Occupation and civil law as efficient bases of property.
The Roman law defined property as the right to use and abuse one’s own within the limits of the law — jus utendi et abutendi re sua, guatenus juris ratio patitur. A justification of the word abuse has been attempted, on the ground that it signifies, not senseless and immoral abuse, but only absolute domain. Vain distinction! invented as an excuse for property, and powerless against the frenzy of possession, which it neither prevents nor represses. The proprietor may, if he chooses, allow his crops to rot under foot, sow his field with salt, milk his cows on the sand, change his vineyard into a desert, and use his vegetable-garden as a park: do these things constitute abuse, or not? In the matter of property, use and abuse are necessarily indistinguishable.
According to the Declaration of Rights, published as a preface to the Constitution of ’93, property is “the right to enjoy and dispose at will of one’s goods, one’s income, and the fruit of one’s labour and industry.”
Code Napoléon, article 544: “Property is the right to enjoy and dispose of things in the most absolute manner, provided we do not overstep the limits prescribed by the laws and regulations.”
These two definitions do not differ from that of the Roman law: all give the proprietor an absolute right over a thing; and as for the restriction imposed by the code — provided we do not overstep the limits prescribed by the laws and regulations — its object is not to limit property, but to prevent the domain of one proprietor from interfering with that of another. That is a confirmation of the principle, not a limitation of it.
There are different kinds of property: 1. Property pure and simple, the dominant and seigniorial power over a thing; or, as they term it, naked property. 2. Possession. “Possession,” says Duranton, “is a matter of fact, not of right.” Toullier: “Property is a right, a legal power; possession is a fact.” The tenant, the farmer, the commandité, the usufructuary, are possessors; the owner who lets and lends for use, the heir who is to come into possession on the death of a usufructuary, are proprietors. If I may venture the comparison: a lover is a possessor, a husband is a proprietor.
This double definition of property — domain and possession — is of the highest importance; and it must be clearly understood, in order to comprehend what is to follow.
From the distinction between possession and property arise two sorts of rights: the jus in re, the right in a thing, the right by which I may reclaim the property which I have acquired, in whatever hands I find it; and the jus ad rem, the right to a thing, which gives me a claim to become a proprietor. Thus the right of the partners to a marriage over each other’s person is the jus in re; that of two who are betrothed is only the jus ad rem. In the first, possession and property are united; the second includes only naked property. With me who, as a worker, have a right to the possession of the products of Nature and my own industry, — and who, as a proletarian, enjoy none of them, — it is by virtue of the jus ad rem that I demand admittance to the jus in re.
This distinction between the jus in re and the jus ad rem is the basis of the famous distinction between possessoire and pétitoire, — actual categories of jurisprudence, the whole of which is included within their vast boundaries. Pétitoire refers to every thing relating to property; possessoire to that relating to possession. In writing this memoir against property, I bring against universal society an action pétitoire: I prove that those who do not possess to-day are proprietors by the same title as those who do possess; but, instead of inferring therefrom that property should be shared by all, I demand, in the name of general security, its entire abolition. If I fail to win my case, there is nothing left for us (the proletarian class and myself) but to cut our throats: we can ask nothing more from the justice of nations; for, as the code of procedure (art. 26) tells us in its energetic style, the plaintiff who has been non-suited in an action pétitoire, is debarred thereby from bringing an action possessoire. If, on the contrary, I gain the case, we must then commence an action possessoire, that we may be reinstated in the enjoyment of the wealth of which we are deprived by property. I hope that we shall not be forced to that extremity; but these two actions cannot be prosecuted at once, such a course being prohibited by the same code of procedure.
Before going to the heart of the question, it will not be useless to offer a few preliminary remarks.
The Declaration of Rights has placed property in its list of the natural and inalienable rights of man, four in all: liberty, equality, property, security. What rule did the legislators of ’93 follow in compiling this list? None. They laid down principles, just as they discussed sovereignty and the laws; from a general point of view, and according to their own opinion. They did every thing in their own blind way.
If we can believe Toullier: “The absolute rights can be reduced to three: security, liberty, property.” Equality is eliminated by the Rennes professor; why? Is it because liberty implies it, or because property prohibits it? On this point the author of Droit Civil Expliqué is silent: it has not even occurred to him that the matter is under discussion.
