Chapter V: Psychological Exposition of the Idea of Justice (5)

The times which paved the way for the advent of feudalism and the reappearance of large proprietors were times of carnage and the most frightful anarchy. Never before had murder and violence made such havoc with the human race. The tenth century, among others, if my memory serves me rightly, was called the CENTURY OF IRON. His property, his life, and the honor of his wife and children always in danger the small proprietor made haste to do homage to his seignior, and to bestow something on the church of his freehold, that he might receive protection and security.

"Both facts and laws bear witness that from the sixth to the tenth century the proprietors of small freeholds were gradually plundered, or reduced by the encroachments of large proprietors and counts to the condition of either vassals or tributaries. The Capitularies are full of repressive provisions; but the incessant reiteration of these threats only shows the perseverance of the evil and the impotency of the government. Oppression, moreover, varies but little in its methods. The complaints of the free proprietors, and the groans of the plebeians at the time of the Gracchi, were one and the same. It is said that, whenever a poor man refused to give his estate to the bishop, the curate, the count, the judge, or the centurion, these immediately sought an opportunity to ruin him. They made him serve in the army until, completely ruined, he was induced, by fair means or foul, to give up his freehold."--Laboulaye: History of Property.

How many small proprietors and manufacturers have not been ruined by large ones through chicanery, law-suits, and competition? Strategy, violence, and usury,--such are the proprietor's methods of plundering the laborer.

Thus we see property, at all ages and in all its forms, oscillating by virtue of its principle between two opposite terms,--extreme division and extreme accumulation.

Property, at its first term, is almost null. Reduced to personal exploitation, it is property only potentially. At its second term, it exists in its perfection; then it is truly property.

When property is widely distributed, society thrives, progresses, grows, and rises quickly to the zenith of its power. Thus, the Jews, after leaving Babylon with Esdras and Nehemiah, soon became richer and more powerful than they had been under their kings. Sparta was in a strong and prosperous condition during the two or three centuries which followed the death of Lycurgus. The best days of Athens were those of the Persian war; Rome, whose inhabitants were divided from the beginning into two classes,--the exploiters and the exploited,--knew no such thing as peace.

When property is concentrated, society, abusing itself, polluted, so to speak, grows corrupt, wears itself out--how shall I express this horrible idea?--plunges into long-continued and fatal luxury.

When feudalism was established, society had to die of the same disease which killed it under the Caesars,--I mean accumulated property. But humanity, created for an immortal destiny, is deathless; the revolutions which disturb it are purifying crises, invariably followed by more vigorous health. In the fifth century, the invasion of the Barbarians partially restored the world to a state of natural equality. In the twelfth century, a new spirit pervading all society gave the slave his rights, and through justice breathed new life into the heart of nations. It has been said, and often repeated, that Christianity regenerated the world. That is true; but it seems to me that there is a mistake in the date. Christianity had no influence upon Roman society; when the Barbarians came, that society had disappeared. For such is God's curse upon property; every political organization based upon the exploitation of man, shall perish: slave-labor is death to the race of tyrants. The patrician families became extinct, as the feudal families did, and as all aristocracies must.

It was in the middle ages, when a reactionary movement was beginning to secretly undermine accumulated property, that the influence of Christianity was first exercised to its full extent.

The destruction of feudalism, the conversion of the serf into the commoner, the emancipation of the communes, and the admission of the Third Estate to political power, were deeds accomplished by Christianity exclusively. I say Christianity, not ecclesiasticism; for the priests and bishops were themselves large proprietors, and as such often persecuted the villeins. Without the Christianity of the middle ages, the existence of modern society could not be explained, and would not be possible.

The truth of this assertion is shown by the very facts which M. Laboulaye quotes, although this author inclines to the opposite opinion. [57]

Now, we did not commence to love God and to think of our salvation until after the promulgation of the Gospel.

1. Slavery among the Romans.--"The Roman slave was, in the eyes of the law, only a thing,--no more than an ox or a horse. He had neither property, family, nor personality; he was defenceless against his master's cruelty, folly, or cupidity. 'Sell your oxen that are past use,' said Cato, 'sell your calves, your lambs, your wool, your hides, your old ploughs, your old iron, your old slave, and your sick slave, and all that is of no use to you.' When no market could be found for the slaves that were worn out by sickness or old age, they were abandoned to starvation. Claudius was the first defender of this shameful practice."

"Discharge your old workman," says the economist of the proprietary school; "turn off that sick domestic, that toothless and worn-out servant. Put away the unserviceable beauty; to the hospital with the useless mouths!"

"The condition of these wretched beings improved but little under the emperors; and the best that can be said of the goodness of Antoninus is that he prohibited intolerable cruelty, as an ABUSE OF PROPERTY. _Expedit enim reipublicae ne quis re re sua male utatur_, says Gaius.

"As soon as the Church met in council, it launched an anathema against the masters who had exercised over their slaves this terrible right of life and death. Were not the slaves, thanks to the right of sanctuary and to their poverty, the dearest proteges of religion? Constantine, who embodied in the laws the grand ideas of Christianity, valued the life of a slave as highly as that of a freeman, and declared the master, who had intentionally brought death upon his slave, guilty of murder. Between this law and that of Antoninus there is a complete revolution in moral ideas: the slave was a thing; religion has made him a man."

