What Is Property?
Pierre-Joseph Proudhon
[1840 / Part 14 of 16]
Consider, indeed, the inextricable embarrassments, the
contradictions, the absurdities, the incredible nonsense, in which
the bold defenders of property so lightly involve themselves. I
choose the eclectics, because, those killed, the others cannot
survive.
M. Troplong, jurist, passes for a philosopher in the eyes of the
editors of "Le Droit." I tell the gentlemen of "Le
Droit" that, in the judgment of philosophers, M. Troplong is
only an advocate; and I prove my assertion.
M. Troplong is a defender of progress. "The words of the
code," says he, "are fruitful sap with which the classic
works of the eighteenth century overflow. To wish to suppress them .
. . is to violate the law of progress, and to forget that a science
which moves is a science which grows."[*]
[*] "Treatise on Prescription."
Now, the only mutable and progressive portion of law, as we have
already seen, is that which concerns property. If, then, you ask
what reforms are to be introduced into the right of property? M.
Troplong makes no reply; what progress is to be hoped for? no reply;
what is to be the destiny of property in case of universal
association? no reply; what is the absolute and what the contingent,
what the true and what the false, in property? no reply. M. Troplong
favors quiescence and in statu quo in regard to property.
What could be more unphilosophical in a progressive philosopher?
Nevertheless, M. Troplong has thought about these things. "There
are," he says, "many weak points and antiquated ideas in
the doctrines of modern authors concerning property: witness the
works of MM. Toullier and Duranton." The doctrine of M.
Troplong promises, then, strong points, advanced and progressive
ideas. Let us see; let us examine: --
"Man, placed in the presence of matter, is conscious of a
power over it, which has been given to him to satisfy the needs of
his being. King of inanimate or unintelligent nature, he feels that
he has a right to modify it, govern it, and fit it for his use.
There it is, the subject of property, which is legitimate only when
exercised over things, never when over persons."
M. Troplong is so little of a philosopher, that he does not even
know the import of the philosophical terms which he makes a show of
using. He says of matter that it is the subject of property;
he should have said the object. M. Troplong uses the
language of the anatomists, who apply the term subject to
the human matter used in their experiments.
This error of our author is repeated farther on: "Liberty,
which overcomes matter, the subject of property, &c." The
subject of property is man; its object is matter.
But even this is but a slight mortification; directly we shall have
some crucifixions.
Thus, according to the passage just quoted, it is in the
conscience and personality of man that the principle of property
must be sought. Is there any thing new in this doctrine? Apparently
it never has occurred to those who, since the days of Cicero and
Aristotle, and earlier, have maintained that things belong to
the first occupant, that occupation may be exercised by beings
devoid of conscience and personality. The human personality, though
it may be the principle or the subject of property, as matter is the
object, is not the condition. Now, it is this condition
which we most need to know. So far, M. Troplong tells us no more
than his masters, and the figures with which he adorns his style add
nothing to the old idea.
Property, then, implies three terms: The subject, the object, and
the condition. There is no difficulty in regard to the first two
terms. As to the third, the condition of property down to this day,
for the Greek as for the Barbarian, has been that of first
occupancy. What now would you have it, progressive doctor?
"When man lays hands for the first time upon an object
without a master, he performs an act which, among individuals, is of
the greatest importance. The thing thus seized and occupied
participates, so to speak, in the personality of him who holds it.
It becomes sacred, like himself. It is impossible to take it without
doing violence to his liberty, or to remove it without rashly
invading his person. Diogenes did but express this truth of
intuition, when he said: `Stand out of my light!' "
I pass in silence the secondary modes by which property can be
acquired, -- tradition, sale, exchange, inheritance, &c.,
-- which have nothing in common with the origin of property.
Accordingly, Pothier said the domain of property, and not
simply property. And the most learned writers on
jurisprudence -- in imitation of the Roman praetor who recognized a
right of property and a right of possession -- have
carefully distinguished between the domain and the right of
usufruct, use, and habitation, which, reduced to its
natural limits, is the very expression of justice; and which is, in
my opinion, to supplant domanial property, and finally form the
basis of all jurisprudence.
But, sir, admire the clumsiness of systems, or rather the fatality
of logic! While the Roman law and all the savants inspired
by it teach that property in its origin is the right of first
occupancy sanctioned by law, the modern legists, dissatisfied with
this brutal definition, claim that property is based upon labor.
Immediately they infer that he who no longer labors, but makes
another labor in his stead, loses his right to the earnings of the
latter. It is by virtue of this principle that the serfs of the
middle ages claimed a legal right to property, and consequently to
the enjoyment of political rights; that the clergy were despoiled in
'89 of their immense estates, and were granted a pension in
exchange; that at the restoration the liberal deputies opposed the
indemnity of one billion francs. "The nation," said they, "has
acquired by twenty-five years of labor and possession the property
which the emigrants forfeited by abandonment and long idleness: why
should the nobles be treated with more favor than the priests?"[*]
[*] A professor of comparative legislation, M.
Lerminier, has gone still farther. He has dared to say that the
nation took from the clergy all their possessions, not because of
idleness, but because of unworthiness. "You
have civilized the world," cries this apostle of equality,
speaking to the priests; "and for that reason your possessions
were given you. In your hands they were at once an instrument and a
reward. But you do not now deserve them, for you long since ceased
to civilize any thing whatever. . . ."
This position is quite in harmony with my principles, and I
heartily applaud the indignation of M. Lerminier; but I do not know
that a proprietor was ever deprived of his property because unworthy;
and as reasonable, social, and even useful as the thing may seem, it
is quite contrary to the uses and customs of property.
All usurpations, not born of war, have been caused and supported
by labor. All modern history proves this, from the end of the Roman
empire down to the present day. And as if to give a sort of legal
sanction to these usurpations, the doctrine of labor, subversive of
property, is professed at great length in the Roman law under the
name of prescription.
The man who cultivates, it has been said, makes the land his own;
consequently, no more property. This was clearly seen by the old
jurists, who have not failed to denounce this novelty; while on the
other hand the young school hoots at the absurdity of the
first-occupant theory. Others have presented themselves, pretending
to reconcile the two opinions by uniting them. They have failed,
like all the juste-milieux of the world, and are laughed at
for their eclecticism. At present, the alarm is in the camp of the
old doctrine; from all sides pour in defences of property,
studies regarding property, theories of property, each one of
which, giving the lie to the rest, inflicts a fresh wound upon
property.
Marvellous! There is in law, and consequently in politics,
something variable and something invariable. The invariable element
is obligation, the bond of justice, duty; the variable element is
property, -- that is, the external form of law, the subject-matter
of the contract. Whence it follows that the law can modify, change,
reform, and judge property. Reconcile that, if you can, with the
idea of an eternal, absolute, permanent, and indefectible right.
However, M. Laboulaye is in perfect accord with himself when he
adds, "Possession of the soil rests solely upon force until
society takes it in hand, and espouses the cause of the possessor;"[*]
[*] The same opinion was recently expressed from
the tribune by one of our most honorable Deputies, M. Gauguier. "Nature,"
said he, "has not endowed man with landed property."
Changing the adjective landed, which designates only a
species into capitalistic, which denotes the genus, -- M.
Gauguier made an égalitaire profession of faith.
... and, a little farther, "The right of property is not
natural, but social. The laws not only protect property: they give
it birth," &c. Now, that which the law has made the law can
unmake; especially since, according to M. Laboulaye, -- an avowed
partisan of the historical or pantheistic school, -- the law is not
absolute, is not an idea, but a form.
But why is it that property is variable, and, unlike obligation,
incapable of definition and settlement? Before affirming, somewhat
boldly without doubt, that in right there are no absolute principles
(the most dangerous, most immoral, most tyrannical -- in a word,
most anti-social -- assertion imaginable), it was proper that the
right of property should be subjected to a thorough examination, in
order to put in evidence its variable, arbitrary, and contingent
elements, and those which are eternal, legitimate, and absolute;
then, this operation performed, it became easy to account for the
laws, and to correct all the codes.
