What is Property?
PRESCRIPTION GIVES NO TITLE TO PROPERTY
The right of property was the origin of evil on the earth, the first link in the long chain of crimes and misfortunes which the human race has endured since its birth. The delusion of prescription is the fatal charm thrown over the intellect, the death sentence breathed into the conscience, to arrest man’s progress towards truth, and bolster up the worship of error.
The Code defines prescription thus: “The process of gaining and losing through the lapse of time.” In applying this definition to ideas and beliefs, we may use the word prescription to denote the everlasting prejudice in favor of old superstitions, whatever be their object; the opposition, often furious and bloody, with which new light has always been received, and which makes the sage a martyr. Not a principle, not a discovery, not a generous thought but has met, at its entrance into the world, with a formidable barrier of preconceived opinions, seeming like a conspiracy of all old prejudices. Prescriptions against reason, prescriptions against facts, prescriptions against every truth hitherto unknown, — that is the sum and substance of the statu quo philosophy, the watchword of conservatives throughout the centuries.
When the evangelical reform was broached to the world, there was prescription in favor of violence, debauchery, and selfishness; when Galileo, Descartes, Pascal, and their disciples reconstructed philosophy and the sciences, there was prescription in favor of the Aristotelian philosophy; when our fathers of ’89 demanded liberty and equality, there was prescription in favor of tyranny and privilege. “There always have been proprietors and there always will be:” it is with this profound utterance, the final effort of selfishness dying in its last ditch, that the friends of social inequality hope to repel the attacks of their adversaries; thinking undoubtedly that ideas, like property, can be lost by prescription.
Enlightened to-day by the triumphal march of science, taught by the most glorious successes to question our own opinions, we receive with favor and applause the observer of Nature, who, by a thousand experiments based upon the most profound analysis, pursues a new principle, a law hitherto undiscovered. We take care to repel no idea, no fact, under the pretext that abler men than ourselves lived in former days, who did not notice the same phenomena, nor grasp the same analogies. Why do we not preserve a like attitude towards political and philosophical questions? Why this ridiculous mania for affirming that every thing has been said, which means that we know all about mental and moral science? Why is the proverb, There is nothing new under the sun, applied exclusively to metaphysical investigations?
Because we still study philosophy with the imagination, instead of by observation and method; because fancy and will are universally regarded as judges, in the place of arguments and facts, — it has been impossible to this day to distinguish the charlatan from the philosopher, the savant from the impostor. Since the days of Solomon and Pythagoras, imagination has been exhausted in guessing out social and psychological laws; all systems have been proposed. Looked at in this light, it is probably true that every thing has been said; but it is no less true that every thing remains to be proved. In politics (to take only this branch of philosophy), in politics every one is governed in his choice of party by his passion and his interests; the mind is submitted to the impositions of the will, — there is no knowledge, there is not even a shadow of certainty. In this way, general ignorance produces general tyranny; and while liberty of thought is written in the charter, slavery of thought, under the name of majority rule, is decreed by the charter.
In order to confine myself to the civil prescription of which the Code speaks, I shall refrain from beginning a discussion upon this worn-out objection brought forward by proprietors; it would be too tiresome and declamatory. Everybody knows that there are rights which cannot be prescribed; and, as for those things which can be gained through the lapse of time, no one is ignorant of the fact that prescription requires certain conditions, the omission of one of which renders it null. If it is true, for example, that the proprietor’s possession has been civil, public, peaceable, and uninterrupted, it is none the less true that it is not based on a just title; since the only titles which it can show — occupation and labor — prove as much for the proletaire who demands, as for the proprietor who defends. Further, this possession is dishonest, since it is founded on a violation of right, which prevents prescription, according to the saying of St. Paul — Nunquam in usucapionibus juris error possessori prodest. The violation of right lies either in the fact that the holder possesses as proprietor, while he should possess only as usufructuary; or in the fact that he has purchased a thing which no one had a right to transfer or sell.
Another reason why prescription cannot be adduced in favor of property (a reason borrowed from jurisprudence) is that the right to possess real estate is a part of a universal right which has never been totally destroyed even at the most critical periods; and the proletaire, in order to regain the power to exercise it fully, has only to prove that he has always exercised it in part. He, for example, who has the universal right to possess, give, exchange, loan, let, sell, transform, or destroy a thing, preserves the integrity of this right by the sole act of loaning, though he has never shown his authority in any other manner. Likewise we shall see that equality of possessions, equality of rights, liberty, will, personality, are so many identical expressions of one and the same idea, — the right of preservation and development; in a word, the right of life, against which there can be no prescription until the human race has vanished from the face of the earth.
