hostem aeterna auctertas esto.
Against the enemy, revendication is eternal.
OF THE TWELVE TABLES.
CONSIDERED AS A NATURAL RIGHT. —
AND CIVIL LAW AS EFFICIENT BASES OF PROPERTY. DEFINITIONS.
law defined property as the right to use and abuse one's own
within the limits of the law — jus utendi et abutendi
re sua, guatenus juris ratio patitur. A justification of
the word abuse has been attempted, on the ground that
it signifies, not senseless and immoral abuse, but only absolute
distinction! invented as an excuse for property, and powerless
against the frenzy of possession, which it neither prevents nor
represses. The proprietor may, if he chooses, allow his crops
to rot under foot; sow his field with salt; milk his cows on
the sand; change his vineyard into a desert, and use his vegetable-garden
as a park: do these things constitute abuse, or not? 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 Napoleon, article 544: "Property is
the right to enjoy and dispose of things in the most absolute
manner, provided we
do not overstep the limits prescribed by the laws and regulations."
These two definitions do not differ from that of the Roman law:
all give the proprietor an absolute right over a thing; and as
for the restriction imposed by the code, — provided we do
not overstep the limits prescribed by the laws and regulations, — its
object is not to limit property, but to prevent the domain of
one proprietor from interfering with that of another. That is
a confirmation of the principle, not a limitation of it.
different kinds of property: 1. Property pure and simple, the
dominant and seigniorial power over a
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.
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 thejus 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;
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 actionpossessoire. 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.
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,
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 Explique" 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?
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 chateau, 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;
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
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
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
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
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.
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
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.
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,
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
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
Certain classes do not relish investigation into
the pretended titles to property, and its fabulous and perhaps
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 Proudhon1 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
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.
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.
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.
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.
to Cicero, no one has a right to more than he needs: such is
the true interpretation of his famous axiom — suum
quidque cujusque sit, 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
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
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.
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
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.
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;
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;
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
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.
talk very gravely about the conditions of property, . . . as
if it was our province to decide what
. . . 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
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.
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
needs, and all feel it their duty to satisfy those needs
by any means at their command."
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,
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."
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
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
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."
equivocation, not justified by the necessity for generalization!
The word property has two meanings:
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.
the right of absolute control over a thing by a free and intelligent
It is used in this sense by writers on jurisprudence.
in the phrase, iron acquires the property of a magnet,
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.
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
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
But why did not this ideologist perceive that
man is not proprietor even of his own faculties? Man has powers,
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
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
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.
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.
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
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
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
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
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."
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?
I have followed M. Cousin so far as to imitate
his style, and I am ashamed of it. Do we need such high-sounding
sonorous phrases, to say such simple things? 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.
philosophy views things from too lofty a standpoint, and is
not sufficiently practical; perhaps from the exalted summit
of speculation men seem so small to the metaphysician that he
cannot distinguish between them; perhaps, indeed, the equality
of conditions is one of those principles which are very true
and sublime as generalities, but which it would be ridiculous
and even dangerous to attempt to rigorously apply to the customs
of life and to social transactions. Undoubtedly, this is a case
which calls for imitation of the wise reserve of moralists and
jurists, who warn us against carrying things to extremes, and
who advise us to suspect every definition; because there is not
one, they say, which cannot be utterly destroyed by developing
its disastrous results — Omnis definitio in jure civili periculosa
est: parum est enim ut non subverti possit. 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.
It is never my intention to surprise my reader.
I detest, as I do death, the man who employs subterfuge in
his words and conduct.
From the first page of this book, I have expressed myself so
plainly and decidedly that all can see the tendency of my thought
and hopes; and they will do me the justice to say, that it would
be difficult to exhibit more frankness and more boldness at the
same time. I do not hesitate to declare that the time is not
far distant when this reserve, now so much admired in philosophers — this
happy medium so strongly recommended by professors of moral and
political science — will be regarded as the disgraceful feature
of a science without principle, and as the seal of its reprobation.
In legislation and morals, as well as in geometry, axioms are
absolute, definitions are certain; and all the results of a principle
are to be accepted, provided they are logically deduced. Deplorable
pride! We know nothing of our nature, and we charge our blunders
to it; and, in a fit of unaffected ignorance, cry out, "The
truth is in doubt, the best definition defines nothing!" We
shall know some time whether this distressing uncertainty of
jurisprudence arises from the nature of its investigations, or
from our prejudices; whether, to explain social phenomena, it
is not enough to change our hypothesis, as did Copernicus when
he reversed the system of Ptolemy.