Now, this examination of property I claim to have made, and in the
fullest detail; but, either from the public's lack of interest in an
unrecommended and unattractive pamphlet, or -- which is more
probable -- from the weakness of exposition and want of genius which
characterize the work, the First Memoir on Property passed
unnoticed; scarcely would a few communists, having turned its
leaves, deign to brand it with their disapprobation. You alone, sir,
in spite of the disfavor which I showed for your economical
predecessors in too severe a criticism of them, -- you alone have
judged me justly; and although I cannot accept, at least literally,
your first judgment, yet it is to you alone that I appeal from a
decision too equivocal to be regarded as final.
It not being my intention to enter at present into a discussion of
principles, I shall content myself with estimating, from the point
of view of this simple and intelligible absolute, the theories of
property which our generation has produced.
The most exact idea of property is given us by the Roman law,
faithfully followed in this particular by the ancient legists. It is
the absolute, exclusive, autocratic domain of a man over a thing, --
a domain which begins by usucaption, is maintained by possession,
and finally, by the aid of prescription, finds its sanction
in the civil law; a domain which so identifies the man with the
thing, that the proprietor can say, "He who uses my field,
virtually compels me to labor for him; therefore he owes me
compensation."
Corresponding to these two schools of history, there are two
schools of jurisprudence, similarly opposed, and possessed of the
same peculiarities.
1. The practical and conventional school, to which the law is
always a creation of the legislator, an expression of his will, a
privilege which he condescends to grant, -- in short, a gratuitous
affirmation to be regarded as judicious and legitimate, no matter
what it declares.
2. The fatalistic and pantheistic school, sometimes called the
historical school, which opposes the despotism of the first, and
maintains that law, like literature and religion, is always the
expression of society, -- its manifestation, its form, the external
realization of its mobile spirit and its ever-changing inspirations.
Each of these schools, denying the absolute, rejects thereby all
positive and à priori philosophy.
Now, it is evident that the theories of these two schools,
whatever view we take of them, are utterly unsatisfactory: for,
opposed, they form no dilemma, -- that is, if one is false, it does
not follow that the other is true; and, united, they do not
constitute the truth, since they disregard the absolute, without
which there is no truth. They are respectively a thesis and
an antithesis. There remains to be found, then, a synthesis,
which, predicating the absolute, justifies the will of the
legislator, explains the variations of the law, annihilates the
theory of the circular movement of humanity, and demonstrates its
progress.
The legists, by the very nature of their studies and in spite of
their obstinate prejudices, have been led irresistibly to suspect
that the absolute in the science of law is not as chimerical as is
commonly supposed; and this suspicion arose from their comparison of
the various relations which legislators have been called upon to
regulate.
M. Laboulaye, the laureate of the Institute, begins his "History
of Property" with these words: --
"While the law of contract, which regulates only the mutual
interests of men, has not varied for centuries (except in certain
forms which relate more to the proof than to the character of the
obligation), the civil law of property, which regulates the mutual
relations of citizens, has undergone several radical changes, and
has kept pace in its variations with all the vicissitudes of
society. The law of contract, which holds essentially to those
principles of eternal justice which are engraven upon the depths of
the human heart, is the immutable element of jurisprudence, and, in
a certain sense, its philosophy. Property, on the contrary, is the
variable element of jurisprudence, its history, its policy."
Very good! but would the prince of cynics, the very personal and
very haughty Diogenes, have had the right to charge another cynic,
as rent for this same place in the sunshine, a bone for twenty-four
hours of possession? It is that which constitutes the proprietor; it
is that which you fail to justify. In reasoning from the human
personality and individuality to the right of property, you
unconsciously construct a syllogism in which the conclusion includes
more than the premises, contrary to the rules laid down by
Aristotle. The individuality of the human person proves individual
possession, originally called proprietas, in opposition
to collective possession, communio. It gives birth to the
distinction between thine and mine, true signs of
equality, not, by any means, of subordination. "From
equivocation to equivocation," says M. Michelet,[*]
[*] "Origin of French Law."
"property would crawl to the end of the world; man could not
limit it, were not he himself its limit. Where they clash, there
will be its frontier." In short, individuality of being
destroys the hypothesis of communism, but it does not for that
reason give birth to domain, -- that domain by virtue of which the
holder of a thing exercises over the person who takes his place a
right of prestation and suzerainty, that has always been identified
with property itself.
Further, that he whose legitimately acquired possession injures
nobody cannot be nonsuited without flagrant injustice, is a truth,
not of intuition, as M. Troplong says, but of inward
sensation,[*]
[*] To honor one's parents, to be grateful to
one's benefactors, to neither kill nor steal, -- truths of inward
sensation. To obey God rather than men, to render to each that which
is his; the whole is greater than a part, a straight line is the
shortest road from one point to another, -- truths of intuition. All
are à priori but the first are felt by the
conscience, and imply only a simple act of the soul; the second are
perceived by the reason, and imply comparison and relation. In
short, the former are sentiments, the latter are ideas.
which has nothing to do with property.
M. Troplong admits, then, occupancy as a condition of property. In
that, he is in accord with the Roman law, in accord with MM.
Toullier and Duranton; but in his opinion this condition is not the
only one, and it is in this particular that his doctrine goes beyond
theirs.
"But, however exclusive the right arising from sole
occupancy, does it not become still more so, when man has moulded
matter by his labor; when he has deposited in it a portion of
himself, re-creating it by his industry, and setting upon it the
seal of his intelligence and activity? Of all conquests, that is the
most legitimate, for it is the price of labor.
He who should deprive a man of the thing thus remodelled, thus
humanized, would invade the man himself, and would inflict the
deepest wounds upon his liberty."
I pass over the very beautiful explanations in which M. Troplong,
discussing labor and industry, displays the whole wealth of his
eloquence. M. Troplong is not only a philosopher, he is an orator,
an artist. He abounds with appeals to the conscience and the
passions. I might make sad work of his rhetoric, should I
undertake to dissect it; but I confine myself for the present to his
philosophy.
If M. Troplong had only known how to think and reflect, before
abandoning the original fact of occupancy and plunging into the
theory of labor, he would have asked himself: "What is it to
occupy?" And he would have discovered that occupancy is
only a generic term by which all modes of possession are expressed,
-- seizure, station, immanence, habitation, cultivation, use,
consumption, &c.; that labor, consequently, is but one of a
thousand forms of occupancy. He would have understood, finally, that
the right of possession which is born of labor is governed by the
same general laws as that which results from the simple seizure of
things. What kind of a legist is he who declaims when he ought to
reason, who continually mistakes his metaphors for legal axioms, and
who does not so much as know how to obtain a universal by induction,
and form a category?
If labor is identical with occupancy, the only benefit which it
secures to the laborer is the right of individual possession of the
object of his labor; if it differs from occupancy, it gives birth to
a right equal only to itself, -- that is, a right which begins,
continues, and ends, with the labor of the occupant. It is for this
reason, in the words of the law, that one cannot acquire a just
title to a thing by labor alone. He must also hold it for a year and
a day, in order to be regarded as its possessor; and possess it
twenty or thirty years, in order to become its proprietor.
These preliminaries established, M. Troplong's whole structure
falls of its own weight, and the inferences, which he attempts to
draw, vanish.
"Property once acquired by occupation and labor, it naturally
preserves itself, not only by the same means, but also by the
refusal of the holder to abdicate; for from the very fact that it
has risen to the height of a right, it is its nature to perpetuate
itself and to last for an indefinite period. . . . Rights,
considered from an ideal point of view, are imperishable and
eternal; and time, which affects only the contingent, can no more
disturb them than it can injure God himself." It is astonishing
that our author, in speaking of the ideal, time, and eternity,
did not work into his sentence the divine wings of Plato, --
so fashionable to-day in philosophical works.
