But I should be recreant to my method, and the reader would have the right to accuse me of charlatanism and bad faith, if I had nothing further to advance concerning prescription. I showed, in the first place, that appropriation of land is illegal; and that, supposing it to be legal, it must be accompanied by equality of property. I have shown, in the second place, that universal consent proves nothing in favor of property; and that, if it proves anything, it proves equality of property. I have yet to show that prescription, if admissible at all, presupposes equality of property.
This demonstration will be neither long nor difficult. I need only to call attention to the reasons why prescription was introduced.
“Prescription,” says Dunod, “seems repugnant to natural equity, which permits no one either to deprive another of his possessions without his knowledge and consent, or to enrich himself at another’s expense. But as it might often happen, in the absence of prescription, that one who had honestly earned would be ousted after long possession; and even that he who had received a thing from its rightful owner, or who had been legitimately relieved from all obligations, would, on losing his title, be liable to be dispossessed or subjected again—the public welfare demanded that a term should be fixed, after the expiration of which no one should be allowed to disturb actual possessors, or reassert rights too long neglected. … The civil law, in regulating prescription, has aimed, then, only to perfect natural law, and to supplement the law of nations; and as it is founded on the public good, which should always be considered before individual welfare—bono publico usucapio introducta est—it should be regarded with favor, provided the conditions required by the law are fulfilled.”
Toullier, in his “Civil Law,” says: “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.”
Cassiodorus said of property, that it was the only safe harbor in which to seek shelter from the tempests of chicanery and the gales of avarice—Hic unus inter humanas pro cellas portus, quem si homines fervida voluntate praeterierint; in undosis semper jurgiis errabunt.
Thus, in the opinion of the authors, prescription is a means of preserving public order; a restoration in certain cases of the original mode of acquiring property; a fiction of the civil law which derives all its force from the necessity of settling differences which otherwise would never end. For, as Grotius says, time has no power to produce effects; all things happen in time, but nothing is done by time. Prescription, or the right of acquisition through the lapse of time, is, therefore, a fiction of the law, conventionally adopted.
But all property necessarily originated in prescription, or, as the Latins say, in usucapion; that is, in continued possession. 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; and prescription, applied in this way, simply means that possession which has continued for twenty, thirty, or a hundred years shall be retained by the occupant. 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?
Thus the origin of prescription is identical with that of property itself; and since the latter can legitimate itself only when accompanied by equality, prescription is but another of the thousand forms which the necessity of maintaining this precious equality has taken. And this is no vain induction, no farfetched inference. The proof is written in all the codes.
And, indeed, if all nations, through their instinct of justice and their conservative nature, have recognized the utility and the necessity of prescription; and if their design has been to guard thereby the interests of the possessor—could they not do something for the absent citizen, separated from his family and his country by commerce, war, or captivity, and in no position to exercise his right of possession? No. Also, at the same time that prescription was introduced into the laws, it was admitted that property is preserved by intent alone—nudo animo. Now, if property is preserved by intent alone, if it can be lost only by the action of the proprietor, what can be the use of prescription? How does the law dare to presume that the proprietor, who preserves by intent alone, intended to abandon that which he has allowed to be prescribed? What lapse of time can warrant such a conjecture; and by what right does the law punish the absence of the proprietor by depriving him of his goods? What then! we found but a moment since that prescription and property
