Page:Federal Cases, Volume 19.djvu/45

£19 Fed. Cas. page 41] (Case No. 10,869; PEABODY Again, it is said, we are not to presume that the owner would have abandoned valuable property; but it may, on the other hand, be replied that it cannot be presumed he would have remained silent for twenty- three years, and give no public notice of his loss, which notice is not here pretended. The voluntary abandonment of property, like the relinquishment of debts, is not an uncommon thing; and the nonappearance of an owner, after such a length of time, is the strongest evidence of such abandonment. To make a case of derelict, however, it is not necessary that no owner should afterwards appear. The Aquila, 1 C. Rob. Adm. 40. In all the cases cited for the United States, either a very short time had elapsed between the abandonment and the adjudication, or a claim was made by a known owner immediately. If, then, there is any such thing as a limitation to claims of owners in these cases, the present is as strong a case as can be found for applying such limitation. It is also argued that the United States can make this claim, as successor to the prerogatives of the king of England, upon the authority of 3 Dane, Abr. 157. But in the same work it is said that there are numerous instances in which this doctrine has been held not applicable to the American colonies; and then we contend that the present is one of the latter cases, and that whatever rights of that kind the several states may have there is no such prerogative in the federal government. Among other instances, the United States have not claimed anything of the royal prerogative as to wrecks, but these have been considered as under the jurisdiction of the several states. If, therefore, the present claim of the libellants rested upon the law of wrecked property, it would still be the right of the finder to have it disposed of independently of any claim of the United States.

It is further objected that the claim of the whole property is one of a novel impression. But in the case of McDonough v. The Mary Ford, 3 Dall. [3 U. S.] 188, the supreme court of the United States intimate a doubt whether on the principles of abandonment they ought not to decree the whole of the property there in question to the American libellants; but, as the parties had not appealed from the decision of the lower court on that point, it could not be taken notice of on the appeal.

Mr. Dunlap argued that the claim of the libellants rested upon the principles of the title by occupancy, as described by the ethical and legal writers. The case at bar was, he admitted, one which at first view appeared strongly in favor of the libellants upon equitable principles, yet it must be decided by general rules of law; and, when the cause was examined to the foundation, it would, he believed, be found to rest upon those barbarous principles of the ancient law of nations in the iron age, by which a title was asserted to shipwrecked property, to the exclusion of the right of the unfortunate owners. The title by occupancy, except in the case of newly-discovered countries, no longer exists; it is totally unsuited to the present state of society, as its assertion must constantly tend to the violation of its peace. The laws of all civilized nations provide against the assertion of this title, which, however equitable it may appear in the elegant essays of ingenious and fanciful ethical and legal authors, is utterly inconsistent with the harmony of any well regulated society. Even the most learned authors, in their speculations on this subject, differ in their nice and scholastic hypotheses; Grotius and Puffendorf resting the right upon the foundation of an implied assent of all mankind that the first occupant of property should become the owner, and Barbeyrac and Sir. Locke denying any such assent, and founding the right upon the fact that the occupant has, by seizing the property, joined his labor to it, and thereby made it his own. It would seem that, when such learned doctors of the law disagree, the dispute must be about a fanciful matter, having no practical applicability to the common affairs of life or the general rules of human conduct. 2 Bl. Comm. c. 1. Burlamaqui, in his Principles of Natural Law, considers the state of property as wholly an "adventitious state," created by civil society, and restrained and regulated by its ordinances. Burlam. Nat Law, c. 4, § S. The right of inheritance and the right to dispose of property by will, which cannot be satisfactorily sustained by natural law, whatever may be the common notions implanted by education, rest upon this supposition that the permanent right to property is "an adventitious state"; and therefore Blackstone, in his second book, c. 14, has said that "all rules of succession to estates are creatures of the civil polity and juris positivi merely." The title by occupancy to lands never existed in England but in a few cases of rare occurrence, and now it is in those cases destroyed by statute regulations. 2 Bl. Comm. c. 16. It was therefore contended that the libel in the present case could not be supported upon the notions which had been proclaimed in former days relative to the title by occupancy.

As to the law relied on respecting property derelict, it was contended that there was no such thing at present in the sense of the word "derelict" in the civil law, and the ancient law writers,—a voluntary abandonment, without any further claim to property. This never happens in the present avaricious or needy age, unless in trifling cases, to which the legal maxim, "De minimis non curat lex," applies, or in cases of insanity, where the acts of the party