What is Property? Part 11

But, no; each one cannot do these things. I hear it proclaimed on all sides, "Glory to labor and industry! to each according to his capacity; to each capacity according to its results!" And I see three-fourths of the human race again despoiled, the labor of a few being a scourge to the labor of the rest.

"The problem is solved," exclaims M. Hennequin. "Property, the daughter of labor, can be enjoyed at present and in the future only under the protection of the laws. It has its origin in natural law; it derives its power from civil law; and from the union of these two ideas, LABOR and PROTECTION, positive legislation results."...

Ah! THE PROBLEM IS SOLVED! PROPERTY IS THE DAUGHTER OF LABOR! What, then, is the right of accession, and the right of succession, and the right of donation, &c., if not the right to become a proprietor by simple occupancy? What are your laws concerning the age of majority, emanc.i.p.ation, guardians.h.i.+p, and interdiction, if not the various conditions by which he who is already a laborer gains or loses the right of occupancy; that is, property?

Being unable, at this time, to enter upon a detailed discussion of the Code, I shall content myself with examining the three arguments oftenest resorted to in support of property. 1. APPROPRIATION, or the formation of property by possession; 2. THE CONSENT OF MANKIND; 3. PRESCRIPTION. I shall then inquire into the effects of labor upon the relative condition of the laborers and upon property.

% 1.--The Land cannot be Appropriated.

"It would seem that lands capable of cultivation ought to be regarded as natural wealth, since they are not of human creation, but Nature's gratuitous gift to man; but inasmuch as this wealth is not fugitive, like the air and water,--inasmuch as a field is a fixed and limited s.p.a.ce which certain men have been able to appropriate, to the exclusion of all others who in their turn have consented to this appropriation,--the land, which was a natural and gratuitous gift, has become social wealth, for the use of which we ought to pay."--SAY: POLITICAL ECONOMY.

Was I wrong in saying, at the beginning of this chapter, that the economists are the very worst authorities in matters of legislation and philosophy? It is the FATHER of this cla.s.s of men who clearly states the question, How can the supplies of Nature, the wealth created by Providence, become private property? and who replies by so gross an equivocation that we scarcely know which the author lacks, sense or honesty. What, I ask, has the fixed and solid nature of the earth to do with the right of appropriation? I can understand that a thing LIMITED and STATIONARY, like the land, offers greater chances for appropriation than the water or the suns.h.i.+ne; that it is easier to exercise the right of domain over the soil than over the atmosphere: but we are not dealing with the difficulty of the thing, and Say confounds the right with the possibility. We do not ask why the earth has been appropriated to a greater extent than the sea and the air; we want to know by what right man has appropriated wealth WHICH HE DID NOT CREATE, AND WHICH NATURE GAVE TO HIM GRATUITOUSLY.

Say, then, did not solve the question which he asked. But if he had solved it, if the explanation which he has given us were as satisfactory as it is illogical, we should know no better than before who has a right to exact payment for the use of the soil, of this wealth which is not man's handiwork. Who is ent.i.tled to the rent of the land? The producer of the land, without doubt. Who made the land? G.o.d. Then, proprietor, retire!

But the creator of the land does not sell it: he gives it; and, in giving it, he is no respecter of persons. Why, then, are some of his children regarded as legitimate, while others are treated as b.a.s.t.a.r.ds?

If the equality of shares was an original right, why is the inequality of conditions a posthumous right?

Say gives us to understand that if the air and the water were not of a FUGITIVE nature, they would have been appropriated. Let me observe in pa.s.sing that this is more than an hypothesis; it is a reality. Men have appropriated the air and the water, I will not say as often as they could, but as often as they have been allowed to.

The Portuguese, having discovered the route to India by the Cape of Good Hope, pretended to have the sole right to that route; and Grotius, consulted in regard to this matter by the Dutch who refused to recognize this right, wrote expressly for this occasion his treatise on the "Freedom of the Seas," to prove that the sea is not liable to appropriation.

The right to hunt and fish used always to be confined to lords and proprietors; to-day it is leased by the government and communes to whoever can pay the license-fee and the rent. To regulate hunting and fis.h.i.+ng is an excellent idea, but to make it a subject of sale is to create a monopoly of air and water.

What is a pa.s.sport? A universal recommendation of the traveller's person; a certificate of security for himself and his property. The treasury, whose nature it is to spoil the best things, has made the pa.s.sport a means of espionage and a tax. Is not this a sale of the right to travel?