With the exception of falsehood, I hate nonsense more than any
thing else in the world. Property once acquired! Good, if it
is acquired; but, as it is not acquired, it cannot be preserved.
Rights are eternal! Yes, in the sight of God, like the
archetypal ideas of the Platonists. But, on the earth, rights exist
only in the presence of a subject, an object, and a condition. Take
away one of these three things, and rights no longer exist. Thus,
individual possession ceases at the death of the subject, upon the
destruction of the object, or in case of exchange or abandonment.
Let us admit, however, with M. Troplong, that property is an
absolute and eternal right, which cannot be destroyed save by the
deed and at the will of the proprietor. What are the consequences
which immediately follow from this position?
To show the justice and utility of prescription, M. Troplong
supposes the case of a bona fide possessor whom a
proprietor, long since forgotten or even unknown, is attempting to
eject from his possession. "At the start, the error of the
possessor was excusable but not irreparable. Pursuing its course and
growing old by degrees, it has so completely clothed itself in the
colors of truth, it has spoken so loudly the language of right, it
has involved so many confiding interests, that it fairly may be
asked whether it would not cause greater confusion to go back to the
reality than to sanction the fictions which it (an error, without
doubt) has sown on its way? Well, yes; it must be confessed, without
hesitation, that the remedy would prove worse than the disease, and
that its application would lead to the most outrageous injustice."
How long since utility became a principle of law? When the
Athenians, by the advice of Aristides, rejected a proposition
eminently advantageous to their republic, but also utterly unjust,
they showed finer moral perception and greater clearness of
intellect than M. Troplong. Property is an eternal right,
independent of time, indestructible except by the act and at the
will of the proprietor; and here this right is taken from the
proprietor, and on what ground? Good God! on the ground of absence!
Is it not true that legists are governed by caprice in giving and
taking away rights? When it pleases these gentlemen, idleness,
unworthiness, or absence can invalidate a right which, under quite
similar circumstances, labor, residence, and virtue are inadequate
to obtain. Do not be astonished that legists reject the absolute.
Their good pleasure is law, and their disordered imaginations are
the real cause of the evolutions in jurisprudence.
"If the nominal proprietor should plead ignorance, his claim
would be none the more valid. Indeed, his ignorance might arise from
inexcusable carelessness, etc."
What! in order to legitimate dispossession through prescription,
you suppose faults in the proprietor! You blame his absence, --
which may have been involuntary; his neglect, -- not knowing what
caused it; his carelessness, -- a gratuitous supposition of your
own! It is absurd. One very simple observation suffices to
annihilate this theory. Society, which, they tell us, makes an
exception in the interest of order in favor of the possessor as
against the old proprietor, owes the latter an indemnity; since the
privilege of prescription is nothing but expropriation for the sake
of public utility.
But here is something stronger: --
"In society a place cannot remain vacant with impunity. A new
man arises in place of the old one who disappears or goes away; he
brings here his existence, becomes entirely absorbed, and devotes
himself to this post which he finds abandoned. Shall the deserter,
then, dispute the honor of the victory with the soldier who fights
with the sweat standing on his brow, and bears the burden of the
day, in behalf of a cause which he deems just?"
When the tongue of an advocate once gets in motion, who can tell
where it will stop? M. Troplong admits and justifies usurpation in
case of the absence of the proprietor, and on a mere
presumption of his carelessness. But when the neglect is
authenticated; when the abandonment is solemnly and voluntarily set
forth in a contract in the presence of a magistrate; when the
proprietor dares to say, "I cease to labor, but I still claim a
share of the product," -- then the absentee's right of property
is protected; the usurpation of the possessor would be criminal;
farm-rent is the reward of idleness. Where is, I do not say the
consistency, but, the honesty of this law?
Prescription is a result of the civil law, a creation of the
legislator. Why has not the legislator fixed the conditions
differently? -- why, instead of twenty and thirty years, is not a
single year sufficient to prescribe? -- why are not voluntary
absence and confessed idleness as good grounds for dispossession as
involuntary absence, ignorance, or apathy?
But in vain should we ask M. Troplong, the philosopher, to tell us
the ground of prescription. Concerning the code, M. Troplong does
not reason. "The interpreter," he says, "must take
things as they are, society as it exists, laws as they are made:
that is the only sensible starting-point." Well, then, write no
more books; cease to reproach your predecessors -- who, like you,
have aimed only at interpretation of the law -- for having remained
in the rear; talk no more of philosophy and progress, for the lie
sticks in your throat.
M. Troplong denies the reality of the right of possession; he
denies that possession has ever existed as a principle of society;
and he quotes M. de Savigny, who holds precisely the opposite
position, and whom he is content to leave unanswered. At one time,
M. Troplong asserts that possession and property are contemporaneous,
and that they exist at the same time, which implies that the
right of property is based on the fact of
possession, -- a conclusion which is evidently absurd; at another,
he denies that possession had any historical existence prior to
property, -- an assertion which is contradicted by the customs
of many nations which cultivate the land without appropriating it;
by the Roman law, which distinguished so clearly between possession
and property; and by our code itself, which makes possession
for twenty or thirty years the condition of property. Finally, M.
Troplong goes so far as to maintain that the Roman maxim, Nihil
comune habet proprietas cum possessione -- which contains so
striking an allusion to the possession of the ager publicus,
and which, sooner or later, will be again accepted without
qualification -- expresses in French law only a judicial axiom, a
simple rule forbidding the union of an action possessoire
with an action petitoir, -- an opinion as retrogressive as
it is unphilosophical.
In treating of actions possessoires, M. Troplong is so
unfortunate or awkward that he mutilates economy through failure to
grasp its meaning "Just as property," he writes, "gave
rise to the action for revendication, so possession -- the jus
possessionis -- was the cause of possessory interdicts. . . .
There were two kinds of interdicts, -- the interdict recuperandæ
possessionis, and the interdict retinendæ possessionis,
-- which correspond to our complainte en cas de saisine et
nouvelete. There is also a third, -- adipiscendæ
possessionis, -- of which the Roman law-books speak in
connection with the two others. But, in reality, this interdict is
not possessory: for he who wishes to acquire possession by this
means does not possess, and has not possessed; and yet acquired
possession is the condition of possessory interdicts." Why is
not an action to acquire possession equally conceivable with an
action to be reinstated in possession? When the Roman plebeians
demanded a division of the conquered territory; when the proletaires
of Lyons took for their motto, Vivre en travaillant, ou mourir
en combattant (to live working, or die fighting); when the most
enlightened of the modern economists claim for every man the right
to labor and to live, -- they only propose this interdict, adipiscendæ
possessionis, which embarrasses M. Troplong so seriously. And
what is my object in pleading against property, if not to obtain
possession? How is it that M. Troplong -- the legist, the orator,
the philosopher -- does not see that logically this interdict must
be admitted, since it is the necessary complement of the two others,
and the three united form an indivisible trinity, -- to recover,
to maintain, to acquire? To break this series is to
create a blank, destroy the natural synthesis of things, and follow
the example of the geometrician who tried to conceive of a solid
with only two dimensions. But it is not astonishing that M. Troplong
rejects the third class of actions possessoires, when we
consider that he rejects possession itself. He is so completely
controlled by his prejudices in this respect, that he is
unconsciously led, not to unite (that would be horrible in his
eyes), but to identify the action possessoire with the action
petitoire. This could be easily proved, were it not too tedious
to plunge into these metaphysical obscurities.
As an interpreter of the law, M. Troplong is no more successful
than as a philosopher. One specimen of his skill in this direction,
and I am done with him: --
Code of Civil Procedure, Art. 23: "Actions
possessoires are only when commenced within the year of trouble
by those who have held possession for at least a year by an
irrevocable title."
