De l'influence des garanties légales sur l'accroissement, la conservation et la valeur des propriété

CHAP. 45: On the influence of legal guarantees on the growth, conservation, and value of properties.

If one were to seek, either in ancient times or in modern times, nations among which all properties have been guaranteed against all kinds of infringements, one would probably have difficulty discovering a single one. There are doubtless several peoples who, in times still not far from us, have put, as much as the nature of things allowed, properties beyond the infringements that could be made against them by simple private individuals or by enemy armies. There are few who have organized themselves in such a way as to have nothing to fear from their own governments; there are few especially who, after having put their properties safe from irregular and violent spoliations, have guaranteed them from the infringements that can be made against them by taxes, monopolies, and loans that are profitable only for the men invested with public authority [^305].

If there are few nations among which properties of all kinds are safe from all infringements, there are also few, perhaps even none, among which properties are completely deprived of guarantees. The most arbitrary, the most despotic governments, prevent or punish as much as they can, the offenses or crimes committed against properties by simple private individuals, when these crimes are unprofitable for them. Thieves, when they are caught, are punished in Persia, in Turkey, in Russia, and in Austria, as they are among the freest nations; they are even punished more severely. Even the most despotic governments also seek to put the properties of the nations they govern beyond the infringements of foreign enemies, when they do not have a contrary interest; if they do not always succeed, it is because there are, in their nature, insurmountable obstacles.

Thus, when we speak of legal guarantees, these words do not have an absolute, invariable sense. A guarantee is a power, and all power is susceptible of more and less; a force can prevent or repress certain abuses, and not prevent or repress abuses of another kind. Between a nation that lacks no guarantee, and a nation delivered to a limitless arbitrariness, there is a multitude of intermediaries. If, therefore, we say that the properties of such or such a people are guaranteed, it must be understood that they are so, not in an absolute manner, but against such or such a kind of danger.

The wealth already accumulated, which plays such a great role in production, is, at least in very large part, a result of human industry; and the forces of nature, from which we draw such great help, would render us only weak services, if we did not take the trouble to direct them: there is therefore no property that can be produced without the mediate or immediate concurrence of the labor of man. But there is no kind of industry that one has learned without making any kind of sacrifice, no labor that has not been followed by fatigue; it is necessary, therefore, to determine us to devote ourselves to certain labors, that we have the hope of reaping the fruits of them. It is necessary that these labors can have for their results, either to procure certain enjoyments, for ourselves or for those who are the object of our affections, or to put us safe from certain pains. There are therefore properties produced only where the producer believes he has some guarantee of drawing an advantage from them.

In no position are men as devoid of guarantees as in the savage state. Every tribe that finds itself in such a state is continually exposed to the incursions and violence of neighboring tribes; each individual can be despoiled of what he possesses, by any man who is superior to him in strength. A man in such a state does not try to produce things that he would have no means of conserving; he seeks to obtain from nature only the things he can immediately consume, and without which he could not live. The hunt that furnishes him the most considerable part of his food, also furnishes him his clothing; and he needs only a few tree branches or a hole in the earth to make himself a shelter. The impossibility of conserving anything dispenses him from all economy; and he is as poor after having inhabited a land for half a century, as the day he came into the world [^306].

It has often happened that two peoples have simultaneously occupied the same soil; that one of them devoted itself to all the labors that the existence and well-being of men require, and that the other considered the soil and the men who cultivated it as its property. Such an order formerly existed among all the peoples of Greece and Italy; it still exists among several nations of the American continent, and in most of the colonies that the moderns have founded. This division of the population into two classes, one of which has nothing of its own, and the other of which possesses everything, although it produces nothing, is, in the eyes of the masters, as natural as the family itself. According to Aristotle, a slave was as essential an element in a family as a wife and children.

When two peoples are thus placed on the same soil, the individuals who belong to the slave population are despoiled of all guarantee relative to their masters. With regard to foreigners, they are protected by the same forces that form an obstacle to invasions: it is true that foreigners are never their enemies. Finally, relative to the individuals by whom they are not possessed, they are protected by the forces that guarantee the properties of their possessors. I have shown elsewhere, in speaking of the influence that domestic slavery exercises on the production, growth, and distribution of wealth, that wherever the laboring class is deprived of guarantees, properties grow only with extreme slowness [^307].When a country, after having risen to a certain degree of prosperity, has the misfortune to fall under the domination of a conquering army, and to be stripped of all guarantee, the vanquished devote themselves to labor only to produce the things that are rigorously necessary for them to exist and to supply the needs of their masters. Not only is no new property formed in such a state, but those that existed at the moment of the conquest fall rapidly into decay. The population dies out as its means of existence disappear, and it is always the least affluent families that are struck first by misery. Such is the fate experienced by all the peoples who have fallen under the domination of the Turks.

