THEORY OF PROPERTY
§ I. — The various meanings of the word property.
In 1840, I promised to give a solution of the problem of property, and I renewed my promise in 1846. Today I keep my word. It is my turn to defend property, not against the phalansterians, the communists and the agrarians, who are no more, but against those who saved it in June 1848, in June 1849, in May 1830, in December 1851, and who have since brought it low.
Property, a question rendered formidable by the interests that it puts in play, the desires that it awakens, the terrors to which it gives rise. Property, a word made terrible by the numerous meanings that our language attributes to it, the equivocations that it allows, the nonsense [the amphigories] that it tolerates. Who have never, through ignorance or through bad faith, followed it onto this very terrain? What can I do or hope, when I see jurists, law professors, and laureates of the Institute confuse property with all the forms of possession, rent, farm rent, emphyteusis, usufruct, and the enjoyment of things which are consumed by use? — What, someone says, I would not be the proprietor of my furnishings, of my coat, or my hat, for which I have well or duly paid! — one will dispute with me, says the other, the property of my wage, which I have gained by the sweat of my brow! — I invent a machine, cries this one; I have made twenty years of studies, research and attempts, and someone will take it from me, they will steal my discovery! — I have, responds that one, produced a book, fruit of long and patient meditations; I have put my style, my ideas, my soul, all that is most individual in a person into it, and I would not have the right to a remuneration!
It is to the logicians in this vigor that, pushing to the absurd that confusion of the various senses of the word property, I responded, in 1863, in my Majorats littéraires: “This word is subject to very different meanings, and it would be to argue in a buffoonish manner to pass, with no other transition, from one sense to another, as if it were always the same thing. What would you say to a physicist who, having written a treatise on light, and thus being the owner of this treatise, claimed to have acquired all the properties of light, arguing that his opaque body has become luminous, radiant, and transparent, that he travels seventy thousand miles per second and thus enjoys a kind of ubiquity?... In spring, the poor peasants go to the woods to harvest strawberries that they bring to the city. These strawberries are their product, therefore, to speak as does Father Pluquet, their property. Does this prove that these women are to be called proprietors? If you said so, everyone would think they own the wood from which the strawberries. Alas! just the opposite is true. If these marketers of strawberries were their owners, they would not go to the woods to seek what belongs to the owners, they would eat them themselves.”
Let us seek, then, to better understand my thought and to banish all ambiguity, other meanings of the word property.
Article 534 of the Civil Code says: “The proprietor of the land who has made constructions, plantations, and works thereon with materials which do not belong to him must pay the value thereof; he can also be ordered to pay damages, if proper; but the owner of the materials cannot remove them.”
Conversely article 555 dispose: “When the plantations, constructions, or works have been made by a third party and with his materials, the owner of the property has the right to keep them or to compel such third party to remove them. — If the owner of the land asks to have the plantations or constructions removed it shall be done at the expense of the person who has made them, without giving him any indemnity, and he can even be ordered to pay damages, if proper, for the injury which the owner of the land may have suffered. — If the owner prefers to keep the plantations and constructions he must repay the value of the materials and the price of the labor, without regard to the increase or loss in value which may have been occasioned to the land.”
Although the legislator uses the word proprietor, whether it is a question of funds or materials, we see however that the two persons are not on an equal footing. The possessor, simple user, tenant, farmer, who has planted, reforested, drained, or irrigated, perhaps condemned to destroy with his own hand his labors of development, amendment, and improvement of the soil, if the owner of the capital does not prefer to pay him back for his materials and labor, taking freely and completely the surplus value given to the land by the work of the settler. Thus regulated by the first and second chapters of the title II, book II, of the civil code on the right of accession: “all that which is united and incorporated with the thing belongs to the proprietor.”
Things do not happen otherwise in practice.
