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with a liberal hand, in order to encourage the industry of recaptors. For, is it to be of no consequence whether the recapture has been made with great or little trouble or labour? whether the recaptor has fought bravely? whether he has expended a great deal? whether the things saved are of great or of little value? If it should be observed that the valuation of such things is so uncertain that it might occasion a great deal of litigation, I answer, that as the matter stands, there'will not be less controversy, and that there have often been great contestations about the value of a ship and goods, and what ought to be deducted from it,* before the true value thereof has been determined.
But afterwards, if you still chuse to give a part of the thing saved, give it; not, indeed, in proportion to the time that the prize has been in the possession of the enemy, but to the labour employed upon it, as is usual in other cases of salvage. Thus the Rhodian law has allowed a reward to those who have saved property from shipwreck, varying according to the degree of labour, as is said by Harmenopulus, 11(0%. 1. 2. tit. 11. § 18. agreeably to which I interpret the reasonable salvage which Mary of Burgundy allowed to the salvors of shipwrecked property, by her law made for Holland and Zealand, on the 14th of November 1476. A proportion of the thing saved from shipwreck was also allowed by the edict which Philip II. on the 15th of May 1574 issued in the name of William of Orange, which has been often since reenacted, and lately, on the 2d of April 1676; but the salvor is allowed there a greater proportion than is therein expressed, if he has been at a greater labour and expense. I conceive that the states of Holland had a view to this, when on the 22d of July 1677, they decreed a reasonable salvage to those who should take up timbers floating down the rivers without any guard, and deliver them up to the company of ship-builders at Dordrecht. Those laws do not distinguish, how long the things shipwrecked, and the timbers found drifting may have been
* In the United States, salvage is generally allowed on the gross value of the property saved. # T.
floating at the mercy of the sea, rivers and wind, as there is no reason for that distinction, but left it to the arbitration of impartial men, to determine the amount of the reward for the labour and expenses. Nor do I think that any other rule should be followed, with respect to ships and goods retaken from the enemy.
Indeed, in the book called // Consolato del Mare, the point is determined exactly as I have said; for there the recaptor is ordered to restore the vessel and cargo to the former owner, saving however, a salvage, which, in order to be just, is to be liquidated in proportion to the labour and expense employed in and about the recapture,* without making any distinction about the time that the vessel and cargo have been in the possession of the enemy. It is very properly added in the same book, that this restitution only takes place when the ship has not yet been carried into a place of safety, but that if it has been so carried, the property having thus clearly vested in the enemy, if the ship and goods are afterwards retaken, they belong entirely to the recaptor.f Which agrees perfectly with the doctrine that I have contended for in this chapter. I wish that all the principles which are contained in that farrago of nautical laws were equally correct; but every thing that is there is not so sound.
* Dando d quelli che a i detti nimici tolta haveranno, Beveraggio conveniente, secondo la fatica che ne haveranno havuta, e secondo il danno che ne haveranno sofferto. Giving to the recaptors a sufficient beverage or drinkmoney, in proportion to their labour and damage suffered. // Consol. c. 287. In the late French translation by M. Boucher, it is c. 290. § 1136. T.
jAnzi debba essere tutta di loro. II Consol. Ibid.—Fr. Transl. Ibid. § 1138. T. CHAPTER VI.
Of the Possession of Immovables taken in War.
WE must now consider, for the subject is worthy of it, how far extends the possession of immovables acquired in war, and the property arising out of such possession. Grotius* simply says, that every kind of possession is not sufficient, but that it must be a firm possession, which he explains thus: "as if a country is so provided with permanent fortifications, that the adverse party cannot enter it openly without first making himself master of them by force." What then if the fortified town is taken; shall the country be considered as taken also, and for how long? Grotius decides absolutely nothing about this, and yet he often proposes this question when he speaks of the capture and occupation of places. An example will make the thing more clear. The French had taken Casal and Turin in Piedmont; a truce was afterwards made, during which it was agreed that each party should keep what he had taken on the principle of uti possidetis. A question was made about the territory and villages which owed services and duties to the cities which were held by the French.
