“Everybody knows, my fathers, that individuals are never permitted to seek the death of any person, and that, even if a man should have ruined us, maimed us, burnt our houses, killed our parents, and was preparing to murder us, to rob us of our honor, that our seeking his death would not be listened to in a court of justice. So that it was necessary to establish public functionaries who seek it in the name of the king, or rather in the name of God. Suppose, then, these public functionaries should seek the death of him who has committed all these crimes, how would they proceed? Would they plunge the dagger in his breast at once? No; the life of man is too important; they would proceed with more consideration; the law has not left it subject to the decision of all sorts of people; but only to that of the judges, whose integrity and sufficiency have been ascertained. And think you that one alone is enough to condemn a man to death? No; there are at least seven required; and among these seven there must not be any one whom the criminal has in any way offended, for fear that his judgment be affected, or corrupted by anger. In short, they can judge him only upon the testimony of witnesses, and according to the other forms prescribed to them; in consequence of which they can conscientiously pronounce upon him only according to law, or judge worthy of death only those whom the law condemns.”
“Everybody knows, my fathers, that individuals are never permitted to seek the death of any person, and that, even if a man should have ruined us, maimed us, burnt our houses, killed our parents, and was preparing to murder us, to rob us of our honor, that our seeking his death would not be listened to in a court of justice. So that it was necessary to establish public functionaries who seek it in the name of the king, or rather in the name of God. Suppose, then, these public functionaries should seek the death of him who has committed all these crimes, how would they proceed? Would they plunge the dagger in his breast at once? No; the life of man is too important; they would proceed with more consideration; the law has not left it subject to the decision of all sorts of people; but only to that of the judges, whose integrity and sufficiency have been ascertained. And think you that one alone is enough to condemn a man to death? No; there are at least seven required; and among these seven there must not be any one whom the criminal has in any way offended, for fear that his judgment be affected, or corrupted by anger. In short, they can judge him only upon the testimony of witnesses, and according to the other forms prescribed to them; in consequence of which they can conscientiously pronounce upon him only according to law, or judge worthy of death only those whom the law condemns.”
After having thus expounded the innumerable precautions which society has taken, out of respect for human life, touching the persons of criminals, Pascal continues as follows:
“Behold in what way, in the order of justice, the life of man isdisposed of; let us see now howyoudispose of it.[16]In your new laws there is but one judge, and this judge is the offended party. He is at the same time judge, accuser, and executioner. He seeks himself the death of his enemy; he commands it, he executes him on the spot; and, without respect for either the body or soul of his brother, he kills and damns him for whom Christ died; and all this to avenge an affront, or slander, or an insulting word, or other similar offences for which a judge, although clothed with legal authority, would be considered a criminal if he should condemn to death those who had committed them, because the laws themselves are very far from condemning them.”
“Behold in what way, in the order of justice, the life of man isdisposed of; let us see now howyoudispose of it.[16]In your new laws there is but one judge, and this judge is the offended party. He is at the same time judge, accuser, and executioner. He seeks himself the death of his enemy; he commands it, he executes him on the spot; and, without respect for either the body or soul of his brother, he kills and damns him for whom Christ died; and all this to avenge an affront, or slander, or an insulting word, or other similar offences for which a judge, although clothed with legal authority, would be considered a criminal if he should condemn to death those who had committed them, because the laws themselves are very far from condemning them.”
Finally, gathering into one word all the evils which homicide comprises, Pascal ends by saying “homicide is the only crime which at the same time destroys the State, the Church, nature, and piety.”
25. The right of self-defense.—None of the foregoing principles would present the shadow of a difficulty to any except those who are nearer the brute than man, if it were not for an apparent exception to the rule, which is thecase of legitimate self-defense. To understand properly the solution of this question, it is necessary to examine carefully the nature of the relations which bind men to each other.