Nevertheless, if we compare these three or four rights with each other, we find that property bears no resemblance whatever to the others; that for the majority of citizens it exists only potentially, and as a dormant faculty without exercise; that for the others, who do enjoy it, it is susceptible of certain transactions and modifications which do not harmonise with the idea of a natural right; that, in practice, governments, tribunals, and laws do not respect it; and finally that everybody, spontaneously and with one voice, regards it as chimerical.
Liberty is inviolable. I can neither sell nor alienate my liberty; every contract, every condition of a contract, which has in view the alienation or suspension of liberty, is null: the slave, when he plants his foot upon the soil of liberty, at that moment becomes a free man. When society seizes a malefactor and deprives him of his liberty, it is a case of legitimate defence: whoever violates the social compact by the commission of a crime declares himself a public enemy; in attacking the liberty of others, he compels them to take away his own. Liberty is the original condition of man; to renounce liberty is to renounce the nature of man: after that, how could we perform the acts of man?
To sum up: liberty is an absolute right, because it is to man what impenetrability is to matter, — a sine qua non of existence; equality is an absolute right, because without equality there is no society; security is an absolute right, because in the eyes of every man his own liberty and life are as precious as another’s. These three rights are absolute; that is, susceptible of neither increase nor diminution; because in society each associate receives as much as he gives, — liberty for liberty, equality for equality, security for security, body for body, soul for soul, in life and in death.
But property, in its derivative sense, and by the definitions of law, is a right outside of society; for it is clear that, if the wealth of each was social wealth, the conditions would be equal for all, and it would be a contradiction to say: property is a man’s right to dispose at will of social property. Then if we are associated for the sake of liberty, equality, and security, we are not associated for the sake of property; then if property is a natural right, this natural right is not social, but anti-social. Property and society are utterly irreconcilable institutions. It is as impossible to associate two proprietors as to join two magnets by their opposite poles. Either society must perish, or it must destroy property.
If property is a natural, absolute, imprescriptible, and inalienable right, why, in all ages, has there been so much speculation as to its origin? — for this is one of its distinguishing characteristics. The origin of a natural right! Good God! who ever inquired into the origin of the rights of liberty, security, or equality? They exist by the same right that we exist; they are born with us, they live and die with us. With property it is very different, indeed. By law, property can exist without a proprietor, like a quality without a subject. It exists for the human being who as yet is not, and for the octogenarian who is no more. And yet, in spite of these wonderful prerogatives which savour of the eternal and the infinite, they have never found the origin of property; the doctors still disagree. On one point only are they in harmony: namely, that the validity of the right of property depends upon the authenticity of its origin. But this harmony is their condemnation. Why have they acknowledged the right before settling the question of origin?
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 labour 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.
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 labour, 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 labour, posits a priori the equality of the means of labour, abandoning thereafter to each worker 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 labour 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 proletarian washed overboard by the wave of civilisation, 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 proletarian abandons himself to the waves; or, if he attempts to land upon the shore of property, the proprietor takes aim, and kills him.
Shameful equivocation, not justified by the necessity for generalisation! 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, &c. 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.
In fact, to become a proprietor, in M. Cousin’s opinion, one must take possession by occupation and labour. I maintain that the element of time must be considered also; for if the first occupants have occupied every thing, what are the new comers to do? What will become of them, having an instrument with which to work, but no material to work upon? Must they devour each other? A terrible extremity, unforeseen by philosophical prudence; for the reason that great geniuses neglect little things.
Notice also that M. Cousin says that neither occupation nor labour, taken separately, can legitimate the right of property; and that it is born only from the union of the two. This is one of M. Cousin’s eclectic turns, which he, more than any one else, should take pains to avoid. Instead of proceeding by the method of analysis, comparison, elimination, and reduction (the only means of discovering the truth amid the various forms of thought and whimsical opinions), he jumbles all systems together, and then, declaring each both right and wrong, exclaims: “There you have the truth.”
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 new comer is afterwards to become an heir, the right of succession does not give him the right of accumulation, but only the right of choice?
I have followed M. Cousin so far as to imitate his style, and I am ashamed of it. Do we need such high-sounding terms, such sonorous phrases, to say such simple things? Man needs to labour in order to live; consequently, he needs tools to work with and materials to work upon. His need to produce constitutes his right to produce. Now, this right is guaranteed him by his fellows, with whom he makes an agreement to that effect. One hundred thousand men settle in a large country like France with no inhabitants: each man has a right to 1/100,000 of the land. If the number of possessors increases, each one’s portion diminishes in consequence; so that, if the number of inhabitants rises to thirty-four millions, each one will have a right only to 1/34,000,000. Now, so regulate the police system and the government, labour, exchange, inheritance, &c., that the means of labour shall be shared by all equally, and that each individual shall be free; and then society will be perfect.
