Consider, indeed, the inextricable embarrassments, the contradictions,
the absurdities, the incredible nonsense, in which the bold defenders of
property so lightly involve themselves.
the absurdities, the incredible nonsense, in which the bold defenders of
property so lightly involve themselves.
Proudhon - What is Property? An Inquiry into the Principle of Right and of Government
"
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. The human
personality, though it may be the principle or the subject of property,
as matter is the object, is not the CONDITION. Now, it is this condition
which we most need to know. So far, M. Troplong tells us no more than
his masters, and the figures with which he adorns his style add nothing
to the old idea.
Property, then, implies three terms: The subject, the object, and the
condition. There is no difficulty in regard to the first two terms. As
to the third, the condition of property down to this day, for the Greek
as for the Barbarian, has been that of first occupancy. What now would
you have it, progressive doctor?
"When man lays hands for the first time upon an object without a
master, he performs an act which, among individuals, is of the greatest
importance. The thing thus seized and occupied participates, so to
speak, in the personality of him who holds it. It becomes sacred, like
himself. It is impossible to take it without doing violence to his
liberty, or to remove it without rashly invading his person. Diogenes
did but express this truth of intuition, when he said: 'Stand out of my
light! '"
Very good! but would the prince of cynics, the very personal and very
haughty Diogenes, have had the right to charge another cynic, as rent
for this same place in the sunshine, a bone for twenty-four hours of
possession? It is that which constitutes the proprietor; it is that
which you fail to justify. In reasoning from the human personality and
individuality to the right of property, you unconsciously construct
a syllogism in which the conclusion includes more than the premises,
contrary to the rules laid down by Aristotle. The individuality of
the human person proves INDIVIDUAL POSSESSION, originally called
_proprietas_, in opposition to collective possession, _communio_.
It gives birth to the distinction between THINE and MINE, true signs
of equality, not, by any means, of subordination. "From equivocation to
equivocation," says M. Michelet, [65] "property would crawl to the end
of the world; man could not limit it, were not he himself its limit.
Where they clash, there will be its frontier. " In short, individuality
of being destroys the hypothesis of communism, but it does not for that
reason give birth to domain,--that domain by virtue of which the holder
of a thing exercises over the person who takes his place a right of
prestation and suzerainty, that has always been identified with property
itself.
Further, that he whose legitimately acquired possession injures nobody
cannot be nonsuited without flagrant injustice, is a truth, not of
INTUITION, as M. Troplong says, but of INWARD SENSATION, [66] which has
nothing to do with property.
M. Troplong admits, then, occupancy as a condition of property. In that,
he is in accord with the Roman law, in accord with MM. Toullier and
Duranton; but in his opinion this condition is not the only one, and it
is in this particular that his doctrine goes beyond theirs.
"But, however exclusive the right arising from sole occupancy, does it
not become still more so, when man has moulded matter by his labor;
when he has deposited in it a portion of himself, re-creating it by his
industry, and setting upon it the seal of his intelligence and activity?
Of all conquests, that is the most legitimate, for it is the price of
labor.
"He who should deprive a man of the thing thus remodelled, thus
humanized, would invade the man himself, and would inflict the deepest
wounds upon his liberty. "
I pass over the very beautiful explanations in which M. Troplong,
discussing labor and industry, displays the whole wealth of his
eloquence. M. Troplong is not only a philosopher, he is an orator, an
artist. HE ABOUNDS WITH APPEALS TO THE CONSCIENCE AND THE PASSIONS. I
might make sad work of his rhetoric, should I undertake to dissect it;
but I confine myself for the present to his philosophy.
If M. Troplong had only known how to think and reflect, before
abandoning the original fact of occupancy and plunging into the theory
of labor, he would have asked himself: "What is it to occupy? " And he
would have discovered that OCCUPANCY is only a generic term by which
all modes of possession are expressed,--seizure, station, immanence,
habitation, cultivation, use, consumption, &c. ; that labor,
consequently, is but one of a thousand forms of occupancy. He would have
understood, finally, that the right of possession which is born of labor
is governed by the same general laws as that which results from the
simple seizure of things. What kind of a legist is he who declaims when
he ought to reason, who continually mistakes his metaphors for legal
axioms, and who does not so much as know how to obtain a universal by
induction, and form a category?