From time immemorial, Sologne, for example, was cited as a cursed land, barren, sandy, swampy, as unhealthy as infertile; some warrens, some poisonous pools, some heaths, some gorse, some poor grazing for the sheep, whose teeth gnaw the grass to the roots, some rare fields of buckwheat and other inferior crops, fifteen or twenty hectares de surface to provide for a family: such was the condition of this sad country. For about twenty years, the attention of the capitalist cultivators has been attracted from this side; they have said that with the railroads, it would be possible on the one hand to bring to the solognais soil the elements that it lacks: plaster, lime, manure, fertilizing refuse from the large towns, waste from the barracks, etc.; on the other hand, that the agricultural products that they will obtain will have their placement all found by the same means of circulation. What to do? Buy lands and form immense estates? Bad speculation from the point of view of the goal that it is a question of achieving. The one who, having 100,000 francs, ties up 50,000 in the acquisition of lands, has only 50,000 francs to dedicate to enrichment and labor; he diminishes by half his means of action. Also, instead of buying the land, the new settlers will contract leases of thirty, forty, or fifty years. The example was followed, and Sologne is today on the road to transformation, or let of say, of creation: draining, sanitation, plastering, liming, marling, manuring, plantations of pines and other species proper to poor lands, establishment of artificial meadows, large-scale livestock raising, as much for fertilizer as for other products, substitution of industrial grains and plants for the buckwheat, clearing of heaths, replacement of gorse with clover, sainfoin, and alfalfa: such are the marvels begotten by intelligence, science and labor on the cultivated estates of the idle and contemplative proprietor, whose only merit is to be willing to leave things be, in return for income and tribute.
It is easy to understand that at the expiration of the leases of thirty or forty years, the original value of the lands will carry little weight in the inventory of the enterprise, and that if the property was truly the fruit of the labor, the landlord’s portion would not be heavy to repay. But the right of accession has arranged things in another manner: the proprietor keeps everything by right, without regard for the increase in value his capital has received. So that the tenant, if he renews the lease, must pay the proprietor interest on sums that he has himself spent to improve the land; in short, that he remains he withdraws, his credit being lost to him.
We are far from the eclogues of Troplong, Thiers, Cousin, Sudre, and Laboulaye on property and its legitimation through labor, first occupancy, the affirmation of the self, and other transcendental or sentimental considerations. Does the public already understand that between a hat or coat, and a plot of land or a house, there is an abyss, as to the manner of possessing, and if grammar allows us to say, as a figure of speech, “the property of a bed, of a table,” as we say “the property of a field,” jurisprudence does not tolerate that confusion?
Let us take another example: “Ownership of the soil,” says article 552, “involves ownership of what is above and below it.” Great was the astonishment and loud the clamor of the gas-lighting companies, when the city of Paris informed them that in virtue of the aforementioned article, the property in the pipes established beneath the roads belonged to it. The law here is strict and does not include any shadow of ambiguity; the companies objected in vain: We have bought our pipe, and have installed it at our own cost; we have still paid the city for all the rights of way demanded in such circumstances; you rob us of our property: it is confiscation. The city responded, Code in hand: There is property and property; mine is national [domaniale] and yours serves, that is all. If you do not want to come to terms with me for the use of your materials, which has become mine, I will sell it or lease it to others.
Let us note here that the city does not claim, as the representative of a collectivity, a higher right than that of the individuals. What is does, the first proprietor of land that comes along can do, and does not miss the opportunity. A vast speculation has been established around Paris on this provision of the law, unknown to the masses. You see many signs: land for sale, with easy payments. Numerous bourgeoisillons, well-to-do workers, bitten by the proprietary tarantula, are allotted lands at 6 francs, 10 francs and up to 20 francs per meter, without first thinking that the price of 10 francs per meter carries the soil at 100,000 francs per hectare; thus they have bought junk at ten times the price of the best natural grasslands of Normandy or Angoumois. Then, the first terms and the costs of transfer paid, they begin to build. For the few who have been able to guide the enterprise to its goal, the greatest number are worn out. Unable to make their payments, they must abandon to the seller, with the land, their beginnings of construction. Thus, the proprietor end up having a for free a house of which one has paid for the excavation and foundations, another the bare walls, this one the roofing, that one the interior fittings. Thus ease in payment is granted in direct proportion to the presumed insolvency of the buyer: it is in the interest of the speculator that his buyer does not pay. the Parisians, thanks to the ceaselessly growing number of the victims of eviction, begin to understand that justice and property are not synonyms.