There is a state where, without being safe from all infringement, properties can nevertheless grow quite rapidly: it is that of a people who is beyond the infringements of its external enemies; who, internally, enjoys all the liberty necessary for the production of wealth; who, by a good organization of the judicial power, has almost nothing to fear from private individuals or from agents of the government; who can, in a word, be infringed in its properties only by means of taxes established and devoured by an aristocratic class; this state, toward which most European nations tend, was that of Great Britain, from the establishment of parliamentary government until the moment it reformed its House of Commons.

It is not possible, in effect, not to place in the rank of infringements of property the creation of a tax by one class of the population, on all the other classes, when this tax is established and consumed only in the interest of those who have ordered its collection. However, it is enough that it be distributed in a more or less equal manner, among all the members of society, and that it leave to the persons who pay it a more or less considerable share of the product of their industry, or of the revenues of their lands or their capitals, for it not to prevent the formation of new wealth, and not to be an obstacle to the conservation of properties formerly produced.

Men devote themselves to labor with more or less energy, according to whether the results they expect from it are more or less advantageous; they impose more or less privation upon themselves or take more or less pains to conserve the goods they have acquired, according to whether the enjoyment and free disposition of them are more or less assured to them; there is therefore no stimulant more active and more powerful than a true guarantee.

Although it is evident that the guarantee of properties is one of the principal causes of the prosperity of nations, it would be difficult to determine in an exact manner what value it adds to each of our goods. It would not be enough, to know this value, to compare what a house in Constantinople is worth, for example, to what a perfectly similar house in Paris would be worth. So many circumstances influence the value of things, that it is not possible to determine exactly the share of influence that belongs to each.

To resolve this question, it would be necessary to leave some properties without guarantees, alongside other similar properties that would be beyond all infringement. It would then suffice to see how much less the ones are worth than the others, to know the exact value of the guarantee. Such an experiment could not be made in a civilized nation; but an analogous experiment was made in the Middle Ages, and it will not be useless to report its results here.

Pope Celestine, who occupied the pontifical throne toward the end of the thirteenth century, had alienated the clergy by his exactions and his tyranny. His successor, Boniface VIII, wished to carry his authority further: he formed the design of subjecting all Christian princes to his domination. He could only achieve his goal with the cooperation of the clergy, and he could count on the clergy only insofar as he served their ambition or their cupidity. There were two means of achieving this: one was to share his own treasures with them; the other to enrich them, by exempting them from paying any tax. He took the latter, as being the easiest and least costly.

In consequence, at the beginning of his pontificate, around the year 1296, he published a bull, in which he forbade all Christian princes from levying, without his consent, any tax on the members of the clergy. Foreseeing that there would be princes who would not conform to his bull, he forbade, at the same time, all priests from paying any of the contributions that one might wish to demand of them. The penalty of excommunication was pronounced, against either the princes or the ecclesiastics who would render themselves guilty of disobedience.

The goods possessed by the clergy were immense, and it was impossible to exempt them from taxes without drying up one of the most abundant sources of the princes' revenues. A king of England, Edward I, pressed by the need for money, placed himself above the pope's bull: he had the members of the clergy ordered to pay the taxes as in the past. The monks, the abbots, the bishops, were people too conscientious and had too much religion to disobey the head of their church; they refused to pay, so as not to be excommunicated.

The prince having threatened to have their goods seized, the Primate of England, who had given the example of resistance, took it upon himself to justify their refusal to obey; he represented that the priests had two sovereigns, one spiritual, the other temporal; that they owed obedience to both, but that their duties toward the first were above their duties toward the second; that the former having forbidden them, under penalty of excommunication, to pay the taxes, they could not obey a king who ordered them to pay.

If Edward had executed his threats and had the clergy's goods seized, he would have raised public opinion against him and compromised his authority; for the peoples were then very devout, and the priests exercised a great power over them: he therefore had recourse to another means.

“I do not wish,” he said to the Primate, “to compel you to fail in your duties toward your spiritual prince; you can therefore conform to what he prescribes to you; but as there can be no government without taxes, and as it would not be just to make my other subjects pay for the protection of your persons and your goods, the government will cease to exist with regard to you. It will not attack your properties; but it will no longer guarantee them: if you have contracted obligations toward those of my subjects who are not ecclesiastics, you will be held to fulfill them, for your creditors having paid their share of the costs of public administration, have the right to be protected by it in the exercise of their rights; as for you, who pay nothing, you will protect your properties yourselves, and you will enforce the engagements made to you as you can; and if your own strength does not suffice, you will invoke the help of your spiritual sovereign.”

