Front Page Titles (by Subject) CHAPTER XI: Of Usucaption and Prescription among Nations. - The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.)
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CHAPTER XI: Of Usucaption and Prescription among Nations. - Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.) 
The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008).
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Of Usucaption and Prescription among Nations.
Let us conclude what relates to domain and property with an examination of a celebrated question on which the learned are much divided. It is asked whether usucaption and prescription can take place between independent nations and states?
§140. Definition of usucaption and prescription.Usucaption is the acquisition of domain founded on a long possession, uninterrupted and undisputed,—that is to say, an acquisition solely proved by this possession. Wolf defines it, an acquisition of domain founded on a presumed desertion. His definition explains the manner in which a long and peaceable possession may serve to establish the acquisition of domain. Modestinus,27Digest. lib. 3. de Usurp. & Usucap. says, in conformity to the principles of the Roman law, that usucaption is the acquisition of domain by possession continued during a certain period prescribed by law. These three definitions are by no means incompatible with each other; and it is easy to reconcile them by setting aside what relates to the civil law in the last of the three. In the first of them, we have endeavoured clearly to express the idea commonly affixed to the term usucaption.
Prescription is the exclusion of all pretensions to a right,—an exclusion founded on the length of time during which that right has been neglected; or, according to Wolf’s definition, it is the loss of an inherent right by virtue of a presumed consent. This definition, too, is just; that is, it explains how a right may be forfeited by long neglect; and it agrees with the nominal definition we give of the term, prescription, in which we confine ourselves to the meaning usually annexed to the word. As to the rest, the term usucaption is but little used in French; and the word prescription implies, in that language, every thing expressed by the Latin terms usucapio and praescriptio: wherefore we shall make use of the word prescription wherever we have not particular reasons for employing the other.
§141. Usucaption and prescription derived from the law of nature.Now, to decide the question we have proposed, we must first see whether usucaption and prescription are derived from the law of nature. Many illustrious authors have asserted and proved them to be so.* Though in this treatise we frequently suppose the reader acquainted with the law of nature, it is proper in this place to establish the decision, since the affair is disputed.
Nature has not herself established a private property over any of her gifts, and particularly over land: she only approves its establishment, for the advantage of the human race. On this ground, then, it would be absurd to suppose, that, after the introduction of domain and property, the law of nature can secure to a proprietor any right capable of introducing disorder into human society. Such would be the right of entirely neglecting a thing that belongs to him,—of leaving it during a long space of time, under all the appearances of a thing utterly abandoned or not belonging to him,—and of coming at length to wrest it from a bona-fide possessor, who has perhaps dearly purchased his title to it,—who has received it as an inheritance from his progenitors, or as a portion with his wife,—and who might have made other acquisitions, had he been able to discover that the one in question was neither solid nor lawful. Far from giving such a right, the law of nature lays an injunction on the proprietor to take care of his property, and imposes on him an obligation to make known his rights, that others may not be led into error: it is on these conditions alone that she approves of the property vested in him, and secures him in the possession. If he has neglected it for such a length of time that he cannot now be admitted to reclaim it without endangering the rights of others, the law of nature will no longer allow him to revive and assert his claims. We must not therefore conceive the right of private property to be a right of so extensive and imprescriptible a nature, that the proprietor may, at the risk of every inconvenience thence resulting to human society, absolutely neglect it for a length of time, and afterwards reclaim it, according to his caprice. With what other view than that of the peace, the safety, and the advantage of human society, does the law of nature ordain that all men should respect the right of private property in him who makes use of it? For the same reason therefore, the same law requires that every proprietor, who for a long time and without any just reason neglects his right, should be presumed to have entirely renounced and abandoned it. This is what forms the absolute presumption (juris & de jure) of its abandonment,—a presumption, upon which another person is legally entitled to appropriate to himself the thing so abandoned. The absolute presumption does not here signify a conjecture of the secret intentions of the proprietor, but a maxim which the law of nature ordains should be considered as true and invariable,—and this with a view of maintaining peace and order among men. Such presumption therefore confers a title as firm and just as that of property itself, and established and supported by the same reasons. The bona-fide possessor, resting his title on a presumption of this kind, has then a right which is approved by the law of nature; and that law, which requires that the rights of each individual should be stable and certain, does not allow any man to disturb him in his possession.