There were lawyers who decided that question against the French, on the ground that the law of nations requires actual possession, acquired by natural means, and that the part occupied does not draw along with it the part not occupied. Therefore they were of opinion that the obligation of those inhabitants did not enure to the use of the French, as the citizens themselves submitted to their dominion against their will. It is thus contended by Petrinus Bellus,] with whom I do not know whether Zouch agrees.}: But I think Bellus was mistaken: he was certainly so in the case of
* De Jure B. ac P. 1. 3. c. 6. § 4 f De re militari, part 5. t. 3. n. 7, .
.A De Jure Fee. part 2- $ 9. Q; 48.
a truce like the present, because the general words utipossidetis embrace an implied as well as an actual possession. That implied possession consisted in the performing and receiving services and duties, which were usually rendered only to the master; but what actual possession is will be seen from what I am about to say.
Reason, therefore, is to point out to us, what may be properly called a possession of immovables, taken in war, which is that the whole is occupied and possessed, if such has been the intention of the captor; and thus Paul defines it in 1. 3. § 1. ff. de Acquir. vel amitt. rer. poss. That this is not a principle merely of civil law, but also of natural law, the thing itself, and custom which is an excellent teacher, abundantly demonstrate. Possession extends to every thing that is occupied, and what is occupied is placed within our power by the law of nature; but even that is considered as occupied, which is not touched on all sides with our hands or feet, if the occupant so chuses, or the nature of the case requires it, as is the case with lands. On another principle it would not be easy to say what is possessed or occupied, for if every thing is to be touched, it is not even sufficient to touch the surface of the land; it will be not only necessary to walk round, but to dig into every field.
But although it be true, that a part being taken, the whole is taken, when the taking is made with that view or intent, yet it will not otherwise obtain, than if no other person possesses another part of the thing in question. For if another possesses a part of the same whole, he would by the same reason possess the whole. This cannot be said with propriety, for as Paulus very truly says in D. 1. 3. § 5. two persons cannot at the same time possess the. whole of the same thing, because the ownership of one would exclude the ownership of the other. If then one is in possession of a thing, and another takes a part of it which the other does not corporally occupy, he has taken nothing but what he has occupied by natural means, nor can the thing be possessed pro rata, in proportion to the parts which each actually occupies, 'because the possession of the first occupant is paramount, and cannot be excluded by another, which is only similar, each of them having the same force and effect as the other. And the latter occupant has done away what is called the legal possession of the-other in that part which he detains, for no other reason than because he possesses it by natural means; for the natural possession has taken away the legal one. It is the same thing that Celsus says in 1. 18. § 4. ff. Eod. "Si cum magna vi ingressus est exercitus, earn tantiim mode partem quam intraverit obtinet. If an army has entered a territory with great force, it has possession only of that part of the country which it has entered upon." When he says, with great force, he means that there was a resistance made, and that there were those who defended by force the possession of the first owners. An army, therefore, does not further occupy a country than it has compelled the opposite army to recede. Perhaps Paulus is to be thus understood, in DA. 3. § 1. when he says that a part being taken with intent to take the whole, the whole is occupied, but to a certain extent only, usque ad terminum; which I take to mean, so far as to that part which another possesses, whether it be a neighbour on an adjoining land, or some other person on the very land which is contended for.
Hence it is not difficult to discern what may be considered as properly occupied in an occupied country. The metropolitan law of itself has nothing to do with this case, for it is a municipal law which the sovereign may establish wherever he pleases. If so, it is easily understood that if from the occupation of a strong place, dominion is exercised over the whole country, yet by that occupation, the victor is not considered in possession of those cities, walled towns and fortresses which the sovereign still detains, but all these things are to be judged of by the fact itself of occupation and possession.
According to this principle we say, that if a part of a cqun> try be occupied, the whole is considered as occupied, if the vanquished party has retained no other part of it; but if he has, then nothing is occupied, but what- the victor has taken by force from the vanquished, and is actually in possession of. But in regard to several distinct countries under the dominion of the