same prince, it may be asked, whether the same distinction can apply, which is used with regard to contiguous private estates? If Titius is the owner of three contiguous plantations, A, B and C, and Gaius occupies part of the plantation A, he will be considered as occupying the whole of it, but not the plantations B and C. For when we possess an estate, our possession goes as far as its extent, or its boundaries, but no farther; fundo enim possesso, ad terminum quidem, sed ad terminum duntaxat, neque ultrà possidemus. D. 1. 3. § 1. ff. de Acquir. vel amitt. rer. poss. He who has entered on part of the plantation A, is not supposed to have entered upon it with any other intent than to possess himself of the whole of that of which he has occupied a part, but he is not considered as having thought in the least of the manor B or the manor C. When we occupy a part of a whole which is distinguished from all other things, that distinction marks the boundaries of our possession, whether it be a house, a piece of land, a store or warehouse, or any other thing which comes under the denomination of immovable property.

But in my opinion there is another principle as to immovables which are occupied by right of conquest.

The intention of the conqueror is not merely to invade one district, but the whole of the hostile empire, and to make his own all the countries belonging to it. Nor is there here any boundary, but that part of the country which the vanquished still retains. If there is nothing that the conqueror cannot possess, if he pleases, what hinders him from proceeding on and actually possessing the whole? If no one district is retained by the vanquished, the occupation of a single one by the conqueror, nay, of the metropolis alone, will give him possession of the whole empire. Here we must acknowledge the truth of what the ambassador of the emperor Justinian said to Chosroes, king of Persia, according to Menander Protector, Hist. Byzant. tom. 1. p. 143. O yap derriσas "Hysμovixỡ, πῶς ἐκ ἔχει τὸ ὑποβεβηκός? Shall not he, who is the master of him who commands, also be the master of what is subject to him? But if the conquered party still retains something, it will not be considered as a conquest of the whole of his dominions

that his metropolis has been taken and is occupied by force of

arms.

Those princes therefore have justly been laughed at, who because they had taken Rome or Constantinople arrogated to themselves the whole Roman empire, while other princes occupied several large parts of it. Of this kind was the arrogance of Belisarius, as related to us by Procopius, de Bello Vandal. 1. 2. c. 4.; for he, after Justinian had taken Carthage and her king Gelimer, boasted publicly, that every thing belonged to him which Gelimer possessed in Sicily. Here he was altogether wrong, for the right which he had over Carthage and the person of her king, could not transfer to him the possession of what was in Sicily. Sicily defended itself by its own force, and by taking the king, the whole of his dominions was not taken. Actual occupation is necessary, or a cession, if it be so agreed by the treaty of peace.

Let us now see what the states-general have decreed upon this subject. When by the 3d section of the truce between the archduke of Austria and the states-general of the 9th of April * 1609, it was agreed that each should continue to possess what he was in possession of at the time of the truce, and the archduke had posted up his edicts in the territory of Kuyck, which he occupied, the states-general on the 20th of August 1609 decreed, that that territory belonged to them, because they possessed the town of Grave, to which it was subject, and prohibited all others from exercising jurisdiction therein. When also the states-general had taken some fortresses in the Overmaze, and the Spaniards had nevertheless prohibited the inhabitants from submitting themselves to the jurisdiction of the council of Brabant, sitting at the Hague, the states, by way of retort, opposed that interdiction by their edict of the 8th of March 1634. Again, when Boisleduc belonged to the states-general, and the Spaniards made great disturbances respecting the territory thereof, the states obviated them by various edicts, viz. of the 20th of January and 3d of August 1630, 13th of May 1631, 20th of June 1634, 2d of February and 2d of December 1636, and again on the 24th of December 1642, in which edicts, of the

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8th of March 1634, and 2d of February 1636, is also recited the edict of the king of Spain of the 10th of July 1628, in which that sovereign asserts, at great length, that the territory subject to a town follows the conquest of the town itself. The states availed themselves of the same principle, and very properly too, because those are considered as being in possession of a territory, who command there at their pleasure. But if there is in that territory a fortress not yet occupied, so far as that fortress commands the territory, the possession and dominion of the occupier of the remaining part of the country does not take place.

