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.
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.
Proudhon - What is Property? An Inquiry into the Principle of Right and of Government
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. The faith of Jupiter,
the proprietor, [13] proves no more against the equality of citizens,
than do the mysteries of Venus, the wanton, against conjugal chastity.
The authority of the human race is of no effect as evidence in favor
of the right of property, because this right, resting of necessity upon
equality, contradicts its principle; the decision of the religions which
have sanctioned it is of no effect, because in all ages the priest
has submitted to the prince, and the gods have always spoken as the
politicians desired; the social advantages, attributed to property,
cannot be cited in its behalf, because they all spring from the
principle of equality of possession.
What means, then, this dithyramb upon property?
"The right of property is the most important of human institutions. ". . .
Yes; as monarchy is the most glorious.
"The original cause of man's prosperity upon earth. "
Because justice was supposed to be its principle.
"Property became the legitimate end of his ambition, the hope of his
existence, the shelter of his family; in a word, the corner-stone of the
domestic dwelling, of communities, and of the political State. "
Possession alone produced all that.
"Eternal principle,--"
Property is eternal, like every negation,--
"Of all social and civil institutions. "
For that reason, every institution and every law based on property will
perish.
"It is a boon as precious as liberty. "
For the rich proprietor.
"In fact, the cause of the cultivation of the habitable earth. "
If the cultivator ceased to be a tenant, would the land be worse cared
for?
"The guarantee and the morality of labor. "
Under the regime of property, labor is not a condition, but a privilege.
"The application of justice. "
What is justice without equality of fortunes? A balance with false
weights.
"All morality,--"
A famished stomach knows no morality,--
"All public order,--"
Certainly, the preservation of property,--
"Rest on the right of property. " [14]
Corner-stone of all which is, stumbling-block of all which ought to
be,--such is property.
To sum up and conclude:--
Not only does occupation lead to equality, it PREVENTS property. For,
since every man, from the fact of his existence, has the right of
occupation, and, in order to live, must have material for cultivation
on which he may labor; and since, on the other hand, the number of
occupants varies continually with the births and deaths,--it follows
that the quantity of material which each laborer may claim varies
with the number of occupants; consequently, that occupation is always
subordinate to population. Finally, that, inasmuch as possession, in
right, can never remain fixed, it is impossible, in fact, that it can
ever become property.
Every occupant is, then, necessarily a possessor or usufructuary,--a
function which excludes proprietorship. Now, this is the right of the
usufructuary: he is responsible for the thing entrusted to him; he
must use it in conformity with general utility, with a view to its
preservation and development; he has no power to transform it, to
diminish it, or to change its nature; he cannot so divide the usufruct
that another shall perform the labor while he receives the product. In a
word, the usufructuary is under the supervision of society, submitted to
the condition of labor and the law of equality.
Thus is annihilated the Roman definition of property--THE RIGHT OF USE
AND ABUSE--an immorality born of violence, the most monstrous pretension
that the civil laws ever sanctioned. Man receives his usufruct from the
hands of society, which alone is the permanent possessor. The individual
passes away, society is deathless.
What a profound disgust fills my soul while discussing such simple
truths! Do we doubt these things to-day? Will it be necessary to again
take arms for their triumph? And can force, in default of reason, alone
introduce them into our laws?
ALL HAVE AN EQUAL RIGHT OF OCCUPANCY.
THE AMOUNT OCCUPIED BEING MEASURED, NOT BY THE WILL, BUT BY THE VARIABLE
CONDITIONS OF SPACE AND NUMBER, PROPERTY CANNOT EXIST.
This no code has ever expressed; this no constitution can admit! These
are axioms which the civil law and the law of nations deny! . . . . .
But I hear the exclamations of the partisans of another system: "Labor,
labor! that is the basis of property! "
Reader, do not be deceived. This new basis of property is worse than the
first, and I shall soon have to ask your pardon for having demonstrated
things clearer, and refuted pretensions more unjust, than any which we
have yet considered.
