Rights, published as a preface to the Constitution of '93, property is "the right to enjoy and dispose at will of one's goods, one's income, and the fruit of one's labor and industry."
Code Napoleon, article 544: "Property is the right to enjoy and dispose of things in the most absolute manner, provided we do not overstep the limits prescribed by the laws and regulations."
These two definitions do not differ from that of the Roman law: all give the proprietor an absolute right over a thing; and as for the restriction imposed by the code,—PROVIDED WE DO NOT OVERSTEP THE LIMITS PRESCRIBED BY THE LAWS AND REGULATIONS,—its object is not to limit property, but to prevent the domain of one proprietor from interfering with that of another. That is a confirmation of the principle, not a limitation of it.
There are different kinds of property: 1. Property pure and simple, the dominant and seigniorial power over a thing; or, as they term it, NAKED PROPERTY. 2. POSSESSION. "Possession," says Duranton, "is a matter of fact, not of right." Toullier: "Property is a right, a legal power; possession is a fact." The tenant, the farmer, the commandite', the usufructuary, are possessors; the owner who lets and lends for use, the heir who is to come into possession on the death of a usufructuary, are proprietors. If I may venture the comparison: a lover is a possessor, a husband is a proprietor.
This double definition of property—domain and possession—is of the highest importance; and it must be clearly understood, in order to comprehend what is to follow.
From the distinction between possession and property arise two sorts of rights: the jus in re, the right in a thing, the right by which I may reclaim the property which I have acquired, in whatever hands I find it; and the jus ad rem, the right TO a thing, which gives me a claim to become a proprietor. Thus the right of the partners to a marriage over each other's person is the jus in re; that of two who are betrothed is only the jus ad rem. In the first, possession and property are united; the second includes only naked property. With me who, as a laborer, have a right to the possession of the products of Nature and my own industry,—and who, as a proletaire, enjoy none of them,—it is by virtue of the jus ad rem that I demand admittance to the jus in re.
This distinction between the jus in re and the jus ad rem is the basis of the famous distinction between possessoire and petitoire,—actual categories of jurisprudence, the whole of which is included within their vast boundaries. Petitoire refers to every thing relating to property; possessoire to that relating to possession. In writing this memoir against property, I bring against universal society an action petitoire: I prove that those who do not possess to-day are proprietors by the same title as those who do possess; but, instead of inferring therefrom that property should be shared by all, I demand, in the name of general security, its entire abolition. If I fail to win my case, there is nothing left for us (the proletarian class and myself) but to cut our throats: we can ask nothing more from the justice of nations; for, as the code of procedure (art 26) tells us in its energetic style, THE PLAINTIFF WHO HAS BEEN NON-SUITED IN AN ACTION PETITOIRE, IS DEBARRED THEREBY FROM BRINGING AN ACTION POSSESSOIRE. If, on the contrary, I gain the case, we must then commence an action possessoire, that we may be reinstated in the enjoyment of the wealth of which we are deprived by property. I hope that we shall not be forced to that extremity; but these two actions cannot be prosecuted at once, such a course being prohibited by the same code of procedure.
Before going to the heart of the question, it will not be useless to offer a few preliminary remarks.
% 1.—Property as a Natural Right.
The Declaration of Rights has placed property in its list of the natural and inalienable rights of man, four in all: LIBERTY, EQUALITY, PROPERTY, SECURITY. What rule did the legislators of '93 follow in compiling this list? None. They laid down principles, just as they discussed sovereignty and the laws; from a general point of view, and according to their own opinion. They did every thing in their own blind way.
If we can believe Toullier: "The absolute rights can be reduced to three: SECURITY, LIBERTY, PROPERTY." Equality is eliminated by the Rennes professor; why? Is it because LIBERTY implies it, or because property prohibits it? On this point the author of "Droit Civil Explique" is silent: it has not even occurred to him that the matter is under discussion.
Nevertheless, if we compare these three or four rights with each other, we find that property bears no resemblance whatever to the others; that for the majority of citizens it exists only potentially, and as a dormant faculty without exercise; that for the others, who do enjoy it, it is susceptible of certain transactions and modifications which do not harmonize with the idea of a natural right; that, in practice, governments, tribunals, and laws do not respect it; and finally that everybody, spontaneously and with one voice, regards it as chimerical.
Liberty is inviolable. I can neither sell nor alienate my liberty; every contract, every condition of a contract, which has in view the alienation or suspension of liberty, is null: the slave, when he plants his foot upon the soil of liberty, at that moment becomes a free man. When society seizes a malefactor and deprives him of his liberty, it is a case of legitimate defence: whoever violates the social compact by the commission of a crime declares himself a public enemy; in attacking the liberty of others, he compels them to take away his own. Liberty is the original condition of man; to renounce liberty is to renounce the nature of man: after that, how could we perform the acts of man?
Likewise, equality before the law suffers neither restriction nor exception. All Frenchmen are equally eligible to office: consequently, in the presence of this equality, condition and family have, in many cases, no influence upon choice. The poorest citizen can obtain judgment in the courts against one occupying the most exalted station. Let the millionaire, Ahab, build a chateau upon the vineyard of Naboth: the court will have the power, according to the circumstances, to order the destruction of the chateau, though it has cost millions; and to force the trespasser to restore the vineyard to its original state, and pay the damages. The law wishes all property, that has been legitimately acquired, to be kept inviolate without regard to value, and without respect for persons.
The charter demands, it is true, for the exercise of certain political rights, certain conditions of fortune and capacity; but all publicists know that the legislator's intention was not to establish a privilege, but to take security. Provided the conditions fixed by law are complied with, every citizen may be an elector, and every elector eligible. The right, once acquired, is the same for all; the law compares neither persons nor votes. I do not ask now whether this system is the best; it is enough that, in the opinion of the charter and in the eyes of every one, equality before the law is absolute, and, like liberty, admits of no compromise.
It is the same with the right of security. Society promises its members no half-way protection, no sham defence; it binds itself to them as they bind themselves to it. It does not say to them, "I will shield you, provided it costs me nothing; I will protect you, if I run no risks thereby." It says, "I will defend you against everybody; I will save and avenge you, or perish myself."
The whole strength of the State is at the service of each citizen; the obligation which binds them together is absolute.
How different with property! Worshipped by all, it is acknowledged by none: laws, morals, customs, public and private conscience, all plot its death and ruin.
To meet the expenses of government, which has armies to support, tasks to perform, and officers to pay, taxes are needed. Let all contribute to these expenses: nothing more just. But why should the rich pay more than the poor? That is just, they say, because they possess more. I confess that such justice is beyond my comprehension.
Why are taxes paid? To protect all in the exercise of their natural rights—liberty, equality, security, and property; to maintain order in the State; to furnish the public with useful and pleasant conveniences.
Now, does it cost more to defend
