἀποδείξεις, Tales and idle Stories. Thus Cicero8 in his second Book of Offices, Is there any Reason why Lands that a Man has been possessed of for many Years, or even many Ages, should be taken from him?
III.The Reason inquired into, from the Conjectures of a Man’s Will and Intention, which Conjectures are derived not from Words only.III. What shall we say then? The Effects of Right, which depend on the Will, cannot however take Place, in Consequence of a mere Act of the Mind; but that internal Act must be manifested by some external Sign. For,1 since the Thoughts of Man cannot be discovered but by outward Signs, it would be absurd and repugnant to our Nature, to attribute any Effect of Right to the bare Act of the Mind, and therefore it is, that2 mere inward Motions do not come under the Cognizance of human Laws. Nor do Signs indeed give us a demonstrative, but only a probable Certainty of the Thoughts and Motions of the Mind; for Men may speak otherwise than they design or think, and by their Actions may give to understand a different Thing from what they have in their Thoughts. However, as the Constitution of human Society does not permit the Acts of the Mind, sufficiently manifested, to remain without Effect, whatever one declares by sufficient Signs, passes for the real Thought and true Intention of him that uses those Signs.3 If his Words or Actions are contrary to his Intentions, so much the worse for him. What I have said is liable to no Difficulty, when the Question is in reference to Words.
IV.But also from an Overt-Act [[sic or Deeds done.IV. 1. As to Actions. A Man is supposed to abandon a Thing, when, for Instance, he throws it away; unless it be in such Circumstances, that we ought to presume he does it only through the Necessity of the Time,1 and with Intention to recover it if he can. Thus2 when a Note under Hand is returned, the Debt or Obligation is supposed to be discharged. A Right of Inheritance3 may be renounced, says Paulus, not only by Words but by Actions, or any other Indication of the Will. Thus if a Man, who knows very well that a Thing belongs to him, should treat with the Person who is in Possession of it, as if he was the true and lawful Proprietor, he may reasonably be supposed to resign his Right; and why a Right cannot be made over the same Way, between Kings and free People, no Reason can be assigned.]]
2. It is much the same, as if a Magistrate should allow or command one under his Government,4 to do that which the Law forbids; he is presumed then to release him from the Obligation of that Law. In all these Cases, the Presump-<176>tion is not founded on the Civil Law, but on the Law of Nature, according to which every one has the Liberty of parting with his own, and on a natural Conjecture, whereby every one is supposed to intend that which he has sufficiently given to understand. We may very well admit in this Sense what Ulpian the Lawyer has asserted,5 that Acceptilation (or a verbal Discharge of a Debt) is founded on the Law of Nations.
V.And from an Inaction or a Forbearance of Acting.V. 1. Now, morally speaking, under the general Name of Action are likewise comprehended Omissions, considered with the requisite Circumstances. Thus a Man by his Silence, in Case he is upon the Spot, and knows what is doing, is supposed to give his Consent to what is then done; which the Mosaick Law does also allow, Numb. xxx. 4, 5, and 11, 12; unless it appears that he was awed into Silence, or any other Way hindered from Speaking.The Jewish Lawyers call this çway. On this Foundation it is that one reckons for lost, what the Person to whom it belongs has no Hopes of recovering. Ulpian1 says, that Hogs carried off by a Wolf, or Things lost by Shipwreck, cease to be ours, not immediately, but when there is no Way of recovering them;2 that is, when there is no Room to believe that the Proprietor considers them as his own; when there is not the least Sign that he intends to preserve any Pretension to them. For if he should send People to look for them, and promise a Reward to the Finder, the Case would be quite altered. Thus again, should a Man knowingly suffer another to enjoy what is his for a considerable Time, without demanding it, it might be concluded from his Forbearance, that he designed to part with it altogether, and looked upon it no longer as his Property; unless there was any other Reason, that manifestly hindered him from making Opposition. In this Sense Ulpian said, that3 a House is looked upon to be abandoned, on Account of the long Silence of the Proprietor.4You are in the Wrong, (said the Emperor Antoninus Pius, in his Rescript) to demand the Interest of your Money for the Time past. The long Space of Time which you have suffered to elapse without demanding it, shews that you have excused your Debtor for it, because it was to do him a Kindness, that you did not think fit to demand it of him.
Thomas I. 2. Qu. 97. Art. 3.2. There is something very like this in the Establishment of a Custom. For this too (setting aside the Civil Law, which regulates the Time and Manner of it) may5 be introduced by the Subjects, if the Sovereign tolerates and connives at it.<177> It is true, the Time required to give this Custom any Effect of Right has in general no fixed Limits; but it ought to be sufficiently long, in Order to give Room to suppose the Consent of the Prince.
Suarez. l. 7. de Legib. c. 15.3. But before we can reasonably presume from a Man’s Silence, that he has relinquished his Right, two Things are necessary. One is, that he should know that another possesses what belongs to him: And the other, that he should be voluntarily silent, tho’ he has full Liberty to speak. For when one6 forbears to act through mere Ignorance, it can have no Effect: And if there appears any other Reason that hindered him from acting, the Conjecture drawn from Silence can have no Place.
VI.How Time joined with Non-Possession, and with Silence, conduces to the Conjecture that the Right to the Thing is quitted.VI. Amongst several other Conjectures, that serve to verify the two Conditions just mentioned, the Length of Time is of great Weight to shew that the Silence of a Proprietor is accompanied with both.1 For it is hardly conceivable, that the Knowledge of his Right should for so many Years escape him, since Time affords so many Opportunities of knowing it. Tho’ indeed it does not require2 so much Time to found this Conjecture when the Parties are present, as when they are at a Distance, even tho’ the Civil Law were silent in the Matter; neither can it be supposed but that the Fear which might once be impressed, will wear off in Time, which offers him so many Opportunities of providing for his Security, either by his own Care, or by the Assistance of his Friends; he may even fly out of the Reach of the Person feared; so that, at least, he may protest his Right, or, which is better, appeal to proper Judges or Arbitrators.
VII.That a Time exceeding the Memory of Man is commonly sufficient for such a Conjecture, and what such a Time is. Menochius, 1 Cons. 90. Eustath. in Iliad. l. 1. v. 250.VII. But because1 a Space of Time, which exceeds the Memory of Man, is in a moral Sense taken for Infinite, therefore a Silence of so long a Continuance will ever be sufficient for a Conjecture, unless very good Reasons be alledged to the contrary, that the Thing in Dispute is really quitted. ’Tis indeed observed by the most eminent Professors of the Law, that Time Immemorial is not2 the same<178> exactly with an hundred Years, tho’ they do not often very much differ; because3 the Life of Man is commonly computed at an hundred; and this Term of Years is what does usually make up three Ages or4 Generations of Men; which three Generations, or Time immemorial, the Romans pleaded against Antiochus,5 when they shewed him, that he demanded of them Cities, to which neither he, nor his Father, nor his Grandfather, had ever pretended to have a Right.