CHAPTER III. LABOR AS THE EFFICIENT CAUSE OF THE DOMAIN OF PROPERTY.
Nearly all the modern writers on jurisprudence, taking their cue from
the economists, have abandoned the theory of first occupancy as a too
dangerous one, and have adopted that which regards property as born of
labor. In this they are deluded; they reason in a circle. To labor it is
necessary to occupy, says M. Cousin.
Consequently, I have added in my turn, all having an equal right of
occupancy, to labor it is necessary to submit to equality. "The rich,"
exclaims Jean Jacques, "have the arrogance to say, 'I built this wall; I
earned this land by my labor. ' Who set you the tasks? we may reply, and
by what right do you demand payment from us for labor which we did not
impose upon you? " All sophistry falls to the ground in the presence of
this argument.
But the partisans of labor do not see that their system is an absolute
contradiction of the Code, all the articles and provisions of which
suppose property to be based upon the fact of first occupancy. If labor,
through the appropriation which results from it, alone gives birth to
property, the Civil Code lies, the charter is a falsehood, our whole
social system is a violation of right. To this conclusion shall we come,
at the end of the discussion which is to occupy our attention in this
chapter and the following one, both as to the right of labor and the
fact of property. We shall see, on the one hand, our legislation in
opposition to itself; and, on the other hand, our new jurisprudence in
opposition both to its own principle and to our legislation.
I have asserted that the system which bases property upon labor implies,
no less than that which bases it upon occupation, the equality of
fortunes; and the reader must be impatient to learn how I propose to
deduce this law of equality from the inequality of skill and faculties:
directly his curiosity shall be satisfied. But it is proper that I
should call his attention for a moment to this remarkable feature of
the process; to wit, the substitution of labor for occupation as the
principle of property; and that I should pass rapidly in review some
of the prejudices to which proprietors are accustomed to appeal, which
legislation has sanctioned, and which the system of labor completely
overthrows.
Reader, were you ever present at the examination of a criminal? Have
you watched his tricks, his turns, his evasions, his distinctions, his
equivocations? Beaten, all his assertions overthrown, pursued like
a fallow deer by the in exorable judge, tracked from hypothesis
to hypothesis,--he makes a statement, he corrects it, retracts it,
contradicts it, he exhausts all the tricks of dialectics, more subtle,
more ingenious a thousand times than he who invented the seventy-two
forms of the syllogism. So acts the proprietor when called upon
to defend his right. At first he refuses to reply, he exclaims, he
threatens, he defies; then, forced to accept the discussion, he
arms himself with chicanery, he surrounds himself with formidable
artillery,--crossing his fire, opposing one by one and all together
occupation, possession, limitation, covenants, immemorial custom, and
universal consent. Conquered on this ground, the proprietor, like a
wounded boar, turns on his pursuers. "I have done more than occupy,"
he cries with terrible emotion; "I have labored, produced, improved,
transformed, CREATED. This house, these fields, these trees are the work
of my hands; I changed these brambles into a vineyard, and this bush
into a fig-tree; and to-day I reap the harvest of my labors. I have
enriched the soil with my sweat; I have paid those men who, had they not
had the work which I gave them, would have died of hunger. No one
shared with me the trouble and expense; no one shall share with me the
benefits. "
You have labored, proprietor! why then do you speak of original
occupancy? What, were you not sure of your right, or did you hope to
deceive men, and make justice an illusion? Make haste, then, to acquaint
us with your mode of defence, for the judgment will be final; and you
know it to be a question of restitution.
You have labored! but what is there in common between the labor which
duty compels you to perform, and the appropriation of things in which
there is a common interest? Do you not know that domain over the soil,
like that over air and light, cannot be lost by prescription?
You have labored! have you never made others labor? Why, then, have they
lost in laboring for you what you have gained in not laboring for them?
