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?"
A professor of comparative legislation, M.Lerminier, has gone still farther.He has dared to say that the nation took from the clergy all their possessions, not because of IDLENESS, but because of UNWORTHINESS."You have civilized the world,"cries this apostle of equality, speaking to the priests; "and for that reason your possessions were given you.In your hands they were at once an instrument and a reward.But you do not now deserve them, for you long since ceased to civilize any thing whatever...."This position is quite in harmony with my principles, and Iheartily 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 OFPROPERTY, 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."
"Treatise on Prescription."