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
the Foundation and Sanction
Pothier seems to think that property, like royalty, exists by
divine right. He traces back its origin to God himself — ab
Jove principium. He begins in this way: —
is the absolute ruler of the universe and all that it contains:
Domini est terra et plenitudo ejus, orbis et universi
qui habitant in eo. For the human race he has created the
earth and all its creatures, and has given it a control over
only to his own. `Thou madest him to have dominion over the works
of thy hands; thou hast put all things under his feet,' says
the Psalmist. God accompanied this gift with these words, addressed
to our first parents after the creation: `Be fruitful, and multiply
and replenish the earth,'" &c.
After this magnificent introduction, who would refuse to believe
the human race to be an immense family living in brotherly union,
and under the protection of a venerable father? But, heavens!
are brothers enemies? Are fathers unnatural, and children prodigal?
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! Multiply, he tells us through his interpreter,
Pothier. Ah, learned Pothier! that is as easy to do as to say;
but you must give moss to the bird for its nest.
"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."
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. So the Arabs have always understood it; and
so, according to Caesar and Tacitus, the Germans formerly held. "The
Arabs," says M. de Sismondi, "who admit a man's property
in the flocks which he has raised, do not refuse the crop to
him who planted the seed; but they do not see why another, his
equal, should not have a right to plant in his turn.
The inequality which results from the pretended
right of the first occupant seems to them to be based on no
principle of justice;
and when all the land falls into the hands of a certain number
of inhabitants, there results a monopoly in their favor against
the rest of the nation, to which they do not wish to submit."
Well, they have shared the land. I admit that therefrom results
a more powerful organization of labor; and that this method of
distribution, fixed and durable, is advantageous to production:
but how could this division give to each a transferable right
of property in a thing to which all had an inalienable right
of possession? In the terms of jurisprudence, this metamorphosis
from possessor to proprietor is legally impossible; it implies
in the jurisdiction of the courts the union of possessoire and petitoire;
and the mutual concessions of those who share the land are nothing
less than traffic in natural rights. The original
cultivators of the land, who were also the original makers of
the law, were not as learned as our legislators, I admit; and
had they been, they could not have done worse: they did not foresee
the consequences of the transformation of the right of private
possession into the right of absolute property. But why have
not those, who in later times have established the distinction
between jus in re and jus ad rem, applied it to the principle
of property itself?
Let me call the attention of the writers on jurisprudence to
their own maxims.
of property, provided it can have a cause, can have but one — Dominium
non potest nisi ex una causa contingere. I can possess
by several titles; I can become proprietor by only
one — Non ut ex pluribus causis idem nobis deberi potest,
ita ex pluribus causis idem potest nostrum esse. The field
which I have cleared, which I cultivate, on which I have built
which supports myself, my family, and my livestock, I can possess:
1st. As the original occupant; 2d. As a laborer; 3d. By virtue
of the social contract which assigns it to me as my share.
But none of these titles confer upon me the right
of property. For, if I attempt to base it upon occupancy, society
can reply, "I
am the original occupant." If I appeal to my labor, it will
say, "It is only on that condition that you possess." If
I speak of agreements, it will respond, "These agreements
establish only your right of use." Such, however, are the
only titles which proprietors advance. They never have been able
to discover any others. Indeed, every right — it is Pothier who
says it — supposes a producing cause in the person who enjoys
it; but in man who lives and dies, in this son of earth who passes
away like a shadow, there exists, with respect to external things,
only titles of possession, not one title of property. Why, then,
has society recognized a right injurious to itself, where there
is no producing cause? Why, in according possession, has it also
conceded property? Why has the law sanctioned this abuse of power?
The German Ancillon replies thus: —
"Some philosophers pretend that man, in
employing his forces upon a natural object, — say a field or
a tree, — acquires a right
only to the improvements which he makes, to the form which he
gives to the object, not to the object itself. Useless distinction!
If the form could be separated from the object, perhaps there
would be room for question; but as this is almost always impossible,
the application of man's strength to the different parts of the
visible world is the foundation of the right of property, the
primary origin of riches."
Vain pretext! If the form cannot be separated from the object,
nor property from possession, possession must be shared; in any
case, society reserves the right to fix the conditions of property.
Let us suppose that an appropriated farm yields a gross income
of ten thousand francs; and, as very seldom happens, that this
farm cannot be divided. Let us suppose farther that, by economical
calculation, the annual expenses of a family are three thousand
francs: the possessor of this farm should be obliged to guard
his reputation as a good father of a family, by paying to society
ten thousand francs, — less the total costs of cultivation, and
the three thousand francs required for the maintenance of his
family. This payment is not rent, it is an indemnity.