The right of usucaption properly signifies, that the bona-fide possessor is not obliged to suffer his right of property to be disputed after a longcontinued and peaceable possession on his part: he proves that right by the very circumstance of possession, and sets up the plea of prescription in bar to the claims of the pretended proprietor. Nothing can be more equitable than this rule. If the claimant were permitted to prove his property, he might happen to bring proofs very convincing indeed in appearance, but, in fact, deriving all their force only from the loss or destruction of some document or deed which would have proved how he had either lost or transferred his right. Would it be reasonable that he should be allowed to call in question the rights of the possessor, when by his own fault he has suffered matters to proceed to such a state, that there would be danger of mistaking the truth? If it be necessary that one of the two should be exposed to lose his property, it is just it should be the party who is in fault.
It is true, that if the bona-fide possessor should discover with perfect certainty, that the claimant is the real proprietor, and has never abandoned his right, he is bound in conscience, and by the internal principles of justice, to make restitution of whatever accession of wealth he has derived from the property of the claimant. But this estimation is not easily made; and it depends on circumstances.
§142. What foundation is required for ordinary prescription.As prescription cannot be grounded on any but an absolute or lawful presumption, it has no foundation, if the proprietor has not really neglected his right. This condition implies three particulars: 1, that the proprietor cannot allege an invincible ignorance, either on his own part, or on that of the persons from whom he derives his right;—2, that he cannot justify his silence by lawful and substantial reasons;—3, that he has neglected his right, or kept silence during a considerable number of years: for the negligence of a few years, being incapable of producing confusion, and rendering doubtful the respective rights of the parties, is not sufficient to found or authorise a presumption of relinquishment. It is impossible to determine by the law of nature the number of years required to found a prescription: this depends on the nature of the property disputed, and the circumstances of the case.
§143. Immemorial prescription.What we have remarked in the preceding section, relates to ordinary prescription. There is another called immemorial, because it is founded on immemorial possession,—that is, on a possession, the origin of which is unknown, or so deeply involved in obscurity, as to allow no possibility of proving whether the possessor has really derived his right from the original proprietor, or received the possession from another. This immemorial prescription secures the possessor’s right, beyond the power of recovery: for it affords a legal presumption that he is the proprietor, as long as the adverse party fails to adduce substantial reasons in support of his claim: and, indeed, whence could these reasons be derived, since the origin of the possession is lost in the obscurity of time? It ought even to secure the possessor against every pretension contrary to his right. What would be the case were it permitted to call in question a right acknowledged time immemorial, when the means of proving it were destroyed by time? Immemorial possession therefore is an irrefragable title, and immemorial prescription admits of no exception: both are founded on a pre-sumption which the law of nature directs us to receive as an incontestable truth.
§144. Claimant alleging reasons for his silence.In cases of ordinary prescription, the same argument cannot be used against a claimant who alleges just reasons for his silence, as the impossibility of speaking, or a well-founded fear, &c. because there is then no longer any room for a presumption that he has abandoned his right. It is not his fault if people have thought themselves authorised to form such a presumption; nor ought he to suffer in consequence: he cannot therefore be debarred the liberty of clearly proving his property. This method of defence in bar of prescription has been often employed against princes whose formidable power had long silenced the feeble victims of their usurpations.
§145. Proprietor sufficiently shewing that he does not mean to abandon his right.It is also very evident that we cannot plead prescription in opposition to a proprietor who, being for the present unable to prosecute his right, confines himself to a notification, by any token whatever, sufficient to shew that it is not his intention to abandon it. Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty or a province, as an evidence that they do not relinquish their claims to it.
§146. Prescription founded on the actions of the proprietor.Every proprietor, who expressly commits or omits certain acts which he cannot commit or omit without renouncing his right, sufficiently indicates by such commission or omission that it is not his intention to preserve it, unless, by an express reservation, he declare the contrary. We are undoubtedly authorised to consider as true what he sufficiently manifests on occasions where he ought to declare the truth: consequently, we may lawfully presume that he abandons his right; and if he would afterwards resume it, we can plead prescription in bar to his claim.
