goes so far as to maintain that the Roman maxim, Nihil comune habet proprietas cum 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 petitoire,—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 recuperandæ possessionis, and the interdict retinendæ possessionis,—which correspond to our complainte en cas de saisine et nouveleté. There is also a third,—adipiscendæ 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, adipiscendæ possessionis, which embarrasses M. Troplong so seriously. And what is my object in pleading against property, if not to obtain possession?