What sort of justice is it, then, which makes such laws as this: —
"Whereas, since labor so changes the form
of a thing that the form and substance cannot be separated
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
In such a way do legislators always reason in regard to property.
The law is intended to protect men's mutual rights, — that is,
the rights of each against each, and each against all; and, as
if a proportion could exist with less than four terms, the law-makers
always disregard the latter. As long as man is opposed to man,
property offsets property, and the two forces balance each other;
as soon as man is isolated, that is, opposed to the society which
he himself represents, jurisprudence is at fault: Themis has
lost one scale of her balance.
Listen to the professor of Rennes, the learned Toullier: —
"How could this claim, made valid by occupation,
become stable and permanent property, which might continue
and which might be reclaimed after the first occupant had relinquished
"Agriculture was a natural consequence of
the multiplication of the human race, and agriculture, in its
turn, favors population,
and necessitates the establishment of permanent property; for
who would take the trouble to plough and sow, if he were not
certain that he would reap?"
To satisfy the husbandman, it was sufficient to guarantee him
possession of his crop; admit even that he should have been protected
in his right of occupation of land, as long as he remained its
cultivator. That was all that he had a right to expect; that
was all that the advance of civilization demanded. But property,
property! the right of escheat over lands which one neither occupies
nor cultivates, — who had authority to grant it? who pretended
to have it?
"Agriculture alone was not sufficient to
establish permanent property; positive laws were needed, and
magistrates to execute
them; in a word, the civil State was needed.
"The multiplication of the human race had
rendered agriculture necessary; the need of securing to the
cultivator the fruit of
his labor made permanent property necessary, and also laws for
its protection. So we are indebted to property for the creation
of the civil State."
Yes, of our civil State, as you have made it; a State which,
at first, was despotism, then monarchy, then aristocracy, today
democracy, and always tyranny.
"Without the ties of property it never would
have been possible to subordinate men to the wholesome yoke
of the law;
and without permanent property the earth would have remained
a vast forest. Let us admit, then, with the most careful writers,
that if transient property, or the right of preference resulting
from occupation, existed prior to the establishment of civil
society, permanent property, as we know it to-day, is the work
of civil law. It is the civil law which holds that, when once
acquired, property can be lost only by the action of the proprietor,
and that it exists even after the proprietor has relinquished
possession of the thing, and it has fallen into the hands of
a third party.
"Thus property and possession, which originally
were confounded, became through the civil law two distinct
and independent things;
two things which, in the language of the law, have nothing whatever
in common. In this we see what a wonderful change has been effected
in property, and to what an extent Nature has been altered by
the civil laws."
the law, in establishing property, has not been the expression
of a psychological fact, the development of a natural law, the
application of a moral principle. It has literally created a
right outside of its own province. It has realized an abstraction,
a metaphor, a fiction; and that without deigning to look at the
consequences, without considering the disadvantages, without
inquiring whether it was right or wrong.
It has sanctioned selfishness; it has indorsed monstrous pretensions;
it has received with favor impious vows, as if it were able to
fill up a bottomless pit, and to satiate hell! Blind law; the
law of the ignorant man; a law which is not a law; the voice
of discord, deceit, and blood! This it is which, continually
revived, reinstated, rejuvenated, restored, re- enforced — as
the palladium of society — has troubled the consciences of the
people, has obscured the minds of the masters, and has induced
all the catastrophes which have befallen nations.
This it is which Christianity has condemned, but which its ignorant
ministers deify; who have as little desire to study Nature and
man, as ability to read their Scriptures.
But, indeed, what guide did the law follow in creating the domain
of property? What principle directed it? What was its standard?
Would you believe it? It was equality.
Agriculture was the foundation of territorial possession, and
the original cause of property. It was of no use to secure to
the farmer the fruit of his labor, unless the means of production
were at the same time secured to him. To fortify the weak against
the invasion of the strong, to suppress spoliation and fraud,
the necessity was felt of establishing between possessors permanent
lines of division, insuperable obstacles. Every year saw the
people multiply, and the cupidity of the husbandman increase:
it was thought best to put a bridle on ambition by setting boundaries
which ambition would in vain attempt to overstep. Thus the soil
came to be appropriated through need of the equality which is
essential to public security and peaceable possession. Undoubtedly
the division was never geographically equal; a multitude of rights,
some founded in Nature, but wrongly interpreted and still more
wrongly applied, inheritance, gift, and exchange; others, like
the privileges of birth and position, the illegitimate creations
of ignorance and brute force, — all operated to prevent absolute
equality. But, nevertheless, the principle remained the same:
equality had sanctioned possession; equality sanctioned property.
