Let us admit, then, with the most careful writers, that if transient property, or the right of preference resulting from occupation, existed prior to the establishment of civil society, permanent property, as we know it to-day, is the work of civil law.It is the civil law which holds that, when once acquired, property can be lost only by the action of the proprietor, and that it exists even after the proprietor has relinquished possession of the thing, and it has fallen into the hands of a third party.
"Thus property and possession, which originally were confounded, became through the civil law two distinct and independent things;two things which, in the language of the law, have nothing whatever in common.In this we see what a wonderful change has been effected in property, and to what an extent Nature has been altered by the civil laws."Thus the law, in establishing property, has not been the expression of a psychological fact, the development of a natural law, the application of a moral principle.It has literally CREATED a right outside of its own province.It has realized an abstraction, a metaphor, a fiction; and that without deigning to look at the consequences, without considering the disadvantages, without inquiring whether it was right or wrong.
It has sanctioned selfishness; it has indorsed monstrous pretensions; it has received with favor impious vows, as if it were able to fill up a bottomless pit, and to satiate hell!
Blind law; the law of the ignorant man; a law which is not a law;the voice of discord, deceit, and blood! This it is which, continually revived, reinstated, rejuvenated, restored, re-enforced--as the palladium of society--has troubled the consciences of the people, has obscured the minds of the masters, and has induced all the catastrophes which have befallen nations.
This it is which Christianity has condemned, but which its ignorant ministers deify; who have as little desire to study Nature and man, as ability to read their Scriptures.
But, indeed, what guide did the law follow in creating the domain of property? What principle directed it? What was its standard?
Would you believe it? It was equality.
Agriculture was the foundation of territorial possession, and the original cause of property.It was of no use to secure to the farmer the fruit of his labor, unless the means of production were at the same time secured to him.To fortify the weak against the invasion of the strong, to suppress spoliation and fraud, the necessity was felt of establishing between possessors permanent lines of division, insuperable obstacles.Every year saw the people multiply, and the cupidity of the husbandman increase: it was thought best to put a bridle on ambition by setting boundaries which ambition would in vain attempt to overstep.Thus the soil came to be appropriated through need of the equality which is essential to public security and peaceable possession.Undoubtedly the division was never geographically equal; a multitude of rights, some founded in Nature, but wrongly interpreted and still more wrongly applied, inheritance, gift, and exchange; others, like the privileges of birth and position, the illegitimate creations of ignorance and brute force,--all operated to prevent absolute equality.But, nevertheless, the principle remained the same: equality had sanctioned possession; equality sanctioned property.
The husbandman needed each year a field to sow; what more convenient and simple arrangement for the barbarians,--instead of indulging in annual quarrels and fights, instead of continually moving their houses, furniture, and families from spot to spot,--than to assign to each individual a fixed and inalienable estate?
It was not right that the soldier, on returning from an expedition, should find himself dispossessed on account of the services which he had just rendered to his country; his estate ought to be restored to him.It became, therefore, customary to retain property by intent alone--_nudo animo;_ it could be sacrificed only with the consent and by the action of the proprietor.
It was necessary that the equality in the division should be kept up from one generation to another, without a new distribution of the land upon the death of each family; it appeared therefore natural and just that children and parents, according to the degree of relationship which they bore to the deceased, should be the heirs of their ancestors.Thence came, in the first place, the feudal and patriarchal custom of recognizing only one heir;then, by a quite contrary application of the principle of equality, the admission of all the children to a share in their father's estate, and, very recently also among us, the definitive abolition of the right of primogeniture.
But what is there in common between these rude outlines of instinctive organization and the true social science? How could these men, who never had the faintest idea of statistics, valuation, or political economy, furnish us with principles of legislation?
"The law," says a modern writer on jurisprudence, "is the expression of a social want, the declaration of a fact: the legislator does not make it, he declares it.`This definition is not exact.The law is a method by which social wants must be satisfied; the people do not vote it, the legislator does not express it: the savant discovers and formulates it.But in fact, the law, according to M.Ch.Comte, who has devoted half a volume to its definition, was in the beginning only the EXPRESSION OF A WANT, and the indication of the means of supplying it; and up to this time it has been nothing else.The legists--with mechanical fidelity, full of obstinacy, enemies of philosophy, buried in literalities--have always mistaken for the last word of science that which was only the inconsiderate aspiration of men who, to be sure, were well-meaning, but wanting in foresight.
