Does that mean that all men have a right to all
property?
Proudhon - What is Property? An Inquiry into the Principle of Right and of Government
The titles on which they pretend to base the right of property are two
in number: OCCUPATION and LABOR. I shall examine them successively,
under all their aspects and in detail; and I remind the reader that,
to whatever authority we appeal, I shall prove beyond a doubt that
property, to be just and possible, must necessarily have equality for
its condition.
% 2. --Occupation, as the Title to Property.
It is remarkable that, at those meetings of the State Council at which
the Code was discussed, no controversy arose as to the origin and
principle of property. All the articles of Vol. II. , Book 2, concerning
property and the right of accession, were passed without opposition or
amendment. Bonaparte, who on other questions had given his legists so
much trouble, had nothing to say about property. Be not surprised at it:
in the eyes of that man, the most selfish and wilful person that ever
lived, property was the first of rights, just as submission to authority
was the most holy of duties.
The right of OCCUPATION, or of the FIRST OCCUPANT, is that which results
from the actual, physical, real possession of a thing. I occupy a
piece of land; the presumption is, that I am the proprietor, until
the contrary is proved. We know that originally such a right cannot be
legitimate unless it is reciprocal; the jurists say as much.
Cicero compares the earth to a vast theatre: _Quemadmodum theatrum cum
commune sit, recte tamen dici potest ejus esse eum locum quem quisque
occuparit_.
This passage is all that ancient philosophy has to say about the origin
of property.
The theatre, says Cicero, is common to all; nevertheless, the place that
each one occupies is called HIS OWN; that is, it is a place POSSESSED,
not a place APPROPRIATED. This comparison annihilates property;
moreover, it implies equality. Can I, in a theatre, occupy at the same
time one place in the pit, another in the boxes, and a third in the
gallery? Not unless I have three bodies, like Geryon, or can exist
in different places at the same time, as is related of the magician
Apollonius.
According to Cicero, no one has a right to more than he needs: such
is the true interpretation of his famous axiom--_suum quidque cujusque
sit_, to each one that which belongs to him--an axiom that has been
strangely applied. That which belongs to each is not that which each MAY
possess, but that which each HAS A RIGHT to possess. Now, what have we a
right to possess? That which is required for our labor and consumption;
Cicero's comparison of the earth to a theatre proves it. According to
that, each one may take what place he will, may beautify and adorn it,
if he can; it is allowable: but he must never allow himself to overstep
the limit which separates him from another. The doctrine of Cicero leads
directly to equality; for, occupation being pure toleration, if the
toleration is mutual (and it cannot be otherwise) the possessions are
equal.
Grotius rushes into history; but what kind of reasoning is that which
seeks the origin of a right, said to be natural, elsewhere than in
Nature? This is the method of the ancients: the fact exists, then it
is necessary, then it is just, then its antecedents are just also.
Nevertheless, let us look into it.
"Originally, all things were common and undivided; they were the
property of all. " Let us go no farther. Grotius tells us how this
original communism came to an end through ambition and cupidity; how the
age of gold was followed by the age of iron, &c. So that property rested
first on war and conquest, then on treaties and agreements. But either
these treaties and agreements distributed wealth equally, as did the
original communism (the only method of distribution with which the
barbarians were acquainted, and the only form of justice of which they
could conceive; and then the question of origin assumes this form:
how did equality afterwards disappear? )--or else these treaties and
agreements were forced by the strong upon the weak, and in that case
they are null; the tacit consent of posterity does not make them valid,
and we live in a permanent condition of iniquity and fraud.
We never can conceive how the equality of conditions, having once
existed, could afterwards have passed away. What was the cause of such
degeneration? The instincts of the animals are unchangeable, as well
as the differences of species; to suppose original equality in human
society is to admit by implication that the present inequality is
a degeneration from the nature of this society,--a thing which the
defenders of property cannot explain. But I infer therefrom that, if
Providence placed the first human beings in a condition of equality, it
was an indication of its desires, a model that it wished them to realize
in other forms; just as the religious sentiment, which it planted in
their hearts, has developed and manifested itself in various ways. Man
has but one nature, constant and unalterable: he pursues it through
instinct, he wanders from it through reflection, he returns to it
through judgment; who shall say that we are not returning now? According
to Grotius, man has abandoned equality; according to me, he will yet
return to it. How came he to abandon it? Why will he return to it? These
are questions for future consideration.
Reid writes as follows:--
"The right of property is not innate, but acquired. It is not grounded
upon the constitution of man, but upon his actions. Writers on
jurisprudence have explained its origin in a manner that may satisfy
every man of common understanding.
"The earth is given to men in common for the purposes of life, by the
bounty of Heaven. But to divide it, and appropriate one part of its
produce to one, another part to another, must be the work of men
who have power and understanding given them, by which every man may
accommodate himself, WITHOUT HURT TO ANY OTHER.
"This common right of every man to what the earth produces, before it
be occupied and appropriated by others, was, by ancient moralists, very
properly compared to the right which every citizen had to the public
theatre, where every man that came might occupy an empty seat, and
thereby acquire a right to it while the entertainment lasted; but no man
had a right to dispossess another.