The husbandman needed each year a field to sow; what more convenient
and simple arrangement for the barbarians, — instead of indulging
in annual quarrels and fights, instead of continually moving
their houses, furniture, and families from spot to spot, — than
to assign to each individual a fixed and inalienable estate?
It was not
right that the soldier, on returning from an expedition, should
find himself dispossessed on account of the services which
he had just rendered to his country; his estate ought to be restored
to him. It became, therefore, customary to retain property by
intent alone — nudo animo; it could be sacrificed only with
the consent and by the action of the proprietor.
It was necessary that the equality in the division should be
kept up from one generation to another, without a new distribution
of the land upon the death of each family; it appeared therefore
natural and just that children and parents, according to the
degree of relationship which they bore to the deceased, should
be the heirs of their ancestors. Thence came, in the first place,
the feudal and patriarchal custom of recognizing only one heir;
then, by a quite contrary application of the principle of equality,
the admission of all the children to a share in their father's
estate, and, very recently also among us, the definitive abolition
of the right of primogeniture.
But what is there in common between these rude outlines of instinctive
organization and the true social science? How could these men,
who never had the faintest idea of statistics, valuation, or
political economy, furnish us with principles of legislation?
"The law," says a modern writer on jurisprudence, "is
the expression of a social want, the declaration of a fact: the
legislator does not make it, he declares it. `This definition
is not exact. The law is a method by which social wants must
be satisfied; the people do not vote it, the legislator does
not express it: the savant discovers and formulates it. But in
fact, the law, according to M. Ch. Comte, who has devoted half
a volume to its definition, was in the beginning only the expression
of a want, and the indication of the means of supplying it;
and up to this time it has been nothing else. The legists — with mechanical
fidelity, full of obstinacy, enemies of philosophy, buried in
literalities — have always mistaken for the last word of science
that which was only the inconsiderate aspiration of men who,
to be sure, were well-meaning, but wanting in foresight.
They did not foresee, these old founders of the domain of property,
that the perpetual and absolute right to retain one's estate, — a
right which seemed to them equitable, because it was common, — involves
the right to transfer, sell, give, gain, and lose it; that it
tends, consequently, to nothing less than the destruction of
that equality which they established it to maintain. And though
they should have foreseen it, they disregarded it; the present
want occupied their whole attention, and, as ordinarily happens
in such cases, the disadvantages were at first scarcely perceptible,
and they passed unnoticed.
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.2
form of government we live, it can always be said that le
mort saisit le vif; that is, that inheritance
and succession will last for ever, whoever may be the recognized
heir. But the St. Simonians wish the heir to be designated by
the magistrate; others wish him to be chosen by the deceased,
or assumed by the law to be so chosen: the essential point is
that Nature's wish be satisfied, so far as the law of equality
To-day the real controller of inheritance is chance or caprice;
now, in matters of legislation, chance and caprice cannot be
accepted as guides. It is for the purpose of avoiding the manifold
disturbances which follow in the wake of chance that Nature,
after having created us equal, suggests to us the principle of
heredity; which serves as a voice by which society asks us to
choose, from among all our brothers, him whom we judge best fitted
to complete our unfinished work.
They did not foresee. . . . But why need I go farther?
The consequences are plain enough, and this is not the time
to criticise the whole Code.
The history of property among the ancient nations is, then,
simply a matter of research and curiosity. It is a rule of jurisprudence
that the fact does not substantiate the right. Now, property
is no exception to this rule: then the universal recognition
of the right of property does not legitimate the right of property.
Man is mistaken as to the constitution of society, the nature
of right, and the application of justice; just as he was mistaken
regarding the cause of meteors and the movement of the heavenly
bodies. His old opinions cannot be taken for articles of faith.
Of what consequence is it to us that the Indian race was divided
into four classes; that, on the banks of the Nile and the Ganges,
blood and position formerly determined the distribution of the
land; that the Greeks and Romans placed property under the protection
of the gods; that they accompanied with religious ceremonies
the work of partitioning the land and appraising their goods?
The variety of the forms of privilege does not sanction injustice.
The faith of Jupiter, the proprietor,3 proves no more against
the equality of citizens, than do the mysteries of Venus, the
wanton, against conjugal chastity.
