in order to legitimate
dispossession
through prescription, you
suppose faults in the proprietor!
suppose faults in the proprietor!
Proudhon - What is Property? An Inquiry into the Principle of Right and of Government
As is the property of a nation, so is its family,
its marriage, its religion, its civil and military organization, and
its legislative and judicial institutions. History, viewed from this
standpoint, is a grand and sublime psychological study.
Well, sir, in writing against property, have I done more than quote the
language of history? I have said to modern society,--the daughter and
heiress of all preceding societies,--_Age guod agis:_ complete the
task which for six thousand years you have been executing under the
inspiration and by the command of God; hasten to finish your journey;
turn neither to the right nor the left, but follow the road which lies
before you. You seek reason, law, unity, and discipline; but hereafter
you can find them only by stripping off the veils of your infancy, and
ceasing to follow instinct as a guide. Awaken your sleeping conscience;
open your eyes to the pure light of reflection and science; behold the
phantom which troubled your dreams, and so long kept you in a state of
unutterable anguish. Know thyself, O long-deluded society[1] know thy
enemy! . . . And I have denounced property.
We often hear the defenders of the right of domain quote in defence of
their views the testimony of nations and ages. We can judge, from what
has just been said, how far this historical argument conforms to the
real facts and the conclusions of science.
To complete this apology, I must examine the various theories.
Neither politics, nor legislation, nor history, can be explained and
understood, without a positive theory which defines their elements,
and discovers their laws; in short, without a philosophy. Now, the two
principal schools, which to this day divide the attention of the world,
do not satisfy this condition.
The first, essentially PRACTICAL in its character, confined to a
statement of facts, and buried in learning, cares very little by what
laws humanity develops itself. To it these laws are the secret of the
Almighty, which no one can fathom without a commission from on high.
In applying the facts of history to government, this school does not
reason; it does not anticipate; it makes no comparison of the past with
the present, in order to predict the future. In its opinion, the
lessons of experience teach us only to repeat old errors, and its whole
philosophy consists in perpetually retracing the tracks of antiquity,
instead of going straight ahead forever in the direction in which they
point.
The second school may be called either FATALISTIC or PANTHEISTIC. To
it the movements of empires and the revolutions of humanity are the
manifestations, the incarnations, of the Almighty. The human race,
identified with the divine essence, wheels in a circle of appearances,
informations, and destructions, which necessarily excludes the idea of
absolute truth, and destroys providence and liberty.
Corresponding to these two schools of history, there are two schools
of jurisprudence, similarly opposed, and possessed of the same
peculiarities.
1. The practical and conventional school, to which the law is always a
creation of the legislator, an expression of his will, a privilege
which he condescends to grant,--in short, a gratuitous affirmation to be
regarded as judicious and legitimate, no matter what it declares.
2. The fatalistic and pantheistic school, sometimes called the
historical school, which opposes the despotism of the first, and
maintains that law, like literature and religion, is always the
expression of society,--its manifestation, its form, the external
realization of its mobile spirit and its ever-changing inspirations.
Each of these schools, denying the absolute, rejects thereby all
positive and a priori philosophy.
Now, it is evident that the theories of these two schools, whatever view
we take of them, are utterly unsatisfactory: for, opposed, they form no
dilemma,--that is, if one is false, it does not follow that the other
is true; and, united, they do not constitute the truth, since they
disregard the absolute, without which there is no truth. They are
respectively a THESIS and an ANTITHESIS. There remains to be found,
then, a SYNTHESIS, which, predicating the absolute, justifies the will
of the legislator, explains the variations of the law, annihilates
the theory of the circular movement of humanity, and demonstrates its
progress.
The legists, by the very nature of their studies and in spite of their
obstinate prejudices, have been led irresistibly to suspect that the
absolute in the science of law is not as chimerical as is commonly
supposed; and this suspicion arose from their comparison of the various
relations which legislators have been called upon to regulate.
M. Laboulaye, the laureate of the Institute, begins his "History of
Property" with these words:--
"While the law of contract, which regulates only the mutual interests of
men, has not varied for centuries (except in certain forms which relate
more to the proof than to the character of the obligation), the civil
law of property, which regulates the mutual relations of citizens, has
undergone several radical changes, and has kept pace in its variations
with all the vicissitudes of society. The law of contract, which holds
essentially to those principles of eternal justice which are engraven
upon the depths of the human heart, is the immutable element of
jurisprudence, and, in a certain sense, its philosophy. Property, on
the contrary, is the variable element of jurisprudence, its history, its
policy. "
Marvellous! There is in law, and consequently in politics, something
variable and something invariable. The invariable element is obligation,
the bond of justice, duty; the variable element is property,--that is,
the external form of law, the subject-matter of the contract. Whence
it follows that the law can modify, change, reform, and judge property.
Reconcile that, if you can, with the idea of an eternal, absolute,
permanent, and indefectible right.
However, M. Laboulaye is in perfect accord with himself when he adds,
"Possession of the soil rests solely upon force until society takes it
in hand, and espouses the cause of the possessor;" [62] and, a little
farther, "The right of property is not natural, but social. The laws not
only protect property: they give it birth," &c. Now, that which the
law has made the law can unmake; especially since, according to
M. Laboulaye,--an avowed partisan of the historical or pantheistic
school,--the law is not absolute, is not an idea, but a form.
But why is it that property is variable, and, unlike obligation,
incapable of definition and settlement? Before affirming, somewhat
boldly without doubt, that in right there are no absolute principles
(the most dangerous, most immoral, most tyrannical--in a word, most
anti-social--assertion imaginable), it was proper that the right of
property should be subjected to a thorough examination, in order to put
in evidence its variable, arbitrary, and contingent elements, and
those which are eternal, legitimate, and absolute; then, this operation
performed, it became easy to account for the laws, and to correct all
the codes.
Now, this examination of property I claim to have made, and in the
fullest detail; but, either from the public's lack of interest in
an unrecommended and unattractive pamphlet, or--which is more
probable--from the weakness of exposition and want of genius which
characterize the work, the First Memoir on Property passed unnoticed;
scarcely would a few communists, having turned its leaves, deign to
brand it with their disapprobation. You alone, sir, in spite of the
disfavor which I showed for your economical predecessors in too severe
a criticism of them,--you alone have judged me justly; and although I
cannot accept, at least literally, your first judgment, yet it is to
you alone that I appeal from a decision too equivocal to be regarded as
final.
It not being my intention to enter at present into a discussion of
principles, I shall content myself with estimating, from the point of
view of this simple and intelligible absolute, the theories of property
which our generation has produced.
The most exact idea of property is given us by the Roman law, faithfully
followed in this particular by the ancient legists. It is the absolute,
exclusive, autocratic domain of a man over a thing,--a domain which
begins by USUCAPTION, is maintained by POSSESSION, and finally, by the
aid of PRESCRIPTION, finds its sanction in the civil law; a domain which
so identifies the man with the thing, that the proprietor can say, "He
who uses my field, virtually compels me to labor for him; therefore he
owes me compensation. "
I pass in silence the secondary modes by which property can be
acquired,--_tradition, sale, exchange, inheritance_, &c. ,--which have
nothing in common with the origin of property.
Accordingly, Pothier said THE DOMAIN OF PROPERTY, and not simply
PROPERTY. And the most learned writers on jurisprudence--in imitation
of the Roman praetor who recognized a RIGHT OF PROPERTY and a RIGHT
OF POSSESSION--have carefully distinguished between the DOMAIN and the
right of USUFRUCT, USE, and HABITATION, which, reduced to its natural
limits, is the very expression of justice; and which is, in my opinion,
to supplant domanial property, and finally form the basis of all
jurisprudence.
But, sir, admire the clumsiness of systems, or rather the fatality of
logic! While the Roman law and all the savants inspired by it teach that
property in its origin is the right of first occupancy sanctioned by
law, the modern legists, dissatisfied with this brutal definition, claim
that property is based upon LABOR. Immediately they infer that he who no
longer labors, but makes another labor in his stead, loses his right to
the earnings of the latter. It is by virtue of this principle that
the serfs of the middle ages claimed a legal right to property, and
consequently to the enjoyment of political rights; that the clergy were
despoiled in '89 of their immense estates, and were granted a pension
in exchange; that at the restoration the liberal deputies opposed the
indemnity of one billion francs. "The nation," said they, "has acquired
by twenty-five years of labor and possession the property which the
emigrants forfeited by abandonment and long idleness: why should the
nobles be treated with more favor than the priests? " [63]
This position is quite in harmony with my principles, and I heartily
applaud the indignation of M. Lerminier; but I do not know that a
proprietor was ever deprived of his property because UNWORTHY; and as
reasonable, social, and even useful as the thing may seem, it is quite
contrary to the uses and customs of property.
