No More Learning

Under Vespasian and Titus, Pliny, the
naturalist, exclaimed: "Large estates have ruined Italy, and are ruining
the provinces. "


But it never has been understood that the extension of property was
effected then, as it is to-day, under the aegis of the law, and by
virtue of the constitution. When the Senate sold captured lands at
auction, it was in the interest of the treasury and of public welfare.
When the patricians bought up possessions and property, they realized
the purpose of the Senate's decrees; when they lent at high rates of
interest, they took advantage of a legal privilege. "Property," said the
lender, "is the right to enjoy even to the extent of abuse, _jus utendi
et abutendi_; that is, the right to lend at interest,--to lease, to
acquire, and then to lease and lend again. " But property is also the
right to exchange, to transfer, and to sell. If, then, the social
condition is such that the proprietor, ruined by usury, may be compelled
to sell his possession, the means of his subsistence, he will sell
it; and, thanks to the law, accumulated property--devouring and
anthropophagous property--will be established. [56]


The immediate and secondary cause of the decline of the Romans
was, then, the internal dissensions between the two orders of the
republic,--the patricians and the plebeians,--dissensions which gave
rise to civil wars, proscriptions, and loss of liberty, and finally led
to the empire; but the primary and mediate cause of their decline was
the establishment by Numa of the institution of property.

I end with an extract from a work which I have quoted several times
already, and which has recently received a prize from the Academy of
Moral and Political Sciences:--


"The concentration of property," says M. Laboulaye, "while causing
extreme poverty, forced the emperors to feed and amuse the people, that
they might forget their misery. _Panem et circenses:_ that was the Roman
law in regard to the poor; a dire and perhaps a necessary evil wherever
a landed aristocracy exists.

"To feed these hungry mouths, grain was brought from Africa and the
provinces, and distributed gratuitously among the needy. In the time of
Caesar, three hundred and twenty thousand people were thus fed. Augustus
saw that such a measure led directly to the destruction of husbandry;
but to abolish these distributions was to put a weapon within the reach
of the first aspirant for power.

"The emperor shrank at the thought.

"While grain was gratuitous, agriculture was impossible. Tillage gave
way to pasturage, another cause of depopulation, even among slaves.

"Finally, luxury, carried further and further every day, covered the
soil of Italy with elegant villas, which occupied whole cantons. Gardens
and groves replaced the fields, and the free population fled to the
towns. Husbandry disappeared almost entirely, and with husbandry the
husbandman. Africa furnished the wheat, and Greece the wine. Tiberius
complained bitterly of this evil, which placed the lives of the Roman
people at the mercy of the winds and waves: that was his anxiety. One
day later, and three hundred thousand starving men walked the streets of
Rome: that was a revolution.

"This decline of Italy and the provinces did not stop. After the
reign of Nero, depopulation commenced in towns as noted as Antium and
Tarentum. Under the reign of Pertinax, there was so much desert land
that the emperor abandoned it, even that which belonged to the treasury,
to whoever would cultivate it, besides exempting the farmers from
taxation for a period of ten years. Senators were compelled to invest
one-third of their fortunes in real estate in Italy; but this measure
served only to increase the evil which they wished to cure. To force
the rich to possess in Italy was to increase the large estates which
had ruined the country. And must I say, finally, that Aurelian wished to
send the captives into the desert lands of Etruria, and that Valentinian
was forced to settle the Alamanni on the fertile banks of the Po? "


If the reader, in running through this book, should complain of meeting
with nothing but quotations from other works, extracts from journals
and public lectures, comments upon laws, and interpretations of them, I
would remind him that the very object of this memoir is to establish the
conformity of my opinion concerning property with that universally held;
that, far from aiming at a paradox, it has been my main study to follow
the advice of the world; and, finally, that my sole pretension is to
clearly formulate the general belief. I cannot repeat it too often,--and
I confess it with pride,--I teach absolutely nothing that is new; and I
should regard the doctrine which I advocate as radically erroneous, if a
single witness should testify against it.

Let us now trace the revolutions in property among the Barbarians.

As long as the German tribes dwelt in their forests, it did not occur
to them to divide and appropriate the soil. The land was held in common:
each individual could plow, sow, and reap. But, when the empire was once
invaded, they bethought themselves of sharing the land, just as
they shared spoils after a victory. "Hence," says M. Laboulaye, "the
expressions _sortes Burgundiorum Gothorum_ and {GREEK, ' k }; hence the
German words _allod_, allodium, and _loos_, lot, which are used in all
modern languages to designate the gifts of chance. "

