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? Ithink 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 Ipossess, 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" ; when I have "deposited in it a portion of myself" ; when I have "re-created it by my industry, and set upon it the seal of my intelligence" ,--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 Ishould 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?