Every man is amoral person; that is to say, a free being, and for that very reason inviolable in his dignity and in his rights. He is, as Kant says, anend to himself, and should not be treated as ameans. The things of nature are to us but means to satisfy our wants; we may therefore mutilate and destroy them, not as our whims may dictate, but as our wants require. Thus can we cut the finest trees of a forest to make fire of, or for furniture. We even claim a similar right over animals, although it may, perhaps, not be so evident. But we have no such right over man. We can neither mutilate nor destroy him for our use.
And, in fact, to destroy or mutilate through sheer force a member of humanity, is to apply to him the law of compulsion, which is the law of physical nature, and which without reservegoverns all physical phenomena: it is to make of mana thing of nature, to see in him the body only, and ignore the soul.
The consequence of such conduct is evident: it is that whosoever employs against another the law of compulsion means thereby that he does not recognize between himself and other men any other law but that. Treating them as if they were purely physical agents, he gives us thereby to understand that he recognizes himself, and expects to be treated, as such; he means to take advantage of his strength as long as he is the strongest, but gives us to understand thereby that he is satisfied to submit to strength if he is the weaker.
It is here that theright of self-defensecomes in. He who is violently attacked, has the right to oppose to violence just as much strength as there is employed against him. Otherwise, in allowing himself to be knocked down by strength, he would consent to the abasement, to the suppression of his own personality; he would in some respect be the accomplice of the violence he is made to suffer. Some Christian sects, straining this point, go so far as to condemn absolutely the right of self-defense; they do not see that this would infallibly bring with it the triumph of brute force, and the suppression of all justice. Such sects may, to a certain extent, manage to exist in civilized societies; but the principle is self-destructive, since not to resist violence is in some respect to be its accomplice.
Yet, whilst admitting the right of self-defense, it is necessary to recognize its limits. “This agent,” says M. Renouvier, “whom the right of self-defense treats as a brute, this being is a man, nevertheless, or has been one, or may become such. Hence the doctrine of conscience is to admit this right only when necessary, and not beyond what is necessary.” (Moral Science, Ch.LVI.) This is, to begin with, a natural consequence of the duties towards one’s self, since it is already a surrender of one’s dignity to be obliged to act in the capacity of a physical agent, and renounce one’s character of a moral person; it is also a duty towards humanity in general, which isrepresented by every man, even the most violent and the most uncultivated.
26. Problems.—The right of legitimate self-defense gives rise to a certain number of problems relative to the law of homicide. M. Jules Simon[17]reduces them to five: homicide in case of self-defense, penalty of death, political assassination, duel, and war. In the first case it is implied in what precedes, that legitimate self-defense may go so far as to deprive another man of life; but only in case of absolute necessity.
There remain the four other cases, which are not all of the same order.
27. The penalty of death.—The penalty of death in these days has been very much contested, and several States have tried to abolish it.[18]
The following arguments are brought to bear against it:
1.The inviolability of human life.—The State, it is said, should not give the example of what it proscribes and punishes. Now, it punishes homicide; then it should not itself commit homicide.
2. The possiblemistakes, which in all other cases can be corrected, but which in this case alone are irreparable.
3.Experience, which, it is said, tells against it in certain countries by proving that the number of crimes has not been increased by the suppression of the penalty of death.
4. Finally, therefinement of manners, which can no longer bear the idea of capital punishment.
No one of these arguments is wholly decisive.
1. The inviolability of human life is not an absolute thing, at least not for those who admit the right of legitimate self-defense. We shall examine this presently.
2. Judiciary mistakes are very rare, and will become moreand more so, as justice becomes more respectful towards the rights of the accused, and through greater publicity, by the intervention of a jury, etc.
3. Experience is not so much of a test as it is said to be, and is often made on too small a scale. The attempts at abolition have not been very numerous. In Tuscany murders have always been very rare on account of the gentleness of manners. In Switzerland, on the contrary, crime is on the increase, and certain cantons have asked for a return to the death penalty. Besides, it is a very difficult experiment to make. How could a society as complicated as ours dare to trust its security to so hazardous an experiment?
4. The refinement of manners may gradually bring about, thanks to the institution of the jury, the diminution, perhaps some day the suppression, of the penalty of death, without its being necessary for the State to lay aside this powerful means of defense and intimidation.