Allodial property, at least with the mass of coparceners, was originally
held, then, in equal shares; for all of the prizes were equal, or, at
least, equivalent. This property, like that of the Romans, was wholly
individual, independent, exclusive, transferable, and consequently
susceptible of accumulation and invasion. But, instead of its being, as
was the case among the Romans, the large estate which, through
increase and usury, subordinated and absorbed the small one, among
the Barbarians--fonder of war than of wealth, more eager to dispose
of persons than to appropriate things--it was the warrior who, through
superiority of arms, enslaved his adversary. The Roman wanted matter;
the Barbarian wanted man. Consequently, in the feudal ages, rents were
almost nothing,--simply a hare, a partridge, a pie, a few pints of wine
brought by a little girl, or a Maypole set up within the suzerain's
reach. In return, the vassal or incumbent had to follow the seignior
to battle (a thing which happened almost every day), and equip and feed
himself at his own expense. "This spirit of the German tribes--this
spirit of companionship and association--governed the territory as it
governed individuals. The lands, like the men, were secured to a chief
or seignior by a bond of mutual protection and fidelity. This subjection
was the labor of the German epoch which gave birth to feudalism. By fair
means or foul, every proprietor who could not be a chief was forced to
be a vassal. " (Laboulaye: History of Property. )

By fair means or foul, every mechanic who cannot be a master has to be
a journeyman; every proprietor who is not an invader will be invaded;
every producer who cannot, by the exploitation of other men, furnish
products at less than their proper value, will lose his labor.
Corporations and masterships, which are hated so bitterly, but which
will reappear if we are not careful, are the necessary results of
the principle of competition which is inherent in property; their
organization was patterned formerly after that of the feudal hierarchy,
which was the result of the subordination of men and possessions.

The times which paved the way for the advent of feudalism and the
reappearance of large proprietors were times of carnage and the most
frightful anarchy. Never before had murder and violence made such havoc
with the human race. The tenth century, among others, if my memory
serves me rightly, was called the CENTURY OF IRON. His property, his
life, and the honor of his wife and children always in danger the
small proprietor made haste to do homage to his seignior, and to
bestow something on the church of his freehold, that he might receive
protection and security.


"Both facts and laws bear witness that from the sixth to the tenth
century the proprietors of small freeholds were gradually plundered,
or reduced by the encroachments of large proprietors and counts to the
condition of either vassals or tributaries. The Capitularies are full
of repressive provisions; but the incessant reiteration of these
threats only shows the perseverance of the evil and the impotency of the
government. Oppression, moreover, varies but little in its methods. The
complaints of the free proprietors, and the groans of the plebeians
at the time of the Gracchi, were one and the same. It is said that,
whenever a poor man refused to give his estate to the bishop, the
curate, the count, the judge, or the centurion, these immediately sought
an opportunity to ruin him. They made him serve in the army until,
completely ruined, he was induced, by fair means or foul, to give up his
freehold. "--Laboulaye: History of Property.

How many small proprietors and manufacturers have not been ruined by
large ones through chicanery, law-suits, and competition? Strategy,
violence, and usury,--such are the proprietor's methods of plundering
the laborer.

Thus we see property, at all ages and in all its forms, oscillating by
virtue of its principle between two opposite terms,--extreme division
and extreme accumulation.

Property, at its first term, is almost null. Reduced to personal
exploitation, it is property only potentially. At its second term, it
exists in its perfection; then it is truly property.

When property is widely distributed, society thrives, progresses, grows,
and rises quickly to the zenith of its power. Thus, the Jews, after
leaving Babylon with Esdras and Nehemiah, soon became richer and more
powerful than they had been under their kings. Sparta was in a strong
and prosperous condition during the two or three centuries which
followed the death of Lycurgus. The best days of Athens were those of
the Persian war; Rome, whose inhabitants were divided from the beginning
into two classes,--the exploiters and the exploited,--knew no such thing
as peace.

When property is concentrated, society, abusing itself, polluted, so
to speak, grows corrupt, wears itself out--how shall I express this
horrible idea? --plunges into long-continued and fatal luxury.

When feudalism was established, society had to die of the same disease
which killed it under the Caesars,--I mean accumulated property. But
humanity, created for an immortal destiny, is deathless; the revolutions
which disturb it are purifying crises, invariably followed by more
vigorous health. In the fifth century, the invasion of the Barbarians
partially restored the world to a state of natural equality. In the
twelfth century, a new spirit pervading all society gave the slave his
rights, and through justice breathed new life into the heart of nations.
It has been said, and often repeated, that Christianity regenerated the
world. That is true; but it seems to me that there is a mistake in
the date. Christianity had no influence upon Roman society; when the
Barbarians came, that society had disappeared. For such is God's curse
upon property; every political organization based upon the exploitation
of man, shall perish: slave-labor is death to the race of tyrants. The
patrician families became extinct, as the feudal families did, and as
all aristocracies must.

It was in the middle ages, when a reactionary movement was beginning
to secretly undermine accumulated property, that the influence of
Christianity was first exercised to its full extent.

The destruction of feudalism, the conversion of the serf into the
commoner, the emancipation of the communes, and the admission of the
Third Estate to political power, were deeds accomplished by Christianity
exclusively. I say Christianity, not ecclesiasticism; for the priests
and bishops were themselves large proprietors, and as such often
persecuted the villeins. Without the Christianity of the middle ages,
the existence of modern society could not be explained, and would not be
possible.

