"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 TOPROPERTY,--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.
