we have proved as to usucaption and prescription, in an entire chapter in the third part of “The Law of Nature.” Occupation of course gets a new value from abandonment, so that the occupation, which was before illegal, when there is an abandonment by consent of the owner, now begets a right, by force of the tacit consent of the owner. If there is doubt as to this, because it is generally said that what is not effective from the beginning cannot become effective after the fact, Grotius has already solved this doubt. Of course the rule has an exception in the case where a new cause intervenes which is sufficient in itself to beget a right, as in the present instance is the added tacit consent of the weaker nation, against which the more powerful nation usurps some right.
§ 85. Of the occupation of sovereignty in uninhabited territory
§ 5, part 8, Jus Nat.
§§ 31, 32, part 8, Jus Nat.
§ 37, part 8, Jus Nat.
§ 219, part 3, Jus Nat.
If a certain nation occupies an uninhabited territory, it occupies the sovereignty over it at the same time. For since a nation is a number of people associated into a state, the civil sovereignty also belongs to it, whether it exercises that of itself or through another in some manner. If then it occupies some uninhabited territory, to dwell in it and hold its property in it, there is no doubt but that it desires to have sovereignty over it. But if it desires to have sovereignty for itself in that territory, it is understood not to wish to allow another to exercise in it some right belonging to sovereignty, or not to be subject to it. But since this is adequate for the occupation of sovereignty in an uninhabited territory, it follows that if a certain nation occupies an uninhabited territory, it occupies the sovereignty over it at the same time.
§ 11, part 8, Jus Nat.
§ 13, part 8, Jus Nat.
§§ 30 and fol., part 8, Jus Nat.
We are not yet speaking here of warlike occupation, which happens when a nation is expelled that had inhabited a territory already occupied. For of this we must speak in its own place. But it would be absurd for any one to wish to argue that sovereign power does in fact belong to a nation over those who are members of the state, but does not exist over the lands which are under the control of the nation. There is no one that does not readily see that this is opposed to the public tranquillity, which concerns the purpose of a state. Therefore, since civil authority is to be measured by the purpose of a state, the
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same undoubtedly is to be extended to all persons whomsoever, who sojourn in a territory for any reason whatsoever or enter into it. And so the people who inhabit a territory have sovereignty over the entire territory.
§ 86. Another case
§ 196, part 2, Jus Nat.
§ 85.
If families dwelling in the same territory unite into a state, they occupy jointly the sovereignty over the entire territory which was uninhabited. It is the same, whether families dwelling in the same territory unite into a state, after individual families have already beforehand occupied certain parts, that is, after occupation by estates has already occurred, or, as a whole, occupy the territory, after they have combined into a society; for the ownership of the estates always remains distinct from the sovereignty, nor does the sovereignty affect this ownership in any way. Therefore, in exactly the same manner as before, it is plain that, if families dwelling in the same territory unite into a state, they occupy the sovereignty over the entire territory which is uninhabited.
Occupation is assumed to have been made by estates, if separate families or free households are formed before the civil authority is; for the things which were not taken possession of were left in the original common holding. But when they come together into a state, the sovereignty is occupied in that territory and at the same time with it are occupied the places still without an owner, which were already subject to the ownership of the whole and therefore belong to the people.
§ 87. Of the occupation of a territory
§ 189, part 2, Jus Nat.
§124, part 2, Jus Nat.
§ 191, part 2, Jus Nat.
§ 124, part 2, Jus Nat.
If a certain entire territory is occupied by a certain nation, those things which are not apportioned to the individuals belong to the whole. For if a certain entire territory is occupied by a certain nation, those who constitute the nation jointly acquire ownership, and therefore the entire territory belongs to the nation. But since those things become the property of the individuals which are apportioned to the individuals, those things which are not apportioned to the individuals remain in the ownership of the whole nation, and therefore belong to the whole.
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§ 2.
§ 175, part 2, Jus Nat.
§ 129, part 2, Jus Nat.
§ 126, part 2, Jus Nat.
§§ 7, 9, part 2, Jus Nat.
A nation is considered as a single individual. Therefore the things which it occupies are in its ownership, consequently if no other act is added to that of occupation, nothing belongs to all, other than the use of the things occupied in general, as of course any one shall have need. Therefore, since by the simple act of occupation nothing is introduced except a mixed common holding, from which there is no withdrawal except by agreement express or tacit, by which some things pass to the ownership of the individuals, others to a positive common holding,3 and those things which are not subjected to the individual ownership, or to the positive common holding, are left in the mixed common holding. Now if certain things should be in the ownership of individuals, before sovereignty is occupied in the territory, that is, before families unite into a state, the other things which before had been in the original common holding are occupied with the sovereignty and are brought into a mixed holding, from which as before they either pass into the ownership of individuals, or into some positive common holding, or are left in the mixed holding. But if certain things should not be occupied, that they remain in the original common holding is evident of itself; in which case especially applies the right of occupation of things devoid of an owner, as wild animals and fish and likewise inanimate things, as treasures, metals, and minerals, and all things abandoned by the owner, or deprived of an owner by some accident. Of these we have spoken at length in the second chapter of the second part of “The Law of Nature.”
§ 88. Of the division of things
Those things which were left in the original common holding when occupation occurred are called by the Roman jurists res communes [things common]; those which were brought into the mixed common holding of the entire nation and have continued in it, res publicae [things public]; those which came into the mixed common holding of definite groups or communities, res universitatis [things corporate]; finally those which
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have become subject to ownership of individuals are called res singulorum [things of individuals].
Note, § 87.
This division of things made by the Romans is usually considered complicated, especially if things common are to be distinguished from things public. But if you consider those things which we have just said concerning the occupation of territory, by our definitions all those things are distinguished one from the other with sufficient clearness, just as they were divided by the Romans, so that no ambiguity remains. Moreover, it is quite plain that much must here depend upon the whim of those occupying, where the particular things belonging to this or that class are to be enumerated. Among the Romans things considered common were air, flowing water, the sea, shores, fish, birds, and wild animals; for all these things were left by them in the original common holding. Things public were all the rivers, which, seeing that they are under the control of the people, nevertheless as regards use were considered common to individuals, so that it was allowed any one to fish and sail in them as he liked. Things corporate were theatres, racecourses, and the