VIII.An Answer to the Objection, that no one is to be presumed willing to abandon or throw away what he has got.VIII. 1. It may be objected, that since all Men love themselves, and are fond of what is their own, ’tis not to be supposed that they will be inclined to throw it away; wherefore a mere Forbearance of Acting, tho’ for ever so long a Time, cannot be a sufficient Ground for such a Conjecture. But on the other Hand, since we ought to judge charitably of all Mankind,1 we must not imagine that one Man, for the Sake of a perishable Good, will suffer another to live, as it were, under the Guilt of a perpetual Sin, which many Times he cannot avoid without such a Dereliction.
2. As for Crowns, tho’ they are commonly so highly valued, yet must we know too, that2 they are great and weighty Burdens, and which, if not worn well, expose the Prince to the Wrath and Resentment of GOD; and, as it would be great Inhumanity to waste a Minor’s Estate in contending for the Guardianship; or, to use Plato’s Simile,3 if Mariners, at the Hazard of the Ship, should dispute the Management of the Helm; so those Princes are far from deserving Commendation, who, to the great Damage of the State, and frequently with the Blood of an innocent People, ambitiously strive for the Government. The Antients mightily applauded the Saying of Antiochus, who returned the Romans Thanks, 4 for easing him of too5 large and troublesome a Province, by contracting his Do-<179>minions. Among several bright Passages in Lucan,6 this is none of the least beautiful.
Must such a Number of new and unheard of Crimes be committed, to decide which of these two (Caesar or Pompey) shall be Master in Rome? One would hardly purchase at that Price the good Fortune of having neither of them for Master.
3. Besides, it is for the Interest of human Society, that the Titles to Crowns should be one Time or other settled, and put out of all Dispute; wherefore such Conjectures as conduce to that End are to be reckoned favourable. For if Aratus Sicyonius7 thought it hard for private People to lose those Possessions which they had enjoyed for fifty Years, how much more reasonable is that of8Augustus, who pronounced him a good Man, and a worthy Citizen, who is not for making any Alteration in the present State of publick Affairs; and who, as Alcibiades [[9 says in Thucydides, ὅπερ ἐδέξατο σχη̂μα τη̂ς πολιτείας, τον̂το συνδιασώζει, preserves the same Form of Government as was delivered down to him; which Isocrates terms, τὴν παρον̂σαν πολιτείαν διαϕυλάττειν, maintaining the present Government: And Cicero too, in his Speech to the Romans against Rullus, says, that ’Tis the Part of every one who has a Value for the Peace and Tranquillity of his Country, always to defend the State of the Commonwealth, whatever it be; and Livy, that Every good Man is pleased with the present State of the Publick.]]
Aug. de Clavasio, in Summa. verb. Inventa. Crantz Saxon l. 11. n. 10, 13.4. Tho’ what we have urged were not sufficient to answer the Objection, of every ones being desirous of preserving what he has got; yet a stronger Objection might be opposed to it, that it is by no Means probable, that a Man should intend the obtaining of his Right, and yet in so long a Time give no proper Indication of such his Intention.<180>
IX.It appears, that without any Conjecture at all an Immemorial Possession transfers and constitutes a Property.IX. And perhaps it may, with a great Deal of Probability, be said, that this is an Affair not founded on bare Presumption only, but on an1 arbitrary Law of Nations,2 whereby it was established, that Possession, Time out of Mind, without Interruption or Appeal, should absolutely transfer a Property; for ’tis reasonable to suppose, that Men might agree to that, which would so much contribute to the common Peace of Mankind. It must be observed that I say, A Possession,3without Interruption; that is, as Sulpitius in Livy speaks,4has been held by one and the same perpetual Tenour of Right, without any Intermission whatever. Or, as the same Author in another Place calls it, A continued Possession, that was never called in Question. For a Possession by Intervals signifies nothing; and the Numidians justly alledged that Exception in Dispute which they had about some Lands with the Carthaginians, to whom they replied,5That according to Times and Occasions, sometimes they, and sometimes the Kings of Numidia, appropriated to themselves those Lands; and that they had always been in the Hands of the stronger.
X.Whether Persons not yet born, may not, in this Manner, be deprived of their Rights.X. 1. But here another very intricate Question arises,1 Whether those who are not yet born, can by such a tacit Dereliction or Forsaking, lose their Right? If we say that they cannot, what has been already advanced will not much contribute to the quiet Enjoyment of Crowns and private Possessions, since most Kingdoms and private Estates are of such a Nature, that they ought to pass to Posterity. And if we affirm that they can, it looks a little strange, how Silence should prejudice those who were not capable of Speaking, because not yet in Being; or how what one does should be a Detriment and Disadvantage to another.
2. In Order to clear up this Difficulty, it must be observed, that he who is not yet born, can have no Right, as that Substance which is not yet in Being has no Accidents. Wherefore if the People (from whose Will the Right of Government is derived) should think fit to alter that Will, they cannot be conceived to injure those that are unborn, because they have not as yet obtained any Right. Now as this Change of Mind may be openly and expressly declared by the People, so may they also be supposed, in certain Cases,2 to have tacitly changed it. If then it be granted, that the Will of the People is altered, whilst those who might be expected to come here after have no Right;3 and the Parents too, from whom those may descend, who might have had a Right in their Time to the Succession, have renounced that Right; I see no Reason why another may not take Possession of it, as of a Thing relinquished and abandoned.
3. What we are talking of is from the Law of Nature; for in the Civil Law I am sensible, that as other Suppositions, so this also may be introduced and fancied, that The Law personates4those who are not yet in Being; and by this Means pre<181>vents any Seizure or Possession that may be made to their Prejudice: But this must not rashly be supposed to be the Intent of the Laws, because tho’ it would be for the Interest of private Persons, yet it would be of vast Disadvantage to the5 Publick. Therefore it is generally thought, that the Fiefs which are devolved,C. Possessor. p. 3. § 3. Spec. tit. de feud. § Quoniam. ver. 3. quaeritur. See Chass. de Cons. Burg. Des maines mortes § 6. ver. par An & par Jour. Cravet. de Antiq. temp. p. 4. § Materia, n. 90. not by Succession to the Rights of the last Possessor,6 but by Vertue of the primitive Investiture, may7 be acquired after a sufficient Space of Time. And this that able Lawyer Covarruvias, supported by substantial Reasons, extends to the Rights of8Majorasgo, and to Things subject to a9 Feoffment of Trust.
4. I cannot indeed see any Reason why the Civil Law may not introduce a Right which cannot be alienated by any one valid Act; and yet that Right, to avoid the Uncertainty of Possessions, may, if not challenged within a stated Time, be lost; but so, that those who shall here after be, and should have been entitled to it, may have a personal Action against them who lost it by their Neglect, or against their Heirs.
