§
2
Occupation, as the Title to Property
It is remarkable that, at those meetings of the State Council at which the Code was discussed, no controversy arose as to the origin and principle of property. All the articles of Vol. II, Book 2, concerning property and the right of accession, were passed without opposition or amendment. Bonaparte, who on other questions had given his legists so much trouble, had nothing to say about property. Be not surprised at it: in the eyes of that man, the most selfish and wilful person that ever lived, property was the first of rights, just as submission to authority was the most holy of duties.
The right of occupation, or of the first occupant, is that which results from the actual, physical, real possession of a thing. I occupy a piece of land; the presumption is, that I am the proprietor, until the contrary is proved. We know that originally such a right cannot be legitimate unless it is reciprocal; the jurists say as much.
Cicero compares the earth to a vast theatre: Quemadmodum theatrum cum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occuparit.
This passage is all that ancient philosophy has to say about the origin of property.
The theatre, says Cicero, is common to all; nevertheless, the place that each one occupies is called his own; that is, it is a place possessed, not a place appropriated. This comparison annihilates property; moreover, it implies equality. Can I, in a theatre, occupy at the same time one place in the pit, another in the boxes, and a third in the gallery? Not unless I have three bodies, like Geryon, or can exist in different places at the same time, as is related of the magician Apollonius.
According to Cicero, no one has a right to more than he needs: such is the true interpretation of his famous axiom—suum quidque cujusque 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 which is required for our labor and consumption; Cicero’s comparison of the earth to a theatre proves it. According to that, each one may take what place he will, may beautify and adorn it, if he can; it is allowable: but he must never allow himself to overstep the limit which separates him from another. The doctrine of Cicero leads directly to equality; for, occupation being pure toleration, if the toleration is mutual (and it cannot be otherwise) the possessions are equal.
Grotius rushes into history; but what kind of reasoning is that which seeks the origin of a right, said to be natural, elsewhere than in Nature? This is the method of the ancients: the fact exists, then it is necessary, then it is just, then its antecedents are just also. Nevertheless, let us look into it.
“Originally, all things were common and undivided; they were the property of all.” Let us go no farther. Grotius tells us how this original communism came to an end through ambition and cupidity; how the age of gold was followed by the age of iron, etc. So that property rested first on war and conquest, then on treaties and agreements. But either these treaties and agreements distributed wealth equally, as did the original communism (the only method of distribution with which the barbarians were acquainted, and the only form of justice of which they could conceive; and then the question of origin assumes this form: how did equality afterwards disappear?)—or else these treaties and agreements were forced by the strong upon the weak, and in that case they are null; the tacit consent of posterity does not make them valid, and we live in a permanent condition of iniquity and fraud.
We never can conceive how the equality of conditions, having once existed, could afterwards have passed away. What was the cause of such degeneration? The instincts of the animals are unchangeable, as well as the differences of species; to suppose original equality in human society is to admit by implication that the present inequality is a degeneration from the nature of this society—a thing which the defenders of property cannot explain. But I infer therefrom that, if Providence placed the first human beings in a condition of equality, it was an indication of its desires, a model that it wished them to realize in other forms; just as the religious sentiment, which it planted in their hearts, has developed and manifested itself in various ways. Man has but one nature, constant and unalterable: he pursues it through instinct, he wanders from it through reflection, he returns to it through judgment; who shall say that we are not returning now? According to Grotius, man has abandoned equality; according to me, he will yet return to it. How came he to abandon it? Why will he return to it? These are questions for future consideration.
Reid writes as follows:—
“The right of property is not innate, but acquired. It is not grounded upon the constitution of man, but upon his actions. Writers on jurisprudence have explained its origin in a manner that may satisfy every man of common understanding.
“The earth is given to men in common for the purposes of life, by the bounty of Heaven. But to divide it, and appropriate one part of its produce to one, another part to another, must be the work of men who have power and understanding given them, by which every man may accommodate himself, without hurt to any other.
“This common right of every man to what the earth produces, before it be occupied and appropriated by others, was, by ancient moralists, very properly compared to the right which every citizen had to the public theatre, where every man that came might occupy an empty seat, and thereby acquire a right to it while the entertainment lasted; but no man had a right to dispossess another.
“The earth is a great theatre, furnished by the Almighty, with perfect wisdom and goodness, for the entertainment and employment of all mankind. Here every man has a right to accommodate himself as a spectator, and to perform his part as an actor; but without hurt to others.”
Consequences of Reid’s doctrine.
