Do you not know that domain over the soil,
like that over air and light, cannot be lost by prescription?
like that over air and light, cannot be lost by prescription?
Proudhon - What is Property? An Inquiry into the Principle of Right and of Government
It necessarily followed that, to obtain equality of
products, there must be equality of labor; and that, to obtain equality
of labor, there must be equality of facilities for labor. Whoever
without labor got possession, by force or by strategy, of another's
means of subsistence, destroyed equality, and placed himself above or
outside of the law. Whoever monopolized the means of production on the
ground of greater industry, also destroyed equality. Equality being then
the expression of right, whoever violated it was UNJUST.
Thus, labor gives birth to private possession; the right in a thing--jus
in re. But in what thing? Evidently IN THE PRODUCT, not IN THE SOIL.
So the Arabs have always understood it; and so, according to Caesar and
Tacitus, the Germans formerly held. "The Arabs," says M. de Sismondi,
"who admit a man's property in the flocks which he has raised, do not
refuse the crop to him who planted the seed; but they do not see why
another, his equal, should not have a right to plant in his turn.
The inequality which results from the pretended right of the first
occupant seems to them to be based on no principle of justice; and when
all the land falls into the hands of a certain number of inhabitants,
there results a monopoly in their favor against the rest of the nation,
to which they do not wish to submit. "
Well, they have shared the land. I admit that therefrom results a more
powerful organization of labor; and that this method of distribution,
fixed and durable, is advantageous to production: but how could this
division give to each a transferable right of property in a thing
to which all had an inalienable right of possession? In the terms
of jurisprudence, this metamorphosis from possessor to proprietor is
legally impossible; it implies in the jurisdiction of the courts the
union of possessoire and petitoire; and the mutual concessions of those
who share the land are nothing less than traffic in natural rights. The
original cultivators of the land, who were also the original makers of
the law, were not as learned as our legislators, I admit; and had
they been, they could not have done worse: they did not foresee the
consequences of the transformation of the right of private possession
into the right of absolute property. But why have not those, who in
later times have established the distinction between jus in re and jus
ad rem, applied it to the principle of property itself?
Let me call the attention of the writers on jurisprudence to their own
maxims.
The right of property, provided it can have a cause, can have but
one--_Dominium non potest nisi ex una causa contingere_. I can possess
by several titles; I can become proprietor by only one--_Non ut ex
pluribus causis idem nobis deberi potest, ita ex pluribus causis idem
potest nostrum esse_. The field which I have cleared, which I cultivate,
on which I have built my house, which supports myself, my family, and
my livestock, I can possess: 1st. As the original occupant; 2d. As a
laborer; 3d. By virtue of the social contract which assigns it to me as
my share.
But none of these titles confer upon me the right of property. For, if I
attempt to base it upon occupancy, society can reply, "I am the original
occupant. " If I appeal to my labor, it will say, "It is only on that
condition that you possess. " If I speak of agreements, it will respond,
"These agreements establish only your right of use. " Such, however, are
the only titles which proprietors advance. They never have been able
to discover any others. Indeed, every right--it is Pothier who says
it--supposes a producing cause in the person who enjoys it; but in man
who lives and dies, in this son of earth who passes away like a
shadow, there exists, with respect to external things, only titles of
possession, not one title of property. Why, then, has society recognized
a right injurious to itself, where there is no producing cause? Why,
in according possession, has it also conceded property? Why has the law
sanctioned this abuse of power?
The German Ancillon replies thus:--
"Some philosophers pretend that man, in employing his forces upon a
natural object,--say a field or a tree,--acquires a right only to the
improvements which he makes, to the form which he gives to the object,
not to the object itself. Useless distinction! If the form could be
separated from the object, perhaps there would be room for question; but
as this is almost always impossible, the application of man's strength
to the different parts of the visible world is the foundation of the
right of property, the primary origin of riches. "
Vain pretext! If the form cannot be separated from the object, nor
property from possession, possession must be shared; in any case,
society reserves the right to fix the conditions of property. Let us
suppose that an appropriated farm yields a gross income of ten thousand
francs; and, as very seldom happens, that this farm cannot be divided.
Let us suppose farther that, by economical calculation, the annual
expenses of a family are three thousand francs: the possessor of this
farm should be obliged to guard his reputation as a good father of a
family, by paying to society ten thousand francs,--less the total
costs of cultivation, and the three thousand francs required for the
maintenance of his family. This payment is not rent, it is an indemnity.
What sort of justice is it, then, which makes such laws as this:--
"Whereas, since labor so changes the form of a thing that the form
and substance cannot be separated without destroying the thing itself,
either society must be disinherited, or the laborer must lose the fruit
of his labor; and
"Whereas, in every other case, property in raw material would give a
title to added improvements, minus their cost; and whereas, in this
instance, property in improvements ought to give a title to the
principal;
"Therefore, the right of appropriation by labor shall never be admitted
against individuals, but only against society. "
In such a way do legislators always reason in regard to property.
The law is intended to protect men's mutual rights,--that is, the rights
of each against each, and each against all; and, as if a proportion
could exist with less than four terms, the law-makers always disregard
the latter. As long as man is opposed to man, property offsets property,
and the two forces balance each other; as soon as man is isolated, that
is, opposed to the society which he himself represents, jurisprudence is
at fault: Themis has lost one scale of her balance.
Listen to the professor of Rennes, the learned Toullier:--
"How could this claim, made valid by occupation, become stable and
permanent property, which might continue to stand, and which might be
reclaimed after the first occupant had relinquished possession?
"Agriculture was a natural consequence of the multiplication of the
human race, and agriculture, in its turn, favors population, and
necessitates the establishment of permanent property; for who would
take the trouble to plough and sow, if he were not certain that he would
reap? "
To satisfy the husbandman, it was sufficient to guarantee him possession
of his crop; admit even that he should have been protected in his right
of occupation of land, as long as he remained its cultivator. That was
all that he had a right to expect; that was all that the advance of
civilization demanded. But property, property! the right of escheat over
lands which one neither occupies nor cultivates,--who had authority to
grant it? who pretended to have it?
"Agriculture alone was not sufficient to establish permanent property;
positive laws were needed, and magistrates to execute them; in a word,
the civil State was needed.
"The multiplication of the human race had rendered agriculture
necessary; the need of securing to the cultivator the fruit of his labor
made permanent property necessary, and also laws for its protection. So
we are indebted to property for the creation of the civil State. "
Yes, of our civil State, as you have made it; a State which, at first,
was despotism, then monarchy, then aristocracy, today democracy, and
always tyranny.
"Without the ties of property it never would have been possible to
subordinate men to the wholesome yoke of the law; and without permanent
property the earth would have remained a vast forest. Let us admit,
then, with the most careful writers, that if transient property, or
the right of preference resulting from occupation, existed prior to
the establishment of civil society, permanent property, as we know it
to-day, is the work of civil law. It is the civil law which holds that,
when once acquired, property can be lost only by the action of
the proprietor, and that it exists even after the proprietor has
relinquished possession of the thing, and it has fallen into the hands
of a third party.
"Thus property and possession, which originally were confounded, became
through the civil law two distinct and independent things; two things
which, in the language of the law, have nothing whatever in common. In
this we see what a wonderful change has been effected in property, and
to what an extent Nature has been altered by the civil laws. "
Thus the law, in establishing property, has not been the expression of a
psychological fact, the development of a natural law, the application of
a moral principle. It has literally CREATED a right outside of its own
province. It has realized an abstraction, a metaphor, a fiction; and
that without deigning to look at the consequences, without considering
the disadvantages, without inquiring whether it was right or wrong.
It has sanctioned selfishness; it has indorsed monstrous pretensions;
it has received with favor impious vows, as if it were able to fill up a
bottomless pit, and to satiate hell! Blind law; the law of the ignorant
man; a law which is not a law; the voice of discord, deceit, and
blood! This it is which, continually revived, reinstated, rejuvenated,
restored, re-enforced--as the palladium of society--has troubled the
consciences of the people, has obscured the minds of the masters, and
has induced all the catastrophes which have befallen nations.
This it is which Christianity has condemned, but which its ignorant
ministers deify; who have as little desire to study Nature and man, as
ability to read their Scriptures.
But, indeed, what guide did the law follow in creating the domain of
property? What principle directed it? What was its standard?
Would you believe it? It was equality.
Agriculture was the foundation of territorial possession, and the
original cause of property. It was of no use to secure to the farmer the
fruit of his labor, unless the means of production were at the same time
secured to him. To fortify the weak against the invasion of the strong,
to suppress spoliation and fraud, the necessity was felt of establishing
between possessors permanent lines of division, insuperable obstacles.
Every year saw the people multiply, and the cupidity of the husbandman
increase: it was thought best to put a bridle on ambition by setting
boundaries which ambition would in vain attempt to overstep. Thus the
soil came to be appropriated through need of the equality which is
essential to public security and peaceable possession. Undoubtedly the
division was never geographically equal; a multitude of rights, some
founded in Nature, but wrongly interpreted and still more wrongly
applied, inheritance, gift, and exchange; others, like the privileges
of birth and position, the illegitimate creations of ignorance and brute
force,--all operated to prevent absolute equality. But, nevertheless,
the principle remained the same: equality had sanctioned possession;
equality sanctioned property.
The husbandman needed each year a field to sow; what more convenient and
simple arrangement for the barbarians,--instead of indulging in annual
quarrels and fights, instead of continually moving their houses,
furniture, and families from spot to spot,--than to assign to each
individual a fixed and inalienable estate?
It was not right that the soldier, on returning from an expedition,
should find himself dispossessed on account of the services which he had
just rendered to his country; his estate ought to be restored to him. It
became, therefore, customary to retain property by intent alone--_nudo
animo;_ it could be sacrificed only with the consent and by the action
of the proprietor.
It was necessary that the equality in the division should be kept up
from one generation to another, without a new distribution of the land
upon the death of each family; it appeared therefore natural and just
that children and parents, according to the degree of relationship
which they bore to the deceased, should be the heirs of their ancestors.
Thence came, in the first place, the feudal and patriarchal custom of
recognizing only one heir; then, by a quite contrary application of the
principle of equality, the admission of all the children to a share in
their father's estate, and, very recently also among us, the definitive
abolition of the right of primogeniture.
