The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

Chapter VIII. Page 237.

NOTE O.

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; l. 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 finat . . . 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 might 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. Mommsen, 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, 1, 51. Grotius comments 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 civilised 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 he 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 continued 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 antiquarian; 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 a very few cases, become illegal (Hall, “Intern. Law,” 5th ed. p. 427: the whole chapter should be consulted).

Maine observes at p. 241 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, recognises 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 text-books 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 (p. 250). 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 he talks as if our refined legal conceptions had come to primeval 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 distinguishable from a right, present or deferred, to possess them; and it is only under statutory provisions of very recent introduction and partial application that we know any means of proving title to English land other than showing continuous undisturbed possession, under a consistent claim of title, for a time long enough to exclude any reasonable fear of adverse claims. The conventional fixing of that time first by the usage of conveyancers and latterly by positive law makes no difference to the principle, nor do the elaborate rules which have been developed in various matters of detail. Title-deeds, as I have said elsewhere, are nothing but the written history of the possession and of the right in which it has been exercised. This is essentially a Germanic institution, as any one who pursues the subject will find; and when we consider the ideas of early Germanic law, we shall perhaps be less apt to find any problem in the fact of a possessor’s rights being recognised by Roman law than to wonder how Roman law came so early by the full and clear conception of an owner’s rights as distinct from possession. As to the historical origin of the Roman doctrine of Possession there are now several theories in the field, and none of them can be said to be generally accepted, certainly not Savigny’s, which was dominant when Maine wrote.

NOTE P.

THE INDIAN VILLAGE COMMUNITY.

“It can hardly be doubted that the information available when Sir H. S. Maine wrote was very far from being what it has since become. None of the reports on the Panjāb frontier tribal-villages were written—or at least were available in print; and the greater part of the best Settlement Reports of the North-West Provinces, Oudh and the Panjāb, are dated in years subsequent to the publication of ‘Village Communities.’ Further, the Settlement Reports of the Central Provinces, the District Manuals of Southern India, and the Survey Reports and Gazetteers of the Bombay districts were many of them not written, and the others were hardly known beyond the confines of their presidencies. In this fact I find the explanation of the total omission in Sir H. S. Maine’s pages of any specific mention of the raiyatwārī form of village, and the little notice he takes of the tribal or clan constitution of Indian races in general, and of the frontier tribal villages in the Panjāb” (“The Indian Village Community,” p. 4).

It will be quite a mistake, however, as we may learn at large from Baden-Powell, to assume that the family tenure or property which is the unit of the raiyatwārī village system is equivalent to individual ownership or any kind of ownership as understood in modern Western law. What is certain is that there is no such thing as the village community of Hindu times, any more than there is any such thing as the village community of the Middle Ages in Europe. But there remains much profit to be derived from comparing the effects of more or less similar causes in fixing the customs of land tenure in the East and the West, whether those effects are, as they sometimes are, closely similar, or varied by the presence of other and different conditions. We no longer expect to find complete and parallel survivals of a common prehistoric stock of institutions, but it is not less interesting to find how easily parallel types may be developed at very distant times and places; and we are free to hold as a pious opinion that the Indian village council still known as the Five (pancháyat)—though that has long ceased to be the usual number in practice, and the institution belongs only to the “landlord” type of village—may go back to the same origin as our own reeve and four men, who flourish in Canada to this day. Robuster faith might be needed to find more than accident in the number of five hearths and five lawful men on Horace’s estate (“habitatum quinque focis et Quinque bonos solitum Variam dimittere patres,” Ep. i. 14). A system of dividing land so as to give every man a share of every quality, which resembles our medieval common-field system even in minute detail, is described by Baden-Powell (op. cit. pp. 191, 414).

With regard to the supposed corporate or quasi-corporate ownership of European and especially English village communities, Professor Maitland’s section thereon in “Domesday Book and Beyond,” pp. 340-56, gives a sound and much needed criticism of the loose language which was current among historical writers a generation ago.

NOTE Q.

RES MANCIPI; ALIENATION IN EARLY LAW.

Maine’s opinion that the res mancipi of ancient Roman law were “the instruments of agricultural labour, the commodities of first consequence to a primitive people” is entirely confirmed by the best recent authors. Professor Girard, agreeing with Ihering, Sohm, and Cuq, considers the soundest explanation (“la doctrine la moins aventureuse”) to be that the category consists of the necessary elements of the original Roman farmer’s goods, to which alone, therefore, the early “Roman forms of alienation” were applicable. It is further suggested that at first only res mancipi were the subjects of full ownership, and that, at a time before individual property in land was alienable, the distinction mancipi—nec mancipi coincided with that of familia and pecunia, which had become obsolete at the date of the Twelve Tables (Girard, “Manuel,” p. 247). Muirhead’s explanation (“Private Law of Rome,” p. 63) is similar, adding that the things constituting the familia were those which determined a Roman citizen’s political qualification after the Servian reforms. Alienation of such things might affect the owner’s political standing, and was therefore of public importance; but I am not clear that this reason is not superfluous. Muirhead observes, deliberately not following Gaius, that the fundamental notion of mancipium is manum—not manu—capere, the acquirement of manus in the sense of legal dominion (op. cit. p. 61), which seems highly probable.

As to the fetters on alienation usually found in early systems of property law, Maine set it down as “remarkable that the Anglo-Saxon customs seem to have been an exception” to the prevailing Germanic usage which forbade alienation of land without the consent of the family or at least the sons of the grantor. Maine’s insight is now justified. The freedom which he thought anomalous, though it was accepted as a fact by the best authorities then accessible on Anglo-Saxon law, was really very partial indeed, being confined to land, or rather lordship over land, held by privileged persons and bodies under the privileged instruments known to contemporaries as “books” and to us as charters. Only after the Norman Conquest did the charter become a “common assurance.” As I tried not long ago to sum up in the simplest form practicable what is known and not known about customary land tenure before the Conquest, I may as well repeat my words:—

“We know next to nothing of the rules under which free men, whether of greater or lesser substance, held ‘folk-land,’ that is, estates governed by the old customary law. Probably there was not much buying and selling of such land. There is no reason to suppose that alienation was easier than in other archaic societies, and some local customs found surviving long after the Conquest point to the conclusion that often the consent of the village as well as of the family was a necessary condition of a sale. Indeed, it is not certain that folk-land, generally speaking, could be sold at all. There is equally no reason to think that ordinary free landholders could dispose of their land by will, or were in the habit of making wills for any purpose. Anglo-Saxon wills (or rather documents more like a modern will than a modern deed) exist, but they are the wills of great folk, such as were accustomed to witness the king’s charters, had their own wills witnessed or confirmed by bishops and kings, and held charters of their own; and it is by no means clear that the lands dealt with in these wills were held as ordinary folk-land. In some cases it looks as if a special license or consent had been required; we also hear of persistent attempts by the heirs to dispute even gifts to great churches” (“The Expansion of the Common Law,” pp. 156-7).

The analogy which Maine points out (p. 279) between the Roman cessio in iure and the Fines and Recoveries of medieval English law is of course genuine; but much earlier Germanic examples of a like device may be found, though not in England. Auflassung is the modern German term. Methods of this kind, when once ascertained to be efficient, are often used merely by way of abundant caution in spite of the additional trouble and expense involved. But in the classical real property law of the fifteenth century Fine and Recovery were already taking their places as regular specialised parts of a technical machinery.