Note the last words: "Between the law of the Gospel and that of Antoninus there is a complete revolution in moral ideas: the slave was a thing; religion has made him a man." The moral revolution which transformed the slave into a citizen was effected, then, by Christianity before the Barbarians set foot upon the soil of the empire. We have only to trace the progress of this MORAL revolution in the PERSONNEL of society. "But," M. Laboulaye rightly says, "it did not change the condition of men in a moment, any more than that of things; between slavery and liberty there was an abyss which could not be filled in a day; the transitional step was servitude."

Now, what was servitude? In what did it differ from Roman slavery, and whence came this difference? Let the same author answer.

2. Of servitude.--"I see, in the lord's manor, slaves charged with domestic duties. Some are employed in the personal service of the master; others are charged with household cares. The women spin the wool; the men grind the grain, make the bread, or practise, in the interest of the seignior, what little they know of the industrial arts. The master punishes them when he chooses, kills them with impunity, and sells them and theirs like so many cattle. The slave has no personality, and consequently no _wehrgeld_ [59] peculiar to himself: he is a thing. The _wehrgeld_ belongs to the master as a compensation for the loss of his property. Whether the slave is killed or stolen, the indemnity does not change, for the injury is the same; but the indemnity increases or diminishes according to the value of the serf. In all these particulars Germanic slavery and Roman servitude are alike."

This similarity is worthy of notice. Slavery is always the same, whether in a Roman villa or on a Barbarian farm. The man, like the ox and the ass, is a part of the live-stock; a price is set upon his head; he is a tool without a conscience, a chattel without personality, an impeccable, irresponsible being, who has neither rights nor duties.

Why did his condition improve?

"In good season..." [when?] "the serf began to be regarded as a man; and, as such, the law of the Visigoths, under the influence of Christian ideas, punished with fine or banishment any one who maimed or killed him."

Always Christianity, always religion, though we should like to speak of the laws only. Did the philanthropy of the Visigoths make its first appearance before or after the preaching of the Gospel? This point must be cleared up.

"After the conquest, the serfs were scattered over the large estates of the Barbarians, each having his house, his lot, and his peculium, in return for which he paid rent and performed service. They were rarely separated from their homes when their land was sold; they and all that they had became the property of the purchaser. The law favored this realization of the serf, in not allowing him to be sold out of the country."

What inspired this law, destructive not only of slavery, but of property itself? For, if the master cannot drive from his domain the slave whom he has once established there, it follows that the slave is proprietor, as well as the master.

"The Barbarians," again says M. Laboulaye, "were the first to recognize the slave's rights of family and property,--two rights which are incompatible with slavery."

But was this recognition the necessary result of the mode of servitude in vogue among the Germanic nations previous to their conversion to Christianity, or was it the immediate effect of that spirit of justice infused with religion, by which the seignior was forced to respect in the serf a soul equal to his own, a brother in Jesus Christ, purified by the same baptism, and redeemed by the same sacrifice of the Son of God in the form of man? For we must not close our eyes to the fact that, though the Barbarian morals and the ignorance and carelessness of the seigniors, who busied themselves mainly with wars and battles, paying little or no attention to agriculture, may have been great aids in the emancipation of the serfs, still the vital principle of this emancipation was essentially Christian. Suppose that the Barbarians had remained Pagans in the midst of a Pagan world. As they did not change the Gospel, so they would not have changed the polytheistic customs; slavery would have remained what it was; they would have continued to kill the slaves who were desirous of liberty, family, and property; whole nations would have been reduced to the condition of Helots; nothing would have changed upon the terrestrial stage, except the actors. The Barbarians were less selfish, less imperious, less dissolute, and less cruel than the Romans. Such was the nature upon which, after the fall of the empire and the renovation of society, Christianity was to act. But this nature, grounded as in former times upon slavery and war, would, by its own energy, have produced nothing but war and slavery.

"GRADUALLY the serfs obtained the privilege of being judged by the same standard as their masters...."

When, how, and by what title did they obtain this privilege?

"GRADUALLY their duties were regulated."

Whence came the regulations? Who had the authority to introduce them?

"The master took a part of the labor of the serf,--three days, for instance,--and left the rest to him. As for Sunday, that belonged to God."

And what established Sunday, if not religion? Whence I infer, that the same power which took it upon itself to suspend hostilities and to lighten the duties of the serf was also that which regulated the judiciary and created a sort of law for the slave.

But this law itself, on what did it bear?--what was its principle?--what was the philosophy of the councils and popes with reference to this matter? The reply to all these questions, coming from me alone, would be distrusted. The authority of M. Laboulaye shall give credence to my words. This holy philosophy, to which the slaves were indebted for every thing, this invocation of the Gospel, was an anathema against property.

The proprietors of small freeholds, that is, the freemen of the middle class, had fallen, in consequence of the tyranny of the nobles, into a worse condition than that of the tenants and serfs. "The expenses of war weighed less heavily upon the serf than upon the freeman; and, as for legal protection, the seigniorial court, where the serf was judged by his peers, was far preferable to the cantonal assembly. It was better to have a noble for a seignior than for a judge."

So it is better to-day to have a man of large capital for an associate than for a rival. The honest tenant--the laborer who earns weekly a moderate but constant salary--is more to be envied than the independent but small farmer, or the poor licensed mechanic.