All usurpations, not born of war, have been caused and supported by
labor. All modern history proves this, from the end of the Roman empire
down to the present day. And as if to give a sort of legal sanction to
these usurpations, the doctrine of labor, subversive of property,
is professed at great length in the Roman law under the name of
PRESCRIPTION.
The man who cultivates, it has been said, makes the land his own;
consequently, no more property. This was clearly seen by the old
jurists, who have not failed to denounce this novelty; while on the
other hand the young school hoots at the absurdity of the first-occupant
theory. Others have presented themselves, pretending to reconcile
the two opinions by uniting them. They have failed, like all the
_juste-milieux_ of the world, and are laughed at for their eclecticism.
At present, the alarm is in the camp of the old doctrine; from all sides
pour IN DEFENCES OF PROPERTY, STUDIES REGARDING PROPERTY, THEORIES OF
PROPERTY, each one of which, giving the lie to the rest, inflicts a
fresh wound upon property.
Consider, indeed, the inextricable embarrassments, the contradictions,
the absurdities, the incredible nonsense, in which the bold defenders of
property so lightly involve themselves. I choose the eclectics, because,
those killed, the others cannot survive.
M. Troplong, jurist, passes for a philosopher in the eyes of the editors
of "Le Droit. " I tell the gentlemen of "Le Droit" that, in the judgment
of philosophers, M. Troplong is only an advocate; and I prove my
assertion.
M. Troplong is a defender of progress. "The words of the code," says he,
"are fruitful sap with which the classic works of the eighteenth century
overflow. To wish to suppress them. . . is to violate the law of progress,
and to forget that a science which moves is a science which grows. " [64]
Now, the only mutable and progressive portion of law, as we have already
seen, is that which concerns property. If, then, you ask what reforms
are to be introduced into the right of property? M. Troplong makes no
reply; what progress is to be hoped for? no reply; what is to be the
destiny of property in case of universal association? no reply; what is
the absolute and what the contingent, what the true and what the false,
in property? no reply. M. Troplong favors quiescence and _in statu
quo_ in regard to property. What could be more unphilosophical in a
progressive philosopher?
Nevertheless, M. Troplong has thought about these things. "There are,"
he says, "many weak points and antiquated ideas in the doctrines of
modern authors concerning property: witness the works of MM. Toullier
and Duranton. " The doctrine of M. Troplong promises, then, strong
points, advanced and progressive ideas. Let us see; let us examine:--
"Man, placed in the presence of matter, is conscious of a power over it,
which has been given to him to satisfy the needs of his being. King
of inanimate or unintelligent nature, he feels that he has a right to
modify it, govern it, and fit it for his use. There it is, the subject
of property, which is legitimate only when exercised over things, never
when over persons. "
M. Troplong is so little of a philosopher, that he does not even know
the import of the philosophical terms which he makes a show of using. He
says of matter that it is the SUBJECT of property; he should have said
the OBJECT. M. Troplong uses the language of the anatomists, who apply
the term SUBJECT to the human matter used in their experiments.
This error of our author is repeated farther on: "Liberty, which
overcomes matter, the subject of property, &c. " The SUBJECT of
property is man; its OBJECT is matter. But even this is but a slight
mortification; directly we shall have some crucifixions.
Thus, according to the passage just quoted, it is in the conscience and
personality of man that the principle of property must be sought. Is
there any thing new in this doctrine? Apparently it never has occurred
to those who, since the days of Cicero and Aristotle, and earlier, have
maintained that THINGS BELONG TO THE FIRST OCCUPANT, that occupation may
be exercised by beings devoid of conscience and personality. The human
personality, though it may be the principle or the subject of property,
as matter is the object, is not the CONDITION. Now, it is this condition
which we most need to know. So far, M. Troplong tells us no more than
his masters, and the figures with which he adorns his style add nothing
to the old idea.
Property, then, implies three terms: The subject, the object, and the
condition. There is no difficulty in regard to the first two terms. As
to the third, the condition of property down to this day, for the Greek
as for the Barbarian, has been that of first occupancy. What now would
you have it, progressive doctor?
"When man lays hands for the first time upon an object without a
master, he performs an act which, among individuals, is of the greatest
importance. The thing thus seized and occupied participates, so to
speak, in the personality of him who holds it. It becomes sacred, like
himself. It is impossible to take it without doing violence to his
liberty, or to remove it without rashly invading his person. Diogenes
did but express this truth of intuition, when he said: 'Stand out of my
light! '"
Very good! but would the prince of cynics, the very personal and very
haughty Diogenes, have had the right to charge another cynic, as rent
for this same place in the sunshine, a bone for twenty-four hours of
possession? It is that which constitutes the proprietor; it is that
which you fail to justify. In reasoning from the human personality and
individuality to the right of property, you unconsciously construct
a syllogism in which the conclusion includes more than the premises,
contrary to the rules laid down by Aristotle. The individuality of
the human person proves INDIVIDUAL POSSESSION, originally called
_proprietas_, in opposition to collective possession, _communio_.
It gives birth to the distinction between THINE and MINE, true signs
of equality, not, by any means, of subordination. "From equivocation to
equivocation," says M. Michelet, [65] "property would crawl to the end
of the world; man could not limit it, were not he himself its limit.
Where they clash, there will be its frontier. " In short, individuality
of being destroys the hypothesis of communism, but it does not for that
reason give birth to domain,--that domain by virtue of which the holder
of a thing exercises over the person who takes his place a right of
prestation and suzerainty, that has always been identified with property
itself.
Further, that he whose legitimately acquired possession injures nobody
cannot be nonsuited without flagrant injustice, is a truth, not of
INTUITION, as M. Troplong says, but of INWARD SENSATION, [66] which has
nothing to do with property.
M. Troplong admits, then, occupancy as a condition of property. In that,
he is in accord with the Roman law, in accord with MM. Toullier and
Duranton; but in his opinion this condition is not the only one, and it
is in this particular that his doctrine goes beyond theirs.
"But, however exclusive the right arising from sole occupancy, does it
not become still more so, when man has moulded matter by his labor;
when he has deposited in it a portion of himself, re-creating it by his
industry, and setting upon it the seal of his intelligence and activity?
Of all conquests, that is the most legitimate, for it is the price of
labor.
"He who should deprive a man of the thing thus remodelled, thus
humanized, would invade the man himself, and would inflict the deepest
wounds upon his liberty. "
I pass over the very beautiful explanations in which M. Troplong,
discussing labor and industry, displays the whole wealth of his
eloquence. M. Troplong is not only a philosopher, he is an orator, an
artist. HE ABOUNDS WITH APPEALS TO THE CONSCIENCE AND THE PASSIONS. I
might make sad work of his rhetoric, should I undertake to dissect it;
but I confine myself for the present to his philosophy.
If M. Troplong had only known how to think and reflect, before
abandoning the original fact of occupancy and plunging into the theory
of labor, he would have asked himself: "What is it to occupy? " And he
would have discovered that OCCUPANCY is only a generic term by which
all modes of possession are expressed,--seizure, station, immanence,
habitation, cultivation, use, consumption, &c. ; that labor,
consequently, is but one of a thousand forms of occupancy. He would have
understood, finally, that the right of possession which is born of labor
is governed by the same general laws as that which results from the
simple seizure of things. What kind of a legist is he who declaims when
he ought to reason, who continually mistakes his metaphors for legal
axioms, and who does not so much as know how to obtain a universal by
induction, and form a category?
If labor is identical with occupancy, the only benefit which it secures
to the laborer is the right of individual possession of the object of
his labor; if it differs from occupancy, it gives birth to a right equal
only to itself,--that is, a right which begins, continues, and ends,
with the labor of the occupant. It is for this reason, in the words of
the law, that one cannot acquire a just title to a thing by labor alone.
He must also hold it for a year and a day, in order to be regarded as
its possessor; and possess it twenty or thirty years, in order to become
its proprietor.
These preliminaries established, M. Troplong's whole structure falls of
its own weight, and the inferences, which he attempts to draw, vanish.