The truth of this assertion is shown by the very facts which M.
Laboulaye quotes, although this author inclines to the opposite opinion.
[57]

Now, we did not commence to love God and to think of our salvation until
after the promulgation of the Gospel.


1. Slavery among the Romans. --"The Roman slave was, in the eyes of
the law, only a thing,--no more than an ox or a horse. He had neither
property, family, nor personality; he was defenceless against his
master's cruelty, folly, or cupidity. 'Sell your oxen that are past
use,' said Cato, 'sell your calves, your lambs, your wool, your hides,
your old ploughs, your old iron, your old slave, and your sick slave,
and all that is of no use to you. ' When no market could be found for the
slaves that were worn out by sickness or old age, they were abandoned to
starvation. Claudius was the first defender of this shameful practice. "


"Discharge your old workman," says the economist of the proprietary
school; "turn off that sick domestic, that toothless and worn-out
servant. Put away the unserviceable beauty; to the hospital with the
useless mouths! "


"The condition of these wretched beings improved but little under the
emperors; and the best that can be said of the goodness of Antoninus
is that he prohibited intolerable cruelty, as an ABUSE OF PROPERTY.
_Expedit enim reipublicae ne quis re re sua male utatur_, says Gaius.

"As soon as the Church met in council, it launched an anathema against
the masters who had exercised over their slaves this terrible right of
life and death. Were not the slaves, thanks to the right of sanctuary
and to their poverty, the dearest proteges of religion? Constantine, who
embodied in the laws the grand ideas of Christianity, valued the life of
a slave as highly as that of a freeman, and declared the master, who had
intentionally brought death upon his slave, guilty of murder. Between
this law and that of Antoninus there is a complete revolution in moral
ideas: the slave was a thing; religion has made him a man. "

Note the last words: "Between the law of the Gospel and that of
Antoninus there is a complete revolution in moral ideas: the slave was
a thing; religion has made him a man. " The moral revolution which
transformed the slave into a citizen was effected, then, by Christianity
before the Barbarians set foot upon the soil of the empire. We have
only to trace the progress of this MORAL revolution in the PERSONNEL
of society. "But," M. Laboulaye rightly says, "it did not change the
condition of men in a moment, any more than that of things; between
slavery and liberty there was an abyss which could not be filled in a
day; the transitional step was servitude. "

Now, what was servitude? In what did it differ from Roman slavery, and
whence came this difference? Let the same author answer.


2. Of servitude. --"I see, in the lord's manor, slaves charged with
domestic duties. Some are employed in the personal service of the
master; others are charged with household cares. The women spin the
wool; the men grind the grain, make the bread, or practise, in the
interest of the seignior, what little they know of the industrial arts.
The master punishes them when he chooses, kills them with impunity, and
sells them and theirs like so many cattle. The slave has no personality,
and consequently no _wehrgeld_ [59] peculiar to himself: he is a thing.
The _wehrgeld_ belongs to the master as a compensation for the loss of
his property. Whether the slave is killed or stolen, the indemnity does
not change, for the injury is the same; but the indemnity increases or
diminishes according to the value of the serf. In all these particulars
Germanic slavery and Roman servitude are alike. "

This similarity is worthy of notice. Slavery is always the same, whether
in a Roman villa or on a Barbarian farm. The man, like the ox and the
ass, is a part of the live-stock; a price is set upon his head; he is a
tool without a conscience, a chattel without personality, an impeccable,
irresponsible being, who has neither rights nor duties.


Why did his condition improve?


"In good season. . . " [when? ] "the serf began to be regarded as a man;
and, as such, the law of the Visigoths, under the influence of Christian
ideas, punished with fine or banishment any one who maimed or killed
him. "


Always Christianity, always religion, though we should like to speak
of the laws only. Did the philanthropy of the Visigoths make its first
appearance before or after the preaching of the Gospel? This point must
be cleared up.


"After the conquest, the serfs were scattered over the large estates
of the Barbarians, each having his house, his lot, and his peculium, in
return for which he paid rent and performed service. They were rarely
separated from their homes when their land was sold; they and all that
they had became the property of the purchaser. The law favored this
realization of the serf, in not allowing him to be sold out of the
country. "


What inspired this law, destructive not only of slavery, but of property
itself? For, if the master cannot drive from his domain the slave whom
he has once established there, it follows that the slave is proprietor,
as well as the master.


