Letters to "The Times" upon War and Neutrality (1881-1920)Holland, Thomas Erskine
History
Letters to "The Times" upon War and Neutrality (1881-1920)
Holland, Thomas Erskine
Neutrality; War (International law)
Sir,--The terminology of the law of nations has been enriched by a new
phrase. We are all getting accustomed to "spheres of influence." We have
been meditating for some time past upon the interpretation to be put
upon "a lease of sovereign rights." But what is an international
"usufruct"? The word has, of course, a perfectly ascertained sense in
Roman law and its derivatives; but it has been hitherto employed,
during, perhaps two thousand years, always as a term of private
law--_i.e._ as descriptive of a right enjoyed by one private individual
or corporation over the property of another. It is the "ius utendi
fruendi, salva rerum substantia." The usufructuary of land not merely
has the use of it, but may cut its forests and work its mines, so long
as he does not destroy the character of the place as he received it. His
interest terminates with his life, though it might also be granted to
him for a shorter period. If the grantee be a corporation, in order to
protect the outstanding right of the owner an artificial limit is
imposed upon the tenure--e.g. in Roman law 100 years, by the French
Code 30 years. For details it may suffice to refer to the Institutes of
Justinian, II. 4; the Digest, VII. 1; the Code Civil, sects. 573-636;
the new German Civil Code, sects. 1030-1089.
It remains to be seen how the conception of "usufruct" is to be imported
into the relations of sovereign States, and, more especially, what are
to be the relations of the usufructuary to States other than the State
under which he holds. It is, of course, quite possible to adapt the
terms of Roman private law to international use. "Dominium,"
"Possessio," "Occupatio," have long been so adapted, but it has yet to
be proved that "Usufructus" is equally malleable. I can recall no other
use of the term in international discussions than the somewhat
rhetorical statement that an invader should consider himself as merely
the "usufructuary" of the resources of the country which he is invading;
which is no more than to say that he should use them "en bon père de
famille." It will be a very different matter to put a strict legal
construction upon the grant of the "usufruct" of Port Arthur. By way of
homage to the conception of such a grant, as presumably creating at the
outside a life-interest, Russia seems to have taken it, in the first
instance, only for twenty-five years. One may, however, be pardoned for
sharing, with reference to this transaction, the scruples which were
felt at Rome as to allowing the grant of a usufruct to a
corporation--"periculum enim esse videbatur, ne perpetuus fieret."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 30 (1898).
P.S.--It would seem from M. Lehr's _Éléments du droit civil Russe_ that
"usufruct" is almost unknown to the law of Russia, though a restricted
form of it figures in the code of the Baltic provinces.
Public-domain text, read in full here on John Shaqi.
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