You have labored! very well; but let us see the results of your labor.
We will count, weigh, and measure them. It will be the judgment of
Balthasar; for I swear by balance, level, and square, that if you have
appropriated another's labor in any way whatsoever, you shall restore it
every stroke.
Thus, the principle of occupation is abandoned; no longer is it said,
"The land belongs to him who first gets possession of it. " Property,
forced into its first intrenchment, repudiates its old adage; justice,
ashamed, retracts her maxims, and sorrow lowers her bandage over her
blushing cheeks. And it was but yesterday that this progress in social
philosophy began: fifty centuries required for the extirpation of a
lie! During this lamentable period, how many usurpations have been
sanctioned, how many invasions glorified, how many conquests celebrated!
The absent dispossessed, the poor banished, the hungry excluded by
wealth, which is so ready and bold in action! Jealousies and wars,
incendiarism and bloodshed, among the nations! But henceforth, thanks
to the age and its spirit, it is to be admitted that the earth is not a
prize to be won in a race; in the absence of any other obstacle, there
is a place for everybody under the sun. Each one may harness his goat
to the bearn, drive his cattle to pasture, sow a corner of a field, and
bake his bread by his own fireside.
But, no; each one cannot do these things. I hear it proclaimed on all
sides, "Glory to labor and industry! to each according to his capacity;
to each capacity according to its results! " And I see three-fourths of
the human race again despoiled, the labor of a few being a scourge to
the labor of the rest.
"The problem is solved," exclaims M. Hennequin. "Property, the daughter
of labor, can be enjoyed at present and in the future only under the
protection of the laws. It has its origin in natural law; it derives its
power from civil law; and from the union of these two ideas, LABOR and
PROTECTION, positive legislation results. ". . .
Ah! THE PROBLEM IS SOLVED! PROPERTY IS THE DAUGHTER OF LABOR! What,
then, is the right of accession, and the right of succession, and the
right of donation, &c. , if not the right to become a proprietor by
simple occupancy? What are your laws concerning the age of majority,
emancipation, guardianship, and interdiction, if not the various
conditions by which he who is already a laborer gains or loses the right
of occupancy; that is, property?
Being unable, at this time, to enter upon a detailed discussion of the
Code, I shall content myself with examining the three arguments oftenest
resorted to in support of property. 1. APPROPRIATION, or the formation
of property by possession; 2. THE CONSENT OF MANKIND; 3. PRESCRIPTION. I
shall then inquire into the effects of labor upon the relative condition
of the laborers and upon property.
% 1. --The Land cannot be Appropriated.
"It would seem that lands capable of cultivation ought to be regarded
as natural wealth, since they are not of human creation, but Nature's
gratuitous gift to man; but inasmuch as this wealth is not fugitive,
like the air and water,--inasmuch as a field is a fixed and limited
space which certain men have been able to appropriate, to the
exclusion of all others who in their turn have consented to this
appropriation,--the land, which was a natural and gratuitous gift,
has become social wealth, for the use of which we ought to pay. "--SAY:
POLITICAL ECONOMY.
Was I wrong in saying, at the beginning of this chapter, that the
economists are the very worst authorities in matters of legislation and
philosophy? It is the FATHER of this class of men who clearly states
the question, How can the supplies of Nature, the wealth created by
Providence, become private property? and who replies by so gross an
equivocation that we scarcely know which the author lacks, sense or
honesty. What, I ask, has the fixed and solid nature of the earth to do
with the right of appropriation? I can understand that a thing LIMITED
and STATIONARY, like the land, offers greater chances for appropriation
than the water or the sunshine; that it is easier to exercise the right
of domain over the soil than over the atmosphere: but we are not dealing
with the difficulty of the thing, and Say confounds the right with the
possibility. We do not ask why the earth has been appropriated to a
greater extent than the sea and the air; we want to know by what right
man has appropriated wealth WHICH HE DID NOT CREATE, AND WHICH NATURE
GAVE TO HIM GRATUITOUSLY.