"Property once acquired by occupation and labor, it naturally preserves
itself, not only by the same means, but also by the refusal of the
holder to abdicate; for from the very fact that it has risen to the
height of a right, it is its nature to perpetuate itself and to last for
an indefinite period. . . . Rights, considered from an ideal point of
view, are imperishable and eternal; and time, which affects only the
contingent, can no more disturb them than it can injure God himself. "
It is astonishing that our author, in speaking of the IDEAL, TIME, and
ETERNITY, did not work into his sentence the DIVINE WINGS of Plato,--so
fashionable to-day in philosophical works.
With the exception of falsehood, I hate nonsense more than any thing
else in the world. PROPERTY ONCE ACQUIRED! Good, if it is acquired; but,
as it is not acquired, it cannot be preserved. RIGHTS ARE ETERNAL! Yes,
in the sight of God, like the archetypal ideas of the Platonists. But,
on the earth, rights exist only in the presence of a subject, an object,
and a condition. Take away one of these three things, and rights no
longer exist. Thus, individual possession ceases at the death of the
subject, upon the destruction of the object, or in case of exchange or
abandonment.
Let us admit, however, with M. Troplong, that property is an absolute
and eternal right, which cannot be destroyed save by the deed and at
the will of the proprietor. What are the consequences which immediately
follow from this position?
To show the justice and utility of prescription, M. Troplong supposes
the case of a bona fide possessor whom a proprietor, long since
forgotten or even unknown, is attempting to eject from his possession.
"At the start, the error of the possessor was excusable but not
irreparable. Pursuing its course and growing old by degrees, it has
so completely clothed itself in the colors of truth, it has spoken
so loudly the language of right, it has involved so many confiding
interests, that it fairly may be asked whether it would not cause
greater confusion to go back to the reality than to sanction the
fictions which it (an error, without doubt) has sown on its way? Well,
yes; it must be confessed, without hesitation, that the remedy would
prove worse than the disease, and that its application would lead to the
most outrageous injustice. "
How long since utility became a principle of law? When the Athenians, by
the advice of Aristides, rejected a proposition eminently advantageous
to their republic, but also utterly unjust, they showed finer moral
perception and greater clearness of intellect than M. Troplong. Property
is an eternal right, independent of time, indestructible except by the
act and at the will of the proprietor; and here this right is taken from
the proprietor, and on what ground? Good God! on the ground of ABSENCE!
Is it not true that legists are governed by caprice in giving and taking
away rights? When it pleases these gentlemen, idleness, unworthiness, or
absence can invalidate a right which, under quite similar circumstances,
labor, residence, and virtue are inadequate to obtain. Do not be
astonished that legists reject the absolute. Their good pleasure is law,
and their disordered imaginations are the real cause of the EVOLUTIONS
in jurisprudence.
"If the nominal proprietor should plead ignorance, his claim would be
none the more valid. Indeed, his ignorance might arise from inexcusable
carelessness, etc. "
What!
in order to legitimate dispossession through prescription, you
suppose faults in the proprietor! You blame his absence,--which may
have been involuntary; his neglect,--not knowing what caused it; his
carelessness,--a gratuitous supposition of your own! It is absurd. One
very simple observation suffices to annihilate this theory. Society,
which, they tell us, makes an exception in the interest of order in
favor of the possessor as against the old proprietor, owes the latter
an indemnity; since the privilege of prescription is nothing but
expropriation for the sake of public utility.
But here is something stronger:--
"In society a place cannot remain vacant with impunity. A new man arises
in place of the old one who disappears or goes away; he brings here his
existence, becomes entirely absorbed, and devotes himself to this post
which he finds abandoned. Shall the deserter, then, dispute the honor of
the victory with the soldier who fights with the sweat standing on his
brow, and bears the burden of the day, in behalf of a cause which he
deems just? "
When the tongue of an advocate once gets in motion, who can tell where
it will stop? M. Troplong admits and justifies usurpation in case of
the ABSENCE of the proprietor, and on a mere presumption of his
CARELESSNESS. But when the neglect is authenticated; when the
abandonment is solemnly and voluntarily set forth in a contract in the
presence of a magistrate; when the proprietor dares to say, "I cease to
labor, but I still claim a share of the product,"--then the absentee's
right of property is protected; the usurpation of the possessor would
be criminal; farm-rent is the reward of idleness. Where is, I do not say
the consistency, but, the honesty of this law?
Prescription is a result of the civil law, a creation of the legislator.
Why has not the legislator fixed the conditions differently? --why,
instead of twenty and thirty years, is not a single year sufficient to
prescribe? --why are not voluntary absence and confessed idleness as good
grounds for dispossession as involuntary absence, ignorance, or apathy?
But in vain should we ask M. Troplong, the philosopher, to tell us
the ground of prescription. Concerning the code, M. Troplong does not
reason. "The interpreter," he says, "must take things as they are,
society as it exists, laws as they are made: that is the only sensible
starting-point. " Well, then, write no more books; cease to reproach your
predecessors--who, like you, have aimed only at interpretation of the
law--for having remained in the rear; talk no more of philosophy and
progress, for the lie sticks in your throat.
M. Troplong denies the reality of the right of possession; he denies
that possession has ever existed as a principle of society; and he
quotes M. de Savigny, who holds precisely the opposite position, and
whom he is content to leave unanswered. At one time, M. Troplong asserts
that possession and property are CONTEMPORANEOUS, and that they exist AT
THE SAME TIME, which implies that the RIGHT of property is based on the
FACT of possession,--a conclusion which is evidently absurd; at
another, he denies that possession HAD ANY HISTORICAL EXISTENCE PRIOR
TO PROPERTY,--an assertion which is contradicted by the customs of many
nations which cultivate the land without appropriating it; by the Roman
law, which distinguished so clearly between POSSESSION and PROPERTY; and
by our code itself, which makes possession for twenty or thirty years
the condition of property. Finally, M. Troplong goes so far as to
maintain that the Roman maxim, _Nihil comune habet proprietas cum
possessione_--which contains so striking an allusion to the possession
of the _ager publicus_, and which, sooner or later, will be again
accepted without qualification--expresses in French law only a judicial
axiom, a simple rule forbidding the union of an _action possessoire_
with an _action petitoire_,--an opinion as retrogressive as it is
unphilosophical.
In treating of _actions possessoires_, M. Troplong is so unfortunate or
awkward that he mutilates economy through failure to grasp its
meaning "Just as property," he writes, "gave rise to the action for
revendication, so possession--the _jus possessionis_--was the cause
of possessory interdicts. . . . There were two kinds of interdicts,--the
interdict _recuperandae possessionis_, and the interdict _retinendae
possessionis_,--which correspond to our _complainte en cas de saisine
et nouvelete_. There is also a third,--_adipiscendae possessionis_,--of
which the Roman law-books speak in connection with the two others.
But, in reality, this interdict is not possessory: for he who wishes
to acquire possession by this means does not possess, and has not
possessed; and yet acquired possession is the condition of possessory
interdicts. " 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 breaks out between the two
competitors,--the legislator will gravely wait until the stronger,
having killed the other, has had possession for a year! No, no, Monsieur
Troplong! you do not understand the words of the law; for I prefer
to call in question your intelligence rather than the justice of the
legislator. You are mistaken in your application of the principle, _In
pari causa possessor potior habetur:_ the actuality of possession here
refers to him who possessed at the time when the difficulty arose, not
to him who possesses at the time of the complaint. And when the code
prohibits the reception of _actions possessoires_, in cases where the
possession is not of a year's duration, it simply means that if, before
a year has elapsed, the holder relinquishes possession, and ceases
actually to occupy _in propria persona_, he cannot avail himself of an
_action possessoire_ against his successor. In a word, the code treats
possession of less than a year as it ought to treat all possession,
however long it has existed,--that is, the condition of property ought
to be, not merely seisin for a year, but perpetual seisin.
I will not pursue this analysis farther. When an author bases two
volumes of quibbles on foundations so uncertain, it may be boldly
declared that his work, whatever the amount of learning displayed in it,
is a mess of nonsense unworthy a critic's attention.
At this point, sir, I seem to hear you reproaching me for this conceited
dogmatism, this lawless arrogance, which respects nothing, claims a
monopoly of justice and good sense, and assumes to put in the pillory
any one who dares to maintain an opinion contrary to its own. This
fault, they tell me, more odious than any other in an author, was too
prominent a characteristic of my First Memoir, and I should do well to
correct it.
