Des opinions des jurisconsultes sur l'origine et la nature de la propriété.

CHAP. 47: On the opinions of jurists on the origin and nature of property.

THE distinction between the 'thine' and the 'mine' is as old as the world; there is none that penetrates more promptly into the mind of man; children know it long before they know how to speak.

The simplest, most elementary ideas of property are therefore among the first that are formed in the human intelligence; they are understood by the least enlightened people, and yet there are few that give rise to more discussions.

If one observes what men ordinarily understand by properties, one sees that they generally designate by this word material things, having qualities that render them fit to procure us some enjoyments, considered relative to the persons who can enjoy or dispose of them in the natural order of production or transmission, and guaranteed to these persons by the public authority.

There are, however, certain properties, such as commercial funds, clienteles, which consist in no material object, and which nevertheless have a more or less considerable value; but properties of this kind have a price only because they produce material objects, whose enjoyment and disposition are assured to the proprietors.

In explaining how properties are formed, and in seeking to make known their nature and object, I have attached to this word only its common sense, that which it has in the ordinary practice of life, and not that which some jurists or some philosophers have given it.

It seems evident to me, in effect, that whenever a man speaks of his properties, he generally designates material objects, objects that can either satisfy his needs, or procure him certain enjoyments; objects that he has formed or regularly acquired, and of which he can enjoy or dispose; objects, finally, whose exclusive enjoyment and disposition are guaranteed to him by the public authority.

It is in the same sense that this word is understood by the constitutions that guarantee to each the disposition and enjoyment of what belongs to him, and by the laws that repress the infringements made against it; men exist only by things, and one cannot attack their properties without attacking their means of existence.

I have previously observed that the jurists who had exclusively devoted themselves to the study of Roman laws or the laws that emerged from the feudal regime, instead of studying the nature of things, could not have formed exact ideas of property; the history of the Romans and of the peoples subject to the feudal regime is composed, in effect, of a long series of infringements against properties, infringements that were always sanctioned by the public power.

In their relations with foreigners, the Romans recognized almost no properties; for them, every war had for its object to seize the goods of their enemies, and to reduce their persons to servitude. They put into the pillage and distribution of booty the order that a good commercial house puts into the management of its affairs; never, before them, had any people so skillfully organized brigandage.

In their internal relations, properties were not much more respected. A part of the population, the class of masters, lived from the extortions it exercised over another part, over the class of slaves. Under such a regime, it was not possible to admit as a principle that all value belongs to him who creates it. It is incontestable, for us, that all property comes originally from labor; but how could this truth have been recognized, in a time when the workers were considered the property of a people of the idle?

In the relations that non-slave men had among themselves, they did not have, with regard to one another, that kind of probity that one sometimes observes among men who have organized themselves for brigandage. The aristocracy seized the conquered lands, and had them cultivated for its profit by its slaves; it likewise had the arts and commerce exploited in its interest, so that it left to the mass of the free population no means of existence.

In their individual relations, they admitted that one citizen could become the property of another; a man had the faculty of alienating his wife, his children, and his grandchildren, and of selling himself; the debtor who could not pay his debts became the property of his creditor.

When factions began to tear the republic apart, the Romans brought into the civil wars the spirit of rapacity that animated them in their wars with other nations: the vanquished were despoiled for the profit of the victors.

Under the reign of the emperors, properties were no more respected than in the time of the republic; the extortions of the idle population over the laboring classes continued; the masters, who despoiled their slaves, were in their turn despoiled by the emperors; the nations became in some sort the property of one man.

The barbarian peoples who overthrew the Roman empire seized men and things; as they engaged in no kind of industry, it is evident that they could live only by extortions.

The feudal system was only a new mode of oppression and pillage. The royal despotism that followed it was not much more favorable to the research and recognition of the principles of property.

It was necessary to recall these facts, to make it understood how writers who lacked neither knowledge nor talent were bound to go astray in going to seek the foundations of property among the peoples of antiquity or among the nations of the Middle Ages; it is not among possessors of slaves, accustomed to living by pillage, that they could find the truth.

Grotius gave us the history of property in half a page, and he went back as far as creation. He informs us that after the creation of the world, God conferred upon the human race a general right over all things. This right was a second time given to all men after the deluge.

"This," he says, "meant that each could take for his use what he wanted, and consume what could be consumed. This state," he adds, "could have lasted, if men had remained as they were, in a great simplicity of morals."