Let us end this popular account with an example still more striking than those preceding:
A manufacturer takes a lease for twenty years, at a fabulous price, some corner is one of the nicest quarters de Paris, in order to establish a café; he pays religiously, in conformity with the customs, his six months in advance; then he calls the painters, decorators, upholsterers, fitters for gas, manufacturers of bronzes and chandelier; he furnishes with a similar splendor his lounges and his cellar, all on credit. Let us first observe this difference: while the suppliers agree to be paid on time, the proprietor is paid in advance. After some time, a year or eighteen months, the entrepreneur of the café goes bankrupt. None of his suppliers is paid; each comes to reclaim their candelabras and plumbing, their divans, armchairs, tables, and chairs, their wines, liquors and cordials, their mirrors, etc., too happy to mitigate the loss that much. But they count without the privilege of the landlord, articles 2100 and following. The proprietor, who has lost nothing, thanks to his six months of advance, steps in and says: I have the advantage of an attractive lease, on which there still remains nineteen years to run; I doubt that I will find such rent from my building; that is why, to guarantee me the full product of my contract, I seize all the furniture, mirrors, clocks, wines, liquors and whatever other objects fill the place; it does not trouble me that they have not been paid for. I am the privileged proprietor, while you are simply merchants and manufacturers; real property is regulated by the Civil Code, and that of products and commodities by the Commercial Code. You are free to call your merchandise and supplies properties: the title is simply honorific, not to say usurping. The law know how to reduce this impertinent qualification to its true value.
Have we strained, in our hypothesis, the sense of the articles of the Code concerning the privilege of the proprietor-landlord? Here is what we read in the judiciary review of la Presse (September 11, 1865), under the signature of Mr. Eugène Paignon:
“A question which has agitated the judiciary world, and also the world of business, for half a century has been produced in recent times with a great intensity, and we believe that it will be expedient to bring an end to the regrettable controversies which it has brought about, by resolving them in a definitive manner by a law. It is this: In the case of the bankruptcy of his tenant, does the proprietor have a debt currently due which allows him to obtain the immediate payment of all the outstanding rents and even those yet to fall due?
“The question having been presented, by reference to the Court of Cassation, the imperial court of Orleans, this court has recognized the right of the owner, in its broadest scope.
“There is not only a right of privilege founded on article 2102 of the Napoleonic Code that the judgment has established to the profit of the proprietor, for all the rents, even not yet fallen due; the court of Orleans also recognize the proprietor’s right to exercise against the bankrupt or their trustee a direct action tending to the payment of all the rents due or to come due, if not to the immediate termination of the lease.
“The case brought before the imperial court presented some circumstances of fact on which the tenant leaned strongly to postpone the demanded termination, in default of payment, a termination disastrous for the liquidation of his bankruptcy.
“The proprietor demanded the immediate payment of around 58,000 francs for the rents to come due until the end of the lease. This payment would have absorbed, if it had been realized, even more than the assets of his bankruptcy. Paid into the hands of the proprietor, that sum makes for him, by its annual interest, a considerable profit.
“On the other hand, if the tenant alleged that, by the fact of his bankruptcy, he had diminished the securities of the proprietor, the securities that remained to him were however of a nature to shelter him from any serious fear:
“1° The property, leased already for six years, and for a period of twenty years, had been considerably increased in its market or rental value, by improvements worth more than 20,000 francs;
“2° The total value of the rentals agreed by the trustee totaling 5,000 francs instead of 2,800 francs, arising from the original rent;
“3° Finally, furnishing superior to the furnishings of the bankrupt, merchandise of a value at least equal to those which adorned the building during the bankrupt’s occupancy, were sufficient guaranties for the proprietor.
“All these considerations have not appear to the referring court of a nature to modify the solution of the question. The court has only granted an extension of three months to the bankrupt and the trustee to satisfy the demand for payment; and in default of such payment within that period, it declared the termination of the lease.
“Following that judgment, which deprived the lessee of all hope of commercial future, he committed suicide.
“We cannot be mistaken about how harsh this solution is for the lessees and for their creditors.