The penalty of death, in fact, can be considered legitimate only in the light of the right of self-defense. If society needs this penalty to protect the life of its members, it may be said that it is authorized to use it, on the same ground as each individual to whom we have conceded the right to repel force by force, and to deprive of his own life one who should threaten to takehislife.
But, it will be objected, the right of self-defense, when ending in homicide, is justifiable only at the moment of the attack, and to ward off a sudden aggression itself threatening murder; but the deed once committed and the criminal in the hands of the law, there is no reason to fear a new aggression from him, and his chances of escape from justice through evasion are too few to justify the violation of a duty so absolute as the respect for human life.
It may be answered that society, by the death penalty, not only defends itself against the criminal himself, but against all those who might be inclined to imitate him. The penalty of death is above all a precautionary means of defense, thatis to say, a means of intimidation. The future criminal is warned beforehand of the risks he runs; he accepts voluntarily the punishment he will incur. If society should catch him in the act—flagrante delicto—it would certainly, in order to prevent the crime, since it is the representative of all individuals, have the same rights as the individual of defending himself. But the difficulty of seizing upon the criminal at the moment of commission, can it be considered a circumstance in favor of the criminal, and does society lose its right, because, through the skill and precautions of assassins, it can but very rarely, and scarcely ever, catch them in the act?
The right of society to defend itself by the death penalty does not seem to us, then, to admit any doubt. The whole question is to know whether such a means of defense is really necessary and efficacious. It is, as we have said, a question of experience which it is very difficult to settle, for the reason that we dare not make the experiment. All that can be said is that, as a principle, every man fears death; it is the greatest of fears. There is, therefore, reason to believe that it is the most powerful of the means of intimidation. Besides, it is known that professional criminals estimate with great accuracy offenses and crimes proportionably to their penalties. Thus, those who steal know that they expose themselves to such or such punishment, but they go no farther in order not to incur a more severe punishment; for these the penalty of death is certainly a great item in their plans, and it would be dangerous to relieve them of this menace.
We do not mean to say that in future society may not reach a state of organization strong and enlightened enough to be able to do without such means; but in the present state of things we should consider the attempt to abolish them dangerous for society.
28. Of political assassination.—Concerning this pretended right, so shockingly promulgated in these days bysavage factions, we cannot do better than quote the words of M. Jules Simon in his book onDuty:
“Political assassination,” he says, “is essentially worthy of condemnation from whichever side one looks at it. It has the same origin as the penalty of death, with this double difference that, in the application of the penalty of death, it is the State that pronounces the sentence conformably to the law, whilst in political assassination it is the same man who makes the law, pronounces the sentence, and executes it. Now, society, though badly constituted, and the law, though bad, are nevertheless a guaranty, whilst there is none at all against the caprice, passion or false judgment of a single individual. Besides, the legitimacy of the penalty of death is connected with the legitimacy of the power that pronounces it, and the uniformity of the law. Let some tyrannical authority cause a man to be shot at the corner of a street, without form of legal process, that cannot be called penalty of death; it is called murder; and even when the victim should have deserved his death, the government would not be the less criminal for having executed him without trial. If these principles are just, how can we admit the theory of political assassination, which allows the destiny of all to depend upon the conscience of a single individual. We reflect so little upon the rights of men that there are those who will condemn the death penalty and yet approve of political assassination. We judge so badly, that under the Restoration a monument was erected to Georges Cadoudal, and we hear every day the eulogy of Charlotte Corday. The guiltiness of the victim does not legitimate the act of the murderer. It is both unwise and criminal to furnish hatred with such excuses.”