Having recounted how the human race was obliged to divide itself into nations, and how in each nation men enjoyed everything in common, he continues in these terms:

"This lasted until the number of men, as well as that of animals, having increased, the lands, which were previously divided into nations, began to be shared by families; and because wells are of a very great necessity in dry countries, and they cannot suffice for a very great number, each appropriated those he could seize."

The writers who came after Grotius, such as Wolff, Puffendorf, Burlamaqui, limited themselves to paraphrasing his ideas: all imagined that, in the origin of the world, men, to satisfy their needs, had only to take what was at hand. In reading them, one would be tempted to believe that houses rose to the sound of the lyre; that, in arid countries, wells formed at the simple command of the men who needed them; and that, since the primitive sharing of lands, no revolution has troubled the co-sharers in their possession.

Finally, Montesquieu arrives. As property holds a very considerable place in the laws of all polished peoples, one might have flattered oneself that it would hold a no less extensive one in L'Esprit des lois. But it is not so: this great publicist does not devote even a simple chapter to this vast subject; he speaks of it only to inform us that one must not regulate by political laws matters that must be regulated by civil laws. For the rest, he does not take a step further than Grotius and Puffendorf.

"As men," he says, "have renounced their natural independence, to live under political laws, they have renounced the natural community of goods, to live under civil laws. These first laws acquired for them liberty, the second property [^309]."

All goods, according to Montesquieu, were therefore common among all men; which proves that, in his opinion, goods existed independently of all human labor. This is the thought of Grotius: Each could take for his use what he wanted, and consume what could be consumed.

Montesquieu thinks, moreover, that property owes its existence only to civil law; from which one could conclude that all properties were formed by legislators, that is to say, by princes or by their counselors. I point out this opinion, because we are about to find it again in the writings of another celebrated jurist.

Blackstone appears after Montesquieu, and he attempts to go a little further than the writers who preceded him. One would even believe at first that he saw the nature and origin of properties better than the others. His words are so remarkable that I must report them.

"There is nothing," he says, "which so generally strikes the imagination, and is an object of affection for men, as the right of property, that is to say, of the absolute power that each man claims and exercises over the external things of this world, to the exclusion of the right of any other individual in the universe.

"There are, however, very few persons who will take the trouble to consider the origin and foundations of this right. Satisfied as we are with possession, it seems that we dare not look at the means by which it was acquired, as if we were afraid of discovering some flaw in our title! We remain at least satisfied with the decision of the laws in our favor, without examining the reason or the authority on which these laws are founded."» We think it is enough that our title derives from the grant made to us by a first proprietor, by transmission from our ancestors, or by the testament of the individual to whom it belonged, not troubling ourselves to reflect that, properly speaking, one does not see, in nature, nor in natural law, why a series of words on parchment should transfer the property of a land from one person to another; why a son should have the right to exclude his fellow men from a determined space of land, on the grounds that his father had it before him; or why the possessor of a field or a movable, lying on his deathbed, and incapable of retaining possession of it any longer, should be authorized to declare to all men which one among them, after him, will have the right to enjoy and dispose of it.

» These inquiries, adds Blackstone, would be useless and fatiguing in the ordinary course of life; it is quite enough that mankind obeys the laws when they are made, without inquiring into the reasons one had for making them; but, when the laws must be considered, not only as an object of practice, but as a science founded on reason, it cannot be useless to examine more deeply the elements and the bases of these positive constitutions of society [^310]. »

After such a beginning, one imagines that Blackstone will indeed expound, in a philosophical manner, the nature and foundations of property; but he does nothing of the sort. He follows in the wake of Grotius and his disciples; he goes back to the creation of the world; he takes a passage from the Bible, and, with the aid of this passage, he explains the formation of all properties.

Finally, a philosopher-jurist arrives, free from all kinds of prejudices, and rejecting the authority of books, legislators, and ancient opinions: it is Bentham. He proposes to make known to us the nature and foundations of property, which no one before him had well explained.

"To better feel the benefit of the law," he says, "let us seek to form a clear idea of property. We will see that there is no natural property, that it is solely the work of the law.

» Property is only a basis of expectation: the expectation of deriving certain advantages from the thing one is said to possess, in consequence of the relationships in which one is already placed with regard to it.

» There is no image, no painting, no visible feature that can express this relationship that constitutes property. This is because it is not material, but metaphysical; it belongs entirely to the conception of the mind.

