The Philosophy of Law: Supplementary Explanations, VI: On the Right of Usucapion
Referring to § 33, p. 133, it is said that ‘the Right of Usucapion ought to be founded on natural right; for if it were not assumed that an ideal acquisition, as it is here called, is established by bona fide possession, no acquisition would be ever peremptorily secured.’—But I assume a merely provisory acquisition in the state of nature; and, for this reason, insist upon the juridical necessity of the civil constitution.—Further, it is said, ‘I assert myself as bona fide possessor only against any one who cannot prove that he was bona fide possessor of the same thing before me, and who has not ceased by his own will to be such.’ But the question here under consideration is not as to whether I can assert myself as owner of a thing although another should put in a claim as an earlier real owner of it, the cognizance of his existence as possessor and of his possessorship as owner having been absolutely impossible; which case occurs when such a one has given no publicly valid indication of his uninterrupted possession,—whether owing to his own fault or not,—as by Registration in public Records, or uncontested voting as owner of the property in civil Assemblies.
The question really under consideration is this: Who is the party that ought to prove his rightful Acquisition? This obligation as an onus probandi cannot be imposed upon the actual Possessor, for he is in possession of the thing so far back as his authenticated history reaches.
The former alleged owner of it is, however, entirely separated, according to juridical principles, from the series of successive possessors by an interval of time within which he gave no publicly valid indications of his ownership. This intromission or discontinuance of all public posses sory activity reduces him to an untitled claimant. But here, as in theology, the maxim holds that conservatio cst continua creatio. And although a claimant, hitherto unmanifested but now provided with discovered documentary evidence, should afterwards arise, the doubt again would come up with regard to him as to whether a still older claimant might not yet appear and found a claim upon even earlier possession.—Mere length of time in possession effects nothing here in the way of finally acquiring a thing (acquirere per usucapionem). For it is absurd to suppose that what is wrong, by being long continued, would at last become right. The use of the thing, be it ever so long, thus presupposes a Right in it; whereas the latter cannot be founded upon the former. Hence Usucapion, viewed as acquisition of a thing merely by long use of it, is a contradictory conception. The prescription of claims, as a mode of securing possession (conservatio possessionis mece per prcescriptionem), is not less contradictory, although it is a different conception as regards the basis of appropriation. It is in fact a negative Principle; and it takes the complete disuse of a Right, even such as is necessary to manifest possessor-ship, as equivalent to a renunciation of the thing (dere-lictio). But such renunciation is a juridical act, and it implies the use of the Right against another, in order to exclude him by any claim (per perscriptioncm) from acquiring the object; which involves a contradiction. I acquire therefore without probation, and without any juridical act; I do not require to prove, but I acquire by the law (lege). What then do I acquire? The public release from all further claims; that is, the legal security of my possession in virtue of the fact that I do not require to bring forward the proof of it, and may now found upon uninterrupted possession. And the fact that all Acquisition in the state of Nature is merely provisory, has no influence upon the question of Security in the Possession of what has been acquired, this consideration necessarily taking precedence before the former.