Law of property

“ Now that may seem commonplace enough; but it is interesting to note, as in the law, personal property did not come first; property in land was many centuries earlier. And this suggests the legal basis and present tendency of the law of property. "Property exists only by the law"; and extreme socialists say that all private property is robbery. No law, no property; this is true. Property is an artificial thing. It is a creation of law. In other words, where there is now no law except statute, it is the creation of statute. ”

“ If the idea so constantly appealed to in justification of property law is to be realised; if the fruits of each man’s labor [68] are to be guaranteed to him and he is to own the instruments with which he works; if the laws of property are not to establish a parasitic class taking tribute from the labor of others in the forms of Rent and Interest, then we must modify our administration of property. ”

“ Upon any other hypothesis, the law of property would be simply the law of force. Now it is undeniable, that the investment of property in the citizen by the government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the State, or the government acting as its agent, and the grantee ”

“ Thus for instance the law of property of the Middle Ages, with the object of preserving family property from generation to generation, and protecting it against dissipation, declares family property or "Estate" to be inalienable without the consent of the heirs. ”

“ Nevertheless, by a higher law, the property will, year after year, write every statute that respects property. The non-proprietor will be the scribe of the proprietor. What the owners wish to do, the whole power of property will do, either through the law or else in defiance of it. Of course I speak of all the property, not merely of the great estates. When the rich are outvoted, as frequently happens, it is the joint treasury of the poor which exceeds their accumulations. Every man owns something, if it is only a cow, or a wheel-barrow, or his arms, and so has that property to dispose of. ”

“ Property is the suicide of society. Possession is a right; property is against right. Suppress property while maintaining possession, and, by this simple modification of the principle, you will revolutionize law, government, economy, and institutions; you will drive evil from the face of the earth.
II. All having an equal right of occupancy, possession varies with the number of possessors; property cannot establish itself.
III. The effect of labor being the same for all, property is lost in the common prosperity. ”

“ The old rule, expressed in the maxim mobilia sequntur personam, by which personal property was regarded as subject to the law of the owner's domicile, grew up in the Middle Ages, when movable property consisted chiefly of gold and jewels, which could be easily carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property, not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs,-the law of the place where the property is kept and used. ”

“ The owners of property, especially if it be valuable and available, do not often allow it to remain in the quiet and unquestioned enjoyment f others. Such a course is not in accordance with the ordinary conduct of men. When, therefore, possession and use are long continued, they create a presumption of lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. ”

“ But property is also the right to exchange, to transfer, and to sell. If, then, the social condition is such that the proprietor, ruined by usury, may be compelled to sell his possession, the means of his subsistence, he will sell it; and, thanks to the law, accumulated property—devouring and anthropophagous property—will be established. ”

“ Now, property is but the creature of law; and that is to say, in those of our States which have no common law, of statute. Jurists and communists are alike agreed on this. "Property is robbery," said Proudhon; property is but the creature of law, all English jurists admit. ”

“ The right of property is that which belongs to every citizen to enjoy, and to dispose at his pleasure of his goods, income, and of the fruits of his labor and his skill.
17. No kind of labor, tillage, or commerce can be forbidden to the skill of the citizens.
18. Every man can contract his services and his time, but he cannot sell himself nor be sold: his person is not an alienable property. The law knows of no such thing as the status of servant; there can exist only a contract for services and compensation between the man who works and the one who employs him. ”

“ While the law of contract, which regulates only the mutual interests of men, has not varied for centuries (except in certain forms which relate more to the proof than to the character of the obligation) , the civil law of property, which regulates the mutual relations of citizens, has undergone several radical changes, and has kept pace in its variations with all the vicissitudes of society. ”

“ I ask, then, in the first place, how possession can become property by the lapse of time? Continue possession as long as you wish, continue it for years and for centuries, you never can give duration—which of itself creates nothing, changes nothing, modifies nothing—the power to change the usufructuary into a proprietor. Let the civil law secure against chance-comers the honest possessor who has held his position for many years,—that only confirms a right already respected ”

“ The most exact idea of property is given us by the Roman law, faithfully followed in this particular by the ancient legists. It is the absolute, exclusive, autocratic domain of a man over a thing,—a domain which begins by usucaption, is maintained by possession, and finally, by the aid of prescription, finds its sanction in the civil law; a domain which so identifies the man with the thing, that the proprietor can say, “He who uses my field, virtually compels me to labor for him ”

“ Under the laws that at any time exist individuals may acquire property in land, which must be respected by their fellows, and such property, according to its nature, as determined by existing law, they may use or abuse, sell, donate, or devise, substantially as they please. (4) But no property in land can be acquired except subject to the limitation that it may at any time be qualified or destroyed at the will of the legislature, expressed in general laws applying to all the land within the jurisdiction. ”