XI.That even the Right of Sovereign Power may be obtained either by a King or by a People by long Possession.XI. It is plain from what has been said, that one King may acquire a Right of Sovereignty, to the Prejudice of another King; and one free People to the Prejudice of another free People, as by an express Consent, so also by a Dereliction, and that taking of Possession which follows it, or which receives some new Force and Virtue from it. For tho’ it be an allowed Maxim, that What is originally1invalid, can never be made valid by a retroactive Effect; yet does it admit of this Exception, unless some new Cause, capable of itself to create a Right, shall intervene. Thus the2 true and undoubted Sovereign of any People may lose the Sovereignty, and become dependent on the People; and on the contrary, he who was only chief of the State,3 may become King, or true Sovereign; and that supreme Power which was lodged before entirely either in the People or the Prince, may be divided between them.<182>
XII.Whether the Civil Laws of Usucaption and Prescription oblige him who has the Sovereign Power. This explained, with some Distinctions. Bart. in L. Hostes D. De Capt. & in l. 1. De aqua pluvia arcend. Jason. Con. 70. l. 3. Aymon. de antiq. p. 4. versic. Materia ista n. 62. Ant. Corset. de exc. reg. q. 104. Balb. de Praescrip. 2. p. 5. pr. q. 2. Castal. de Imp. q. 53. Covar. in C. peccatum, De reg. Jur. in 6. p. 2. § 9. in fin.XII. 1. It is also worth our While to enquire, whether those Laws1 which relate to Usucaption or Prescription, and are enacted by him who is invested with the sovereign Power, can affect the Right of Sovereignty itself, or its essential Parts, which we have pointed out in another Place. Those Lawyers who decide all Controversies about the supreme Power by the Civil Law in Use among the Romans, do generally hold it in the Affirmative. But we2 are of a different Opinion; for in Order to make a Man subject to Laws, a Power, and a Will at least a tacit one, are required in the Legislator. No Man can lay himself under the Obligation of a Law; that is, to which he may be subject, as coming from a Superior. Upon which Account it is, that Legislators have a Right to change their own Laws. A Man indeed may be subject to his own Laws, indirectly, and by Reflexion, as he is a Member of3 civil Society; natural Equity requiring that the Parts should conform to the Interests of the Whole: Thus Saul did in the Beginning of his Reign, as appears from the Sacred History, 1 Sam. xiv. 40. But this Distinction has nothing to do here, because we look upon the Legislator here, not as a Part, but as including the Power of the Whole; for we are speaking of the supreme Power, considered as such. Nor can we presume that there was any Concurrence of the Will; because it is not to be supposed, that Legislators are willing to include themselves, unless where both the Matter4 and the Reason of the Law are universal, as in the Determination of the Price of Things. But Sovereignty is not of the same Rank with other Things; it is of a much superior Excellence. Nor did I ever meet with any Civil Law, that treated of Prescription, which comprehended, or could with any Shew of Probability, be thought to design the Comprehension of the supreme Power.
2. Whence it follows, not only that the Term of Prescription regulated by the Law, is not sufficient to acquire the supreme Power, or any essential Part of it, if the above-mentioned natural Conjectures are wanting: But also that there is no Occasion for so long a Space of Time, provided that these Conjectures can be enough confirmed in less: Wherefore too, the Civil Law that does not authorise the Acquisitions made by a Space of Time, does no Ways regard the supreme Power. It is true indeed, the People, when they first invest a Person with this Power, may, if they please, declare the Manner and Time in which the Right of Sovereignty, if so long neglected, should be forfeited; which Determination of the People ought not to be violated, even by the Prince, tho’ invested with the supreme Authority; because it does not respect the Sovereignty itself, but only the Manner of holding it: Which Distinction we have spoken of somewhere else.
XIII.These Rights of Sovereignty that may be separated from it, or be communicated to others, are gained and left by Usucaption or Prescription. Covar. C. Possessor. p. 2 § 21 n. 12, 13.XIII. But as for those Things that are neither essential to the supreme Power, nor natural Properties of it,1 but may be naturally separated from it, or at least be<183> communicated to others, they entirely depend on the Civil Laws of every People that regulate Usucaption and Prescription. So we find some Subjects, who have obtained by Prescription, the Right of judging without Appeal; but yet in such a Manner, that something like an Appeal may be made either by Petition, or some other Method. For to judge absolutely without Appeal, is a Circumstance inconsistent with the Condition of a Subject, and therefore can belong only to the Sovereignty, or some one of its Parts: Nor can it be gained but by Vertue of a natural Right, to which Sovereignty is subject.
XIV.The Opinion that Subjects may at any Time assert their Liberty, refuted. As Vasquez, Controv. illust. l. 11. c. 82. n. 3.XIV. 1. From hence it appears how far that, which some advance, may be admitted, “It is always allowable for Subjects to recover, if they can, their Liberty, that Liberty which is proper for a People; because the Government that was got by Force, may by Force be dissolved. And if it was the Result of a free Act of the Will, Men may repent of it, and alter that Will.” But tho’ a Sovereignty may have been originally acquired by Force; yet it may become lawful by a tacit Will, which confirms the Enjoyment of it to the Possessor. And the Will of the People may be such, either at the Time when they established the Sovereignty, or afterwards, that they may confer a Right which1 does not for the future depend on their Will. King Agrippa in Josephus, in his Speech to the Jews, who for their preposterous Desire of recovering their Liberty, were stiled Zealots, tells them,2It is now too late to aim at Liberty. It was formerly your Duty to have fought for the Defence of it. It is hard to expose one’s Self to Slavery, and Resistance in Order to prevent it is lawful. But he who, once vanquished, revolts, is not to be called a Lover of Liberty, but an insolent rebellious Slave. And Josephus himself, to the same Folks,3It is glorious to engage and draw in the Cause of Liberty, but this should have been done long ago. For when People have been once over-powered, and have for a great While submitted, to shake off the Yoke then, is to act<184> like Madmen and Desperadoes, and not like Lovers of Liberty. And ’twas this very Answer that Cyrus4 made formerly to an Armenian King, who cloaked his Rebellion with a pretended Desire of regaining his ancient Freedom.
2. However, I see no Reason to doubt, but that a long Forbearance in the Prince, such as we have above described, will justify Subjects resuming the publick Liberty, upon a Presumption that he has quitted the Crown.
XV.Those Rights which consist in a bare Power of doing such or such a Thing, are never lost by Time. This explained. See Parut. hist. Venet. l. 7.XV. As for those Rights,1 which are not daily exercised, but only once, and when it is convenient, as the Right of recovering a2Pledge by paying; as also<185> those3 Rights which consist in the exercise of our Liberty, so that what one does is not directly contrary to, but comprehended in it, as the Part in its Whole: Such as is the Case of a Person, who, for an hundred Years, has entered into Society with one Neighbour only, tho’ he might have done the like with other Persons, had he had a Mind to it; those Rights, I say, are not lost, ’till being prohibited to exercise them, or obliged to forego them, we give sufficient Intimation of our willingly submitting to such Terms: Which being agreeable both to the4 Civil Law, and to natural Reason, ought to take Place amongst Men of the highest Quality and Fortune.
[1 ]As our Author, in the last Paragraph of the preceding Chapter, has placed Things as are abandoned by their Masters, among such as are acquired by Right of prior Occupancy; he, on this Occasion, enquires into the Right of Prescription, founded on a tacit abandoning. According to the antient Roman Law, however, there was this principal Difference between Usucaption and Prescription, that whoever acquired a Thing by Right of Usucaption, at the same Time acquired a Right of claiming it wherever he found it; whereas Prescription only enabled him to elude the Demand of the former Master, but afforded no Means to recover Possession, when once lost. See the Commentators, particularly Janus a Cotta, on the Title of the Institutes, De Usucaptionibus, &c. Lib. II. Tit. VI. The Reader may likewise find several Things on this Subject in Pufendorf, B. IV. Chap. XII. § 1. &c.
