CITATIONS FROM WRITINGS OF JURISTS AND ECONOMISTS. 633 



there are no new acts of cultivation; for nothing would further indi- 

 cate an intention to occupy. The held which would cease to be culti- 

 vated would again become vacant and subject to the right of the iirst 

 occupant. 



Agriculture alone, therefore, is not sufficient to establish permanent 

 property; and since as before the invention and the usage of agricul- 

 ture, property was acquired by occupation, was preserved by continued 

 or habitual possession, and was lost with possession (et se perdait avec 

 la possession), this principle is still followed in regard to things which 

 have remained in the primitive state or negative community, such as 

 savage animals. 



Sec. 74. In order to give to property a nature of stability which we 

 observe in it today, positive laws and magistrates to execute them were 

 necessary, in other words, the civil state was required,, 



The increase of the human species had rendered agriculture necessary; 

 the need to assure to the cultivator the fruits of his labor made felt the 

 necessity of permanent property and of laws to protect it. Thus, it is 

 to property that we owe the foundation of the civil state. Without the 

 tie of property it would never have been possible to subject man to the 

 salutary yoke of the law; and without permanent property the earth 

 would have continued to remain a vast forest. 



Let us say, therefore, with the inost exact writers, that if transient 

 ownership (laproprietepassagdre), or the right of preference which occu- 

 pation gives, is anterior to the foundation of civil society, permanent 

 ownership (propriete permanente) as we know it today is the work of 

 civil law. 



It is civil law which has established as a maxim that once acquired 

 property is never lost without the act of the owner, and that it is pre- 

 served even after the owner has lost possession or detention of the thing, 

 and when it is in the hands of a third party. 



Thus property and possession, which in the primitive state were con- 

 founded, became by the civil law two distinct and independent things; 

 two things which, according to the language of the laws, have nothing 

 in common between them. Property is a right, a legal attribute ifaculU) ; 

 possession is a fact. 



It is seen by this what prodigious changes have been wrought in 

 property, and how much civil laws have changed its nature. 



Sec. 72. This change was effected by means of a real action that the 

 laws granted against the possessor whoever he nvjght be, to compel him 

 to surrender the thing to the owner who had lost possession thereof. 

 This action was granted to the owner not alone against the possessor 

 by bad faith, but also against the possessor by good faith, to whom the 

 thing had come without fraud or without violence, without his being 

 cognizant of the owner's rights, and even though he had acquired it 

 from a third party by virtue of a legal title. 



Sec. 73. Property was, therefore, considered a moral quality inherent 

 in the thing, as a real tie which binds it to the owner, and which can- 

 not be severed without an act of his. 



This right of reclaiming a thing in whatever hands it is found, is that 

 which forms the principal and distinctive characteristic of property in 

 the civil state. 



Ahrens, Cours de droit naturel. p. 297. P>ruxelles, Meliue et C ie , 1841. 



As in modern times work and industry have received greater appre- 

 ciation, respect and protection, several authors have abandoned the 

 ancient doctrine of occupation and have sought the basis and origin of 