1. That the portion which each one appropriates may wrong no one, it must be equal to the quotient of the total amount of property to be shared, divided by the number of those who are to share it;
2. The number of places being of necessity equal at all times to that of the spectators, no spectator can occupy two places, nor can any actor play several parts;
3. Whenever a spectator comes in or goes out, the places of all contract or enlarge correspondingly: for, says Reid, “the right of property is not innate, but acquired;” consequently, it is not absolute; consequently, the occupancy on which it is based, being a conditional fact, cannot endow this right with a stability which it does not possess itself. This seems to have been the thought of the Edinburgh professor when he added:—
“A right to life implies a right to the necessary means of life; and that justice, which forbids the taking away the life of an innocent man, forbids no less the taking from him the necessary means of life. He has the same right to defend the one as the other. To hinder another man’s innocent labor, or to deprive him of the fruit of it, is an injustice of the same kind, and has the same effect as to put him in fetters or in prison, and is equally a just object of resentment.”
Thus the chief of the Scotch school, without considering at all the inequality of skill or labor, posits a priori the equality of the means of labor, abandoning thereafter to each laborer the care of his own person, after the eternal axiom: Whoso does well, shall fare well.
The philosopher Reid is lacking, not in knowledge of the principle, but in courage to pursue it to its ultimate. If the right of life is equal, the right of labor is equal, and so is the right of occupancy. Would it not be criminal, were some islanders to repulse, in the name of property, the unfortunate victims of a shipwreck struggling to reach the shore? The very idea of such cruelty sickens the imagination. The proprietor, like Robinson Crusoe on his island, wards off with pike and musket the proletaire washed overboard by the wave of civilization, and seeking to gain a foothold upon the rocks of property. “Give me work!” cries he with all his might to the proprietor: “don’t drive me away, I will work for you at any price.” “I do not need your services,” replies the proprietor, showing the end of his pike or the barrel of his gun. “Lower my rent at least.” “I need my income to live upon.” “How can I pay you, when I can get no work?” “That is your business.” Then the unfortunate proletaire abandons himself to the waves; or, if he attempts to land upon the shore of property, the proprietor takes aim, and kills him.
We have just listened to a spiritualist; we will now question a materialist, then an eclectic: and having completed the circle of philosophy, we will turn next to law.
According to Destutt de Tracy, property is a necessity of our nature. That this necessity involves unpleasant consequences, it would be folly to deny. But these consequences are necessary evils which do not invalidate the principle; so that it as unreasonable to rebel against property on account of the abuses which it generates, as to complain of life because it is sure to end in death. This brutal and pitiless philosophy promises at least frank and close reasoning. Let us see if it keeps its promise.
“We talk very gravely about the conditions of property, … as if it was our province to decide what constitutes property. … It would seem, to hear certain philosophers and legislators, that at a certain moment, spontaneously and without cause, people began to use the words thine and mine; and that they might have, or ought to have, dispensed with them. But thine and mine were never invented.”
A philosopher yourself, you are too realistic. Thine and mine do not necessarily refer to self, as they do when I say your philosophy, and my equality; for your philosophy is you philosophizing, and my equality is I professing equality. Thine and mine oftener indicate a relation—your country, your parish, your tailor, your milkmaid; my chamber, my seat at the theatre, my company and my battalion in the National Guard. In the former sense, we may sometimes say my labor, my skill, my virtue; never my grandeur nor my majesty: in the latter sense only, my field, my house, my vineyard, my capital—precisely as the banker’s clerk says my cashbox. In short, thine and mine are signs and expressions of personal, but equal, rights; applied to things outside of us, they indicate possession, function, use, not property.
It does not seem possible, but, nevertheless, I shall prove, by quotations, that the whole theory of our author is based upon this paltry equivocation.
“Prior to all covenants, men are, not exactly, as Hobbes says, in a state of hostility, but of estrangement. In this state, justice and injustice are unknown; the rights of one bear no relation to the rights of another. All have as many rights as needs, and all feel it their duty to satisfy those needs by any means at their command.”
Grant it; whether true or false, it matters not. Destutt de Tracy cannot escape equality. On this theory, men, while in a state of estrangement, are under no obligations to each other; they all have the right to satisfy their needs without regard to the needs of others, and consequently the right to exercise their power over Nature, each according to his strength and ability. That involves the greatest inequality of wealth. Inequality of conditions, then, is the characteristic feature of estrangement or barbarism: the exact opposite of Rousseau’s idea. But let us look farther—
“Restrictions of these rights and this duty commence at the time when covenants, either implied or expressed, are agreed upon. Then appears for the first time justice and injustice; that is, the balance between the rights of one and the rights of another, which up to that time were necessarily equal.”