At that time, all were either seigniors or serfs, oppressors or oppressed. "Then, under the protection of convents, or of the seigniorial turret, new societies were formed, which silently spread over the soil made fertile by their hands, and which derived their power from the annihilation of the free classes whom they enlisted in their behalf. As tenants, these men acquired, from generation to generation, sacred rights over the soil which they cultivated in the interest of lazy and pillaging masters. As fast as the social tempest abated, it became necessary to respect the union and heritage of these villeins, who by their labor had truly prescribed the soil for their own profit."

I ask how prescription could take effect where a contrary title and possession already existed? M. Laboulaye is a lawyer. Where, then, did he ever see the labor of the slave and the cultivation by the tenant prescribe the soil for their own profit, to the detriment of a recognized master daily acting as a proprietor? Let us not disguise matters. As fast as the tenants and the serfs grew rich, they wished to be independent and free; they commenced to associate, unfurl their municipal banners, raise belfries, fortify their towns, and refuse to pay their seigniorial dues. In doing these things they were perfectly right; for, in fact, their condition was intolerable. But in law--I mean in Roman and Napoleonic law--their refusal to obey and pay tribute to their masters was illegitimate.

Now, this imperceptible usurpation of property by the commonalty was inspired by religion.

The seignior had attached the serf to the soil; religion granted the serf rights over the soil. The seignior imposed duties upon the serf; religion fixed their limits. The seignior could kill the serf with impunity, could deprive him of his wife, violate his daughter, pillage his house, and rob him of his savings; religion checked his invasions: it excommunicated the seignior. Religion was the real cause of the ruin of feudal property. Why should it not be bold enough to-day to resolutely condemn capitalistic property? Since the middle ages, there has been no change in social economy except in its forms; its relations remain unaltered.

The only result of the emancipation of the serfs was that property changed hands; or, rather, that new proprietors were created. Sooner or later the extension of privilege, far from curing the evil, was to operate to the disadvantage of the plebeians. Nevertheless, the new social organization did not meet with the same end in all places. In Lombardy, for example, where the people rapidly growing rich through commerce and industry soon conquered the authorities, even to the exclusion of the nobles,--first, the nobility became poor and degraded, and were forced, in order to live and maintain their credit, to gain admission to the guilds; then, the ordinary subalternization of property leading to inequality of fortunes, to wealth and poverty, to jealousies and hatreds, the cities passed rapidly from the rankest democracy under the yoke of a few ambitious leaders. Such was the fate of most of the Lombardic cities,--Genoa, Florence, Bologna, Milan, Pisa, &c,.--which afterwards changed rulers frequently, but which have never since risen in favor of liberty. The people can easily escape from the tyranny of despots, but they do not know how to throw off the effects of their own despotism; just as we avoid the assassin's steel, while we succumb to a constitutional malady. As soon as a nation becomes proprietor, either it must perish, or a foreign invasion must force it again to begin its evolutionary round. [59]

"The communes once organized, the kings treated them as superior vassals. Now, just as the under vassal had no communication with the king except through the direct vassal, so also the commoners could enter no complaints except through the commune.

"Like causes produce like effects. Each commune became a small and separate State, governed by a few citizens, who sought to extend their authority over the others; who, in their turn, revenged themselves upon the unfortunate inhabitants who had not the right of citizenship. Feudalism in unemancipated countries, and oligarchy in the communes, made nearly the same ravages. There were sub-associations, fraternities, tradesmen's associations in the communes, and colleges in the universities. The oppression was so great, that it was no rare thing to see the inhabitants of a commune demanding its suppression...."--Meyer: Judicial Institutions of Europe.

In France, the Revolution was much more gradual. The communes, in taking refuge under the protection of the kings, had found them masters rather than protectors. Their liberty had long since been lost, or, rather, their emancipation had been suspended, when feudalism received its death-blow at the hand of Richelieu. Then liberty halted; the prince of the feudatories held sole and undivided sway. The nobles, the clergy, the commoners, the parliaments, every thing in short except a few seeming privileges, were controlled by the king; who, like his early predecessors, consumed regularly, and nearly always in advance, the revenues of his domain,--and that domain was France.

Finally, '89 arrived; liberty resumed its march; a century and a half had been required to wear out the last form of feudal property,--monarchy.

The French Revolution may be defined as _the substitution of real right for personal right;_ that is to say, in the days of feudalism, the value of property depended upon the standing of the proprietor, while, after the Revolution, the regard for the man was proportional to his property. Now, we have seen from what has been said in the preceding pages, that this recognition of the right of laborers had been the constant aim of the serfs and communes, the secret motive of their efforts. The movement of '89 was only the last stage of that long insurrection. But it seems to me that we have not paid sufficient attention to the fact that the Revolution of 1789, instigated by the same causes, animated by the same spirit, triumphing by the same struggles, was consummated in Italy four centuries ago. Italy was the first to sound the signal of war against feudalism; France has followed; Spain and England are beginning to move; the rest still sleep. If a grand example should be given to the world, the day of trial would be much abridged.

Note the following summary of the revolutions of property, from the days of the Roman Empire down to the present time:--

1. Fifth century.--Barbarian invasions; division of the lands of the empire into independent portions or freeholds.

2. From the fifth to the eighth century.--Gradual concentration of freeholds, or transformation of the small freeholds into fiefs, feuds, tenures, &c. Large properties, small possessions. Charlemagne (771-814) decrees that all freeholds are dependent upon the king of France.

