What is Property? Part 9

"Whereas, since labor so changes the form of a thing that the form and substance cannot be separated without destroying the thing itself, either society must be disinherited, or the laborer must lose the fruit of his labor; and

"Whereas, in every other case, property in raw material would give a t.i.tle to added improvements, minus their cost; and whereas, in this instance, property in improvements ought to give a t.i.tle to the princ.i.p.al;

"Therefore, the right of appropriation by labor shall never be admitted against individuals, but only against society."

In such a way do legislators always reason in regard to property.

The law is intended to protect men's mutual rights,--that is, the rights of each against each, and each against all; and, as if a proportion could exist with less than four terms, the law-makers always disregard the latter. As long as man is opposed to man, property offsets property, and the two forces balance each other; as soon as man is isolated, that is, opposed to the society which he himself represents, jurisprudence is at fault: Themis has lost one scale of her balance.

Listen to the professor of Rennes, the learned Toullier:--

"How could this claim, made valid by occupation, become stable and permanent property, which might continue to stand, and which might be reclaimed after the first occupant had relinquished possession?

"Agriculture was a natural consequence of the multiplication of the human race, and agriculture, in its turn, favors population, and necessitates the establishment of permanent property; for who would take the trouble to plough and sow, if he were not certain that he would reap?"

To satisfy the husbandman, it was sufficient to guarantee him possession of his crop; admit even that he should have been protected in his right of occupation of land, as long as he remained its cultivator. That was all that he had a right to expect; that was all that the advance of civilization demanded. But property, property! the right of escheat over lands which one neither occupies nor cultivates,--who had authority to grant it? who pretended to have it?

"Agriculture alone was not sufficient to establish permanent property; positive laws were needed, and magistrates to execute them; in a word, the civil State was needed.

"The multiplication of the human race had rendered agriculture necessary; the need of securing to the cultivator the fruit of his labor made permanent property necessary, and also laws for its protection. So we are indebted to property for the creation of the civil State."

Yes, of our civil State, as you have made it; a State which, at first, was despotism, then monarchy, then aristocracy, today democracy, and always tyranny.

"Without the ties of property it never would have been possible to subordinate men to the wholesome yoke of the law; and without permanent property the earth would have remained a vast forest. Let us admit, then, with the most careful writers, that if transient property, or the right of preference resulting from occupation, existed prior to the establishment of civil society, permanent property, as we know it to-day, is the work of civil law. It is the civil law which holds that, when once acquired, property can be lost only by the action of the proprietor, and that it exists even after the proprietor has relinquished possession of the thing, and it has fallen into the hands of a third party.

"Thus property and possession, which originally were confounded, became through the civil law two distinct and independent things; two things which, in the language of the law, have nothing whatever in common. In this we see what a wonderful change has been effected in property, and to what an extent Nature has been altered by the civil laws."

Thus the law, in establishing property, has not been the expression of a psychological fact, the development of a natural law, the application of a moral principle. It has literally CREATED a right outside of its own province. It has realized an abstraction, a metaphor, a fiction; and that without deigning to look at the consequences, without considering the disadvantages, without inquiring whether it was right or wrong.

It has sanctioned selfishness; it has indorsed monstrous pretensions; it has received with favor impious vows, as if it were able to fill up a bottomless pit, and to satiate h.e.l.l! 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 mult.i.tude 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 a.s.sign 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 pa.s.sed unnoticed.

They did not foresee, these ingenuous legislators, that if property is retainable by intent alone--_nudo animo_--it carries with it the right to let, to lease, to loan at interest, to profit by exchange, to settle annuities, and to levy a tax on a field which intent reserves, while the body is busy elsewhere.

They did not foresee, these fathers of our jurisprudence, that, if the right of inheritance is any thing other than Nature's method of preserving equality of wealth, families will soon become victims of the most disastrous exclusions; and society, pierced to the heart by one of its most sacred principles, will come to its death through opulence and misery. [12]

Under whatever form of government we live, it can always be said that _le mort saisit le vif;_ that is, that inheritance and succession will last for ever, whoever may be the recognized heir. But the St. Simonians wish the heir to be designated by the magistrate; others wish him to be chosen by the deceased, or a.s.sumed by the law to be so chosen: the essential point is that Nature's wish be satisfied, so far as the law of equality allows.

To-day the real controller of inheritance is chance or caprice; now, in matters of legislation, chance and caprice cannot be accepted as guides.

It is for the purpose of avoiding the manifold disturbances which follow in the wake of chance that Nature, after having created us equal, suggests to us the principle of heredity; which serves as a voice by which society asks us to choose, from among all our brothers, him whom we judge best fitted to complete our unfinished work.

They did not foresee.... But why need I go farther?

The consequences are plain enough, and this is not the time to criticise the whole Code.

The history of property among the ancient nations is, then, simply a matter of research and curiosity. It is a rule of jurisprudence that the fact does not substantiate the right. Now, property is no exception to this rule: then the universal recognition of the right of property does not legitimate the right of property. Man is mistaken as to the const.i.tution 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 cla.s.ses; 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 G.o.ds; that they accompanied with religious ceremonies the work of part.i.tioning the land and appraising their goods? The variety of the forms of privilege does not sanction injustice. The faith of Jupiter, the proprietor, [13] proves no more against the equality of citizens, than do the mysteries of Venus, the wanton, against conjugal chast.i.ty.

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 G.o.ds 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 inst.i.tutions."...

Yes; as monarchy is the most glorious.

"The original cause of man's prosperity upon earth."

Because justice was supposed to be its principle.

"Property became the legitimate end of his ambition, the hope of his existence, the shelter of his family; in a word, the corner-stone of the domestic dwelling, of communities, and of the political State."

Possession alone produced all that.