M. Troplong's comments: --
"Ought we to maintain -- as Duparc, Poullain, and Lanjuinais
would have us -- the rule spoliatus ante omnia restituendus,
when an individual, who is neither proprietor nor annual possessor,
is expelled by a third party, who has no right to the estate? I
think not. Art. 23 of the Code is general: it absolutely requires
that the plaintiff in actions possessoires shall have been
in peaceable possession for a year at least. That is the invariable
principle: it can in no case be modified. And why should it be set
aside? The plaintiff had no seisin; he had no privileged possession;
he had only a temporary occupancy, insufficient to warrant in his
favor the presumption of property, which renders the annual
possession so valuable. Well! this ae facto occupancy he has
lost; another is invested with it: possession is in the hands of
this new-comer. Now, is not this a case for the application of the
principle, In pari causa possesser potior habetur?
Should not the actual possessor be preferred to the evicted
possessor? Can he not meet the complaint of his adversary by saying
to him: `Prove that you were an annual possessor before me, for you
are the plaintiff. As far as I am concerned, it is not for me to
tell you how I possess, nor how long I have possessed. Possideo
quia possideo. I have no other reply, no other defence. When you
have shown that your action is admissible, then we will see whether
you are entitled to lift the veil which hides the origin of my
possession.'"
And this is what is honored with the name of jurisprudence and
philosophy, -- the restoration of force. What! when I have "moulded
matter by my labor" [I quote M. Troplong]; when I have "deposited
in it a portion of myself" [M. Troplong]; when I have "re-created
it by my industry, and set upon it the seal of my intelligence"
[M. Troplong], -- on the ground that I have not possessed it for a
year, a stranger may dispossess me, and the law offers me no
protection! And if M. Troplong is my judge, M. Troplong will condemn
me! And if I resist my adversary, -- if, for this bit of mud which I
may call my field, and of which they wish to rob me, a war
breaks out between the two competitors, -- the legislator will
gravely wait until the stronger, having killed the other, has had
possession for a year! No, no, Monsieur Troplong! you do not
understand the words of the law; for I prefer to call in question
your intelligence rather than the justice of the legislator. You are
mistaken in your application of the principle, In pari causa
possessor potior habetur: the actuality of possession here
refers to him who possessed at the time when the difficulty arose,
not to him who possesses at the time of the complaint. And when the
code prohibits the reception of actions possessoires, in
cases where the possession is not of a year's duration, it simply
means that if, before a year has elapsed, the holder relinquishes
possession, and ceases actually to occupy in propria persona,
he cannot avail himself of an action possessoire against his
successor. In a word, the code treats possession of less than a year
as it ought to treat all possession, however long it has existed, --
that is, the condition of property ought to be, not merely seisin
for a year, but perpetual seisin.
I will not pursue this analysis farther. When an author bases two
volumes of quibbles on foundations so uncertain, it may be boldly
declared that his work, whatever the amount of learning displayed in
it, is a mess of nonsense unworthy a critic's attention.
At this point, sir, I seem to hear you reproaching me for this
conceited dogmatism, this lawless arrogance, which respects nothing,
claims a monopoly of justice and good sense, and assumes to put in
the pillory any one who dares to maintain an opinion contrary to its
own. This fault, they tell me, more odious than any other in an
author, was too prominent a characteristic of my First Memoir, and I
should do well to correct it.
It is important to the success of my defence, that I should
vindicate myself from this reproach; and since, while perceiving in
myself other faults of a different character, I still adhere in this
particular to my disputatious style, it is right that I should give
my reasons for my conduct. I act, not from inclination, but from
necessity.
I say, then, that I treat my authors as I do for two reasons: a
reason of right, and a reason of intention; both
peremptory.
1. Reason of right. When I preach equality of fortunes, I do not
advance an opinion more or less probable, a utopia more or less
ingenious, an idea conceived within my brain by means of imagination
only. I lay down an absolute truth, concerning which hesitation is
impossible, modesty superfluous, and doubt ridiculous.
But, do you ask, what assures me that that which I utter is true?
What assures me, sir? The logical and metaphysical processes which I
use, the correctness of which I have demonstrated by à
priori reasoning; the fact that I possess an infallible method
of investigation and verification with which my authors are
unacquainted; and finally, the fact that for all matters relating to
property and justice I have found a formula which explains all
legislative variations, and furnishes a key for all problems. Now,
is there so much as a shadow of method in M. Toullier, M. Troplong,
and this swarm of insipid commentators, almost as devoid of reason
and moral sense as the code itself? Do you give the name of method
to an alphabetical, chronological, analogical, or merely nominal
classification of subjects? Do you give the name of method to these
lists of paragraphs gathered under an arbitrary head, these
sophistical vagaries, this mass of contradictory quotations and
opinions, this nauseous style, this spasmodic rhetoric, models of
which are so common at the bar, though seldom found elsewhere? Do
you take for philosophy this twaddle, this intolerable pettifoggery
adorned with a few scholastic trimmings? No, no! a writer who
respects himself, never will consent to enter the balance with these
manipulators of law, misnamed jurists; and for my part I
object to a comparison.
2. Reason of intention. As far as I am permitted to divulge this
secret, I am a conspirator in an immense revolution, terrible to
charlatans and despots, to all exploiters of the poor and credulous,
to all salaried idlers, dealers in political panaceas and parables,
tyrants in a word of thought and of opinion. I labor to stir up the
reason of individuals to insurrection against the reason of
authorities.
According to the laws of the society of which I am a member, all
the evils which afflict humanity arise from faith in external
teachings and submission to authority. And not to go outside of our
own century, is it not true, for instance, that France is plundered,
scoffed at, and tyrannized over, because she speaks in masses, and
not by heads? The French people are penned up in three or four
flocks, receiving their signal from a chief, responding to the voice
of a leader, and thinking just as he says. A certain journal, it is
said, has fifty thousand subscribers; assuming six readers to every
subscriber, we have three hundred thousand sheep browsing and
bleating at the same cratch. Apply this calculation to the whole
periodical press, and you find that, in our free and intelligent
France, there are two millions of creatures receiving every morning
from the journals spiritual pasturage. Two millions! In other words,
the entire nation allows a score of little fellows to lead it by the
nose.
By no means, sir, do I deny to journalists talent, science, love
of truth, patriotism, and what you please. They are very worthy and
intelligent people, whom I undoubtedly should wish to resemble, had
I the honor to know them. That of which I complain, and that which
has made me a conspirator, is that, instead of enlightening us,
these gentlemen command us, impose upon us articles of faith, and
that without demonstration or verification. When, for example, I ask
why these fortifications of Paris, which, in former times, under the
influence of certain prejudices, and by means of a concurrence of
extraordinary circumstances supposed for the sake of the argument to
have existed, may perhaps have served to protect us, but which it is
doubtful whether our descendants will ever use, -- when I ask, I
say, on what grounds they assimilate the future to a hypothetical
past, they reply that M. Thiers, who has a great mind, has written
upon this subject a report of admirable elegance and marvellous
clearness. At this I become angry, and reply that M. Thiers does not
know what he is talking about. Why, having wanted no detached forts
seven years ago, do we want them to-day?
"Oh! damn it," they say, "the difference is great;
the first forts were too near to us; with these we cannot be
bom-barded." You cannot be bombarded; but you can be blockaded,
and will be, if you stir. What! to obtain blockade forts from the
Parisians, it has sufficed to prejudice them against bombardment
forts! And they thought to outwit the government! Oh, the
sovereignty of the people! . . .
"Damn it! M. Thiers, who is wiser than you, says that it
would be absurd to suppose a government making war upon citizens,
and maintaining itself by force and in spite of the will of the
people. That would be absurd!" Perhaps so: such a thing has
happened more than once, and may happen again. Besides, when
despotism is strong, it appears almost legitimate. However that may
be, they lied in 1833, and they lie again in 1841, -- those who
threaten us with the bomb-shell. And then, if M. Thiers is so well
assured of the intentions of the government, why does he not wish
the forts to be built before the circuit is extended? Why this air
of suspicion of the government, unless an intrigue has been planned
between the government and M. Thiers?