3. From the eighth to the tenth century.--The relation between the crown and the superior dependents is broken; the latter becoming freeholders, while the smaller dependents cease to recognize the king, and adhere to the nearest suzerain. Feudal system.

4. Twelfth century.--Movement of the serfs towards liberty; emancipation of the communes.

5. Thirteenth century.--Abolition of personal right, and of the feudal system in Italy. Italian Republics.

6. Seventeenth century.--Abolition of feudalism in France during Richelieu's ministry. Despotism.

7. 1789.--Abolition of all privileges of birth, caste, provinces, and corporations; equality of persons and of rights. French democracy.

8. 1830.--The principle of concentration inherent in individual property is REMARKED. Development of the idea of association.

The more we reflect upon this series of transformations and changes, the more clearly we see that they were necessary in their principle, in their manifestations, and in their result.

It was necessary that inexperienced conquerors, eager for liberty, should divide the Roman Empire into a multitude of estates, as free and independent as themselves.

It was necessary that these men, who liked war even better than liberty, should submit to their leaders; and, as the freehold represented the man, that property should violate property.

It was necessary that, under the rule of a nobility always idle when not fighting, there should grow up a body of laborers, who, by the power of production, and by the division and circulation of wealth, would gradually gain control over commerce, industry, and a portion of the land, and who, having become rich, would aspire to power and authority also.

It was necessary, finally, that liberty and equality of rights having been achieved, and individual property still existing, attended by robbery, poverty, social inequality, and oppression, there should be an inquiry into the cause of this evil, and an idea of universal association formed, whereby, on condition of labor, all interests should be protected and consolidated.

"Evil, when carried too far," says a learned jurist, "cures itself; and the political innovation which aims to increase the power of the State, finally succumbs to the effects of its own work. The Germans, to secure their independence, chose chiefs; and soon they were oppressed by their kings and noblemen. The monarchs surrounded themselves with volunteers, in order to control the freemen; and they found themselves dependent upon their proud vassals. The _missi dominici_ were sent into the provinces to maintain the power of the emperors, and to protect the people from the oppressions of the noblemen; and not only did they usurp the imperial power to a great extent, but they dealt more severely with the inhabitants. The freemen became vassals, in order to get rid of military service and court duty; and they were immediately involved in all the personal quarrels of their seigniors, and compelled to do jury duty in their courts.... The kings protected the cities and the communes, in the hope of freeing them from the yoke of the grand vassals, and of rendering their own power more absolute; and those same communes have, in several European countries, procured the establishment of a constitutional power, are now holding royalty in check, and are giving rise to a universal desire for political reform."--Meyer: Judicial Institutions of Europe.

In recapitulation.

What was feudalism? A confederation of the grand seign iors against the villeins, and against the king. [60] What is constitutional government? A confederation of the bourgeoisie against the laborers, and against the king. [61]

How did feudalism end? In the union of the communes and the royal authority. How will the bourgeoisie aristocracy end? In the union of the proletariat and the sovereign power.

What was the immediate result of the struggle of the communes and the king against the seigniors? The monarchical unity of Louis XIV. What will be the result of the struggle of the proletariat and the sovereign power combined against the bourgeoisie? The absolute unity of the nation and the government.

It remains to be seen whether the nation, one and supreme, will be represented in its executive and central power by ONE, by FIVE, by ONE HUNDRED, or ONE THOUSAND; that is, it remains to be seen, whether the royalty of the barricades intends to maintain itself by the people, or without the people, and whether Louis Philippe wishes his reign to be the most famous in all history.

I have made this statement as brief, but at the same time as accurate as I could, neglecting facts and details, that I might give the more attention to the economical relations of society. For the study of history is like the study of the human organism; just as the latter has its system, its organs, and its functions, which can be treated separately, so the former has its ensemble, its instruments, and its causes. Of course I do not pretend that the principle of property is a complete resume of all the social forces; but, as in that wonderful machine which we call our body, the harmony of the whole allows us to draw a general conclusion from the consideration of a single function or organ, so, in discussing historical causes, I have been able to reason with absolute accuracy from a single order of facts, certain as I was of the perfect correlation which exists between this special order and universal history. As is the property of a nation, so is its family, its marriage, its religion, its civil and military organization, and its legislative and judicial institutions. History, viewed from this standpoint, is a grand and sublime psychological study.

Well, sir, in writing against property, have I done more than quote the language of history? I have said to modern society,--the daughter and heiress of all preceding societies,--_Age guod agis:_ complete the task which for six thousand years you have been executing under the inspiration and by the command of God; hasten to finish your journey; turn neither to the right nor the left, but follow the road which lies before you. You seek reason, law, unity, and discipline; but hereafter you can find them only by stripping off the veils of your infancy, and ceasing to follow instinct as a guide. Awaken your sleeping conscience; open your eyes to the pure light of reflection and science; behold the phantom which troubled your dreams, and so long kept you in a state of unutterable anguish. Know thyself, O long-deluded society[1] know thy enemy!... And I have denounced property.

