SUMMARY.

=Of property.=--Its fundamental principle; work sanctioned by law.

Communistic Utopia.--Inequality of wealth: it is founded on nature, but should not be aggravated by the law.--Different forms of the rights of property: _loans_, _trusts_, _things lost_, _sales_, _property properly so called_.

=Loan.=--Is it a duty to loan?--The _interest_ of money.--The question of usury.--Duties of _creditor_ and _debtor_.--_Failures_ and _bankruptcies_.--The commodate or things loaned for use.

=Trust.=--Duties of the _depositary_ and the _deponent_.

=Of the possession in good faith.=--_The thing lost._

=Sales.=--Obligations of _seller_ and _buyer_.

=Of property in general.=--Violation of property or _theft_.--The elements which const.i.tute theft.--_Simple_ thefts and _qualified_ thefts.--_Abuse of confidence_, _swindling_.--Rest.i.tution.

=Promises and contracts.=--Differences between these two facts.--Strict obligation to keep one's promises: rare exceptions (practical impossibility, illicit promises, etc.)--Different _kinds_ of contracts.--_Conditions_ of the contract: consent, capacity of contracting parties, a real object, a licit cause.--Rules for the formation of contracts.--Rules for the interpretation of contracts.

The immediate consequence of the right of self-preservation which each has, etc., implies the _right of property_.

=31. Property.=--What is property? What is its origin and principle? What objections has it raised? What moral and social reasons justify it, rendering its maintenance both sacred and necessary?

"Property," says the civil code, "is the right to enjoy and dispose of things in the most absolute manner, provided no use is made of them prohibited by the laws or the rules." (Art. 544.)

"The right of property," says the Const.i.tution of '93, "is that which belongs to every citizen: to enjoy, and dispose at will of his property, his income, of the fruit of his labor and industry." (Art. 8.)

These are the judicial and political definitions of property.

Philosophically, it may be said, that it is the right each man has to make something _his own_, that is to say, to attribute to himself the _exclusive_ right to enjoy something outside of himself.

We must distinguish between _possession_ and _property_. Possession is nothing else than _actual custody_: I may have in my hands an object that is not mine, which has either been loaned to me, or which I may have found; this does not make me its proprietor. Property is the right I have to exclude all others from the use of a thing, even if I should not be in actual possession of it.

=32. Origin and fundamental principle of property.=--The first property is that of my own body, but thus far it is nothing else than what may be called corporeal liberty. How do we go beyond that? How do we extend this primitive right over things which are outside of ourselves?

Let us first remark that this right of appropriating external things rests on necessity and on the laws of organized beings. It is evident, in fact, that life cannot be preserved otherwise than by a perpetual exchange between the parts of the living body and the particles of the surrounding bodies. Nutrition is _a.s.similation_, and, consequently, _appropriation_.

It is, then, necessary that certain things of the external world should become _mine_, otherwise life is impossible.

Property is then _necessary_; let us now see by what means it becomes legitimate.

Property has been given several origins: _occupation_, _law_, _work_.

According to some, property has for its fundamental principle the _right of the first occupant_. It is said that man has the right of appropriating a thing not in possession of some one else; the same as at the theatre, the spectator who comes first has the right to take the best place.

(Cicero.) So be it; but at the theatre I occupy only the place occupied by my own body; I have not the right to appropriate the whole theatre, or even the pit. It is the same with the right of the first occupant. I have certainly a right to the place my own body would occupy, but no further: for where would my right then stop?

"Will the setting one's foot," says J. J. Rousseau, "on a piece of common ground be sufficient to declare one's self at once the master of it? When Nunez Balboa took on landing possession of the Southern Sea, and of the whole of Southern America in the name of the Crown of Castile, was that enough to exclude from it all the princes of the world? At that rate the Catholic king had but to take all at once possession in his study of the whole universe, relying upon subsequently striking off from his empire what before was in possession of the other princes." (Contrat social, liv. 1er, Ch. ix.)

=The law.=--If occupation of itself alone is insufficient in founding the right of property, will it not become legitimate by adding to it _convention_--that is to say, the _law_? Property, we have seen, is necessary; but if every one is free to appropriate to himself what he needs, it becomes anarchy; it is, as Hobbes said, "the war of all against all." It is necessary that the law should fix the property of each in the interest of all. Property, under this new hypothesis, would then mean the part which public authority has fixed or recognized, whether we admit a primitive division made by a magistrate, or a primitive occupation more or less due to chance, but consecrated by law.

Certainly, the reason of social utility plays a great part in the establishment and consecration of property; and it would be absurd not to take this consideration into account. Certainly, even if property were but a fact consecrated by time, by necessity, and by law, it would already by that alone have a very great authority; but we believe that that is not saying enough. Property is not only a _consecrated fact_, it is also a _right_. It finds in the law its _guaranty_, but not its _foundation_.