Listen: rights were equal; that means that each individual had the right to satisfy his needs without reference to the needs of others. In other words, that all had the right to injure each other; that there was no right save force and cunning. They injured each other, not only by war and pillage, but also by usurpation and appropriation. Now, in order to abolish this equal right to use force and stratagem—this equal right to do evil, the sole source of the inequality of benefits and injuries—they commenced to make covenants either implied or expressed, and established a balance. Then these agreements and this balance were intended to secure to all equal comfort; then, by the law of contradictions, if isolation is the principle of inequality, society must produce equality. The social balance is the equalization of the strong and the weak; for, while they are not equals, they are strangers; they can form no associations—they live as enemies. Then, if inequality of conditions is a necessary evil, so is isolation, for society and inequality are incompatible with each other. Then, if society is the true condition of man’s existence, so is equality also. This conclusion cannot be avoided.
This being so, how is it that, ever since the establishment of this balance, inequality has been on the increase? How is it that justice and isolation always accompany each other? Destutt de Tracy shall reply:—
“Needs and means, rights and duties, are products of the will. If man willed nothing, these would not exist. But to have needs and means, rights and duties, is to have, to possess, something. They are so many kinds of property, using the word in its most general sense: they are things which belong to us.”
Shameful equivocation, not justified by the necessity for generalization! The word property has two meanings: 1. It designates the quality which makes a thing what it is; the attribute which is peculiar to it, and especially distinguishes it. We use it in this sense when we say the properties of the triangle or of numbers; the property of the magnet, etc. 2. It expresses the right of absolute control over a thing by a free and intelligent being. It is used in this sense by writers on jurisprudence. Thus, in the phrase, iron acquires the property of a magnet, the word property does not convey the same idea that it does in this one: I have acquired this magnet as my property. To tell a poor man that he has property because he has arms and legs—that the hunger from which he suffers, and his power to sleep in the open air are his property—is to play upon words, and to add insult to injury.
“The sole basis of the idea of property is the idea of personality. As soon as property is born at all, it is born, of necessity, in all its fullness. 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, etc. … Inasmuch as artificial and conventional property exists, there must be natural property also; for nothing can exist in art without its counterpart in Nature.”
We ought to admire the honesty and judgment of philosophers! Man has properties; that is, in the first acceptation of the term, faculties. He has property; that is, in its second acceptation, the right of domain. He has, then, the property of the property of being proprietor. How ashamed I should be to notice such foolishness, were I here considering only the authority of Destutt de Tracy! But the entire human race, since the origination of society and language, when metaphysics and dialectics were first born, has been guilty of this puerile confusion of thought. All which man could call his own was identified in his mind with his person. He considered it as his property, his wealth; a part of himself, a member of his body, a faculty of his mind. The possession of things was likened to property in the powers of the body and mind; and on this false analogy was based the right of property—the imitation of Nature by art, as Destutt de Tracy so elegantly puts it.
But why did not this ideologist perceive that man is not proprietor even of his own faculties? Man has powers, attributes, capacities; they are given him by Nature that he may live, learn, and love: he does not own them, but has only the use of them; and he can make no use of them that does not harmonize with Nature’s laws. If he had absolute mastery over his faculties, he could avoid hunger and cold; he could eat unstintedly, and walk through fire; he could move mountains, walk a hundred leagues in a minute, cure without medicines and by the sole force of his will, and could make himself immortal. He could say, “I wish to produce,” and his tasks would be finished with the words; he could say, “I wish to know,” and he would know; “I love,” and he would enjoy. What then? Man is not master of himself, but may be of his surroundings. Let him use the wealth of Nature, since he can live only by its use; but let him abandon his pretensions to the title of proprietor, and remember that he is called so only metaphorically.
To sum up: Destutt de Tracy classes together the external productions of Nature and art, and the powers or faculties of man, making both of them species of property; and upon this equivocation he hopes to establish, so firmly that it can never be disturbed, the right of property. But of these different kinds of property some are innate, as memory, imagination, strength, and beauty; while others are acquired, as land, water, and forests. In the state of Nature or isolation, the strongest and most skilful (that is, those best provided with innate property) stand the best chance of obtaining acquired property. Now, it is to prevent this encroachment and the war which results therefrom, that a balance (justice) has been employed, and covenants (implied or expressed) agreed upon: it is to correct, as far as possible, inequality of innate property by equality of acquired property. As long as the division remains unequal, so long the partners remain enemies; and it is the purpose of the covenants to reform this state of things. Thus we have, on the one hand, isolation, inequality, enmity, war, robbery, murder; on the other, society, equality, fraternity, peace, and love. Choose between them!
M. Joseph Dutens—a physician, engineer, and geometrician, but a very poor legist, and no philosopher at all—is the author of a Philosophy of Political Economy, in which he felt it his duty to break lances in behalf of property. His reasoning seems to be borrowed from Destutt de Tracy. He commences with this definition of property, worthy of Sganarelle: “Property is the right by which a thing is one’s own.” Literally translated: Property is the right of property.
