These two definitions do not differ from that of the Roman law: all give the proprietor an absolute right over a thing; and as for the restriction imposed by the code—provided we do not overstep the limits prescribed by the laws and regulations—its object is not to limit property, but to prevent the domain of one proprietor from interfering with that of another. That is a confirmation of the principle, not a limitation of it.
There are different kinds of property: 1. Property pure and simple, the dominant and seigniorial power over a thing; or, as they term it, naked property. 2. Possession. “Possession,” says Duranton, “is a matter of fact, not of right.” Toullier: “Property is a right, a legal power; possession is a fact.” The tenant, the farmer, the commandité, the usufructuary, are possessors; the owner who lets and lends for use, the heir who is to come into possession on the death of a usufructuary, are proprietors. If I may venture the comparison: a lover is a possessor, a husband is a proprietor.
This double definition of property—domain and possession—is of the highest importance; and it must be clearly understood, in order to comprehend what is to follow.
From the distinction between possession and property arise two sorts of rights: the jus in re, the right in a thing, the right by which I may reclaim the property which I have acquired, in whatever hands I find it; and the jus ad rem, the right to a thing, which gives me a claim to become a proprietor. Thus the right of the partners to a marriage over each other’s person is the jus in re; that of two who are betrothed is only the jus ad rem. In the first, possession and property are united; the second includes only naked property. With me who, as a laborer, have a right to the possession of the products of Nature and my own industry—and who, as a proletaire, enjoy none of them—it is by virtue of the jus ad rem that I demand admittance to the jus in re.
This distinction between the jus in re and the jus ad rem is the basis of the famous distinction between possessoire and petitoire—actual categories of jurisprudence, the whole of which is included within their vast boundaries. Petitoire refers to everything relating to property; possessoire to that relating to possession. In writing this memoir against property, I bring against universal society an action petitoire: I prove that those who do not possess today are proprietors by the same title as those who do possess; but, instead of inferring therefrom that property should be shared by all, I demand, in the name of general security, its entire abolition. If I fail to win my case, there is nothing left for us (the proletarian class and myself) but to cut our throats: we can ask nothing more from the justice of nations; for, as the code of procedure (art. 26) tells us in its energetic style, the plaintiff who has been nonsuited in an action petitoire, is debarred thereby from bringing an action possessoire. If, on the contrary, I gain the case, we must then commence an action possessoire, that we may be reinstated in the enjoyment of the wealth of which we are deprived by property. I hope that we shall not be forced to that extremity; but these two actions cannot be prosecuted at once, such a course being prohibited by the same code of procedure.
Before going to the heart of the question, it will not be useless to offer a few preliminary remarks.
§ 1
Property as a Natural Right
The Declaration of Rights has placed property in its list of the natural and inalienable rights of man, four in all: liberty, equality, property, security. What rule did the legislators of ’93 follow in compiling this list? None. They laid down principles, just as they discussed sovereignty and the laws; from a general point of view, and according to their own opinion. They did everything in their own blind way.
If we can believe Toullier: “The absolute rights can be reduced to three: security, liberty, property.” Equality is eliminated by the Rennes professor; why? Is it because liberty implies it, or because property prohibits it? On this point the author of Droit Civil Expliqué is silent: it has not even occurred to him that the matter is under discussion.
Nevertheless, if we compare these three or four rights with each other, we find that property bears no resemblance whatever to the others; that for the majority of citizens it exists only potentially, and as a dormant faculty without exercise; that for the others, who do enjoy it, it is susceptible of certain transactions and modifications which do not harmonize with the idea of a natural right; that, in practice, governments, tribunals, and laws do not respect it; and finally that everybody, spontaneously and with one voice, regards it as chimerical.
Liberty is inviolable. I can neither sell nor alienate my liberty; every contract, every condition of a contract, which has in view the alienation or suspension of liberty, is null: the slave, when he plants his foot upon the soil of liberty, at that moment becomes a free man. When society seizes a malefactor and deprives him of his liberty, it is a case of legitimate defence: whoever violates the social compact by the commission of a crime declares himself a public enemy; in attacking the liberty of others, he compels them to take away his own. Liberty is the original condition of man; to renounce liberty is to