What this prince had announced was executed: all courts of justice were forbidden to grant justice on any of the claims or to listen to any of the complaints of the members of the clergy; they were at the same time ordered to continue to render justice to all the other inhabitants of the kingdom, even against the ecclesiastics. Thus, in the midst of peace, an immense quantity of properties found themselves suddenly deprived of legal guarantees, although no faction had seized the public powers to proscribe the proprietors.

The prohibition made by Edward to the courts of justice and to all the officers of the judicial order was not long in being known by the debtors and tenant farmers of the clergy; from that moment, both ceased to pay.

“Soon,” says the historian who recounts these facts, “the ecclesiastics found themselves in the most deplorable situation; they could not remain in their houses or in their convents for lack of subsistence; and, if they left them to seek resources or support, the brigands took their horses, stripped them of their clothing and insulted them, without fear of being repressed by justice. The Primate himself was attacked on a main road, and reduced, after having all his baggage taken from him, to retiring with a single servant to the house of a country ecclesiastic.”

Although placed in the alternative of dying of hunger or paying the taxes, the clergy did not lose courage: it launched the thunderbolts of excommunication against the brigands who would attack its properties, and against the faithless debtors who would not pay their debts.

The excommunication launched by Boniface VIII had been all-powerful: that of the archbishop produced no effect. It is true that the first freed the members of the clergy from a part of their debts, and that the second had for its object to guarantee them their goods.

Finally, the priests, finding themselves deprived of all means of existence, were obliged to capitulate: they consented, not to pay with their own hands the taxes they owed to the State, but to deposit, in whichever church would be indicated to them, a sum similar to that of which they were debtors; the king could have it taken there, if he consented to take on the sin [^308].

It was not in the nature of things that a considerable mass of properties should remain for long without guarantee; but, if such a state had had to continue, it would have been easy to be convinced that, with the exception of things that are consumed by the first use, and that are kept at hand, a property that is not guaranteed is a property that has almost no value.

If one wishes to determine, at least approximately, what value the legal guarantee adds to a property, it is enough to examine what are the principal circumstances that render a thing precious in our eyes, and to see how these circumstances are affected by the absence of all guarantee.

We must count, among these circumstances, the extent or the intensity of the enjoyments that the thing can give; the duration that they must have; the more or less great certainty of conserving the object that produces them, the number of persons who are to profit from them.

The privation of all guarantee completely removes the certainty of enjoying a property for a time long enough to be appreciated, and the lack of certainty destroys all the pleasure that the current possession could cause. The most beautiful land, the most magnificent mansion, would have few charms and little value for a man who could at any moment be dispossessed of them by force, and who would find no support in society. These goods, so estimable and so sought-after, when the enjoyment and disposition of them are assured, would be so little esteemed if they were not guaranteed, that we would not wish to make any expense to take possession of them. We would prefer a simple hut, of which we would have the certainty of always enjoying and disposing, to a castle from which we could at any moment be expelled.

The privation of guarantee that suffices to prevent the formation of all new property also suffices to make formerly formed properties disappear in a short time. However great the riches of the clergy of England were when Edward I put them outside the protection of the laws, they would have been promptly destroyed if they had continued to be the prey of the strongest. They would have suffered the fate that the riches of all the nations that have had the misfortune to fall under despotic governments have experienced.

The measure taken by Edward I would have been, however, less effective if, instead of striking monks, abbots, bishops or other members of the clergy, it had been directed against the cultivators, the manufacturers, the merchants. As a nation can live only by means of the products of its labors, it would take it upon itself to organize and protect its properties, if its government ceased to fulfill its functions. It is less difficult for a nation to find men within it to govern it, than for fallen princes to find peoples to govern.

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Notes

[^305]: One must never lose sight of the fact that the products of labor are the first, the most incontestable, and the most sacred of properties; that where slavery exists, in whatever form and under whatever denomination, the properties born of labor are seized as they are produced, and that, consequently, they are not guaranteed; finally, that monopolies, taxes, and loans that burden the products of labor, in an interest other than that of the workers, are even greater infringements on property than the confiscation that has supposedly been abolished. [^306]: See the Traité de législation, vol. II, chap. XIV, XXV, XXVI and XXVII. [^307]: Traité de législation, vol. IV, bk. V, chap. XIII, p. 237. [^308]: Hume, History of England.