After getting entangled a few times on the subjects of will, liberty, and personality; after having distinguished between immaterial-natural property, and material-natural property, a distinction similar to Destutt de Tracy’s of innate and acquired property—M. Joseph Dutens concludes with these two general propositions: 1. Property is a natural and inalienable right of every man; 2. Inequality of property is a necessary result of Nature—which propositions are convertible into a simpler one: All men have an equal right of unequal property.
He rebukes M. de Sismondi for having taught that landed property has no other basis than law and conventionality; and he says himself, speaking of the respect which people feel for property, that “their good sense reveals to them the nature of the original contract made between society and proprietors.”
He confounds property with possession, communism with equality, the just with the natural, and the natural with the possible. Now he takes these different ideas to be equivalents; now he seems to distinguish between them, so much so that it would be infinitely easier to refute him than to understand him. Attracted first by the title of the work, Philosophy of Political Economy, I have found, among the author’s obscurities, only the most ordinary ideas. For that reason I will not speak of him.
M. Cousin, in his Moral Philosophy, page 15, teaches that all morality, all laws, all rights are given to man with this injunction: “Free being, remain free.” Bravo! master; I wish to remain free if I can. He continues:—
“Our principle is true; it is good, it is social. Do not fear to push it to its ultimate.
“1. If the human person is sacred, its whole nature is sacred; and particularly its interior actions, its feelings, its thoughts, its voluntary decisions. This accounts for the respect due to philosophy, religion, the arts, industry, commerce, and to all the results of liberty. I say respect, not simply toleration; for we do not tolerate a right, we respect it.”
I bow my head before this philosophy.
“2. My liberty, which is sacred, needs for its objective action an instrument which we call the body: the body participates then in the sacredness of liberty; it is then inviolable. This is the basis of the principle of individual liberty.
“3. My liberty needs, for its objective action, material to work upon; in other words, property or a thing. This thing or property naturally participates then in the inviolability of my person. For instance, I take possession of an object which has become necessary and useful in the outward manifestation of my liberty. I say, ‘This object is mine since it belongs to no one else; consequently, I possess it legitimately.’ So the legitimacy of possession rests on two conditions. First, I possess only as a free being. Suppress free activity, you destroy my power to labor. Now it is only by labor that I can use this property or thing, and it is only by using it that I possess it. Free activity is then the principle of the right of property. But that alone does not legitimate possession. All men are free; all can use property by labor. Does that mean that all men have a right to all property? Not at all. To possess legitimately, I must not only labor and produce in my capacity of a free being, but I must also be the first to occupy the property. In short, if labor and production are the principle of the right of property, the fact of first occupancy is its indispensable condition.
“4. I possess legitimately: then I have the right to use my property as I see fit. I have also the right to give it away. I have also the right to bequeath it; for if I decide to make a donation, my decision is as valid after my death as during my life.”
In fact, to become a proprietor, in M. Cousin’s opinion, one must take possession by occupation and labor. I maintain that the element of time must be considered also; for if the first occupants have occupied everything, what are the newcomers 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 anyone else, should take pains to avoid. Instead of proceeding by the method of analysis, comparison, elimination, and reduction (the only means of discovering the truth amid the various forms of thought and whimsical opinions), he jumbles all systems together, and then, declaring each both right and wrong, exclaims: “There you have the truth.”
But, adhering to my promise, I will not refute him. I will only prove, by all the arguments with which he justifies the right of property, the principle of equality which kills it. As I have already said, my sole intent is this: to show at the bottom of all these positions that inevitable major, equality; hoping hereafter to show that the principle of property vitiates the very elements of economical, moral, and governmental science, thus leading it in the wrong direction.
Well, is it not true, from M. Cousin’s point of view, that, if the liberty of man is sacred, it is equally sacred in all individuals; that, if it needs property for its objective action, that is, for its life, the appropriation of material is equally necessary for all; that, if I wish to be respected in my right of appropriation, I must respect others in theirs; and, consequently, that though, in the sphere of the infinite, a person’s power of appropriation is limited only by himself, in the sphere of the finite this same power is limited by the mathematical relation between the number of persons and the space which they occupy? Does it not follow that if one individual cannot prevent another—his fellow-man—from appropriating an amount of material equal to his own, no more can he prevent individuals yet to come; because, while individuality passes away, universality persists, and eternal laws cannot be determined by a partial view of their manifestations? Must we not conclude, therefore, that whenever a person is born, the others must crowd closer together; and, by reciprocity of obligation, that if the newcomer 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 terms, such 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 1100,000 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 134,000,000. Now, so regulate the police system and the government, labor, exchange, inheritance, etc., 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.
But perhaps 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 sickbed, 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?