"The earth is a great theatre, furnished by the Almighty, with perfect
wisdom and goodness, for the entertainment and employment of all
mankind. Here every man has a right to accommodate himself as a
spectator, and to perform his part as an actor; but without hurt to
others. "
Consequences of Reid's doctrine.
1. That the portion which each one appropriates may wrong no one, it
must be equal to the quotient of the total amount of property to be
shared, divided by the number of those who are to share it;
2. The number of places being of necessity equal at all times to that
of the spectators, no spectator can occupy two places, nor can any actor
play several parts;
3. Whenever a spectator comes in or goes out, the places of all contract
or enlarge correspondingly: for, says Reid, "THE RIGHT OF PROPERTY
IS NOT INNATE, BUT ACQUIRED;" consequently, it is not absolute;
consequently, the occupancy on which it is based, being a conditional
fact, cannot endow this right with a stability which it does not possess
itself. This seems to have been the thought of the Edinburgh professor
when he added:--
"A right to life implies a right to the necessary means of life; and
that justice, which forbids the taking away the life of an innocent man,
forbids no less the taking from him the necessary means of life. He has
the same right to defend the one as the other. To hinder another man's
innocent labor, or to deprive him of the fruit of it, is an injustice
of the same kind, and has the same effect as to put him in fetters or in
prison, and is equally a just object of resentment. "
Thus the chief of the Scotch school, without considering at all the
inequality of skill or labor, posits a priori the equality of the means
of labor, abandoning thereafter to each laborer the care of his own
person, after the eternal axiom: WHOSO DOES WELL, SHALL FARE WELL.
The philosopher Reid is lacking, not in knowledge of the principle, but
in courage to pursue it to its ultimate. If the right of life is equal,
the right of labor is equal, and so is the right of occupancy. Would
it not be criminal, were some islanders to repulse, in the name of
property, the unfortunate victims of a shipwreck struggling to reach
the shore? The very idea of such cruelty sickens the imagination. The
proprietor, like Robinson Crusoe on his island, wards off with pike and
musket the proletaire washed overboard by the wave of civilization, and
seeking to gain a foothold upon the rocks of property. "Give me work! "
cries he with all his might to the proprietor: "don't drive me away, I
will work for you at any price. " "I do not need your services," replies
the proprietor, showing the end of his pike or the barrel of his gun.
"Lower my rent at least. " "I need my income to live upon. " "How can
I pay you, when I can get no work? " "That is your business. " Then the
unfortunate proletaire abandons himself to the waves; or, if he attempts
to land upon the shore of property, the proprietor takes aim, and kills
him.
We have just listened to a spiritualist; we will now question a
materialist, then an eclectic: and having completed the circle of
philosophy, we will turn next to law.
According to Destutt de Tracy, property is a necessity of our nature.
That this necessity involves unpleasant consequences, it would be
folly to deny. But these consequences are necessary evils which do not
invalidate the principle; so that it as unreasonable to rebel against
property on account of the abuses which it generates, as to complain
of life because it is sure to end in death. This brutal and pitiless
philosophy promises at least frank and close reasoning. Let us see if it
keeps its promise.
"We talk very gravely about the conditions of property,. . . as if it was
our province to decide what constitutes property. . . . It would seem, to
hear certain philosophers and legislators, that at a certain moment,
spontaneously and without cause, people began to use the words THINE and
MINE; and that they might have, or ought to have, dispensed with them.
But THINE and MINE were never invented. "
A philosopher yourself, you are too realistic. THINE and MINE do not
necessarily refer to self, as they do when I say your philosophy, and my
equality; for your philosophy is you philosophizing, and my equality is
I professing equality. THINE and MINE oftener indicate a relation,--YOUR
country, YOUR parish, YOUR tailor, YOUR milkmaid; MY chamber, MY seat at
the theatre, MY company and MY battalion in the National Guard. In the
former sense, we may sometimes say MY labor, MY skill, MY virtue; never
MY grandeur nor MY majesty: in the latter sense only, MY field, MY
house, MY vineyard, MY capital,--precisely as the banker's clerk says
MY cash-box. In short, THINE and MINE are signs and expressions of
personal, but equal, rights; applied to things outside of us, they
indicate possession, function, use, not property.
It does not seem possible, but, nevertheless, I shall prove, by
quotations, that the whole theory of our author is based upon this
paltry equivocation.
"Prior to all covenants, men are, not exactly, as Hobbes says, in a
state of HOSTILITY, but of ESTRANGEMENT. In this state, justice and
injustice are unknown; the rights of one bear no relation to the rights
of another. All have as many rights as needs, and all feel it their duty
to satisfy those needs by any means at their command. "
Grant it; whether true or false, it matters not. Destutt de Tracy cannot
escape equality. On this theory, men, while in a state of ESTRANGEMENT,
are under no obligations to each other; they all have the right
to satisfy their needs without regard to the needs of others, and
consequently the right to exercise their power over Nature, each
according to his strength and ability. That involves the greatest
inequality of wealth. Inequality of conditions, then, is the
characteristic feature of estrangement or barbarism: the exact opposite
of Rousseau's idea.