“Political assassination,” he says, “is essentially worthy of condemnation from whichever side one looks at it. It has the same origin as the penalty of death, with this double difference that, in the application of the penalty of death, it is the State that pronounces the sentence conformably to the law, whilst in political assassination it is the same man who makes the law, pronounces the sentence, and executes it. Now, society, though badly constituted, and the law, though bad, are nevertheless a guaranty, whilst there is none at all against the caprice, passion or false judgment of a single individual. Besides, the legitimacy of the penalty of death is connected with the legitimacy of the power that pronounces it, and the uniformity of the law. Let some tyrannical authority cause a man to be shot at the corner of a street, without form of legal process, that cannot be called penalty of death; it is called murder; and even when the victim should have deserved his death, the government would not be the less criminal for having executed him without trial. If these principles are just, how can we admit the theory of political assassination, which allows the destiny of all to depend upon the conscience of a single individual. We reflect so little upon the rights of men that there are those who will condemn the death penalty and yet approve of political assassination. We judge so badly, that under the Restoration a monument was erected to Georges Cadoudal, and we hear every day the eulogy of Charlotte Corday. The guiltiness of the victim does not legitimate the act of the murderer. It is both unwise and criminal to furnish hatred with such excuses.”
29. The duel.—Does the duel come under the head of legitimate self-defense? No; whatever custom and prejudice may say in its favor.
1. We must first lay aside without discussion all duels bearing on frivolous causes, and they are the largest in number.
2. In many other cases reparation may be obtained through the law, and prejudice alone can prevent having recourse to it. If I am willing to have recourse to law in a case of robbery, why should I not appeal to this same law when my honor is attacked?
3. The duel is an absurd form of justice, because it putsthe offender and the one offended on the same level. It is not the guilty one that is punished; it is the awkward one.
4. Social justice has degrees of penalty in proportion to the gravity of the offense, and is applied only after a very severe examination. The aim of the duel is to apply to very unequal offenses one and the same penalty, death (Jules Simon,Le Devoir, IV.), or if there are any degrees, since it does not always result in death, these degrees are the effect of chance. Finally, if in a duel the parties agree to use skill enough to hurt each other as little as possible, is it not as if they confessed to the injustice and insanity of the proceeding?
5. The duel had its origin in superstition: in theCombat of God, in the belief, namely, that God himself would arbitrate by means of the combat, and give the victory to the innocent and strike the guilty.
6. The duel is a homicide or a suicide. It is, therefore, contrary to the duty towards others and the duty towards ourselves. Finally, the duel is contrary to the duty towards society, which forbids each to be his own judge.
J. J. Rousseau, in theNouvelle Héloïse, has written on the duel and suicide (see further on, Chapter xi.) a letter often quoted, of which we will briefly give the principal passages.
1. One must distinguish between real honor and apparent honor:
What is there in common between the glory of killing a man and the testimony of a righteous soul? What hold can the vain opinion of others have upon true honor, the roots of which are in the depths of the heart? What! the lies of a slanderer can destroy real virtues? Do the insults of a drunkard prove that one deserves them? And can the honor of a sensible man be at the mercy of the first ruffian he meets?
What is there in common between the glory of killing a man and the testimony of a righteous soul? What hold can the vain opinion of others have upon true honor, the roots of which are in the depths of the heart? What! the lies of a slanderer can destroy real virtues? Do the insults of a drunkard prove that one deserves them? And can the honor of a sensible man be at the mercy of the first ruffian he meets?
2. The use of force cannot be a title to virtue:
Will you tell me that one must show courage, and that courage suffices to efface the shame and reproach of all other vices? In this case a rogue would have but to fight a duel to cease to be a rogue; the words of a liar would become true if maintained at the point of a sword; and if you were charged with having killed a man, you would go and kill asecond one to prove that the charge is not true. Thus, virtue, vice, honor, infamy, truth, falsehood, all derive their being from the event of a fight; a fencing-hall becomes the seat of all justice; might makes right.
Will you tell me that one must show courage, and that courage suffices to efface the shame and reproach of all other vices? In this case a rogue would have but to fight a duel to cease to be a rogue; the words of a liar would become true if maintained at the point of a sword; and if you were charged with having killed a man, you would go and kill asecond one to prove that the charge is not true. Thus, virtue, vice, honor, infamy, truth, falsehood, all derive their being from the event of a fight; a fencing-hall becomes the seat of all justice; might makes right.
