What Is Property?
Pierre-Joseph Proudhon
[1840 / Part 2 of 16]
CHAPTER II
PROPERTY CONSIDERED AS A NATURAL RIGHT. -- OCCUPATION AND CIVIL
LAW AS EFFICIENT BASES OF PROPERTY. DEFINITIONS
... In the matter of property, use and abuse are necessarily
indistinguishable.
According to the Declaration of Rights, published as a preface to
the Constitution of '93, property is "the right to enjoy and
dispose at will of one's goods, one's income, and the fruit of one's
labor and industry."
Code Napoléon, article 544: "Property is the right
There are different kinds of property: 1. Property pure and
simple, the dominant and seigniorial power over a thing; or, as they
term it, naked property. 2. Possession. "Possession,"
says Duranton, "is a matter of fact, not of right."
Toullier: "Property is a right, a legal power; possession is a
fact." The tenant, the farmer, the commandité,
the usufructuary, are possessors; the owner who lets and lends for
use, the heir who is to come into possession on the death of a
usufructuary, are proprietors. If I may venture the comparison: a
lover is a possessor, a husband is a proprietor.
This double definition of property -- domain and possession -- is
of the highest importance; and it must be clearly understood, in
order to comprehend what is to follow.
From the distinction between possession and property arise two
sorts of rights: the jus in re, the right in a thing, the
right by which I may reclaim the property which I have acquired, in
whatever hands I find it; and the jus ad rem, the right to
a thing, which gives me a claim to become a proprietor. Thus the
right of the partners to a marriage over each other's person is the
jus in re; that of two who are betrothed is only the jus
ad rem. In the first, possession and property are united; the
second includes only naked property. With me who, as a laborer, have
a right to the possession of the products of Nature and my own
industry, -- and who, as a proletaire, enjoy none of them, -- it is
by virtue of the jus ad rem that I demand admittance to the
jus in re.
This distinction between the jus in re and the jus ad
rem is the basis of the famous distinction between possessoire
and petitoire, -- actual categories of jurisprudence, the
whole of which is included within their vast boundaries. Petitoire
refers to every thing relating to property; possessoire to
that relating to possession. In writing this memoir against
property, I bring against universal society an action petitoire:
I prove that those who do not possess to-day are proprietors by the
same title as those who do possess; but, instead of inferring
therefrom that property should be shared by all, I demand, in the
name of general security, its entire abolition. If I fail to win my
case, there is nothing left for us (the proletarian class and
myself) but to cut our throats: we can ask nothing more from the
justice of nations; for, as the code of procedure (art 26) tells us
in its energetic style, the plaintiff who has been non-suited in
an action petitoire, is debarred thereby from bringing an action
possessoire. If, on the contrary, I gain the case, we must then
commence an action possessoire, that we may be reinstated in
the enjoyment of the wealth of which we are deprived by property. I
hope that we shall not be forced to that extremity; but these two
actions cannot be prosecuted at once, such a course being prohibited
by the same code of procedure.
Before going to the heart of the question, it will not be useless
to offer a few preliminary remarks. 1. -- Property as a Natural
Right.
The Declaration of Rights has placed property in its list of the
natural and inalienable rights of man, four in all: liberty,
equality, property, security. What rule did the legislators of
'93 follow in compiling this list? None. They laid down principles,
just as they discussed sovereignty and the laws; from a general
point of view, and according to their own opinion. They did every
thing in their own blind way.
If we can believe Toullier: "The absolute rights can be
reduced to three: security, liberty, property."
Equality is eliminated by the Rennes professor; why? Is it because
liberty implies it, or because property prohibits it? On
this point the author of "Droit Civil Expliqué" is
silent: it has not even occurred to him that the matter is under
discussion.
Nevertheless, if we compare these three or four rights with each
other, we find that property bears no resemblance whatever to the
others; that for the majority of citizens it exists only
potentially, and as a dormant faculty without exercise; that for the
others, who do enjoy it, it is susceptible of certain transactions
and modifications which do not harmonize with the idea of a natural
right; that, in practice, governments, tribunals, and laws do not
respect it; and finally that everybody, spontaneously and with one
voice, regards it as chimerical.
Liberty is inviolable. I can neither sell nor alienate my liberty;
every contract, every condition of a contract, which has in view the
alienation or suspension of liberty, is null: the slave, when he
plants his foot upon the soil of liberty, at that moment becomes a
free man. When society seizes a malefactor and deprives him of his
liberty, it is a case of legitimate defence: whoever violates the
social compact by the commission of a crime declares himself a
public enemy; in attacking the liberty of others, he compels them to
take away his own. Liberty is the original condition of man; to
renounce liberty is to renounce the nature of man: after that, how
could we perform the acts of man?
Likewise, equality before the law suffers neither restriction nor
exception. All Frenchmen are equally eligible to office:
consequently, in the presence of this equality, condition and family
have, in many cases, no influence upon choice. The poorest citizen
can obtain judgment in the courts against one occupying the most
exalted station. Let the millionaire, Ahab, build a château
upon the vineyard of Naboth: the court will have the power,
according to the circumstances, to order the destruction of the château,
though it has cost millions; and to force the trespasser to restore
the vineyard to its original state, and pay the damages. The law
wishes all property, that has been legitimately acquired, to be kept
inviolate without regard to value, and without respect for persons.