If labor is identical with occupancy, the only benefit which it secures
to the laborer is the right of individual possession of the object of
his labor; if it differs from occupancy, it gives birth to a right equal
only to itself,--that is, a right which begins, continues, and ends,
with the labor of the occupant. It is for this reason, in the words of
the law, that one cannot acquire a just title to a thing by labor alone.
He must also hold it for a year and a day, in order to be regarded as
its possessor; and possess it twenty or thirty years, in order to become
its proprietor.
These preliminaries established, M. Troplong's whole structure falls of
its own weight, and the inferences, which he attempts to draw, vanish.
"Property once acquired by occupation and labor, it naturally preserves
itself, not only by the same means, but also by the refusal of the
holder to abdicate; for from the very fact that it has risen to the
height of a right, it is its nature to perpetuate itself and to last for
an indefinite period. . . . Rights, considered from an ideal point of
view, are imperishable and eternal; and time, which affects only the
contingent, can no more disturb them than it can injure God himself. "
It is astonishing that our author, in speaking of the IDEAL, TIME, and
ETERNITY, did not work into his sentence the DIVINE WINGS of Plato,--so
fashionable to-day in philosophical works.
With the exception of falsehood, I hate nonsense more than any thing
else in the world. PROPERTY ONCE ACQUIRED! Good, if it is acquired; but,
as it is not acquired, it cannot be preserved. RIGHTS ARE ETERNAL! Yes,
in the sight of God, like the archetypal ideas of the Platonists. But,
on the earth, rights exist only in the presence of a subject, an object,
and a condition. Take away one of these three things, and rights no
longer exist. Thus, individual possession ceases at the death of the
subject, upon the destruction of the object, or in case of exchange or
abandonment.
Let us admit, however, with M. Troplong, that property is an absolute
and eternal right, which cannot be destroyed save by the deed and at
the will of the proprietor. What are the consequences which immediately
follow from this position?
To show the justice and utility of prescription, M. Troplong supposes
the case of a bona fide possessor whom a proprietor, long since
forgotten or even unknown, is attempting to eject from his possession.
"At the start, the error of the possessor was excusable but not
irreparable. Pursuing its course and growing old by degrees, it has
so completely clothed itself in the colors of truth, it has spoken
so loudly the language of right, it has involved so many confiding
interests, that it fairly may be asked whether it would not cause
greater confusion to go back to the reality than to sanction the
fictions which it (an error, without doubt) has sown on its way? Well,
yes; it must be confessed, without hesitation, that the remedy would
prove worse than the disease, and that its application would lead to the
most outrageous injustice. "
How long since utility became a principle of law? When the Athenians, by
the advice of Aristides, rejected a proposition eminently advantageous
to their republic, but also utterly unjust, they showed finer moral
perception and greater clearness of intellect than M. Troplong. Property
is an eternal right, independent of time, indestructible except by the
act and at the will of the proprietor; and here this right is taken from
the proprietor, and on what ground? Good God! on the ground of ABSENCE!
Is it not true that legists are governed by caprice in giving and taking
away rights? When it pleases these gentlemen, idleness, unworthiness, or
absence can invalidate a right which, under quite similar circumstances,
labor, residence, and virtue are inadequate to obtain. Do not be
astonished that legists reject the absolute. Their good pleasure is law,
and their disordered imaginations are the real cause of the EVOLUTIONS
in jurisprudence.
"If the nominal proprietor should plead ignorance, his claim would be
none the more valid. Indeed, his ignorance might arise from inexcusable
carelessness, etc. "
What! in order to legitimate dispossession through prescription, you
suppose faults in the proprietor! You blame his absence,--which may
have been involuntary; his neglect,--not knowing what caused it; his
carelessness,--a gratuitous supposition of your own! It is absurd. One
very simple observation suffices to annihilate this theory. Society,
which, they tell us, makes an exception in the interest of order in
favor of the possessor as against the old proprietor, owes the latter
an indemnity; since the privilege of prescription is nothing but
expropriation for the sake of public utility.