"Damn it! we do not wish to be again invaded. If Paris had
been fortified in 1815, Napoleon would not have been conquered!"
But I tell you that Napoleon was not conquered, but sold; and that
if, in 1815, Paris had had fortifications, it would have been with
them as with the thirty thousand men of Grouchy, who were misled
during the battle. It is still easier to surrender forts than to
lead soldiers. Would the selfish and the cowardly ever lack reasons
for yielding to the enemy?
"But do you not see that the absolutist courts are provoked
at our fortifications? -- a proof that they do not think as you do."
You believe that; and, for my part, I believe that in reality they
are quite at ease about the matter; and, if they appear to tease our
ministers, they do so only to give the latter an opportunity to
decline. The absolutist courts are always on better terms with our
constitutional monarchy, than our monarchy with us. Does not M.
Guizot say that France needs to be defended within as well as
without? Within! against whom? Against France. O Parisians! it is
but six months since you demanded war, and now you want only
barricades. Why should the allies fear your doctrines, when you
cannot even control yourselves? . . . How could you sustain a siege,
when you weep over the absence of an actress?
"But, finally, do you not understand that, by the rules of
modern warfare, the capital of a country is always the objective
point of its assailants? Suppose our army defeated on the Rhine,
France invaded, and defenceless Paris falling into the hands of the
enemy. It would be the death of the administrative power; without a
head it could not live. The capital taken, the nation must submit.
What do you say to that?"
The reply is very simple. Why is society constituted in such a way
that the destiny of the country depends upon the safety of the
capital? Why, in case our territory be invaded and Paris besieged,
cannot the legislative, executive, and military powers act outside
of Paris? Why this localization of all the vital forces of France? .
. . Do not cry out upon decentralization. This hackneyed reproach
would discredit only your own intelligence and sincerity. It is not
a question of decentralization; it is your political fetichism which
I attack. Why should the national unity be attached to a certain
place, to certain functionaries, to certain bayonets? Why should the
Place Maubert and the Palace of the Tuileries be the palladium of
France?
Now let me make an hypothesis.
Suppose it were written in the charter, "In case the country
be again invaded, and Paris forced to surrender, the government
being annihilated and the national assembly dissolved, the electoral
colleges shall reassemble spontaneously and without other official
notice, for the purpose of appointing new deputies, who shall
organize a provisional government at Orleans. If Orleans succumbs,
the government shall reconstruct itself in the same way at Lyons;
then at Bordeaux, then at Bayonne, until all France be captured or
the enemy driven from the land. For the government may perish, but
the nation never dies. The king, the peers, and the deputies
massacred, Vive la France!"
Do you not think that such an addition to the charter would be a
better safeguard for the liberty and integrity of the country than
walls and bastions around Paris? Well, then! do henceforth for
administration, industry, science, literature, and art that which
the charter ought to prescribe for the central government and common
defence. Instead of endeavoring to render Paris impregnable, try
rather to render the loss of Paris an insignificant matter. Instead
of accumulating about one point academies, faculties, schools, and
political, administrative, and judicial centres; instead of
arresting intellectual development and weakening public spirit in
the provinces by this fatal agglomeration, -- can you not, without
destroying unity, distribute social functions among places as well
as among persons? Such a system -- in allowing each province to
participate in political power and action, and in balancing
industry, intelligence, and strength in all parts of the country --
would equally secure, against enemies at home and enemies abroad,
the liberty of the people and the stability of the government.
Discriminate, then, between the centralization of functions and
the concentration of organs; between political unity and its
material symbol.
"Oh! that is plausible; but it is impossible!" -- which
means that the city of Paris does not intend to surrender its
privileges, and that there it is still a question of property.
Idle talk! The country, in a state of panic which has been
cleverly worked upon, has asked for fortifications. I dare to affirm
that it has abdicated its sovereignty. All parties are to blame for
this suicide, -- the conservatives, by their acquiescence in the
plans of the government; the friends of the dynasty, because they
wish no opposition to that which pleases them, and because a popular
revolution would annihilate them; the democrats, because they hope
to rule in their turn.[*]
[*] Armand Carrel would have favored the
fortification of the capital. "Le National" has said,
again and again, placing the name of its old editor by the side of
the names of Napoleon and Vauban. What signifies this exhumation of
an anti-popular politician? It signifies that Armand Carrel wished
to make government an individual and irremovable, but elective,
property, and that he wished this property to be elected, not by the
people, but by the army. The political system of Carrel was simply a
reorganization of the pretorian guards. Carrel also hated the péquins.
That which he deplored in the revolution of July was not, they say,
the insurrection of the people, but the victory of the people over
the soldiers. That is the reason why Carrel, after 1830, would never
support the patriots. "Do you answer me with a few regiments?"
he asked. Armand Carrel regarded the army -- the military power --
as the basis of law and government. This man undoubtedly had a moral
sense within him, but he surely had no sense of justice. Were he
still in this world, I declare it boldly, liberty would have no
greater enemy than Carrel.
It is said that on this question of the fortification of Paris the
staff of "Le National" are not agreed. This would prove,
if proof were needed, that a journal may blunder and falsify,
without entitling any one to accuse its editors. A journal is a
metaphysical being, for which no one is really responsible, and
which owes its existence solely to mutual concessions. This idea
ought to frighten those worthy citizens who, because they borrow
their opinions from a journal, imagine that they belong to a
political party, and who have not the faintest suspicion that they
are really without a head.
That which all rejoice at having obtained is a means of future
repression. As for the defence of the country, they are not troubled
about that. The idea of tyranny dwells in the minds of all, and
brings together into one conspiracy all forms of selfishness. We
wish the regeneration of society, but we subordinate this desire to
our ideas and convenience. That our approaching marriage may take
place, that our business may succeed, that our opinions may triumph,
we postpone reform. Intolerance and selfishness lead us to put
fetters upon liberty; and, because we cannot wish all that God
wishes, we would, if it rested with us, stay the course of destiny
rather than sacrifice our own interests and self-love. Is not this
an instance where the words of Solomon apply, -- "L'iniquité
a menti à elle-même"?
For this reason, sir, I have enlisted in a desperate war against
every form of authority over the multitude. Advance sentinel of the
proletariat, I cross bayonets with the celebrities of the day, as
well as with spies and charlatans. Well, when I am fighting with an
illustrious adversary, must I stop at the end of every phrase, like
an orator in the tribune, to say "the learned author," "the
eloquent writer," "the profound publicist," and a
hundred other platitudes with which it is fashionable to mock
people? These civilities seem to me no less insulting to the man
attacked than dishonorable to the aggressor. But when, rebuking an
author, I say to him, "Citizen, your doctrine is absurd, and,
if to prove my assertion is an offence against you, I am guilty of
it," immediately the listener opens his ears; he is all
attention; and, if I do not succeed in convincing him, at least I
give his thought an impulse, and set him the wholesome example of
doubt and free examination.
Then do not think, sir, that, in tripping up the philosophy of
your very learned and very estimable confrère, M.
Troplong, I fail to appreciate his talent as a writer (in my
opinion, he has too much for a jurist); nor his knowledge, though it
is too closely confined to the letter of the law, and the reading of
old books. In these particulars, M. Troplong offends on the side of
excess rather than deficiency. Further, do not believe that I am
actuated by any personal animosity towards him, or that I have the
slightest desire to wound his self-love. I know M. Troplong only by
his "Treatise on Prescription," which I wish he had not
written; and as for my critics, neither M. Troplong, nor any of
those whose opinion I value, will ever read me. Once more, my only
object is to prove, as far as I am able, to this unhappy French
nation, that those who make the laws, as well as those who interpret
them, are not infallible organs of general, impersonal, and absolute
reason.