The charter demands, it is true, for the exercise of certain
political rights, certain conditions of fortune and capacity; but
all publicists know that the legislator's intention was not to
establish a privilege, but to take security. Provided the conditions
fixed by law are complied with, every citizen may be an elector, and
every elector eligible. The right, once acquired, is the same for
all; the law compares neither persons nor votes. I do not ask now
whether this system is the best; it is enough that, in the opinion
of the charter and in the eyes of every one, equality before the law
is absolute, and, like liberty, admits of no compromise.
It is the same with the right of security. Society promises its
members no half-way protection, no sham defence; it binds itself to
them as they bind themselves to it. It does not say to them, "I
will shield you, provided it costs me nothing; I will protect you,
if I run no risks thereby." It says, "I will defend you
against everybody; I will save and avenge you, or perish myself."
The whole strength of the State is at the service of each citizen;
the obligation which binds them together is absolute.
How different with property! Worshipped by all, it is acknowledged
by none: laws, morals, customs, public and private conscience, all
plot its death and ruin.
To meet the expenses of government, which has armies to support,
tasks to perform, and officers to pay, taxes are needed. Let all
contribute to these expenses: nothing more just. But why should the
rich pay more than the poor? That is just, they say, because they
possess more. I confess that such justice is beyond my
comprehension.
Why are taxes paid? To protect all in the exercise of their
natural rights -- liberty, equality, security, and property; to
maintain order in the State; to furnish the public with useful and
pleasant conveniences.
Now, does it cost more to defend the rich man's life and liberty
than the poor man's? Who, in time of invasion, famine, or plague,
causes more trouble, -- the large proprietor who escapes the evil
without the assistance of the State, or the laborer who sits in his
cottage unprotected from danger?
Is public order endangered more by the worthy citizen, or by the
artisan and journeyman? Why, the police have more to fear from a few
hundred laborers, out of work, than from two hundred thousand
electors!
Does the man of large income appreciate more keenly than the poor
man national festivities, clean streets, and beautiful monuments?
Why, he prefers his country-seat to all the popular pleasures; and
when he wants to enjoy himself, he does not wait for the greased
pole!
One of two things is true: either the proportional tax affords
greater security to the larger tax-payers, or else it is a wrong.
Because, if property is a natural right, as the Declaration of '93
declares, all that belongs to me by virtue of this right is as
sacred as my person; it is my blood, my life, myself: whoever
touches it offends the apple of my eye. My income of one hundred
thousand francs is as inviolable as the grisette's daily wage of
seventy-five centimes; her attic is no more sacred than my suite of
apartments. The tax is not levied in proportion to strength, size,
or skill: no more should it be levied in proportion to property.
If, then, the State takes more from me, let it give me more in
return, or cease to talk of equality of rights; for otherwise,
society is established, not to defend property, but to destroy it.
The State, through the proportional tax, becomes the chief of
robbers; the State sets the example of systematic pillage: the State
should be brought to the bar of justice at the head of those hideous
brigands, that execrable mob which it now kills from motives of
professional jealousy.
But, they say, the courts and the police force are established to
restrain this mob; government is a company, not exactly for
insurance, for it does not insure, but for vengeance and repression.
The premium which this company exacts, the tax, is divided in
proportion to property; that is, in proportion to the trouble which
each piece of property occasions the avengers and repressers paid by
the government.
This is any thing but the absolute and inalienable right of
property. Under this system the poor and the rich distrust, and make
war upon, each other. But what is the object of the war? Property.
So that property is necessarily accompanied by war upon property.
The liberty and security of the rich do not suffer from the liberty
and security of the poor; far from that, they mutually strengthen
and sustain each other. The rich man's right of property, on the
contrary, has to be continually defended against the poor man's
desire for property. What a contradiction! In England they have a
poor-rate: they wish me to pay this tax. But what relation exists
between my natural and inalienable right of property and the hunger
from which ten million wretched people are suffering? When religion
commands us to assist our fellows, it speaks in the name of charity,
not in the name of law. The obligation of benevolence, imposed upon
me by Christian morality, cannot be imposed upon me as a political
tax for the benefit of any person or poor-house. I will give alms
when I see fit to do so, when the sufferings of others excite in me
that sympathy of which philosophers talk, and in which I do not
believe: I will not be forced to bestow them. No one is obliged to
do more than comply with this injunction: In the exercise of
your own rights do not encroach upon the rights of another; an
injunction which is the exact definition of liberty. Now, my
possessions are my own; no one has a claim upon them: I object to
the placing of the third theological virtue in the order of the day.
Everybody, in France, demands the conversion of the five per cent.
bonds; they demand thereby the complete sacrifice of one species of
property. They have the right to do it, if public necessity requires
it; but where is the just indemnity promised by the charter? Not
only does none exist, but this indemnity is not even possible; for,
if the indemnity were equal to the property sacrificed, the
conversion would be useless.