We often hear the defenders of the right of domain quote in defence of their views the testimony of nations and ages. We can judge, from what has just been said, how far this historical argument conforms to the real facts and the conclusions of science.

To complete this apology, I must examine the various theories.

Neither politics, nor legislation, nor history, can be explained and understood, without a positive theory which defines their elements, and discovers their laws; in short, without a philosophy. Now, the two principal schools, which to this day divide the attention of the world, do not satisfy this condition.

The first, essentially PRACTICAL in its character, confined to a statement of facts, and buried in learning, cares very little by what laws humanity develops itself. To it these laws are the secret of the Almighty, which no one can fathom without a commission from on high. In applying the facts of history to government, this school does not reason; it does not anticipate; it makes no comparison of the past with the present, in order to predict the future. In its opinion, the lessons of experience teach us only to repeat old errors, and its whole philosophy consists in perpetually retracing the tracks of antiquity, instead of going straight ahead forever in the direction in which they point.

The second school may be called either FATALISTIC or PANTHEISTIC. To it the movements of empires and the revolutions of humanity are the manifestations, the incarnations, of the Almighty. The human race, identified with the divine essence, wheels in a circle of appearances, informations, and destructions, which necessarily excludes the idea of absolute truth, and destroys providence and liberty.

Corresponding to these two schools of history, there are two schools of jurisprudence, similarly opposed, and possessed of the same peculiarities.

1. The practical and conventional school, to which the law is always a creation of the legislator, an expression of his will, a privilege which he condescends to grant,--in short, a gratuitous affirmation to be regarded as judicious and legitimate, no matter what it declares.

2. The fatalistic and pantheistic school, sometimes called the historical school, which opposes the despotism of the first, and maintains that law, like literature and religion, is always the expression of society,--its manifestation, its form, the external realization of its mobile spirit and its ever-changing inspirations.

Each of these schools, denying the absolute, rejects thereby all positive and a priori philosophy.

Now, it is evident that the theories of these two schools, whatever view we take of them, are utterly unsatisfactory: for, opposed, they form no dilemma,--that is, if one is false, it does not follow that the other is true; and, united, they do not constitute the truth, since they disregard the absolute, without which there is no truth. They are respectively a THESIS and an ANTITHESIS. There remains to be found, then, a SYNTHESIS, which, predicating the absolute, justifies the will of the legislator, explains the variations of the law, annihilates the theory of the circular movement of humanity, and demonstrates its progress.

The legists, by the very nature of their studies and in spite of their obstinate prejudices, have been led irresistibly to suspect that the absolute in the science of law is not as chimerical as is commonly supposed; and this suspicion arose from their comparison of the various relations which legislators have been called upon to regulate.

M. Laboulaye, the laureate of the Institute, begins his "History of Property" with these words:--

"While the law of contract, which regulates only the mutual interests of men, has not varied for centuries (except in certain forms which relate more to the proof than to the character of the obligation), the civil law of property, which regulates the mutual relations of citizens, has undergone several radical changes, and has kept pace in its variations with all the vicissitudes of society. The law of contract, which holds essentially to those principles of eternal justice which are engraven upon the depths of the human heart, is the immutable element of jurisprudence, and, in a certain sense, its philosophy. Property, on the contrary, is the variable element of jurisprudence, its history, its policy."

Marvellous! There is in law, and consequently in politics, something variable and something invariable. The invariable element is obligation, the bond of justice, duty; the variable element is property,--that is, the external form of law, the subject-matter of the contract. Whence it follows that the law can modify, change, reform, and judge property. Reconcile that, if you can, with the idea of an eternal, absolute, permanent, and indefectible right.

However, M. Laboulaye is in perfect accord with himself when he adds, "Possession of the soil rests solely upon force until society takes it in hand, and espouses the cause of the possessor;" [62] and, a little farther, "The right of property is not natural, but social. The laws not only protect property: they give it birth," &c. Now, that which the law has made the law can unmake; especially since, according to M. Laboulaye,--an avowed partisan of the historical or pantheistic school,--the law is not absolute, is not an idea, but a form.

But why is it that property is variable, and, unlike obligation, incapable of definition and settlement? Before affirming, somewhat boldly without doubt, that in right there are no absolute principles (the most dangerous, most immoral, most tyrannical--in a word, most anti-social--assertion imaginable), it was proper that the right of property should be subjected to a thorough examination, in order to put in evidence its variable, arbitrary, and contingent elements, and those which are eternal, legitimate, and absolute; then, this operation performed, it became easy to account for the laws, and to correct all the codes.

Now, this examination of property I claim to have made, and in the fullest detail; but, either from the public's lack of interest in an unrecommended and unattractive pamphlet, or--which is more probable--from the weakness of exposition and want of genius which characterize the work, the First Memoir on Property passed unnoticed; scarcely would a few communists, having turned its leaves, deign to brand it with their disapprobation. You alone, sir, in spite of the disfavor which I showed for your economical predecessors in too severe a criticism of them,--you alone have judged me justly; and although I cannot accept, at least literally, your first judgment, yet it is to you alone that I appeal from a decision too equivocal to be regarded as final.

It not being my intention to enter at present into a discussion of principles, I shall content myself with estimating, from the point of view of this simple and intelligible absolute, the theories of property which our generation has produced.