Finally, as to the time required for prescription, it would be superfluous to show that the right of property in general cannot be acquired by simple possession for ten, twenty, a hundred, a thousand, or one hundred thousand years; and that, so long as there exists a human head capable of understanding and combating the right of property, this right will never be prescribed. For principles of jurisprudence and axioms of reason are different from accidental and contingent facts. One man’s possession can prescribe against another man’s possession; but just as the possessor cannot prescribe against himself, so reason has always the faculty of change and reformation. Past error is not binding on the future. Reason is always the same eternal force. The institution of property, the work of ignorant reason, may be abrogated by a more enlightened reason. Consequently, property cannot be established by prescription. This is so certain and so true, that on it rests the maxim that in the matter of prescription a violation of right goes for nothing.
But I should be recreant to my method, and the reader would have the right to accuse me of charlatanism and bad faith, if I had nothing further to advance concerning prescription. I showed, in the first place, that appropriation of land is illegal; and that, supposing it to be legal, it must be accompanied by equality of property. I have shown, in the second place, that universal consent proves nothing in favor of property; and that, if it proves any thing, it proves equality of property. I have yet to show that prescription, if admissible at all, presupposes equality of property.
This demonstration will be neither long nor difficult. I need only to call attention to the reasons why prescription was introduced.
“Prescription,” says Dunod, “seems repugnant to natural equity, which permits no one either to deprive another of his possessions without his knowledge and consent, or to enrich himself at another’s expense. But as it might often happen, in the absence of prescription, that one who had honestly earned would be ousted after long possession; and even that he who had received a thing from its rightful owner, or who had been legitimately relieved from all obligations, would, on losing his title, be liable to be dispossessed or subjected again, — the public welfare demanded that a term should be fixed, after the expiration of which no one should be allowed to disturb actual possessors, or reassert rights too long neglected… The civil law, in regulating prescription, has aimed, then, only to perfect natural law, and to supplement the law of nations; and as it is founded on the public good, which should always be considered before individual welfare, — bono publico usucapio introducta est, — it should be regarded with favor, provided the conditions required by the law are fulfilled.”
Toullier, in his “Civil Law,” says: “In order that the question of proprietorship may not remain too long unsettled, and thereby injure the public welfare, disturbing the peace of families and the stability of social transactions, the law has fixed a time when all claims shall be cancelled, and possession shall regain its ancient prerogative through its transformation into property.”
Cassiodorus said of property, that it was the only safe harbor in which to seek shelter from the tempests of chicanery and the gales of avarice — Hic unus inter humanas pro cellas portus, quem si homines fervida voluntate praeterierint; in undosis semper jurgiis errabunt.
Thus, in the opinion of the authors, prescription is a means of preserving public order; a restoration in certain cases of the original mode of acquiring property; a fiction of the civil law which derives all its force from the necessity of settling differences which otherwise would never end. For, as Grotius says, time has no power to produce effects; all things happen in time, but nothing is done by time. Prescription, or the right of acquisition through the lapse of time, is, therefore, a fiction of the law, conventionally adopted.
But all property necessarily originated in prescription, or, as the Latins say, in usucapion; that is, in continued possession. I ask, then, in the first place, how possession can become property by the lapse of time? Continue possession as long as you wish, continue it for years and for centuries, you never can give duration — which of itself creates nothing, changes nothing, modifies nothing — the power to change the usufructuary into a proprietor. Let the civil law secure against chance-comers the honest possessor who has held his position for many years, — that only confirms a right already respected; and prescription, applied in this way, simply means that possession which has continued for twenty, thirty, or a hundred years shall be retained by the occupant. But when the law declares that the lapse of time changes possessor into proprietor, it supposes that a right can be created without a producing cause; it unwarrantably alters the character of the subject; it legislates on a matter not open to legislation; it exceeds its own powers. Public order and private security ask only that possession shall be protected. Why has the law created property? Prescription was simply security for the future; why has the law made it a matter of privilege?