But let us look farther:--
"Restrictions of these rights and this duty commence at the time when
covenants, either implied or expressed, are agreed upon. Then appears
for the first time justice and injustice; that is, the balance between
the rights of one and the rights of another, which up to that time were
necessarily equal. "
Listen: RIGHTS WERE EQUAL; that means that each individual had the right
to SATISFY HIS NEEDS WITHOUT REFERENCE TO THE NEEDS OF OTHERS. In other
words, that all had the right to injure each other; that there was no
right save force and cunning. They injured each other, not only by war
and pillage, but also by usurpation and appropriation. Now, in order to
abolish this equal right to use force and stratagem,--this equal
right to do evil, the sole source of the inequality of benefits and
injuries,--they commenced to make COVENANTS EITHER IMPLIED OR EXPRESSED,
and established a balance. Then these agreements and this balance
were intended to secure to all equal comfort; then, by the law of
contradictions, if isolation is the principle of inequality, society
must produce equality. The social balance is the equalization of the
strong and the weak; for, while they are not equals, they are strangers;
they can form no associations,--they live as enemies. Then, if
inequality of conditions is a necessary evil, so is isolation, for
society and inequality are incompatible with each other. Then, if
society is the true condition of man's existence, so is equality also.
This conclusion cannot be avoided.
This being so, how is it that, ever since the establishment of this
balance, inequality has been on the increase? How is it that justice and
isolation always accompany each other? Destutt de Tracy shall reply:--
"NEEDS and MEANS, RIGHTS and DUTIES, are products of the will. If man
willed nothing, these would not exist. But to have needs and means,
rights and duties, is to HAVE, to POSSESS, something. They are so many
kinds of property, using the word in its most general sense: they are
things which belong to us. "
Shameful equivocation, not justified by the necessity for
generalization! The word PROPERTY has two meanings: 1. It designates the
quality which makes a thing what it is; the attribute which is peculiar
to it, and especially distinguishes it. We use it in this sense when we
say THE PROPERTIES OF THE TRIANGLE or of NUMBERS; THE PROPERTY OF THE
MAGNET, &c. 2. It expresses the right of absolute control over a thing
by a free and intelligent being. It is used in this sense by writers
on jurisprudence. Thus, in the phrase, IRON ACQUIRES THE PROPERTY OF A
MAGNET, the word PROPERTY does not convey the same idea that it does in
this one: _I HAVE ACQUIRED THIS MAGNET AS MY PROPERTY_. To tell a poor
man that he HAS property because he HAS arms and legs,--that the hunger
from which he suffers, and his power to sleep in the open air are his
property,--is to play upon words, and to add insult to injury.
"The sole basis of the idea of property is the idea of personality. As
soon as property is born at all, it is born, of necessity, in all its
fulness. As soon as an individual knows HIMSELF,--his moral personality,
his capacities of enjoyment, suffering, and action,--he necessarily
sees also that this SELF is exclusive proprietor of the body in which
it dwells, its organs, their powers, faculties, &c. . . . Inasmuch as
artificial and conventional property exists, there must be natural
property also; for nothing can exist in art without its counterpart in
Nature. "
We ought to admire the honesty and judgment of philosophers! Man has
properties; that is, in the first acceptation of the term, faculties. He
has property; that is, in its second acceptation, the right of domain.
He has, then, the property of the property of being proprietor. How
ashamed I should be to notice such foolishness, were I here considering
only the authority of Destutt de Tracy! But the entire human race, since
the origination of society and language, when metaphysics and dialectics
were first born, has been guilty of this puerile confusion of thought.
All which man could call his own was identified in his mind with his
person. He considered it as his property, his wealth; a part of himself,
a member of his body, a faculty of his mind. The possession of things
was likened to property in the powers of the body and mind; and on this
false analogy was based the right of property,--THE IMITATION OF NATURE
BY ART, as Destutt de Tracy so elegantly puts it.
But why did not this ideologist perceive that man is not proprietor even
of his own faculties? Man has powers, attributes, capacities; they are
given him by Nature that he may live, learn, and love: he does not own
them, but has only the use of them; and he can make no use of them that
does not harmonize with Nature's laws. If he had absolute mastery over
his faculties, he could avoid hunger and cold; he could eat unstintedly,
and walk through fire; he could move mountains, walk a hundred leagues
in a minute, cure without medicines and by the sole force of his will,
and could make himself immortal. He could say, "I wish to produce," and
his tasks would be finished with the words; he could say. "I wish to
know," and he would know; "I love," and he would enjoy. What then? Man
is not master of himself, but may be of his surroundings. Let him use
the wealth of Nature, since he can live only by its use; but let him
abandon his pretensions to the title of proprietor, and remember that he
is called so only metaphorically.
To sum up: Destutt de Tracy classes together the external PRODUCTIONS of
nature and art, and the POWERS or FACULTIES of man, making both of them
species of property; and upon this equivocation he hopes to establish,
so firmly that it can never be disturbed, the right of property. But
of these different kinds of property some are INNATE, as memory,
imagination, strength, and beauty; while others are ACQUIRED, as land,
water, and forests. In the state of Nature or isolation, the strongest
and most skilful (that is, those best provided with innate property)
stand the best chance of obtaining acquired property. Now, it is to
prevent this encroachment and the war which results therefrom, that
a balance (justice) has been employed, and covenants (implied or
expressed) agreed upon: it is to correct, as far as possible, inequality
of innate property by equality of acquired property. As long as the
division remains unequal, so long the partners remain enemies; and it
is the purpose of the covenants to reform this state of things. Thus
we have, on the one hand, isolation, inequality, enmity, war, robbery,
murder; on the other, society, equality, fraternity, peace, and love.