"The Barbarians," again says M. Laboulaye, "were the first to recognize
the slave's rights of family and property,--two rights which are
incompatible with slavery. "


But was this recognition the necessary result of the mode of servitude
in vogue among the Germanic nations previous to their conversion to
Christianity, or was it the immediate effect of that spirit of justice
infused with religion, by which the seignior was forced to respect in
the serf a soul equal to his own, a brother in Jesus Christ, purified by
the same baptism, and redeemed by the same sacrifice of the Son of God
in the form of man? For we must not close our eyes to the fact that,
though the Barbarian morals and the ignorance and carelessness of the
seigniors, who busied themselves mainly with wars and battles, paying
little or no attention to agriculture, may have been great aids in
the emancipation of the serfs, still the vital principle of this
emancipation was essentially Christian. Suppose that the Barbarians had
remained Pagans in the midst of a Pagan world. As they did not change
the Gospel, so they would not have changed the polytheistic customs;
slavery would have remained what it was; they would have continued to
kill the slaves who were desirous of liberty, family, and property;
whole nations would have been reduced to the condition of Helots;
nothing would have changed upon the terrestrial stage, except the
actors. The Barbarians were less selfish, less imperious, less
dissolute, and less cruel than the Romans. Such was the nature upon
which, after the fall of the empire and the renovation of society,
Christianity was to act. But this nature, grounded as in former times
upon slavery and war, would, by its own energy, have produced nothing
but war and slavery.


"GRADUALLY the serfs obtained the privilege of being judged by the same
standard as their masters. . . . "

When, how, and by what title did they obtain this privilege?

"GRADUALLY their duties were regulated. "


Whence came the regulations? Who had the authority to introduce them?


"The master took a part of the labor of the serf,--three days, for
instance,--and left the rest to him. As for Sunday, that belonged to
God. "


And what established Sunday, if not religion? Whence I infer, that
the same power which took it upon itself to suspend hostilities and
to lighten the duties of the serf was also that which regulated the
judiciary and created a sort of law for the slave.

But this law itself, on what did it bear? --what was its principle? --what
was the philosophy of the councils and popes with reference to this
matter? The reply to all these questions, coming from me alone, would
be distrusted. The authority of M. Laboulaye shall give credence to my
words. This holy philosophy, to which the slaves were indebted for every
thing, this invocation of the Gospel, was an anathema against property.

The proprietors of small freeholds, that is, the freemen of the middle
class, had fallen, in consequence of the tyranny of the nobles, into a
worse condition than that of the tenants and serfs. "The expenses of war
weighed less heavily upon the serf than upon the freeman; and, as for
legal protection, the seigniorial court, where the serf was judged by
his peers, was far preferable to the cantonal assembly. It was better to
have a noble for a seignior than for a judge. "

So it is better to-day to have a man of large capital for an associate
than for a rival. The honest tenant--the laborer who earns weekly a
moderate but constant salary--is more to be envied than the independent
but small farmer, or the poor licensed mechanic.

At that time, all were either seigniors or serfs, oppressors or
oppressed. "Then, under the protection of convents, or of the
seigniorial turret, new societies were formed, which silently spread
over the soil made fertile by their hands, and which derived their power
from the annihilation of the free classes whom they enlisted in their
behalf. As tenants, these men acquired, from generation to generation,
sacred rights over the soil which they cultivated in the interest of
lazy and pillaging masters. As fast as the social tempest abated, it
became necessary to respect the union and heritage of these villeins,
who by their labor had truly prescribed the soil for their own profit. "

I ask how prescription could take effect where a contrary title and
possession already existed? M. Laboulaye is a lawyer. Where, then, did
he ever see the labor of the slave and the cultivation by the tenant
prescribe the soil for their own profit, to the detriment of a
recognized master daily acting as a proprietor? Let us not disguise
matters. As fast as the tenants and the serfs grew rich, they wished
to be independent and free; they commenced to associate, unfurl their
municipal banners, raise belfries, fortify their towns, and refuse to
pay their seigniorial dues. In doing these things they were perfectly
right; for, in fact, their condition was intolerable. But in law--I mean
in Roman and Napoleonic law--their refusal to obey and pay tribute to
their masters was illegitimate.

Now, this imperceptible usurpation of property by the commonalty was
inspired by religion.

The seignior had attached the serf to the soil; religion granted the
serf rights over the soil. The seignior imposed duties upon the serf;
religion fixed their limits. The seignior could kill the serf with
impunity, could deprive him of his wife, violate his daughter, pillage
his house, and rob him of his savings; religion checked his invasions:
it excommunicated the seignior. Religion was the real cause of the
ruin of feudal property. Why should it not be bold enough to-day to
resolutely condemn capitalistic property? Since the middle ages, there
has been no change in social economy except in its forms; its relations
remain unaltered.

