The Early History of Property
The Roman Institutional Treatises, after giving theirdefinition of the various forms and modifications of ownership,proceed to discuss the Natural Modes of Acquiring Property. Thosewho are unfamiliar with the history of jurisprudence are notlikely to look upon these "natural modes" of acquisition aspossessing, at first sight, either much speculative or muchpractical interest. The wild animal which is snared or killed bythe hunter, the soil which is added to our field by theimperceptible deposits of a river, the tree which strikes itsroots into our ground, are each said by the Roman lawyers to beacquired by us naturally. The older jurisconsults had doubtlessobserved that such acquisitions were universally sanctioned bythe usages of the little societies around them, and thus thelawyers of a later age, finding them classed in the ancient JusGentium, and perceiving them to be of the ******st description,allotted them a place among the ordinances of Nature. The dignitywith which they were invested has gone on increasing in moderntimes till it is quite out of proportion to their originalimportance. Theory has made them its favourite food, and hasenabled them to exercise the most serious influence on practice.
It will be necessary for us to attend to one only among these"natural modes of acquisition," Occupatio or Occupancy. Occupancyis the advisedly taking possession of that which at the moment isthe property of no man, with the view (adds the technicaldefinition) of acquiring property in it for yourself. The objectswhich the Roman lawyers called res nullius -- things which havenot or have never had an owner -- can only be ascertained byenumerating them. Among things which never had an owner are wildanimals, fishes, wild fowl, jewels disinterred for the firsttime, and lands newly discovered or never before cultivated.
Among things which have not an owner are moveables which havebeen abandoned, lands which have been deserted, and (an anomalousbut most formidable item) the property of an enemy. In all theseobjects the full rights of dominion were acquired by theOccupant, who first took possession of them with the intention ofkeeping them as his own -- an intention which, in certain cases,had to be manifested by specific acts. It is not difficult, Ithink, to understand the universality which caused the practiceof Occupancy to be placed by one generation of Roman lawyers inthe Law common to all Nations, and the simplicity whichoccasioned its being attributed by another to the Law of Nature.
But for its fortunes in modern legal history we are less preparedby a priori considerations. The Roman principle of Occupancy, andthe rules into which the jurisconsults expanded it, are thesource of all modern International Law on the subject of Capturein War and of the acquisition of sovereign rights in newlydiscovered countries. They have also supplied a theory of theOrigin of Property, which is at once the popular theory, and thetheory which, in one form or another, is acquiesced in by thegreat majority of speculative jurists.
I have said that the Roman principle of Occupancy hasdetermined the tenor of that chapter of International Law whichis concerned with Capture in War. The Law of Warlike Capturederives its rules from the assumption that communities areremitted to a state of nature by the outbreak of hostilities, andthat, in the artificial natural condition thus produced, theinstitution of private property falls into abeyance so far asconcerns the belligerents. As the later writers on the Law ofNature have always been anxious to maintain that private propertywas in some sense sanctioned by the system which they wereexpounding, the hypothesis that an enemy's property is resnullius has seemed to them perverse and shocking, and they arecareful to stigmatise it as a mere fiction of jurisprudence. But,as soon as the Law of Nature is traced to its source in the JusGentium, we see at once how the goods of an enemy came to belooked upon as nobody's property, and therefore as capable ofbeing acquired by the first occupant. The idea would occurspontaneously to persons practising the ancient forms of Warfare,when victory dissolved the organisation of the conquering armyand dismissed the soldiers to indiscriminate plunder. It isprobable, however, that originally it was only moveable propertywhich was thus permitted to be acquired by the Captor. We know onindependent authority that a very different rule prevailed inancient Italy as to the acquisition of ownership in the soil of aconquered country, and we may therefore suspect that theapplication of the principle of occupancy to land (always amatter of difficulty) dates from the period when the Jus Gentiumwas becoming the Code of Nature, and that it is the result of ageneralisation effected by the jurisconsults of the golden age.