But here is something stronger:--
"In society a place cannot remain vacant with impunity. A new man arises
in place of the old one who disappears or goes away; he brings here his
existence, becomes entirely absorbed, and devotes himself to this post
which he finds abandoned. Shall the deserter, then, dispute the honor of
the victory with the soldier who fights with the sweat standing on his
brow, and bears the burden of the day, in behalf of a cause which he
deems just? "
When the tongue of an advocate once gets in motion, who can tell where
it will stop? M. Troplong admits and justifies usurpation in case of
the ABSENCE of the proprietor, and on a mere presumption of his
CARELESSNESS. But when the neglect is authenticated; when the
abandonment is solemnly and voluntarily set forth in a contract in the
presence of a magistrate; when the proprietor dares to say, "I cease to
labor, but I still claim a share of the product,"--then the absentee's
right of property is protected; the usurpation of the possessor would
be criminal; farm-rent is the reward of idleness. Where is, I do not say
the consistency, but, the honesty of this law?
Prescription is a result of the civil law, a creation of the legislator.
Why has not the legislator fixed the conditions differently? --why,
instead of twenty and thirty years, is not a single year sufficient to
prescribe? --why are not voluntary absence and confessed idleness as good
grounds for dispossession as involuntary absence, ignorance, or apathy?
But in vain should we ask M. Troplong, the philosopher, to tell us
the ground of prescription. Concerning the code, M. Troplong does not
reason. "The interpreter," he says, "must take things as they are,
society as it exists, laws as they are made: that is the only sensible
starting-point. " Well, then, write no more books; cease to reproach your
predecessors--who, like you, have aimed only at interpretation of the
law--for having remained in the rear; talk no more of philosophy and
progress, for the lie sticks in your throat.
M. Troplong denies the reality of the right of possession; he denies
that possession has ever existed as a principle of society; and he
quotes M. de Savigny, who holds precisely the opposite position, and
whom he is content to leave unanswered. At one time, M. Troplong asserts
that possession and property are CONTEMPORANEOUS, and that they exist AT
THE SAME TIME, which implies that the RIGHT of property is based on the
FACT of possession,--a conclusion which is evidently absurd; at
another, he denies that possession HAD ANY HISTORICAL EXISTENCE PRIOR
TO PROPERTY,--an assertion which is contradicted by the customs of many
nations which cultivate the land without appropriating it; by the Roman
law, which distinguished so clearly between POSSESSION and PROPERTY; and
by our code itself, which makes possession for twenty or thirty years
the condition of property. Finally, M. Troplong goes so far as to
maintain that the Roman maxim, _Nihil comune habet proprietas cum
possessione_--which contains so striking an allusion to the possession
of the _ager publicus_, and which, sooner or later, will be again
accepted without qualification--expresses in French law only a judicial
axiom, a simple rule forbidding the union of an _action possessoire_
with an _action petitoire_,--an opinion as retrogressive as it is
unphilosophical.
In treating of _actions possessoires_, M. Troplong is so unfortunate or
awkward that he mutilates economy through failure to grasp its
meaning "Just as property," he writes, "gave rise to the action for
revendication, so possession--the _jus possessionis_--was the cause
of possessory interdicts. . . . There were two kinds of interdicts,--the
interdict _recuperandae possessionis_, and the interdict _retinendae
possessionis_,--which correspond to our _complainte en cas de saisine
et nouvelete_. There is also a third,--_adipiscendae possessionis_,--of
which the Roman law-books speak in connection with the two others.
But, in reality, this interdict is not possessory: for he who wishes
to acquire possession by this means does not possess, and has not
possessed; and yet acquired possession is the condition of possessory
interdicts. " Why is not an action to acquire possession equally
conceivable with an action to be reinstated in possession? When the
Roman plebeians demanded a division of the conquered territory; when
the proletaires of Lyons took for their motto, _Vivre en travaillant, ou
mourir en combattant_ (to live working, or die fighting); when the most
enlightened of the modern economists claim for every man the right to
labor and to live,--they only propose this interdict, _adipiscendae
possessionis_, which embarrasses M. Troplong so seriously. And what is
my object in pleading against property, if not to obtain possession? How
is it that M. Troplong--the legist, the orator, the philosopher--does
not see that logically this interdict must be admitted, since it is the
necessary complement of the two others, and the three united form an
indivisible trinity,--to RECOVER, to MAINTAIN, to ACQUIRE? To break this
series is to create a blank, destroy the natural synthesis of things,
and follow the example of the geometrician who tried to conceive of
a solid with only two dimensions. But it is not astonishing that M.