Finally, it is permissible neither to draw water from a spring situated in another's grounds without the permission of the proprietor, because by the right of accession the spring belongs to the possessor of the soil, if there is no other claim; nor to pa.s.s a day on his premises without paying a tax; nor to look at a court, a garden, or an orchard, without the consent of the proprietor; nor to stroll in a park or an enclosure against the owner's will: every one is allowed to shut himself up and to fence himself in. All these prohibitions are so many positive interdictions, not only of the land, but of the air and water. We who belong to the proletaire cla.s.s: property excommunicates us! _Terra, et aqua, et aere, et igne interdicti sumus_.

Men could not appropriate the most fixed of all the elements without appropriating the three others; since, by French and Roman law, property in the surface carries with it property from zenith to nadir--_Cujus est solum, ejus est usque ad caelum_. Now, if the use of water, air, and fire excludes property, so does the use of the soil. This chain of reasoning seems to have been presented by M. Ch. Comte, in his "Treatise on Property," chap. 5.

"If a man should be deprived of air for a few moments only, he would cease to exist, and a partial deprivation would cause him severe suffering; a partial or complete deprivation of food would produce like effects upon him though less suddenly; it would be the same, at least in certain climates! were he deprived of all clothing and shelter.... To sustain life, then, man needs continually to appropriate many different things. But these things do not exist in like proportions. Some, such as the light of the stars, the atmosphere of the earth, the water composing the seas and oceans, exist in such large quant.i.ties that men cannot perceive any sensible increase or diminution; each one can appropriate as much as his needs require without detracting from the enjoyment of others, without causing them the least harm. Things of this sort are, so to speak, the common property of the human race; the only duty imposed upon each individual in this regard is that of infringing not at all upon the rights of others."

Let us complete the argument of M. Ch. Comte. A man who should be prohibited from walking in the highways, from resting in the fields, from taking shelter in caves, from lighting fires, from picking berries, from gathering herbs and boiling them in a bit of baked clay,--such a man could not live. Consequently the earth--like water, air, and light--is a primary object of necessity which each has a right to use freely, without infringing another's right. Why, then, is the earth appropriated? M. Ch. Comte's reply is a curious one. Say pretends that it is because it is not FUGITIVE; M. Ch. Comte a.s.sures us that it is because it is not INFINITE. The land is limited in amount. Then, according to M. Ch. Comte, it ought to be appropriated. It would seem, on the contrary, that he ought to say, Then it ought not to be appropriated. Because, no matter how large a quant.i.ty of air or light any one appropriates, no one is damaged thereby; there always remains enough for all. With the soil, it is very different. Lay hold who will, or who can, of the sun's rays, the pa.s.sing breeze, or the sea's billows; he has my consent, and my pardon for his bad intentions. But let any living man dare to change his right of territorial possession into the right of property, and I will declare war upon him, and wage it to the death!

M. Ch. Comte's argument disproves his position. "Among the things necessary to the preservation of life," he says, "there are some which exist in such large quant.i.ties that they are inexhaustible; others which exist in lesser quant.i.ties, and can satisfy the wants of only a certain number of persons. The former are called COMMON, the latter PRIVATE."

This reasoning is not strictly logical. Water, air, and light are COMMON things, not because they are INEXHAUSTIBLE, but because they are INDISPENSABLE; and so indispensable that for that very reason Nature has created them in quant.i.ties almost infinite, in order that their plentifulness might prevent their appropriation. Likewise the land is indispensable to our existence,--consequently a common thing, consequently insusceptible of appropriation; but land is much scarcer than the other elements, therefore its use must be regulated, not for the profit of a few, but in the interest and for the security of all.

In a word, equality of rights is proved by equality of needs. Now, equality of rights, in the case of a commodity which is limited in amount, can be realized only by equality of possession. An agrarian law underlies M. Ch. Comte's arguments.

From whatever point we view this question of property--provided we go to the bottom of it--we reach equality. I will not insist farther on the distinction between things which can, and things which cannot, be appropriated. On this point, economists and legists talk worse than nonsense. The Civil Code, after having defined property, says nothing about susceptibility of appropriation; and if it speaks of things which are in THE MARKET, it always does so without enumerating or describing them. However, light is not wanting. There are some few maxims such as these: _Ad reges potestas omnium pertinet, ad singulos proprietas; Omnia rex imperio possidet, singula dominio_. Social sovereignty opposed to private property!--might not that be called a prophecy of equality, a republican oracle? Examples crowd upon us: once the possessions of the church, the estates of the crown, the fiefs of the n.o.bility were inalienable and imprescriptible. If, instead of abolis.h.i.+ng this privilege, the Const.i.tuent had extended it to every individual; if it had declared that the right of labor, like liberty, can never be forfeited,--at that moment the revolution would have been consummated, and we could now devote ourselves to improvement in other directions.

% 2.--Universal Consent no Justification of Property.