3. Antiquity, so rich in heroes and great characters, knew nothing of the duel. There may then exist societies civilized and refined where a man may defend his honor without having to resort to the duel. This is a remarkably striking argument:[19]
Did ever the valiant men of antiquity think of avenging their personal insults by single combats? Did Cæsar send a challenge to Cato, or Pompey to Cæsar? “Other times, other manners,” you’ll say, I know, but true honor does not vary; it does not depend on times or places or prejudices; it can neither pass away nor be born again; it has its eternal source in the heart of the just man and in the unalterable rule of his duties. If the most enlightened, the bravest, the most virtuous nations of the earth knew nothing of the duel, I say that it is not an institution of honor, but rather a frightful and barbarous fashion worthy of its savage origin.
Did ever the valiant men of antiquity think of avenging their personal insults by single combats? Did Cæsar send a challenge to Cato, or Pompey to Cæsar? “Other times, other manners,” you’ll say, I know, but true honor does not vary; it does not depend on times or places or prejudices; it can neither pass away nor be born again; it has its eternal source in the heart of the just man and in the unalterable rule of his duties. If the most enlightened, the bravest, the most virtuous nations of the earth knew nothing of the duel, I say that it is not an institution of honor, but rather a frightful and barbarous fashion worthy of its savage origin.
4. It is not true that a man of honor incurs contempt by refusing a duel:
The righteous man whose whole life is pure, who never gave any sign of cowardice, will refuse to stain his hand by a homicide, and will be only the more honored for it. Always ready to serve his country, to protect the feeble, to fulfil the most dangerous duties, and defend in all just and honest encounters, and at the price of his blood, what he holds dear, he will reveal in all his transactions that resolute firmness which always accompanies true courage. In the security of his conscience he walks with head erect; he neither flies from nor seeks his enemy; one can easily see that he fears less to die than to do wrong, and that it is not danger he shuns, but crime.
The righteous man whose whole life is pure, who never gave any sign of cowardice, will refuse to stain his hand by a homicide, and will be only the more honored for it. Always ready to serve his country, to protect the feeble, to fulfil the most dangerous duties, and defend in all just and honest encounters, and at the price of his blood, what he holds dear, he will reveal in all his transactions that resolute firmness which always accompanies true courage. In the security of his conscience he walks with head erect; he neither flies from nor seeks his enemy; one can easily see that he fears less to die than to do wrong, and that it is not danger he shuns, but crime.
30. War.—War is the most serious and the most solemn exception to the law which forbids homicide. Not only doesit permit homicide, but it commands it. The means thereto are prepared in public; the art of practicing them is a branch of education, and it is glorious to destroy as many enemies as possible.
One cannot fail to see the sad side of war, and how contrary it is to the ideal tendencies of modern society. It is still to be hoped that there will come a time when nations will find a more rational and more humane means of conciliating their differences. But there is no indication of this good time as yet, nor even that it is near, and it is necessary to guard against a false philanthropy, which would imperil the sacred rights of patriotism.
The problem of war in itself belongs rather to the law of nations than to morality properly so called. It will be in studying later the relations of the nations between each other that we shall have to establish as a rule that the right of self-defense exists for them as well as for the individual. The only question in a moral point of view is to know whether the individual, by the sole fact of the order of society, is released from the duty imposed on him not to shed blood. Some religious sects in the early times of Christianity, others in modern times in England and in America (the Quakers), believe that the interdiction of homicide is an absolute thing; they claim the right to be exempt from military duty. The State, of course, never recognized the legitimacy of such a scruple, which would prevent all social subordination and deprive the defense of the country of all its strength. But neither does morality recognize such a right. As a part of a society which is commissioned to defend us, and which can do so only by using force, it is evident that each one should share in the acts by which it undertakes to defend us. For how can malefactors be prosecuted without employing force? The same may be asked as to enemies from without. Now, as society defends every one equally, it cannot make any exception in favor of such or such scruple. It can grantexemptions, but cannot admit that each should exempt himself by the scruples of his conscience.