The State occupies the same position to-day toward the bondholders
that the city of Calais did, when besieged by Edward III., toward
its notables. The English conqueror consented to spare its
inhabitants, provided it would surrender to him its most
distinguished citizens to do with as he pleased. Eustache and
several others offered themselves; it was noble in them, and our
ministers should recommend their example to the bondholders. But had
the city the right to surrender them? Assuredly not. The right to
security is absolute; the country can require no one to sacrifice
himself. The soldier standing guard within the enemy's range is no
exception to this rule. Wherever a citizen stands guard, the country
stands guard with him: to-day it is the turn of the one, to-morrow
of the other. When danger and devotion are common, flight is
parricide. No one has the right to flee from danger; no one can
serve as a scapegoat. The maxim of Caiaphas -- it is right that
a man should die for his nation -- is that of the populace and
of tyrants; the two extremes of social degradation.
It is said that all perpetual annuities are essentially
redeemable. This maxim of civil law, applied to the State, is good
for those who wish to return to the natural equality of labor and
wealth; but, from the point of view of the proprietor, and in the
mouth of conversionists, it is the language of bankrupts. The State
is not only a borrower, it is an insurer and guardian of property;
granting the best of security, it assures the most inviolable
possession. How, then, can it force open the hands of its creditors,
who have confidence in it, and then talk to them of public order and
security of property? The State, in such an operation, is not a
debtor who discharges his debt; it is a stock-company which allures
its stockholders into a trap, and there, contrary to its authentic
promise, exacts from them twenty, thirty, or forty per cent. of the
interest on their capital.
That is not all. The State is a university of citizens joined
together under a common law by an act of society. This act secures
all in the possession of their property; guarantees to one his
field, to another his vineyard, to a third his rents, and to the
bondholder, who might have bought real estate but who preferred to
come to the assistance of the treasury, his bonds. The State cannot
demand, without offering an equivalent, the sacrifice of an acre of
the field or a corner of the vineyard; still less can it lower
rents: why should it have the right to diminish the interest on
bonds? This right could not justly exist, unless the bondholder
could invest his funds elsewhere to equal advantage; but being
confined to the State, where can he find a place to invest them,
since the cause of conversion, that is, the power to borrow to
better advantage, lies in the State? That is why a government, based
on the principle of property, cannot redeem its annuities without
the consent of their holders. The money deposited with the republic
is property which it has no right to touch while other kinds of
property are respected; to force their redemption is to violate the
social contract, and outlaw the bondholders.
The whole controversy as to the conversion of bonds finally
reduces itself to this: --
Question. Is it just to reduce to misery forty-five
thousand families who derive an income from their bonds of one
hundred francs or less?
Answer. Is it just to compel seven or eight millions of
tax-payers to pay a tax of five francs, when they should pay only
three? It is clear, in the first place, that the reply is in reality
no reply; but, to make the wrong more apparent, let us change it
thus: Is it just to endanger the lives of one hundred thousand men,
when we can save them by surrendering one hundred heads to the
enemy? Reader, decide!
All this is clearly understood by the defenders of the present
system. Yet, nevertheless, sooner or later, the conversion will be
effected and property be violated, because no other course is
possible; because property, regarded as a right, and not being a
right, must of right perish; because the force of events, the laws
of conscience, and physical and mathematical necessity must, in the
end, destroy this illusion of our minds.
To sum up: liberty is an absolute right, because it is to man what
impenetrability is to matter, -- a sine qua non of
existence; equality is an absolute right, because without equality
there is no society; security is an absolute right, because in the
eyes of every man his own liberty and life are as precious as
another's. These three rights are absolute; that is, susceptible of
neither increase nor diminution; because in society each associate
receives as much as he gives, -- liberty for liberty, equality for
equality, security for security, body for body, soul for soul, in
life and in death.
But property, in its derivative sense, and by the definitions of
law, is a right outside of society; for it is clear that, if the
wealth of each was social wealth, the conditions would be equal for
all, and it would be a contradiction to say: Property is a man's
right to dispose at will of social property. Then if we are
associated for the sake of liberty, equality, and security, we are
not associated for the sake of property; then if property is a natural
right, this natural right is not social, but anti-social.
Property and society are utterly irreconcilable institutions. It is
as impossible to associate two proprietors as to join two magnets by
their opposite poles. Either society must perish, or it must destroy
property.
If property is a natural, absolute, imprescriptible, and
inalienable right, why, in all ages, has there been so much
speculation as to its origin? -- for this is one of its
distinguishing characteristics. The origin of a natural right! Good
God! who ever inquired into the origin of the rights of liberty,
security, or equality? They exist by the same right that we exist;
they are born with us, they live and die with us. With property it
is very different, indeed. By law, property can exist without a
proprietor, like a quality without a subject. It exists for the
human being who as yet is not, and for the octogenarian who is no
more. And yet, in spite of these wonderful prerogatives which savor
of the eternal and the infinite, they have never found the origin of
property; the doctors still disagree. On one point only are they in
harmony: namely, that the validity of the right of property depends
upon the authenticity of its origin. But this harmony is their
condemnation. Why have they acknowledged the right before settling
the question of origin?