Say, then, did not solve the question which he asked. But if he had
solved it, if the explanation which he has given us were as satisfactory
as it is illogical, we should know no better than before who has a right
to exact payment for the use of the soil, of this wealth which is not
man's handiwork. Who is entitled to the rent of the land? The producer
of the land, without doubt. Who made the land? God. Then, proprietor,
retire!
But the creator of the land does not sell it: he gives it; and, in
giving it, he is no respecter of persons. Why, then, are some of his
children regarded as legitimate, while others are treated as bastards?
If the equality of shares was an original right, why is the inequality
of conditions a posthumous right?
Say gives us to understand that if the air and the water were not of a
FUGITIVE nature, they would have been appropriated. Let me observe in
passing that this is more than an hypothesis; it is a reality. Men have
appropriated the air and the water, I will not say as often as they
could, but as often as they have been allowed to.
The Portuguese, having discovered the route to India by the Cape of
Good Hope, pretended to have the sole right to that route; and Grotius,
consulted in regard to this matter by the Dutch who refused to recognize
this right, wrote expressly for this occasion his treatise on
the "Freedom of the Seas," to prove that the sea is not liable to
appropriation.
The right to hunt and fish used always to be confined to lords and
proprietors; to-day it is leased by the government and communes to
whoever can pay the license-fee and the rent. To regulate hunting and
fishing is an excellent idea, but to make it a subject of sale is to
create a monopoly of air and water.
What is a passport? A universal recommendation of the traveller's
person; a certificate of security for himself and his property. The
treasury, whose nature it is to spoil the best things, has made the
passport a means of espionage and a tax. Is not this a sale of the right
to travel?
Finally, it is permissible neither to draw water from a spring situated
in another's grounds without the permission of the proprietor, because
by the right of accession the spring belongs to the possessor of the
soil, if there is no other claim; nor to pass a day on his premises
without paying a tax; nor to look at a court, a garden, or an orchard,
without the consent of the proprietor; nor to stroll in a park or an
enclosure against the owner's will: every one is allowed to shut himself
up and to fence himself in. All these prohibitions are so many positive
interdictions, not only of the land, but of the air and water. We who
belong to the proletaire class: property excommunicates us! _Terra, et
aqua, et aere, et igne interdicti sumus_.
Men could not appropriate the most fixed of all the elements without
appropriating the three others; since, by French and Roman law, property
in the surface carries with it property from zenith to nadir--_Cujus
est solum, ejus est usque ad caelum_. Now, if the use of water, air,
and fire excludes property, so does the use of the soil. This chain of
reasoning seems to have been presented by M. Ch. Comte, in his "Treatise
on Property," chap. 5.
"If a man should be deprived of air for a few moments only, he would
cease to exist, and a partial deprivation would cause him severe
suffering; a partial or complete deprivation of food would produce like
effects upon him though less suddenly; it would be the same, at least
in certain climates! were he deprived of all clothing and shelter. . . . To
sustain life, then, man needs continually to appropriate many different
things. But these things do not exist in like proportions. Some, such as
the light of the stars, the atmosphere of the earth, the water composing
the seas and oceans, exist in such large quantities that men cannot
perceive any sensible increase or diminution; each one can appropriate
as much as his needs require without detracting from the enjoyment of
others, without causing them the least harm. Things of this sort are, so
to speak, the common property of the human race; the only duty imposed
upon each individual in this regard is that of infringing not at all
upon the rights of others. "
Let us complete the argument of M. Ch. Comte. A man who should be
prohibited from walking in the highways, from resting in the fields,
from taking shelter in caves, from lighting fires, from picking berries,
from gathering herbs and boiling them in a bit of baked clay,--such
a man could not live. Consequently the earth--like water, air, and
light--is a primary object of necessity which each has a right to use
freely, without infringing another's right. Why, then, is the earth
appropriated? M.
