What is Property? Part 37

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 G.o.d! 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 circ.u.mstances, 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 a.s.serts 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 a.s.sertion 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 c.u.m 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 pet.i.toire_,--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 embarra.s.ses 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 astonis.h.i.+ng that M.

Troplong rejects the third cla.s.s 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 pet.i.toire_. 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 t.i.tle."

M. Troplong's comments:--

"Ought we to maintain--as Duparc, Poullain, and Lanjuinais would have us--the rule _spoliatus ante omnia rest.i.tuendus_, 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 ent.i.tled 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 compet.i.tors,--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 a.n.a.lysis 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 a.s.sumes 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 a.s.sures me that that which I utter is true?

What a.s.sures 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, a.n.a.logical, or merely nominal cla.s.sification of subjects? Do you give the name of method to these lists of paragraphs gathered under an arbitrary head, these sophistical vagaries, this ma.s.s 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 tr.i.m.m.i.n.gs? 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 ma.s.ses, 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; a.s.suming 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 circ.u.mstances 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 a.s.similate 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! d.a.m.n 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!...

"d.a.m.n 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-sh.e.l.l. And then, if M. Thiers is so well a.s.sured 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?

"d.a.m.n 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 const.i.tutional 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 a.s.sailants? 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 const.i.tuted 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 a.s.sembly dissolved, the electoral colleges shall rea.s.semble spontaneously and without other official notice, for the purpose of appointing new deputies, who shall organize a provisional government at Orleans.

"If Orleans succ.u.mbs, 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 ma.s.sacred, 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 acc.u.mulating 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 partic.i.p.ate 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.

Idle talk! The country, in a state of panic which has been cleverly worked upon, has asked for fortifications. I dare to affirm that it has abdicated its sovereignty. All parties are to blame for this suicide,--the conservatives, by their acquiescence in the plans of the government; the friends of the dynasty, because they wish no opposition to that which pleases them, and because a popular revolution would annihilate them; the democrats, because they hope to rule in their turn.

[67] That which all rejoice at having obtained is a means of future repression. As for the defence of the country, they are not troubled about that. The idea of tyranny dwells in the minds of all, and brings together into one conspiracy all forms of selfishness. We wish the regeneration of society, but we subordinate this desire to our ideas and convenience. That our approaching marriage may take place, that our business may succeed, that our opinions may triumph, we postpone reform.

Intolerance and selfishness lead us to put fetters upon liberty; and, because we cannot wish all that G.o.d wishes, we would, if it rested with us, stay the course of destiny rather than sacrifice our own interests and self-love. Is not this an instance where the words of Solomon apply,--"_L'iniquite a menti a elle-meme_"?