De la garantie donnée aux possesseurs des biens acquis par usurpation, et des causes de cette garant

CHAP. 44: On the Guarantee Given to Possessors of Goods Acquired by Usurpation, and on the Causes of This Guarantee.IN explaining how private properties are formed, and how families and nations can, without despoiling anyone of his goods, arrive at the highest degree of prosperity, I have not said or wished to imply that men have never enriched themselves except by the means I have described. Such an affirmation, if I had made it, would have been contradicted by the history of all the nations of the globe, and especially by the facts I have reported in another work. There is, in effect, among all peoples, a more or less large number of families who owe the wealth they possess only to acts of violence or fraud. These families consider their goods as very legitimate properties, and receive from the authorities the same protection as persons who have enriched themselves only by their industry. Sometimes even, the protection they obtain is more prompt and more effective than that which the other members of society enjoy, especially under governments that are founded on the principle of conquest.

One can arrange acquisitions made by violence and fraud into four great classes: in the first, one can put those that are executed following conquest, when, for example, a foreign army establishes itself over an industrious nation, and seizes its means of existence; one can put in the second those that are executed following religious or political dissensions, when the stronger faction proscribes the weaker, and confiscates its properties; one can put in the third those that operate by privileges or monopolies, when, to enrich certain families, one attributes to them the faculty of exploiting certain branches of industry or commerce, and forbids it to the mass of the population; finally, one can put in the fourth the usurpations that are committed individually, as a result of the vices of the legislation, either to the prejudice of the public, or to the prejudice of some private individuals.

There is no nation in Europe that, at a more or less remote period, has not seen all sorts of spoliations committed on its territory. Before the invasion of the Romans, the population was everywhere divided into masters and slaves: which proves to us that industrious peoples had already been despoiled by warrior peoples. It is probable that wherever the Roman armies established themselves, they put themselves in the place of the old conquerors, and despoiled principally the descendants of the usurpers. It is equally probable that the Germanic peoples, who, in the fourth and fifth centuries, overthrew the Roman empire, substituted themselves particularly for the families of the conquerors who had preceded them. In Great Britain, for example, the Romans, who had dispossessed the Celts, were then dispossessed by the Saxons, who were, a few centuries later, dispossessed by the Normans. In all times, wealth has undergone the same revolutions as power: the men who despoiled certain classes of society of their power, despoiled them at the same time of their properties.

The spoliations committed by confiscations, following political or religious dissensions, have produced a less considerable displacement of wealth than those that formerly followed armed invasions; but they have nevertheless been the source of a considerable number of particular fortunes. The Christian peoples, before dividing into sects, and despoiling one another of their wealth, had proscribed the Jews by the thousands, in order to seize their goods. Later, it was the goods of dissident Christians that formed the fortune of the families who enjoyed great credit. On other occasions, the quarrels between men who disputed the possession of power have caused the wealth of the vanquished to pass into the hands of the victors.

Monopolies or privileges have been, among all industrious nations, the source of a great number of private fortunes. These means of enriching oneself at the public's expense have even been more often employed among peoples who, by their natural dispositions or by their situation, were called to conduct a great commerce, than among others. England and France have been more oppressed by monopolies of all kinds than the other European nations.

As for the fortunes acquired by particular abuses of power or by the vices of the laws, they are less numerous than those to which armed invasions formerly gave birth; but a rather large number of them always exist among all nations that, for a long time, have been subjected to bad governments; and as all known peoples have passed through such a state, there is none where one does not find fortunes whose source is not vicious.

When a nation invades a territory occupied by another, and seizes its means of existence, the population placed on the same soil remains for a long time divided into two castes: that of the victors and that of the vanquished. If the former remains separated from the latter, not only by a difference of origin, but by differences of religion and laws, and by the measures it takes to prevent the descendants of the vanquished from becoming proprietors, the war continues between the two races. The descendants of the victors find the guarantee of their possessions in their political and military organization, and in the division, weakness, and misery of the vanquished. The great questions of property that arise in such a state are ordinarily resolved only by force, and it is only revolutions that can establish the reign of justice and liberty.