The most exact idea of property is given us by the Roman law, faithfully followed in this particular by the ancient legists. It is the absolute, exclusive, autocratic domain of a man over a thing,--a domain which begins by USUCAPTION, is maintained by POSSESSION, and finally, by the aid of PRESCRIPTION, finds its sanction in the civil law; a domain which so identifies the man with the thing, that the proprietor can say, "He who uses my field, virtually compels me to labor for him; therefore he owes me compensation."

I pass in silence the secondary modes by which property can be acquired,--_tradition, sale, exchange, inheritance_, &c.,--which have nothing in common with the origin of property.

Accordingly, Pothier said THE DOMAIN OF PROPERTY, and not simply PROPERTY. And the most learned writers on jurisprudence--in imitation of the Roman praetor who recognized a RIGHT OF PROPERTY and a RIGHT OF POSSESSION--have carefully distinguished between the DOMAIN and the right of USUFRUCT, USE, and HABITATION, which, reduced to its natural limits, is the very expression of justice; and which is, in my opinion, to supplant domanial property, and finally form the basis of all jurisprudence.

But, sir, admire the clumsiness of systems, or rather the fatality of logic! While the Roman law and all the savants inspired by it teach that property in its origin is the right of first occupancy sanctioned by law, the modern legists, dissatisfied with this brutal definition, claim that property is based upon LABOR. Immediately they infer that he who no longer labors, but makes another labor in his stead, loses his right to the earnings of the latter. It is by virtue of this principle that the serfs of the middle ages claimed a legal right to property, and consequently to the enjoyment of political rights; that the clergy were despoiled in '89 of their immense estates, and were granted a pension in exchange; that at the restoration the liberal deputies opposed the indemnity of one billion francs. "The nation," said they, "has acquired by twenty-five years of labor and possession the property which the emigrants forfeited by abandonment and long idleness: why should the nobles be treated with more favor than the priests?" [63]

This position is quite in harmony with my principles, and I heartily applaud the indignation of M. Lerminier; but I do not know that a proprietor was ever deprived of his property because UNWORTHY; and as reasonable, social, and even useful as the thing may seem, it is quite contrary to the uses and customs of property.

All usurpations, not born of war, have been caused and supported by labor. All modern history proves this, from the end of the Roman empire down to the present day. And as if to give a sort of legal sanction to these usurpations, the doctrine of labor, subversive of property, is professed at great length in the Roman law under the name of PRESCRIPTION.

The man who cultivates, it has been said, makes the land his own; consequently, no more property. This was clearly seen by the old jurists, who have not failed to denounce this novelty; while on the other hand the young school hoots at the absurdity of the first-occupant theory. Others have presented themselves, pretending to reconcile the two opinions by uniting them. They have failed, like all the _juste-milieux_ of the world, and are laughed at for their eclecticism. At present, the alarm is in the camp of the old doctrine; from all sides pour IN DEFENCES OF PROPERTY, STUDIES REGARDING PROPERTY, THEORIES OF PROPERTY, each one of which, giving the lie to the rest, inflicts a fresh wound upon property.

Consider, indeed, the inextricable embarrassments, the contradictions, the absurdities, the incredible nonsense, in which the bold defenders of property so lightly involve themselves. I choose the eclectics, because, those killed, the others cannot survive.

M. Troplong, jurist, passes for a philosopher in the eyes of the editors of "Le Droit." I tell the gentlemen of "Le Droit" that, in the judgment of philosophers, M. Troplong is only an advocate; and I prove my assertion.

M. Troplong is a defender of progress. "The words of the code," says he, "are fruitful sap with which the classic works of the eighteenth century overflow. To wish to suppress them... is to violate the law of progress, and to forget that a science which moves is a science which grows." [64]

Now, the only mutable and progressive portion of law, as we have already seen, is that which concerns property. If, then, you ask what reforms are to be introduced into the right of property? M. Troplong makes no reply; what progress is to be hoped for? no reply; what is to be the destiny of property in case of universal association? no reply; what is the absolute and what the contingent, what the true and what the false, in property? no reply. M. Troplong favors quiescence and _in statu quo_ in regard to property. What could be more unphilosophical in a progressive philosopher?

Nevertheless, M. Troplong has thought about these things. "There are," he says, "many weak points and antiquated ideas in the doctrines of modern authors concerning property: witness the works of MM. Toullier and Duranton." The doctrine of M. Troplong promises, then, strong points, advanced and progressive ideas. Let us see; let us examine:--

"Man, placed in the presence of matter, is conscious of a power over it, which has been given to him to satisfy the needs of his being. King of inanimate or unintelligent nature, he feels that he has a right to modify it, govern it, and fit it for his use. There it is, the subject of property, which is legitimate only when exercised over things, never when over persons."

M. Troplong is so little of a philosopher, that he does not even know the import of the philosophical terms which he makes a show of using. He says of matter that it is the SUBJECT of property; he should have said the OBJECT. M. Troplong uses the language of the anatomists, who apply the term SUBJECT to the human matter used in their experiments.

This error of our author is repeated farther on: "Liberty, which overcomes matter, the subject of property, &c." The SUBJECT of property is man; its OBJECT is matter. But even this is but a slight mortification; directly we shall have some crucifixions.