Certain classes do not relish investigation into the pretended
titles to property, and its fabulous and perhaps scandalous history.
They wish to hold to this proposition: that property is a fact; that
it always has been, and always will be. With that proposition the
savant Proudhon commenced his "Treatise on the Right of
Usufruct," regarding the origin of property as a useless
question. Perhaps I would subscribe to this doctrine, believing it
inspired by a commendable love of peace, were all my fellow-citizens
in comfortable circumstances; but, no! I will not subscribe to it.
The titles on which they pretend to base the right of property are
two in number: occupation and labor. I shall examine
them successively, under all their aspects and in detail; and I
remind the reader that, to whatever authority we appeal, I shall
prove beyond a doubt that property, to be just and possible, must
necessarily have equality for its condition.
2. -- Occupation, as the Title to Property.
It is remarkable that, at those meetings of the State Council at
which the Code was discussed, no controversy arose as to the origin
and principle of property. All the articles of Vol. II., Book 2,
concerning property and the right of accession, were passed without
opposition or amendment. Bonaparte, who on other questions had given
his legists so much trouble, had nothing to say about property. Be
not surprised at it: in the eyes of that man, the most selfish and
wilful person that ever lived, property was the first of rights,
just as submission to authority was the most holy of duties.
The right of occupation, or of the first occupant,
is that which results from the actual, physical, real possession of
a thing. I occupy a piece of land; the presumption is, that I am the
proprietor, until the contrary is proved. We know that originally
such a right cannot be legitimate unless it is reciprocal; the
jurists say as much.
Cicero compares the earth to a vast theatre: Quemadmodum
theatrum cum commune sit, recte tamen dici potest ejus esse eum
locum quem quisque occuparit.
This passage is all that ancient philosophy has to say about the
origin of property.
The theatre, says Cicero, is common to all; nevertheless, the
place that each one occupies is called his own; that is, it
is a place possessed, not a place appropriated. This
comparison annihilates property; moreover, it implies equality. Can
I, in a theatre, occupy at the same time one place in the pit,
another in the boxes, and a third in the gallery? Not unless I have
three bodies, like Geryon, or can exist in different places at the
same time, as is related of the magician Apollonius.
According to Cicero, no one has a right to more than he needs:
such is the true interpretation of his famous axiom -- suum
quidque cujusque si, to each one that which belongs to him -- an
axiom that has been strangely applied. That which belongs to each is
not that which each may possess, but that which each has
a right to possess. Now, what have we a right to possess? That
which is required for our labor and consumption; Cicero's comparison
of the earth to a theatre proves it. According to that, each one may
take what place he will, may beautify and adorn it, if he can; it is
allowable: but he must never allow himself to overstep the limit
which separates him from another. The doctrine of Cicero leads
directly to equality; for, occupation being pure toleration, if the
toleration is mutual (and it cannot be otherwise) the possessions
are equal.
Grotius rushes into history; but what kind of reasoning is that
which seeks the origin of a right, said to be natural, elsewhere
than in Nature? This is the method of the ancients: the fact exists,
then it is necessary, then it is just, then its antecedents are just
also. Nevertheless, let us look into it.
"Originally, all things were common and undivided; they were
the property of all." Let us go no farther. Grotius tells us
how this original communism came to an end through ambition and
cupidity; how the age of gold was followed by the age of iron, &c.
So that property rested first on war and conquest, then on treaties
and agreements. But either these treaties and agreements distributed
wealth equally, as did the original communism (the only method of
distribution with which the barbarians were acquainted, and the only
form of justice of which they could conceive; and then the question
of origin assumes this form: how did equality afterwards disappear?)
-- or else these treaties and agreements were forced by the strong
upon the weak, and in that case they are null; the tacit consent of
posterity does not make them valid, and we live in a permanent
condition of iniquity and fraud.
We never can conceive how the equality of conditions, having once
existed, could afterwards have passed away. What was the cause of
such degeneration? The instincts of the animals are unchangeable, as
well as the differences of species; to suppose original equality in
human society is to admit by implication that the present inequality
is a degeneration from the nature of this society, -- a thing which
the defenders of property cannot explain. But I infer therefrom
that, if Providence placed the first human beings in a condition of
equality, it was an indication of its desires, a model that it
wished them to realize in other forms; just as the religious
sentiment, which it planted in their hearts, has developed and
manifested itself in various ways. Man has but one nature, constant
and unalterable: he pursues it through instinct, he wanders from it
through reflection, he returns to it through judgment; who shall say
that we are not returning now? According to Grotius, man has
abandoned equality; according to me, he will yet return to it. How
came he to abandon it? Why will he return to it? These are questions
for future consideration.
