of the former, and the gain of the later possessor, are distinct and separate facts. Whereas, in cases of Prescriptive Acquisition, the facts are necessarily connected; the former possessor loses, because the new one gains.

CCLXI. There was a dispute of long standing between France and England respecting Santa Lucia, one of the Antilles Islands. After the Treaty of Aix-la-Chapelle (1748), the matter was referred to the decision of certain Commissioners, and it was the subject of various State Papers (h) in 1751 and 1754. The French negotiators maintained, that though the English had established themselves in 1639, they had been driven out or massacred by the Caribbees in 1640, and they had, animo et facto and sine spe redeundi, abandoned the island; that Santa Lucia being vacant, the French had seized it again in 1650, when it became immediately, and without the necessity of any prescriptive aid, their property. The English negotiators contended that their dereliction had been the result of violence, that they had not abandoned the island sine spe redeundi, and that it was not competent to France to profit by this act of violence, and surreptitiously obtain the territory of another State; and that by such a proceeding no dominium could accrue to them. The principal discussion turned, not upon the nature of the conditions of Prescriptive Acquisition, but upon the nature of the conditions of Voluntary Dereliction, by which the rights of property were lost, and the possession returned to the class of vacant and unowned (adéσπоτα) territories (i).

(h) Eugène Ortolan, Du Domaine international, p. 111.
(i) Vide post, Chap. xvi.: EXTINCTION OF DOMINION.

CHAPTER XIV.

DERIVATIVE ACQUISITION.

CCLXII. WE now enter upon the second kind of Acquisition, viz. that which in the system of Private Law is called Derivative.

Derivative Acquisition (a) is said to be that which takes place by the act of another, or by the act of the law (acquisitio derivativa, vel facto hominis, vel facto legis). In this system not only Individuals, but Corporations or legal persons, are enabled to acquire and to alienate rights of property, through the medium of a representative, as minors and lunatics are in all systems of jurisprudence enabled to act through their guardian or tutor.

Who the representative of the corporation may be, depends upon the constitution of this legal person. But, as a general rule, the will of a corporation is expressed not only by the unanimous assent, but by the assent of the major part of its members. The rule that the will of the corporation may be collected from the agreement of a part of its members seems to be founded in Natural Law, as otherwise the body might be prevented from acting at all (b).

(a) Eugène Ortolan, p. 23.
Hefter, s. 71.
(b)".

quod a majore parte ordinis salubriter fuit constitutum."Cod. x. t. 32, 46. De Decur.

“Quod major pars curiæ effecit, pro eo habetur, ac si omnes egerint." -Dig. 1. 1, 19.

Savigny R. R. s. 97.

But see Burke, vol. vi. p. 212: Appeal from the New to the Old Whigs.

The constructive whole, therefore, is holden, for certain purposes, to reside in a part only.

Turning from the system of Private to the system of International Law, we find that it is competent to one State possesssed of property to alienate it, and to another to receive the alienated portion. So far the analogy is sound between the State and the Individual or the Corporation; the rights incident to a proprietor attach in both cases. But, in the case of the State, it may be a matter of theoretical and practical difficulty to ascertain where and in whom the power of acquiring and alienating is lodged? in whom what has been happily called "the contracting capacity " (c) of the nation is vested (d)? whether the general procuration of the State (e) be placed in the hands of one man, or of a few, or of a majority of representatives? The solution of this grave question belongs rather to the province of Public and Constitutional than to that of International Law (f). It has, indeed, been discussed by writers on International Law, especially by Grotius (g) and Vattel (h): but both those writers dealt, on this as on other occasions, with subjects which belonged to the sphere of the Publicist rather than that of the International Jurist.

CCLXIII. Grotius (i) divides all kingdoms into Patri

(c) Burke, vol. ix. p. 384: Tracts on Popery Laws, c. 3, in fine. (d) Vide post, the Act of Renunciation of the Grand Duchy of Tuscany by Leopold II., on his accession to the throne of Austria, in favour of his second son.-. -Martens, Rec. de Traités, vol. iv. p. 476. (A.D. 1790.) Eugène Ortolan, pp. 14, 35.

Rutherforth, Institutes of Natural Law, c, viii.

Savigny R. R. s. 140, b. iii. p. 310.

(e) Burke, vol. vi. p. 212: Appeal from the New to the Old Whigs. (f) Grotius, 1. ii. c. vi.

Wheaton's Elements, pp. 102-3.

Günther, pp. 11–77, Buch 2, Kap. ii.

(g) Grotius, 1. ii. c. vi.: De acquisitione derivativa facto hominis, ubi

de alienatione imperii, et rerum imperii.