Choose between them!
M. Joseph Dutens--a physician, engineer, and geometrician, but a very
poor legist, and no philosopher at all--is the author of a "Philosophy
of Political Economy," in which he felt it his duty to break lances in
behalf of property. His reasoning seems to be borrowed from Destutt
de Tracy. He commences with this definition of property, worthy of
Sganarelle: "Property is the right by which a thing is one's own. "
Literally translated: Property is the right of property.
After getting entangled a few times on the subjects of will, liberty,
and personality; after having distinguished between IMMATERIAL-NATURAL
property, and MATERIAL-NATURAL property, a distinction similar to
Destutt de Tracy's of innate and acquired property,--M. Joseph Dutens
concludes with these two general propositions: 1. Property is a natural
and inalienable right of every man; 2. Inequality of property is a
necessary result of Nature,--which propositions are convertible into a
simpler one: All men have an equal right of unequal property.
He rebukes M. de Sismondi for having taught that landed property has no
other basis than law and conventionality; and he says himself, speaking
of the respect which people feel for property, that "their good sense
reveals to them the nature of the ORIGINAL CONTRACT made between society
and proprietors. "
He confounds property with possession, communism with equality, the just
with the natural, and the natural with the possible. Now he takes these
different ideas to be equivalents; now he seems to distinguish between
them, so much so that it would be infinitely easier to refute him than
to understand him. Attracted first by the title of the work, "Philosophy
of Political Economy," I have found, among the author's obscurities,
only the most ordinary ideas. For that reason I will not speak of him.
M. Cousin, in his "Moral Philosophy," page 15, teaches that all
morality, all laws, all rights are given to man with this injunction:
"FREE BEING, REMAIN FREE. " Bravo! master; I wish to remain free if I
can. He continues:--
"Our principle is true; it is good, it is social. Do not fear to push it
to its ultimate.
"1. If the human person is sacred, its whole nature is sacred; and
particularly its interior actions, its feelings, its thoughts, its
voluntary decisions. This accounts for the respect due to philosophy,
religion, the arts industry, commerce, and to all the results of
liberty. I say respect, not simply toleration; for we do not tolerate a
right, we respect it. "
I bow my head before this philosophy.
"2. My liberty, which is sacred, needs for its objective action an
instrument which we call the body: the body participates then in the
sacredness of liberty; it is then inviolable. This is the basis of the
principle of individual liberty.
"3. My liberty needs, for its objective action, material to work upon;
in other words, property or a thing. This thing or property naturally
participates then in the inviolability of my person. For instance, I
take possession of an object which has become necessary and useful in
the outward manifestation of my liberty. I say, 'This object is
mine since it belongs to no one else; consequently, I possess it
legitimately. ' So the legitimacy of possession rests on two conditions.
First, I possess only as a free being. Suppress free activity, you
destroy my power to labor. Now it is only by labor that I can use this
property or thing, and it is only by using it that I possess it. Free
activity is then the principle of the right of property. But that alone
does not legitimate possession. All men are free; all can use property
by labor.
Does that mean that all men have a right to all property? Not
at all. To possess legitimately, I must not only labor and produce in
my capacity of a free being, but I must also be the first to occupy the
property. In short, if labor and production are the principle of the
right of property, the fact of first occupancy is its indispensable
condition.
"4. I possess legitimately: then I have the right to use my property as
I see fit. I have also the right to give it away. I have also the right
to bequeath it; for if I decide to make a donation, my decision is as
valid after my death as during my life. "
In fact, to become a proprietor, in M. Cousin's opinion, one must take
possession by occupation and labor. I maintain that the element of time
must be considered also; for if the first occupants have occupied every
thing, what are the new comers to do? What will become of them, having
an instrument with which to work, but no material to work upon?
Must they devour each other? A terrible extremity, unforeseen by
philosophical prudence; for the reason that great geniuses neglect
little things.
Notice also that M. Cousin says that neither occupation nor labor, taken
separately, can legitimate the right of property; and that it is born
only from the union of the two. This is one of M. Cousin's eclectic
turns, which he, more than any one else, should take pains to
avoid. Instead of proceeding by the method of analysis, comparison,
elimination, and reduction (the only means of discovering the truth amid
the various forms of thought and whimsical opinions), he jumbles
all systems together, and then, declaring each both right and wrong,
exclaims: "There you have the truth. "
But, adhering to my promise, I will not refute him. I will only prove,
by all the arguments with which he justifies the right of property, the
principle of equality which kills it. As I have already said, my sole
intent is this: to show at the bottom of all these positions that
inevitable major, EQUALITY; hoping hereafter to show that the principle
of property vitiates the very elements of economical, moral, and
governmental science, thus leading it in the wrong direction.