Thus the origin of prescription is identical with that of property itself; and since the latter can legitimate itself only when accompanied by equality, prescription is but another of the thousand forms which the necessity of maintaining this precious equality has taken. And this is no vain induction, no far-fetched inference. The proof is written in all the codes.
And, indeed, if all nations, through their instinct of justice and their conservative nature, have recognized the utility and the necessity of prescription; and if their design has been to guard thereby the interests of the possessor, — could they not do something for the absent citizen, separated from his family and his country by commerce, war, or captivity, and in no position to exercise his right of possession? No. Also, at the same time that prescription was introduced into the laws, it was admitted that property is preserved by intent alone, — nudo animo. Now, if property is preserved by intent alone, if it can be lost only by the action of the proprietor, what can be the use of prescription? How does the law dare to presume that the proprietor, who preserves by intent alone, intended to abandon that which he has allowed to be prescribed? What lapse of time can warrant such a conjecture; and by what right does the law punish the absence of the proprietor by depriving him of his goods? What then! we found but a moment since that prescription and property were identical; and now we find that they are mutually destructive!
Grotius, who perceived this difficulty, replied so singularly that his words deserve to be quoted: Bene sperandum de hominibus, ac propterea non putandum eos hoc esse animo ut, rei caducae causa, hominem alterum velint in perpetuo peccato versari, quo d evitari saepe non poterit sine tali derelictione. “Where is the man,” he says, “with so unchristian a soul that, for a trifle, he would perpetuate the trespass of a possessor, which would inevitably be the result if he did not consent to abandon his right?” By the Eternal! I am that man. Though a million proprietors should burn for it in hell, I lay the blame on them for depriving me of my portion of this world’s goods. To this powerful consideration Grotius rejoins, that it is better to abandon a disputed right than to go to law, disturb the peace of nations, and stir up the flames of civil war. I accept, if you wish it, this argument, provided you indemnify me. But if this indemnity is refused me, what do I, a proletaire, care for the tranquillity and security of the rich? I care as little for public orderas for the proprietor’s safety. I ask to live a laborer; otherwise I will die a warrior.
Whichever way we turn, we shall come to the conclusion that prescription is a contradiction of property; or rather that prescription and property are two forms of the same principle, but two forms which serve to correct each other; and ancient and modern jurisprudence did not make the least of its blunders in pretending to reconcile them. Indeed, if we see in the institution of property only a desire to secure to each individual his share of the soil and his right to labor; in the distinction between naked property and possession only an asylum for absentees, orphans, and all who do not know, or cannot maintain, their rights; in prescription only a means, either of defence against unjust pretensions and encroachments, or of settlement of the differences caused by the removal of possessors, — we shall recognize in these various forms of human justice the spontaneous efforts of the mind to come to the aid of the social instinct; we shall see in this protection of all rights the sentiment of equality, a constant levelling tendency. And, looking deeper, we shall find in the very exaggeration of these principles the confirmation of our doctrine; because, if equality of conditions and universal association are not soon realized, it will be owing to the obstacle thrown for the time in the way of the common sense of the people by the stupidity of legislators and judges; and also to the fact that, while society in its original state was illuminated with a flash of truth, the early speculations of its leaders could bring forth nothing but darkness.
After the first covenants, after the first draughts of laws and constitutions, which were the expression of man’s primary needs, the legislator’s duty was to reform the errors of legislation; to complete that which was defective; to harmonize, by superior definitions, those things which seemed to conflict. Instead of that, they halted at the literal meaning of the laws, content to play the subordinate part of commentators and scholiasts. Taking the inspirations of the human mind, at that time necessarily weak and faulty, for axioms of eternal and unquestionable truth, — influenced by public opinion, enslaved by the popular religion, — they have invariably started with the principle (following in this respect the example of the theologians) that that is infallibly true which has been admitted by all persons, in all places, and at all times — quod ab omnibus, quod ubique, quod semper; as if a general but spontaneous opinion was any thing more than an indication of the truth. Let us not be deceived: the opinion of all nations may serve to authenticate the perception of a fact, the vague sentiment of a law; it can teach us nothing about either fact or law. The consent of mankind is an indication of Nature; not, as Cicero says, a law of Nature. Under the indication is hidden the truth, which faith can believe, but only thought can know. Such has been the constant progress of the human mind in regard to physical phenomena and the creations of genius: how can it be otherwise with the facts of conscience and the rules of human conduct?