The true principle of property is _work_; and property becomes blended with liberty itself: "_liberty_ and _property_," say the English.

_Work._--If all the things man has need of were in unlimited number, and if they could be acquired without effort, there would be no property.

This, for example, takes place in the case of the atmosphere, of which we all have need, but which belongs to no one. But if the question is of things that cannot be _acquired_ except by a certain effort (as in the case of animals running wild), or even that can be _produced_ only by human effort (as a harvest in a barren ground), these things belong by right to him who conquers them or brings them about.

"I take wild wheat into my hand, I sow it in soil I have dug, and I wait for the earth, aided by rain and sunshine, to do its work. Is the growing crop my property? Where would it be without me? I created it.

Who can deny it?... This earth was worth nothing and produced nothing: I dug the soil; I brought from a distance friable and fertilizing earth; I enriched it with manure; it is now fertile for many years to come. This fertility is my work.... The earth belonged to no one; in fertilizing it, I made it mine. According to Locke, nine tenths at least of the produce of the soil should be attributed to human labor."[20]

It has been said that work is not a sufficient foundation to establish the right of property; that occupation must be added thereto, for otherwise work alone would make us the proprietors of what is already occupied by others; the farmer would become the proprietor of the fields he cultivates from the fact alone that he cultivates them. Occupation is therefore a necessary element of property.

Certainly; but occupation itself has no value except as it already represents labor, and inasmuch as it is labor. The fact of culling a fruit, of seizing an animal, and even of setting foot upon a desert land, is an exercise of my activity which is more or less easy or difficult to accomplish, but which in reality is not the less the result of an effort.

It is, then, work itself which lays the foundation of occupation and consecrates it. But when the thing once occupied has become the property of a man by a first work, it can no longer without contradiction become the property of another by a subsequent work. This work applied to the property of others is not the less itself the foundation of property, namely: the price received in exchange of work, which is called _salary_, and which again by exchange can obtain for us the possession of things not ours.

=33. Acc.u.mulation and transmission.=--The right of _appropriation_, founded as we have just seen on work, carries with it as its consequence, the right of _acc.u.mulation_ and that of _transmission_.

In fact, if I have acquired a thing, I can either enjoy it actually, or reserve it to enjoy it later; and if I have more than my actual wants require, I can lay aside what to-day is useless to me, but which will be useful to me later. This is what is called _saving_; and the successive additions to savings is called _acc.u.mulation_. This right cannot be denied to man; for that would be ignoring in him one of his n.o.blest faculties, namely, the faculty of providing for the future. In suppressing this right, the very source of all production, namely, work, would dry up; for it is his thought of the future which, above all, induces man to work to insure his security.

The right of _transmission_ is another consequence of property; for if I have enjoyment myself, I ought to be able to transmit it to others; finally, I can give up my property to obtain in its place the property of others which might be more agreeable or more useful to me; hence the right of _exchange_, which gives rise to what is called _purchase_ and _sale_.

Of all transmissions, the most natural is that which takes place between a father and his children: this is what is called _inheritance_. If we were to deprive the head of a family of the right of thinking of his children in the acc.u.mulation of the fruits of his labors, we should destroy thereby the most energetic instigation to work there is in the human heart.

=34. Individual property and the community.=--The adversaries of property have often said that they did not attack property in itself, but only _individual_ property. The soil which, if not the principle, is at least the source of all riches, belongs, they say, not to the individual, but to society; to the State, that is to say, to all, as common and undivided property: each individual is but a consumer, and receives his share from the State, which alone is the true proprietor. This is what is called the community system, or _communism_, which takes two forms, according as it admits the division to be made in a manner absolutely equal among the co-members of the society, which is the _equality_ system (_systeme egalitaire_); or by reason of _capacity_ and _works_. It is this form of communism which the school of Saint-Simon maintains at this day.

We need not point out the practical impossibility of realizing such a system. Let us confine ourselves to showing its essential vice. If communism means absolute equality (and true communism does), it destroys the main inducement to work: for man a.s.sured of his living by the State, has nothing left to stimulate him to personal effort. Work, deprived of the hope of a legitimate remuneration, would be reduced to a strict minimum, and civilization, which lives by work, would rapidly go backward: general wretchedness would be the necessary consequence of this state of things; all would be equally poor and miserable; humanity would go back to its primitive state, to get from which it struggled so hard, and from which it emerged by means of work and property alone. Moreover, as it is absolutely impossible to dispense with work, the State would be obliged to enforce it upon those whom their interest did not spontaneously incline to it; from being free, work would become servile, and the pensioners of the State would in reality be but its slaves.