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. The faith of Jupiter,
the proprietor, [13] proves no more against the equality of citizens,
than do the mysteries of Venus, the wanton, against conjugal chastity.
The authority of the human race is of no effect as evidence in favor
of the right of property, because this right, resting of necessity upon
equality, contradicts its principle; the decision of the religions which
have sanctioned it is of no effect, because in all ages the priest
has submitted to the prince, and the gods have always spoken as the
politicians desired; the social advantages, attributed to property,
cannot be cited in its behalf, because they all spring from the
principle of equality of possession.
What means, then, this dithyramb upon property?
"The right of property is the most important of human institutions. ". . .
Yes; as monarchy is the most glorious.
"The original cause of man's prosperity upon earth. "
Because justice was supposed to be its principle.
"Property became the legitimate end of his ambition, the hope of his
existence, the shelter of his family; in a word, the corner-stone of the
domestic dwelling, of communities, and of the political State. "
Possession alone produced all that.
"Eternal principle,--"
Property is eternal, like every negation,--
"Of all social and civil institutions. "
For that reason, every institution and every law based on property will
perish.
"It is a boon as precious as liberty. "
For the rich proprietor.
"In fact, the cause of the cultivation of the habitable earth. "
If the cultivator ceased to be a tenant, would the land be worse cared
for?
"The guarantee and the morality of labor. "
Under the regime of property, labor is not a condition, but a privilege.
"The application of justice. "
What is justice without equality of fortunes? A balance with false
weights.
"All morality,--"
A famished stomach knows no morality,--
"All public order,--"
Certainly, the preservation of property,--
"Rest on the right of property. " [14]
Corner-stone of all which is, stumbling-block of all which ought to
be,--such is property.
To sum up and conclude:--
Not only does occupation lead to equality, it PREVENTS property. For,
since every man, from the fact of his existence, has the right of
occupation, and, in order to live, must have material for cultivation
on which he may labor; and since, on the other hand, the number of
occupants varies continually with the births and deaths,--it follows
that the quantity of material which each laborer may claim varies
with the number of occupants; consequently, that occupation is always
subordinate to population. Finally, that, inasmuch as possession, in
right, can never remain fixed, it is impossible, in fact, that it can
ever become property.
Every occupant is, then, necessarily a possessor or usufructuary,--a
function which excludes proprietorship. Now, this is the right of the
usufructuary: he is responsible for the thing entrusted to him; he
must use it in conformity with general utility, with a view to its
preservation and development; he has no power to transform it, to
diminish it, or to change its nature; he cannot so divide the usufruct
that another shall perform the labor while he receives the product. In a
word, the usufructuary is under the supervision of society, submitted to
the condition of labor and the law of equality.
Thus is annihilated the Roman definition of property--THE RIGHT OF USE
AND ABUSE--an immorality born of violence, the most monstrous pretension
that the civil laws ever sanctioned. Man receives his usufruct from the
hands of society, which alone is the permanent possessor. The individual
passes away, society is deathless.
What a profound disgust fills my soul while discussing such simple
truths! Do we doubt these things to-day? Will it be necessary to again
take arms for their triumph? And can force, in default of reason, alone
introduce them into our laws?
ALL HAVE AN EQUAL RIGHT OF OCCUPANCY.
THE AMOUNT OCCUPIED BEING MEASURED, NOT BY THE WILL, BUT BY THE VARIABLE
CONDITIONS OF SPACE AND NUMBER, PROPERTY CANNOT EXIST.
This no code has ever expressed; this no constitution can admit! These
are axioms which the civil law and the law of nations deny! . . . . .
But I hear the exclamations of the partisans of another system: "Labor,
labor! that is the basis of property! "
Reader, do not be deceived. This new basis of property is worse than the
first, and I shall soon have to ask your pardon for having demonstrated
things clearer, and refuted pretensions more unjust, than any which we
have yet considered.