(h) Vattel, 1. i. c. xxi.: De l'Aliénation des biens publics, et de celle d'une partie de l'Etat.

(i) De Jure Belli, 1. i. c. iii.—Heinee. Prælec.

monial and Usufructuary; and he reckons among the latter all kingdoms over which the people elected a Governor, and all that are acquired by treaty or marriage. Patrimonial kingdoms, he seems to think, may be alienated by their rulers without the sanction of the people; but Usufructuary, not without their consent. Whatever countenance this doctrine might have derived from the practice and principles of the time in which Grotius lived, it can hardly be predicated of

any Christian, and certainly of no European State (j) at present existing in the world. Puffendorf, indeed, lays it down as law, that the general presumption is against the power of the sovereign to alienate, without the consent of his subjects, any portion of the public property or domain; and the doctrine is distinctly and indignantly repudiated by Vattel (k); nevertheless, a miserable attempt was made in

(1) "Die Eigenschaft eines Patrimonial-Staates (das heisst, dass der Regent nach Eigenthumsrecht über den Staat verfügen könne) ist in Europa durch Staatsgrundgesetze nirgend festgesetzt."-Klüber, s. 31. "He will discover that when Grotius examines the subjects in detail he excludes every case of patrimonial governments. The fair conclusion to be drawn from it is therefore this, that there is no such thing as a patrimonial government.”—Lord Grenville, Debate on Blockade of Norway, May 10, 1814. Hansard's Parl. Deb.

(k) "J'ai osé cependant m'écarter quelquefois de mon guide, et m'opposer à ses sentiments; j'en donnerai ici quelques exemples. M. Wolf, entraîné peut-être par la foule des écrivains, consacre plusieurs propositions à traiter de la nature des royaumes patrimoniaux, sans rejeter ou corriger cette idée injurieuse à l'humanité. Je n'admets pas même la dénomination, que je trouve également choquant, impropre, et dangereuse dans ses effets, dans les impressions qu'elle peut donner aux souverains; et je me flatte qu'en cela j'obtiendrai le suffrage de tout homme qui aura de la raison et du sentiment de tout vrai citoyen.”— Vattel, Préface.

And again, 1. i. c. v.: "Nous ne voyons point en Europe de grand Etat qui soit réputé aliénable."

In another part of his work he limits the power of alienating national property as follows:-"Le corps de la nation ne peut donc abandonner une province, une ville, ni même un particulier qui en fait partie, à moins que la nécessité ne l'y contraigne, ou que les plus forts raisons, prises du salut public, ne lui en fassent une loi.”—L. i. c. ii.

Puffendorf, de Jure Nat. et Gent. 1. viii. c. xii. ss. 1-3.

Vattel, 1. i. c. xxi. s. 260: "Il ne peut aliéner les biens publics."

1814 to palliate the guilt of the forcible annexation of Norway to Sweden by an appeal to the authority of Grotius. CCLXIV. So far, indeed, as respects the conduct of third parties in transactions of this nature, International Law may claim to be heard. How far the right of Self-preservation (which includes the right of preventing the undue aggrandisement of any particular Power) justifies the INTERVENTION of third Powers, will be hereafter considered.

The rule which, according to the true principles of International Law, ought to be binding upon all nations who are, as it were, bystanders in such transactions, is, rigidly and punctiliously to abstain from interfering to compel by force either part of the nation, whether it be that which wishes to alienate or that which refuses to be alienated, to adopt the one course or the other. To do otherwise, is directly to violate the most sacred principle of the jurisprudence of which we are treating, to trample in the most offensive way upon the independence of a nation, by assuming the judicial office upon the nicest and most vital questions of her constitutional law, and the executive office, in carrying this unwarranted and illegal decision into effect.

CCLXV. When in 1814 Norway refused, as she did, by the actual and constructive voice of her people, to be annexed to Sweden, the question should have been left, according to the spirit and letter of the law, to the decision of arms between the two countries. It is painful and humiliating to an Englishman (4) to think that this abhorred union, for such it was at the time, was effected, partly, by the blockade of a British fleet. The plea that such a union formed part of the provisions of a general treaty of peace, which had for its

(See the debates in both Houses of Parliament on the blockade of Norway, 1814, Hansard's Parl. Deb., especially the speeches of Lord Grenville and Sir James Mackintosh, which contain an admirable exposition of the soundest principles of International Law. Lord Grenville condemns the act as subversive of public morality, as opposed to the authority of all writers upon International Law, as justifying in principle the aggressions of France for the preceding twenty years.