But what is there in common between these rude outlines of instinctive
organization and the true social science? How could these men, who never
had the faintest idea of statistics, valuation, or political economy,
furnish us with principles of legislation?
"The law," says a modern writer on jurisprudence, "is the expression of
a social want, the declaration of a fact: the legislator does not make
it, he declares it. 'This definition is not exact. The law is a method
by which social wants must be satisfied; the people do not vote it, the
legislator does not express it: the savant discovers and formulates it. "
But in fact, the law, according to M. Ch. Comte, who has devoted half a
volume to its definition, was in the beginning only the EXPRESSION OF
A WANT, and the indication of the means of supplying it; and up to this
time it has been nothing else. The legists--with mechanical fidelity,
full of obstinacy, enemies of philosophy, buried in literalities--have
always mistaken for the last word of science that which was only the
inconsiderate aspiration of men who, to be sure, were well-meaning, but
wanting in foresight.
They did not foresee, these old founders of the domain of property, that
the perpetual and absolute right to retain one's estate,--a right which
seemed to them equitable, because it was common,--involves the right to
transfer, sell, give, gain, and lose it; that it tends, consequently,
to nothing less than the destruction of that equality which they
established it to maintain. And though they should have foreseen it,
they disregarded it; the present want occupied their whole attention,
and, as ordinarily happens in such cases, the disadvantages were at
first scarcely perceptible, and they passed unnoticed.
They did not foresee, these ingenuous legislators, that if property is
retainable by intent alone--_nudo animo_--it carries with it the right
to let, to lease, to loan at interest, to profit by exchange, to settle
annuities, and to levy a tax on a field which intent reserves, while the
body is busy elsewhere.
They did not foresee, these fathers of our jurisprudence, that, if
the right of inheritance is any thing other than Nature's method of
preserving equality of wealth, families will soon become victims of the
most disastrous exclusions; and society, pierced to the heart by one of
its most sacred principles, will come to its death through opulence and
misery. [12]
Under whatever form of government we live, it can always be said that
_le mort saisit le vif;_ that is, that inheritance and succession will
last for ever, whoever may be the recognized heir. But the St. Simonians
wish the heir to be designated by the magistrate; others wish him to
be chosen by the deceased, or assumed by the law to be so chosen: the
essential point is that Nature's wish be satisfied, so far as the law of
equality allows.
To-day the real controller of inheritance is chance or caprice; now, in
matters of legislation, chance and caprice cannot be accepted as guides.
It is for the purpose of avoiding the manifold disturbances which
follow in the wake of chance that Nature, after having created us equal,
suggests to us the principle of heredity; which serves as a voice by
which society asks us to choose, from among all our brothers, him whom
we judge best fitted to complete our unfinished work.
They did not foresee. . . . But why need I go farther?
The consequences are plain enough, and this is not the time to criticise
the whole Code.
The history of property among the ancient nations is, then, simply a
matter of research and curiosity. It is a rule of jurisprudence that the
fact does not substantiate the right. Now, property is no exception to
this rule: then the universal recognition of the right of property
does not legitimate the right of property. Man is mistaken as to the
constitution of society, the nature of right, and the application of
justice; just as he was mistaken regarding the cause of meteors and the
movement of the heavenly bodies. His old opinions cannot be taken for
articles of faith. Of what consequence is it to us that the Indian race
was divided into four classes; that, on the banks of the Nile and the
Ganges, blood and position formerly determined the distribution of the
land; that the Greeks and Romans placed property under the protection
of the gods; that they accompanied with religious ceremonies the work
of partitioning the land and appraising their goods? The variety of the
forms of privilege does not sanction injustice. The faith of Jupiter,
the proprietor, [13] proves no more against the equality of citizens,
than do the mysteries of Venus, the wanton, against conjugal chastity.
The authority of the human race is of no effect as evidence in favor
of the right of property, because this right, resting of necessity upon
equality, contradicts its principle; the decision of the religions which
have sanctioned it is of no effect, because in all ages the priest
has submitted to the prince, and the gods have always spoken as the
politicians desired; the social advantages, attributed to property,
cannot be cited in its behalf, because they all spring from the
principle of equality of possession.
What means, then, this dithyramb upon property?
"The right of property is the most important of human institutions. ". . .
Yes; as monarchy is the most glorious.
"The original cause of man's prosperity upon earth. "
Because justice was supposed to be its principle.
"Property became the legitimate end of his ambition, the hope of his
existence, the shelter of his family; in a word, the corner-stone of the
domestic dwelling, of communities, and of the political State. "
Possession alone produced all that.
"Eternal principle,--"
Property is eternal, like every negation,--
"Of all social and civil institutions. "
For that reason, every institution and every law based on property will
perish.
"It is a boon as precious as liberty. "
For the rich proprietor.
"In fact, the cause of the cultivation of the habitable earth. "
If the cultivator ceased to be a tenant, would the land be worse cared
for?
"The guarantee and the morality of labor. "
Under the regime of property, labor is not a condition, but a privilege.
"The application of justice. "
What is justice without equality of fortunes? A balance with false
weights.
"All morality,--"
A famished stomach knows no morality,--
"All public order,--"
Certainly, the preservation of property,--
"Rest on the right of property. " [14]
Corner-stone of all which is, stumbling-block of all which ought to
be,--such is property.
To sum up and conclude:--
Not only does occupation lead to equality, it PREVENTS property. For,
since every man, from the fact of his existence, has the right of
occupation, and, in order to live, must have material for cultivation
on which he may labor; and since, on the other hand, the number of
occupants varies continually with the births and deaths,--it follows
that the quantity of material which each laborer may claim varies
with the number of occupants; consequently, that occupation is always
subordinate to population. Finally, that, inasmuch as possession, in
right, can never remain fixed, it is impossible, in fact, that it can
ever become property.
Every occupant is, then, necessarily a possessor or usufructuary,--a
function which excludes proprietorship. Now, this is the right of the
usufructuary: he is responsible for the thing entrusted to him; he
must use it in conformity with general utility, with a view to its
preservation and development; he has no power to transform it, to
diminish it, or to change its nature; he cannot so divide the usufruct
that another shall perform the labor while he receives the product. In a
word, the usufructuary is under the supervision of society, submitted to
the condition of labor and the law of equality.
Thus is annihilated the Roman definition of property--THE RIGHT OF USE
AND ABUSE--an immorality born of violence, the most monstrous pretension
that the civil laws ever sanctioned. Man receives his usufruct from the
hands of society, which alone is the permanent possessor. The individual
passes away, society is deathless.
What a profound disgust fills my soul while discussing such simple
truths! Do we doubt these things to-day? Will it be necessary to again
take arms for their triumph? And can force, in default of reason, alone
introduce them into our laws?
ALL HAVE AN EQUAL RIGHT OF OCCUPANCY.
THE AMOUNT OCCUPIED BEING MEASURED, NOT BY THE WILL, BUT BY THE VARIABLE
CONDITIONS OF SPACE AND NUMBER, PROPERTY CANNOT EXIST.
This no code has ever expressed; this no constitution can admit! These
are axioms which the civil law and the law of nations deny! . . . . .
But I hear the exclamations of the partisans of another system: "Labor,
labor! that is the basis of property! "
Reader, do not be deceived. This new basis of property is worse than the
first, and I shall soon have to ask your pardon for having demonstrated
things clearer, and refuted pretensions more unjust, than any which we
have yet considered.
CHAPTER III. LABOR AS THE EFFICIENT CAUSE OF THE DOMAIN OF PROPERTY.
Nearly all the modern writers on jurisprudence, taking their cue from
the economists, have abandoned the theory of first occupancy as a too
dangerous one, and have adopted that which regards property as born of
labor. In this they are deluded; they reason in a circle. To labor it is
necessary to occupy, says M. Cousin.
Consequently, I have added in my turn, all having an equal right of
occupancy, to labor it is necessary to submit to equality. "The rich,"
exclaims Jean Jacques, "have the arrogance to say, 'I built this wall; I
earned this land by my labor. ' Who set you the tasks? we may reply, and
by what right do you demand payment from us for labor which we did not
impose upon you? " All sophistry falls to the ground in the presence of
this argument.
But the partisans of labor do not see that their system is an absolute
contradiction of the Code, all the articles and provisions of which
suppose property to be based upon the fact of first occupancy. If labor,
through the appropriation which results from it, alone gives birth to
property, the Civil Code lies, the charter is a falsehood, our whole
social system is a violation of right. To this conclusion shall we come,
at the end of the discussion which is to occupy our attention in this
chapter and the following one, both as to the right of labor and the
fact of property. We shall see, on the one hand, our legislation in
opposition to itself; and, on the other hand, our new jurisprudence in
opposition both to its own principle and to our legislation.
I have asserted that the system which bases property upon labor implies,
no less than that which bases it upon occupation, the equality of
fortunes; and the reader must be impatient to learn how I propose to
deduce this law of equality from the inequality of skill and faculties:
directly his curiosity shall be satisfied. But it is proper that I
should call his attention for a moment to this remarkable feature of
the process; to wit, the substitution of labor for occupation as the
principle of property; and that I should pass rapidly in review some
of the prejudices to which proprietors are accustomed to appeal, which
legislation has sanctioned, and which the system of labor completely
overthrows.
Reader, were you ever present at the examination of a criminal? Have
you watched his tricks, his turns, his evasions, his distinctions, his
equivocations? Beaten, all his assertions overthrown, pursued like
a fallow deer by the in exorable judge, tracked from hypothesis
to hypothesis,--he makes a statement, he corrects it, retracts it,
contradicts it, he exhausts all the tricks of dialectics, more subtle,
more ingenious a thousand times than he who invented the seventy-two
forms of the syllogism. So acts the proprietor when called upon
to defend his right. At first he refuses to reply, he exclaims, he
threatens, he defies; then, forced to accept the discussion, he
arms himself with chicanery, he surrounds himself with formidable
artillery,--crossing his fire, opposing one by one and all together
occupation, possession, limitation, covenants, immemorial custom, and
universal consent. Conquered on this ground, the proprietor, like a
wounded boar, turns on his pursuers. "I have done more than occupy,"
he cries with terrible emotion; "I have labored, produced, improved,
transformed, CREATED. This house, these fields, these trees are the work
of my hands; I changed these brambles into a vineyard, and this bush
into a fig-tree; and to-day I reap the harvest of my labors. I have
enriched the soil with my sweat; I have paid those men who, had they not
had the work which I gave them, would have died of hunger. No one
shared with me the trouble and expense; no one shall share with me the
benefits. "
You have labored, proprietor! why then do you speak of original
occupancy? What, were you not sure of your right, or did you hope to
deceive men, and make justice an illusion? Make haste, then, to acquaint
us with your mode of defence, for the judgment will be final; and you
know it to be a question of restitution.