It is important to the success of my defence, that I should vindicate
myself from this reproach; and since, while perceiving in myself other
faults of a different character, I still adhere in this particular to
my disputatious style, it is right that I should give my reasons for my
conduct. I act, not from inclination, but from necessity.
I say, then, that I treat my authors as I do for two reasons: a REASON
OF RIGHT, and a REASON OF INTENTION; both peremptory.
1. Reason of right. When I preach equality of fortunes, I do not advance
an opinion more or less probable, a utopia more or less ingenious, an
idea conceived within my brain by means of imagination only. I lay down
an absolute truth, concerning which hesitation is impossible, modesty
superfluous, and doubt ridiculous.
But, do you ask, what assures me that that which I utter is true?
What assures me, sir? The logical and metaphysical processes which I
use, the correctness of which I have demonstrated by a priori reasoning;
the fact that I possess an infallible method of investigation and
verification with which my authors are unacquainted; and finally, the
fact that for all matters relating to property and justice I have found
a formula which explains all legislative variations, and furnishes a
key for all problems. Now, is there so much as a shadow of method in M.
Toullier, M. Troplong, and this swarm of insipid commentators, almost
as devoid of reason and moral sense as the code itself? Do you give the
name of method to an alphabetical, chronological, analogical, or merely
nominal classification of subjects? Do you give the name of method
to these lists of paragraphs gathered under an arbitrary head, these
sophistical vagaries, this mass of contradictory quotations and
opinions, this nauseous style, this spasmodic rhetoric, models of which
are so common at the bar, though seldom found elsewhere? Do you take for
philosophy this twaddle, this intolerable pettifoggery adorned with a
few scholastic trimmings? No, no! a writer who respects himself, never
will consent to enter the balance with these manipulators of law,
misnamed JURISTS; and for my part I object to a comparison.
2. Reason of intention. As far as I am permitted to divulge this secret,
I am a conspirator in an immense revolution, terrible to charlatans and
despots, to all exploiters of the poor and credulous, to all salaried
idlers, dealers in political panaceas and parables, tyrants in a word of
thought and of opinion. I labor to stir up the reason of individuals to
insurrection against the reason of authorities.
According to the laws of the society of which I am a member, all the
evils which afflict humanity arise from faith in external teachings and
submission to authority. And not to go outside of our own century, is
it not true, for instance, that France is plundered, scoffed at, and
tyrannized over, because she speaks in masses, and not by heads? The
French people are penned up in three or four flocks, receiving their
signal from a chief, responding to the voice of a leader, and thinking
just as he says. A certain journal, it is said, has fifty thousand
subscribers; assuming six readers to every subscriber, we have three
hundred thousand sheep browsing and bleating at the same cratch. Apply
this calculation to the whole periodical press, and you find that, in
our free and intelligent France, there are two millions of creatures
receiving every morning from the journals spiritual pasturage. Two
millions! In other words, the entire nation allows a score of little
fellows to lead it by the nose.
By no means, sir, do I deny to journalists talent, science, love
of truth, patriotism, and what you please. They are very worthy and
intelligent people, whom I undoubtedly should wish to resemble, had I
the honor to know them. That of which I complain, and that which has
made me a conspirator, is that, instead of enlightening us, these
gentlemen command us, impose upon us articles of faith, and that without
demonstration or verification. When, for example, I ask why these
fortifications of Paris, which, in former times, under the influence
of certain prejudices, and by means of a concurrence of extraordinary
circumstances supposed for the sake of the argument to have existed, may
perhaps have served to protect us, but which it is doubtful whether
our descendants will ever use,--when I ask, I say, on what grounds they
assimilate the future to a hypothetical past, they reply that M.
Thiers, who has a great mind, has written upon this subject a report of
admirable elegance and marvellous clearness. At this I become angry, and
reply that M. Thiers does not know what he is talking about. Why, having
wanted no detached forts seven years ago, do we want them to-day?
"Oh! damn it," they say, "the difference is great; the first forts
were too near to us; with these we cannot be bombarded. " You cannot be
bombarded; but you can be blockaded, and will be, if you stir. What! to
obtain blockade forts from the Parisians, it has sufficed to prejudice
them against bombardment forts! And they thought to outwit the
government! Oh, the sovereignty of the people! . . .
"Damn it! M. Thiers, who is wiser than you, says that it would be absurd
to suppose a government making war upon citizens, and maintaining itself
by force and in spite of the will of the people. That would be absurd! "
Perhaps so: such a thing has happened more than once, and may happen
again. Besides, when despotism is strong, it appears almost legitimate.
However that may be, they lied in 1833, and they lie again in
1841,--those who threaten us with the bomb-shell. And then, if M. Thiers
is so well assured of the intentions of the government, why does he not
wish the forts to be built before the circuit is extended? Why this
air of suspicion of the government, unless an intrigue has been planned
between the government and M. Thiers?
"Damn it! we do not wish to be again invaded. If Paris had been
fortified in 1815, Napoleon would not have been conquered! " But I tell
you that Napoleon was not conquered, but sold; and that if, in 1815,
Paris had had fortifications, it would have been with them as with the
thirty thousand men of Grouchy, who were misled during the battle. It is
still easier to surrender forts than to lead soldiers. Would the selfish
and the cowardly ever lack reasons for yielding to the enemy?
"But do you not see that the absolutist courts are provoked at our
fortifications? --a proof that they do not think as you do. " You believe
that; and, for my part, I believe that in reality they are quite at ease
about the matter; and, if they appear to tease our ministers, they do so
only to give the latter an opportunity to decline. The absolutist courts
are always on better terms with our constitutional monarchy, than
our monarchy with us. Does not M. Guizot say that France needs to
be defended within as well as without? Within! against whom? Against
France. O Parisians! it is but six months since you demanded war, and
now you want only barricades. Why should the allies fear your doctrines,
when you cannot even control yourselves? . . . How could you sustain a
siege, when you weep over the absence of an actress?
"But, finally, do you not understand that, by the rules of modern
warfare, the capital of a country is always the objective point of its
assailants? Suppose our army defeated on the Rhine, France invaded, and
defenceless Paris falling into the hands of the enemy. It would be the
death of the administrative power; without a head it could not live. The
capital taken, the nation must submit. What do you say to that? "
The reply is very simple. Why is society constituted in such a way that
the destiny of the country depends upon the safety of the capital?
Why, in case our territory be invaded and Paris besieged, cannot the
legislative, executive, and military powers act outside of Paris? Why
this localization of all the vital forces of France? . . . Do not cry out
upon decentralization. This hackneyed reproach would discredit only
your own intelligence and sincerity. It is not a question of
decentralization; it is your political fetichism which I attack. Why
should the national unity be attached to a certain place, to certain
functionaries, to certain bayonets? Why should the Place Maubert and the
Palace of the Tuileries be the palladium of France?
Now let me make an hypothesis.
Suppose it were written in the charter, "In case the country be again
invaded, and Paris forced to surrender, the government being annihilated
and the national assembly dissolved, the electoral colleges shall
reassemble spontaneously and without other official notice, for the
purpose of appointing new deputies, who shall organize a provisional
government at Orleans.
"If Orleans succumbs, the government shall reconstruct itself in the same
way at Lyons; then at Bordeaux, then at Bayonne, until all France be
captured or the enemy driven from the land. For the government may
perish, but the nation never dies. The king, the peers, and the deputies
massacred, VIVE LA FRANCE! "
Do you not think that such an addition to the charter would be a better
safeguard for the liberty and integrity of the country than walls and
bastions around Paris? Well, then! do henceforth for administration,
industry, science, literature, and art that which the charter ought
to prescribe for the central government and common defence. Instead of
endeavoring to render Paris impregnable, try rather to render the loss
of Paris an insignificant matter. Instead of accumulating about one
point academies, faculties, schools, and political, administrative,
and judicial centres; instead of arresting intellectual development
and weakening public spirit in the provinces by this fatal
agglomeration,--can you not, without destroying unity, distribute social
functions among places as well as among persons? Such a system--in
allowing each province to participate in political power and action, and
in balancing industry, intelligence, and strength in all parts of the
country--would equally secure, against enemies at home and enemies
abroad, the liberty of the people and the stability of the government.
Discriminate, then, between the centralization of functions and the
concentration of organs; between political unity and its material
symbol.