Thus, according to the passage just quoted, it is in the conscience and personality of man that the principle of property must be sought. Is there any thing new in this doctrine? Apparently it never has occurred to those who, since the days of Cicero and Aristotle, and earlier, have maintained that THINGS BELONG TO THE FIRST OCCUPANT, that occupation may be exercised by beings devoid of conscience and personality. The human personality, though it may be the principle or the subject of property, as matter is the object, is not the CONDITION. Now, it is this condition which we most need to know. So far, M. Troplong tells us no more than his masters, and the figures with which he adorns his style add nothing to the old idea.

Property, then, implies three terms: The subject, the object, and the condition. There is no difficulty in regard to the first two terms. As to the third, the condition of property down to this day, for the Greek as for the Barbarian, has been that of first occupancy. What now would you have it, progressive doctor?

"When man lays hands for the first time upon an object without a master, he performs an act which, among individuals, is of the greatest importance. The thing thus seized and occupied participates, so to speak, in the personality of him who holds it. It becomes sacred, like himself. It is impossible to take it without doing violence to his liberty, or to remove it without rashly invading his person. Diogenes did but express this truth of intuition, when he said: 'Stand out of my light!'"

Very good! but would the prince of cynics, the very personal and very haughty Diogenes, have had the right to charge another cynic, as rent for this same place in the sunshine, a bone for twenty-four hours of possession? It is that which constitutes the proprietor; it is that which you fail to justify. In reasoning from the human personality and individuality to the right of property, you unconsciously construct a syllogism in which the conclusion includes more than the premises, contrary to the rules laid down by Aristotle. The individuality of the human person proves INDIVIDUAL POSSESSION, originally called _proprietas_, in opposition to collective possession, _communio_.

It gives birth to the distinction between THINE and MINE, true signs of equality, not, by any means, of subordination. "From equivocation to equivocation," says M. Michelet, [65] "property would crawl to the end of the world; man could not limit it, were not he himself its limit. Where they clash, there will be its frontier." In short, individuality of being destroys the hypothesis of communism, but it does not for that reason give birth to domain,--that domain by virtue of which the holder of a thing exercises over the person who takes his place a right of prestation and suzerainty, that has always been identified with property itself.

Further, that he whose legitimately acquired possession injures nobody cannot be nonsuited without flagrant injustice, is a truth, not of INTUITION, as M. Troplong says, but of INWARD SENSATION, [66] which has nothing to do with property.

M. Troplong admits, then, occupancy as a condition of property. In that, he is in accord with the Roman law, in accord with MM. Toullier and Duranton; but in his opinion this condition is not the only one, and it is in this particular that his doctrine goes beyond theirs.

"But, however exclusive the right arising from sole occupancy, does it not become still more so, when man has moulded matter by his labor; when he has deposited in it a portion of himself, re-creating it by his industry, and setting upon it the seal of his intelligence and activity? Of all conquests, that is the most legitimate, for it is the price of labor.

"He who should deprive a man of the thing thus remodelled, thus humanized, would invade the man himself, and would inflict the deepest wounds upon his liberty."

I pass over the very beautiful explanations in which M. Troplong, discussing labor and industry, displays the whole wealth of his eloquence. M. Troplong is not only a philosopher, he is an orator, an artist. HE ABOUNDS WITH APPEALS TO THE CONSCIENCE AND THE PASSIONS. I might make sad work of his rhetoric, should I undertake to dissect it; but I confine myself for the present to his philosophy.

If M. Troplong had only known how to think and reflect, before abandoning the original fact of occupancy and plunging into the theory of labor, he would have asked himself: "What is it to occupy?" And he would have discovered that OCCUPANCY is only a generic term by which all modes of possession are expressed,--seizure, station, immanence, habitation, cultivation, use, consumption, &c.; that labor, consequently, is but one of a thousand forms of occupancy. He would have understood, finally, that the right of possession which is born of labor is governed by the same general laws as that which results from the simple seizure of things. What kind of a legist is he who declaims when he ought to reason, who continually mistakes his metaphors for legal axioms, and who does not so much as know how to obtain a universal by induction, and form a category?

If labor is identical with occupancy, the only benefit which it secures to the laborer is the right of individual possession of the object of his labor; if it differs from occupancy, it gives birth to a right equal only to itself,--that is, a right which begins, continues, and ends, with the labor of the occupant. It is for this reason, in the words of the law, that one cannot acquire a just title to a thing by labor alone. He must also hold it for a year and a day, in order to be regarded as its possessor; and possess it twenty or thirty years, in order to become its proprietor.

These preliminaries established, M. Troplong's whole structure falls of its own weight, and the inferences, which he attempts to draw, vanish.

"Property once acquired by occupation and labor, it naturally preserves itself, not only by the same means, but also by the refusal of the holder to abdicate; for from the very fact that it has risen to the height of a right, it is its nature to perpetuate itself and to last for an indefinite period.... Rights, considered from an ideal point of view, are imperishable and eternal; and time, which affects only the contingent, can no more disturb them than it can injure God himself." It is astonishing that our author, in speaking of the IDEAL, TIME, and ETERNITY, did not work into his sentence the DIVINE WINGS of Plato,--so fashionable to-day in philosophical works.