As to the inequality-communism (_communisme inegalitaire_) which recommends a remuneration from the State, proportioned to merit and products, that is to say, to _capacity_ and _works_, it certainly does not so very seriously impair the principle of property and liberty; but, on the one hand, it does not satisfy the instincts of equality,[21] which have at all times inspired the communistic utopias; on the other, it attacks the family instincts by suppressing inheritance; now, if man is interested in his own fate, he interests himself still more, as he grows old, in the fate of his children; in depriving him of the responsibility for their destinies, you deprive him of the most energetic stimulus to work; and the tendency would be, though in a lesser degree, to produce the same evil of general impoverishment, as would communism properly so called. But the princ.i.p.al vice of all communism, whether of equality or inequality, is to subst.i.tute the State for the individual, to make of all men functionaries, to commit to the State the destinies of all individuals; in one word, to make of the State a providence.[22]

=35. Inequality of riches.=--Yet there will always arise in the mind a grave problem: Why are goods created for all, distributed in so unequal and capricious a manner? Why the rich and the poor? and if inequality must exist, why is it not in proportion to inequality of merit and individual work? Why are the idle and prodigal sometimes rich? Why are the poor overwhelmed by both work and poverty?

There are two questions here: 1. Why is there any inequality at all? 2.

Why, supposing this inequality must exist, has it no connection with merit or the work of the individual?

Regarding the first point, we cannot deny, unless we should wish to suppress all human responsibility, all free and personal activity--in a word, all liberty--we cannot deny, I say, that the inequality of merit and of work does not authorize and justify a certain inequality in the distribution of property.

But, it is said, this inequality is not always in proportion to the work.

It may be answered that as civic laws become more perfect (by the abolition of monopoly, privileges, abuse of rights, such as the feudal rights, etc.,) the distribution of riches will tend to become more and more in proportion to individual merit and efforts. There remain but two sources of inequality which do not proceed from personal work: 1, accidents; 2, hereditary transmission. But in regard to accidents, there is no way of absolutely suppressing the part chance plays in man's destiny; it can only be corrected and diminished, and thereto tend the inst.i.tutions of life-a.s.surances, savings-banks, banks of a.s.sistance, etc., which are means of equalization growing along with the general progress.

As to the inequality produced by inheritance, one of two things is to be considered: either the heir keeps and increases by his own work what he has acquired, and thus succeeds in deserving it; or, on the contrary, he ceases to work and consumes without producing, and in this case he destroys his privilege himself without the State's meddling with it.

Besides, the question is less concerning the _relative well-being_ of men than their _absolute well-being_. What use would it be to men to be all equal if they were all miserable? There is certainly more equality in a republic of savages than in our European societies; but how many of our poor Europeans are there who would exchange their condition for an existence among savages? In reality, social progress, in continually increasing general wealth, increases at the same time the well-being of each, without increasing the sum of individual efforts. This superaddition of well-being is in reality gratuitous, as Bastiat has demonstrated. "Hence," as he says, "with a community increasing in well-being,[23] as by property ever better guaranteed, we leave behind us the community of misery from which we came."

"Property," says Bastiat, "tends to transform onerous into gratuitous utility. It is that spur which obliges human intelligence to draw from the inertia of matter its latent natural forces. It struggles, certainly for its own benefit, against the obstacles which make utility onerous; and when the obstacle is overthrown, it is found that its disappearance benefits all. Then the indefatigable proprietor attacks new obstacles, and continually raising the human level, he more and more realizes community, and with it equality in the midst of the great human family."

=36. Duties concerning the property of others.=--After having established the right of general property, we have to expound the duties relative to the property of others.

The property of others may be injured in various ways, and in different cases. These cases are: 1, _loans_; 2, _trusts_; 3, _things lost_; 4, _sales_; 5, _property_ strictly _so-called_.

=37. Loans.--Debts.=--The inequality of riches is the cause that among men some have need of what others possess, and yet cannot procure by _purchase_, for want of means. In this case, the first turn to the second to obtain the temporary enjoyment of the thing they stand in need of; this is called _borrowing_; the reciprocal act, which consists in conceding for a time the desired object, is called _loaning_. He who borrows, and who by this very act engages himself to return the thing again, is called _debtor_ (who owes), and he who loans is called _creditor_; he has a credit on his debtor.

Several questions spring from this, some very simple, others very delicate, and often debated.

=38. Rights and duties of the creditor.--Money interest.--Usury.=--And first, is it a duty to loan to any that ask you? It is evident that if it is a duty it can be only a duty of charity, or friendliness, but not of strict justice. One is no more obliged to loan to all than to give to all.

The duty of loaning, like the duty of giving without discrimination, would be tantamount to the negation of property; for he who would open his money-chest to all unconditionally, however rich he might be, would in a few days be absolutely despoiled. Besides, the same duty weighing equally on those who have received, they in their turn would be obliged to pa.s.s their goods over to others, and no one would ever be proprietor. In this case, it would even be better to hand all property over to the State, that it might establish a certain order and fixity in the repart.i.tion of it.