Certainly it ought not to be maintained that any order given by society releases the individual conscience from all consideration. But obedience to the law is the foundation of social order, and co-operation in the public defense is a duty of absolute necessity. Of course one assumes in this view implicitly the legitimacy of war; but this question will be treated later on by itself, and in accordance with the reasons belonging to it.
DUTIES CONCERNING THE PROPERTY OF OTHERS.
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?—Theinterestof money.—The question of usury.—Duties ofcreditoranddebtor.—Failuresandbankruptcies.—The commodate or things loaned for use.Trust.—Duties of thedepositaryand thedeponent.Of the possession in good faith.—The thing lost.Sales.—Obligations ofsellerandbuyer.Of property in general.—Violation of property ortheft.—The elements which constitute theft.—Simplethefts andqualifiedthefts.—Abuse of confidence,swindling.—Restitution.Promises and contracts.—Differences between these two facts.—Strict obligation to keep one’s promises: rare exceptions (practical impossibility, illicit promises, etc.)—Differentkindsof contracts.—Conditionsof 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.
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?—Theinterestof money.—The question of usury.—Duties ofcreditoranddebtor.—Failuresandbankruptcies.—The commodate or things loaned for use.
Trust.—Duties of thedepositaryand thedeponent.
Of the possession in good faith.—The thing lost.
Sales.—Obligations ofsellerandbuyer.
Of property in general.—Violation of property ortheft.—The elements which constitute theft.—Simplethefts andqualifiedthefts.—Abuse of confidence,swindling.—Restitution.
Promises and contracts.—Differences between these two facts.—Strict obligation to keep one’s promises: rare exceptions (practical impossibility, illicit promises, etc.)—Differentkindsof contracts.—Conditionsof 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 theright of property.
31. Property.—What is property? What is its origin and principle? What objections has it raised? What moral andsocial 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 Constitution 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 somethinghis own, that is to say, to attribute to himself theexclusiveright to enjoy something outside of himself.
We must distinguish betweenpossessionandproperty. Possession is nothing else thanactual 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 isassimilation, and, consequently,appropriation. It is, then, necessary that certain things of the external world should becomemine, otherwise life is impossible.
Property is thennecessary; 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 theright 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.)
“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 itconvention—that is to say, thelaw? 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 aconsecrated fact, it is also aright. It finds in the law itsguaranty, but not itsfoundation.
The true principle of property iswork; and property becomes blended with liberty itself: “libertyandproperty,” 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 beacquiredexcept by a certain effort (as in the case of animals running wild), or even that can beproducedonly 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]
“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 calledsalary, and which again by exchange can obtain for us the possession of things not ours.
33. Accumulation and transmission.—The right ofappropriation, founded as we have just seen on work, carries with it as its consequence, the right ofaccumulationand that oftransmission.
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 calledsaving; and the successive additions to savings is calledaccumulation. This right cannot be denied to man; for that would be ignoring in him one of his noblest 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 oftransmissionis 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 ofexchange, which gives rise to what is calledpurchaseandsale. Of all transmissions, the most natural is that which takes place between a father and his children: this is what is calledinheritance. If we were to deprive the head of a family of the right of thinking of his children in the accumulation 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 onlyindividualproperty. 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, orcommunism, 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 theequalitysystem (système égalitaire); or by reason ofcapacityandworks. 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 assured 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 Statewould 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 inégalitaire) which recommends a remuneration from the State, proportioned to merit and products, that is to say, tocapacityandworks, 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 principal vice of all communism, whether of equality or inequality, is to substitute 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 mustexist, 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 institutions of life-assurances, savings-banks, banks of assistance, 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 therelative well-beingof men than theirabsolute 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.”
“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,propertystrictlyso-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 bypurchase, 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 calledborrowing; the reciprocal act, which consists in conceding for a time the desired object, is calledloaning. He who borrows, and who by this very act engages himself to return the thing again, is calleddebtor(who owes), and he who loans is calledcreditor; 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? Itis 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 pass 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 repartition of it.
It is this doctrine which a Father of the Church, Clement of Alexandria, has expressed in these terms in his treatise:Can any rich man be saved?
