What is Property [188]
Why is not an action to acquire possession equally conceivable with an action to be reinstated in possession? When the Roman plebeians demanded a division of the conquered territory; when the proletaires of Lyons took for their motto, _Vivre en travaillant, ou mourir en combattant_ (to live working, or die fighting); when the most enlightened of the modern economists claim for every man the right to labor and to live,--they only propose this interdict, _adipiscendae possessionis_, which embarrasses M. Troplong so seriously. And what is my object in pleading against property, if not to obtain possession? How is it that M. Troplong--the legist, the orator, the philosopher--does not see that logically this interdict must be admitted, since it is the necessary complement of the two others, and the three united form an indivisible trinity,--to RECOVER, to MAINTAIN, to ACQUIRE? To break this series is to create a blank, destroy the natural synthesis of things, and follow the example of the geometrician who tried to conceive of a solid with only two dimensions. But it is not astonishing that M. Troplong rejects the third class of _actions possessoires_, when we consider that he rejects possession itself. He is so completely controlled by his prejudices in this respect, that he is unconsciously led, not to unite (that would be horrible in his eyes), but to identify the _action possessoire_ with the _action petitoire_. This could be easily proved, were it not too tedious to plunge into these metaphysical obscurities.
As an interpreter of the law, M. Troplong is no more successful than as a philosopher. One specimen of his skill in this direction, and I am done with him:--
Code of Civil Procedure, Art. 23: "_Actions possessoires_ are only when commenced within the year of trouble by those who have held possession for at least a year by an irrevocable title."
M. Troplong's comments:--
"Ought we to maintain--as Duparc, Poullain, and Lanjuinais would have us--the rule _spoliatus ante omnia restituendus_, when an individual, who is neither proprietor nor annual possessor, is expelled by a third party, who has no right to the estate? I think not. Art. 23 of the Code is general: it absolutely requires that the plaintiff in _actions possessoires_ shall have been in peaceable possession for a year at least. That is the invariable principle: it can in no case be modified. And why should it be set aside? The plaintiff had no seisin; he had no privileged possession; he had only a temporary occupancy, insufficient to warrant in his favor the presumption of property, which renders the annual possession so valuable. Well! this _ae facto_ occupancy he has lost; another is invested with it: possession is in the hands of this new-comer. Now, is not this a case for the application of the principle, _In_ _pari causa possesser potior habetur_? Should not the actual possessor be preferred to the evicted possessor? Can he not meet the complaint of his adversary by saying to him: `Prove that you were an annual possessor before me, for you are the plaintiff. As far as I am concerned, it is not for me to tell you how I possess, nor how long I have possessed. _Possideo quia possideo_. I have no other reply, no other defence. When you have shown that your action is admissible, then we will see whether you are entitled to lift the veil which hides the origin of my possession.'"
And this is what is honored with the name of jurisprudence and philosophy,--the restoration of force. What! when I have "moulded matter by my labor" [I quote M. Troplong]; when I have "deposited in it a portion of myself" [M. Troplong]; when I have "re-created it by my industry, and set upon it the seal of my intelligence" [M. Troplong],--on the ground that I have not possessed it for a year, a stranger may dispossess me, and the law offers me no protection! And if M. Troplong is my judge, M. Troplong will condemn me! And if I resist my adversary,--if, for this bit of mud which I may call MY FIELD, and of which they wish to rob me, a war
As an interpreter of the law, M. Troplong is no more successful than as a philosopher. One specimen of his skill in this direction, and I am done with him:--
Code of Civil Procedure, Art. 23: "_Actions possessoires_ are only when commenced within the year of trouble by those who have held possession for at least a year by an irrevocable title."
M. Troplong's comments:--
"Ought we to maintain--as Duparc, Poullain, and Lanjuinais would have us--the rule _spoliatus ante omnia restituendus_, when an individual, who is neither proprietor nor annual possessor, is expelled by a third party, who has no right to the estate? I think not. Art. 23 of the Code is general: it absolutely requires that the plaintiff in _actions possessoires_ shall have been in peaceable possession for a year at least. That is the invariable principle: it can in no case be modified. And why should it be set aside? The plaintiff had no seisin; he had no privileged possession; he had only a temporary occupancy, insufficient to warrant in his favor the presumption of property, which renders the annual possession so valuable. Well! this _ae facto_ occupancy he has lost; another is invested with it: possession is in the hands of this new-comer. Now, is not this a case for the application of the principle, _In_ _pari causa possesser potior habetur_? Should not the actual possessor be preferred to the evicted possessor? Can he not meet the complaint of his adversary by saying to him: `Prove that you were an annual possessor before me, for you are the plaintiff. As far as I am concerned, it is not for me to tell you how I possess, nor how long I have possessed. _Possideo quia possideo_. I have no other reply, no other defence. When you have shown that your action is admissible, then we will see whether you are entitled to lift the veil which hides the origin of my possession.'"
And this is what is honored with the name of jurisprudence and philosophy,--the restoration of force. What! when I have "moulded matter by my labor" [I quote M. Troplong]; when I have "deposited in it a portion of myself" [M. Troplong]; when I have "re-created it by my industry, and set upon it the seal of my intelligence" [M. Troplong],--on the ground that I have not possessed it for a year, a stranger may dispossess me, and the law offers me no protection! And if M. Troplong is my judge, M. Troplong will condemn me! And if I resist my adversary,--if, for this bit of mud which I may call MY FIELD, and of which they wish to rob me, a war