You have labored! but what is there in common between the labor which
duty compels you to perform, and the appropriation of things in which
there is a common interest?
Do you not know that domain over the soil,
like that over air and light, cannot be lost by prescription?
You have labored! have you never made others labor? Why, then, have they
lost in laboring for you what you have gained in not laboring for them?
You have labored! very well; but let us see the results of your labor.
We will count, weigh, and measure them. It will be the judgment of
Balthasar; for I swear by balance, level, and square, that if you have
appropriated another's labor in any way whatsoever, you shall restore it
every stroke.
Thus, the principle of occupation is abandoned; no longer is it said,
"The land belongs to him who first gets possession of it. " Property,
forced into its first intrenchment, repudiates its old adage; justice,
ashamed, retracts her maxims, and sorrow lowers her bandage over her
blushing cheeks. And it was but yesterday that this progress in social
philosophy began: fifty centuries required for the extirpation of a
lie! During this lamentable period, how many usurpations have been
sanctioned, how many invasions glorified, how many conquests celebrated!
The absent dispossessed, the poor banished, the hungry excluded by
wealth, which is so ready and bold in action! Jealousies and wars,
incendiarism and bloodshed, among the nations! But henceforth, thanks
to the age and its spirit, it is to be admitted that the earth is not a
prize to be won in a race; in the absence of any other obstacle, there
is a place for everybody under the sun. Each one may harness his goat
to the bearn, drive his cattle to pasture, sow a corner of a field, and
bake his bread by his own fireside.
But, no; each one cannot do these things. I hear it proclaimed on all
sides, "Glory to labor and industry! to each according to his capacity;
to each capacity according to its results! " And I see three-fourths of
the human race again despoiled, the labor of a few being a scourge to
the labor of the rest.
"The problem is solved," exclaims M. Hennequin. "Property, the daughter
of labor, can be enjoyed at present and in the future only under the
protection of the laws. It has its origin in natural law; it derives its
power from civil law; and from the union of these two ideas, LABOR and
PROTECTION, positive legislation results. ". . .
Ah! THE PROBLEM IS SOLVED! PROPERTY IS THE DAUGHTER OF LABOR! What,
then, is the right of accession, and the right of succession, and the
right of donation, &c. , if not the right to become a proprietor by
simple occupancy? What are your laws concerning the age of majority,
emancipation, guardianship, and interdiction, if not the various
conditions by which he who is already a laborer gains or loses the right
of occupancy; that is, property?
Being unable, at this time, to enter upon a detailed discussion of the
Code, I shall content myself with examining the three arguments oftenest
resorted to in support of property. 1. APPROPRIATION, or the formation
of property by possession; 2. THE CONSENT OF MANKIND; 3. PRESCRIPTION. I
shall then inquire into the effects of labor upon the relative condition
of the laborers and upon property.
% 1. --The Land cannot be Appropriated.
"It would seem that lands capable of cultivation ought to be regarded
as natural wealth, since they are not of human creation, but Nature's
gratuitous gift to man; but inasmuch as this wealth is not fugitive,
like the air and water,--inasmuch as a field is a fixed and limited
space which certain men have been able to appropriate, to the
exclusion of all others who in their turn have consented to this
appropriation,--the land, which was a natural and gratuitous gift,
has become social wealth, for the use of which we ought to pay. "--SAY:
POLITICAL ECONOMY.
Was I wrong in saying, at the beginning of this chapter, that the
economists are the very worst authorities in matters of legislation and
philosophy? It is the FATHER of this class of men who clearly states
the question, How can the supplies of Nature, the wealth created by
Providence, become private property? and who replies by so gross an
equivocation that we scarcely know which the author lacks, sense or
honesty. What, I ask, has the fixed and solid nature of the earth to do
with the right of appropriation? I can understand that a thing LIMITED
and STATIONARY, like the land, offers greater chances for appropriation
than the water or the sunshine; that it is easier to exercise the right
of domain over the soil than over the atmosphere: but we are not dealing
with the difficulty of the thing, and Say confounds the right with the
possibility. We do not ask why the earth has been appropriated to a
greater extent than the sea and the air; we want to know by what right
man has appropriated wealth WHICH HE DID NOT CREATE, AND WHICH NATURE
GAVE TO HIM GRATUITOUSLY.
Say, then, did not solve the question which he asked. But if he had
solved it, if the explanation which he has given us were as satisfactory
as it is illogical, we should know no better than before who has a right
to exact payment for the use of the soil, of this wealth which is not
man's handiwork. Who is entitled to the rent of the land? The producer
of the land, without doubt. Who made the land? God. Then, proprietor,
retire!
But the creator of the land does not sell it: he gives it; and, in
giving it, he is no respecter of persons. Why, then, are some of his
children regarded as legitimate, while others are treated as bastards?
If the equality of shares was an original right, why is the inequality
of conditions a posthumous right?
Say gives us to understand that if the air and the water were not of a
FUGITIVE nature, they would have been appropriated. Let me observe in
passing that this is more than an hypothesis; it is a reality. Men have
appropriated the air and the water, I will not say as often as they
could, but as often as they have been allowed to.
The Portuguese, having discovered the route to India by the Cape of
Good Hope, pretended to have the sole right to that route; and Grotius,
consulted in regard to this matter by the Dutch who refused to recognize
this right, wrote expressly for this occasion his treatise on
the "Freedom of the Seas," to prove that the sea is not liable to
appropriation.
The right to hunt and fish used always to be confined to lords and
proprietors; to-day it is leased by the government and communes to
whoever can pay the license-fee and the rent. To regulate hunting and
fishing is an excellent idea, but to make it a subject of sale is to
create a monopoly of air and water.
What is a passport? A universal recommendation of the traveller's
person; a certificate of security for himself and his property. The
treasury, whose nature it is to spoil the best things, has made the
passport a means of espionage and a tax. Is not this a sale of the right
to travel?
Finally, it is permissible neither to draw water from a spring situated
in another's grounds without the permission of the proprietor, because
by the right of accession the spring belongs to the possessor of the
soil, if there is no other claim; nor to pass a day on his premises
without paying a tax; nor to look at a court, a garden, or an orchard,
without the consent of the proprietor; nor to stroll in a park or an
enclosure against the owner's will: every one is allowed to shut himself
up and to fence himself in. All these prohibitions are so many positive
interdictions, not only of the land, but of the air and water. We who
belong to the proletaire class: property excommunicates us! _Terra, et
aqua, et aere, et igne interdicti sumus_.
Men could not appropriate the most fixed of all the elements without
appropriating the three others; since, by French and Roman law, property
in the surface carries with it property from zenith to nadir--_Cujus
est solum, ejus est usque ad caelum_. Now, if the use of water, air,
and fire excludes property, so does the use of the soil. This chain of
reasoning seems to have been presented by M. Ch. Comte, in his "Treatise
on Property," chap. 5.
"If a man should be deprived of air for a few moments only, he would
cease to exist, and a partial deprivation would cause him severe
suffering; a partial or complete deprivation of food would produce like
effects upon him though less suddenly; it would be the same, at least
in certain climates! were he deprived of all clothing and shelter. . . . To
sustain life, then, man needs continually to appropriate many different
things. But these things do not exist in like proportions. Some, such as
the light of the stars, the atmosphere of the earth, the water composing
the seas and oceans, exist in such large quantities that men cannot
perceive any sensible increase or diminution; each one can appropriate
as much as his needs require without detracting from the enjoyment of
others, without causing them the least harm. Things of this sort are, so
to speak, the common property of the human race; the only duty imposed
upon each individual in this regard is that of infringing not at all
upon the rights of others. "
Let us complete the argument of M. Ch. Comte. A man who should be
prohibited from walking in the highways, from resting in the fields,
from taking shelter in caves, from lighting fires, from picking berries,
from gathering herbs and boiling them in a bit of baked clay,--such
a man could not live. Consequently the earth--like water, air, and
light--is a primary object of necessity which each has a right to use
freely, without infringing another's right. Why, then, is the earth
appropriated? M. Ch. Comte's reply is a curious one. Say pretends that
it is because it is not FUGITIVE; M. Ch. Comte assures us that it
is because it is not INFINITE. The land is limited in amount. Then,
according to M. Ch. Comte, it ought to be appropriated. It would
seem, on the contrary, that he ought to say, Then it ought not to be
appropriated. Because, no matter how large a quantity of air or light
any one appropriates, no one is damaged thereby; there always remains
enough for all. With the soil, it is very different. Lay hold who will,
or who can, of the sun's rays, the passing breeze, or the sea's billows;
he has my consent, and my pardon for his bad intentions. But let any
living man dare to change his right of territorial possession into the
right of property, and I will declare war upon him, and wage it to the
death!
M. Ch. Comte's argument disproves his position. "Among the things
necessary to the preservation of life," he says, "there are some which
exist in such large quantities that they are inexhaustible; others which
exist in lesser quantities, and can satisfy the wants of only a certain
number of persons. The former are called COMMON, the latter PRIVATE. "
This reasoning is not strictly logical. Water, air, and light are
COMMON things, not because they are INEXHAUSTIBLE, but because they are
INDISPENSABLE; and so indispensable that for that very reason Nature
has created them in quantities almost infinite, in order that their
plentifulness might prevent their appropriation. Likewise the land
is indispensable to our existence,--consequently a common thing,
consequently insusceptible of appropriation; but land is much scarcer
than the other elements, therefore its use must be regulated, not for
the profit of a few, but in the interest and for the security of all.