"Oh! that is plausible; but it is impossible! "--which means that the
city of Paris does not intend to surrender its privileges, and that
there it is still a question of property.
its marriage, its religion, its civil and military organization, and
its legislative and judicial institutions. History, viewed from this
standpoint, is a grand and sublime psychological study.
Well, sir, in writing against property, have I done more than quote the
language of history? I have said to modern society,--the daughter and
heiress of all preceding societies,--_Age guod agis:_ complete the
task which for six thousand years you have been executing under the
inspiration and by the command of God; hasten to finish your journey;
turn neither to the right nor the left, but follow the road which lies
before you. You seek reason, law, unity, and discipline; but hereafter
you can find them only by stripping off the veils of your infancy, and
ceasing to follow instinct as a guide. Awaken your sleeping conscience;
open your eyes to the pure light of reflection and science; behold the
phantom which troubled your dreams, and so long kept you in a state of
unutterable anguish. Know thyself, O long-deluded society[1] know thy
enemy! . . . And I have denounced property.
We often hear the defenders of the right of domain quote in defence of
their views the testimony of nations and ages. We can judge, from what
has just been said, how far this historical argument conforms to the
real facts and the conclusions of science.
To complete this apology, I must examine the various theories.
Neither politics, nor legislation, nor history, can be explained and
understood, without a positive theory which defines their elements,
and discovers their laws; in short, without a philosophy. Now, the two
principal schools, which to this day divide the attention of the world,
do not satisfy this condition.
The first, essentially PRACTICAL in its character, confined to a
statement of facts, and buried in learning, cares very little by what
laws humanity develops itself. To it these laws are the secret of the
Almighty, which no one can fathom without a commission from on high.
In applying the facts of history to government, this school does not
reason; it does not anticipate; it makes no comparison of the past with
the present, in order to predict the future. In its opinion, the
lessons of experience teach us only to repeat old errors, and its whole
philosophy consists in perpetually retracing the tracks of antiquity,
instead of going straight ahead forever in the direction in which they
point.
The second school may be called either FATALISTIC or PANTHEISTIC. To
it the movements of empires and the revolutions of humanity are the
manifestations, the incarnations, of the Almighty. The human race,
identified with the divine essence, wheels in a circle of appearances,
informations, and destructions, which necessarily excludes the idea of
absolute truth, and destroys providence and liberty.
Corresponding to these two schools of history, there are two schools
of jurisprudence, similarly opposed, and possessed of the same
peculiarities.
1. The practical and conventional school, to which the law is always a
creation of the legislator, an expression of his will, a privilege
which he condescends to grant,--in short, a gratuitous affirmation to be
regarded as judicious and legitimate, no matter what it declares.
2. The fatalistic and pantheistic school, sometimes called the
historical school, which opposes the despotism of the first, and
maintains that law, like literature and religion, is always the
expression of society,--its manifestation, its form, the external
realization of its mobile spirit and its ever-changing inspirations.
Each of these schools, denying the absolute, rejects thereby all
positive and a priori philosophy.
Now, it is evident that the theories of these two schools, whatever view
we take of them, are utterly unsatisfactory: for, opposed, they form no
dilemma,--that is, if one is false, it does not follow that the other
is true; and, united, they do not constitute the truth, since they
disregard the absolute, without which there is no truth. They are
respectively a THESIS and an ANTITHESIS. There remains to be found,
then, a SYNTHESIS, which, predicating the absolute, justifies the will
of the legislator, explains the variations of the law, annihilates
the theory of the circular movement of humanity, and demonstrates its
progress.
The legists, by the very nature of their studies and in spite of their
obstinate prejudices, have been led irresistibly to suspect that the
absolute in the science of law is not as chimerical as is commonly
supposed; and this suspicion arose from their comparison of the various
relations which legislators have been called upon to regulate.
M. Laboulaye, the laureate of the Institute, begins his "History of
Property" with these words:--
"While the law of contract, which regulates only the mutual interests of
men, has not varied for centuries (except in certain forms which relate
more to the proof than to the character of the obligation), the civil
law of property, which regulates the mutual relations of citizens, has
undergone several radical changes, and has kept pace in its variations
with all the vicissitudes of society. The law of contract, which holds
essentially to those principles of eternal justice which are engraven
upon the depths of the human heart, is the immutable element of
jurisprudence, and, in a certain sense, its philosophy. Property, on
the contrary, is the variable element of jurisprudence, its history, its
policy. "
Marvellous! There is in law, and consequently in politics, something
variable and something invariable. The invariable element is obligation,
the bond of justice, duty; the variable element is property,--that is,
the external form of law, the subject-matter of the contract. Whence
it follows that the law can modify, change, reform, and judge property.
Reconcile that, if you can, with the idea of an eternal, absolute,
permanent, and indefectible right.
However, M. Laboulaye is in perfect accord with himself when he adds,
"Possession of the soil rests solely upon force until society takes it
in hand, and espouses the cause of the possessor;" [62] and, a little
farther, "The right of property is not natural, but social. The laws not
only protect property: they give it birth," &c. Now, that which the
law has made the law can unmake; especially since, according to
M. Laboulaye,--an avowed partisan of the historical or pantheistic
school,--the law is not absolute, is not an idea, but a form.
But why is it that property is variable, and, unlike obligation,
incapable of definition and settlement? Before affirming, somewhat
boldly without doubt, that in right there are no absolute principles
(the most dangerous, most immoral, most tyrannical--in a word, most
anti-social--assertion imaginable), it was proper that the right of
property should be subjected to a thorough examination, in order to put
in evidence its variable, arbitrary, and contingent elements, and
those which are eternal, legitimate, and absolute; then, this operation
performed, it became easy to account for the laws, and to correct all
the codes.
Now, this examination of property I claim to have made, and in the
fullest detail; but, either from the public's lack of interest in
an unrecommended and unattractive pamphlet, or--which is more
probable--from the weakness of exposition and want of genius which
characterize the work, the First Memoir on Property passed unnoticed;
scarcely would a few communists, having turned its leaves, deign to
brand it with their disapprobation. You alone, sir, in spite of the
disfavor which I showed for your economical predecessors in too severe
a criticism of them,--you alone have judged me justly; and although I
cannot accept, at least literally, your first judgment, yet it is to
you alone that I appeal from a decision too equivocal to be regarded as
final.
It not being my intention to enter at present into a discussion of
principles, I shall content myself with estimating, from the point of
view of this simple and intelligible absolute, the theories of property
which our generation has produced.
The most exact idea of property is given us by the Roman law, faithfully
followed in this particular by the ancient legists. It is the absolute,
exclusive, autocratic domain of a man over a thing,--a domain which
begins by USUCAPTION, is maintained by POSSESSION, and finally, by the
aid of PRESCRIPTION, finds its sanction in the civil law; a domain which
so identifies the man with the thing, that the proprietor can say, "He
who uses my field, virtually compels me to labor for him; therefore he
owes me compensation. "
I pass in silence the secondary modes by which property can be
acquired,--_tradition, sale, exchange, inheritance_, &c. ,--which have
nothing in common with the origin of property.
Accordingly, Pothier said THE DOMAIN OF PROPERTY, and not simply
PROPERTY. And the most learned writers on jurisprudence--in imitation
of the Roman praetor who recognized a RIGHT OF PROPERTY and a RIGHT
OF POSSESSION--have carefully distinguished between the DOMAIN and the
right of USUFRUCT, USE, and HABITATION, which, reduced to its natural
limits, is the very expression of justice; and which is, in my opinion,
to supplant domanial property, and finally form the basis of all
jurisprudence.
But, sir, admire the clumsiness of systems, or rather the fatality of
logic! While the Roman law and all the savants inspired by it teach that
property in its origin is the right of first occupancy sanctioned by
law, the modern legists, dissatisfied with this brutal definition, claim
that property is based upon LABOR. Immediately they infer that he who no
longer labors, but makes another labor in his stead, loses his right to
the earnings of the latter. It is by virtue of this principle that
the serfs of the middle ages claimed a legal right to property, and
consequently to the enjoyment of political rights; that the clergy were
despoiled in '89 of their immense estates, and were granted a pension
in exchange; that at the restoration the liberal deputies opposed the
indemnity of one billion francs. "The nation," said they, "has acquired
by twenty-five years of labor and possession the property which the
emigrants forfeited by abandonment and long idleness: why should the
nobles be treated with more favor than the priests? " [63]
This position is quite in harmony with my principles, and I heartily
applaud the indignation of M. Lerminier; but I do not know that a
proprietor was ever deprived of his property because UNWORTHY; and as
reasonable, social, and even useful as the thing may seem, it is quite
contrary to the uses and customs of property.