I had resolved to submit to a systematic criticism the
semi-official defence of the right of property recently put forth by
M. Wolowski, your colleague at the Conservatory. With this view, I
had commenced to collect the documents necessary for each of his
lectures, but, soon perceiving that the ideas of the professor were
incoherent, that his arguments contradicted each other, that one
affirmation was sure to be overthrown by another, and that in M.
Wolowski's lucubrations the good was always mingled with the bad,
and being by nature a little suspicious, it suddenly occurred to me
that M. Wolowski was an advocate of equality in disguise, thrown in
spite of himself into the position in which the patriarch Jacob
pictures one of his sons, -- inter duas clitellas, between
two stools, as the proverb says. In more parliamentary language, I
saw clearly that M. Wolowski was placed between his profound
convictions on the one hand and his official duties on the other,
and that, in order to maintain his position, he had to assume a
certain slant. Then I experienced great pain at seeing the reserve,
the circumlocution, the figures, and the irony to which a professor
of legislation, whose duty it is to teach dogmas with clearness and
precision, was forced to resort; and I fell to cursing the society
in which an honest man is not allowed to say frankly what he thinks.
Never, sir, have you conceived of such torture: I seemed to be
witnessing the martyrdom of a mind. I am going to give you an idea
of these astonishing meetings, or rather of these scenes of sorrow.
Monday, Nov. 20, 1840. -- The professor declares, in
brief, -- 1. That the right of property is not founded upon
occupation, but upon the impress of man; 2. That every man has a
natural and inalienable right to the use of matter.
Now, if matter can be appropriated, and if, notwithstanding, all
men retain an inalienable right to the use of this matter, what is
property? -- and if matter can be appropriated only by labor, how
long is this appropriation to continue? -- questions that will
confuse and confound all jurists whatsoever.
Then M. Wolowski cites his authorities. Great God! what witnesses
he brings forward! First, M. Troplong, the great metaphysician, whom
we have discussed; then, M. Louis Blanc, editor of the "Revue
du Progres," who came near being tried by jury for publishing
his "Organization of Labor," and who escaped from the
clutches of the public prosecutor only by a juggler's trick;[*]
[*] In a very short article, which was read by M.
Wolowski, M. Louis Blanc declares, in substance, that he is not a
communist (which I easily believe); that one must be a fool to
attack property (but he does not say why); and that it is very
necessary to guard against confounding property with its abuses.
When Voltaire overthrew Christianity, he repeatedly avowed that he
had no spite against religion, but only against its abuses.
Corinne, -- I mean Madame de Stael, -- who, in an ode, making a
poetical comparison of the land with the waves, of the furrow of a
plough with the wake of a vessel, says "that property exists
only where man has left his trace," which makes property
dependent upon the solidity of the elements; Rousseau, the apostle
of liberty and equality, but who, according to M. Wolowski, attacked
property only as a joke, and in order to point a paradox;
Robespierre, who prohibited a division of the land, because he
regarded such a measure as a rejuvenescence of property, and who,
while awaiting the definitive organization of the republic, placed
all property in the care of the people, -- that is, transferred the
right of eminent domain from the individual to society; Babeuf, who
wanted property for the nation, and communism for the citizens; M.
Con-sidérant, who favors a division of landed property into
shares, -- that is, who wishes to render property nominal and
fictitious: the whole being intermingled with jokes and witticisms
(intended undoubtedly to lead people away from the hornets'
nests) at the expense of the adversaries of the right of
property!
November 26. -- M. Wolowski supposes this objection: Land,
like water, air, and light, is necessary to life, therefore it
cannot be appropriated; and he replies: The importance of landed
property diminishes as the power of industry increases.
Good! this importance diminishes, but it does not disappear;
and this, of itself, shows landed property to be illegitimate. Here
M. Wolowski pretends to think that the opponents of property refer
only to property in land, while they merely take it as a term of
comparison; and, in showing with wonderful clearness the absurdity
of the position in which he places them, he finds a way of drawing
the attention of his hearers to another subject without being false
to the truth which it is his office to contradict.
"Property," says M. Wolowski, "is that which
distinguishes man from the animals." That may be; but are we to
regard this as a compliment or a satire?
"Mahomet," says M. Wolowski, "decreed property."
And so did Genghis Khan, and Tamerlane, and all the ravagers of
nations. What sort of legislators were they?
"Property has been in existence ever since the origin of the
human race." Yes, and so has slavery, and despotism also; and
likewise polygamy and idolatry. But what does this antiquity show?
The members of the Council of the State -- M. Portalis at their
head -- did not raise, in their discussion of the Code, the question
of the legitimacy of property. "Their silence," says M.
Wolowski, "is a precedent in favor of this right." I may
regard this reply as personally addressed to me, since the
observation belongs to me. I reply, "As long as an opinion is
universally admitted, the universality of belief serves of itself as
argument and proof. When this same opinion is attacked, the former
faith proves nothing; we must resort to reason. Ignorance, however
old and pardonable it may be, never outweighs reason."
Property has its abuses, M. Wolowski confesses. "But,"
he says, "these abuses gradually disappear. To-day their cause
is known. They all arise from a false theory of prop-erty. In
principle, property is inviolable, but it can and must be checked
and disciplined." Such are the conclusions of the professor.
When one thus remains in the clouds, he need not fear to
equivocate. Nevertheless, I would like him to define these abuses
of property, to show their cause, to explain this true theory from
which no abuse is to spring; in short, to tell me how, without
destroying property, it can be governed for the greatest good of
all. "Our civil code," says M. Wolowski, in speaking of
this subject, "leaves much to be desired." I think it
leaves every thing undone.
Finally, M. Wolowski opposes, on the one hand, the concentration
of capital, and the absorption which results therefrom; and, on the
other, he objects to the extreme division of the land. Now I think
that I have demonstrated in my First Memoir, that large accumulation
and minute division are the first two terms of an economical
trinity, -- a thesis and an antithesis. But, while
M. Wolowski says nothing of the third term, the synthesis,
and thus leaves the inference in suspense, I have shown that this
third term is ASSOCIATION, which is the annihilation of property.
November 30. -- LITERARY PROPERTY. M. Wolowski grants that
it is just to recognize the rights of talent (which is not in the
least hostile to equality); but he seriously objects to perpetual
and absolute property in the works of genius, to the profit of the
authors' heirs. His main argument is, that society has a right of
collective production over every creation of the mind. Now, it is
precisely this principle of collective power that I developed in my
"Inquiries into Property and Government," and on which I
have established the complete edifice of a new social organization.
M. Wolowski is, as far as I know, the first jurist who has made a
legislative application of this economical law. Only, while I have
extended the principle of collective power to every sort of product,
M. Wolowski, more prudent than it is my nature to be, confines it to
neutral ground. So, that that which I am bold enough to say of the
whole, he is contented to affirm of a part, leaving the intelligent
hearer to fill up the void for himself. However, his arguments are
keen and close. One feels that the professor, finding himself more
at ease with one aspect of property, has given the rein to his
intellect, and is rushing on towards liberty.
1. Absolute literary property would hinder the activity of other
men, and obstruct the development of humanity. It would be the death
of progress; it would be suicide. What would have happened if the
first inventions, -- the plough, the level, the saw, &c., -- had
been appropriated?
Such is the first proposition of M. Wolowski.
I reply: Absolute property in land and tools hinders human
activity, and obstructs progress and the free development of man.
What happened in Rome, and in all the ancient nations? What occurred
in the middle ages? What do we see to-day in England, in consequence
of absolute property in the sources of production? The suicide of
humanity.
2. Real and personal property is in harmony with the social
interest. In consequence of literary property, social and individual
interests are perpetually in conflict.
The statement of this proposition contains a rhetorical figure,
common with those who do not enjoy full and complete liberty of
speech. This figure is the anti-phrasis or contre-vérité.