“Some excellent have bowed before this jurisprudence and have proclaimed that only the legislature can remedy the perhaps excessive exercise of the right of the proprietor by modifying the legislation on this point.
“That is for the legislature to deal with, exclaimed the Advocate General Moreau—a vigorous mind, that one—before the court of Paris, in 1862, in his remarkable verdict; as for us, as organ of the existing law, it is enough for us to say: Dura lex, sed lex. »
“Our laws, says Mr. Mourlon, one of the most eminent jurists of our time, cited on this topic by the author of the article; do our laws give owner-lessors the right, when their tenant goes bankrupt, to enrich themselves at his expense or complete his ruin, although they have no legitimate and substantial interest? If we pose the question in these terms, we will doubtless be reproached for the strangeness and irreverence of such a paradox.
“However, we do not invent anything. Anyone who will consent to see things in their reality will be forced to recognize that, ingenious disguises, the question that we just posed is pleaded every day before the courts.
“For the rest, let us speak of the facts. Some huge stores, for example, have been leased for fifty years, at an annual price of 50,000 francs; the tenant has brought furnishings and goods in a great enough quantity to assure, to a reasonable degree, the tranquility of the proprietor. He has done more: he has, by considerable outlays, and by the very success of his commercial operations, greatly increased the rental value of the premises where he operated. If it pleases him to assign his lease, as his title allows him or gives him the right to do, it would be easy for him to find a taker at 60,000 francs per year. After ten years of prosperity, during which the rents have been paid as things go along at their due dates, some unfortunate events, some reckless actions, if you wish, intervene, which lead to the bankruptcy of the tenant. From this arise a dispute, between the proprietor on the one hand and the bankrupt tenant or his creditor on the other, which must be settled.
“I leave you the choice, says the proprietor: either pay me now all my future rents, that is to say forty times 30,000 francs, or terminate the lease.
“Your alternative, respond the other creditors, leaves us no liberty: how, indeed, to pay you two million right away? Two million, it is more than the assets of the bankrupt. Thus, it is the ruin of the bankrupt and our ruin at the same time, if the law obliges us to submit to your claim. If you had a legitimate interest to show yourself so implacable, the law could doubtless be understood in the sense of the alternative that you oppose to us; but to only consider equity, what could you claim? Some reasonable securities for the payment of your possible rent? These securities, we are ready to give it to you. The leasehold rights which the bankrupt has, according to the arrangements you made with him, the full and complete disposition, we will assign to a third who will provide and even bring, to the premises leased, as much furnishings and merchandise as are necessary to shelter you interests from the dangers that you rightly fear.
“Let us take, if you like, another combination. An advantageous arrangement is proposed to us, and we are ready to accept it. The bankrupt, whom we will reestablish at the helm of his business, will leave in the leased premises all the furnishings and all the merchandise that were there during his bankruptcy; he will even, if you insist, bring new objects which will give your security an extent they never previously had, and which you could not even count.
“Do our propositions lack justice? What honest motive could make you refuse them? Is your security compromised? Instead of diminishing it, we strengthen it. Now, if no serious danger threatens you, if the bankruptcy of our tenant does you no harm, or if the damage that it cause you is completely erased, what aim could you pursue, if not to do evil for its own sake, or to enrich yourself at the expense of others? To pay you right now, without discount, the total of your rents that have come due: that would truly be to pay you twice at least what could be due to you. To terminate the lease would be to transfer from the hands of the bankrupt into your hand a portion of his capital, since that termination would award to you, to his detriment, the increase in rental value that he has created, either by the relations that they have established between the public and the leased premises, or by the work that they have performed there. Know it well: what you demand is outside all justice.
“What does it matter? replies the proprietor; the law grants me what I claim; submit yourself to it.
“It is painful to say, responds the jurisprudence in its turn, but what he claims and seeks is truly his by right.”
The reader should now understand the difference which exists between possession and property. It is only the latter that I have called theft. Property is the greatest question facing the present society; it is everything. I have occupied myself with it for twenty-five years; but before I say my last word on the institution, I think it will be useful to summarize here my previous studies.