With the exception of falsehood, I hate nonsense more than any thing else in the world. PROPERTY ONCE ACQUIRED! Good, if it is acquired; but, as it is not acquired, it cannot be preserved. RIGHTS ARE ETERNAL! Yes, in the sight of God, like the archetypal ideas of the Platonists. But, on the earth, rights exist only in the presence of a subject, an object, and a condition. Take away one of these three things, and rights no longer exist. Thus, individual possession ceases at the death of the subject, upon the destruction of the object, or in case of exchange or abandonment.

Let us admit, however, with M. Troplong, that property is an absolute and eternal right, which cannot be destroyed save by the deed and at the will of the proprietor. What are the consequences which immediately follow from this position?

To show the justice and utility of prescription, M. Troplong supposes the case of a bona fide possessor whom a proprietor, long since forgotten or even unknown, is attempting to eject from his possession. "At the start, the error of the possessor was excusable but not irreparable. Pursuing its course and growing old by degrees, it has so completely clothed itself in the colors of truth, it has spoken so loudly the language of right, it has involved so many confiding interests, that it fairly may be asked whether it would not cause greater confusion to go back to the reality than to sanction the fictions which it (an error, without doubt) has sown on its way? Well, yes; it must be confessed, without hesitation, that the remedy would prove worse than the disease, and that its application would lead to the most outrageous injustice."

How long since utility became a principle of law? When the Athenians, by the advice of Aristides, rejected a proposition eminently advantageous to their republic, but also utterly unjust, they showed finer moral perception and greater clearness of intellect than M. Troplong. Property is an eternal right, independent of time, indestructible except by the act and at the will of the proprietor; and here this right is taken from the proprietor, and on what ground? Good God! on the ground of ABSENCE! Is it not true that legists are governed by caprice in giving and taking away rights? When it pleases these gentlemen, idleness, unworthiness, or absence can invalidate a right which, under quite similar circumstances, labor, residence, and virtue are inadequate to obtain. Do not be astonished that legists reject the absolute. Their good pleasure is law, and their disordered imaginations are the real cause of the EVOLUTIONS in jurisprudence.

"If the nominal proprietor should plead ignorance, his claim would be none the more valid. Indeed, his ignorance might arise from inexcusable carelessness, etc."

What! in order to legitimate dispossession through prescription, you suppose faults in the proprietor! You blame his absence,--which may have been involuntary; his neglect,--not knowing what caused it; his carelessness,--a gratuitous supposition of your own! It is absurd. One very simple observation suffices to annihilate this theory. Society, which, they tell us, makes an exception in the interest of order in favor of the possessor as against the old proprietor, owes the latter an indemnity; since the privilege of prescription is nothing but expropriation for the sake of public utility.

But here is something stronger:--

"In society a place cannot remain vacant with impunity. A new man arises in place of the old one who disappears or goes away; he brings here his existence, becomes entirely absorbed, and devotes himself to this post which he finds abandoned. Shall the deserter, then, dispute the honor of the victory with the soldier who fights with the sweat standing on his brow, and bears the burden of the day, in behalf of a cause which he deems just?"

When the tongue of an advocate once gets in motion, who can tell where it will stop? M. Troplong admits and justifies usurpation in case of the ABSENCE of the proprietor, and on a mere presumption of his CARELESSNESS. But when the neglect is authenticated; when the abandonment is solemnly and voluntarily set forth in a contract in the presence of a magistrate; when the proprietor dares to say, "I cease to labor, but I still claim a share of the product,"--then the absentee's right of property is protected; the usurpation of the possessor would be criminal; farm-rent is the reward of idleness. Where is, I do not say the consistency, but, the honesty of this law?

Prescription is a result of the civil law, a creation of the legislator. Why has not the legislator fixed the conditions differently?--why, instead of twenty and thirty years, is not a single year sufficient to prescribe?--why are not voluntary absence and confessed idleness as good grounds for dispossession as involuntary absence, ignorance, or apathy?

But in vain should we ask M. Troplong, the philosopher, to tell us the ground of prescription. Concerning the code, M. Troplong does not reason. "The interpreter," he says, "must take things as they are, society as it exists, laws as they are made: that is the only sensible starting-point." Well, then, write no more books; cease to reproach your predecessors--who, like you, have aimed only at interpretation of the law--for having remained in the rear; talk no more of philosophy and progress, for the lie sticks in your throat.

M. Troplong denies the reality of the right of possession; he denies that possession has ever existed as a principle of society; and he quotes M. de Savigny, who holds precisely the opposite position, and whom he is content to leave unanswered. At one time, M. Troplong asserts that possession and property are CONTEMPORANEOUS, and that they exist AT THE SAME TIME, which implies that the RIGHT of property is based on the FACT of possession,--a conclusion which is evidently absurd; at another, he denies that possession HAD ANY HISTORICAL EXISTENCE PRIOR TO PROPERTY,--an assertion which is contradicted by the customs of many nations which cultivate the land without appropriating it; by the Roman law, which distinguished so clearly between POSSESSION and PROPERTY; and by our code itself, which makes possession for twenty or thirty years the condition of property. Finally, M. Troplong goes so far as to maintain that the Roman maxim, _Nihil comune habet proprietas cum possessione_--which contains so striking an allusion to the possession of the _ager publicus_, and which, sooner or later, will be again accepted without qualification--expresses in French law only a judicial axiom, a simple rule forbidding the union of an _action possessoire_ with an _action petitoire_,--an opinion as retrogressive as it is unphilosophical.