In a word, equality of rights is proved by equality of needs. Now,
equality of rights, in the case of a commodity which is limited in
amount, can be realized only by equality of possession. An agrarian law
underlies M. Ch. Comte's arguments.
From whatever point we view this question of property--provided we go
to the bottom of it--we reach equality. I will not insist farther on
the distinction between things which can, and things which cannot, be
appropriated. On this point, economists and legists talk worse than
nonsense. The Civil Code, after having defined property, says nothing
about susceptibility of appropriation; and if it speaks of things which
are in THE MARKET, it always does so without enumerating or describing
them. However, light is not wanting. There are some few maxims such as
these: _Ad reges potestas omnium pertinet, ad singulos proprietas; Omnia
rex imperio possidet, singula dominio_. Social sovereignty opposed to
private property! --might not that be called a prophecy of equality, a
republican oracle? Examples crowd upon us: once the possessions of
the church, the estates of the crown, the fiefs of the nobility
were inalienable and imprescriptible. If, instead of abolishing this
privilege, the Constituent had extended it to every individual; if
it had declared that the right of labor, like liberty, can never be
forfeited,--at that moment the revolution would have been consummated,
and we could now devote ourselves to improvement in other directions.
% 2. --Universal Consent no Justification of Property.
In the extract from Say, quoted above, it is not clear whether the
author means to base the right of property on the stationary character
of the soil, or on the consent which he thinks all men have granted
to this appropriation. His language is such that it may mean either
of these things, or both at once; which entitles us to assume that the
author intended to say, "The right of property resulting originally from
the exercise of the will, the stability of the soil permitted it to be
applied to the land, and universal consent has since sanctioned this
application. "
However that may be, can men legitimate property by mutual consent? I
say, no. Such a contract, though drafted by Grotius, Montesquieu, and J.
J. Rousseau, though signed by the whole human race, would be null in the
eyes of justice, and an act to enforce it would be illegal. Man can
no more give up labor than liberty. Now, to recognize the right of
territorial property is to give up labor, since it is to relinquish
the means of labor; it is to traffic in a natural right, and divest
ourselves of manhood.
But I wish that this consent, of which so much is made, had been given,
either tacitly or formally. What would have been the result? Evidently,
the surrenders would have been reciprocal; no right would have been
abandoned without the receipt of an equivalent in exchange. We thus come
back to equality again,--the sine qua non of appropriation; so that,
after having justified property by universal consent, that is, by
equality, we are obliged to justify the inequality of conditions by
property. Never shall we extricate ourselves from this dilemma. Indeed,
if, in the terms of the social compact, property has equality for its
condition, at the moment when equality ceases to exist, the compact is
broken and all property becomes usurpation. We gain nothing, then, by
this pretended consent of mankind.
% 3. --Prescription Gives No Title to Property.
The right of property was the origin of evil on the earth, the first
link in the long chain of crimes and misfortunes which the human race
has endured since its birth. The delusion of prescription is the fatal
charm thrown over the intellect, the death sentence breathed into the
conscience, to arrest man's progress towards truth, and bolster up the
worship of error.
The Code defines prescription thus: "The process of gaining and losing
through the lapse of time. " In applying this definition to ideas and
beliefs, we may use the word PRESCRIPTION to denote the everlasting
prejudice in favor of old superstitions, whatever be their object; the
opposition, often furious and bloody, with which new light has always
been received, and which makes the sage a martyr. Not a principle, not a
discovery, not a generous thought but has met, at its entrance into the
world, with a formidable barrier of preconceived opinions, seeming
like a conspiracy of all old prejudices. Prescriptions against reason,
prescriptions against facts, prescriptions against every truth hitherto
unknown,--that is the sum and substance of the _statu quo_ philosophy,
the watchword of conservatives throughout the centuries.
When the evangelical reform was broached to the world, there was
prescription in favor of violence, debauchery, and selfishness; when
Galileo, Descartes, Pascal, and their disciples reconstructed philosophy
and the sciences, there was prescription in favor of the Aristotelian
philosophy; when our fathers of '89 demanded liberty and equality, there
was prescription in favor of tyranny and privilege. "There always have
been proprietors and there always will be:" it is with this profound
utterance, the final effort of selfishness dying in its last ditch,
that the friends of social inequality hope to repel the attacks of their
adversaries; thinking undoubtedly that ideas, like property, can be lost
by prescription.
Enlightened to-day by the triumphal march of science, taught by the most
glorious successes to question our own opinions, we receive with favor
and applause the observer of Nature, who, by a thousand experiments
based upon the most profound analysis, pursues a new principle, a law
hitherto undiscovered. We take care to repel no idea, no fact, under the
pretext that abler men than ourselves lived in former days, who did not
notice the same phenomena, nor grasp the same analogies. Why do we not
preserve a like attitude towards political and philosophical questions?
Why this ridiculous mania for affirming that every thing has been said,
which means that we know all about mental and moral science? Why is
the proverb, THERE IS NOTHING NEW UNDER THE SUN, applied exclusively to
metaphysical investigations?
Because we still study philosophy with the imagination, instead of by
observation and method; because fancy and will are universally regarded
as judges, in the place of arguments and facts,--it has been impossible
to this day to distinguish the charlatan from the philosopher, the
savant from the impostor. Since the days of Solomon and Pythagoras,
imagination has been exhausted in guessing out social and psychological
laws; all systems have been proposed. Looked at in this light, it is
probably true that EVERY THING HAS BEEN SAID; but it is no less true
that EVERY THING REMAINS TO BE PROVED. In politics (to take only this
branch of philosophy), in politics every one is governed in his choice
of party by his passion and his interests; the mind is submitted to the
impositions of the will,--there is no knowledge, there is not even a
shadow of certainty. In this way, general ignorance produces general
tyranny; and while liberty of thought is written in the charter, slavery
of thought, under the name of MAJORITY RULE, is decreed by the charter.
In order to confine myself to the civil prescription of which the Code
speaks, I shall refrain from beginning a discussion upon this worn-out
objection brought forward by proprietors; it would be too tiresome
and declamatory. Everybody knows that there are rights which cannot be
prescribed; and, as for those things which can be gained through the
lapse of time, no one is ignorant of the fact that prescription requires
certain conditions, the omission of one of which renders it null. If it
is true, for example, that the proprietor's possession has been CIVIL,
PUBLIC, PEACEABLE, and UNINTERRUPTED, it is none the less true that
it is not based on a just title; since the only titles which it can
show--occupation and labor--prove as much for the proletaire who
demands, as for the proprietor who defends. Further, this possession is
DISHONEST, since it is founded on a violation of right, which prevents
prescription, according to the saying of St. Paul--_Nunquam in
usucapionibus juris error possessori prodest_. The violation of right
lies either in the fact that the holder possesses as proprietor, while
he should possess only as usufructuary; or in the fact that he has
purchased a thing which no one had a right to transfer or sell.
Another reason why prescription cannot be adduced in favor of property
(a reason borrowed from jurisprudence) is that the right to possess
real estate is a part of a universal right which has never been totally
destroyed even at the most critical periods; and the proletaire, in
order to regain the power to exercise it fully, has only to prove that
he has always exercised it in part.
He, for example, who has the universal right to possess, give, exchange,
loan, let, sell, transform, or destroy a thing, preserves the integrity
of this right by the sole act of loaning, though he has never shown his
authority in any other manner. Likewise we shall see that EQUALITY OF
POSSESSIONS, EQUALITY OF RIGHTS, LIBERTY, WILL, PERSONALITY, are so
many identical expressions of one and the same idea,--the RIGHT OF
PRESERVATION and DEVELOPMENT; in a word, the right of life, against
which there can be no prescription until the human race has vanished
from the face of the earth.
Finally, as to the time required for prescription, it would be
superfluous to show that the right of property in general cannot be
acquired by simple possession for ten, twenty, a hundred, a thousand,
or one hundred thousand years; and that, so long as there exists a human
head capable of understanding and combating the right of property, this
right will never be prescribed. For principles of jurisprudence and
axioms of reason are different from accidental and contingent facts.
One man's possession can prescribe against another man's possession; but
just as the possessor cannot prescribe against himself, so reason has
always the faculty of change and reformation. Past error is not binding
on the future. Reason is always the same eternal force. The institution
of property, the work of ignorant reason, may be abrogated by a more
enlightened reason. Consequently, property cannot be established by
prescription. This is so certain and so true, that on it rests the
maxim that in the matter of prescription a violation of right goes for
nothing.
But I should be recreant to my method, and the reader would have the
right to accuse me of charlatanism and bad faith, if I had nothing
further to advance concerning prescription. I showed, in the first
place, that appropriation of land is illegal; and that, supposing it to
be legal, it must be accompanied by equality of property. I have shown,
in the second place, that universal consent proves nothing in favor
of property; and that, if it proves any thing, it proves equality of
property. I have yet to show that prescription, if admissible at all,
presupposes equality of property.
This demonstration will be neither long nor difficult. I need only to
call attention to the reasons why prescription was introduced.
"Prescription," says Dunod, "seems repugnant to natural equity, which
permits no one either to deprive another of his possessions without his
knowledge and consent, or to enrich himself at another's expense. But as
it might often happen, in the absence of prescription, that one who had
honestly earned would be ousted after long possession; and even that
he who had received a thing from its rightful owner, or who had been
legitimately relieved from all obligations, would, on losing his title,
be liable to be dispossessed or subjected again,--the public welfare
demanded that a term should be fixed, after the expiration of which no
one should be allowed to disturb actual possessors, or reassert rights
too long neglected. . . . The civil law, in regulating prescription, has
aimed, then, only to perfect natural law, and to supplement the law of
nations; and as it is founded on the public good, which should always be
considered before individual welfare,--_bono publico usucapio introducta
est_,--it should be regarded with favor, provided the conditions
required by the law are fulfilled. "
Toullier, in his "Civil Law," says: "In order that the question of
proprietorship may not remain too long unsettled, and thereby injure the
public welfare, disturbing the peace of families and the stability of
social transactions, the law has fixed a time when all claims shall be
cancelled, and possession shall regain its ancient prerogative through
its transformation into property. "
Cassiodorus said of property, that it was the only safe harbor in
which to seek shelter from the tempests of chicanery and the gales of
avarice--_Hic unus inter humanas pro cellas portus, quem si homines
fervida voluntate praeterierint; in undosis semper jurgiis errabunt_.
products, there must be equality of labor; and that, to obtain equality
of labor, there must be equality of facilities for labor. Whoever
without labor got possession, by force or by strategy, of another's
means of subsistence, destroyed equality, and placed himself above or
outside of the law. Whoever monopolized the means of production on the
ground of greater industry, also destroyed equality. Equality being then
the expression of right, whoever violated it was UNJUST.