Reid writes as follows: --
"The right of property is not innate, but acquired. It is not
grounded upon the constitution of man, but upon his actions. Writers
on jurisprudence have explained its origin in a manner that may
satisfy every man of common understanding.
"The earth is given to men in common for the purposes of
life, by the bounty of Heaven. But to divide it, and appropriate one
part of its produce to one, another part to another, must be the
work of men who have power and understanding given them, by which
every man may accommodate himself, without hurt to any other.
"This common right of every man to what the earth produces,
before it be occupied and appropriated by others, was, by ancient
moralists, very properly compared to the right which every citizen
had to the public theatre, where every man that came might occupy an
empty seat, and thereby acquire a right to it while the
entertainment lasted; but no man had a right to dispossess another.
"The earth is a great theatre, furnished by the Almighty,
with perfect wisdom and goodness, for the entertainment and
employment of all mankind. Here every man has a right to accommodate
himself as a spectator, and to perform his part as an actor; but
without hurt to others."
Consequences of Reid's doctrine.
1. That the portion which each one appropriates may wrong no one,
it must be equal to the quotient of the total amount of property to
be shared, divided by the number of those who are to share it;
2. The number of places being of necessity equal at all times to
that of the spectators, no spectator can occupy two places, nor can
any actor play several parts;
3. Whenever a spectator comes in or goes out, the places of all
contract or enlarge correspondingly: for, says Reid, "the
right of property is not innate, but acquired;"
consequently, it is not absolute; consequently, the occupancy on
which it is based, being a conditional fact, cannot endow this right
with a stability which it does not possess itself. This seems to
have been the thought of the Edinburgh professor when he added: --
"A right to life implies a right to the necessary means of
life; and that justice, which forbids the taking away the life of an
innocent man, forbids no less the taking from him the necessary
means of life. He has the same right to defend the one as the other.
To hinder another man's innocent labor, or to deprive him of the
fruit of it, is an injustice of the same kind, and has the same
effect as to put him in fetters or in prison, and is equally a just
object of resentment."
Thus the chief of the Scotch school, without considering at all
the inequality of skill or labor, posits a priori the
equality of the means of labor, abandoning thereafter to each
laborer the care of his own person, after the eternal axiom: Whoso
does well, shall fare well.
The philosopher Reid is lacking, not in knowledge of the
principle, but in courage to pursue it to its ultimate. If the right
of life is equal, the right of labor is equal, and so is the right
of occupancy. Would it not be criminal, were some islanders to
repulse, in the name of property, the unfortunate victims of a
shipwreck struggling to reach the shore? The very idea of such
cruelty sickens the imagination. The proprietor, like Robinson
Crusoe on his island, wards off with pike and musket the proletaire
washed overboard by the wave of civilization, and seeking to gain a
foothold upon the rocks of property. "Give me work!" cries
he with all his might to the proprietor: "don't drive me away,
I will work for you at any price." "I do not need your
services," replies the proprietor, showing the end of his pike
or the barrel of his gun. "Lower my rent at least." "I
need my income to live upon." "How can I pay you, when I
can get no work?" "That is your business." Then the
unfortunate proletaire abandons himself to the waves; or, if he
attempts to land upon the shore of property, the proprietor takes
aim, and kills him.
We have just listened to a spiritualist; we will now question a
materialist, then an eclectic: and having completed the circle of
philosophy, we will turn next to law.
According to Destutt de Tracy, property is a necessity of our
nature. That this necessity involves unpleasant consequences, it
would be folly to deny. But these consequences are necessary evils
which do not invalidate the principle; so that it as unreasonable to
rebel against property on account of the abuses which it generates,
as to complain of life because it is sure to end in death. This
brutal and pitiless philosophy promises at least frank and close
reasoning. Let us see if it keeps its promise.
"We talk very gravely about the conditions of property, . . .
as if it was our province to decide what constitutes property. . . .
It would seem, to hear certain philosophers and legislators, that at
a certain moment, spontaneously and without cause, people began to
use the words thine and mine; and that they might
have, or ought to have, dispensed with them. But thine and
mine were never invented."
A philosopher yourself, you are too realistic. Thine and
mine do not necessarily refer to self, as they do when I say
your philosophy, and my equality; for your philosophy is you
philosophizing, and my equality is I professing equality. Thine
and mine oftener indicate a relation, -- your
country, your parish, your tailor, your
milkmaid; my chamber, my seat at the theatre, my
company and my battalion in the National Guard. In the
former sense, we may sometimes say my labor, my
skill, my virtue; never my grandeur nor my
majesty: in the latter sense only, my field, my
house, my vineyard, my capital, -- precisely as the
banker's clerk says my cash-box. In short, thine and
mine are signs and expressions of personal, but equal,
rights; applied to things outside of us, they indicate possession,
function, use, not property.
It does not seem possible, but, nevertheless, I shall prove, by
quotations, that the whole theory of our author is based upon this
paltry equivocation.
"Prior to all covenants, men are, not exactly, as Hobbes
says, in a state of hostility, but of estrangement.