The only result of the emancipation of the serfs was that property
changed hands; or, rather, that new proprietors were created. Sooner
or later the extension of privilege, far from curing the evil, was to
operate to the disadvantage of the plebeians. Nevertheless, the new
social organization did not meet with the same end in all places. In
Lombardy, for example, where the people rapidly growing rich through
commerce and industry soon conquered the authorities, even to the
exclusion of the nobles,--first, the nobility became poor and degraded,
and were forced, in order to live and maintain their credit, to gain
admission to the guilds; then, the ordinary subalternization of property
leading to inequality of fortunes, to wealth and poverty, to jealousies
and hatreds, the cities passed rapidly from the rankest democracy under
the yoke of a few ambitious leaders. Such was the fate of most of the
Lombardic cities,--Genoa, Florence, Bologna, Milan, Pisa, &c,. --which
afterwards changed rulers frequently, but which have never since risen
in favor of liberty. The people can easily escape from the tyranny of
despots, but they do not know how to throw off the effects of their own
despotism; just as we avoid the assassin's steel, while we succumb to a
constitutional malady. As soon as a nation becomes proprietor, either
it must perish, or a foreign invasion must force it again to begin its
evolutionary round. [59]

"The communes once organized, the kings treated them as superior
vassals.
Now, just as the under vassal had no communication with the
king except through the direct vassal, so also the commoners could enter
no complaints except through the commune.

"Like causes produce like effects. Each commune became a small and
separate State, governed by a few citizens, who sought to extend their
authority over the others; who, in their turn, revenged themselves
upon the unfortunate inhabitants who had not the right of citizenship.
Feudalism in unemancipated countries, and oligarchy in the communes,
made nearly the same ravages. There were sub-associations, fraternities,
tradesmen's associations in the communes, and colleges in the
universities. The oppression was so great, that it was no rare thing to
see the inhabitants of a commune demanding its suppression. . . . "--Meyer:
Judicial Institutions of Europe.


In France, the Revolution was much more gradual. The communes, in taking
refuge under the protection of the kings, had found them masters rather
than protectors. Their liberty had long since been lost, or, rather,
their emancipation had been suspended, when feudalism received its
death-blow at the hand of Richelieu. Then liberty halted; the prince of
the feudatories held sole and undivided sway. The nobles, the clergy,
the commoners, the parliaments, every thing in short except a few
seeming privileges, were controlled by the king; who, like his early
predecessors, consumed regularly, and nearly always in advance, the
revenues of his domain,--and that domain was France.

Finally, '89 arrived; liberty resumed its march; a century and a
half had been required to wear out the last form of feudal
property,--monarchy.

The French Revolution may be defined as _the substitution of real right
for personal right;_ that is to say, in the days of feudalism, the value
of property depended upon the standing of the proprietor, while, after
the Revolution, the regard for the man was proportional to his property.
Now, we have seen from what has been said in the preceding pages, that
this recognition of the right of laborers had been the constant aim of
the serfs and communes, the secret motive of their efforts. The movement
of '89 was only the last stage of that long insurrection. But it seems
to me that we have not paid sufficient attention to the fact that the
Revolution of 1789, instigated by the same causes, animated by the same
spirit, triumphing by the same struggles, was consummated in Italy four
centuries ago. Italy was the first to sound the signal of war against
feudalism; France has followed; Spain and England are beginning to move;
the rest still sleep. If a grand example should be given to the world,
the day of trial would be much abridged.

Note the following summary of the revolutions of property, from the days
of the Roman Empire down to the present time:--

1. Fifth century. --Barbarian invasions; division of the lands of the
empire into independent portions or freeholds.

2. From the fifth to the eighth century. --Gradual concentration of
freeholds, or transformation of the small freeholds into fiefs, feuds,
tenures, &c. Large properties, small possessions. Charlemagne (771-814)
decrees that all freeholds are dependent upon the king of France.

3. From the eighth to the tenth century. --The relation between the crown
and the superior dependents is broken; the latter becoming freeholders,
while the smaller dependents cease to recognize the king, and adhere to
the nearest suzerain. Feudal system.

4. Twelfth century. --Movement of the serfs towards liberty; emancipation
of the communes.

5. Thirteenth century. --Abolition of personal right, and of the feudal
system in Italy. Italian Republics.

6. Seventeenth century. --Abolition of feudalism in France during
Richelieu's ministry. Despotism.

7. 1789. --Abolition of all privileges of birth, caste, provinces, and
corporations; equality of persons and of rights. French democracy.

8. 1830. --The principle of concentration inherent in individual property
is REMARKED. Development of the idea of association.


The more we reflect upon this series of transformations and changes,
the more clearly we see that they were necessary in their principle, in
their manifestations, and in their result.

It was necessary that inexperienced conquerors, eager for liberty,
should divide the Roman Empire into a multitude of estates, as free and
independent as themselves.

It was necessary that these men, who liked war even better than liberty,
should submit to their leaders; and, as the freehold represented the
man, that property should violate property.

It was necessary that, under the rule of a nobility always idle when not
fighting, there should grow up a body of laborers, who, by the power
of production, and by the division and circulation of wealth, would
gradually gain control over commerce, industry, and a portion of the
land, and who, having become rich, would aspire to power and authority
also.

It was necessary, finally, that liberty and equality of rights having
been achieved, and individual property still existing, attended by
robbery, poverty, social inequality, and oppression, there should be
an inquiry into the cause of this evil, and an idea of universal
association formed, whereby, on condition of labor, all interests should
be protected and consolidated.