Thus, labor gives birth to private possession; the right in a thing--jus
in re. But in what thing? Evidently IN THE PRODUCT, not IN THE SOIL.
So the Arabs have always understood it; and so, according to Caesar and
Tacitus, the Germans formerly held. "The Arabs," says M. de Sismondi,
"who admit a man's property in the flocks which he has raised, do not
refuse the crop to him who planted the seed; but they do not see why
another, his equal, should not have a right to plant in his turn.
The inequality which results from the pretended right of the first
occupant seems to them to be based on no principle of justice; and when
all the land falls into the hands of a certain number of inhabitants,
there results a monopoly in their favor against the rest of the nation,
to which they do not wish to submit. "
Well, they have shared the land. I admit that therefrom results a more
powerful organization of labor; and that this method of distribution,
fixed and durable, is advantageous to production: but how could this
division give to each a transferable right of property in a thing
to which all had an inalienable right of possession? In the terms
of jurisprudence, this metamorphosis from possessor to proprietor is
legally impossible; it implies in the jurisdiction of the courts the
union of possessoire and petitoire; and the mutual concessions of those
who share the land are nothing less than traffic in natural rights. The
original cultivators of the land, who were also the original makers of
the law, were not as learned as our legislators, I admit; and had
they been, they could not have done worse: they did not foresee the
consequences of the transformation of the right of private possession
into the right of absolute property. But why have not those, who in
later times have established the distinction between jus in re and jus
ad rem, applied it to the principle of property itself?
Let me call the attention of the writers on jurisprudence to their own
maxims.
The right of property, provided it can have a cause, can have but
one--_Dominium non potest nisi ex una causa contingere_. I can possess
by several titles; I can become proprietor by only one--_Non ut ex
pluribus causis idem nobis deberi potest, ita ex pluribus causis idem
potest nostrum esse_. The field which I have cleared, which I cultivate,
on which I have built my house, which supports myself, my family, and
my livestock, I can possess: 1st. As the original occupant; 2d. As a
laborer; 3d. By virtue of the social contract which assigns it to me as
my share.
But none of these titles confer upon me the right of property. For, if I
attempt to base it upon occupancy, society can reply, "I am the original
occupant. " If I appeal to my labor, it will say, "It is only on that
condition that you possess. " If I speak of agreements, it will respond,
"These agreements establish only your right of use. " Such, however, are
the only titles which proprietors advance. They never have been able
to discover any others. Indeed, every right--it is Pothier who says
it--supposes a producing cause in the person who enjoys it; but in man
who lives and dies, in this son of earth who passes away like a
shadow, there exists, with respect to external things, only titles of
possession, not one title of property. Why, then, has society recognized
a right injurious to itself, where there is no producing cause? Why,
in according possession, has it also conceded property? Why has the law
sanctioned this abuse of power?
The German Ancillon replies thus:--
"Some philosophers pretend that man, in employing his forces upon a
natural object,--say a field or a tree,--acquires a right only to the
improvements which he makes, to the form which he gives to the object,
not to the object itself. Useless distinction! If the form could be
separated from the object, perhaps there would be room for question; but
as this is almost always impossible, the application of man's strength
to the different parts of the visible world is the foundation of the
right of property, the primary origin of riches. "
Vain pretext! If the form cannot be separated from the object, nor
property from possession, possession must be shared; in any case,
society reserves the right to fix the conditions of property. Let us
suppose that an appropriated farm yields a gross income of ten thousand
francs; and, as very seldom happens, that this farm cannot be divided.
Let us suppose farther that, by economical calculation, the annual
expenses of a family are three thousand francs: the possessor of this
farm should be obliged to guard his reputation as a good father of a
family, by paying to society ten thousand francs,--less the total
costs of cultivation, and the three thousand francs required for the
maintenance of his family. This payment is not rent, it is an indemnity.
What sort of justice is it, then, which makes such laws as this:--
"Whereas, since labor so changes the form of a thing that the form
and substance cannot be separated without destroying the thing itself,
either society must be disinherited, or the laborer must lose the fruit
of his labor; and
"Whereas, in every other case, property in raw material would give a
title to added improvements, minus their cost; and whereas, in this
instance, property in improvements ought to give a title to the
principal;
"Therefore, the right of appropriation by labor shall never be admitted
against individuals, but only against society. "
In such a way do legislators always reason in regard to property.
The law is intended to protect men's mutual rights,--that is, the rights
of each against each, and each against all; and, as if a proportion
could exist with less than four terms, the law-makers always disregard
the latter. As long as man is opposed to man, property offsets property,
and the two forces balance each other; as soon as man is isolated, that
is, opposed to the society which he himself represents, jurisprudence is
at fault: Themis has lost one scale of her balance.
Listen to the professor of Rennes, the learned Toullier:--
"How could this claim, made valid by occupation, become stable and
permanent property, which might continue to stand, and which might be
reclaimed after the first occupant had relinquished possession?
"Agriculture was a natural consequence of the multiplication of the
human race, and agriculture, in its turn, favors population, and
necessitates the establishment of permanent property; for who would
take the trouble to plough and sow, if he were not certain that he would
reap? "
To satisfy the husbandman, it was sufficient to guarantee him possession
of his crop; admit even that he should have been protected in his right
of occupation of land, as long as he remained its cultivator. That was
all that he had a right to expect; that was all that the advance of
civilization demanded. But property, property! the right of escheat over
lands which one neither occupies nor cultivates,--who had authority to
grant it? who pretended to have it?
"Agriculture alone was not sufficient to establish permanent property;
positive laws were needed, and magistrates to execute them; in a word,
the civil State was needed.
"The multiplication of the human race had rendered agriculture
necessary; the need of securing to the cultivator the fruit of his labor
made permanent property necessary, and also laws for its protection. So
we are indebted to property for the creation of the civil State. "
Yes, of our civil State, as you have made it; a State which, at first,
was despotism, then monarchy, then aristocracy, today democracy, and
always tyranny.
"Without the ties of property it never would have been possible to
subordinate men to the wholesome yoke of the law; and without permanent
property the earth would have remained a vast forest. Let us admit,
then, with the most careful writers, that if transient property, or
the right of preference resulting from occupation, existed prior to
the establishment of civil society, permanent property, as we know it
to-day, is the work of civil law. It is the civil law which holds that,
when once acquired, property can be lost only by the action of
the proprietor, and that it exists even after the proprietor has
relinquished possession of the thing, and it has fallen into the hands
of a third party.
"Thus property and possession, which originally were confounded, became
through the civil law two distinct and independent things; two things
which, in the language of the law, have nothing whatever in common. In
this we see what a wonderful change has been effected in property, and
to what an extent Nature has been altered by the civil laws. "
Thus the law, in establishing property, has not been the expression of a
psychological fact, the development of a natural law, the application of
a moral principle. It has literally CREATED a right outside of its own
province. It has realized an abstraction, a metaphor, a fiction; and
that without deigning to look at the consequences, without considering
the disadvantages, without inquiring whether it was right or wrong.
It has sanctioned selfishness; it has indorsed monstrous pretensions;
it has received with favor impious vows, as if it were able to fill up a
bottomless pit, and to satiate hell! Blind law; the law of the ignorant
man; a law which is not a law; the voice of discord, deceit, and
blood! This it is which, continually revived, reinstated, rejuvenated,
restored, re-enforced--as the palladium of society--has troubled the
consciences of the people, has obscured the minds of the masters, and
has induced all the catastrophes which have befallen nations.
This it is which Christianity has condemned, but which its ignorant
ministers deify; who have as little desire to study Nature and man, as
ability to read their Scriptures.
But, indeed, what guide did the law follow in creating the domain of
property? What principle directed it? What was its standard?
Would you believe it? It was equality.
Agriculture was the foundation of territorial possession, and the
original cause of property. It was of no use to secure to the farmer the
fruit of his labor, unless the means of production were at the same time
secured to him. To fortify the weak against the invasion of the strong,
to suppress spoliation and fraud, the necessity was felt of establishing
between possessors permanent lines of division, insuperable obstacles.
Every year saw the people multiply, and the cupidity of the husbandman
increase: it was thought best to put a bridle on ambition by setting
boundaries which ambition would in vain attempt to overstep. Thus the
soil came to be appropriated through need of the equality which is
essential to public security and peaceable possession. Undoubtedly the
division was never geographically equal; a multitude of rights, some
founded in Nature, but wrongly interpreted and still more wrongly
applied, inheritance, gift, and exchange; others, like the privileges
of birth and position, the illegitimate creations of ignorance and brute
force,--all operated to prevent absolute equality. But, nevertheless,
the principle remained the same: equality had sanctioned possession;
equality sanctioned property.
The husbandman needed each year a field to sow; what more convenient and
simple arrangement for the barbarians,--instead of indulging in annual
quarrels and fights, instead of continually moving their houses,
furniture, and families from spot to spot,--than to assign to each
individual a fixed and inalienable estate?
It was not right that the soldier, on returning from an expedition,
should find himself dispossessed on account of the services which he had
just rendered to his country; his estate ought to be restored to him. It
became, therefore, customary to retain property by intent alone--_nudo
animo;_ it could be sacrificed only with the consent and by the action
of the proprietor.
It was necessary that the equality in the division should be kept up
from one generation to another, without a new distribution of the land
upon the death of each family; it appeared therefore natural and just
that children and parents, according to the degree of relationship
which they bore to the deceased, should be the heirs of their ancestors.
Thence came, in the first place, the feudal and patriarchal custom of
recognizing only one heir; then, by a quite contrary application of the
principle of equality, the admission of all the children to a share in
their father's estate, and, very recently also among us, the definitive
abolition of the right of primogeniture.
