CITATIONS FROM WRITINGS OP JURISTS AND ECONOMISTS. 631 



Although nothing- is able to establish it, it is permitted to think that 

 the necessity of constructing for oneself a shelter against the inclemency 

 of the seasons, the discovery and progress of agriculture, were if not 

 the only causes, at least the principal ones of the establishment of 

 ownership in immovable property. In fact, the man who had placed 

 his cabin upon a corner of earth of his choice, the cultivator who had 

 fertilized a field by his labor, must have regarded tliis part of the earth 

 as his own property, to prevent all others from entering and enjoying 

 it. Such, in my eyes is the true origin of property. 



Sec. II. Characteristics essential to Property: 



Property, as respects the natural primitive right, for I do not occupy 

 myself with civil institutions, ought to unite three essential charac- 

 teristics : 



1. Exclusive possession, and in consequence, the power to dispose 

 according to his taste, to use, and even to abuse it; 



2. The right of excluding all others from the enjoyment of the object 

 possessed ; 



3. The necessity of excluding them, in order to be able to enjoy the 

 possession and to draw from it all the advantages which it promises. 



Toullier, French Civil Laic. Fifth edition, Paris, 1842, vol. Ill, 

 title II, ch. i, sec. 1, p. 40 to 47. 



Summary. — Sec. 64. Origin of property; negative community. — Sec. 65. Risjht of 

 the first occupant which ceases with occupation. — Sec. 66. Proof of the existence 

 of negative community. — Sec. 67. A comparison by Cicero resx^ecting this sub- 

 ject. — Sec. 68. Occupation rendered more stable by agriculture. — Sec. 69. Whence 

 results haltitual occupation which preserves possession solely by extension. — Sec. 

 70. The field which ceased to be cultivated became vacant. — Sec. 71. Civil laws 

 finally made property permanent. — Sec. 72. By means of real action against the 

 possessor of the thing. — Sec. 73. Distinctive character of property in the civil 

 state. 



Sec. G4. If the laws attached to property and those which are derived 

 from it are now very extensive it was not thus originally. Property 

 was confounded with possession and it was lost with it. 



Before foundation of the civil state, the earth was no one's, the fruits 

 belonged to the first occupant. The men that were distributed over 

 the globe lived in a state which the writers who have written on natu- 

 ral law have termed negative community, in distinction from positive 

 community in which several associates held in common ownership an 

 indivisible thing belonging to each in a certain portion. 



Negative community, on the contrary, consisted in that the thing 

 common to all did not belong more to each one of them in particular 

 than to the other and in that no one could prevent another taking that 

 which he considered proper to make use of in his needs. 



Thus this doctrinal expression of negative community signifies noth- 

 ing else but the primitive and determinate right (droit) that all men 

 had originally to make use of the goods which the earth offered, so 

 long as no one had yet taken possession of them. 



Sec. 65. It is this which is termed the right of the first occupant. 

 He who first possesses himself of a thing acquires over it a kind of 

 transient ownership, or, to speak more exactly, a right of preference 

 which others should respect. They should leave that thing to him 

 while he possesses it; but after he had ceased to make use of it or to 

 occupy it, another in his turn might make use of it or occupy it. 



If the older possessor had invoked his past possession as a right of 

 preference still existing, the younger could be able to answer by his 

 present possession; and when, furthermore, rights are equal on both 