Troplong rejects the third class of _actions possessoires_, when
we consider that he rejects possession itself. He is so completely
controlled by his prejudices in this respect, that he is unconsciously
led, not to unite (that would be horrible in his eyes), but to identify
the _action possessoire_ with the _action petitoire_. This could be
easily proved, were it not too tedious to plunge into these metaphysical
obscurities.
As an interpreter of the law, M. Troplong is no more successful than
as a philosopher. One specimen of his skill in this direction, and I am
done with him:--
Code of Civil Procedure, Art. 23: "_Actions possessoires_ are only when
commenced within the year of trouble by those who have held possession
for at least a year by an irrevocable title. "
M. Troplong's comments:--
"Ought we to maintain--as Duparc, Poullain, and Lanjuinais would have
us--the rule _spoliatus ante omnia restituendus_, when an individual,
who is neither proprietor nor annual possessor, is expelled by a third
party, who has no right to the estate? I think not. Art. 23 of the
Code is general: it absolutely requires that the plaintiff in _actions
possessoires_ shall have been in peaceable possession for a year at
least. That is the invariable principle: it can in no case be modified.
And why should it be set aside? The plaintiff had no seisin; he had no
privileged possession; he had only a temporary occupancy, insufficient
to warrant in his favor the presumption of property, which renders the
annual possession so valuable. Well! this _ae facto_ occupancy he has
lost; another is invested with it: possession is in the hands of this
new-comer. Now, is not this a case for the application of the principle,
_In_ _pari causa possesser potior habetur_? Should not the actual
possessor be preferred to the evicted possessor? Can he not meet the
complaint of his adversary by saying to him: 'Prove that you were an
annual possessor before me, for you are the plaintiff. As far as I am
concerned, it is not for me to tell you how I possess, nor how long
I have possessed. _Possideo quia possideo_. I have no other reply, no
other defence. When you have shown that your action is admissible, then
we will see whether you are entitled to lift the veil which hides the
origin of my possession. '"
And this is what is honored with the name of jurisprudence and
philosophy,--the restoration of force. What! when I have "moulded matter
by my labor" [I quote M. Troplong]; when I have "deposited in it a
portion of myself" [M.
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. The human
personality, though it may be the principle or the subject of property,
as matter is the object, is not the CONDITION. Now, it is this condition
which we most need to know. So far, M. Troplong tells us no more than
his masters, and the figures with which he adorns his style add nothing
to the old idea.
Property, then, implies three terms: The subject, the object, and the
condition. There is no difficulty in regard to the first two terms. As
to the third, the condition of property down to this day, for the Greek
as for the Barbarian, has been that of first occupancy. What now would
you have it, progressive doctor?
"When man lays hands for the first time upon an object without a
master, he performs an act which, among individuals, is of the greatest
importance. The thing thus seized and occupied participates, so to
speak, in the personality of him who holds it. It becomes sacred, like
himself. It is impossible to take it without doing violence to his
liberty, or to remove it without rashly invading his person. Diogenes
did but express this truth of intuition, when he said: 'Stand out of my
light! '"
Very good! but would the prince of cynics, the very personal and very
haughty Diogenes, have had the right to charge another cynic, as rent
for this same place in the sunshine, a bone for twenty-four hours of
possession? It is that which constitutes the proprietor; it is that
which you fail to justify. In reasoning from the human personality and
individuality to the right of property, you unconsciously construct
a syllogism in which the conclusion includes more than the premises,
contrary to the rules laid down by Aristotle. The individuality of
the human person proves INDIVIDUAL POSSESSION, originally called
_proprietas_, in opposition to collective possession, _communio_.
It gives birth to the distinction between THINE and MINE, true signs
of equality, not, by any means, of subordination. "From equivocation to
equivocation," says M. Michelet, [65] "property would crawl to the end
of the world; man could not limit it, were not he himself its limit.
Where they clash, there will be its frontier. " In short, individuality
of being destroys the hypothesis of communism, but it does not for that
reason give birth to domain,--that domain by virtue of which the holder
of a thing exercises over the person who takes his place a right of
prestation and suzerainty, that has always been identified with property
itself.