But what is there in common between these rude outlines of instinctive
organization and the true social science? How could these men, who never
had the faintest idea of statistics, valuation, or political economy,
furnish us with principles of legislation?
"The law," says a modern writer on jurisprudence, "is the expression of
a social want, the declaration of a fact: the legislator does not make
it, he declares it. 'This definition is not exact. The law is a method
by which social wants must be satisfied; the people do not vote it, the
legislator does not express it: the savant discovers and formulates it. "
But in fact, the law, according to M. Ch. Comte, who has devoted half a
volume to its definition, was in the beginning only the EXPRESSION OF
A WANT, and the indication of the means of supplying it; and up to this
time it has been nothing else. The legists--with mechanical fidelity,
full of obstinacy, enemies of philosophy, buried in literalities--have
always mistaken for the last word of science that which was only the
inconsiderate aspiration of men who, to be sure, were well-meaning, but
wanting in foresight.
They did not foresee, these old founders of the domain of property, that
the perpetual and absolute right to retain one's estate,--a right which
seemed to them equitable, because it was common,--involves the right to
transfer, sell, give, gain, and lose it; that it tends, consequently,
to nothing less than the destruction of that equality which they
established it to maintain. And though they should have foreseen it,
they disregarded it; the present want occupied their whole attention,
and, as ordinarily happens in such cases, the disadvantages were at
first scarcely perceptible, and they passed unnoticed.
They did not foresee, these ingenuous legislators, that if property is
retainable by intent alone--_nudo animo_--it carries with it the right
to let, to lease, to loan at interest, to profit by exchange, to settle
annuities, and to levy a tax on a field which intent reserves, while the
body is busy elsewhere.
They did not foresee, these fathers of our jurisprudence, that, if
the right of inheritance is any thing other than Nature's method of
preserving equality of wealth, families will soon become victims of the
most disastrous exclusions; and society, pierced to the heart by one of
its most sacred principles, will come to its death through opulence and
misery. [12]
Under whatever form of government we live, it can always be said that
_le mort saisit le vif;_ that is, that inheritance and succession will
last for ever, whoever may be the recognized heir. But the St. Simonians
wish the heir to be designated by the magistrate; others wish him to
be chosen by the deceased, or assumed by the law to be so chosen: the
essential point is that Nature's wish be satisfied, so far as the law of
equality allows.
To-day the real controller of inheritance is chance or caprice; now, in
matters of legislation, chance and caprice cannot be accepted as guides.
It is for the purpose of avoiding the manifold disturbances which
follow in the wake of chance that Nature, after having created us equal,
suggests to us the principle of heredity; which serves as a voice by
which society asks us to choose, from among all our brothers, him whom
we judge best fitted to complete our unfinished work.
They did not foresee. . . . But why need I go farther?
The consequences are plain enough, and this is not the time to criticise
the whole Code.
The history of property among the ancient nations is, then, simply a
matter of research and curiosity. It is a rule of jurisprudence that the
fact does not substantiate the right. Now, property is no exception to
this rule: then the universal recognition of the right of property
does not legitimate the right of property. Man is mistaken as to the
constitution of society, the nature of right, and the application of
justice; just as he was mistaken regarding the cause of meteors and the
movement of the heavenly bodies. His old opinions cannot be taken for
articles of faith. Of what consequence is it to us that the Indian race
was divided into four classes; that, on the banks of the Nile and the
Ganges, blood and position formerly determined the distribution of the
land; that the Greeks and Romans placed property under the protection
of the gods; that they accompanied with religious ceremonies the work
of partitioning the land and appraising their goods? The variety of the
forms of privilege does not sanction injustice. The faith of Jupiter,
the proprietor, [13] proves no more against the equality of citizens,
than do the mysteries of Venus, the wanton, against conjugal chastity.
The authority of the human race is of no effect as evidence in favor
of the right of property, because this right, resting of necessity upon
equality, contradicts its principle; the decision of the religions which
have sanctioned it is of no effect, because in all ages the priest
has submitted to the prince, and the gods have always spoken as the
politicians desired; the social advantages, attributed to property,
cannot be cited in its behalf, because they all spring from the
principle of equality of possession.
What means, then, this dithyramb upon property?
"The right of property is the most important of human institutions. ". . .
Yes; as monarchy is the most glorious.
"The original cause of man's prosperity upon earth. "
Because justice was supposed to be its principle.
"Property became the legitimate end of his ambition, the hope of his
existence, the shelter of his family; in a word, the corner-stone of the
domestic dwelling, of communities, and of the political State. "
Possession alone produced all that.
"Eternal principle,--"
Property is eternal, like every negation,--
"Of all social and civil institutions. "
For that reason, every institution and every law based on property will
perish.
"It is a boon as precious as liberty. "
For the rich proprietor.
"In fact, the cause of the cultivation of the habitable earth. "
If the cultivator ceased to be a tenant, would the land be worse cared
for?
"The guarantee and the morality of labor. "
Under the regime of property, labor is not a condition, but a privilege.
"The application of justice. "
What is justice without equality of fortunes? A balance with false
weights.
"All morality,--"
A famished stomach knows no morality,--
"All public order,--"
Certainly, the preservation of property,--
"Rest on the right of property. " [14]
Corner-stone of all which is, stumbling-block of all which ought to
be,--such is property.
To sum up and conclude:--
Not only does occupation lead to equality, it PREVENTS property. For,
since every man, from the fact of his existence, has the right of
occupation, and, in order to live, must have material for cultivation
on which he may labor; and since, on the other hand, the number of
occupants varies continually with the births and deaths,--it follows
that the quantity of material which each laborer may claim varies
with the number of occupants; consequently, that occupation is always
subordinate to population. Finally, that, inasmuch as possession, in
right, can never remain fixed, it is impossible, in fact, that it can
ever become property.
Every occupant is, then, necessarily a possessor or usufructuary,--a
function which excludes proprietorship. Now, this is the right of the
usufructuary: he is responsible for the thing entrusted to him; he
must use it in conformity with general utility, with a view to its
preservation and development; he has no power to transform it, to
diminish it, or to change its nature; he cannot so divide the usufruct
that another shall perform the labor while he receives the product. In a
word, the usufructuary is under the supervision of society, submitted to
the condition of labor and the law of equality.
Thus is annihilated the Roman definition of property--THE RIGHT OF USE
AND ABUSE--an immorality born of violence, the most monstrous pretension
that the civil laws ever sanctioned. Man receives his usufruct from the
hands of society, which alone is the permanent possessor. The individual
passes away, society is deathless.
What a profound disgust fills my soul while discussing such simple
truths! Do we doubt these things to-day? Will it be necessary to again
take arms for their triumph? And can force, in default of reason, alone
introduce them into our laws?
ALL HAVE AN EQUAL RIGHT OF OCCUPANCY.
THE AMOUNT OCCUPIED BEING MEASURED, NOT BY THE WILL, BUT BY THE VARIABLE
CONDITIONS OF SPACE AND NUMBER, PROPERTY CANNOT EXIST.
This no code has ever expressed; this no constitution can admit! These
are axioms which the civil law and the law of nations deny! . . . . .
But I hear the exclamations of the partisans of another system: "Labor,
labor! that is the basis of property! "
Reader, do not be deceived. This new basis of property is worse than the
first, and I shall soon have to ask your pardon for having demonstrated
things clearer, and refuted pretensions more unjust, than any which we
have yet considered.
CHAPTER III. LABOR AS THE EFFICIENT CAUSE OF THE DOMAIN OF PROPERTY.
Nearly all the modern writers on jurisprudence, taking their cue from
the economists, have abandoned the theory of first occupancy as a too
dangerous one, and have adopted that which regards property as born of
labor. In this they are deluded; they reason in a circle. To labor it is
necessary to occupy, says M. Cousin.
Consequently, I have added in my turn, all having an equal right of
occupancy, to labor it is necessary to submit to equality. "The rich,"
exclaims Jean Jacques, "have the arrogance to say, 'I built this wall; I
earned this land by my labor. ' Who set you the tasks? we may reply, and
by what right do you demand payment from us for labor which we did not
impose upon you? " All sophistry falls to the ground in the presence of
this argument.
But the partisans of labor do not see that their system is an absolute
contradiction of the Code, all the articles and provisions of which
suppose property to be based upon the fact of first occupancy. If labor,
through the appropriation which results from it, alone gives birth to
property, the Civil Code lies, the charter is a falsehood, our whole
social system is a violation of right. To this conclusion shall we come,
at the end of the discussion which is to occupy our attention in this
chapter and the following one, both as to the right of labor and the
fact of property. We shall see, on the one hand, our legislation in
opposition to itself; and, on the other hand, our new jurisprudence in
opposition both to its own principle and to our legislation.
I have asserted that the system which bases property upon labor implies,
no less than that which bases it upon occupation, the equality of
fortunes; and the reader must be impatient to learn how I propose to
deduce this law of equality from the inequality of skill and faculties:
directly his curiosity shall be satisfied. But it is proper that I
should call his attention for a moment to this remarkable feature of
the process; to wit, the substitution of labor for occupation as the
principle of property; and that I should pass rapidly in review some
of the prejudices to which proprietors are accustomed to appeal, which
legislation has sanctioned, and which the system of labor completely
overthrows.
Reader, were you ever present at the examination of a criminal? Have
you watched his tricks, his turns, his evasions, his distinctions, his
equivocations? Beaten, all his assertions overthrown, pursued like
a fallow deer by the in exorable judge, tracked from hypothesis
to hypothesis,--he makes a statement, he corrects it, retracts it,
contradicts it, he exhausts all the tricks of dialectics, more subtle,
more ingenious a thousand times than he who invented the seventy-two
forms of the syllogism. So acts the proprietor when called upon
to defend his right. At first he refuses to reply, he exclaims, he
threatens, he defies; then, forced to accept the discussion, he
arms himself with chicanery, he surrounds himself with formidable
artillery,--crossing his fire, opposing one by one and all together
occupation, possession, limitation, covenants, immemorial custom, and
universal consent. Conquered on this ground, the proprietor, like a
wounded boar, turns on his pursuers. "I have done more than occupy,"
he cries with terrible emotion; "I have labored, produced, improved,
transformed, CREATED. This house, these fields, these trees are the work
of my hands; I changed these brambles into a vineyard, and this bush
into a fig-tree; and to-day I reap the harvest of my labors. I have
enriched the soil with my sweat; I have paid those men who, had they not
had the work which I gave them, would have died of hunger. No one
shared with me the trouble and expense; no one shall share with me the
benefits. "
You have labored, proprietor! why then do you speak of original
occupancy? What, were you not sure of your right, or did you hope to
deceive men, and make justice an illusion? Make haste, then, to acquaint
us with your mode of defence, for the judgment will be final; and you
know it to be a question of restitution.