In this state, justice and injustice are unknown; the rights of one
bear no relation to the rights of another. All have as many rights
as needs, and all feel it their duty to satisfy those needs by any
means at their command."
Grant it; whether true or false, it matters not. Destutt de Tracy
cannot escape equality. On this theory, men, while in a state of
estrangement, are under no obligations to each other; they
all have the right to satisfy their needs without regard to the
needs of others, and consequently the right to exercise their power
over Nature, each according to his strength and ability. That
involves the greatest inequality of wealth. Inequality of
conditions, then, is the characteristic feature of estrangement or
barbarism: the exact opposite of Rousseau's idea. But let us look
farther: --
"Restrictions of these rights and this duty commence at the
time when covenants, either implied or expressed, are agreed upon.
Then appears for the first time justice and injustice; that is, the
balance between the rights of one and the rights of another, which
up to that time were necessarily equal."
Listen: rights were equal; that means that each individual
had the right to satisfy his needs without reference to the
needs of others. In other words, that all had the right to
injure each other; that there was no right save force and cunning.
They injured each other, not only by war and pillage, but also by
usurpation and appropriation. Now, in order to abolish this equal
right to use force and stratagem, -- this equal right to do evil,
the sole source of the inequality of benefits and injuries, -- they
commenced to make covenants either implied or expressed, and
established a balance. Then these agreements and this balance were
intended to secure to all equal comfort; then, by the law of
contradictions, if isolation is the principle of inequality, society
must produce equality. The social balance is the equalization of the
strong and the weak; for, while they are not equals, they are
strangers; they can form no associations, -- they live as enemies.
Then, if inequality of conditions is a necessary evil, so is
isolation, for society and inequality are incompatible with each
other. Then, if society is the true condition of man's existence, so
is equality also. This conclusion cannot be avoided.
This being so, how is it that, ever since the establishment of
this balance, inequality has been on the increase? How is it that
justice and isolation always accompany each other? Destutt de Tracy
shall reply: --
"Needs and means, rights and duties,
are products of the will. If man willed nothing, these would not
exist. But to have needs and means, rights and duties, is to have,
to possess, something. They are so many kinds of property,
using the word in its most general sense: they are things which
belong to us."
Shameful equivocation, not justified by the necessity for
generalization! The word property has two meanings: 1. It
designates the quality which makes a thing what it is; the attribute
which is peculiar to it, and especially distinguishes it. We use it
in this sense when we say the properties of the triangle or
of numbers; the property of the magnet, &c.
2. It expresses the right of absolute control over a thing by a
free and intelligent being. It is used in this sense by writers on
jurisprudence. Thus, in the phrase, iron acquires the property
of a magnet, the word property does not convey the same
idea that it does in this one: I have acquired this magnet as my
property. To tell a poor man that he HAS property because he HAS
arms and legs, -- that the hunger from which he suffers, and his
power to sleep in the open air are his property, -- is to play upon
words, and to add insult to injury.
"The sole basis of the idea of property is the idea of
personality. As soon as property is born at all, it is born, of
necessity, in all its fulness. As soon as an individual knows himself,
-- his moral personality, his capacities of enjoyment, suffering,
and action, -- he necessarily sees also that this self is
exclusive proprietor of the body in which it dwells, its organs,
their powers, faculties, &c. . . . Inasmuch as artificial and
conventional property exists, there must be natural property also;
for nothing can exist in art without its counterpart in Nature."
We ought to admire the honesty and judgment of philosophers! Man
has properties; that is, in the first acceptation of the term,
faculties. He has property; that is, in its second acceptation, the
right of domain. He has, then, the property of the property of being
proprietor. How ashamed I should be to notice such foolishness, were
I here considering only the authority of Destutt de Tracy! But the
entire human race, since the origination of society and language,
when metaphysics and dialectics were first born, has been guilty of
this puerile confusion of thought. All which man could call his own
was identified in his mind with his person. He considered it as his
property, his wealth; a part of himself, a member of his body, a
faculty of his mind. The possession of things was likened to
property in the powers of the body and mind; and on this false
analogy was based the right of property, -- the imitation of
Nature by art, as Destutt de Tracy so elegantly puts it.
But why did not this ideologist perceive that man is not
proprietor even of his own faculties? Man has powers, attributes,
capacities; they are given him by Nature that he may live, learn,
and love: he does not own them, but has only the use of them; and he
can make no use of them that does not harmonize with Nature's laws.
If he had absolute mastery over his faculties, he could avoid hunger
and cold; he could eat unstintedly, and walk through fire; he could
move mountains, walk a hundred leagues in a minute, cure without
medicines and by the sole force of his will, and could make himself
immortal. He could say, "I wish to produce," and his tasks
would be finished with the words; he could say. "I wish to
know," and he would know; "I love," and he would
enjoy. What then? Man is not master of himself, but may be of his
surroundings. Let him use the wealth of Nature, since he can live
only by its use; but let him abandon his pretensions to the title of
proprietor, and remember that he is called so only metaphorically.
