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?”67
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.”68
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, etc.” 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 anything 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