Well, is it not true, from M. Cousin's point of view, that, if the
liberty of man is sacred, it is equally sacred in all individuals; that,
if it needs property for its objective action, that is, for its life,
the appropriation of material is equally necessary for all; that, if I
wish to be respected in my right of appropriation, I must respect
others in theirs; and, consequently, that though, in the sphere of the
infinite, a person's power of appropriation is limited only by
himself, in the sphere of the finite this same power is limited by the
mathematical relation between the number of persons and the space which
they occupy? Does it not follow that if one individual cannot prevent
another--his fellow-man--from appropriating an amount of material equal
to his own, no more can he prevent individuals yet to come; because,
while individuality passes away, universality persists, and eternal laws
cannot be determined by a partial view of their manifestations? Must we
not conclude, therefore, that whenever a person is born, the others must
crowd closer together; and, by reciprocity of obligation, that if the
new comer is afterwards to become an heir, the right of succession does
not give him the right of accumulation, but only the right of choice?
I have followed M. Cousin so far as to imitate his style, and I am
ashamed of it. Do we need such high-sounding terms, such sonorous
phrases, to say such simple things? Man needs to labor in order to live;
consequently, he needs tools to work with and materials to work upon.
His need to produce constitutes his right to produce. Now, this right is
guaranteed him by his fellows, with whom he makes an agreement to that
effect. One hundred thousand men settle in a large country like France
with no inhabitants: each man has a right to 1/100,000 of the land. If
the number of possessors increases, each one's portion diminishes in
consequence; so that, if the number of inhabitants rises to thirty-four
millions, each one will have a right only to 1/34,000,000. Now,
so regulate the police system and the government, labor, exchange,
inheritance, &c. , that the means of labor shall be shared by all
equally, and that each individual shall be free; and then society will
be perfect.
Of all the defenders of property, M. Cousin has gone the farthest. He
has maintained against the economists that labor does not establish the
right of property unless preceded by occupation, and against the jurists
that the civil law can determine and apply a natural right, but cannot
create it. In fact, it is not sufficient to say, "The right of property
is demonstrated by the existence of property; the function of the civil
law is purely declaratory. " To say that, is to confess that there is
no reply to those who question the legitimacy of the fact itself.
Every right must be justifiable in itself, or by some antecedent right;
property is no exception. For this reason, M. Cousin has sought to base
it upon the SANCTITY of the human personality, and the act by which the
will assimilates a thing. "Once touched by man," says one of M. Cousin's
disciples, "things receive from him a character which transforms and
humanizes them. " I confess, for my part, that I have no faith in this
magic, and that I know of nothing less holy than the will of man. But
this theory, fragile as it seems to psychology as well as jurisprudence,
is nevertheless more philosophical and profound than those theories
which are based upon labor or the authority of the law. Now, we have
just seen to what this theory of which we are speaking leads,--to the
equality implied in the terms of its statement.
But perhaps philosophy views things from too lofty a standpoint, and
is not sufficiently practical; perhaps from the exalted summit of
speculation men seem so small to the metaphysician that he cannot
distinguish between them; perhaps, indeed, the equality of conditions is
one of those principles which are very true and sublime as generalities,
but which it would be ridiculous and even dangerous to attempt to
rigorously apply to the customs of life and to social transactions.
Undoubtedly, this is a case which calls for imitation of the wise
reserve of moralists and jurists, who warn us against carrying things to
extremes, and who advise us to suspect every definition; because there
is not one, they say, which cannot be utterly destroyed by developing
its disastrous results--_Omnis definitio in jure civili periculosa
est: parum est enim ut non subverti possit_. Equality of conditions,--a
terrible dogma in the ears of the proprietor, a consoling truth at
the poor-man's sick-bed, a frightful reality under the knife of the
anatomist,--equality of conditions, established in the political, civil,
and industrial spheres, is only an alluring impossibility, an inviting
bait, a satanic delusion.
It is never my intention to surprise my reader. I detest, as I do death,
the man who employs subterfuge in his words and conduct. From the first
page of this book, I have expressed myself so plainly and decidedly that
all can see the tendency of my thought and hopes; and they will do me
the justice to say, that it would be difficult to exhibit more frankness
and more boldness at the same time. I do not hesitate to declare that
the time is not far distant when this reserve, now so much admired in
philosophers--this happy medium so strongly recommended by professors of
moral and political science--will be regarded as the disgraceful feature
of a science without principle, and as the seal of its reprobation. In
legislation and morals, as well as in geometry, axioms are absolute,
definitions are certain; and all the results of a principle are to be
accepted, provided they are logically deduced. Deplorable pride! We know
nothing of our nature, and we charge our blunders to it; and, in a
fit of unaffected ignorance, cry out, "The truth is in doubt, the
best definition defines nothing! " We shall know some time whether this
distressing uncertainty of jurisprudence arises from the nature of
its investigations, or from our prejudices; whether, to explain social
phenomena, it is not enough to change our hypothesis, as did Copernicus
when he reversed the system of Ptolemy.
But what will be said when I show, as I soon shall, that this same
jurisprudence continually tries to base property upon equality? What
reply can be made?
% 3. --Civil Law as the Foundation and Sanction of Property.