In the extract from Say, quoted above, it is not clear whether the author means to base the right of property on the stationary character of the soil, or on the consent which he thinks all men have granted to this appropriation. His language is such that it may mean either of these things, or both at once; which ent.i.tles us to a.s.sume that the author intended to say, "The right of property resulting originally from the exercise of the will, the stability of the soil permitted it to be applied to the land, and universal consent has since sanctioned this application."

However that may be, can men legitimate property by mutual consent? I say, no. Such a contract, though drafted by Grotius, Montesquieu, and J.

J. Rousseau, though signed by the whole human race, would be null in the eyes of justice, and an act to enforce it would be illegal. Man can no more give up labor than liberty. Now, to recognize the right of territorial property is to give up labor, since it is to relinquish the means of labor; it is to traffic in a natural right, and divest ourselves of manhood.

But I wish that this consent, of which so much is made, had been given, either tacitly or formally. What would have been the result? Evidently, the surrenders would have been reciprocal; no right would have been abandoned without the receipt of an equivalent in exchange. We thus come back to equality again,--the sine qua non of appropriation; so that, after having justified property by universal consent, that is, by equality, we are obliged to justify the inequality of conditions by property. Never shall we extricate ourselves from this dilemma. Indeed, if, in the terms of the social compact, property has equality for its condition, at the moment when equality ceases to exist, the compact is broken and all property becomes usurpation. We gain nothing, then, by this pretended consent of mankind.

% 3.--Prescription Gives No t.i.tle to Property.

The right of property was the origin of evil on the earth, the first link in the long chain of crimes and misfortunes which the human race has endured since its birth. The delusion of prescription is the fatal charm thrown over the intellect, the death sentence breathed into the conscience, to arrest man's progress towards truth, and bolster up the wors.h.i.+p of error.

The Code defines prescription thus: "The process of gaining and losing through the lapse of time." In applying this definition to ideas and beliefs, we may use the word PRESCRIPTION to denote the everlasting prejudice in favor of old superst.i.tions, whatever be their object; the opposition, often furious and b.l.o.o.d.y, with which new light has always been received, and which makes the sage a martyr. Not a principle, not a discovery, not a generous thought but has met, at its entrance into the world, with a formidable barrier of preconceived opinions, seeming like a conspiracy of all old prejudices. Prescriptions against reason, prescriptions against facts, prescriptions against every truth hitherto unknown,--that is the sum and substance of the _statu quo_ philosophy, the watchword of conservatives throughout the centuries.

When the evangelical reform was broached to the world, there was prescription in favor of violence, debauchery, and selfishness; when Galileo, Descartes, Pascal, and their disciples reconstructed philosophy and the sciences, there was prescription in favor of the Aristotelian philosophy; when our fathers of '89 demanded liberty and equality, there was prescription in favor of tyranny and privilege. "There always have been proprietors and there always will be:" it is with this profound utterance, the final effort of selfishness dying in its last ditch, that the friends of social inequality hope to repel the attacks of their adversaries; thinking undoubtedly that ideas, like property, can be lost by prescription.

Enlightened to-day by the triumphal march of science, taught by the most glorious successes to question our own opinions, we receive with favor and applause the observer of Nature, who, by a thousand experiments based upon the most profound a.n.a.lysis, pursues a new principle, a law hitherto undiscovered. We take care to repel no idea, no fact, under the pretext that abler men than ourselves lived in former days, who did not notice the same phenomena, nor grasp the same a.n.a.logies. Why do we not preserve a like att.i.tude towards political and philosophical questions?

Why this ridiculous mania for affirming that every thing has been said, which means that we know all about mental and moral science? Why is the proverb, THERE IS NOTHING NEW UNDER THE SUN, applied exclusively to metaphysical investigations?

Because we still study philosophy with the imagination, instead of by observation and method; because fancy and will are universally regarded as judges, in the place of arguments and facts,--it has been impossible to this day to distinguish the charlatan from the philosopher, the savant from the impostor. Since the days of Solomon and Pythagoras, imagination has been exhausted in guessing out social and psychological laws; all systems have been proposed. Looked at in this light, it is probably true that EVERY THING HAS BEEN SAID; but it is no less true that EVERY THING REMAINS TO BE PROVED. In politics (to take only this branch of philosophy), in politics every one is governed in his choice of party by his pa.s.sion and his interests; the mind is submitted to the impositions of the will,--there is no knowledge, there is not even a shadow of certainty. In this way, general ignorance produces general tyranny; and while liberty of thought is written in the charter, slavery of thought, under the name of MAJORITY RULE, is decreed by the charter.