All usurpations, not born of war, have been caused and supported by
labor. All modern history proves this, from the end of the Roman empire
down to the present day. And as if to give a sort of legal sanction to
these usurpations, the doctrine of labor, subversive of property,
is professed at great length in the Roman law under the name of
PRESCRIPTION.
The man who cultivates, it has been said, makes the land his own;
consequently, no more property. This was clearly seen by the old
jurists, who have not failed to denounce this novelty; while on the
other hand the young school hoots at the absurdity of the first-occupant
theory. Others have presented themselves, pretending to reconcile
the two opinions by uniting them. They have failed, like all the
_juste-milieux_ of the world, and are laughed at for their eclecticism.
At present, the alarm is in the camp of the old doctrine; from all sides
pour IN DEFENCES OF PROPERTY, STUDIES REGARDING PROPERTY, THEORIES OF
PROPERTY, each one of which, giving the lie to the rest, inflicts a
fresh wound upon property.
Consider, indeed, the inextricable embarrassments, the contradictions,
the absurdities, the incredible nonsense, in which the bold defenders of
property so lightly involve themselves. I choose the eclectics, because,
those killed, the others cannot survive.
M. Troplong, jurist, passes for a philosopher in the eyes of the editors
of "Le Droit. " I tell the gentlemen of "Le Droit" that, in the judgment
of philosophers, M. Troplong is only an advocate; and I prove my
assertion.
M. Troplong is a defender of progress. "The words of the code," says he,
"are fruitful sap with which the classic works of the eighteenth century
overflow. To wish to suppress them. . . is to violate the law of progress,
and to forget that a science which moves is a science which grows. " [64]
Now, the only mutable and progressive portion of law, as we have already
seen, is that which concerns property. If, then, you ask what reforms
are to be introduced into the right of property? M. Troplong makes no
reply; what progress is to be hoped for? no reply; what is to be the
destiny of property in case of universal association? no reply; what is
the absolute and what the contingent, what the true and what the false,
in property? no reply. M. Troplong favors quiescence and _in statu
quo_ in regard to property. What could be more unphilosophical in a
progressive philosopher?
Nevertheless, M. Troplong has thought about these things. "There are,"
he says, "many weak points and antiquated ideas in the doctrines of
modern authors concerning property: witness the works of MM. Toullier
and Duranton. " The doctrine of M. Troplong promises, then, strong
points, advanced and progressive ideas. Let us see; let us examine:--
"Man, placed in the presence of matter, is conscious of a power over it,
which has been given to him to satisfy the needs of his being. King
of inanimate or unintelligent nature, he feels that he has a right to
modify it, govern it, and fit it for his use. There it is, the subject
of property, which is legitimate only when exercised over things, never
when over persons. "
M. Troplong is so little of a philosopher, that he does not even know
the import of the philosophical terms which he makes a show of using. He
says of matter that it is the SUBJECT of property; he should have said
the OBJECT. M. Troplong uses the language of the anatomists, who apply
the term SUBJECT to the human matter used in their experiments.
This error of our author is repeated farther on: "Liberty, which
overcomes matter, the subject of property, &c. " The SUBJECT of
property is man; its OBJECT is matter. But even this is but a slight
mortification; directly we shall have some crucifixions.
Thus, according to the passage just quoted, it is in the conscience and
personality of man that the principle of property must be sought. Is
there any thing new in this doctrine? Apparently it never has occurred
to those who, since the days of Cicero and Aristotle, and earlier, have
maintained that THINGS BELONG TO THE FIRST OCCUPANT, that occupation may
be exercised by beings devoid of conscience and personality. The human
personality, though it may be the principle or the subject of property,
as matter is the object, is not the CONDITION. Now, it is this condition
which we most need to know. So far, M. Troplong tells us no more than
his masters, and the figures with which he adorns his style add nothing
to the old idea.
Property, then, implies three terms: The subject, the object, and the
condition. There is no difficulty in regard to the first two terms. As
to the third, the condition of property down to this day, for the Greek
as for the Barbarian, has been that of first occupancy. What now would
you have it, progressive doctor?
"When man lays hands for the first time upon an object without a
master, he performs an act which, among individuals, is of the greatest
importance. The thing thus seized and occupied participates, so to
speak, in the personality of him who holds it. It becomes sacred, like
himself. It is impossible to take it without doing violence to his
liberty, or to remove it without rashly invading his person. Diogenes
did but express this truth of intuition, when he said: 'Stand out of my
light! '"
Very good! but would the prince of cynics, the very personal and very
haughty Diogenes, have had the right to charge another cynic, as rent
for this same place in the sunshine, a bone for twenty-four hours of
possession? It is that which constitutes the proprietor; it is that
which you fail to justify. In reasoning from the human personality and
individuality to the right of property, you unconsciously construct
a syllogism in which the conclusion includes more than the premises,
contrary to the rules laid down by Aristotle. The individuality of
the human person proves INDIVIDUAL POSSESSION, originally called
_proprietas_, in opposition to collective possession, _communio_.
It gives birth to the distinction between THINE and MINE, true signs
of equality, not, by any means, of subordination. "From equivocation to
equivocation," says M. Michelet, [65] "property would crawl to the end
of the world; man could not limit it, were not he himself its limit.
Where they clash, there will be its frontier. " In short, individuality
of being destroys the hypothesis of communism, but it does not for that
reason give birth to domain,--that domain by virtue of which the holder
of a thing exercises over the person who takes his place a right of
prestation and suzerainty, that has always been identified with property
itself.
Further, that he whose legitimately acquired possession injures nobody
cannot be nonsuited without flagrant injustice, is a truth, not of
INTUITION, as M. Troplong says, but of INWARD SENSATION, [66] which has
nothing to do with property.
M. Troplong admits, then, occupancy as a condition of property. In that,
he is in accord with the Roman law, in accord with MM. Toullier and
Duranton; but in his opinion this condition is not the only one, and it
is in this particular that his doctrine goes beyond theirs.
"But, however exclusive the right arising from sole occupancy, does it
not become still more so, when man has moulded matter by his labor;
when he has deposited in it a portion of himself, re-creating it by his
industry, and setting upon it the seal of his intelligence and activity?
Of all conquests, that is the most legitimate, for it is the price of
labor.
"He who should deprive a man of the thing thus remodelled, thus
humanized, would invade the man himself, and would inflict the deepest
wounds upon his liberty. "
I pass over the very beautiful explanations in which M. Troplong,
discussing labor and industry, displays the whole wealth of his
eloquence. M. Troplong is not only a philosopher, he is an orator, an
artist. HE ABOUNDS WITH APPEALS TO THE CONSCIENCE AND THE PASSIONS. I
might make sad work of his rhetoric, should I undertake to dissect it;
but I confine myself for the present to his philosophy.
If M. Troplong had only known how to think and reflect, before
abandoning the original fact of occupancy and plunging into the theory
of labor, he would have asked himself: "What is it to occupy? " And he
would have discovered that OCCUPANCY is only a generic term by which
all modes of possession are expressed,--seizure, station, immanence,
habitation, cultivation, use, consumption, &c. ; that labor,
consequently, is but one of a thousand forms of occupancy. He would have
understood, finally, that the right of possession which is born of labor
is governed by the same general laws as that which results from the
simple seizure of things. What kind of a legist is he who declaims when
he ought to reason, who continually mistakes his metaphors for legal
axioms, and who does not so much as know how to obtain a universal by
induction, and form a category?
If labor is identical with occupancy, the only benefit which it secures
to the laborer is the right of individual possession of the object of
his labor; if it differs from occupancy, it gives birth to a right equal
only to itself,--that is, a right which begins, continues, and ends,
with the labor of the occupant. It is for this reason, in the words of
the law, that one cannot acquire a just title to a thing by labor alone.
He must also hold it for a year and a day, in order to be regarded as
its possessor; and possess it twenty or thirty years, in order to become
its proprietor.
These preliminaries established, M. Troplong's whole structure falls of
its own weight, and the inferences, which he attempts to draw, vanish.
