第72章

Their dogmas on the point are preserved in the Pandects ofJustinian, and amount to an unqualified assertion that enemy'sproperty of every sort is res nullius to the other belligerent,and that Occupancy, by which the Captor makes them his own, is aninstitution of Natural Law. The rules which Internationaljurisprudence derives from these positions have sometimes beenstigmatised as needlessly indulgent to the ferocity and cupidityof combatants, but the charge has been made, I think, by personswho are unacquainted with the history of wars, and who areconsequently ignorant how great an exploit it is to commandobedience for a rule of any kind. The Roman principle ofOccupancy, when it was admitted into the modern law of Capture inWar, drew with it a number of subordinate canons, limiting andgiving precision to its operation, and if the contests which havebeen waged since the treatise of Grotius became an authority, arecompared with those of an earlier date, it will be seen that, assoon as the Roman maxims were received, Warfare instantly assumeda more tolerable complexion. If the Roman law of Occupancy is tobe taxed with having had pernicious influence on any part of themodern Law of Nations, there is another chapter in it which maybe said, with some reason, to have been injuriously affected. Inapplying to the discovery of new countries the same principleswhich the Romans had applied to the finding of a jewel, thePublicists forced into their service a doctrine altogetherunequal to the task expected from it. Elevated into extremeimportance by the discoveries of the great navigator of thefifteenth and sixteenth centuries, it raised more disputes thanit solved. The greatest uncertainty was very shortly found toexist on the very two points on which certainty was mostrequired, the extent of the territory which was acquired for hissovereign by the discoverer, and the nature of the acts whichwere necessary to complete the ad prehensio or assumption ofsovereign possession. Moreover, the principle itself, conferringas it did such enormous advantages as the consequence of a pieceof good luck, was instinctively mutinied against by some of themost adventurous nations in Europe, the Dutch, the English, andthe Portuguese. Our own countrymen, without expressly denying therule of International Law, never did, in practice, admit theclaim of the Spaniards to engross the whole of America south ofthe Gulf of Mexico, or that of the King of France to monopolisethe valleys of the Ohio and the Mississippi. From the accessionof Elizabeth to the accession of Charles the Second, it cannot besaid that there was at any time thorough peace in the Americanwaters, and the encroachments of the New England Colonists on theterritory of the French King continued for almost a centurylonger. Bentham was so struck with the confusion attending theapplication of the legal principle, that he went out of his wayto eulogise the famous Bull of Pope Alexander the Sixth, dividingthe undiscovered countries of the world between the Spaniards andPortuguese by a line drawn one hundred leagues West of theAzores; and, grotesque as his praises may appear at first sight,it may be doubted whether the arrangement of Pope Alexander isabsurder in principle than the rule of Public law, which gavehalf a continent to the monarch whose servants had fulfilled theconditions required by Roman jurisprudence for the acquisition ofproperty in a valuable object which could be covered by the hand.

To all who pursue the inquiries which are the subject of thisvolume Occupancy is pre-eminently interesting on the score of theservice it has been made to perform for speculativejurisprudence, in furnishing a supposed explanation of the originof private property It was once universally believed that theproceeding implied in Occupancy was identical with the process bywhich the earth and its fruits, which were at first in common,became the allowed property of individuals. The course of thoughtwhich led to this assumption is not difficult to understand, ifwe seize the shade of difference which separates the ancient fromthe modern conception of Natural Law. The Roman lawyers had laiddown that Occupancy was one of the Natural modes of acquiringproperty, and they undoubtedly believed that, were mankind livingunder the institutions of Nature, Occupancy would be one of theirpractices. How far they persuaded themselves that such acondition of the race had ever existed, is a point, as I havealready stated, which their language leaves in much uncertainty;but they certainly do seem to have made the conjecture, which hasat all times possessed much plausibility, that the institution ofproperty was not so old as the existence of mankind. Modemjurisprudence, accepting all their dogmas without reservation,went far beyond them in the eager curiosity with which it dwelton the supposed state of Nature. Since then it had received theposition that the earth and its fruits were once res nullius, andsince its peculiar view of Nature led it to assume withouthesitation that the human race had actually practised theOccupancy of res nullius long before the organisation of civilsocieties, the inference immediately suggested itself thatOccupancy was the process by which the "no man's goods" of theprimitive world became the private property of individuals in theworld of history. It would be wearisome to enumerate the juristswho have subscribed to this theory in one shape or another, andit is the less necessary to attempt it because Blackstone, who isalways a faithful index of the average opinions of his day, hassummed them up in his 2nd book and 1st chapter.