[2. ]Cicero observing that in antient Times, the Romans gave the Appellation of Enemy (Hostis) to the Person, in his Days called a Foreigner, (Peregrinus) confirms this Remark, by a Law of the Twelve Tables, which says, Propriety is preserved eternally against a foreign Possessor. Adversus Hostem aeterna auctoritas. De Offic. Lib. I. Cap. XII. Grotius.
[3. ]That is, supposing the Right of Prescription founded only on the Will of the Legislators, and that there is nothing in the Law of Nature and Nations to authorize it. Besides, even tho’ it had some Foundation in the Principles of a Law common to all Men, and all People; the precise Determination of the Time allowed for Prescription, which is not the same in different Countries, serves as a Rule only to the Subjects of the same Nation.
[4. ]Even tho’ Prescription were purely of Civil Right; yet, if any Native of the Country had been in Possession of Goods or a Right belonging to a Foreigner, during the Term fixed by the Laws, such Foreigner shall be cast at Law, when he enters his Claim after that Term; and that for the same Reason which would exclude him from an Inheritance, if the Laws did not allow the Estates of the Country to pass to Foreigners by Will, or by Persons dying intestate. This is our Author’s Meaning, which at first Sight appears pretty obscure.
[5. ]Peter du Puy, in a Dissertation, tending to prove that Prescription doth not take Place between Sovereign Princes, reasons thus, “Those, who have asserted that the negative Opinion is repugnant to the common Sense of all Nations, will, I believe, find it difficult to make a Reply to that universal Consent of all Kings and Sovereign Princes, who have never waved any Part of their antient Pretensions. Some of them have retained the Titles of their pretended Kingdoms and Lordships, others the Arms, and a third Sort both the Arms and Titles of those Dominions, tho’ not in Possession of one Foot of Land in them.” The Author then sets down a great Number of Examples, which it is not necessary to specify in this Place. The late Mr. Werlhof, Professor at Helmstadt, (of whom I have spoken in my third Note on Pufendorf, B. IV. Chap. XII. § 11. second Edition) answers judiciously. First, That if such Princes, by keeping the Titles or Arms of a Kingdom, of which they have not been in Possession of a considerable Time, really design to preserve their Right, here is a Sort of Protestation made, which hinders Prescription; and thus, this is so far from proving that Kings and Princes look on Prescription as a Thing which hath no Place among them, that it may very reasonably be inferred from hence, that they are persuaded of the contrary; because, otherwise, there would be no Necessity of their being so eager in interrupting, as much as in them lies, the Detainer’s Possession of Fact. Secondly, It frequently happens, that Custom and Vanity have a great Share in this Care of retaining the Titles or Arms of a Kingdom, when they have abandoned the Possession of it. So that this Act cannot be supposed to interrupt the Possession, or in any Manner prejudice the Right of the Possessor, when there are other Acts and Circumstances sufficient for grounding a Presumption of abandoning such Right. Vindiciae Grotiani Dogm. de Praescript. inter Gentes liberas, &c. § 47.
[1 ]Orat. Archidam. p. 121. Edit. H. Steph.
[2. ]Lewis of Gonzaga, Duke of Nevers, reasoned on the same Principle. See Mr. De Thou, Lib. LIX. at the Year 1574. Grotius.
[3. ]Livy, Lib. XXXII. Cap. X. Num. 4.
[4. ]Idem. Lib. XXXV. Cap. XVI. Num. 10.
[5. ]It is where the Historian speaks of Artabanus, King of the Parthians, who attempted to invade the Possessions and Conquests of Cyrus and Alexander. Annal. Lib. VI. Cap. XXXI. Num. 3.
[6. ]This is what the Greeks called, by Way of Allusion to a Fact in the History of Athens, Τὰπρὸ Ἐυκλείδου, to seek for that which was before Euclides. A proverbial Way of Speaking, made use of, among other Writers, by Nicetas, in the Life of Alexis Comnena, Brother of Isaac Angelus, where he speaks of the Emperor Henry, Son to Frederick, καὶ ταν̂τα δὴ τὰ πρὸ Ἐυκλείδου ἀνυποστόλως ἀνακινω̂ν. He was not ashamed to go and seek for that which was before Euclides.
[7. ]I know not from what Part of the Greek Historian our Author took these Words.
[8. ]De Offic. Lib. II. Cap. XXII. Florus, speaking of the Sedition, raised by the Tribunes, who required a new Division of the Lands, which had been usurped by several Persons, observes, that this could not be effected without the Ruin of the Possessors, who were part of the People, and possessed those Lands by a Sort of hereditary Title, as having been left them by their Ancestors. Lib. III. Cap. XIII. (Num. 9, 10.) Grotius.
[1 ]See Chap. VI. of this Book, § 1.
[2. ]This will be treated of Chap. XX. § 18. of this Book.
[3. ]Even tho’ he did it not with a Design of deceiving; for every one ought to think of what he says. See Chap. XVI. of this Book, § 1.
[1 ]Thus, when Men throw their Goods into the Sea, with a View of saving the Ship, they do not design to abandon the Possession of them; on the contrary, they will take them up, if they find them, or look for them, if they suspect where they lie. In which Case they act like a Traveller, who leaves what he cannot carry on the Highway, intending to return with Assistance for carrying it off. This is the Decision of the Roman Lawyers, quoted by our Author in his Margin. Digest. Lib. XIV. Tit. II. Ad Leg. Rhod. de jactu. Leg. VIII. See also Lib. XLI. Tit. I. De adquir. rerum Dominio. Leg IX. § 8. and Lib. XLVII. Tit. II. De Furtis, Leg. XLIII. § 11.
[2. ]Digest. Lib. XIV. Tit. II. De Pactis, &c. Leg. II. Princip. and § 1. See Pufendorf, B. III. Chap. VI. § 2. Note 7. second Edition. But when there is any manifest Reason, which shews, that the Note is not given up, or cancelled, with a Design of releasing from the Debt, the Presumption ceases. Lib. XXII. Tit. III. De probation. & praesumptionibus, Leg. XXIV. See Mr. Noodt’s excellent Treatise De Factis & Transactionibus, Cap. II. p. 651, 652. Opp.
[3. ]Digest. Lib. XXIX. Tit. II. De adquir. vel. amittend. haeredit. Leg. XCV.
[4. ]In a Law of the Digest. quoted by our Author in his Margin, it is said, that If a Minor acts as a Magistrate, his Jurisdiction is not to be disallowed.—So that, if a Minor, being Pretor or Consul, pronounces Sentence, it will be valid; because the Prince, who gave him the Post, decreed that he should do every Act belonging to it. Lib. XLII. Tit. I. De re judicatâ. Leg. LVII. See also Lib. I. Tit. XIV. De Officio Praetor. Leg. III. and James Godefroy’s Commentary on it, in his miscellaneous Dissertations.
