CHAPTER XI.

THE LAW OF ADVERSE HOLDING.

Title to real property may be obtained by original acquisition, that is to say, by the occupation of unoccupied land to which no one had theretofore any claim of title.

As has been shown in an earlier chapter, the Spanish acquired by a perfected discovery an original and perfect title to the whole of Guiana.

After original acquisition, the next form of acquisition is where the property acquired had been the property of another before the acquisition, but where the person acquiring the property does not in any way base his ownership on the title of the former owner, or of any former owner, but acquires a title adversely to that of the former owner. This is known as acquisition of title by "prescription" or "adverse holding."

This mode of acquiring title is thus defined by F. de Martens (Int. Law, pp. 460-461):

"b.-Prescription (usucapio). Contrary to the principle of private law, international law admits the rule of prescription only in a very limited degree. A résumé of its importance is given in the following:

"1. International law does not recognize a limit to prescription, for a state is master of a territory so long as it is able and wishes to maintain its authority therein.

"2. In the domain of international relations nothing can interrupt the continuance of an ancient right. A government may in fact lose a possession, but it is always legal to attempt recovery of the same in one way or another.

"3. In international law no real importance is attached to anything but immemorial antiquity (antiquitas, vetustas, cujus contraria memoria non existit). This it is which forms the foundation of all jural relations, both for the existence of barbaric and civilized states. Length of time and the sanction of history impose silence on all claims and charges that might have been justified in the beginning by the violence and injustice committed at the time of gaining territory. In this sense it may especially be said of

states: Beati possidentes! The accomplished fact covered by immemo rial antiquity becomes legitimate in the age of international law."

The Dutch English claim in the present case is not a claim of immemorial possession. It lacks this quality, which, as the learned author says, is the most essential ingredient of prsecriptive rights in international law. On the contrary, everything relating to the origin of the Dutch title is a matter of history. That title was acquired by cession from Spain, and the question here is whether, by the subsequent acts of the Dutch, territories not included in the cession could by prescription have been acquired from Spain. As the learned author intimates, such a mode of acquisition is favored by international law only to a limited degree, and the law does not recognize a limit of time.

It was in view of this principle of international law that it was necessary, in order to give effect to alleged acts of Dutch occupation, if any there were, that the limitation of fifty years was prescribed by the Treaty. It stated an exception to the general tendencies and spirit of international law. It was a concession to Great Britain. It provided that if Great Britain could prove an adverse possession, by the Dutch, for fifty years of some part of this terrritory beyond that which they had acquired by cession, such proof should be admitted as vesting a title in the Netherlands.

The question here, therefore, is not a question of present pos session supported by immemorial antiquity, but a question whether at any time during the period of Dutch rule an adverse holding for fifty years by that nation can be shown in any part of the territory in dispute; in other words, what, if any, territory west of Essequibo, the Netherlands acquired subsequently by au adverse holding of fifty years.

Vattel, Book II, Ch. XI (Chitty's Transn., Phila., Ed. 1859), says, § 140 (p. 187):

"Usucaption is the acquisition of domain founded on a long possession, uninterrupted and undisputed-that is to say, an acquisition solely

proved by this possession. Wolf defines it, an acquisition of domain founded on a presumed desertion. His definition explains the manner in which a long and peaceful possession may serve to establish the acquisition of domain. Modestinus, Digest, lib. 3, de Usurp. et Usucap., says, in conformity to the principles of Roman law, that usucaption is the acquisition of domain by possession continued during a certain period prescribed by law. These three definitions are by no means incompatible with each other; and it is easy to reconcile them by setting aside what relates to the civil law in the last of the three. In the first of them we have endeavored clearly to express the idea commonly affixed to the term usucaption.

"Prescription is the exclusion of all the pretensions to a right—an exclusion founded on the length of time during which that right has been neglected, or, according to Wolf's definition, it is the loss of an inherent right by virtue of a presumed consent. This definition, too, is just; that is, it explains how a right may be forfeited by long neglect; and it agrees with the nominal definition we give to the term prescription, in which we confine ourselves to the meaning usually annexed to the word.”

The claim of "prescription" or "adverse holding," meaning a naked holding or possession by which title may be acquired, adversely or in opposition to the holder of the prior title, as applied by the Treaty to the present controversy between two sovereign States, has been already discussed. It has been shown that it necessarily presupposes the prior title, as is admitted in the British Counter Case (page 114), as follows:

"But no question of adverse holding or prescription can arise except where one Power has occupied territory by right belonging to the other."

It has been further shown that in a case of adverse holding between States, the possession indicated must be a national possession. This is characteristic of all occupation upon which public title is based. Thus F. de Martens says (Int. Law, p. 463):

"From a subjective point of view, the occupation must necessarily be made in the name and with the assent of a government. If this is effected by officials representing a state, there is no doubt as to the nation which should be considered as the rightful proprietor of the occupied land. An occupation undertaken by individuals should be sanctioned by the government on whose behalf it has been accomplished."

It has also been shown that, under the Treaty as well as under the general principles of law, nothing less can be held to indicate possession than an actual settlement, established by national authority and remaining under national control; and that, in this particular case, the Treaty has, further, authorized the Arbitrators to consider what, if any, effect shall be given to the exercise of an exclusive political control, if they find such control, lasting for a period of fifty years, but without actual settlement.

Apart from these conditions, however, as the term "adverse holding" or "adverse possession" is one of familiar use in modern jurisprudence, and has been made the subject of adjudications in English and American courts, certain well-recognized principles have been established to describe and define the conditions of adverse holding in general requisite to establish a title. These principles are inherent in the common acceptation of the term, and must be considered in ascertaining its meaning and its application in this arbitration, in addition to and in connection with the definitions stated in the Treaty.

According to Phillimore (International Law, 3rd edition, vol. I, p. 367), these are not only required in the case of an adverse holding by individuals under municipal law, but in the case of a prescriptive holding by States under international law. He says that the proofs of prescriptive possession are

principally publicity, continued occupation, absence of interruption (usurpatio), aided no doubt generally, both morally and legally speaking, by the employment of labor and capital upon the possession by the new possessor during the period of the silence, or the passiveness (inertia), or the absence of any attempt to exercise proprietary rights, by the former possessor. The period of time, as has been repeatedly said, cannot be fixed by international law between nations as it may be by private law between individuals; it must depend upon variable and varying circumstances; but in all cases these proofs would be required."

He adds that it is only in cases where dereliction is capable of proof that "the new possessor may found his claim upon original occupation alone, without calling in the aid of prescription."