628 CITATIONS FROM WRITINGS OF JURISTS AND ECONOMISTS. 



tilings, the means for their general development. Common property 

 never has such rich contents; it is never free, full property, because the 

 purposes for which it is used are fixed by the laws of common interest; 

 therefore, according to the idea of right (law) only that is to be held as 

 common property which can not without danger, be entrusted to indi- 

 viduals; it is consequently a minimum with limits that are removable 

 according to the degree of improvement in cultivation and the develop- 

 ment of personality. The tendency to diminish the extension of indi- 

 vidual property and individual management as far as possible, in order 

 to make all possible room for common property and common manage- 

 ment, is in contravention of all right (law) and contributes toward 

 making the institution of the penitentiary the normal institution for 

 the whole machinery of human society. 



II. The ways in which property is earned, and the conditions on 

 which property is recognized, are defined by law for the most part in 

 accordance with the principles of justice. The first principle is that 

 each one is to keep what he has, until a sufficient reason for a change 

 can be shown. Thus all right of property is based upon the fiction of 

 a primitive condition in which there is mere possession, which is after- 

 wards endowed bylaw with protection and ideal } tower. The division 

 or distribution of empirical possession, which is recognized as legal, and 

 is converted info intelligible property, can be based, as an original fact, 

 only upon the will of each individual or of the community, always only 

 upon the Mill of him who has taken possession of the things according 

 to his own good pleasure, who has occupied them. Occupation is thus 

 the last basis and point of departure, that of possession which receives 

 property- protection from law. This original occupation is conceived of 

 as taking place in a condition in which no law prevails, such as in war, 

 and alter conquest by entire hordes and tribes. Ideally, a line is 

 drawn. Beyond that line there is freedom of occupation, while on this 

 side of it there is protection for everyone iu what he has occupied; 

 beyond it there is violence and craft, while on this side of it there is 

 respect for the rights of others. The communio primceva (primeval com- 

 munity of goods) which is conceived of as existing in the imaginary 

 condition, is nothing but this indefinite possibility of occupation by 

 each one without regard to the rights of others, which as yet does not 

 exist. Only when a legal condition of things begins to exist is the 

 requirement made that all transfers of property shall take place in a 

 legal manner, and that property shall be acquired and lost only in the 

 ways that are expressly prescribed by law, which are made to conform, as 

 far as possible, to justice. The occupation, the mere appropriation of things 

 at will, is thus greatly restricted. For most things have their owners, 

 whose rights are protected; but for that which as yet has no owner 

 the State prescribes the conditions of an occupation that will be recog- 

 nized by it. The State reasonably claims the ownership of what has no 

 owner, because no one has a better right than it has, and it leaves a 

 conditional possibility to others on the ground of expediency only. The 

 basis of property by occupation, since it clashes with no rights of 

 others, is, in itself, easily understood. With property in the substance 

 of the thing, property is also given in that which belongs as an append- 

 age to the substance, in the fruit and in the increase, and in that 

 which is connected with the substance. Ideally more pregnant and in 

 the legal condition more influential is, however, the second kind of 

 acquisition of property, viz., specification. Any one who has formed a 

 substance by his labor, and has thereby produced new property and 

 new value, which also, as the fruit of the thing, may be the result of 