CHAPTER III. LABOR AS THE EFFICIENT CAUSE OF THE DOMAIN OF PROPERTY.
Nearly all the modern writers on jurisprudence, taking their cue from
the economists, have abandoned the theory of first occupancy as a too
dangerous one, and have adopted that which regards property as born of
labor. In this they are deluded; they reason in a circle. To labor it is
necessary to occupy, says M. Cousin.
Consequently, I have added in my turn, all having an equal right of
occupancy, to labor it is necessary to submit to equality. "The rich,"
exclaims Jean Jacques, "have the arrogance to say, 'I built this wall; I
earned this land by my labor. ' Who set you the tasks? we may reply, and
by what right do you demand payment from us for labor which we did not
impose upon you? " All sophistry falls to the ground in the presence of
this argument.
But the partisans of labor do not see that their system is an absolute
contradiction of the Code, all the articles and provisions of which
suppose property to be based upon the fact of first occupancy. If labor,
through the appropriation which results from it, alone gives birth to
property, the Civil Code lies, the charter is a falsehood, our whole
social system is a violation of right. To this conclusion shall we come,
at the end of the discussion which is to occupy our attention in this
chapter and the following one, both as to the right of labor and the
fact of property. We shall see, on the one hand, our legislation in
opposition to itself; and, on the other hand, our new jurisprudence in
opposition both to its own principle and to our legislation.
I have asserted that the system which bases property upon labor implies,
no less than that which bases it upon occupation, the equality of
fortunes; and the reader must be impatient to learn how I propose to
deduce this law of equality from the inequality of skill and faculties:
directly his curiosity shall be satisfied. But it is proper that I
should call his attention for a moment to this remarkable feature of
the process; to wit, the substitution of labor for occupation as the
principle of property; and that I should pass rapidly in review some
of the prejudices to which proprietors are accustomed to appeal, which
legislation has sanctioned, and which the system of labor completely
overthrows.
Reader, were you ever present at the examination of a criminal? Have
you watched his tricks, his turns, his evasions, his distinctions, his
equivocations? Beaten, all his assertions overthrown, pursued like
a fallow deer by the in exorable judge, tracked from hypothesis
to hypothesis,--he makes a statement, he corrects it, retracts it,
contradicts it, he exhausts all the tricks of dialectics, more subtle,
more ingenious a thousand times than he who invented the seventy-two
forms of the syllogism. So acts the proprietor when called upon
to defend his right. At first he refuses to reply, he exclaims, he
threatens, he defies; then, forced to accept the discussion, he
arms himself with chicanery, he surrounds himself with formidable
artillery,--crossing his fire, opposing one by one and all together
occupation, possession, limitation, covenants, immemorial custom, and
universal consent. Conquered on this ground, the proprietor, like a
wounded boar, turns on his pursuers. "I have done more than occupy,"
he cries with terrible emotion; "I have labored, produced, improved,
transformed, CREATED. This house, these fields, these trees are the work
of my hands; I changed these brambles into a vineyard, and this bush
into a fig-tree; and to-day I reap the harvest of my labors. I have
enriched the soil with my sweat; I have paid those men who, had they not
had the work which I gave them, would have died of hunger. No one
shared with me the trouble and expense; no one shall share with me the
benefits. "
You have labored, proprietor! why then do you speak of original
occupancy? What, were you not sure of your right, or did you hope to
deceive men, and make justice an illusion? Make haste, then, to acquaint
us with your mode of defence, for the judgment will be final; and you
know it to be a question of restitution.
You have labored! but what is there in common between the labor which
duty compels you to perform, and the appropriation of things in which
there is a common interest? Do you not know that domain over the soil,
like that over air and light, cannot be lost by prescription?
You have labored! have you never made others labor? Why, then, have they
lost in laboring for you what you have gained in not laboring for them?
You have labored! very well; but let us see the results of your labor.