[5. ]Digest. Lib. XLVI. Tit. IV. De acceptilat. Leg. VIII. Only the Formalities of Acceptilation, belonged to the Civil Law. See Pufendorf, B. V. Chap. XI. § 7. and Mr. Noodt, De Pactis & Transaction. Cap. VIII. p. 671. as also his Probabilia Juris, Lib. I. Cap. II. in fine.
[1 ]Digest. Lib. XLI. Tit. I. De adquir. rerum Dominio, Leg. XLIV. See Chap. VIII. of this Book, § 3.
[2. ]This Explication has been criticised by the late Mr. Huber, in his Commentary on the Title of the Institutes, De rerum Divisione, &c. § 27. The Lawyer Ulpian, says he, does not speak of a Man’s having or not having Hopes of recovering what he has lost. He means only, that Things thrown into the Sea, or carried off by some wild Beast, do not cease to belong to the Proprietor as long as they may be recovered. So that, if a Bird that flies by takes from us a Jewel, it still remains ours, because it is possible we may recover it; tho’ in that Case we cannot venture to flatter ourselves with such a Prospect. As to the Question in itself, I own it does not follow, from the sole Consideration that we have little or no Hope of recovering a Thing, that we entirely abandon it; and even when we give over the Search, we do not thereby renounce our Right. Thus the Abandoning cannot well be presumed, so as to secure the Right of him who has found the Thing lost, but when there is all the Reason to believe the former Master will neither ever be known, nor have any Knowledge what is become of his Goods.
[3. ]Digest. Lib. XXXIX. Tit. II. De damno infecto. Leg. XV. § 21.
[4. ]Digest. Lib. XXII. Tit. I. De Usuris, &c. Leg. XVII. § 1. See Mr. Noodt’s excellent Treatise De Foenore & Usuris, Lib. III. Cap. XVI. where this Law is explained.
[5. ]As the Sovereign, unless he be extremely negligent, cannot be ignorant of the Customs which are introduced into his Dominions, and it depends, on him only to hinder their taking Effect; if he suffers them to have the Force of Law for a certain Time, he is and may be supposed to authorize them. Farther yet, the Laws which he himself has made, are abolished by Non-Usage, or a contrary Custom. Princes may have good Reasons for thus letting a Law fall imperceptibly, which they do not judge necessary. But even tho’ this happens by their Negligence, as is pretty often the Case, either because they themselves are not sufficiently careful of maintaining the Law, or have not been sufficiently attentive to the Conduct of inferior Magistrates, who were charged with enforcing the Observation of that Law; it doth not therefore fail of losing its Force after a considerable Time: The Reason of this is, because as every Law has a Tendency to lay a Restraint on the Liberty of the Subject, and the Sovereign may, and ought, to explain his Will in that Particular, in a clear and distinct Manner; the Moment there are on his Side sufficient Tokens of a Change of Will, the Interpretation ought naturally to be made in Favour of the Subject. Thus the Sovereign may, if he pleases, order the Revival of the Law for the Time to come, by the same Right which he has to make entirely new Laws; but as to what has passed while the Law was not observed, we are to judge of it as if there never had been such a Law. Pliny the Younger gives a remarkable Example of this Kind: There was a Law originally made on Pompey’s Proposal, which allowed all the Cities in the Province of Bithynia, to elect what Persons they pleased Senators, provided they were Natives of the City itself. In Process of Time it appeared that they contented themselves with chusing Men of the Province; and the Censors attempted, in Vertue of the old Law, to divest all the Senators of their Charge, who were not Natives of the City where they enjoyed that Dignity. Pliny, who was Pro-Consul of Bithynia, consulted the Emperor Trajan on that Affair, who answered, The Authority of the Law, and the long Practice usurped against Law, might carry you different Ways. It is my Pleasure to accommodate the Matter thus; that we make no Innovation in Regard to what is past, but that the Persons chosen from every City remain in Possession of their Dignity; and that for the future the Pompeian Law be observed; the Force of which if we should attempt to revive by a retroactive Effect, much Confusion must necessarily ensue. Lib. X. Epist. CXVI. See also a Dissertation of Mr. Thomasius, De Morum cum Jure Scripto contentione. § 52, &c. and Mr. Schulting’s Dissertations on the first Part of the Digest. Lib. I. Tit. III. § 20, 21. as likewise the Interpretationes Juris, by Mr. Averani, Lib. II. Cap. I.
[6. ]See Chap. XXI. of this Book, § 2. and Bartholsocin, Consil. CLXXXVII. Col. 8. Meischren, Decis. Cameral. IX. Num. 113. Tom. III. Grotius.
[1 ]I have shewn in the second Edition of my Pufendorf, B. IV. Chap. XII. §8. Note 3. that, without all these Presumptions, which are most commonly not well founded, the Right of Prescription may be drawn from the Nature and End of Property itself, by Principles which suppose rather what the former Master ought to think, than what he really does.
[2. ]See the Chapter of Pufendorf, last quoted, § 4. Note 6. and § 9.
[1 ]Thus by the Roman Laws, such a Time is sufficient for establishing a Right of Service; as, for Example, that of carrying Water through another Man’s Grounds. Digest. Lib. XLIII. Tit. XX. De aquâ quotid. &. aestivâ, Leg. III. § 4. See Andrew Knich, De Jure Territorii.Theodore Reinking, Lib. I. Class V. Cap. II. Num. 5. Oldendorp, Class III. Art. 2. Grotius.
[2. ]This is observed by Balbus, De Praescriptionibus; and Covarruvias on the same Subject; as also Reinking, Dict. Lib. I. Class V. Cap. XI. Num. 40. Concerning Time immemorial, see the learned Ant. Fauke, Consil. pro Ducatu Montisferrat.Grotius.
[3. ]This is what Justinian calls Ἀιω̂νος μα̂λλον ἤπερ χρόνου. in his fifth Edict, published among the Notes on Procopius’s Secret History.Grotius.
[4. ]For a Generation, Γενεὰ, is a Space of thirty Years, Τ ριακονταετία, as Porphyry observes, in his Questions on Homer, (p. 99. Edit. Barnes.)Herodian, speaking of the Secular Games, includes three Generations in one Age, (Lib. III. Cap. VIII. Edit. Boecl.)Philo the Jew says, there were ten Kings in Aegypt, in the Space of three hundred Years. De Legat. And Plutarch that there were fourteen at Lacedemon in five hundred Years. Vit. Lycurg. (p. 58. Tom. I. Edit. Wech.) Justinian refuses Permission for bringing a certain Affair to, a Trial, because four Generations had passed since the Fact in Question. Novell. CXLIX. (Cap. II.) Grotius.
[5. ]Livy, Lib. XXXIV. Cap. LVIII. Num. 10.
[1 ]It has been very justly observed, that this Reason is more conformable to Christian Charity than to the common Sentiments of Mankind, and the Nature of Things. The Truth is, we are here to suppose a Possessor bonâ Fide, as I have shewn on Pufendorf, B. IV. Chap. XII. § 3. Note 5. second Edition. So that the Presumption, or Kind of Absolution, mentioned by our Author, is by no Means necessary, since after the Expiration of the Term of Prescription, the Possessor, having acquired a real Right, is guilty of no Crime.