You have labored! but what is there in common between the labor which
duty compels you to perform, and the appropriation of things in which
there is a common interest?
Do you not know that domain over the soil,
like that over air and light, cannot be lost by prescription?
You have labored! have you never made others labor? Why, then, have they
lost in laboring for you what you have gained in not laboring for them?
You have labored! very well; but let us see the results of your labor.
We will count, weigh, and measure them. It will be the judgment of
Balthasar; for I swear by balance, level, and square, that if you have
appropriated another's labor in any way whatsoever, you shall restore it
every stroke.
Thus, the principle of occupation is abandoned; no longer is it said,
"The land belongs to him who first gets possession of it. " Property,
forced into its first intrenchment, repudiates its old adage; justice,
ashamed, retracts her maxims, and sorrow lowers her bandage over her
blushing cheeks. And it was but yesterday that this progress in social
philosophy began: fifty centuries required for the extirpation of a
lie! During this lamentable period, how many usurpations have been
sanctioned, how many invasions glorified, how many conquests celebrated!
The absent dispossessed, the poor banished, the hungry excluded by
wealth, which is so ready and bold in action! Jealousies and wars,
incendiarism and bloodshed, among the nations! But henceforth, thanks
to the age and its spirit, it is to be admitted that the earth is not a
prize to be won in a race; in the absence of any other obstacle, there
is a place for everybody under the sun. Each one may harness his goat
to the bearn, drive his cattle to pasture, sow a corner of a field, and
bake his bread by his own fireside.
But, no; each one cannot do these things. I hear it proclaimed on all
sides, "Glory to labor and industry! to each according to his capacity;
to each capacity according to its results! " And I see three-fourths of
the human race again despoiled, the labor of a few being a scourge to
the labor of the rest.
"The problem is solved," exclaims M. Hennequin. "Property, the daughter
of labor, can be enjoyed at present and in the future only under the
protection of the laws. It has its origin in natural law; it derives its
power from civil law; and from the union of these two ideas, LABOR and
PROTECTION, positive legislation results. ". . .
Ah! THE PROBLEM IS SOLVED! PROPERTY IS THE DAUGHTER OF LABOR! What,
then, is the right of accession, and the right of succession, and the
right of donation, &c. , if not the right to become a proprietor by
simple occupancy? What are your laws concerning the age of majority,
emancipation, guardianship, and interdiction, if not the various
conditions by which he who is already a laborer gains or loses the right
of occupancy; that is, property?
Being unable, at this time, to enter upon a detailed discussion of the
Code, I shall content myself with examining the three arguments oftenest
resorted to in support of property. 1. APPROPRIATION, or the formation
of property by possession; 2. THE CONSENT OF MANKIND; 3. PRESCRIPTION. I
shall then inquire into the effects of labor upon the relative condition
of the laborers and upon property.
% 1. --The Land cannot be Appropriated.
"It would seem that lands capable of cultivation ought to be regarded
as natural wealth, since they are not of human creation, but Nature's
gratuitous gift to man; but inasmuch as this wealth is not fugitive,
like the air and water,--inasmuch as a field is a fixed and limited
space which certain men have been able to appropriate, to the
exclusion of all others who in their turn have consented to this
appropriation,--the land, which was a natural and gratuitous gift,
has become social wealth, for the use of which we ought to pay. "--SAY:
POLITICAL ECONOMY.
Was I wrong in saying, at the beginning of this chapter, that the
economists are the very worst authorities in matters of legislation and
philosophy? It is the FATHER of this class of men who clearly states
the question, How can the supplies of Nature, the wealth created by
Providence, become private property? and who replies by so gross an
equivocation that we scarcely know which the author lacks, sense or
honesty. What, I ask, has the fixed and solid nature of the earth to do
with the right of appropriation? I can understand that a thing LIMITED
and STATIONARY, like the land, offers greater chances for appropriation
than the water or the sunshine; that it is easier to exercise the right
of domain over the soil than over the atmosphere: but we are not dealing
with the difficulty of the thing, and Say confounds the right with the
possibility. We do not ask why the earth has been appropriated to a
greater extent than the sea and the air; we want to know by what right
man has appropriated wealth WHICH HE DID NOT CREATE, AND WHICH NATURE
GAVE TO HIM GRATUITOUSLY.
Say, then, did not solve the question which he asked. But if he had
solved it, if the explanation which he has given us were as satisfactory
as it is illogical, we should know no better than before who has a right
to exact payment for the use of the soil, of this wealth which is not
man's handiwork. Who is entitled to the rent of the land? The producer
of the land, without doubt. Who made the land? God. Then, proprietor,
retire!
But the creator of the land does not sell it: he gives it; and, in
giving it, he is no respecter of persons. Why, then, are some of his
children regarded as legitimate, while others are treated as bastards?
If the equality of shares was an original right, why is the inequality
of conditions a posthumous right?
Say gives us to understand that if the air and the water were not of a
FUGITIVE nature, they would have been appropriated. Let me observe in
passing that this is more than an hypothesis; it is a reality. Men have
appropriated the air and the water, I will not say as often as they
could, but as often as they have been allowed to.
The Portuguese, having discovered the route to India by the Cape of
Good Hope, pretended to have the sole right to that route; and Grotius,
consulted in regard to this matter by the Dutch who refused to recognize
this right, wrote expressly for this occasion his treatise on
the "Freedom of the Seas," to prove that the sea is not liable to
appropriation.
The right to hunt and fish used always to be confined to lords and
proprietors; to-day it is leased by the government and communes to
whoever can pay the license-fee and the rent. To regulate hunting and
fishing is an excellent idea, but to make it a subject of sale is to
create a monopoly of air and water.
What is a passport? A universal recommendation of the traveller's
person; a certificate of security for himself and his property. The
treasury, whose nature it is to spoil the best things, has made the
passport a means of espionage and a tax. Is not this a sale of the right
to travel?
Finally, it is permissible neither to draw water from a spring situated
in another's grounds without the permission of the proprietor, because
by the right of accession the spring belongs to the possessor of the
soil, if there is no other claim; nor to pass a day on his premises
without paying a tax; nor to look at a court, a garden, or an orchard,
without the consent of the proprietor; nor to stroll in a park or an
enclosure against the owner's will: every one is allowed to shut himself
up and to fence himself in. All these prohibitions are so many positive
interdictions, not only of the land, but of the air and water. We who
belong to the proletaire class: property excommunicates us! _Terra, et
aqua, et aere, et igne interdicti sumus_.
Men could not appropriate the most fixed of all the elements without
appropriating the three others; since, by French and Roman law, property
in the surface carries with it property from zenith to nadir--_Cujus
est solum, ejus est usque ad caelum_. Now, if the use of water, air,
and fire excludes property, so does the use of the soil. This chain of
reasoning seems to have been presented by M. Ch. Comte, in his "Treatise
on Property," chap. 5.
"If a man should be deprived of air for a few moments only, he would
cease to exist, and a partial deprivation would cause him severe
suffering; a partial or complete deprivation of food would produce like
effects upon him though less suddenly; it would be the same, at least
in certain climates! were he deprived of all clothing and shelter. . . . To
sustain life, then, man needs continually to appropriate many different
things. But these things do not exist in like proportions. Some, such as
the light of the stars, the atmosphere of the earth, the water composing
the seas and oceans, exist in such large quantities that men cannot
perceive any sensible increase or diminution; each one can appropriate
as much as his needs require without detracting from the enjoyment of
others, without causing them the least harm. Things of this sort are, so
to speak, the common property of the human race; the only duty imposed
upon each individual in this regard is that of infringing not at all
upon the rights of others. "
Let us complete the argument of M. Ch. Comte. A man who should be
prohibited from walking in the highways, from resting in the fields,
from taking shelter in caves, from lighting fires, from picking berries,
from gathering herbs and boiling them in a bit of baked clay,--such
a man could not live. Consequently the earth--like water, air, and
light--is a primary object of necessity which each has a right to use
freely, without infringing another's right. Why, then, is the earth
appropriated? M. Ch. Comte's reply is a curious one. Say pretends that
it is because it is not FUGITIVE; M. Ch. Comte assures us that it
is because it is not INFINITE. The land is limited in amount. Then,
according to M. Ch. Comte, it ought to be appropriated. It would
seem, on the contrary, that he ought to say, Then it ought not to be
appropriated. Because, no matter how large a quantity of air or light
any one appropriates, no one is damaged thereby; there always remains
enough for all. With the soil, it is very different. Lay hold who will,
or who can, of the sun's rays, the passing breeze, or the sea's billows;
he has my consent, and my pardon for his bad intentions. But let any
living man dare to change his right of territorial possession into the
right of property, and I will declare war upon him, and wage it to the
death!
M. Ch. Comte's argument disproves his position. "Among the things
necessary to the preservation of life," he says, "there are some which
exist in such large quantities that they are inexhaustible; others which
exist in lesser quantities, and can satisfy the wants of only a certain
number of persons. The former are called COMMON, the latter PRIVATE. "
This reasoning is not strictly logical. Water, air, and light are
COMMON things, not because they are INEXHAUSTIBLE, but because they are
INDISPENSABLE; and so indispensable that for that very reason Nature
has created them in quantities almost infinite, in order that their
plentifulness might prevent their appropriation. Likewise the land
is indispensable to our existence,--consequently a common thing,
consequently insusceptible of appropriation; but land is much scarcer
than the other elements, therefore its use must be regulated, not for
the profit of a few, but in the interest and for the security of all.
In a word, equality of rights is proved by equality of needs. Now,
equality of rights, in the case of a commodity which is limited in
amount, can be realized only by equality of possession. An agrarian law
underlies M. Ch. Comte's arguments.