It consists, according to Dumarsais and the best humanists, in
saying one thing while meaning another. M. Wolowski's proposition,
naturally expressed, would read as follows: "Just as real and
personal property is essentially hostile to society, so, in
consequence of literary property, social and individual interests
are perpetually in conflict."
3. M. de Montalembert, in the Chamber of Peers, vehemently
protested against the assimilation of authors to inventors of
machinery; an assimilation which he claimed to be injurious to the
former. M. Wolowski replies, that the rights of authors, without
machinery, would be nil; that, without paper-mills, type foundries,
and printing-offices, there could be no sale of verse and prose;
that many a mechanical invention, -- the compass, for instance, the
telescope, or the steam-engine, -- is quite as valuable as a book.
Prior to M. Montalembert, M. Charles Comte had laughed at the
inference in favor of mechanical inventions, which logical minds
never fail to draw from the privileges granted to authors. "He,"
says M. Comte, "who first conceived and executed the idea of
transforming a piece of wood into a pair of sabots, or an
animal's hide into a pair of sandals, would thereby have acquired an
exclusive right to make shoes for the human race!" Undoubtedly,
under the system of property. For, in fact, this pair of sabots,
over which you make so merry, is the creation of the shoemaker, the
work of his genius, the expression of his thought; to him it is his
poem, quite as much as "Le Roi s'amuse," is M. Victor
Hugo's drama. Justice for all alike. If you refuse a patent to a
perfecter of boots, refuse also a privilege to a maker of rhymes.
4. That which gives importance to a book is a fact external to the
author and his work. Without the intelligence of society, without
its development, and a certain community of ideas, passions, and
interests between it and the authors, the works of the latter would
be worth nothing. The exchangeable value of a book is due even more
to the social condition than to the talent displayed in it.
Indeed, it seems as if I were copying my own words. This
proposition of M. Wolowski contains a special expression of a
general and absolute idea, one of the strongest and most conclusive
against the right of property. Why do artists, like mechanics, find
the means to live? Because society has made the fine arts, like the
rudest industries, objects of consumption and exchange, governed
consequently by all the laws of commerce and political economy. Now,
the first of these laws is the equipoise of functions; that is, the
equality of associates.
5. M. Wolowski indulges in sarcasm against the petitioners for
literary property. "There are authors," he says, "who
crave the privileges of authors, and who for that purpose point out
the power of the melodrama. They speak of the niece of Corneille,
begging at the door of a theatre which the works of her uncle had
enriched. . . . To satisfy the avarice of literary people, it would
be necessary to create literary majorats, and make a whole code of
exceptions."
I like this virtuous irony. But M. Wolowski has by no means
exhausted the difficulties which the question involves. And first,
is it just that MM. Cousin, Guizot, Villemain, Damiron, and company,
paid by the State for delivering lectures, should be paid a second
time through the booksellers? -- that I, who have the right to
report their lectures, should not have the right to print them? Is
it just that MM. Noel and Chapsal, overseers of the University,
should use their influence in selling their selections from
literature to the youth whose studies they are instructed to
superintend in consideration of a salary? And, if that is not just,
is it not proper to refuse literary property to every author holding
public offices, and receiving pensions or sinecures?
Again, shall the privilege of the author extend to irreligious and
immoral works, calculated only to corrupt the heart, and obscure the
understanding? To grant this privilege is to sanction immorality by
law; to refuse it is to censure the author. And since it is
impossible, in the present imperfect state of society, to prevent
all violations of the moral law, it will be necessary to open a
license-office for books as well as morals. But, then, three-fourths
of our literary people will be obliged to register; and, recognized
thenceforth on their own declaration as prostitutes, they
will necessarily belong to the public. We pay toll to the
prostitute; we do not endow her.
Finally, shall plagiarism be classed with forgery? If you reply "Yes,"
you appropriate in advance all the subjects of which books treat; if
you say "No," you leave the whole matter to the decision
of the judge. Except in the case of a clandestine reprint, how will
he distinguish forgery from quotation, imitation, plagiarism, or
even coincidence? A savant spends two years in calculating a
table of logarithms to nine or ten decimals. He prints it. A
fortnight after his book is selling at half-price; it is impossible
to tell whether this result is due to forgery or competition. What
shall the court do? In case of doubt, shall it award the property to
the first occupant? As well decide the question by lot.
These, however, are trifling considerations; but do we see that,
in granting a perpetual privilege to authors and their heirs, we
really strike a fatal blow at their interests? We think to make
booksellers dependent upon authors, -- a delusion. The booksellers
will unite against works, and their proprietors. Against works, by
refusing to push their sale, by replacing them with poor imitations,
by reproducing them in a hundred indirect ways; and no one knows how
far the science of plagiarism, and skilful imitation may be carried.
Against proprietors. Are we ignorant of the fact, that a demand for
a dozen copies enables a bookseller to sell a thousand; that with an
edition of five hundred he can supply a kingdom for thirty years?
What will the poor authors do in the presence of this omnipotent
union of booksellers? I will tell them what they will do. They will
enter the employ of those whom they now treat as pirates; and, to
secure an advantage, they will become wage laborers. A fit reward
for ignoble avarice, and insatiable pride.[*]
[*] The property fever is at its height among
writers and artists, and it is curious to see the complacency with
which our legislators and men of letters cherish this devouring
passion. An artist sells a picture, and then, the merchandise
delivered, assumes to prevent the purchaser from selling engravings,
under the pretext that he, the painter, in selling the original, has
not sold his design. A dispute arises between the amateur
and the artist in regard to both the fact and the law. M. Villemain,
the Minister of Public Instruction, being consulted as to this
particular case, finds that the painter is right; only the property
in the design should have been specially reserved in the contract:
so that, in reality, M. Villemain recognizes in the artist a power
to surrender his work and prevent its communication; thus
contradicting the legal axiom, One cannot give and keep at the
same time. A strange reasoner is M. Villemain! An ambiguous
principle leads to a false conclusion. Instead of rejecting the
principle, M. Villemain hastens to admit the conclusion. With him
the reductio ad absurdum is a convincing argument. Thus he
is made official defender of literary property, sure of being
understood and sustained by a set of loafers, the disgrace of
literature and the plague of public morals. Why, then, does M.
Villemain feel so strong an interest in setting himself up as the
chief of the literary classes, in playing for their benefit the rôle
of Trissotin in the councils of the State, and in becoming
the accomplice and associate of a band of profli-gates, -- soi-disant
men of letters, -- who for more than ten years have labored with
such deplorable success to ruin public spirit, and corrupt the heart
by warping the mind?
Contradictions of contradictions!" Genius is the great
leveller of the world," cries M. de Lamartine; "then
genius should be a proprietor. Literary property is the fortune of
democracy." This unfortunate poet thinks himself profound when
he is only puffed up. His eloquence consists solely in coupling
ideas which clash with each other: round square, dark sun,
fallen angel, priest and love, thought and poetry,
gunius and fortune, leveling and property. Let
us tell him, in reply, that his mind is a dark luminary; that each
of his discourses is a disordered harmony; and that all his
successes, whether in verse or prose, are due to the use of the
extraordinary in the treatment of the most ordinary subjects.
"Le National," in reply to the report of M. Lamartine,
endeavors to prove that literary property is of quite a different
nature from landed property; as if the nature of the right of
property depended on the object to which it is applied, and not on
the mode of its exercise and the condition of its existence. But the
main object of "Le National" is to please a class of
proprietors whom an extension of the right of property vexes: that
is why "Le National" opposes literary property. Will it
tell us, once for all, whether it is for equality or against it?
6. Objection. -- Property in occupied land passes to the
heirs of the occupant. "Why," say the authors, "should
not the work of genius pass in like manner to the heirs of the man
of genius?" M. Wolowski's reply: "Because the labor of the
first occupant is continued by his heirs, while the heirs of an
author neither change nor add to his works. In landed property, the
continuance of labor explains the continuance of the right."