Pothier seems to think that property, like royalty, exists by divine right. He traces back its origin to God himself — ab Jove principium. He begins in this way:
“God is the absolute ruler of the universe and all that it contains: Domini est terra et plenitudo ejus, orbis et universi qui habitant in eo. For the human race he has created the earth and all its creatures, and has given it a control over them subordinate only to his own. ‘Thou madest him to have dominion over the works of thy hands; thou hast put all things under his feet,’ says the Psalmist. God accompanied this gift with these words, addressed to our first parents after the creation: ‘Be fruitful, and multiply and replenish the earth,’ etc.”
After this magnificent introduction, who would refuse to believe the human race to be an immense family living in brotherly union, and under the protection of a venerable father? But, heavens! are brothers enemies? Are fathers unnatural, and children prodigal?
God gave the earth to the human race: why then have I received none? He has put all things under my feet, — and I have not where to lay my head! Multiply, he tells us through his interpreter, Pothier. Ah, learned Pothier! that is as easy to do as to say; but you must give moss to the bird for its nest.
“The human race having multiplied, men divided among themselves the earth and most of the things upon it; that which fell to each, from that time exclusively belonged to him. That was the origin of the right of property.”
Say, rather, the right of possession. Men lived in a state of communism; whether positive or negative it matters little. Then there was no property, not even private possession. The genesis and growth of possession gradually forcing people to labour for their support, they agreed either formally or tacitly, — it makes no difference which, — that the worker should be sole proprietor of the fruit of his labour; that is, they simply declared the fact that thereafter none could live without working. It necessarily followed that, to obtain equality of products, there must be equality of labour; and that, to obtain equality of labour, there must be equality of facilities for labour. Whoever without labour got possession, by force or by strategy, of another’s means of subsistence, destroyed equality, and placed himself above or outside of the law. Whoever monopolised the means of production on the ground of greater industry, also destroyed equality. Equality being then the expression of right, whoever violated it was unjust.
Thus, labour gives birth to private possession; the right in a thing — jus in re. But in what thing? Evidently in the product, not in the soil. So the Arabs have always understood it; and so, according to Caesar and Tacitus, the Germans formerly held. “The Arabs,” says M. de Sismondi, “who admit a man’s property in the flocks which he has raised, do not refuse the crop to him who planted the seed; but they do not see why another, his equal, should not have a right to plant in his turn. The inequality which results from the pretended right of the first occupant seems to them to be based on no principle of justice; and when all the land falls into the hands of a certain number of inhabitants, there results a monopoly in their favour against the rest of the nation, to which they do not wish to submit.”
Well, they have shared the land. I admit that therefrom results a more powerful organisation of labour; and that this method of distribution, fixed and durable, is advantageous to production: but how could this division give to each a transferable right of property in a thing to which all had an inalienable right of possession? In the terms of jurisprudence, this metamorphosis from possessor to proprietor is legally impossible; it implies in the jurisdiction of the courts the union of possessoire and pétitoire; and the mutual concessions of those who share the land are nothing less than traffic in natural rights. The original cultivators of the land, who were also the original makers of the law, were not as learned as our legislators, I admit; and had they been, they could not have done worse: they did not foresee the consequences of the transformation of the right of private possession into the right of absolute property. But why have not those, who in later times have established the distinction between jus in re and jus ad rem, applied it to the principle of property itself?
Let me call the attention of the writers on jurisprudence to their own maxims.
The right of property, provided it can have a cause, can have but one — Dominium non potest nisi ex una causa contingere. I can possess by several titles; I can become proprietor by only one — Non ut ex pluribus causis idem nobis deberi potest, ita ex pluribus causis idem potest nostrum esse. The field which I have cleared, which I cultivate, on which I have built my house, which supports myself, my family, and my livestock, I can possess: 1st As the original occupant; 2nd As a worker; 3rd By virtue of the social contract which assigns it to me as my share. But none of these titles confer upon me the right of property. For, if I attempt to base it upon occupancy, society can reply, “I am the original occupant.” If I appeal to my labour, it will say, “It is only on that condition that you possess.” If I speak of agreements, it will respond, “These agreements establish only your right of use.” Such, however, are the only titles which proprietors advance. They never have been able to discover any others. Indeed, every right — it is Pothier who says it — supposes a producing cause in the person who enjoys it; but in man who lives and dies, in this son of earth who passes away like a shadow, there exists, with respect to external things, only titles of possession, not one title of property. Why, then, has society recognised a right injurious to itself, where there is no producing cause? Why, in according possession, has it also conceded property? Why has the law sanctioned this abuse of power?