To sum up: Destutt de Tracy classes together the external productions
of Nature and art, and the powers or faculties of
man, making both of them species of property; and upon this
equivocation he hopes to establish, so firmly that it can never be
disturbed, the right of property. But of these different kinds of
property some are innate, as memory, imagination, strength,
and beauty; while others are acquired, as land, water, and
forests. In the state of Nature or isolation, the strongest and most
skilful (that is, those best provided with innate property) stand
the best chance of obtaining acquired property. Now, it is to
prevent this encroachment and the war which results therefrom, that
a balance (justice) has been employed, and covenants (implied or
expressed) agreed upon: it is to correct, as far as possible,
inequality of innate property by equality of acquired property. As
long as the division remains unequal, so long the partners remain
enemies; and it is the purpose of the covenants to reform this state
of things. Thus we have, on the one hand, isolation, inequality,
enmity, war, robbery, murder; on the other, society, equality,
fraternity, peace, and love. Choose between them!
M. Joseph Dutens -- a physician, engineer, and geometrician, but a
very poor legist, and no philosopher at all -- is the author of a "Philosophy
of Political Economy," in which he felt it his duty to break
lances in behalf of property. His reasoning seems to be borrowed
from Destutt de Tracy. He commences with this definition of
property, worthy of Sganarelle: "Property is the right by which
a thing is one's own." Literally translated: Property is the
right of property.
After getting entangled a few times on the subjects of will,
liberty, and personality; after having distinguished between immaterial-natural
property, and material-natural property, a distinction
similar to Destutt de Tracy's of innate and acquired property, -- M.
Joseph Dutens concludes with these two general propositions: 1.
Property is a natural and inalienable right of every man; 2.
Inequality of property is a necessary result of Nature, -- which
propositions are convertible into a simpler one: All men have an
equal right of unequal property.
He rebukes M. de Sismondi for having taught that landed property
has no other basis than law and conventionality; and he says
himself, speaking of the respect which people feel for property,
that "their good sense reveals to them the nature of the original
contract made between society and proprietors."
He confounds property with possession, communism with equality,
the just with the natural, and the natural with the possible. Now he
takes these different ideas to be equivalents; now he seems to
distinguish between them, so much so that it would be infinitely
easier to refute him than to understand him. Attracted first by the
title of the work, "Philosophy of Political Economy," I
have found, among the author's obscurities, only the most ordinary
ideas. For that reason I will not speak of him.
M. Cousin, in his "Moral Philosophy," page 15, teaches
that all morality, all laws, all rights are given to man with this
injunction: "Free being, remain free." Bravo!
master; I wish to remain free if I can. He continues: --
"Our principle is true; it is good, it is social. Do not fear
to push it to its ultimate.
"1. If the human person is sacred, its whole nature is
sacred; and particularly its interior actions, its feelings, its
thoughts, its voluntary decisions. This accounts for the respect due
to philosophy, religion, the arts industry, commerce, and to all the
results of liberty. I say respect, not simply toleration; for we do
not tolerate a right, we respect it."
I bow my head before this philosophy.
"2. My liberty, which is sacred, needs for its objective
action an instrument which we call the body: the body participates
then in the sacredness of liberty; it is then inviolable. This is
the basis of the principle of individual liberty.
"3. My liberty needs, for its objective action, material to
work upon; in other words, property or a thing. This thing or
property naturally participates then in the inviolability of my
person. For instance, I take possession of an object which has
become necessary and useful in the outward manifestation of my
liberty. I say, `This object is mine since it belongs to no one
else; consequently, I possess it legitimately.' So the legitimacy of
possession rests on two conditions. First, I possess only as a free
being. Suppress free activity, you destroy my power to labor. Now it
is only by labor that I can use this property or thing, and it is
only by using it that I possess it. Free activity is then the
principle of the right of property. But that alone does not
legitimate possession. All men are free; all can use property by
labor. Does that mean that all men have a right to all property? Not
at all. To possess legitimately, I must not only labor and produce
in my capacity of a free being, but I must also be the first to
occupy the property. In short, if labor and production are the
principle of the right of property, the fact of first occupancy is
its indispensable condition.
"4. I possess legitimately: then I have the right to use my
property as I see fit. I have also the right to give it away. I have
also the right to bequeath it; for if I decide to make a donation,
my decision is as valid after my death as during my life."
In fact, to become a proprietor, in M. Cousin's opinion, one must
take possession by occupation and labor. I maintain that the element
of time must be considered also; for if the first occupants have
occupied every thing, what are the new comers to do? What will
become of them, having an instrument with which to work, but no
material to work upon? Must they devour each other? A terrible
extremity, unforeseen by philosophical prudence; for the reason that
great geniuses neglect little things.
Notice also that M. Cousin says that neither occupation nor labor,
taken separately, can legitimate the right of property; and that it
is born only from the union of the two. This is one of M. Cousin's
eclectic turns, which he, more than any one else, should take pains
to avoid. Instead of proceeding by the method of analysis,
comparison, elimination, and reduction (the only means of
discovering the truth amid the various forms of thought and
whimsical opinions), he jumbles all systems together, and then,
declaring each both right and wrong, exclaims: "There you have
the truth."