Pothier seems to think that property, like royalty, exists by divine
right. He traces back its origin to God himself--ab Jove principium. He
begins in this way:--
"God is the absolute ruler of the universe and all that it contains:
_Domini est terra et plenitudo ejus, orbis et universi qui habitant in
eo_. For the human race he has created the earth and all its creatures,
and has given it a control over them subordinate only to his own. 'Thou
madest him to have dominion over the works of thy hands; thou hast put
all things under his feet,' says the Psalmist. God accompanied this gift
with these words, addressed to our first parents after the creation: 'Be
fruitful, and multiply and replenish the earth,'" &c.
After this magnificent introduction, who would refuse to believe the
human race to be an immense family living in brotherly union, and
under the protection of a venerable father? But, heavens! are brothers
enemies? Are fathers unnatural, and children prodigal?
GOD GAVE THE EARTH TO THE HUMAN RACE: why then have I received none? HE
HAS PUT ALL THINGS UNDER MY FEET,--and I have not where to lay my head!
MULTIPLY, he tells us through his interpreter, Pothier. Ah, learned
Pothier! that is as easy to do as to say; but you must give moss to the
bird for its nest.
"The human race having multiplied, men divided among themselves the
earth and most of the things upon it; that which fell to each, from that
time exclusively belonged to him. That was the origin of the right of
property. "
Say, rather, the right of possession. Men lived in a state of communism;
whether positive or negative it matters little. Then there was no
property, not even private possession. The genesis and growth of
possession gradually forcing people to labor for their support, they
agreed either formally or tacitly,--it makes no difference which,--that
the laborer should be sole proprietor of the fruit of his labor; that
is, they simply declared the fact that thereafter none could live
without working. It necessarily followed that, to obtain equality of
products, there must be equality of labor; and that, to obtain equality
of labor, there must be equality of facilities for labor. Whoever
without labor got possession, by force or by strategy, of another's
means of subsistence, destroyed equality, and placed himself above or
outside of the law. Whoever monopolized the means of production on the
ground of greater industry, also destroyed equality. Equality being then
the expression of right, whoever violated it was UNJUST.
Thus, labor gives birth to private possession; the right in a thing--jus
in re. But in what thing? Evidently IN THE PRODUCT, not IN THE SOIL.
So the Arabs have always understood it; and so, according to Caesar and
Tacitus, the Germans formerly held. "The Arabs," says M. de Sismondi,
"who admit a man's property in the flocks which he has raised, do not
refuse the crop to him who planted the seed; but they do not see why
another, his equal, should not have a right to plant in his turn.
The inequality which results from the pretended right of the first
occupant seems to them to be based on no principle of justice; and when
all the land falls into the hands of a certain number of inhabitants,
there results a monopoly in their favor against the rest of the nation,
to which they do not wish to submit. "
Well, they have shared the land. I admit that therefrom results a more
powerful organization of labor; and that this method of distribution,
fixed and durable, is advantageous to production: but how could this
division give to each a transferable right of property in a thing
to which all had an inalienable right of possession? In the terms
of jurisprudence, this metamorphosis from possessor to proprietor is
legally impossible; it implies in the jurisdiction of the courts the
union of possessoire and petitoire; and the mutual concessions of those
who share the land are nothing less than traffic in natural rights. The
original cultivators of the land, who were also the original makers of
the law, were not as learned as our legislators, I admit; and had
they been, they could not have done worse: they did not foresee the
consequences of the transformation of the right of private possession
into the right of absolute property. But why have not those, who in
later times have established the distinction between jus in re and jus
ad rem, applied it to the principle of property itself?
Let me call the attention of the writers on jurisprudence to their own
maxims.
The right of property, provided it can have a cause, can have but
one--_Dominium non potest nisi ex una causa contingere_. I can possess
by several titles; I can become proprietor by only one--_Non ut ex
pluribus causis idem nobis deberi potest, ita ex pluribus causis idem
potest nostrum esse_. The field which I have cleared, which I cultivate,
on which I have built my house, which supports myself, my family, and
my livestock, I can possess: 1st. As the original occupant; 2d. As a
laborer; 3d. By virtue of the social contract which assigns it to me as
my share.
But none of these titles confer upon me the right of property. For, if I
attempt to base it upon occupancy, society can reply, "I am the original
occupant. " If I appeal to my labor, it will say, "It is only on that
condition that you possess. " If I speak of agreements, it will respond,
"These agreements establish only your right of use. " Such, however, are
the only titles which proprietors advance. They never have been able
to discover any others. Indeed, every right--it is Pothier who says
it--supposes a producing cause in the person who enjoys it; but in man
who lives and dies, in this son of earth who passes away like a
shadow, there exists, with respect to external things, only titles of
possession, not one title of property. Why, then, has society recognized
a right injurious to itself, where there is no producing cause? Why,
in according possession, has it also conceded property? Why has the law
sanctioned this abuse of power?