[2. ]The same is to be said of this Answer, as of the foregoing. Besides, it is more proper for consoling a Prince, who has lost his Dominions, without Hopes of regaining them, than for hindering him from recovering the Administration if he can, of which every one is very apt to think himself sufficiently capable. See the last Paragraph of Pufendorf, as quoted in the preceding Note.
[3. ]Our Author, in his Margin, quotes Lib. I. without telling whether it be of the Treatise Of the Commonwealth, or that of Laws. I imagine he meant the former, where the Philosopher frequently employs the Comparison of a Pilot and Sailors, with the Government of a State; but without applying it to the Subject before us. All I can find there, which has any Relation to it, is what Plato says, that If the Members of a State were all good Men, they would, on Consideration of the Danger, strive as much to avoid governing it, as they now do to get it into their Hands. p. 347. Tom. II. Edit. H. Steph. But in the sixth Book of the same Treatise, p. 488. we find a Comparison nearly resembling this, which is too long to be inserted here.
[4. ]Valerius Maximus, Lib. IV. Cap. I. Num. 9. extern. See Cicero’s Oration pro Dejotaro. Cap. XIII.
[5. ]Jonathan, the Son of Saul, seems to have had the same Sentiments. Grotius.
[6. ]Pharsal. Lib. II. ver. 60, &c.
[7. ](Cicero, De Offic. Lib. II. Cap. XXIII) Thus at Athens, when the Peace was concluded, Thrasybulus left the Possessions as he found them. Grotius.
[8. ]This Saying is recorded by Macrobius, with several others of the same Emperor, and the learned Gronovius has not failed of pointing out the Place. Saturnal. Lib. II. Cap. IV. p. 334, 335. Edit. Jacob Gronov.
[9. ][[The footnote number is missing in the text. Thucydides, (Lib. VI. Cap. LXXIX. Ed. Oxon.)Isocrates, Orat. in Callimach.Cicero, De Leg. Agrar. contra Rull. (Orat. III. Cap. II.) Livy, Lib. XXXV. This last Passage does not contain exactly the Thought which our Author attributes to Livy. The Historian there relates historically, that while the Etolians were thinking of revolting from their Alliance with the Romans, and engaging the other States of Greece to do the same, it appeared that the honestest Part of the principal Men of each State were in the Interest of the Romans, and were pleased with the present State of Things. Cap. XXXIV. Num. 3.]]
[1 ]Nicephorus Gregoras reports, that the Greek Emperors had given the City of Phocaea to the Ancestors of Catanas, on Condition that each Successor should give a Declaration in Writing, that he held that City only in Quality of Administrator, lest Length of Time should exclude the Imperial Right.Grotius.
[2. ]This arbitrary Law of Nations, is as little necessary as hard to prove. The Whole comes to this: Prescription being authorized by the Opinion and Custom of the Generality of Nations, it is a favourable Prejudice, that gives Room to believe this Right is founded on some evident Principle of natural Laws.
[3. ]See Pufendorf, B. IV. Chap. XII. § 4.
[4. ]Lib. XXXV. Cap. XVI. Num. 7, 8, 9.
[5. ]Idem. Lib. XXXIV. Cap. LXII. Num. 13.
[1 ]See Pufendorf, B. IV. Chap. XII. § 10.
[2. ]When he who would have transmitted his Right to his Descendents, then unborn, renounces it either expressly or tacitly, and the People knowing and seeing this, do not oppose it, tho’ in their Power; in that Case they are reasonably supposed to consent to the Renunciation, and consequently, to change their Mind.
[3. ]History furnishes us with several Instances of such Renunciations. See a remarkable one in the Person of Lewis IX. King of France, who renounced for himself and his Children, all the Right he might have to the Kingdom of Castile, by his Mother Blanche.Mariana, Hist. Hispan. Lib. XIII. Cap. XVIII. Grotius.
[4. ]This is done by Civil Law, in Regard to an Inheritance, for which no one yet presents himself. Grotius.
[5. ]Which requires that Possessions should not be disturbed on slight Occasions.
[6. ]That is, when the Succession has been regulated from the Beginning, so that every one of those, who succeed in their Order, holds his Right, not from his Predecessors, who could not bestow the Inheritance on whom he pleased, or otherwise dispose of the Fief, by any one valid Act; but from the Will of him who first established the Fief.
[7. ]If any one to whom the Fief devolved, not having Children, yields his Right, in what Manner so ever, to another, who ought not to succeed till after him and his; the Children who shall be born to the former, after the Time of the Prescription expires, are not admitted to demand the Succession. The Case is the same when the Children that are born before the Time of Prescription is expired, allow the finishing what was wanting, as soon as they come to the Age of Majority. Much more doth this take Place in Regard to Successors in the collateral Line. Besides, a Possessor, tho’ a Foreigner, may acquire the Fief in this, or some other Manner, by a Prescription of thirty Years, termed Praescriptio longissimi temporis; for our Author means that, those whose Opinion he produces, owning, as well as others, that the ordinary Prescription of ten Years, in Regard to Persons present, and of twenty in Regard to the absent, is not sufficient in this Case. See Cujas, on Feud. Lib. IV. Tit. XIV. Quando agnatus ad Feudum admittatur, &c. (II. 26. 5 Edit. Vulg.) and Tit. XLIX. De Capitulis Conradi Regis, &c. (II. 40. Fuig.) as also Andrew Gaill. Observ. Practic. Lib. II. Obs. 159.
[8. ]Majorasgo. It is a Right established in Spain, by Vertue of which the eldest of the Family alone inherits Count ships, Marquisates, Duchies, Fiefs, and other such like Estates, which are intailed from one to the other; so that, when the Eldest dies without Children, he is succeeded by the next eldest. In the Case in Hand, which is easily conceived, after what has been said in the foregoing Note, we are also to distinguish the two Kinds of Prescription there specified. See Fernando Vasquez, a Spanish Writer, De Successionib. Lib. III. § 26.
[9. ]Our Author here supposes a Feoffment of Trust established in such a Manner, that several Persons are called one after the other; that is, one on Default of another, to inherit an Estate. This being the Case, if the first resigns his Right to the next, the Children of the first, yet unborn, lose the Right which the Father would have transmitted to them, if the Possessor of the Estate subject to a Feoffment of Trust, continues in peaceable Possession of it to the Term of the Prescription. A Law of the Code is objected on this Occasion, Lib. VI. Tit. XLIII. Communia de Legatis, &c. Leg. II. § 3. from which it is inferred, that a Possessor, whether a Foreigner, or one whose Right to a Feoffment of Trust is yet to come, cannot prescribe to the Prejudice of the Feoffee, actually called to the Succession. But that Law speaks only of the ordinary Prescription of ten or twenty Years, not of that of thirty or forty. See Anthony Faure, De Errorib. Pragmat. Decad LXXXVIII. Err. 5, &c.