From whatever point we view this question of property--provided we go
to the bottom of it--we reach equality. I will not insist farther on
the distinction between things which can, and things which cannot, be
appropriated. On this point, economists and legists talk worse than
nonsense. The Civil Code, after having defined property, says nothing
about susceptibility of appropriation; and if it speaks of things which
are in THE MARKET, it always does so without enumerating or describing
them. However, light is not wanting. There are some few maxims such as
these: _Ad reges potestas omnium pertinet, ad singulos proprietas; Omnia
rex imperio possidet, singula dominio_. Social sovereignty opposed to
private property! --might not that be called a prophecy of equality, a
republican oracle? Examples crowd upon us: once the possessions of
the church, the estates of the crown, the fiefs of the nobility
were inalienable and imprescriptible. If, instead of abolishing this
privilege, the Constituent had extended it to every individual; if
it had declared that the right of labor, like liberty, can never be
forfeited,--at that moment the revolution would have been consummated,
and we could now devote ourselves to improvement in other directions.
% 2. --Universal Consent no Justification of Property.
In the extract from Say, quoted above, it is not clear whether the
author means to base the right of property on the stationary character
of the soil, or on the consent which he thinks all men have granted
to this appropriation. His language is such that it may mean either
of these things, or both at once; which entitles us to assume that the
author intended to say, "The right of property resulting originally from
the exercise of the will, the stability of the soil permitted it to be
applied to the land, and universal consent has since sanctioned this
application. "
However that may be, can men legitimate property by mutual consent? I
say, no. Such a contract, though drafted by Grotius, Montesquieu, and J.
J. Rousseau, though signed by the whole human race, would be null in the
eyes of justice, and an act to enforce it would be illegal. Man can
no more give up labor than liberty. Now, to recognize the right of
territorial property is to give up labor, since it is to relinquish
the means of labor; it is to traffic in a natural right, and divest
ourselves of manhood.
But I wish that this consent, of which so much is made, had been given,
either tacitly or formally. What would have been the result? Evidently,
the surrenders would have been reciprocal; no right would have been
abandoned without the receipt of an equivalent in exchange. We thus come
back to equality again,--the sine qua non of appropriation; so that,
after having justified property by universal consent, that is, by
equality, we are obliged to justify the inequality of conditions by
property. Never shall we extricate ourselves from this dilemma. Indeed,
if, in the terms of the social compact, property has equality for its
condition, at the moment when equality ceases to exist, the compact is
broken and all property becomes usurpation. We gain nothing, then, by
this pretended consent of mankind.
% 3. --Prescription Gives No Title to Property.
The right of property was the origin of evil on the earth, the first
link in the long chain of crimes and misfortunes which the human race
has endured since its birth. The delusion of prescription is the fatal
charm thrown over the intellect, the death sentence breathed into the
conscience, to arrest man's progress towards truth, and bolster up the
worship of error.
The Code defines prescription thus: "The process of gaining and losing
through the lapse of time. " In applying this definition to ideas and
beliefs, we may use the word PRESCRIPTION to denote the everlasting
prejudice in favor of old superstitions, whatever be their object; the
opposition, often furious and bloody, with which new light has always
been received, and which makes the sage a martyr. Not a principle, not a
discovery, not a generous thought but has met, at its entrance into the
world, with a formidable barrier of preconceived opinions, seeming
like a conspiracy of all old prejudices. Prescriptions against reason,
prescriptions against facts, prescriptions against every truth hitherto
unknown,--that is the sum and substance of the _statu quo_ philosophy,
the watchword of conservatives throughout the centuries.
When the evangelical reform was broached to the world, there was
prescription in favor of violence, debauchery, and selfishness; when
Galileo, Descartes, Pascal, and their disciples reconstructed philosophy
and the sciences, there was prescription in favor of the Aristotelian
philosophy; when our fathers of '89 demanded liberty and equality, there
was prescription in favor of tyranny and privilege. "There always have
been proprietors and there always will be:" it is with this profound
utterance, the final effort of selfishness dying in its last ditch,
that the friends of social inequality hope to repel the attacks of their
adversaries; thinking undoubtedly that ideas, like property, can be lost
by prescription.
Enlightened to-day by the triumphal march of science, taught by the most
glorious successes to question our own opinions, we receive with favor
and applause the observer of Nature, who, by a thousand experiments
based upon the most profound analysis, pursues a new principle, a law
hitherto undiscovered. We take care to repel no idea, no fact, under the
pretext that abler men than ourselves lived in former days, who did not
notice the same phenomena, nor grasp the same analogies. Why do we not
preserve a like attitude towards political and philosophical questions?
Why this ridiculous mania for affirming that every thing has been said,
which means that we know all about mental and moral science? Why is
the proverb, THERE IS NOTHING NEW UNDER THE SUN, applied exclusively to
metaphysical investigations?
Because we still study philosophy with the imagination, instead of by
observation and method; because fancy and will are universally regarded
as judges, in the place of arguments and facts,--it has been impossible
to this day to distinguish the charlatan from the philosopher, the
savant from the impostor. Since the days of Solomon and Pythagoras,
imagination has been exhausted in guessing out social and psychological
laws; all systems have been proposed. Looked at in this light, it is
probably true that EVERY THING HAS BEEN SAID; but it is no less true
that EVERY THING REMAINS TO BE PROVED. In politics (to take only this
branch of philosophy), in politics every one is governed in his choice
of party by his passion and his interests; the mind is submitted to the
impositions of the will,--there is no knowledge, there is not even a
shadow of certainty. In this way, general ignorance produces general
tyranny; and while liberty of thought is written in the charter, slavery
of thought, under the name of MAJORITY RULE, is decreed by the charter.
In order to confine myself to the civil prescription of which the Code
speaks, I shall refrain from beginning a discussion upon this worn-out
objection brought forward by proprietors; it would be too tiresome
and declamatory. Everybody knows that there are rights which cannot be
prescribed; and, as for those things which can be gained through the
lapse of time, no one is ignorant of the fact that prescription requires
certain conditions, the omission of one of which renders it null. If it
is true, for example, that the proprietor's possession has been CIVIL,
PUBLIC, PEACEABLE, and UNINTERRUPTED, it is none the less true that
it is not based on a just title; since the only titles which it can
show--occupation and labor--prove as much for the proletaire who
demands, as for the proprietor who defends. Further, this possession is
DISHONEST, since it is founded on a violation of right, which prevents
prescription, according to the saying of St. Paul--_Nunquam in
usucapionibus juris error possessori prodest_. The violation of right
lies either in the fact that the holder possesses as proprietor, while
he should possess only as usufructuary; or in the fact that he has
purchased a thing which no one had a right to transfer or sell.
Another reason why prescription cannot be adduced in favor of property
(a reason borrowed from jurisprudence) is that the right to possess
real estate is a part of a universal right which has never been totally
destroyed even at the most critical periods; and the proletaire, in
order to regain the power to exercise it fully, has only to prove that
he has always exercised it in part.
He, for example, who has the universal right to possess, give, exchange,
loan, let, sell, transform, or destroy a thing, preserves the integrity
of this right by the sole act of loaning, though he has never shown his
authority in any other manner. Likewise we shall see that EQUALITY OF
POSSESSIONS, EQUALITY OF RIGHTS, LIBERTY, WILL, PERSONALITY, are so
many identical expressions of one and the same idea,--the RIGHT OF
PRESERVATION and DEVELOPMENT; in a word, the right of life, against
which there can be no prescription until the human race has vanished
from the face of the earth.
Finally, as to the time required for prescription, it would be
superfluous to show that the right of property in general cannot be
acquired by simple possession for ten, twenty, a hundred, a thousand,
or one hundred thousand years; and that, so long as there exists a human
head capable of understanding and combating the right of property, this
right will never be prescribed. For principles of jurisprudence and
axioms of reason are different from accidental and contingent facts.
One man's possession can prescribe against another man's possession; but
just as the possessor cannot prescribe against himself, so reason has
always the faculty of change and reformation. Past error is not binding
on the future. Reason is always the same eternal force. The institution
of property, the work of ignorant reason, may be abrogated by a more
enlightened reason. Consequently, property cannot be established by
prescription. This is so certain and so true, that on it rests the
maxim that in the matter of prescription a violation of right goes for
nothing.
But I should be recreant to my method, and the reader would have the
right to accuse me of charlatanism and bad faith, if I had nothing
further to advance concerning prescription. I showed, in the first
place, that appropriation of land is illegal; and that, supposing it to
be legal, it must be accompanied by equality of property. I have shown,
in the second place, that universal consent proves nothing in favor
of property; and that, if it proves any thing, it proves equality of
property. I have yet to show that prescription, if admissible at all,
presupposes equality of property.
This demonstration will be neither long nor difficult. I need only to
call attention to the reasons why prescription was introduced.
"Prescription," says Dunod, "seems repugnant to natural equity, which
permits no one either to deprive another of his possessions without his
knowledge and consent, or to enrich himself at another's expense. But as
it might often happen, in the absence of prescription, that one who had
honestly earned would be ousted after long possession; and even that
he who had received a thing from its rightful owner, or who had been
legitimately relieved from all obligations, would, on losing his title,
be liable to be dispossessed or subjected again,--the public welfare
demanded that a term should be fixed, after the expiration of which no
one should be allowed to disturb actual possessors, or reassert rights
too long neglected. . . . The civil law, in regulating prescription, has
aimed, then, only to perfect natural law, and to supplement the law of
nations; and as it is founded on the public good, which should always be
considered before individual welfare,--_bono publico usucapio introducta
est_,--it should be regarded with favor, provided the conditions
required by the law are fulfilled. "
Toullier, in his "Civil Law," says: "In order that the question of
proprietorship may not remain too long unsettled, and thereby injure the
public welfare, disturbing the peace of families and the stability of
social transactions, the law has fixed a time when all claims shall be
cancelled, and possession shall regain its ancient prerogative through
its transformation into property. "
Cassiodorus said of property, that it was the only safe harbor in
which to seek shelter from the tempests of chicanery and the gales of
avarice--_Hic unus inter humanas pro cellas portus, quem si homines
fervida voluntate praeterierint; in undosis semper jurgiis errabunt_.