The authority of the human race is of no effect as evidence
in favor of the right of property, because this right, resting
of necessity upon equality, contradicts its principle; the decision
of the religions which have sanctioned it is of no effect, because
in all ages the priest has submitted to the prince, and the gods
have always spoken as the politicians desired; the social advantages,
attributed to property, cannot be cited in its behalf, because
they all spring from the principle of equality of possession.
What means, then, this dithyramb upon property?
"The right of property is the most important of human institutions." .
Yes; as monarchy is the most glorious.
"The original cause of man's prosperity
Because justice was supposed to be its principle.
became the legitimate end of his ambition, the hope of his
existence, the shelter of his family;
in a word,
the corner-stone of the domestic dwelling, of communities,
and of the political State."
Possession alone produced all that.
"Eternal principle, — "
Property is eternal, like every negation, —
"Of all social and civil institutions."
For that reason, every institution and every law based on property
"It is a boon as precious as liberty."
For the rich proprietor.
"In fact, the cause of the cultivation of
the habitable earth."
If the cultivator ceased to be a tenant, would the land be worse
"The guarantee and the morality of labor."
Under the regime of property, labor is not a condition, but
"The application of justice."
What is justice without equality of fortunes? A balance with
Corner-stone of all which is, stumbling-block of all which ought
to be, — such is property.
To sum up and conclude: —
does occupation lead to equality, it prevents property. For,
since every man, from the fact of his existence, has the
right of occupation, and, in order to live, must have material
for cultivation on which he may labor; and since, on the other
hand, the number of occupants varies continually with the births
and deaths, — it follows that the quantity of material which each
laborer may claim varies with the number of occupants; consequently,
that occupation is always subordinate to population. Finally,
that, inasmuch as possession, in right, can never remain fixed,
it is impossible, in fact, that it can ever become property.
Every occupant is, then, necessarily a possessor or usufructuary, — a
function which excludes proprietorship. Now, this is the right
of the usufructuary: he is responsible for the thing entrusted
to him; he must use it in conformity with general utility, with
a view to its preservation and development; he has no power to
transform it, to diminish it, or to change its nature; he cannot
so divide the usufruct that another shall perform the labor while
he receives the product. In a word, the usufructuary is under
the supervision of society, submitted to the condition of labor
and the law of equality.
Thus is annihilated the Roman definition of property — the
right of use and abuse — an immorality born of violence, the most monstrous
pretension that the civil laws ever sanctioned. Man receives
his usufruct from the hands of society, which alone is the permanent
possessor. The individual passes away, society is deathless.
What a profound disgust fills my soul while discussing such
simple truths ! Do we doubt these things to-day? Will it be necessary
to again take arms for their triumph? And can force, in default
of reason, alone introduce them into our laws?
All have an equal right of occupancy.
The amount occupied being measured, not by the will, but by
the variable conditions of space and number, property cannot
This no code has ever expressed; this no constitution can admit!
These are axioms which the civil law and the law of nations deny!
. . . . .
But I hear the exclamations of the partisans
of another system: "Labor,
labor! that is the basis of property!"
Reader, do not be deceived. This new basis of property is worse
than the first, and I shall soon have to ask your pardon for
having demonstrated things clearer, and refuted pretensions more
unjust, than any which we have yet considered.
Proudhon here referred to is J. B. V. Proudhon; a distinguished
French jurist, and distant relative of the Translator.
especially, the simplicity of our ancestors appears in all
its rudeness. After having made first cousins
heirs, where there were no legitimate children, they
could not so divide the property between two different
branches as to prevent the simultaneous existence of
extreme wealth and extreme poverty in the same family.
For example: —
dying, leaves two sons, Peter and John, heirs of his
fortune: James's property is divided equally between
them. But Peter has only one daughter, while John, his
brother, leaves six sons. It is clear that, to be true
to the principle of equality, and at the same time to
that of heredity, the two estates must be divided in
seven equal portions among the children of Peter and
John; for otherwise a stranger might marry Peter's daughter,
and by this alliance half of the property of James, the
grandfather, would be transferred to another family,
which is contrary to the principle of heredity. Furthermore,
John's children would be poor on account of their number,
while their cousin, being an only child, would be rich,
which is contrary to the principle of equality. If we
extend this combined application of two principles apparently
opposed to each other, we shall become convinced that
the right of succession, which is assailed with so little
wisdom in our day, is no obstacle to the maintenance
Giraud, "Investigations into the Right of Property
among the Romans."
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