[1 ]Digest. Lib. L. Tit. XVII. De diversis Reg. Jur. Leg. XXIX. See James Godefroy’s Comment on that Law; and Pufendorf, B. III. Chap. VI. § 14.
[2. ]Concerning all this see Huber, De Jure Civitatis, Lib. I. Sect. III. Cap. IX.
[3. ]See Vasquez, Controv. illustr. Lib. I. Cap. XXIII. § 3. Lib. II. Cap. LXXXII. § 8, 9, &c. as also Panormitan, Lib. I. Cons. LXXXII. and Peregrinus, De Jure Fisci, Lib. VI. Cap. VIII. § 10. Grotius.
[1 ]That is, the Laws considered as to what they have in particular in Regard to the Time and Manner of Prescription. For as to those Parts of them that are founded on the Law of Nature and Nations, our Author is so far from securing the Supreme Power from Prescription, that he even maintains, that, as the Term of Prescription, regulated by the Laws, is not always sufficient for acquiring the supreme Authority, it may likewise happen, that so long a Space of Time is not necessary for it. He goes still farther, and holds, that even in those Countries, where Prescription is not authorized by the Civil Laws, it takes Place in Regard to Things relating to the Sovereignty. Thus the learned Gronovius’s Criticism on our Author’s Opinion in this Place falls of itself, being founded only on a Misunderstanding, or a false Supposition. As to what he says against the Reason taken from a Legislator’s not being able to impose on himself an Obligation, properly so called; see my Remarks on that Question, Note 4. on Pufendorf, B. VII. Chap. VI. § 3.
[2. ]In this I am supported by the Authority of Don Garzias Mastrillas, De Magistratu, Lib. III. Cap. II. Num. 26. John Oldendorp, Consil. Marp. V. Num. 47. Tom. I. Grotius.
[3. ]See Chap. XX. of this Book, § 24. Seneca observes, that A Pilot may be considered under two distinct Characters, one of which he bears in common with the whole Ship’s Crew; the other peculiar to himself, as guiding and governing the Ship. Epist. LXXV. (p. 360.) On this Subject, see Claud de Seyssel, Of the Monarchy of France, B. I. (Chap. XII.) Chassagne, Of the Glory of the World, Part II. Can. 5. Gaillius, Lib. II. Observ. LV. Num. 7. Bodin, De Repub. Lib. I. Cap. 8. And Reinking, I. Cap. XII. Grotius.
[4. ]See Chap. XIV. of this Book, § 5.
[1 ]The Author here employs the Distinction made by the scholastick Lawyers, who call the Rights here specified, Regalia minora, in Opposition to the Regalia majora, or essential Parts of the Sovereignty. Among the Regalia minora are reckoned the Right of creating subaltern Magistrates, or conferring certain Dignities; the Right of erecting Fairs; the Right of legitimating Bastards, or granting the Privilege of Age; the Right of coining Money; the Right of confiscating a Criminal’s Estate and Goods; the Right of appropriating to himself vacant Estates; the Right of Hunting; the Right of levying certain Customs; and other Rights of the same Nature. Mr. Thomasius rejects this Distinction, and at the same Time, the Consequence drawn from it by our Author in Relation to his Subject. The Division, says he, of the Regalia into majora and minora, is not founded on a Principle sufficiently clear; and hence arises the great Difficulty of settling the Difference of these two Sorts of Rights, on which the Lawyers are not a greed among themselves. This Division is borrowed from the Interpreters of the Feodal Law of the Lombards. There is a Title, viz. the LVI. of Book II. the Rubrick of which is, Quae sunt Regalia, in which we have an Enumeration of several Sorts of Rights of Sovereignty annexed to the Royal Fiefs. As it makes no Mention of the legislative Power, of the Right of making Peace and War, and such like, the Interpreters to explain this Omission, have invented the Distinction of Regalia majora and minora, understanding by the latter, those specified in the Title; and by the former those there omitted. Now a Vassal being possessed of the useful Domain of the Fief, and it being in his Power to acquire the Fief itself by Prescription, to the Prejudice of his Lord; the Lawyers, who, almost till Grotius’s Time, very often confounded Vassals with Subjects, said therefore, that the Regalia minora might be alienated, and acquired by Prescription. The old Kings of the Francs, from whom came the Laws or Customs of Feodal Right, attributed to the Lombards, found by Experience, tho too late, how dangerous it is for a Sovereign to allow any one of his Subjects the Regalia minora, with Power to alienate them, or transmit them to their Successors; the Regalia minora in Process of Time drawing the Regalia majora after them; so that several Subjects have set up for real Sovereigns. See Mr. Thomasius’s Notes on Huber, De Jure Civitatis, Lib. I. Sect. III. Cap. VI. Num. 3. p. 91, 92. To which may be added, the Notes of Cujas on the Title of the Feodal Law, already quoted; where that great Lawyer shews, that it treats of the Rights restored by the Bishops, Princes, and Cities of Italy to the Emperor Frederick, who had been long deprived of them. To come now to the Question in Hand, I am entirely of the same Lawyer’s Opinion, who maintains that a Subject, remaining such, cannot acquire by Prescription any Right of the Sovereignty, great or small. When a Subject continues a long Time in the Exercise of certain Rights belonging to the Sovereign, without the express Concession of the Sovereign, they are either such Rights as relate to the Exercise of some publick Office with which the Subject is invested; and in that Case, he doth not exercise them in his own Name, but in the Name of the Sovereign, of whom he holds that Employ; which leaves no more Room for Prescription in his Favour than a Farmer would have, under Pretence that he had farmed another Man’s Lands a hundred Years: Or they are such Rights as are not exercised by the Person as holding a publick Office, and then they can be considered only as Privileges granted merely by Favour; so that their Duration depends on the Will of the Sovereign, as that even of Privileges granted expressly, but without any Clause of Irrevocability. See the same Author’s Notes on the same Book, p. 111. and his Dissertation, De Praescriptione Regalium ad Jura Subditorum non pertinente. Printed at Hall in Saxony, 1696.
[1 ]That is, so long as the Person, on whom the Right is conferred, keeps within the Bounds prescribed either expressly or tacitly.
[2. ]Bell. Jud. Lib. II. Cap. XXVI.
[3. ]Ibid. Lib. VI. Cap. XXV. We find almost the same Words in the Count De Blanderate’s Speech to the Milanese.Radevic, Lib. I. Cap. XL. Grotius.
[4. ]Cyroped. Lib. III. Cap. I. § 6, 7.