"Evil, when carried too far," says a learned jurist, "cures itself; and
the political innovation which aims to increase the power of the State,
finally succumbs to the effects of its own work. The Germans, to secure
their independence, chose chiefs; and soon they were oppressed by their
kings and noblemen. The monarchs surrounded themselves with volunteers,
in order to control the freemen; and they found themselves dependent
upon their proud vassals. The _missi dominici_ were sent into the
provinces to maintain the power of the emperors, and to protect the
people from the oppressions of the noblemen; and not only did they usurp
the imperial power to a great extent, but they dealt more severely with
the inhabitants. The freemen became vassals, in order to get rid of
military service and court duty; and they were immediately involved in
all the personal quarrels of their seigniors, and compelled to do
jury duty in their courts. . . . The kings protected the cities and
the communes, in the hope of freeing them from the yoke of the grand
vassals, and of rendering their own power more absolute; and those same
communes have, in several European countries, procured the establishment
of a constitutional power, are now holding royalty in check, and
are giving rise to a universal desire for political reform. "--Meyer:
Judicial Institutions of Europe.


In recapitulation.

What was feudalism? A confederation of the grand seign iors against the
villeins, and against the king. [60] What is constitutional government?
A confederation of the bourgeoisie against the laborers, and against the
king. [61]


How did feudalism end? In the union of the communes and the royal
authority. How will the bourgeoisie aristocracy end? In the union of the
proletariat and the sovereign power.

What was the immediate result of the struggle of the communes and the
king against the seigniors? The monarchical unity of Louis XIV. What
will be the result of the struggle of the proletariat and the sovereign
power combined against the bourgeoisie? The absolute unity of the nation
and the government.

It remains to be seen whether the nation, one and supreme, will be
represented in its executive and central power by ONE, by FIVE, by ONE
HUNDRED, or ONE THOUSAND; that is, it remains to be seen, whether the
royalty of the barricades intends to maintain itself by the people, or
without the people, and whether Louis Philippe wishes his reign to be
the most famous in all history.

I have made this statement as brief, but at the same time as accurate
as I could, neglecting facts and details, that I might give the more
attention to the economical relations of society. For the study of
history is like the study of the human organism; just as the latter
has its system, its organs, and its functions, which can be treated
separately, so the former has its ensemble, its instruments, and its
causes. Of course I do not pretend that the principle of property is
a complete resume of all the social forces; but, as in that wonderful
machine which we call our body, the harmony of the whole allows us to
draw a general conclusion from the consideration of a single function or
organ, so, in discussing historical causes, I have been able to reason
with absolute accuracy from a single order of facts, certain as I was
of the perfect correlation which exists between this special order and
universal history. As is the property of a nation, so is its family,
its marriage, its religion, its civil and military organization, and
its legislative and judicial institutions. History, viewed from this
standpoint, is a grand and sublime psychological study.

Well, sir, in writing against property, have I done more than quote the
language of history? I have said to modern society,--the daughter and
heiress of all preceding societies,--_Age guod agis:_ complete the
task which for six thousand years you have been executing under the
inspiration and by the command of God; hasten to finish your journey;
turn neither to the right nor the left, but follow the road which lies
before you. You seek reason, law, unity, and discipline; but hereafter
you can find them only by stripping off the veils of your infancy, and
ceasing to follow instinct as a guide. Awaken your sleeping conscience;
open your eyes to the pure light of reflection and science; behold the
phantom which troubled your dreams, and so long kept you in a state of
unutterable anguish. Know thyself, O long-deluded society[1] know thy
enemy! . . . And I have denounced property.

We often hear the defenders of the right of domain quote in defence of
their views the testimony of nations and ages. We can judge, from what
has just been said, how far this historical argument conforms to the
real facts and the conclusions of science.

To complete this apology, I must examine the various theories.

Neither politics, nor legislation, nor history, can be explained and
understood, without a positive theory which defines their elements,
and discovers their laws; in short, without a philosophy. Now, the two
principal schools, which to this day divide the attention of the world,
do not satisfy this condition.

The first, essentially PRACTICAL in its character, confined to a
statement of facts, and buried in learning, cares very little by what
laws humanity develops itself. To it these laws are the secret of the
Almighty, which no one can fathom without a commission from on high.
In applying the facts of history to government, this school does not
reason; it does not anticipate; it makes no comparison of the past with
the present, in order to predict the future. In its opinion, the
lessons of experience teach us only to repeat old errors, and its whole
philosophy consists in perpetually retracing the tracks of antiquity,
instead of going straight ahead forever in the direction in which they
point.

The second school may be called either FATALISTIC or PANTHEISTIC. To
it the movements of empires and the revolutions of humanity are the
manifestations, the incarnations, of the Almighty. The human race,
identified with the divine essence, wheels in a circle of appearances,
informations, and destructions, which necessarily excludes the idea of
absolute truth, and destroys providence and liberty.

Corresponding to these two schools of history, there are two schools
of jurisprudence, similarly opposed, and possessed of the same
peculiarities.

