Des définitions de la propriété, par la puissance législative.

CHAP. 48: On the definitions of property, by the legislative power.

CELEBRATED philosophers and jurists have taught us, as we have seen in the preceding chapter, that property is not inherent in human nature, and that it owes its existence only to civil law, that is to say, to the declarations and protection of the public authority. This opinion has not been generally shared by the peoples who, after having conquered their independence, have been called upon to give to the legislative power an organization and limits. All, in effect, far from recognizing in this power the faculty of giving existence to property, have imposed upon it the duty of respecting and protecting it.

One finds at the head of almost all the American constitutions, the enumeration of the diverse objects that are, in a way, placed above all social powers, and which it is the duty of each of them to respect and to have respected: of this number are freedom of worship, the faculty of publishing one's opinion on all things, that of personal defense, that of acquiring and possessing properties and of defending them.

This example has been followed by France, in the diverse constitutions that she has given herself, or to which she has been subjected since the revolution of 1789. We read, in effect, in the title of the Fundamental Dispositions guaranteed by the constitution, of 3 September 1791, that the constitution guarantees the inviolability of properties, or the just and prior indemnity for those whose public necessity, legally ascertained, would require the sacrifice. We read there, moreover, that the legislative power may not make any law that infringes upon and places an obstacle to the exercise of the natural and civil rights recorded in the present title, and guaranteed by the constitution.

The constitution of 24 June 1793, the most democratic ever made, contains similar dispositions. It declares that the government is instituted to guarantee to man the enjoyment of his natural rights, and it places among these rights, equality, liberty, security, property. It defines property as the right that belongs to every citizen to enjoy and to dispose at his will of his goods, his revenues, the fruit of his labor and his industry. It adds then that no kind of labor, cultivation, or commerce can be forbidden to the industry of the citizens, and thus guarantees to each the faculty of forming new properties. Finally, after having made known what are the natural rights that the constitution guarantees, it declares that, when the government violates the rights of the people, insurrection is for the people, and for each portion of the people, the most sacred of rights and the most indispensable of duties.

These dispositions, with the exception of the last, were again proclaimed by the constitution of 5 Fructidor, Year III (22 August 1795). Thus, it is declared, by this constitution, that the rights of man in society are liberty, equality, security, property. Property is defined as the right to enjoy and dispose of one's goods, one's revenues, the fruit of one's labor and one's industry. Finally, it is declared that the constitution guarantees the inviolability of all properties, or the just indemnity for those whose public necessity, legally ascertained, would require the sacrifice [^314].

The consular constitution, of 22 Frimaire, Year VIII (13 December 1799), is mute on property in general, as on all the rights that the previous constitutions had guaranteed. It seems that the authors of this constitution foresaw that they would soon have to re-establish confiscation in the Penal Code, and that they were clearing away in advance the obstacles that could have opposed the accomplishment of their projects.

The Civil Code defines property as the right to enjoy and dispose of things in the most absolute manner, provided one does not make a use of them prohibited by laws or by regulations. It declares, moreover, that no one can be constrained to cede his property, except for cause of public utility, and by means of a just and prior indemnity [^315].

Finally, the charter of 1814, amended in 1830, declares that all properties are inviolable, without any exception of those that are called national, the law making no difference between them; and that the State can require the sacrifice of a property for cause of public interest legally ascertained, but with a prior indemnity [^316].

It results from the preceding dispositions that, by the constitutions of 1791, 1793, 1795, as by the charter of 1814, the intention was to place all properties beyond the infringements that could be made against them, not only by private individuals, but by the diverse powers of the State. The intention was that they should be safe from the enterprises of the Chambers and the king, as well as from the attacks of the ministers and their agents; for a constitution is no less obligatory for the powers that make the laws than for those that execute them. The public authority must therefore protect properties as it does persons; but it does not give existence to the ones any more than it gives it to the others.

Property has not changed its nature since 1789; and yet it has not always been defined in the same manner. In analyzing the diverse elements that constitute it, I have previously shown that in general, men designate by this word certain things considered relative to certain persons, and whose enjoyment and disposition are assured to the latter by the public authority. It is in the same sense that this word is understood by the laws that guarantee to each the disposition of his goods, and that repress the infringements made against them. It is clear, for example, that the law that determines the conditions under which a person can be obliged to cede his property to the State, for cause of public utility, understands, by this word, certain material objects, such as parcels of land or houses. It is no less evident that the laws that repress infringements of property generally understand, by the same expression, material things. The thieves who rob a traveler infringe upon his rights only by seizing material things that are his property.

However, the definitions given of property, either by the constitutions of 1793 and 1795, or by the Civil Code, make it consist, not in the things of which one has the right to enjoy and dispose, but in the right to enjoy and dispose of things. This difference in expressions is not, as one might be tempted to believe, without importance. It is easy to observe how these things, to which we give the name of properties, are formed, conserved, and transmitted; but it is less easy to observe how what are called rights are formed, conserved, and transmitted. The men who, in a nation, are invested with the power to make laws, will never raise the foolish pretension of being the creators of the things we call properties. One would not find it strange that they should claim to be the creators of all rights; it is not even very rare to see such pretensions manifest themselves.

If the definition of the Civil Code were admitted, it would follow that the legislative power, and even the simple agents of the government, could dispose of properties in the most absolute manner, without fear of being accused of infringing upon them. A law that forbade a person from sowing any kind of grain in his land, from planting vines or trees there, from erecting any construction there, or that prohibited him from selling, exchanging, or giving it away, would not be an infringement of property. Could one not say, in effect, after it had been passed, as before, that the proprietor has the right to enjoy and dispose of his thing in the most absolute manner, provided that he does not make a use of it prohibited by the laws? A person could therefore be stripped of almost all the advantages of property, without the definition of the Civil Code ceasing to be exact, and without one needing to modify it. It is not only by laws that properties could be reduced to nothing, but also by regulations.

The definition of the Civil Code is so inexact that it can be applied to anything other than the object defined, and that the most despotic governments could adopt it without making it undergo any modification, and without fearing that it would cause them any hindrance. A tenant farmer, a usufructuary, a user, have the right to enjoy and dispose in the most absolute manner of the thing they hold by title of farm, usufruct, or use, provided that they do not make a use of it prohibited by the laws or by the regulations. The Egyptians, crushed under the weight of monopolies, can, like us, enjoy and dispose of their goods in the most absolute manner, provided that they do not make a use of them prohibited by the laws and by the regulations of their pasha [^317].One should not be surprised if the men who have attempted to give, in a few lines, an exact and complete definition of property, have all failed; such a definition does not seem possible to me, short of devoting several volumes to it. It must be added that the influence of Roman laws, of the doctrines of the Middle Ages, and of the errors of a few great writers, was sufficient to lead the best minds astray.

Definitions given by the legislative power can be useful when they contain a command or a prohibition, or when their object is to determine acts that one is bound to execute or to refrain from; but when they have no other object than to make known the nature of things, they are useless and dangerous; they must be left to science. In matters of doctrine, a legislator has no more authority than a private individual, unless one begins by admitting as a principle that he is infallible.

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Notes

[^314]: Art. 1, 5 and 358. [^315]: Art. 544 and 545. [^316]: Art. 9 and 10. [^317]: A definition of property, by Robespierre, recently published by a political society, has aroused the indignation of a great number of people. This definition is not good; but it is no worse than others that are adopted without examination. It is founded on the very widespread error that it is civil law that gives existence to property.