[1 ]The late Mr. Huber, in his Praelectiones ad Pandectas, Lib. XX. Tit. V. Quibus modis Pignus vel Hypothec. solvit. Num. 11. censures this Definition of our Author. It is not complete, says he, for the Right which a Proprietor hath to claim his own Goods, possessed by another, and the Right which a Creditor hath to re-demand Money lent to his Debtor, do not consist in a Series of repeated Acts; they are both exercised by a single Act, and when a Man has a convenient Opportunity of making the Claim or Demand; and yet neither of them relate to the Res merae facultatis, in Question; since the Possessor and the Debtor in contestably prescribe against the Proprietor and the Creditor. But that Lawyer, and such as approve of his Criticism, have not observed that those Words contain only Part of the Definition, or rather of the Division, here proposed by our Author; for explaining the Nature of imprescriptible Rights, of which he treats in few Words. In the Summary of this Chapter, he calls them in general, Quae sunt merae Facultatis, or Rights which consist in a bare Power of doing such or such a Thing; but in the Paragraph itself, he plainly reduces them to two Classes, the latter of which is more extensive and considerable, insomuch that what he says of that, ought rather to be considered as a Definition, than the Description he gives us of the other. According to him, there are some Rights which we use only by one single Act, which is limited to no Term, and which, consequently, we may exercise at any Time, and have the Liberty of deferring it. These are the Rights here first specified; and of which he gives, for Instance, the Right of redeeming a Pledge, by paying what was borrowed on it. See the following Note. There are others, which are the Result of every Man’s natural Liberty to dispose of his Actions and Goods, and of all his Rights in general, of what Sort so ever, so long as he has not either expressly or tacitly renounced any Part of that Liberty. These are what he immediately after terms Jura Libertatis: They are both called Jura merae Facultatis, because no one has a Right directly or indirectly, to require we should make Use of them, before a certain Term, or during a certain Space of Time, and thus impose on us an Obligation to make Use of them, if we would not lose them. This Necessity may proceed either from our own Consent, as when we engage to redeem at a certain Time the Pledge delivered to a Creditor; or from some Law, whether natural or civil, as in the Case of Prescription, which in itself is founded on natural Law, and for the Term commonly regulated by the Civil Law of each Country; or lastly, from the Will of him who has permitted something which he might have hindered, or granted a Privilege which he might have refused, on Condition of using such Permission or Privilege from Time to Time, or within a certain Space of Time. These, I think, were our Author’s Notions in this Affair; and when thus proposed, they are sufficient for distinguishing the Rights which he has undertaken to explain, from such as in themselves are subject to Prescription. The Definition which the Lawyer, against whom I am defending him, has pretended to give in its Room, instead of being more clear and exact, is equally obscure and false, as Mr. Thomasius observes, in his Notes on this Place; and as is shewn also by Mr. De Toullieu, my very much honoured Collegue, in a learned Dissertation, De Luitione Pignoris, & Rebus merae facultatis. § 8. which is the third of his Dissertationum Juridicarumtrias, printed at Utrecht in 1706. The Author last mentioned, who has treated the Subject much more exactly and clearly than it had been before handled, likewise confutes the Definitions which others have endeavoured to establish; and in Order to supply the Defect of them, he lays down one, which in Substance comes to what I have said. By Res merae Facultatis, he understands, § 25. certain Powers, which a Man hath by the Law of Nature, or by the common Law of the State, of which he is a Member, in Regard to the Use and Disposal of what belongs to him, (that is, of his Rights and Goods) so long as we are in Possession of them. It is true, both he and Mr. Thomasius, (as above) excludes from the Number of those Rights, such as are originally derived from the Concession of a private Person, or from some Agreement and Obligation, which imply, on the Part of him on whom they are exercised, some Diminution of his Liberty. But I do not see why a Man might not grant anyone a Permission or Privilege, in such a Manner that he should be entirely at Liberty to use it or not use it, and yet a Non-Usage of it, how long so ever continued, should not deprive him of his Right. There is nothing in this repugnant to the Simplicity of the Law of Nature, which is the Thing in Question; and in that Case it will not be less a simple and imprescriptible Power, than that of Building on our own Land. See Gaillius, Observat. Practic. Lib. II. Cap. LX. Num 9. To return to Mr. Huber, one of the Instances by him alledged of Rights subject to Prescription, I mean that of obliging the Payment of Money lent, is not to the Purpose, but on the Principles of the Civil Law. For the Law of Nature rightly understood, secures to the Creditor, or his Heirs, while there are sufficient Proofs of the Debt, a full Power to demand the Payment of it, after the longest Term, which is otherwise sufficient for Prescription. See my first Note on Pufendorf, B. IV. Chap. XII. § 2.
[2. ]Luitio Pignoris. By these Words our Author understands the Right of recovering a Pledge by paying. Some Doctors maintain, that Luitio pignoris is barely paying the Debt, and thus redeeming the Thing pledged; which, according to them, may be always done; but they will have it, that the Right of redemanding the Pledge, by Vertue of Contract, is not included in it; and that it is subject to Prescription, not withstanding the Payment, reserving to the Debtor a Right of claiming afterwards the Thing redeemed, as belonging to him. If this Distinction is well grounded, it is certainly only of Civil Law. As to the Question itself, we are likewise to distinguish between the Law of Nature, and the Roman Law. According to the Law of Nature, it is, in my Opinion, beyond Dispute, that so long as the Creditor, or his Heirs, are in Possession of the Pledge, held as such, as the Debt subsists eternally, in the Manner a fore said, so the Right of redeeming the Pledge is never extinguished, if there be no commissory Clause, express or tacit, nor any Renunciation. See B. III. Chap. XX. § 60. In Regard to the Roman Law, the Question seems to me very problematical. There are specious Reasons on both Sides; and the ablest Doctors are divided on it. The Design of these Notes doth not require me to engage in examining where the greater Probability appears. Those, who are disposed to make that Enquiry, may consult, among others, the great Cujas, on the Digest. Lib. XIII. De Usurpation. & Usucaptionib. & Paratitl. Cod. De Praescript. 30. vel 40. Ann.Bachovius, De Pignorib. & Hypoth. Lib. V. Cap. XX. Vinnius, Select. Quaest. Lib. II. Cap. XXVI. Jac. Gothofred, in Cod.Theodos. Tom. I. p. 255. J. Voet. in. Tit. D. De Pigneratitia Actione, Num. 7. Huber, in Tit. D. Quibus modis Pignus vel Hypotheca solvitur, Num. 11. with the Notes of Mr. Thomasius, &c. but above all, Mr. De Toullieu’s curious Dissertation, quoted in the foregoing Note. It is in general very difficult to explain, according to the Principles of the Civil Law, the other Things ranked under the Jura merae Facultatis; so that either the antient Lawyers must not have had very clear and well-connected Ideas on this Subject, or the Fragments of their Writings now in our Hands are obscure and imperfect on this Point, as on many others.
[3. ]The learned Gronovius on this Place alledges the Example of C. Valerius Flaccus, a Priest of Jupiter (Flamen Dialis) who, in Spight of all Opposition, entered the Senate of Rome; tho’ from Time immemorial, his Predecessors had not appeared there, as they might have done by Vertue of their Office. Livy, Lib. XXVII. Cap. VIII. But I doubt whether this Example is intirely to the Purpose. For the Privilege, there mentioned, is of such a Nature, that one would think a Man ought to use it, at least sometimes, to avoid giving Room at last to suppose he renounces it. Thus the Historian observes, that if the Priest obtained Permission to enter the Senate as he desired, it was more in Consideration of the Sanctity of his Life, than of any Right annexed to the Priesthood. Ibid. Num. 10.
[4. ]See Note 2. on this Paragraph.