Yes, when the labor is continued; but if the labor is not
continued, the right ceases. Thus is the right of possession,
founded on personal labor, recognized by M. Wolowski.
M. Wolowski decides in favor of granting to authors property in
their works for a certain number of years, dating from the day of
their first publication.
The succeeding lectures on patents on inventions were no less
instructive, although intermingled with shocking contradictions
inserted with a view to make the useful truths more palatable. The
necessity for brevity compels me to terminate this examination here,
not without regret.
Thus, of two eclectic jurists, who attempt a defence of property,
one is entangled in a set of dogmas without principle or method, and
is constantly talking nonsense; and the other designedly abandons
the cause of property, in order to present under the same name the
theory of individual possession. Was I wrong in claiming that
confusion reigned among legists, and ought I to be legally
prosecuted for having said that their science henceforth stood
convicted of falsehood, its glory eclipsed?
The ordinary resources of the law no longer sufficing, philosophy,
political economy, and the framers of systems have been consulted.
All the oracles appealed to have been discouraging.
The philosophers are no clearer to-day than at the time of the
eclectic efflorescence; nevertheless, through their mystical
apothegms, we can distinguish the words progress, unity,
association, solidarity, fraternity, which are certainly not
reassuring to proprietors. One of these philosophers, M. Pierre
Leroux, has written two large books, in which he claims to show by
all religious, legislative, and philosophical systems that, since
men are responsible to each other, equality of conditions is the
final law of society. It is true that this philosopher admits a kind
of property; but as he leaves us to imagine what property would
become in presence of equality, we may boldly class him with the
opponents of the right of increase.
I must here declare freely -- in order that I may not be suspected
of secret connivance, which is foreign to my nature -- that M.
Leroux has my full sympathy. Not that I am a believer in his
quasi-Pythagorean philosophy (upon this subject I should have more
than one observation to submit to him, provided a veteran covered
with stripes would not despise the remarks of a conscript); not that
I feel bound to this author by any special consideration for his
opposition to property. In my opinion, M. Leroux could, and even
ought to, state his position more explicitly and logically. But I
like, I admire, in M. Leroux, the antagonist of our philosophical
demigods, the demolisher of usurped reputations, the pitiless critic
of every thing that is respected because of its antiquity. Such is
the reason for my high esteem of M. Leroux; such would be the
principle of the only literary association which, in this century of
coteries, I should care to form. We need men who, like M. Leroux,
call in question social principles, -- not to diffuse doubt
concerning them, but to make them doubly sure; men who excite the
mind by bold negations, and make the conscience tremble by doctrines
of annihilation. Where is the man who does not shudder on hearing M.
Leroux exclaim, "There is neither a paradise nor a hell; the
wicked will not be punished, nor the good rewarded. Mortals! cease
to hope and fear; you revolve in a circle of appearances; humanity
is an immortal tree, whose branches, withering one after another,
feed with their débris the root which is always
young!" Where is the man who, on hearing this desolate
confession of faith, does not demand with terror, "Is it then
true that I am only an aggregate of elements organized by an unknown
force, an idea realized for a few moments, a form which passes and
disappears? Is it true that my mind is only a harmony, and my soul a
vortex? What is the ego? what is God? what is the sanction
of society?"
In former times, M. Leroux would have been regarded as a great
culprit, worthy only (like Vanini) of death and universal
execration. To-day, M. Leroux is fulfilling a mission of salvation,
for which, whatever he may say, he will be rewarded. Like those
gloomy invalids who are always talking of their approaching death,
and who faint when the doctor's opinion confirms their pretence, our
materialistic society is agitated and loses countenance while
listening to this startling decree of the philosopher, "Thou
shalt die!" Honor then to M. Leroux, who has revealed to us the
cowardice of the Epicureans; to M. Leroux, who renders new
philosophical solutions necessary! Honor to the anti-eclectic, to
the apostle of equality!
In his work on "Humanity," M. Leroux commences by
positing the necessity of property: "You wish to abolish
property; but do you not see that thereby you would annihilate man
and even the name of man? . . . You wish to abolish property; but
could you live without a body? I will not tell you that it is
necessary to support this body; . . . I will tell you that this body
is itself a species of property."
In order clearly to understand the doctrine of M. Leroux, it must
be borne in mind that there are three necessary and primitive forms
of society, -- communism, property, and that which to-day we
properly call association. M. Leroux rejects in the first place
communism, and combats it with all his might. Man is a personal and
free being, and therefore needs a sphere of independence and
individual activity. M. Leroux emphasizes this in adding: "You
wish neither family, nor country, nor property; therefore no more
fathers, no more sons, no more brothers. Here you are, related to no
being in time, and therefore without a name; here you are, alone in
the midst of a billion of men who to-day inhabit the earth. How do
you expect me to distinguish you in space in the midst of this
multitude?"
If man is indistinguishable, he is nothing. Now, he can be
distinguished, individualized, only through a devotion of certain
things to his use, -- such as his body, his faculties, and the tools
which he uses. "Hence," says M. Leroux, "the
necessity of appropriation;" in short, property.
But property on what condition? Here M. Leroux, after having
condemned communism, denounces in its turn the right of domain. His
whole doctrine can be summed up in this single proposition, -- Man
may be made by property a slave or a despot by turns.
That posited, if we ask M. Leroux to tell us under what system of
property man will be neither a slave nor a despot, but free, just,
and a citizen, M. Leroux replies in the third volume of his work on
"Humanity:" --
"There are three ways of destroying man's communion with his
fellows and with the universe: . . . 1. By separating man in time;
2. by separating him in space; 3. by dividing the land, or, in
general terms, the instruments of production; by attaching men to
things, by subordinating man to property, by making man a
proprietor."
This language, it must be confessed, savors a little too strongly
of the metaphysical heights which the author frequents, and of the
school of M. Cousin. Nevertheless, it can be seen, clearly enough it
seems to me, that M. Leroux opposes the exclusive appropriation of
the instruments of production; only he calls this non-appropriation
of the instruments of production a new method of
establishing property, while I, in accordance with all precedent,
call it a destruction of property. In fact, without the
appropriation of instruments, property is nothing.
"Hitherto. we have confined ourselves to pointing out and
combating the despotic features of property, by considering property
alone. We have failed to see that the despotism of property is a
correlative of the division of the human race; . . . that property,
instead of being organized in such a way as to facilitate the
unlimited communion of man with his fellows and with the universe,
has been, on the contrary, turned against this communion."
Let us translate this into commercial phraseology. In order to
destroy despotism and the inequality of conditions, men must cease
from competition and must associate their interests. Let employer
and employed (now enemies and rivals) become associates.
Now, ask any manufacturer, merchant, or capitalist, whether he
would consider himself a proprietor if he were to share his revenue
and profits with this mass of wage-laborers whom it is proposed to
make his associates.
"Family, property, and country are finite things, which ought
to be organized with a view to the infinite. For man is a finite
being, who aspires to the infinite. To him, absolute finiteness is
evil. The infinite is his aim, the indefinite his right."
Few of my readers would understand these hierophantic words, were
I to leave them unexplained. M. Leroux means, by this magnificent
formula, that humanity is a single immense society, which, in its
collective unity, represents the infinite; that every nation, every
tribe, every commune, and every citizen are, in different degrees,
fragments or finite members of the infinite society, the evil in
which results solely from individualism and privilege, -- in other
words, from the subordination of the infinite to the finite;
finally, that, to attain humanity's end and aim, each part has a
right to an indefinitely progressive development.
"All the evils which afflict the human race arise from caste.
The family is a blessing; the family caste (the nobility) is an
evil. Country is a blessing; the country caste (supreme,
domineering, conquering) is an evil; property (individual
possession) is a blessing; the property caste (the domain of
property of Pothier, Toullier, Troplong, &c.) is an evil."