But, adhering to my promise, I will not refute him. I will only
prove, by all the arguments with which he justifies the right of
property, the principle of equality which kills it. As I have
already said, my sole intent is this: to show at the bottom of all
these positions that inevitable major, equality; hoping
hereafter to show that the principle of property vitiates the very
elements of economical, moral, and governmental science, thus
leading it in the wrong direction.
Well, is it not true, from M. Cousin's point of view, that, if the
liberty of man is sacred, it is equally sacred in all individuals;
that, if it needs property for its objective action, that is, for
its life, the appropriation of material is equally necessary for
all; that, if I wish to be respected in my right of appropriation, I
must respect others in theirs; and, consequently, that though, in
the sphere of the infinite, a person's power of appropriation is
limited only by himself, in the sphere of the finite this same power
is limited by the mathematical relation between the number of
persons and the space which they occupy? Does it not follow that if
one individual cannot prevent another -- his fellow-man -- from
appropriating an amount of material equal to his own, no more can he
prevent individuals yet to come; because, while individuality passes
away, universality persists, and eternal laws cannot be determined
by a partial view of their manifestations? Must we not conclude,
therefore, that whenever a person is born, the others must crowd
closer together; and, by reciprocity of obligation, that if the new
comer is afterwards to become an heir, the right of succession does
not give him the right of accumulation, but only the right of
choice?
... Man needs to labor in order to live; consequently, he needs
tools to work with and materials to work upon. His need to produce
constitutes his right to produce. Now, this right is guaranteed him
by his fellows, with whom he makes an agreement to that effect. One
hundred thousand men settle in a large country like France with no
inhabitants: each man has a right to 1/100,000 of the land. If the
number of possessors increases, each one's portion diminishes in
consequence; so that, if the number of inhabitants rises to
thirty-four millions, each one will have a right only to
1/34,000,000. Now, so regulate the police system and the government,
labor, exchange, inheritance, &c., that the means of labor shall
be shared by all equally, and that each individual shall be free;
and then society will be perfect.
Of all the defenders of property, M. Cousin has gone the farthest.
He has maintained against the economists that labor does not
establish the right of property unless preceded by occupation, and
against the jurists that the civil law can determine and apply a
natural right, but cannot create it. In fact, it is not sufficient
to say, "The right of property is demonstrated by the existence
of property; the function of the civil law is purely declaratory."
To say that, is to confess that there is no reply to those who
question the legitimacy of the fact itself. Every right must be
justifiable in itself, or by some antecedent right; property is no
exception. For this reason, M. Cousin has sought to base it upon the
sanctity of the human personality, and the act by which the
will assimilates a thing. "Once touched by man," says one
of M. Cousin's disciples, "things receive from him a character
which transforms and humanizes them." I confess, for my part,
that I have no faith in this magic, and that I know of nothing less
holy than the will of man. But this theory, fragile as it seems to
psychology as well as jurisprudence, is nevertheless more
philosophical and profound than those theories which are based upon
labor or the authority of the law. Now, we have just seen to what
this theory of which we are speaking leads, -- to the equality
implied in the terms of its statement.
... Equality of conditions, -- a terrible dogma in the ears of the
proprietor, a consoling truth at the poor-man's sick-bed, a
frightful reality under the knife of the anatomist, -- equality of
conditions, established in the political, civil, and industrial
spheres, is only an alluring impossibility, an inviting bait, a
satanic delusion.
But what will be said when I show, as I soon shall, that this same
jurisprudence continually tries to base property upon equality? What
reply can be made? 3. -- Civil Law as the Foundation and
Sanction of Property.
Pothier seems to think that property, like royalty, exists by
divine right. He traces back its origin to God himself -- ab
Jove principium. ...
God gave the earth to the human race: why then have I
received none? He has put all things under my feet, -- and I
have not where to lay my head! ...
"The human race having multiplied, men divided among
themselves the earth and most of the things upon it; that which fell
to each, from that time exclusively belonged to him. That was the
origin of the right of property."
Say, rather, the right of possession. Men lived in a state of
communism; whether positive or negative it matters little. Then
there was no property, not even private possession. The genesis and
growth of possession gradually forcing people to labor for their
support, they agreed either formally or tacitly, -- it makes no
difference which, -- that the laborer should be sole proprietor of
the fruit of his labor; that is, they simply declared the fact that
thereafter none could live without working. It necessarily followed
that, to obtain equality of products, there must be equality of
labor; and that, to obtain equality of labor, there must be equality
of facilities for labor. Whoever without labor got possession, by
force or by strategy, of another's means of subsistence, destroyed
equality, and placed himself above or outside of the law. Whoever
monopolized the means of production on the ground of greater
industry, also destroyed equality. Equality being then the
expression of right, whoever violated it was unjust.
Thus, labor gives birth to private possession; the right in a
thing -- jus in re. But in what thing? Evidently in the
product, not in the soil. ... 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?
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.
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?
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.
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.
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 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.