» The idea of property consists in an established expectation, in the persuasion of being able to derive such or such an advantage, according to the nature of the case. Now, this persuasion, this expectation, can only be the work of the law. I can count on the enjoyment of what I regard as mine, only on the promise of the law that guarantees it to me.

« Property and law are born together and will die together. Before laws, no property; take away laws, all property ceases [^311]. »

Bentham falls into the same error as Montesquieu; he imagines that a nation departs from its natural state when it makes progress in civilization; when it develops by following the laws of its nature. Having refuted this error elsewhere, I believe it useless to dwell on it here. If nations can exist only by means of their properties, it is impossible to admit that there is no natural property, unless one recognizes that it is not natural for men to live and to perpetuate themselves.

It is very true that there is no image, no painting, no visible feature that can represent property in general; but one cannot conclude from this that property is not material, but metaphysical, and that it belongs entirely to the conception of the mind.

There is also no visible feature by the aid of which one can represent a man in general; because, in nature, there are only individuals, and what is true for men is also true for things.

Individuals, families, peoples exist by means of their properties; they could not live on metaphysical relationships or on conceptions of the mind. There is in a property something more real, more substantial than a basis of expectation. One gives a false, or at least very incomplete, idea of them when one defines them as a lottery ticket, which is also a basis of expectation.

According to Montesquieu and Bentham, it is civil law that gives birth to property, and it is evident that both understand, by civil law, the declarations of the public power that determine the goods that each may enjoy and dispose of. It would perhaps be more exact to say that it is properties that have given birth to civil laws; for one does not see what need a tribe of savages, among whom no kind of property existed, could have of laws and government. The guarantee of properties is doubtless one of the essential elements of which they are composed; it increases their value, it ensures their duration. One would commit a grave error, however, if one imagined that the guarantee alone composes the whole of property; it is civil law that gives the guarantee, but it is human industry that gives birth to properties. The public authority needs to show itself only to protect them, to assure to each the faculty of enjoying and disposing of them.

If it were true that property exists or was created only by the declarations and by the protection of the public authority, it would follow that the men who, in each country, are invested with legislative power, would be invested with the faculty of making properties by their decrees, and that they could, without infringing upon them, despoil some for the profit of others: they would have no other rules to follow than their desires or their caprices.

Bentham and Montesquieu are not the only writers who have admitted, as a principle, that property does not exist by the laws of our nature. "Property," said an author of our time, "did not exist in the primitive state of the world, and it is no more inherent in human nature than heredity. [^312]" This is the opinion of Montesquieu on heredity as on property; for this illustrious writer did not admit that, according to the laws of our nature, children were called to receive the succession of their father.

The practical jurists, the commentators or compilers of civil laws, have not known the origin and nature of property any better than the others. Pothier, who had such a just mind, and who brought so much sagacity to all discussions of jurisprudence, saw only what the Roman jurists had observed before him. In his work on property, he treats of the means of acquiring, the most used among a barbarous people; but one does not find there a single word on the manner in which properties are formed among civilized nations. He treats, for example, of occupation, hunting, fishing, fowling, wrecks, things cast up by the sea, booty taken from the enemy, conquests, prizes of corsairs, prisoners of war and their ransom, in a word, of all the means exclusively esteemed by a tribe of barbarians; he says nothing of the means that enrich a civilized people.

One of the writers of our time, who has placed himself, by his works, in the rank of the first jurists, has attempted to explain the nature, origin, and progress of property; but he has not gone much further than Wolff and Puffendorf. Admitting, as a demonstrated fact, the system of J.-J. Rousseau on the natural state of man, he thought that before the establishment of the civil state, the land belonged to no one, and that the fruits belonged to the first occupant. He believed that men, spread over the globe, lived in a state that authors have called negative community, which consisted, he says, in that the things common to all did not belong more to each of them in particular than to the others, and in that none could prevent another from taking from them what he judged appropriate, to use for his needs. This is the novel of Grotius. The author shares, moreover, the opinion of Bentham and Montesquieu, and confuses properties with the guarantees they obtain from civil laws and political laws [^313].

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Notes

[^309]: Esprit des lois, bk. XXVI, ch. 15. [^310]: Comment., bk. II, ch, 1. [^311]: Traité de législation, vol. 2, p. 33 and 35. [^312]: Institutions du droit de la nature et des gens; by citizen Gérard de Rayneval, page 96. [^313]: Le droit civil français suivant l'ordre du Code, by M. Toullier, volume 3, 40, § 64.