PROPERTY CONSIDERED AS A NATURAL RIGHT.--OCCUPATIONAND CIVIL LAW AS EFFICIENT BASES OF PROPERTY.
DEFINITIONS.
The Roman law defined property as the right to use and abuse one's own within the limits of the law--jus utendi et abutendi re sua, guatenus juris ratio patitur.A justification of the word ABUSE has been attempted, on the ground that it signifies, not senseless and immoral abuse, but only absolute domain.Vain distinction! invented as an excuse for property, and powerless against the frenzy of possession, which it neither prevents nor represses.The proprietor may, if he chooses, allow his crops to rot under foot; sow his field with salt; milk his cows on the sand; change his vineyard into a desert, and use his vegetable-garden as a park: do these things constitute abuse, or not? In the matter of property, use and abuse are necessarily indistinguishable.
According to the Declaration of Rights, published as a preface to the Constitution of '93, property is "the right to enjoy and dispose at will of one's goods, one's income, and the fruit of one's labor and industry."Code Napoleon, article 544: "Property is the right to enjoy and dispose of things in the most absolute manner, provided we do not overstep the limits prescribed by the laws and regulations."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 NOTOVERSTEP 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 commandite', 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 every thing 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 to-day 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 NON-SUITEDIN AN ACTION PETITOIRE, IS DEBARRED THEREBY FROM BRINGING ANACTION 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 every thing 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 Explique" is silent: it has not even occurred to him that the matter is under discussion.