“ But when the law declares that the lapse of time changes possessor into proprietor, it supposes that a right can be created without a producing cause; it unwarrantably alters the character of the subject; it legislates on a matter not open to legislation; it exceeds its own powers. Public order and private security ask only that possession shall be protected. Why has the law created property? Prescription was simply security for the future; why has the law made it a matter of privilege? ”

“ If labor is identical with occupancy, the only benefit which it secures to the laborer is the right of individual possession of the object of his labor; if it differs from occupancy, it gives birth to a right equal only to itself,—that is, a right which begins, continues, and ends, with the labor of the occupant. It is for this reason, in the words of the law, that one cannot acquire a just title to a thing by labor alone. He must also hold it for a year and a day, in order to be regarded as its possessor; and possess it twenty or thirty years, in order to become its proprietor. ”

“ ILLUSTRATION.—An illustration that gives us the idea of property will make our definition clear. A takes his shoes to a cobbler to be repaired. When he calls for them, he does not have the price for the work, and the cobbler refuses to give them up. Both A and the cobbler have a property right in the shoes. The right to absolute ownership is in A, that is his property right. The temporary possession, however, is in the cobbler, and he may hold the shoes under the lien for repairs indefinitely and until he receives his compensation. The lien is his property right. ”

“ Where these two rights do exist, in their more or less modified form, you have the explanation of the fact that when a married man sells real property, his wife joins in the deed, or when a married woman sells real property, her husband joins in the deed. The act of either in joining, releases the dower or curtesy right and allows the purchaser to get a clear title.
CONFLICT OF LAWS.—We have already referred to this topic. It frequently happens that a person dies owning real property located in a number of States. ”

“ In short, as property is the subject of every equitable obligation, so the owner of property is the only person whose act or acts can be the means of creating an obligation in respect to that property. ”

“ The popular maxim that "possession is nine-tenths of the law," is founded on the salutary and reasonable doctrine of the law, that the party in possession of property is presumed to be the owner until the contrary shall have been proved. ”

“ Jurists do not quite agree as to the full extent of a man’s interest in, and control of, the property he acquires. There are different theories as to the real title to property; most all, however, agree that occupation, united with labor, is the best ground of a title to exclusive ownership of property. But how long will this ownership or control continue? During lifetime, or for a longer period? ”

“ In order that the question of proprietorship may not remain too long unsettled, and thereby injure the public welfare, disturbing the peace of families and the stability of social transactions, the law has fixed a time when all claims shall be cancelled, and possession shall regain its ancient prerogative through its transformation into property. ”

“ Feudal principles apply to real estate. The notions of personal property of the common law, which is founded on natural law, depend materially on possession, and that of an adverse character, exclusive in its nature and pretensions. ”

“ While the Roman law and all the savants inspired by it teach that property in its origin is the right of first occupancy sanctioned by law, the modern legists, dissatisfied with this brutal definition, claim that property is based upon LABOR. Immediately they infer that he who no longer labors, but makes another labor in his stead, loses his right to the earnings of the latter. ”

“ Property in land must be considered, for many purposes, not as an absolute, unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors.... ”

“ Such an author teaches that property is a civil right, born of occupation and sanctioned by law; another maintains that it is a natural right, originating in labor,—and both of these doctrines, totally opposed as they may seem, are encouraged and applauded. I contend that neither labor, nor occupation, nor law, can create property ”

“ On the other hand, it is equally evident that the same proprietors could not overestimate the value of their property, in order to increase their incomes beyond the limits of the law, since the tenants and farmers, with their old leases in their hands, would enter a protest. ”

“ Is a proprietor to be allowed to dispose of his property as he likes among his children (or, if he has none, among others) , making one very rich as compared with the others, or is he to be checked by a law requiring approximately equal inheritance? ”

“ Whatsoever citizens have bought with money for their private use—not for trade, which is under the supervision of the state—all furniture, clothing, jewelry, etc., etc., is, for the same reason, absolute property. ”

“ It is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. ”

“ A proprietor shall have the right to possess, enjoy, and dispose of assets either individually or jointly with others. The inviolability of property and the right to inherit property shall be protected by law. ”

“ There was another sense in which property was said to be according to human law, in distinction to the natural law, namely, in the sense that, whereas the general principle that men should own things might be said to be natural, the particular proprietary rights of each individual were determined by positive law. In other words, the fundamentum of property rights was natural, whereas the titulus of particular property rights was according to positive law. ”

“ PERSONAL PROPERTY AND REAL PROPERTY DISTINGUISHED.—Real property has been defined to be co-extensive with lands, tenements, and hereditaments; to put it more simply, we may say that it consists of land and anything that is permanently affixed to the land. Personal property embraces all objects which are capable of ownership except land. One fundamental difference between the two is that real property is generally considered to be immovable, while such property as is movable is usually termed personal property. ”