Further, that he whose legitimately acquired possession injures nobody
cannot be nonsuited without flagrant injustice, is a truth, not of
INTUITION, as M. Troplong says, but of INWARD SENSATION, [66] which has
nothing to do with property.
M. Troplong admits, then, occupancy as a condition of property. In that,
he is in accord with the Roman law, in accord with MM. Toullier and
Duranton; but in his opinion this condition is not the only one, and it
is in this particular that his doctrine goes beyond theirs.
"But, however exclusive the right arising from sole occupancy, does it
not become still more so, when man has moulded matter by his labor;
when he has deposited in it a portion of himself, re-creating it by his
industry, and setting upon it the seal of his intelligence and activity?
Of all conquests, that is the most legitimate, for it is the price of
labor.
"He who should deprive a man of the thing thus remodelled, thus
humanized, would invade the man himself, and would inflict the deepest
wounds upon his liberty. "
I pass over the very beautiful explanations in which M. Troplong,
discussing labor and industry, displays the whole wealth of his
eloquence. M. Troplong is not only a philosopher, he is an orator, an
artist. HE ABOUNDS WITH APPEALS TO THE CONSCIENCE AND THE PASSIONS. I
might make sad work of his rhetoric, should I undertake to dissect it;
but I confine myself for the present to his philosophy.
If M. Troplong had only known how to think and reflect, before
abandoning the original fact of occupancy and plunging into the theory
of labor, he would have asked himself: "What is it to occupy? " And he
would have discovered that OCCUPANCY is only a generic term by which
all modes of possession are expressed,--seizure, station, immanence,
habitation, cultivation, use, consumption, &c. ; that labor,
consequently, is but one of a thousand forms of occupancy. He would have
understood, finally, that the right of possession which is born of labor
is governed by the same general laws as that which results from the
simple seizure of things. What kind of a legist is he who declaims when
he ought to reason, who continually mistakes his metaphors for legal
axioms, and who does not so much as know how to obtain a universal by
induction, and form a category?
If labor is identical with occupancy, the only benefit which it secures
to the laborer is the right of individual possession of the object of
his labor; if it differs from occupancy, it gives birth to a right equal
only to itself,--that is, a right which begins, continues, and ends,
with the labor of the occupant. It is for this reason, in the words of
the law, that one cannot acquire a just title to a thing by labor alone.
He must also hold it for a year and a day, in order to be regarded as
its possessor; and possess it twenty or thirty years, in order to become
its proprietor.
These preliminaries established, M. Troplong's whole structure falls of
its own weight, and the inferences, which he attempts to draw, vanish.
"Property once acquired by occupation and labor, it naturally preserves
itself, not only by the same means, but also by the refusal of the
holder to abdicate; for from the very fact that it has risen to the
height of a right, it is its nature to perpetuate itself and to last for
an indefinite period. . . . Rights, considered from an ideal point of
view, are imperishable and eternal; and time, which affects only the
contingent, can no more disturb them than it can injure God himself. "
It is astonishing that our author, in speaking of the IDEAL, TIME, and
ETERNITY, did not work into his sentence the DIVINE WINGS of Plato,--so
fashionable to-day in philosophical works.
With the exception of falsehood, I hate nonsense more than any thing
else in the world. PROPERTY ONCE ACQUIRED! Good, if it is acquired; but,
as it is not acquired, it cannot be preserved. RIGHTS ARE ETERNAL! Yes,
in the sight of God, like the archetypal ideas of the Platonists. But,
on the earth, rights exist only in the presence of a subject, an object,
and a condition. Take away one of these three things, and rights no
longer exist. Thus, individual possession ceases at the death of the
subject, upon the destruction of the object, or in case of exchange or
abandonment.
Let us admit, however, with M. Troplong, that property is an absolute
and eternal right, which cannot be destroyed save by the deed and at
the will of the proprietor. What are the consequences which immediately
follow from this position?
To show the justice and utility of prescription, M. Troplong supposes
the case of a bona fide possessor whom a proprietor, long since
forgotten or even unknown, is attempting to eject from his possession.