We will count, weigh, and measure them. It will be the judgment of
Balthasar; for I swear by balance, level, and square, that if you have
appropriated another's labor in any way whatsoever, you shall restore it
every stroke.
Thus, the principle of occupation is abandoned; no longer is it said,
"The land belongs to him who first gets possession of it. " Property,
forced into its first intrenchment, repudiates its old adage; justice,
ashamed, retracts her maxims, and sorrow lowers her bandage over her
blushing cheeks. And it was but yesterday that this progress in social
philosophy began: fifty centuries required for the extirpation of a
lie! During this lamentable period, how many usurpations have been
sanctioned, how many invasions glorified, how many conquests celebrated!
The absent dispossessed, the poor banished, the hungry excluded by
wealth, which is so ready and bold in action! Jealousies and wars,
incendiarism and bloodshed, among the nations! But henceforth, thanks
to the age and its spirit, it is to be admitted that the earth is not a
prize to be won in a race; in the absence of any other obstacle, there
is a place for everybody under the sun. Each one may harness his goat
to the bearn, drive his cattle to pasture, sow a corner of a field, and
bake his bread by his own fireside.
But, no; each one cannot do these things. I hear it proclaimed on all
sides, "Glory to labor and industry! to each according to his capacity;
to each capacity according to its results! " And I see three-fourths of
the human race again despoiled, the labor of a few being a scourge to
the labor of the rest.
"The problem is solved," exclaims M. Hennequin. "Property, the daughter
of labor, can be enjoyed at present and in the future only under the
protection of the laws. It has its origin in natural law; it derives its
power from civil law; and from the union of these two ideas, LABOR and
PROTECTION, positive legislation results. ". . .
Ah! THE PROBLEM IS SOLVED! PROPERTY IS THE DAUGHTER OF LABOR! What,
then, is the right of accession, and the right of succession, and the
right of donation, &c. , if not the right to become a proprietor by
simple occupancy? What are your laws concerning the age of majority,
emancipation, guardianship, and interdiction, if not the various
conditions by which he who is already a laborer gains or loses the right
of occupancy; that is, property?
Being unable, at this time, to enter upon a detailed discussion of the
Code, I shall content myself with examining the three arguments oftenest
resorted to in support of property. 1. APPROPRIATION, or the formation
of property by possession; 2. THE CONSENT OF MANKIND; 3. PRESCRIPTION. I
shall then inquire into the effects of labor upon the relative condition
of the laborers and upon property.
% 1. --The Land cannot be Appropriated.
"It would seem that lands capable of cultivation ought to be regarded
as natural wealth, since they are not of human creation, but Nature's
gratuitous gift to man; but inasmuch as this wealth is not fugitive,
like the air and water,--inasmuch as a field is a fixed and limited
space which certain men have been able to appropriate, to the
exclusion of all others who in their turn have consented to this
appropriation,--the land, which was a natural and gratuitous gift,
has become social wealth, for the use of which we ought to pay. "--SAY:
POLITICAL ECONOMY.
Was I wrong in saying, at the beginning of this chapter, that the
economists are the very worst authorities in matters of legislation and
philosophy? It is the FATHER of this class of men who clearly states
the question, How can the supplies of Nature, the wealth created by
Providence, become private property? and who replies by so gross an
equivocation that we scarcely know which the author lacks, sense or
honesty. What, I ask, has the fixed and solid nature of the earth to do
with the right of appropriation? I can understand that a thing LIMITED
and STATIONARY, like the land, offers greater chances for appropriation
than the water or the sunshine; that it is easier to exercise the right
of domain over the soil than over the atmosphere: but we are not dealing
with the difficulty of the thing, and Say confounds the right with the
possibility. We do not ask why the earth has been appropriated to a
greater extent than the sea and the air; we want to know by what right
man has appropriated wealth WHICH HE DID NOT CREATE, AND WHICH NATURE
GAVE TO HIM GRATUITOUSLY.