The German Ancillon replies thus:--
"Some philosophers pretend that man, in employing his forces upon a
natural object,--say a field or a tree,--acquires a right only to the
improvements which he makes, to the form which he gives to the object,
not to the object itself. Useless distinction! If the form could be
separated from the object, perhaps there would be room for question; but
as this is almost always impossible, the application of man's strength
to the different parts of the visible world is the foundation of the
right of property, the primary origin of riches. "
Vain pretext! If the form cannot be separated from the object, nor
property from possession, possession must be shared; in any case,
society reserves the right to fix the conditions of property. Let us
suppose that an appropriated farm yields a gross income of ten thousand
francs; and, as very seldom happens, that this farm cannot be divided.
Let us suppose farther that, by economical calculation, the annual
expenses of a family are three thousand francs: the possessor of this
farm should be obliged to guard his reputation as a good father of a
family, by paying to society ten thousand francs,--less the total
costs of cultivation, and the three thousand francs required for the
maintenance of his family. This payment is not rent, it is an indemnity.
What sort of justice is it, then, which makes such laws as this:--
"Whereas, since labor so changes the form of a thing that the form
and substance cannot be separated without destroying the thing itself,
either society must be disinherited, or the laborer must lose the fruit
of his labor; and
"Whereas, in every other case, property in raw material would give a
title to added improvements, minus their cost; and whereas, in this
instance, property in improvements ought to give a title to the
principal;
"Therefore, the right of appropriation by labor shall never be admitted
against individuals, but only against society. "
In such a way do legislators always reason in regard to property.
The law is intended to protect men's mutual rights,--that is, the rights
of each against each, and each against all; and, as if a proportion
could exist with less than four terms, the law-makers always disregard
the latter. As long as man is opposed to man, property offsets property,
and the two forces balance each other; as soon as man is isolated, that
is, opposed to the society which he himself represents, jurisprudence is
at fault: Themis has lost one scale of her balance.
Listen to the professor of Rennes, the learned Toullier:--
"How could this claim, made valid by occupation, become stable and
permanent property, which might continue to stand, and which might be
reclaimed after the first occupant had relinquished possession?
"Agriculture was a natural consequence of the multiplication of the
human race, and agriculture, in its turn, favors population, and
necessitates the establishment of permanent property; for who would
take the trouble to plough and sow, if he were not certain that he would
reap? "
To satisfy the husbandman, it was sufficient to guarantee him possession
of his crop; admit even that he should have been protected in his right
of occupation of land, as long as he remained its cultivator. That was
all that he had a right to expect; that was all that the advance of
civilization demanded. But property, property! the right of escheat over
lands which one neither occupies nor cultivates,--who had authority to
grant it? who pretended to have it?
"Agriculture alone was not sufficient to establish permanent property;
positive laws were needed, and magistrates to execute them; in a word,
the civil State was needed.
"The multiplication of the human race had rendered agriculture
necessary; the need of securing to the cultivator the fruit of his labor
made permanent property necessary, and also laws for its protection. So
we are indebted to property for the creation of the civil State. "
Yes, of our civil State, as you have made it; a State which, at first,
was despotism, then monarchy, then aristocracy, today democracy, and
always tyranny.
"Without the ties of property it never would have been possible to
subordinate men to the wholesome yoke of the law; and without permanent
property the earth would have remained a vast forest. Let us admit,
then, with the most careful writers, that if transient property, or
the right of preference resulting from occupation, existed prior to
the establishment of civil society, permanent property, as we know it
to-day, is the work of civil law. It is the civil law which holds that,
when once acquired, property can be lost only by the action of
the proprietor, and that it exists even after the proprietor has
relinquished possession of the thing, and it has fallen into the hands
of a third party.
"Thus property and possession, which originally were confounded, became
through the civil law two distinct and independent things; two things
which, in the language of the law, have nothing whatever in common. In
this we see what a wonderful change has been effected in property, and
to what an extent Nature has been altered by the civil laws. "
Thus the law, in establishing property, has not been the expression of a
psychological fact, the development of a natural law, the application of
a moral principle. It has literally CREATED a right outside of its own
province. It has realized an abstraction, a metaphor, a fiction; and
that without deigning to look at the consequences, without considering
the disadvantages, without inquiring whether it was right or wrong.
It has sanctioned selfishness; it has indorsed monstrous pretensions;
it has received with favor impious vows, as if it were able to fill up a
bottomless pit, and to satiate hell! Blind law; the law of the ignorant
man; a law which is not a law; the voice of discord, deceit, and
blood! This it is which, continually revived, reinstated, rejuvenated,
restored, re-enforced--as the palladium of society--has troubled the
consciences of the people, has obscured the minds of the masters, and
has induced all the catastrophes which have befallen nations.
This it is which Christianity has condemned, but which its ignorant
ministers deify; who have as little desire to study Nature and man, as
ability to read their Scriptures.
But, indeed, what guide did the law follow in creating the domain of
property? What principle directed it? What was its standard?
Would you believe it? It was equality.
Agriculture was the foundation of territorial possession, and the
original cause of property. It was of no use to secure to the farmer the
fruit of his labor, unless the means of production were at the same time
secured to him. To fortify the weak against the invasion of the strong,
to suppress spoliation and fraud, the necessity was felt of establishing
between possessors permanent lines of division, insuperable obstacles.
