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Accordingly, if such a slave is instituted heir, or made legatee or donee, the succession, legacy, or gift is acquired, not for the usufructuary, but for the owner.
I have been ever your man, and counted myself but an usufructuary of myself, the property being yours; and now making myself an oblation to do with me as may best conduce to the honour of your justice, the honour of your mercy, and the use of your service, resting as "Clay in your Majesty's gracious hands, "Fr. St. Aldan, Canc. "March 25, 1621."
38 The usufructuary of a flock, as Julian held, ought to replace any of the animals which die from the young of the rest, and, if his usufruct be of land, to replace dead vines or trees; for it is his duty to cultivate according to law and use them like a careful head of a family.
And it is no objection to this definition that an inheritance comprises things which are corporeal; for the fruits of land enjoyed by a usufructuary are corporeal too, and obligations generally relate to the conveyance of something corporeal, such as land, slaves, or money, and yet the right of succession, the right of usufruct, and the right existing in every obligation, are incorporeal.
Is the right of succession a right of accumulation or only a right of choice? how did the physician's father get his fortune? was he a proprietor, or only a usufructuary? If he was rich, let him account for his wealth; if he was poor, how could he incur so large an expense? If he received aid, what right had he to use that aid to the disadvantage of his benefactors, &c.?
Why offered for sale? Who has a right to sell them? Even were the nation proprietor, can the generation of to-day dispossess the generation of to-morrow? The nation, in its function of usufructuary, possesses them; the government rules, superintends, and protects them. If it also granted lands, it could grant only their use; it has no right to sell them or transfer them in any way whatever.
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.
5 Again, the usufructuary of a female slave, who believes her offspring to be his property, and sells or gives it away, does not commit a theft: for theft implies unlawful intention. 6 There are also other ways in which one man can transfer to another property which is not his own, without committing a theft, and thereby enable the receiver to acquire by usucapion.
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.
And a man who in good faith possesses a free man or a slave belonging to another person has the same rights as a usufructuary; what they acquire by any other mode than the two we have mentioned belongs in the one case to the free man, in the other to the slave's real master.
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