Say, then, did not solve the question which he asked. But if he had
solved it, if the explanation which he has given us were as satisfactory
as it is illogical, we should know no better than before who has a right
to exact payment for the use of the soil, of this wealth which is not
man's handiwork. Who is entitled to the rent of the land? The producer
of the land, without doubt. Who made the land? God. Then, proprietor,
retire!
But the creator of the land does not sell it: he gives it; and, in
giving it, he is no respecter of persons. Why, then, are some of his
children regarded as legitimate, while others are treated as bastards?
If the equality of shares was an original right, why is the inequality
of conditions a posthumous right?
Say gives us to understand that if the air and the water were not of a
FUGITIVE nature, they would have been appropriated. Let me observe in
passing that this is more than an hypothesis; it is a reality. Men have
appropriated the air and the water, I will not say as often as they
could, but as often as they have been allowed to.
The Portuguese, having discovered the route to India by the Cape of
Good Hope, pretended to have the sole right to that route; and Grotius,
consulted in regard to this matter by the Dutch who refused to recognize
this right, wrote expressly for this occasion his treatise on
the "Freedom of the Seas," to prove that the sea is not liable to
appropriation.
The right to hunt and fish used always to be confined to lords and
proprietors; to-day it is leased by the government and communes to
whoever can pay the license-fee and the rent. To regulate hunting and
fishing is an excellent idea, but to make it a subject of sale is to
create a monopoly of air and water.
What is a passport? A universal recommendation of the traveller's
person; a certificate of security for himself and his property. The
treasury, whose nature it is to spoil the best things, has made the
passport a means of espionage and a tax. Is not this a sale of the right
to travel?
Finally, it is permissible neither to draw water from a spring situated
in another's grounds without the permission of the proprietor, because
by the right of accession the spring belongs to the possessor of the
soil, if there is no other claim; nor to pass a day on his premises
without paying a tax; nor to look at a court, a garden, or an orchard,
without the consent of the proprietor; nor to stroll in a park or an
enclosure against the owner's will: every one is allowed to shut himself
up and to fence himself in. All these prohibitions are so many positive
interdictions, not only of the land, but of the air and water. We who
belong to the proletaire class: property excommunicates us! _Terra, et
aqua, et aere, et igne interdicti sumus_.
Men could not appropriate the most fixed of all the elements without
appropriating the three others; since, by French and Roman law, property
in the surface carries with it property from zenith to nadir--_Cujus
est solum, ejus est usque ad caelum_. Now, if the use of water, air,
and fire excludes property, so does the use of the soil. This chain of
reasoning seems to have been presented by M. Ch. Comte, in his "Treatise
on Property," chap. 5.
"If a man should be deprived of air for a few moments only, he would
cease to exist, and a partial deprivation would cause him severe
suffering; a partial or complete deprivation of food would produce like
effects upon him though less suddenly; it would be the same, at least
in certain climates! were he deprived of all clothing and shelter. . . . To
sustain life, then, man needs continually to appropriate many different
things. But these things do not exist in like proportions. Some, such as
the light of the stars, the atmosphere of the earth, the water composing
the seas and oceans, exist in such large quantities that men cannot
perceive any sensible increase or diminution; each one can appropriate
as much as his needs require without detracting from the enjoyment of
others, without causing them the least harm. Things of this sort are, so
to speak, the common property of the human race; the only duty imposed
upon each individual in this regard is that of infringing not at all
upon the rights of others. "
Let us complete the argument of M. Ch. Comte. A man who should be
prohibited from walking in the highways, from resting in the fields,
from taking shelter in caves, from lighting fires, from picking berries,
from gathering herbs and boiling them in a bit of baked clay,--such
a man could not live. Consequently the earth--like water, air, and
light--is a primary object of necessity which each has a right to use
freely, without infringing another's right. Why, then, is the earth
appropriated? M.