"At the start, the error of the possessor was excusable but not
irreparable. Pursuing its course and growing old by degrees, it has
so completely clothed itself in the colors of truth, it has spoken
so loudly the language of right, it has involved so many confiding
interests, that it fairly may be asked whether it would not cause
greater confusion to go back to the reality than to sanction the
fictions which it (an error, without doubt) has sown on its way? Well,
yes; it must be confessed, without hesitation, that the remedy would
prove worse than the disease, and that its application would lead to the
most outrageous injustice. "
How long since utility became a principle of law? When the Athenians, by
the advice of Aristides, rejected a proposition eminently advantageous
to their republic, but also utterly unjust, they showed finer moral
perception and greater clearness of intellect than M. Troplong. Property
is an eternal right, independent of time, indestructible except by the
act and at the will of the proprietor; and here this right is taken from
the proprietor, and on what ground? Good God! on the ground of ABSENCE!
Is it not true that legists are governed by caprice in giving and taking
away rights? When it pleases these gentlemen, idleness, unworthiness, or
absence can invalidate a right which, under quite similar circumstances,
labor, residence, and virtue are inadequate to obtain. Do not be
astonished that legists reject the absolute. Their good pleasure is law,
and their disordered imaginations are the real cause of the EVOLUTIONS
in jurisprudence.
"If the nominal proprietor should plead ignorance, his claim would be
none the more valid. Indeed, his ignorance might arise from inexcusable
carelessness, etc. "
What! in order to legitimate dispossession through prescription, you
suppose faults in the proprietor! You blame his absence,--which may
have been involuntary; his neglect,--not knowing what caused it; his
carelessness,--a gratuitous supposition of your own! It is absurd. One
very simple observation suffices to annihilate this theory. Society,
which, they tell us, makes an exception in the interest of order in
favor of the possessor as against the old proprietor, owes the latter
an indemnity; since the privilege of prescription is nothing but
expropriation for the sake of public utility.
But here is something stronger:--
"In society a place cannot remain vacant with impunity. A new man arises
in place of the old one who disappears or goes away; he brings here his
existence, becomes entirely absorbed, and devotes himself to this post
which he finds abandoned. Shall the deserter, then, dispute the honor of
the victory with the soldier who fights with the sweat standing on his
brow, and bears the burden of the day, in behalf of a cause which he
deems just? "
When the tongue of an advocate once gets in motion, who can tell where
it will stop? M. Troplong admits and justifies usurpation in case of
the ABSENCE of the proprietor, and on a mere presumption of his
CARELESSNESS. But when the neglect is authenticated; when the
abandonment is solemnly and voluntarily set forth in a contract in the
presence of a magistrate; when the proprietor dares to say, "I cease to
labor, but I still claim a share of the product,"--then the absentee's
right of property is protected; the usurpation of the possessor would
be criminal; farm-rent is the reward of idleness. Where is, I do not say
the consistency, but, the honesty of this law?
Prescription is a result of the civil law, a creation of the legislator.
Why has not the legislator fixed the conditions differently? --why,
instead of twenty and thirty years, is not a single year sufficient to
prescribe? --why are not voluntary absence and confessed idleness as good
grounds for dispossession as involuntary absence, ignorance, or apathy?
But in vain should we ask M. Troplong, the philosopher, to tell us
the ground of prescription. Concerning the code, M. Troplong does not
reason. "The interpreter," he says, "must take things as they are,
society as it exists, laws as they are made: that is the only sensible
starting-point. " Well, then, write no more books; cease to reproach your
predecessors--who, like you, have aimed only at interpretation of the
law--for having remained in the rear; talk no more of philosophy and
progress, for the lie sticks in your throat.
M. Troplong denies the reality of the right of possession; he denies
that possession has ever existed as a principle of society; and he
quotes M. de Savigny, who holds precisely the opposite position, and
whom he is content to leave unanswered. At one time, M. Troplong asserts
that possession and property are CONTEMPORANEOUS, and that they exist AT
THE SAME TIME, which implies that the RIGHT of property is based on the
FACT of possession,--a conclusion which is evidently absurd; at
another, he denies that possession HAD ANY HISTORICAL EXISTENCE PRIOR
TO PROPERTY,--an assertion which is contradicted by the customs of many
nations which cultivate the land without appropriating it; by the Roman
law, which distinguished so clearly between POSSESSION and PROPERTY; and
by our code itself, which makes possession for twenty or thirty years
the condition of property. Finally, M. Troplong goes so far as to
maintain that the Roman maxim, _Nihil comune habet proprietas cum
possessione_--which contains so striking an allusion to the possession
of the _ager publicus_, and which, sooner or later, will be again
accepted without qualification--expresses in French law only a judicial
axiom, a simple rule forbidding the union of an _action possessoire_
with an _action petitoire_,--an opinion as retrogressive as it is
unphilosophical.