In order to confine myself to the civil prescription of which the Code speaks, I shall refrain from beginning a discussion upon this worn-out objection brought forward by proprietors; it would be too tiresome and declamatory. Everybody knows that there are rights which cannot be prescribed; and, as for those things which can be gained through the lapse of time, no one is ignorant of the fact that prescription requires certain conditions, the omission of one of which renders it null. If it is true, for example, that the proprietor's possession has been CIVIL, PUBLIC, PEACEABLE, and UNINTERRUPTED, it is none the less true that it is not based on a just t.i.tle; since the only t.i.tles which it can show--occupation and labor--prove as much for the proletaire who demands, as for the proprietor who defends. Further, this possession is DISHONEST, since it is founded on a violation of right, which prevents prescription, according to the saying of St. Paul--_Nunquam in usucapionibus juris error possessori prodest_. The violation of right lies either in the fact that the holder possesses as proprietor, while he should possess only as usufructuary; or in the fact that he has purchased a thing which no one had a right to transfer or sell.

Another reason why prescription cannot be adduced in favor of property (a reason borrowed from jurisprudence) is that the right to possess real estate is a part of a universal right which has never been totally destroyed even at the most critical periods; and the proletaire, in order to regain the power to exercise it fully, has only to prove that he has always exercised it in part.

He, for example, who has the universal right to possess, give, exchange, loan, let, sell, transform, or destroy a thing, preserves the integrity of this right by the sole act of loaning, though he has never shown his authority in any other manner. Likewise we shall see that EQUALITY OF POSSESSIONS, EQUALITY OF RIGHTS, LIBERTY, WILL, PERSONALITY, are so many identical expressions of one and the same idea,--the RIGHT OF PRESERVATION and DEVELOPMENT; in a word, the right of life, against which there can be no prescription until the human race has vanished from the face of the earth.

Finally, as to the time required for prescription, it would be superfluous to show that the right of property in general cannot be acquired by simple possession for ten, twenty, a hundred, a thousand, or one hundred thousand years; and that, so long as there exists a human head capable of understanding and combating the right of property, this right will never be prescribed. For principles of jurisprudence and axioms of reason are different from accidental and contingent facts.

One man's possession can prescribe against another man's possession; but just as the possessor cannot prescribe against himself, so reason has always the faculty of change and reformation. Past error is not binding on the future. Reason is always the same eternal force. The inst.i.tution of property, the work of ignorant reason, may be abrogated by a more enlightened reason. Consequently, property cannot be established by prescription. This is so certain and so true, that on it rests the maxim that in the matter of prescription a violation of right goes for nothing.

But I should be recreant to my method, and the reader would have the right to accuse me of charlatanism and bad faith, if I had nothing further to advance concerning prescription. I showed, in the first place, that appropriation of land is illegal; and that, supposing it to be legal, it must be accompanied by equality of property. I have shown, in the second place, that universal consent proves nothing in favor of property; and that, if it proves any thing, it proves equality of property. I have yet to show that prescription, if admissible at all, presupposes equality of property.

This demonstration will be neither long nor difficult. I need only to call attention to the reasons why prescription was introduced.

"Prescription," says Dunod, "seems repugnant to natural equity, which permits no one either to deprive another of his possessions without his knowledge and consent, or to enrich himself at another's expense. But as it might often happen, in the absence of prescription, that one who had honestly earned would be ousted after long possession; and even that he who had received a thing from its rightful owner, or who had been legitimately relieved from all obligations, would, on losing his t.i.tle, be liable to be dispossessed or subjected again,--the public welfare demanded that a term should be fixed, after the expiration of which no one should be allowed to disturb actual possessors, or rea.s.sert rights too long neglected.... The civil law, in regulating prescription, has aimed, then, only to perfect natural law, and to supplement the law of nations; and as it is founded on the public good, which should always be considered before individual welfare,--_bono publico usucapio introducta est_,--it should be regarded with favor, provided the conditions required by the law are fulfilled."

Toullier, in his "Civil Law," says: "In order that the question of proprietors.h.i.+p may not remain too long unsettled, and thereby injure the public welfare, disturbing the peace of families and the stability of social transactions, the law has fixed a time when all claims shall be cancelled, and possession shall regain its ancient prerogative through its transformation into property."

Ca.s.siodorus said of property, that it was the only safe harbor in which to seek shelter from the tempests of chicanery and the gales of avarice--_Hic unus inter humanas pro cellas portus, quem si homines fervida voluntate praeterierint; in undosis semper jurgiis errabunt_.

Thus, in the opinion of the authors, prescription is a means of preserving public order; a restoration in certain cases of the original mode of acquiring property; a fiction of the civil law which derives all its force from the necessity of settling differences which otherwise would never end. For, as Grotius says, time has no power to produce effects; all things happen in time, but nothing is done by time.

Prescription, or the right of acquisition through the lapse of time, is, therefore, a fiction of the law, conventionally adopted.