Every year saw the people multiply, and the cupidity of the husbandman
increase: it was thought best to put a bridle on ambition by setting
boundaries which ambition would in vain attempt to overstep. Thus the
soil came to be appropriated through need of the equality which is
essential to public security and peaceable possession. Undoubtedly the
division was never geographically equal; a multitude of rights, some
founded in Nature, but wrongly interpreted and still more wrongly
applied, inheritance, gift, and exchange; others, like the privileges
of birth and position, the illegitimate creations of ignorance and brute
force,--all operated to prevent absolute equality. But, nevertheless,
the principle remained the same: equality had sanctioned possession;
equality sanctioned property.
The husbandman needed each year a field to sow; what more convenient and
simple arrangement for the barbarians,--instead of indulging in annual
quarrels and fights, instead of continually moving their houses,
furniture, and families from spot to spot,--than to assign to each
individual a fixed and inalienable estate?
It was not right that the soldier, on returning from an expedition,
should find himself dispossessed on account of the services which he had
just rendered to his country; his estate ought to be restored to him. It
became, therefore, customary to retain property by intent alone--_nudo
animo;_ it could be sacrificed only with the consent and by the action
of the proprietor.
It was necessary that the equality in the division should be kept up
from one generation to another, without a new distribution of the land
upon the death of each family; it appeared therefore natural and just
that children and parents, according to the degree of relationship
which they bore to the deceased, should be the heirs of their ancestors.
Thence came, in the first place, the feudal and patriarchal custom of
recognizing only one heir; then, by a quite contrary application of the
principle of equality, the admission of all the children to a share in
their father's estate, and, very recently also among us, the definitive
abolition of the right of primogeniture.
But what is there in common between these rude outlines of instinctive
organization and the true social science? How could these men, who never
had the faintest idea of statistics, valuation, or political economy,
furnish us with principles of legislation?
"The law," says a modern writer on jurisprudence, "is the expression of
a social want, the declaration of a fact: the legislator does not make
it, he declares it. 'This definition is not exact. The law is a method
by which social wants must be satisfied; the people do not vote it, the
legislator does not express it: the savant discovers and formulates it. "
But in fact, the law, according to M. Ch. Comte, who has devoted half a
volume to its definition, was in the beginning only the EXPRESSION OF
A WANT, and the indication of the means of supplying it; and up to this
time it has been nothing else. The legists--with mechanical fidelity,
full of obstinacy, enemies of philosophy, buried in literalities--have
always mistaken for the last word of science that which was only the
inconsiderate aspiration of men who, to be sure, were well-meaning, but
wanting in foresight.
They did not foresee, these old founders of the domain of property, that
the perpetual and absolute right to retain one's estate,--a right which
seemed to them equitable, because it was common,--involves the right to
transfer, sell, give, gain, and lose it; that it tends, consequently,
to nothing less than the destruction of that equality which they
established it to maintain. And though they should have foreseen it,
they disregarded it; the present want occupied their whole attention,
and, as ordinarily happens in such cases, the disadvantages were at
first scarcely perceptible, and they passed unnoticed.
They did not foresee, these ingenuous legislators, that if property is
retainable by intent alone--_nudo animo_--it carries with it the right
to let, to lease, to loan at interest, to profit by exchange, to settle
annuities, and to levy a tax on a field which intent reserves, while the
body is busy elsewhere.
They did not foresee, these fathers of our jurisprudence, that, if
the right of inheritance is any thing other than Nature's method of
preserving equality of wealth, families will soon become victims of the
most disastrous exclusions; and society, pierced to the heart by one of
its most sacred principles, will come to its death through opulence and
misery. [12]
Under whatever form of government we live, it can always be said that
_le mort saisit le vif;_ that is, that inheritance and succession will
last for ever, whoever may be the recognized heir. But the St. Simonians
wish the heir to be designated by the magistrate; others wish him to
be chosen by the deceased, or assumed by the law to be so chosen: the
essential point is that Nature's wish be satisfied, so far as the law of
equality allows.
To-day the real controller of inheritance is chance or caprice; now, in
matters of legislation, chance and caprice cannot be accepted as guides.
It is for the purpose of avoiding the manifold disturbances which
follow in the wake of chance that Nature, after having created us equal,
suggests to us the principle of heredity; which serves as a voice by
which society asks us to choose, from among all our brothers, him whom
we judge best fitted to complete our unfinished work.
They did not foresee. . . . But why need I go farther?
The consequences are plain enough, and this is not the time to criticise
the whole Code.
The history of property among the ancient nations is, then, simply a
matter of research and curiosity. It is a rule of jurisprudence that the
fact does not substantiate the right. Now, property is no exception to
this rule: then the universal recognition of the right of property
does not legitimate the right of property. Man is mistaken as to the
constitution of society, the nature of right, and the application of
justice; just as he was mistaken regarding the cause of meteors and the
movement of the heavenly bodies. His old opinions cannot be taken for
articles of faith. Of what consequence is it to us that the Indian race
was divided into four classes; that, on the banks of the Nile and the
Ganges, blood and position formerly determined the distribution of the
land; that the Greeks and Romans placed property under the protection
of the gods; that they accompanied with religious ceremonies the work
of partitioning the land and appraising their goods? The variety of the
forms of privilege does not sanction injustice.