“What division of property could there be among men if no one had anything? If we cannot fulfil the duties of charity without any money, and if at the same time we were commanded to reject riches, would there not be contradiction? Would it not be to say at the same time give and not give, feed and not feed, share and not share?”
“What division of property could there be among men if no one had anything? If we cannot fulfil the duties of charity without any money, and if at the same time we were commanded to reject riches, would there not be contradiction? Would it not be to say at the same time give and not give, feed and not feed, share and not share?”
It is therefore not a strict duty to loan to all; it is a form of benevolence, and we must put off to another chapter (ch. vi.) the conditions and the degrees of this duty.
But a question which necessarily presents itself here, is to know if, when one loans, it is a duty to deprive one’s self of all remuneration; or if it is, on the contrary, permitted to exact a price over and beyond the sum loaned. This is what is called moneyinterest; and when this interest is or appears excessive, it is calledusury. This question, discussed during the whole middle ages, was, before its true principles were established, first resolved by practice and necessity.
It is to-day evident to all sensible minds, that capital, like work, has a right to remuneration. Why? Because without the expectation of this remuneration, the possessor of thecapital would forthwith consume it himself or allow it to waste away without use. This will be better understood in considering the two principal forms of remuneration for capital:interestandrent. Interest and rent are both the product of a capital loaned, but with this difference, that rent is the product of afixedcapital (house, field, workshop); while interest is the product of acirculatingcapital (money or paper).
The interest of capital represents two things: 1, the deprivation of him who loans, and who might consume his capital; 2, the risk he incurs, for capital is never loaned except to be invested, and consequently it may be lost. These are the two fundamental reasons which establish the legitimacy of interest, despite the prejudices which have long condemned it asusury, and the utopias which would establish thegratuityofcredit.[24]
The principal reason against the legitimacy of interest is deduced from thesterility of money. “Interest,” says Aristotle, “ismoney bred from money; and nothing is more contrary to nature.” But, as Bentham remarks (Defense of Usury, letter 10), “if it be true that a sum of money is of itself incapable to breed, it is not the less true that with this same borrowed sum, a man can buy a ram and a sheep, which, at the end of a year, will have produced two or three lambs.” In other terms, as Calvin says, “it is not from the money itself that the benefit comes, it is from the use that is made of it.”
It has been said that he wholoansdoes notdeprivehimself of his money, since he can do without it. (Proudhon,Letters to Bastiat, 3d letter.) But he does deprive himself of it, since he might have consumed it himself. The proof that a loan is a privation, is the pain men have in economizing and in investing their money. How many men are therewho, in possession of a sum of one hundred francs, would not rather spend it than place it on interest?
As to what is calledgratuitouscredit, it could be possible only by being reciprocal. In fact, if I loan you my house, and you loan me in return your land, supposing they are of equal value, it is evident that, the one being worth as much as the other, and the two services equivalent, we need not pay each other anything; for it would be only an exchange of money. But nothing can be inferred from this, touching the most usual case: namely, where the capital is loaned by the possessor to him who does not possess; for then there is no reciprocity, consequently no gratuity.
As to the rate of interest it varies like all values according to the law of supply and demand in the money market. (See theCours d’Economie Politique.) The greater the supply of capital the less dear it is. It is, then, the increase of capital that is to diminish interest and bring about a sort of relative gratuity. Every enterprise against capital will produce a contrary result.
As to the rent of capital, it has generally raised fewer objections than interest; for it is easier to understand that if I give myself the trouble to build a house, it is that it will bring me in something; but it is, on the whole, the same thing, with this difference, that circulating capital, running more risks than fixed capital, seems to have a still better right to remuneration.
The lender has then the right to exact a certain amount over and above the sum loaned. Certainly, he cannot exact it, as it often occurs among friends, and for very small sums. But as a principle, one is no more obliged to lend gratuitously, than to give to others gratuitously what they need.
In admitting that the interest of money is a legitimate thing, is one obliged also to admit that the money-lender has a right to fix the rate of interest as high as he wishes? Beyond a certain limit, will not the interest become what we callusury?
To which may be replied: