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 nouveleté. 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. 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? 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 newcomer. 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 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” [I quote M. Troplong]; when I have “deposited in it a portion of myself” [M. Troplong]; when I have “recreated 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 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