To satisfy the husbandman, it was sufficient to guarantee him possession of his crop; admit even that he should have been protected in his right of occupation of land, as long as he remained its cultivator. That was all that he had a right to expect; that was all that the advance of civilisation demanded. But property, property! the right of escheat [droit d’aubaine] over lands which one neither occupies nor cultivates, — who had authority to grant it? who pretended to have it?
The authority of the human race is of no effect as evidence in favour of the right of property, because this right, resting of necessity upon equality, contradicts its principle; the decision of the religions which have sanctioned it is of no effect, because in all ages the priest has submitted to the prince, and the gods have always spoken as the politicians desired; the social advantages, attributed to property, cannot be cited in its behalf, because they all spring from the principle of equality of possession.
What means, then, this dithyramb upon property?
“The right of property is the most important of human institutions.”...
Yes; as monarchy is the most glorious.
“The original cause of man’s prosperity upon earth.”
Because justice was supposed to be its principle.
“Property became the legitimate end of his ambition, the hope of his existence, the shelter of his family; in a word, the corner-stone of the domestic dwelling, of communities, and of the political State.”
Possession alone produced all that.
“Eternal principle —”
Property is eternal, like every negation, —
“Of all social and civil institutions.”
For that reason, every institution and every law based on property will perish.
“It is a boon as precious as liberty.”
For the rich proprietor.
“In fact, the cause of the cultivation of the habitable earth.”
If the cultivator ceased to be a tenant, would the land be worse cared for?
“The guarantee and the morality of labour.”
Under the regime of property, labour is not a condition, but a privilege.
“The application of justice.”
What is justice without equality of fortunes? A balance with false weights.
“All morality, —”
A famished stomach knows no morality, —
“All public order, —”
Certainly, the preservation of property, —
“Rest on the right of property.”
Corner-stone of all which is, stumbling-block of all which ought to be, — such is property.
To sum up and conclude:
Not only does occupation lead to equality, it prevents property. For, since every man, from the fact of his existence, has the right of occupation, and, in order to live, must have material for cultivation on which he may labour; and since, on the other hand, the number of occupants varies continually with the births and deaths, — it follows that the quantity of material which each worker may claim varies with the number of occupants; consequently, that occupation is always subordinate to population. Finally, that, inasmuch as possession, in right, can never remain fixed, it is impossible, in fact, that it can ever become property.
Every occupant is, then, necessarily a possessor or usufructuary, — a function which excludes proprietorship. Now, this is the right of the usufructuary: he is responsible for the thing entrusted to him; he must use it in conformity with general utility, with a view to its preservation and development; he has no power to transform it, to diminish it, or to change its nature; he cannot so divide the usufruct that another shall perform the labour while he receives the product. In a word, the usufructuary is under the supervision of society, submitted to the condition of labour and the law of equality.
Thus is annihilated the Roman definition of property — the right of use and abuse — an immorality born of violence, the most monstrous pretension that the civil laws ever sanctioned. Man receives his usufruct from the hands of society, which alone is the permanent possessor. The individual passes away, society is deathless.
What a profound disgust fills my soul while discussing such simple truths! Do we doubt these things to-day? Will it be necessary to again take arms for their triumph? And can force, in default of reason, alone introduce them into our laws?
All have an equal right of occupancy.
The amount occupied being measured, not by the will, but by the variable conditions of space and number, property cannot exist.
This no code has ever expressed; this no constitution can admit! These are axioms which the civil law and the law of nations deny!...
But I hear the exclamations of the partisans of another system: “Labour, labour! that is the basis of property!”
Reader, do not be deceived. This new basis of property is worse than the first, and I shall soon have to ask your pardon for having demonstrated things clearer, and refuted pretensions more unjust, than any which we have yet considered.
 An arresting observation in light of Proudhon’s patriarchal conceptions of marriage and family. (Editor)
 Quoting from the collection of Roman legal writings, Digest of Justinian. (Editor)
 Giraud, Investigations into the Right of Property among the Romans.