In treating of _actions possessoires_, M. Troplong is so unfortunate or
awkward that he mutilates economy through failure to grasp its
meaning "Just as property," he writes, "gave rise to the action for
revendication, so possession--the _jus possessionis_--was the cause
of possessory interdicts. . . . There were two kinds of interdicts,--the
interdict _recuperandae possessionis_, and the interdict _retinendae
possessionis_,--which correspond to our _complainte en cas de saisine
et nouvelete_. There is also a third,--_adipiscendae possessionis_,--of
which the Roman law-books speak in connection with the two others.
But, in reality, this interdict is not possessory: for he who wishes
to acquire possession by this means does not possess, and has not
possessed; and yet acquired possession is the condition of possessory
interdicts. " Why is not an action to acquire possession equally
conceivable with an action to be reinstated in possession? When the
Roman plebeians demanded a division of the conquered territory; when
the proletaires of Lyons took for their motto, _Vivre en travaillant, ou
mourir en combattant_ (to live working, or die fighting); when the most
enlightened of the modern economists claim for every man the right to
labor and to live,--they only propose this interdict, _adipiscendae
possessionis_, which embarrasses M. Troplong so seriously. And what is
my object in pleading against property, if not to obtain possession? How
is it that M. Troplong--the legist, the orator, the philosopher--does
not see that logically this interdict must be admitted, since it is the
necessary complement of the two others, and the three united form an
indivisible trinity,--to RECOVER, to MAINTAIN, to ACQUIRE? To break this
series is to create a blank, destroy the natural synthesis of things,
and follow the example of the geometrician who tried to conceive of
a solid with only two dimensions. But it is not astonishing that M.
Troplong rejects the third class of _actions possessoires_, when
we consider that he rejects possession itself. He is so completely
controlled by his prejudices in this respect, that he is unconsciously
led, not to unite (that would be horrible in his eyes), but to identify
the _action possessoire_ with the _action petitoire_. This could be
easily proved, were it not too tedious to plunge into these metaphysical
obscurities.
As an interpreter of the law, M. Troplong is no more successful than
as a philosopher. One specimen of his skill in this direction, and I am
done with him:--
Code of Civil Procedure, Art. 23: "_Actions possessoires_ are only when
commenced within the year of trouble by those who have held possession
for at least a year by an irrevocable title. "
M. Troplong's comments:--
"Ought we to maintain--as Duparc, Poullain, and Lanjuinais would have
us--the rule _spoliatus ante omnia restituendus_, when an individual,
who is neither proprietor nor annual possessor, is expelled by a third
party, who has no right to the estate? I think not. Art. 23 of the
Code is general: it absolutely requires that the plaintiff in _actions
possessoires_ shall have been in peaceable possession for a year at
least. That is the invariable principle: it can in no case be modified.
And why should it be set aside? The plaintiff had no seisin; he had no
privileged possession; he had only a temporary occupancy, insufficient
to warrant in his favor the presumption of property, which renders the
annual possession so valuable. Well! this _ae facto_ occupancy he has
lost; another is invested with it: possession is in the hands of this
new-comer. Now, is not this a case for the application of the principle,
_In_ _pari causa possesser potior habetur_? Should not the actual
possessor be preferred to the evicted possessor? Can he not meet the
complaint of his adversary by saying to him: 'Prove that you were an
annual possessor before me, for you are the plaintiff. As far as I am
concerned, it is not for me to tell you how I possess, nor how long
I have possessed. _Possideo quia possideo_. I have no other reply, no
other defence. When you have shown that your action is admissible, then
we will see whether you are entitled to lift the veil which hides the
origin of my possession. '"
And this is what is honored with the name of jurisprudence and
philosophy,--the restoration of force. What! when I have "moulded matter
by my labor" [I quote M. Troplong]; when I have "deposited in it a
portion of myself" [M.
