reflective essay

Pothier seems to think that property, like royalty, exists by divine right. He traces back its origin to God himself— ab Jove principium. He begins in this way: 

“God is the absolute ruler of the universe and all that it contains: Domini est terra et plenitudo ejus, orbis et universi qui habitant in eo. For the human race he has created the earth and all its creatures, and has given it a control over them subordinate only to his own. ‘Thou madest him to have dominion over the works of thy hands; thou hast put all things under his feet,’ says the Psalmist. God accompanied this gift with these words, addressed to our first parents after the creation: ‘Be fruitful, and multiply and replenish the earth,’ etc.” 

After this magnificent introduction, who would refuse to believe the human race to be an immense family living in brotherly union, and under the protection of a venerable father? But, heavens! are brothers enemies? Are fathers unnatural, and children prodigal? 

God gave the earth to the human race: why then have I received none? He has put all things under my feet,—and I have nowhere to lay my head! Multiply , he tells us through his interpreter, Pothier. Ah, learned Pothier! that is as easy to do as to say; but you must give moss to the bird for its nest. 

“The human race having multiplied, men divided among themselves the earth and most of the things upon it; that which fell to each, from that time exclusively belonged to him. That was the origin of the right of property.” 

Say, rather, the right of possession. Men lived in a state of communism; whether positive or negative it matters little. Then there was no property, not even private possession. The genesis and growth of possession gradually forcing people to labour for their support, they agreed either formally or tacitly,—it makes no difference which,—that the worker should be sole proprietor of the fruit of his labour; that is, they simply declared the fact that thereafter none could live without working. It necessarily followed that, to obtain equality of products, there must be equality of labour; and that, to obtain equality of labour, there must be equality of facilities for labour. Whoever without labour got possession, by force or by strategy, of another’s means of subsistence, destroyed equality, and placed himself above or outside of the law. Whoever monopolised the means of production on the ground of greater industry, also destroyed equality. Equality being then the expression of right, whoever violated it was unjust. 

Thus, labour gives birth to private possession; the right in a thing— jus in re. But in what thing? Evidently in the product, not in the soil. So the Arabs have always understood it; and so, according to Caesar and Tacitus, the Germans formerly held. “The Arabs,” says M. de Sismondi, “who admit a man’s property in the flocks which he has raised, do not refuse the crop to him who planted the seed; but they do not see why another, his equal, should not have a right to plant in his turn. The inequality which results from the pretended right of the first occupant seems to them to be based on no principle of justice; and when all the land falls into the hands of a certain number of inhabitants, there results a monopoly in their favour against the rest of the nation, to which they do not wish to submit.” 

Well, they have shared the land. I admit that therefrom results a more powerful organisation of labour; and that this method of distribution, fixed and durable, is advantageous to production: but how could this division give to each a transferable right of property in a thing to which all had an inalienable right of possession? In the terms of jurisprudence, this metamorphosis from possessor to proprietor is legally impossible; it implies in the jurisdiction of the courts the union of possessoire and pétitoire; and the mutual concessions of those who share the land are nothing less than traffic in natural rights. The original cultivators of the land, who were also the original makers of the law, were not as learned as our legislators, I admit; and had they been, they could not have done worse: they did not foresee the consequences of the transformation of the right of private possession into the right of absolute property. But why have not those, who in later times have established the distinction between jus in re and jus ad rem, applied it to the principle of property itself? 

Let me call the attention of the writers on jurisprudence to their own maxims. 

The right of property, provided it can have a cause, can have but one— Dominium non potest nisi ex una causa contingere. I can possess by several titles; I can become proprietor by only one— Non ut ex pluribus causis idem nobis deberi potest, ita ex pluribus causis idem potest nostrum esse.  The field which I have cleared, which I cultivate, on which I have built my house, which supports myself, my family, and my livestock, I can possess: 1 ^st As the original occupant; 2 ^nd As a worker; 3 ^rd By virtue of the social contract which assigns it to me as my share. But none of these titles confer upon me the right of property. For, if I attempt to base it upon occupancy, society can reply, “I am the original occupant.” If I appeal to my labour, it will say, “It is only on that condition that you possess.” If I speak of agreements, it will respond, “These agreements establish only your right of use.” Such, however, are the only titles which proprietors advance. They never have been able to discover any others. Indeed, every right—it is Pothier who says it—supposes a producing cause in the person who enjoys it; but in man who lives and dies, in this son of earth who passes away like a shadow, there exists, with respect to external things, only titles of possession, not one title of property. Why, then, has society recognised a right injurious to itself, where there is no producing cause? Why, in according possession, has it also conceded property? Why has the law sanctioned this abuse of power? 

[…] 

To satisfy the husbandman, it was sufficient to guarantee him possession of his crop; admit even that he should have been protected in his right of occupation of land, as long as he remained its cultivator. That was all that he had a right to expect; that was all that the advance of civilisation demanded. But property, property! the right of escheat [ droit d’aubaine] over lands which one neither occupies nor cultivates,—who had authority to grant it? who pretended to have it? 

[…] 

The authority of the human race is of no effect as evidence in favour of the right of property, because this right, resting of necessity upon equality, contradicts its principle; the decision of the religions which have sanctioned it is of no effect, because in all ages the priest has submitted to the prince, and the gods have always spoken as the politicians desired; the social advantages, attributed to property, cannot be cited in its behalf, because they all spring from the principle of equality of possession.