If the principles which I have contended for are correct, as indeed they appear to me, the council of Brabant, which legislates at the Hague for those parts of Brabant which the states have taken by the right of war, has justly enacted by its edict of the 26th of October 1629, that the investiture of the fiefs situate in the territory of Boisleduc, was to be asked of them, and not of the council of Brabant, sitting at Brussels. And it also appears, that the king of Spain had no right to issue, as he did, a contrary edict on the 15th of November1629, as Aitzema relates in detail.* For, by the capture of Boisleduc, the whole adjacent territory belonged to the statesgeneral, and therefore they were the lords of the fiefs situated there; as the conquered vassal owes fealty and services to the conqueror, not to the conquered prince.

There is still less doubt, that if a province be ceded, all its parts are ceded likewise. On this subject there is extant an edict of the states-general, of the 22d of December 1610, concerning Twent, a district of the province of Over Yssel.

* Aitz. b. 9.

IF

CHAPTER VII.

Of the Confiscation of the Enemy's Actions and Credits.

F there are treaties between princes about taking away their goods within a certain time in case war shall take place, several of which treaties I have above mentioned, c. 2.; it is true that they may remove their goods and effects as well as their actions and credits. But if there are no such treaties, or if the goods and actions are not taken away within a limited time, it is asked, what is the law in that case? And surely, such being the state of war, that enemies are on every legal principle proscribed and despoiled of every thing, it stands to reason that every thing belonging to the enemy, which is found in the hostile country, changes its owner and belongs to the fisk.* It is besides customary in almost every declaration of war to proclaim that the goods of enemies, as well those found among us, as those taken in war, shall be confiscated.

There are also now extant on this subject separate acts of state, whether preceded or not by a declaration of war. The prince of Orange, on the 25th of August 1572, inserted in the form of government which he then made for Holland, "that the goods of all those who acted publicly as his enemies, should be immediately registered by the magistrate of the place where they were found, and their rents and profits should be taken for the benefit of the commonwealth." I understand this to apply to real estates, which it is usual to register, that the rents and profits in time of war may go to the public. If we follow the strict law of war, even immovables may be sold, and their proceeds be lodged in the public treasury, as is done with movables; but throughout almost all Europe, immovables are only registered, that the treasury may receive during the war their rents and profits.

As we make use of the words fiscal, confiscate, confiscation, why should we not adopt in America the word fisk, from the Latin fiscus, which is the root of all those derivatives?

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At the termination of the war, the immovables themselves are by treaty restored to their former owners.

On the 2d of April 1599, the states-general again issued an edict with regard to all kinds of enemy's property, wherever found, which is in these words: "We declare lawful prize all persons and goods situate or being under the jurisdiction of the king of Spain, wherever the same may be taken." There exists also a letter from the states-general to the court of Holland dated the 25th of November 1672, by which they are simply ordered to detain and confiscate the goods of those who reside among the enemies, on which there issued an edict of the court of Holland of the same day, declaring that the goods could not be restored to their owners after the date thereof. I am not now inquiring whether this be agreeable to the treaty made in the year 1662, between the states-general and France. But as estates of inheritance are principally to be included under the denomination of goods, (bona)* it is clear that an enemy cannot acquire such an estate situate in our country, even though it came to him by succession or by will. Agreeably to this principle, when in the year 1695, a person died intestate in Holland, whose next of kin and heirs at law were in France, I remember that the inheritance was confiscated.

As the edicts which I have recited speak in general terms, they are to be taken to apply to all kinds of goods, whether corporeal or incorporeal. Of incorporeal goods, however, such as actions and credits, I see that doubts exist, and that the states-general themselves have doubted,† nay, and have some

* At the civil law the word bona includes every kind of property, real, personal and mixed, but chiefly, as our author says, applies to real estates, chattels being generally distinguished by the words effects, movables, &c ̧ The English civilians translate the word bona by goods, which we employ here in the same sense, though very different from that of the common law.

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† Not only doubts have been entertained on this subject in the United States and Great Britain, but the two governments by the treaty which was made between them in 1794 have expressly recognised the opposite principle. By the tenth article of that treaty, it is stipulated "that neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public funds or in the public