§147. Usucaption and prescription take place between nations.After having shewn that usucaption and prescription are founded in the law of nature, it is easy to prove that they are equally a part of the law of nations, and ought to take place between different states. For the law of nations is but the law of nature applied to nations in a manner suitable to the parties concerned (Prelim. §6). And so far is the nature of the parties from affording them an exemption in the case, that usucaption and prescription are much more necessary between sovereign states than between individuals. Their quarrels are of much greater consequence; their disputes are usually terminated only by bloody wars; and consequently the peace and happiness of mankind much more powerfully require that possession on the part of sovereigns should not be easily disturbed,—and that, if it has for a considerable length of time continued uncontested, it should be deemed just and indisputable. Were we allowed to recur to antiquity on every occasion, there are few sovereigns who could enjoy their rights in security, and there would be no peace to be hoped for on earth.
§148. More difficult, between nations, to found them on a presumptive desertion.It must however be confessed, that, between nations, the rights of usucaption and prescription are often more difficult in their application, so far as they are founded on a presumption drawn from long silence. Nobody is ignorant how dangerous it commonly is for a weak state even to hint a claim to the possessions of a powerful monarch. In such a case, therefore, it is not easy to deduce from long silence a legal presumption of abandonment. To this we may add, that, as the ruler of the society has usually no power to alienate what belongs to the state, his silence, even though sufficient to afford a presumption of abandonment on his own part, cannot impair the national right or that of his successors. The question then will be, whether the nation has neglected to supply the omission caused by the silence of her ruler, or has participated in it by a tacit approbation.
§149. Other principles that enforce prescription.But there are other principles that establish the use and force of prescription between nations. The tranquillity of the people, the safety of states, the happiness of the human race, do not allow that the possessions, empire, and other rights of nations should remain uncertain, subject to dispute, and ever ready to occasion bloody wars. Between nations therefore it becomes necessary to admit prescription founded on length of time, as a valid and incontestable title. If any nation has kept silence through fear, and as it were through necessity, the loss of her right is a misfortune which she ought patiently to bear, since she could not avoid it: and why should she not submit to this as well as to have her towns and provinces taken from her by an unjust conqueror, and to be forced to cede them to him by treaty? It is however only in cases of long-continued, undisputed, and uninterrupted possession, that prescription is established on these grounds, because it is necessary that affairs should some time or other be brought to a conclusion, and settled on a firm and solid foundation. But the case is different with a possession of only a few years’ continuance, during which the party whose rights are invaded may from prudential reasons find it expedient to keep silence, without at the same time affording room to accuse him of suffering things to become uncertain, and of renewing quarrels without end.
As to immemorial prescription, what we have said respecting it (§143) is sufficient to convince every one that it ought necessarily to take place between nations.
§150. Effects of the voluntary law of nations on this subject.Usucaption and prescription being so necessary to the tranquillity and happiness of human society, it is justly presumed that all nations have consented to admit the lawful and reasonable use of them, with a view to the general advantage, and even to the private interest of each individual nation.
Prescription of many years’ standing, as well as usucaption, is then established by the voluntary law of nations (Prelim. §21).
Nay more, as by virtue of that law nations are, in all doubtful cases, supposed to stand on a footing of equal right in treating with each other (ibid.), prescription, when founded on long undisputed possession, ought to have its full effect between nations, without admitting any allegation of the possession being unjust, unless the evidence to prove it be very clear and convincing indeed. For, without such evidence, every nation is to be considered as a bona-fide possessor. Such is the right that a sovereign state ought to allow to other states; but to herself she should only allow the use of the internal and necessary right (Prelim. §28). It is the bona-fide possessor alone, whose prescription will stand the test of conscience.
§151. Law of treaties or of custom in this matter.Since prescription is subject to so many difficulties, it would be very proper that adjoining nations should by treaty adopt some rule on this subject, particularly with respect to the number of years required to found a lawful prescription, since this latter point cannot in general be determined by the law of nature alone. If, in default of treaties, custom has determined any thing in this matter, the nations between whom this custom is in force, ought to conform to it (Prelim. §26).
[27. ] Herennius Modestinus, ca. ad 250, jurist and significant contributor to the Corpus Juris Civilis.
[* ] See Grotius de Jure Belli & Pacis, lib. ii. cap. iv.—Puffendorf, Jus Nat. & Gent. lib. iv. cap. xii.—and especially Wolfius [[Wolff, Jus Nat. part iii. cap. vii.]]