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The violation of right lies either in the fact that the holder possesses as proprietor, while he should possess only as usufructuary; or in the fact that he has purchased a thing which no one had a right to transfer or sell.
The great distinguishing mark being that the German usufructuary gentlemen are, in theory at least, gentlemen-adventurers of prowess and proud words, whose place in the world's economy it is to glorify God and disturb the peace; whereas their British analogues are gentlemen-investors, of blameless propriety, whose place it is more simply to glorify God and enjoy Him forever.
This, it is true, was by no means done to the extent to which it might and should have been done; not only was the domain-land occupied from ancient times by private persons not recalled, but further occupations of newly-won land were permitted; and other very important acquisitions, such as the territory of Capua, while not abandoned to occupation, were yet not brought into distribution, but were let on lease as usufructuary domains.
1 A use is a less right than a usufruct; for if a man has a bare use of an estate, he is deemed entitled to use the vegetables, fruit, flowers, hay, straw, and wood upon it only so far as his daily needs require: he may remain on the land only so long as he does not inconvenience its owner, or impede those who are engaged in its cultivation; but he cannot let or sell or give away his right to a third person, whereas a usufructuary may.
1 Freemen also, and the slaves of another person, acquire for you if you possess them in good faith, but only in two cases, namely, when they acquire by their own labour, or in dealing with your property. 2 A usufructuary or usuary slave acquires under the same conditions for him who has the usufruct or use.
Arising out of these feudal relations certain rights over the possessions of ecclesiastics and ecclesiastical bodies were claimed by the Crown, which were the cause of serious oppression. According to the Canon Law, the bishop was only the usufructuary of the lands and revenues belonging to his see. The lands and revenues belonged to the Church.
The tenant, the farmer, the commandite', the usufructuary, are possessors; the owner who lets and lends for use, the heir who is to come into possession on the death of a usufructuary, are proprietors. If I may venture the comparison: a lover is a possessor, a husband is a proprietor.
Now, this is the right of the usufructuary: he is responsible for the thing entrusted to him; he must use it in conformity with general utility, with a view to its preservation and development; he has no power to transform it, to diminish it, or to change its nature; he cannot so divide the usufruct that another shall perform the labor while he receives the product.
In a word, the usufructuary is under the supervision of society, submitted to the condition of labor and the law of equality. Man receives his usufruct from the hands of society, which alone is the permanent possessor. The individual passes away, society is deathless. What a profound disgust fills my soul while discussing such simple truths! Do we doubt these things to-day?
3 Usufruct determines by the death of the usufructuary, by his undergoing either of the greater kinds of loss of status, by its improper exercise, and by its nonexercise during the time fixed by law; all of which points are settled by our constitution.
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