1. The practical and conventional school, to which the law is always a
creation of the legislator, an expression of his will, a privilege
which he condescends to grant,--in short, a gratuitous affirmation to be
regarded as judicious and legitimate, no matter what it declares.

2. The fatalistic and pantheistic school, sometimes called the
historical school, which opposes the despotism of the first, and
maintains that law, like literature and religion, is always the
expression of society,--its manifestation, its form, the external
realization of its mobile spirit and its ever-changing inspirations.

Each of these schools, denying the absolute, rejects thereby all
positive and a priori philosophy.

Now, it is evident that the theories of these two schools, whatever view
we take of them, are utterly unsatisfactory: for, opposed, they form no
dilemma,--that is, if one is false, it does not follow that the other
is true; and, united, they do not constitute the truth, since they
disregard the absolute, without which there is no truth. They are
respectively a THESIS and an ANTITHESIS. There remains to be found,
then, a SYNTHESIS, which, predicating the absolute, justifies the will
of the legislator, explains the variations of the law, annihilates
the theory of the circular movement of humanity, and demonstrates its
progress.

The legists, by the very nature of their studies and in spite of their
obstinate prejudices, have been led irresistibly to suspect that the
absolute in the science of law is not as chimerical as is commonly
supposed; and this suspicion arose from their comparison of the various
relations which legislators have been called upon to regulate.

M. Laboulaye, the laureate of the Institute, begins his "History of
Property" with these words:--


"While the law of contract, which regulates only the mutual interests of
men, has not varied for centuries (except in certain forms which relate
more to the proof than to the character of the obligation), the civil
law of property, which regulates the mutual relations of citizens, has
undergone several radical changes, and has kept pace in its variations
with all the vicissitudes of society. The law of contract, which holds
essentially to those principles of eternal justice which are engraven
upon the depths of the human heart, is the immutable element of
jurisprudence, and, in a certain sense, its philosophy. Property, on
the contrary, is the variable element of jurisprudence, its history, its
policy. "


Marvellous! There is in law, and consequently in politics, something
variable and something invariable. The invariable element is obligation,
the bond of justice, duty; the variable element is property,--that is,
the external form of law, the subject-matter of the contract. Whence
it follows that the law can modify, change, reform, and judge property.
Reconcile that, if you can, with the idea of an eternal, absolute,
permanent, and indefectible right.

However, M. Laboulaye is in perfect accord with himself when he adds,
"Possession of the soil rests solely upon force until society takes it
in hand, and espouses the cause of the possessor;" [62] and, a little
farther, "The right of property is not natural, but social. The laws not
only protect property: they give it birth," &c. Now, that which the
law has made the law can unmake; especially since, according to
M. Laboulaye,--an avowed partisan of the historical or pantheistic
school,--the law is not absolute, is not an idea, but a form.


But why is it that property is variable, and, unlike obligation,
incapable of definition and settlement? Before affirming, somewhat
boldly without doubt, that in right there are no absolute principles
(the most dangerous, most immoral, most tyrannical--in a word, most
anti-social--assertion imaginable), it was proper that the right of
property should be subjected to a thorough examination, in order to put
in evidence its variable, arbitrary, and contingent elements, and
those which are eternal, legitimate, and absolute; then, this operation
performed, it became easy to account for the laws, and to correct all
the codes.

Now, this examination of property I claim to have made, and in the
fullest detail; but, either from the public's lack of interest in
an unrecommended and unattractive pamphlet, or--which is more
probable--from the weakness of exposition and want of genius which
characterize the work, the First Memoir on Property passed unnoticed;
scarcely would a few communists, having turned its leaves, deign to
brand it with their disapprobation. You alone, sir, in spite of the
disfavor which I showed for your economical predecessors in too severe
a criticism of them,--you alone have judged me justly; and although I
cannot accept, at least literally, your first judgment, yet it is to
you alone that I appeal from a decision too equivocal to be regarded as
final.

It not being my intention to enter at present into a discussion of
principles, I shall content myself with estimating, from the point of
view of this simple and intelligible absolute, the theories of property
which our generation has produced.

The most exact idea of property is given us by the Roman law, faithfully
followed in this particular by the ancient legists. It is the absolute,
exclusive, autocratic domain of a man over a thing,--a domain which
begins by USUCAPTION, is maintained by POSSESSION, and finally, by the
aid of PRESCRIPTION, finds its sanction in the civil law; a domain which
so identifies the man with the thing, that the proprietor can say, "He
who uses my field, virtually compels me to labor for him; therefore he
owes me compensation. "

I pass in silence the secondary modes by which property can be
acquired,--_tradition, sale, exchange, inheritance_, &c. ,--which have
nothing in common with the origin of property.

Accordingly, Pothier said THE DOMAIN OF PROPERTY, and not simply
PROPERTY. And the most learned writers on jurisprudence--in imitation
of the Roman praetor who recognized a RIGHT OF PROPERTY and a RIGHT
OF POSSESSION--have carefully distinguished between the DOMAIN and the
right of USUFRUCT, USE, and HABITATION, which, reduced to its natural
limits, is the very expression of justice; and which is, in my opinion,
to supplant domanial property, and finally form the basis of all
jurisprudence.