"Property once acquired by occupation and labor, it naturally preserves
itself, not only by the same means, but also by the refusal of the
holder to abdicate; for from the very fact that it has risen to the
height of a right, it is its nature to perpetuate itself and to last for
an indefinite period. . . . Rights, considered from an ideal point of
view, are imperishable and eternal; and time, which affects only the
contingent, can no more disturb them than it can injure God himself. "
It is astonishing that our author, in speaking of the IDEAL, TIME, and
ETERNITY, did not work into his sentence the DIVINE WINGS of Plato,--so
fashionable to-day in philosophical works.
With the exception of falsehood, I hate nonsense more than any thing
else in the world. PROPERTY ONCE ACQUIRED! Good, if it is acquired; but,
as it is not acquired, it cannot be preserved. RIGHTS ARE ETERNAL! Yes,
in the sight of God, like the archetypal ideas of the Platonists. But,
on the earth, rights exist only in the presence of a subject, an object,
and a condition. Take away one of these three things, and rights no
longer exist. Thus, individual possession ceases at the death of the
subject, upon the destruction of the object, or in case of exchange or
abandonment.
Let us admit, however, with M. Troplong, that property is an absolute
and eternal right, which cannot be destroyed save by the deed and at
the will of the proprietor. What are the consequences which immediately
follow from this position?
To show the justice and utility of prescription, M. Troplong supposes
the case of a bona fide possessor whom a proprietor, long since
forgotten or even unknown, is attempting to eject from his possession.
"At the start, the error of the possessor was excusable but not
irreparable. Pursuing its course and growing old by degrees, it has
so completely clothed itself in the colors of truth, it has spoken
so loudly the language of right, it has involved so many confiding
interests, that it fairly may be asked whether it would not cause
greater confusion to go back to the reality than to sanction the
fictions which it (an error, without doubt) has sown on its way? Well,
yes; it must be confessed, without hesitation, that the remedy would
prove worse than the disease, and that its application would lead to the
most outrageous injustice. "
How long since utility became a principle of law? When the Athenians, by
the advice of Aristides, rejected a proposition eminently advantageous
to their republic, but also utterly unjust, they showed finer moral
perception and greater clearness of intellect than M. Troplong. Property
is an eternal right, independent of time, indestructible except by the
act and at the will of the proprietor; and here this right is taken from
the proprietor, and on what ground? Good God! on the ground of ABSENCE!
Is it not true that legists are governed by caprice in giving and taking
away rights? When it pleases these gentlemen, idleness, unworthiness, or
absence can invalidate a right which, under quite similar circumstances,
labor, residence, and virtue are inadequate to obtain. Do not be
astonished that legists reject the absolute. Their good pleasure is law,
and their disordered imaginations are the real cause of the EVOLUTIONS
in jurisprudence.
"If the nominal proprietor should plead ignorance, his claim would be
none the more valid. Indeed, his ignorance might arise from inexcusable
carelessness, etc. "
What!
in order to legitimate dispossession through prescription, you
suppose faults in the proprietor! You blame his absence,--which may
have been involuntary; his neglect,--not knowing what caused it; his
carelessness,--a gratuitous supposition of your own! It is absurd. One
very simple observation suffices to annihilate this theory. Society,
which, they tell us, makes an exception in the interest of order in
favor of the possessor as against the old proprietor, owes the latter
an indemnity; since the privilege of prescription is nothing but
expropriation for the sake of public utility.
But here is something stronger:--
"In society a place cannot remain vacant with impunity. A new man arises
in place of the old one who disappears or goes away; he brings here his
existence, becomes entirely absorbed, and devotes himself to this post
which he finds abandoned. Shall the deserter, then, dispute the honor of
the victory with the soldier who fights with the sweat standing on his
brow, and bears the burden of the day, in behalf of a cause which he
deems just? "
When the tongue of an advocate once gets in motion, who can tell where
it will stop? M. Troplong admits and justifies usurpation in case of
the ABSENCE of the proprietor, and on a mere presumption of his
CARELESSNESS. But when the neglect is authenticated; when the
abandonment is solemnly and voluntarily set forth in a contract in the
presence of a magistrate; when the proprietor dares to say, "I cease to
labor, but I still claim a share of the product,"--then the absentee's
right of property is protected; the usurpation of the possessor would
be criminal; farm-rent is the reward of idleness. Where is, I do not say
the consistency, but, the honesty of this law?
Prescription is a result of the civil law, a creation of the legislator.
Why has not the legislator fixed the conditions differently? --why,
instead of twenty and thirty years, is not a single year sufficient to
prescribe? --why are not voluntary absence and confessed idleness as good
grounds for dispossession as involuntary absence, ignorance, or apathy?
But in vain should we ask M. Troplong, the philosopher, to tell us
the ground of prescription. Concerning the code, M. Troplong does not
reason. "The interpreter," he says, "must take things as they are,
society as it exists, laws as they are made: that is the only sensible
starting-point. " Well, then, write no more books; cease to reproach your
predecessors--who, like you, have aimed only at interpretation of the
law--for having remained in the rear; talk no more of philosophy and
progress, for the lie sticks in your throat.
M. Troplong denies the reality of the right of possession; he denies
that possession has ever existed as a principle of society; and he
quotes M. de Savigny, who holds precisely the opposite position, and
whom he is content to leave unanswered. At one time, M. Troplong asserts
that possession and property are CONTEMPORANEOUS, and that they exist AT
THE SAME TIME, which implies that the RIGHT of property is based on the
FACT of possession,--a conclusion which is evidently absurd; at
another, he denies that possession HAD ANY HISTORICAL EXISTENCE PRIOR
TO PROPERTY,--an assertion which is contradicted by the customs of many
nations which cultivate the land without appropriating it; by the Roman
law, which distinguished so clearly between POSSESSION and PROPERTY; and
by our code itself, which makes possession for twenty or thirty years
the condition of property. Finally, M. Troplong goes so far as to
maintain that the Roman maxim, _Nihil comune habet proprietas cum
possessione_--which contains so striking an allusion to the possession
of the _ager publicus_, and which, sooner or later, will be again
accepted without qualification--expresses in French law only a judicial
axiom, a simple rule forbidding the union of an _action possessoire_
with an _action petitoire_,--an opinion as retrogressive as it is
unphilosophical.
In treating of _actions possessoires_, M. Troplong is so unfortunate or
awkward that he mutilates economy through failure to grasp its
meaning "Just as property," he writes, "gave rise to the action for
revendication, so possession--the _jus possessionis_--was the cause
of possessory interdicts. . . . There were two kinds of interdicts,--the
interdict _recuperandae possessionis_, and the interdict _retinendae
possessionis_,--which correspond to our _complainte en cas de saisine
et nouvelete_. There is also a third,--_adipiscendae possessionis_,--of
which the Roman law-books speak in connection with the two others.
But, in reality, this interdict is not possessory: for he who wishes
to acquire possession by this means does not possess, and has not
possessed; and yet acquired possession is the condition of possessory
interdicts. " 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 breaks out between the two
competitors,--the legislator will gravely wait until the stronger,
having killed the other, has had possession for a year! No, no, Monsieur
Troplong! you do not understand the words of the law; for I prefer
to call in question your intelligence rather than the justice of the
legislator. You are mistaken in your application of the principle, _In
pari causa possessor potior habetur:_ the actuality of possession here
refers to him who possessed at the time when the difficulty arose, not
to him who possesses at the time of the complaint. And when the code
prohibits the reception of _actions possessoires_, in cases where the
possession is not of a year's duration, it simply means that if, before
a year has elapsed, the holder relinquishes possession, and ceases
actually to occupy _in propria persona_, he cannot avail himself of an
_action possessoire_ against his successor. In a word, the code treats
possession of less than a year as it ought to treat all possession,
however long it has existed,--that is, the condition of property ought
to be, not merely seisin for a year, but perpetual seisin.
I will not pursue this analysis farther. When an author bases two
volumes of quibbles on foundations so uncertain, it may be boldly
declared that his work, whatever the amount of learning displayed in it,
is a mess of nonsense unworthy a critic's attention.
At this point, sir, I seem to hear you reproaching me for this conceited
dogmatism, this lawless arrogance, which respects nothing, claims a
monopoly of justice and good sense, and assumes to put in the pillory
any one who dares to maintain an opinion contrary to its own. This
fault, they tell me, more odious than any other in an author, was too
prominent a characteristic of my First Memoir, and I should do well to
correct it.
It is important to the success of my defence, that I should vindicate
myself from this reproach; and since, while perceiving in myself other
faults of a different character, I still adhere in this particular to
my disputatious style, it is right that I should give my reasons for my
conduct. I act, not from inclination, but from necessity.
I say, then, that I treat my authors as I do for two reasons: a REASON
OF RIGHT, and a REASON OF INTENTION; both peremptory.
1. Reason of right. When I preach equality of fortunes, I do not advance
an opinion more or less probable, a utopia more or less ingenious, an
idea conceived within my brain by means of imagination only. I lay down
an absolute truth, concerning which hesitation is impossible, modesty
superfluous, and doubt ridiculous.
But, do you ask, what assures me that that which I utter is true?
What assures me, sir? The logical and metaphysical processes which I
use, the correctness of which I have demonstrated by a priori reasoning;
the fact that I possess an infallible method of investigation and
verification with which my authors are unacquainted; and finally, the
fact that for all matters relating to property and justice I have found
a formula which explains all legislative variations, and furnishes a
key for all problems. Now, is there so much as a shadow of method in M.
Toullier, M. Troplong, and this swarm of insipid commentators, almost
as devoid of reason and moral sense as the code itself? Do you give the
name of method to an alphabetical, chronological, analogical, or merely
nominal classification of subjects? Do you give the name of method
to these lists of paragraphs gathered under an arbitrary head, these
sophistical vagaries, this mass of contradictory quotations and
opinions, this nauseous style, this spasmodic rhetoric, models of which
are so common at the bar, though seldom found elsewhere? Do you take for
philosophy this twaddle, this intolerable pettifoggery adorned with a
few scholastic trimmings? No, no! a writer who respects himself, never
will consent to enter the balance with these manipulators of law,
misnamed JURISTS; and for my part I object to a comparison.
2. Reason of intention. As far as I am permitted to divulge this secret,
I am a conspirator in an immense revolution, terrible to charlatans and
despots, to all exploiters of the poor and credulous, to all salaried
idlers, dealers in political panaceas and parables, tyrants in a word of
thought and of opinion. I labor to stir up the reason of individuals to
insurrection against the reason of authorities.
According to the laws of the society of which I am a member, all the
evils which afflict humanity arise from faith in external teachings and
submission to authority. And not to go outside of our own century, is
it not true, for instance, that France is plundered, scoffed at, and
tyrannized over, because she speaks in masses, and not by heads? The
French people are penned up in three or four flocks, receiving their
signal from a chief, responding to the voice of a leader, and thinking
just as he says. A certain journal, it is said, has fifty thousand
subscribers; assuming six readers to every subscriber, we have three
hundred thousand sheep browsing and bleating at the same cratch. Apply
this calculation to the whole periodical press, and you find that, in
our free and intelligent France, there are two millions of creatures
receiving every morning from the journals spiritual pasturage. Two
millions! In other words, the entire nation allows a score of little
fellows to lead it by the nose.
By no means, sir, do I deny to journalists talent, science, love
of truth, patriotism, and what you please. They are very worthy and
intelligent people, whom I undoubtedly should wish to resemble, had I
the honor to know them. That of which I complain, and that which has
made me a conspirator, is that, instead of enlightening us, these
gentlemen command us, impose upon us articles of faith, and that without
demonstration or verification. When, for example, I ask why these
fortifications of Paris, which, in former times, under the influence
of certain prejudices, and by means of a concurrence of extraordinary
circumstances supposed for the sake of the argument to have existed, may
perhaps have served to protect us, but which it is doubtful whether
our descendants will ever use,--when I ask, I say, on what grounds they
assimilate the future to a hypothetical past, they reply that M.
Thiers, who has a great mind, has written upon this subject a report of
admirable elegance and marvellous clearness. At this I become angry, and
reply that M. Thiers does not know what he is talking about. Why, having
wanted no detached forts seven years ago, do we want them to-day?
"Oh! damn it," they say, "the difference is great; the first forts
were too near to us; with these we cannot be bombarded. " You cannot be
bombarded; but you can be blockaded, and will be, if you stir. What! to
obtain blockade forts from the Parisians, it has sufficed to prejudice
them against bombardment forts! And they thought to outwit the
government! Oh, the sovereignty of the people! . . .
"Damn it! M. Thiers, who is wiser than you, says that it would be absurd
to suppose a government making war upon citizens, and maintaining itself
by force and in spite of the will of the people. That would be absurd! "
Perhaps so: such a thing has happened more than once, and may happen
again. Besides, when despotism is strong, it appears almost legitimate.
However that may be, they lied in 1833, and they lie again in
1841,--those who threaten us with the bomb-shell. And then, if M. Thiers
is so well assured of the intentions of the government, why does he not
wish the forts to be built before the circuit is extended? Why this
air of suspicion of the government, unless an intrigue has been planned
between the government and M. Thiers?
"Damn it! we do not wish to be again invaded. If Paris had been
fortified in 1815, Napoleon would not have been conquered! " But I tell
you that Napoleon was not conquered, but sold; and that if, in 1815,
Paris had had fortifications, it would have been with them as with the
thirty thousand men of Grouchy, who were misled during the battle. It is
still easier to surrender forts than to lead soldiers. Would the selfish
and the cowardly ever lack reasons for yielding to the enemy?
"But do you not see that the absolutist courts are provoked at our
fortifications? --a proof that they do not think as you do. " You believe
that; and, for my part, I believe that in reality they are quite at ease
about the matter; and, if they appear to tease our ministers, they do so
only to give the latter an opportunity to decline. The absolutist courts
are always on better terms with our constitutional monarchy, than
our monarchy with us. Does not M. Guizot say that France needs to
be defended within as well as without? Within! against whom? Against
France. O Parisians! it is but six months since you demanded war, and
now you want only barricades. Why should the allies fear your doctrines,
when you cannot even control yourselves? . . . How could you sustain a
siege, when you weep over the absence of an actress?
"But, finally, do you not understand that, by the rules of modern
warfare, the capital of a country is always the objective point of its
assailants? Suppose our army defeated on the Rhine, France invaded, and
defenceless Paris falling into the hands of the enemy. It would be the
death of the administrative power; without a head it could not live. The
capital taken, the nation must submit. What do you say to that? "
The reply is very simple. Why is society constituted in such a way that
the destiny of the country depends upon the safety of the capital?
Why, in case our territory be invaded and Paris besieged, cannot the
legislative, executive, and military powers act outside of Paris? Why
this localization of all the vital forces of France? . . . Do not cry out
upon decentralization. This hackneyed reproach would discredit only
your own intelligence and sincerity. It is not a question of
decentralization; it is your political fetichism which I attack. Why
should the national unity be attached to a certain place, to certain
functionaries, to certain bayonets? Why should the Place Maubert and the
Palace of the Tuileries be the palladium of France?
Now let me make an hypothesis.
Suppose it were written in the charter, "In case the country be again
invaded, and Paris forced to surrender, the government being annihilated
and the national assembly dissolved, the electoral colleges shall
reassemble spontaneously and without other official notice, for the
purpose of appointing new deputies, who shall organize a provisional
government at Orleans.
"If Orleans succumbs, the government shall reconstruct itself in the same
way at Lyons; then at Bordeaux, then at Bayonne, until all France be
captured or the enemy driven from the land. For the government may
perish, but the nation never dies. The king, the peers, and the deputies
massacred, VIVE LA FRANCE! "
Do you not think that such an addition to the charter would be a better
safeguard for the liberty and integrity of the country than walls and
bastions around Paris? Well, then! do henceforth for administration,
industry, science, literature, and art that which the charter ought
to prescribe for the central government and common defence. Instead of
endeavoring to render Paris impregnable, try rather to render the loss
of Paris an insignificant matter. Instead of accumulating about one
point academies, faculties, schools, and political, administrative,
and judicial centres; instead of arresting intellectual development
and weakening public spirit in the provinces by this fatal
agglomeration,--can you not, without destroying unity, distribute social
functions among places as well as among persons? Such a system--in
allowing each province to participate in political power and action, and
in balancing industry, intelligence, and strength in all parts of the
country--would equally secure, against enemies at home and enemies
abroad, the liberty of the people and the stability of the government.
Discriminate, then, between the centralization of functions and the
concentration of organs; between political unity and its material
symbol.
"Oh! that is plausible; but it is impossible! "--which means that the
city of Paris does not intend to surrender its privileges, and that
there it is still a question of property.