If the two populations mix, if the alienations of immovable properties are authorized, if the class of the vanquished obtains some guarantees for the products of its industry, labor ends by giving industrious men preponderance over those who live in idleness. The aversion to labor and the taste for dissipation, which are always found in the castes accustomed to living on the products of the labor of others, do not delay in ruining the families that give themselves over to them, and that cannot repair the breaches made in their fortune by the monopoly of power. It then happens that the formerly usurped values are gradually consumed by those who had acquired them, and that they are replaced by the new values to which industry gives birth.

As much as men are inclined, by their natural tendency, to rise in the social order, so much do they feel a repugnance to descend or to see their posterity descend. Marriages generally produce fewer children in the high ranks of society than in the lower ranks. One fears little, in the latter, to see one's race fall, while in the former, this fear is a powerful brake. It results from this tendency that the families that, by caste prejudice, despise labor, and are inclined toward dissipation, cannot long perpetuate themselves, if they are obliged to respect the properties of others. If it were possible to follow, for several centuries, the lineage of the families that exist on our territory, it is doubtful that one would find many descendants, I do not say of the great Roman families that had established themselves there, but of the companions of Clovis. Supposing one found some, it is more doubtful still that one could find among the goods they possess a part of those that were acquired at the time of the conquest.

One can make similar observations on the goods acquired as a result of the confiscations that were the consequence of the religious proscriptions of the Middle Ages and of the sixteenth century; the families that were then despoiled, and those that seized their spoils, are for the most part extinct. If some of the latter still exist, they have probably ceased to possess goods that were formerly unjustly acquired. It would hardly be possible, moreover, to follow through the religious or political revolutions of which a vast country has been the theater, at several centuries' distance, all the mutations that have taken place in properties, and to distinguish those that were legitimate from those that were only usurpations.

When the families that formerly possessed a part of the territory as proprietors have died out, and the same lands have given birth to new families, the latter consider them as their properties. Men, in effect, do not believe they have the property only of the diverse objects they have formed by their industry; they also consider themselves as proprietors of the things to which they themselves owe their existence and without which they could not preserve themselves. The sole fact of possessing a thing is, among all peoples, a title to enjoy and dispose of it, when no one can produce a preferable title. A long and peaceful enjoyment as proprietor also suffices, among all nations, to transfer the property of a thing, when he who could have claimed it has not been prevented by any obstacle that he could not surmount.

These kinds of relationships that exist between men and the things by means of which they preserve and perpetuate themselves, dissolve and perish by the cessation of enjoyment or by abandonment, just as they are formed by possession. It even seems that when one has determined the duration of the time during which one would have to possess a thing to acquire it irrevocably, one has wished to take for a measure the average term of human life. The family that, for thirty years, has enjoyed a thing as proprietor, must have regulated its habits, its needs, its alliances according to the presumed state of its fortune. To despoil it of it after such a long possession would be to condemn it to ruin or even to destruction. The one, on the contrary, which, during the same duration of time, has drawn no kind of advantage from a thing, and which has not even manifested the will to enjoy it, is not condemned to impose upon itself any new privation, by remaining in the state in which it has so long lived.

As for the goods acquired at the public's expense, with the aid of monopolies or as a result of the vices of the laws, it would be difficult to deprive them of guarantee, without dealing a fatal infringement to the security of all proprietors. When a man has exercised, for a certain time, a more or less lucrative monopoly, it would not be possible to determine what part of his fortune he owes to the legitimate exercise of his industry or his commerce, and what part must be considered as the product of the privilege he has enjoyed. The good that could be the result of the reparation, being distributed among all the members of society, would be imperceptible; but the evil that would result from it would be immense. No one could any longer believe himself secure, if each could be called to account for the goods he had acquired under a legislation that had lacked justice or foresight.

When one observes the origin of some great fortunes that strike the eye, among a nation that has made great progress in industry, one can be struck by the scandalous manner in which they have been acquired; but they are neither very numerous, nor even very considerable, when one compares them to the mass of wealth that labor has formed and that is legitimately possessed. It is out of respect for the latter that one is obliged to guarantee the former, every time that one cannot reach them by means that the laws have determined. The same reason that opposes putting an unjustly acquitted man on trial again, opposes depriving of guarantee goods that have already obtained the protection of the laws. A nation that succeeded in putting all properties beyond infringements, not only of malefactors, but also of the members of its government, would already be so happy, that it would be madness on its part to compromise all guarantees to return to the past.

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