But, sir, admire the clumsiness of systems, or rather the fatality of
logic! While the Roman law and all the savants inspired by it teach that
property in its origin is the right of first occupancy sanctioned by
law, the modern legists, dissatisfied with this brutal definition, claim
that property is based upon LABOR. Immediately they infer that he who no
longer labors, but makes another labor in his stead, loses his right to
the earnings of the latter. It is by virtue of this principle that
the serfs of the middle ages claimed a legal right to property, and
consequently to the enjoyment of political rights; that the clergy were
despoiled in '89 of their immense estates, and were granted a pension
in exchange; that at the restoration the liberal deputies opposed the
indemnity of one billion francs. "The nation," said they, "has acquired
by twenty-five years of labor and possession the property which the
emigrants forfeited by abandonment and long idleness: why should the
nobles be treated with more favor than the priests? " [63]


This position is quite in harmony with my principles, and I heartily
applaud the indignation of M. Lerminier; but I do not know that a
proprietor was ever deprived of his property because UNWORTHY; and as
reasonable, social, and even useful as the thing may seem, it is quite
contrary to the uses and customs of property.


All usurpations, not born of war, have been caused and supported by
labor. All modern history proves this, from the end of the Roman empire
down to the present day. And as if to give a sort of legal sanction to
these usurpations, the doctrine of labor, subversive of property,
is professed at great length in the Roman law under the name of
PRESCRIPTION.

The man who cultivates, it has been said, makes the land his own;
consequently, no more property. This was clearly seen by the old
jurists, who have not failed to denounce this novelty; while on the
other hand the young school hoots at the absurdity of the first-occupant
theory. Others have presented themselves, pretending to reconcile
the two opinions by uniting them. They have failed, like all the
_juste-milieux_ of the world, and are laughed at for their eclecticism.
At present, the alarm is in the camp of the old doctrine; from all sides
pour IN DEFENCES OF PROPERTY, STUDIES REGARDING PROPERTY, THEORIES OF
PROPERTY, each one of which, giving the lie to the rest, inflicts a
fresh wound upon property.

Consider, indeed, the inextricable embarrassments, the contradictions,
the absurdities, the incredible nonsense, in which the bold defenders of
property so lightly involve themselves. I choose the eclectics, because,
those killed, the others cannot survive.

M. Troplong, jurist, passes for a philosopher in the eyes of the editors
of "Le Droit. " I tell the gentlemen of "Le Droit" that, in the judgment
of philosophers, M. Troplong is only an advocate; and I prove my
assertion.

M. Troplong is a defender of progress. "The words of the code," says he,
"are fruitful sap with which the classic works of the eighteenth century
overflow. To wish to suppress them. . . is to violate the law of progress,
and to forget that a science which moves is a science which grows. " [64]


Now, the only mutable and progressive portion of law, as we have already
seen, is that which concerns property. If, then, you ask what reforms
are to be introduced into the right of property? M. Troplong makes no
reply; what progress is to be hoped for? no reply; what is to be the
destiny of property in case of universal association? no reply; what is
the absolute and what the contingent, what the true and what the false,
in property? no reply. M. Troplong favors quiescence and _in statu
quo_ in regard to property. What could be more unphilosophical in a
progressive philosopher?

Nevertheless, M. Troplong has thought about these things. "There are,"
he says, "many weak points and antiquated ideas in the doctrines of
modern authors concerning property: witness the works of MM. Toullier
and Duranton. " The doctrine of M. Troplong promises, then, strong
points, advanced and progressive ideas. Let us see; let us examine:--


"Man, placed in the presence of matter, is conscious of a power over it,
which has been given to him to satisfy the needs of his being. King
of inanimate or unintelligent nature, he feels that he has a right to
modify it, govern it, and fit it for his use. There it is, the subject
of property, which is legitimate only when exercised over things, never
when over persons. "


M. Troplong is so little of a philosopher, that he does not even know
the import of the philosophical terms which he makes a show of using. He
says of matter that it is the SUBJECT of property; he should have said
the OBJECT. M. Troplong uses the language of the anatomists, who apply
the term SUBJECT to the human matter used in their experiments.

This error of our author is repeated farther on: "Liberty, which
overcomes matter, the subject of property, &c. " The SUBJECT of
property is man; its OBJECT is matter. But even this is but a slight
mortification; directly we shall have some crucifixions.

Thus, according to the passage just quoted, it is in the conscience and
personality of man that the principle of property must be sought. Is
there any thing new in this doctrine? Apparently it never has occurred
to those who, since the days of Cicero and Aristotle, and earlier, have
maintained that THINGS BELONG TO THE FIRST OCCUPANT, that occupation may
be exercised by beings devoid of conscience and personality.