We have seen that the right of property could not be defined by the extent of the rights attaching to the owner. These rights are of two kinds. First, there are the rights of disposal (either by means of alienation or by conversion to another form), which seem more especially characteristic of the right of property. Now, there may be no rights of disposal whatever and yet the right of property will not be extinguished. The minor, the person without civil rights, the person who has a legal guardian, can none of them of their own accord dispose of their property, and yet they remain the owners. On the other hand the family council1 has the power of disposal within certain limits, without however having any right of property over the thing in question. There remains the power of usage, which, within certain limits, is found wherever there is a right of property. The minor does not have the use of the yield of his property or of the property itself at will, but he has use of it nevertheless in the sense that its yield provides for his upbringing. In this respect there is in fact only a difference of degree between himself and the person who is of age and enjoys his rights in full: the one who is of age, too, cannot make use at will of what he owns, since, if he behaves as a spendthrift he may be deprived of the control of his affairs. All the same, though the power of usage exists wherever there is property, it is not peculiar to it, because it is also to be found in other cases. In particular, anyone may use and use freely, things that are res nullius, or those that are res communes, that form part of public property, without nevertheless being the owner.
Here we are getting near to what is truly specific in the right of property, if we complete and define this concept of usage by adding to it a distinguishing characteristic. One of the features that identify the right of usage which is peculiar to the owner of all similar rights, is that it excludes any concurrent right. Not only does the owner have use of a thing, but he is alone in that use; or, if there are several simultaneous users, it means that there are several owners. Every owner has the right to remove all other individuals from any thing of his own. The way in which he enjoys what belongs to him is of little importance: the main thing is that no other is able to enjoy it in his place. The thing is withdrawn from common usage for his own personal use. It is this, in part, that lies at the root of the idea of appropriation. However, we have not yet grasped the most fundamental element in this notion. Exclusive usage is to be found in many cases where there are, properly speaking, no rights of ownership: I mean those cases where the right of usage is established in a certain way agreed upon as between a given object and one or more given subjects (or individuals), to the exclusion of all others. The right of usufruct is typical of these rights. The proof that this primary feature is already inherent in the right of property is that the usufruct itself is an element in this right; as a rule it is looked on as the result of a breaking up of the right of property. At this stage, then, we have got into the region of things that have to be defined: but we have not yet reached the heart of the matter. There is something that still eludes us. Since the owner can co-exist alongside the usufructuary, this means that the right of usage does not form the whole of the right of property. What does the relation consist in, as between the true or bare owner and the thing owned? It is a moral and juridical bond which makes the status of the thing depend on what befalls the person. If he should die, it is his heirs who inherit. In general, there is a kind of moral community between the thing and the person which makes the one have a share in the social life and social status of the other. It is the person who gives his name to the thing or, conversely, the thing that gives its name to the person. It is the person who raises the status of the thing, or it is the thing, the domain, which—if it has privileges deriving from its origin—transmits them to the person. An entailed estate (or majorat) involves the transmission of special rights and a title to the inheritor. If we suppose family inheritance to be abolished as from to-morrow, this bond, characteristic of the right of property, would none the less survive; for there would then be a different kind of hereditary transference: it might, for instance, be the society which would inherit and thus the death of the actual owner would continue to affect the social status of the things owned by him.
These, then, are the two constituent elements of the thing appropriated. We are already aware of the likeness they bear to the sacred thing. The sacred thing is closely akin to the sacred person; it is sacred as this person is and in the same degree. The things that are sacred because they are connected with the head of the religion or State are sacred to a higher degree and by a right different from those connected with sacred dignitaries of lesser rank. The taboo of things is parallel with the taboo of persons. All that modifies the sacred status of the person affects the sacred status of the thing, and vice versa. On the other hand, the sacred thing is set apart and withdrawn from common usage and forbidden to all those not entitled to approach it. It does therefore seem as if the thing appropriated were only a kind of particular species of sacred thing.
There is another resemblance between these two kinds of thing no less characteristic, that shows their fundamental sameness. It is, of course, only another aspect of one of the similarities mentioned. The sacred character, wherever it resides, is in its essence contagious and communicates itself to any object it comes in contact with. Sometimes, when the sacredness is intense, a momentary touch is enough to produce this result: if this is only moderate, there has to be a closer and more prolonged contact. But in principle, all that touches a sacred entity, whether person or thing, becomes sacred in the same way as this person or thing. The potency that is within the sacred entity (and which renders it sacred) is seen in the popular imagination as ever ready to spread into all the milieux open to it.
Indeed, it is partly from this fact that the ritual interdictions derive which separate the sacred from the profane; it is a matter of insulating this potency, of saving it from being lost or dissipated or from disappearing. This is why I said that the contagious quality is only another aspect of the insulation that is a feature of sacred things. Again, since the sacred feature, by thus communicating itself, makes the objects to which it is transmitted enter the region of sacred things, we might say that, as a rule, the sacred draws to itself the profane with which it is in contact. How this strange phenomenon arises it is useless to pursue here, all the more so since there is no satisfactory explanation. The truth of the fact is, however, not in doubt; we have only to refer to the instances of contagiousness in the taboo that were described in the last lecture.
The characteristic that makes a thing the property of a certain subject or individual exhibits the same contagiousness. It tends always to pass from the objects in which it resides to all those objects that come in contact with them. Property is contagious. The thing appropriated, like the sacred thing, draws to itself all things that touch it and appropriates them. The existence of this singular capacity is confirmed by a whole collection of juridical principles which the legal experts have often found disconcerting: these are the principles that decide what is called the ‘right of accession’. The idea may be expressed in this way: any thing to which another of less importance is added (accedit) communicates to it its own status in law. An ownership that comprises the first is extended ipso facto to the second and comprises it in turn. This one in turn becomes the thing owned of the same proprietor as the other. Thus, the fruits, the yield of the thing belong to its owner, even though they are separate from it. By virtue of this principle, the young of animals belong to the owner of the mother; the same rule applies to slaves. This is because there is immediate contact between mother and young and not between them and the father. In the same way, all that the slave earns belongs to the estate to which he is bound, to the master who owns this estate. The son of the family was, as we have heard, owned by the head of the family. The rights of the head of the family are extended by contagion from the son to all that the son earns. I may build a house with my own materials on the estate of another, and the house becomes the property of the owner of the estate. He may be bound to give me compensation, but the right of ownership accrues to him. It is he who enjoys the tenure of the house, and if he should die, his heirs would inherit. The deposits of alluvium along my estate are added to this property and my right of ownership is extended to the things thus added. The proof that this is a matter of contagion by contact is, that where there is separation, when a boundary is made to a field and it is thus detached in law and psychologically from its surroundings, the right of accession does not arise. In the same way, when the trees of my neighbour send out roots beneath land that I own, common possession is established and my rights of ownership are extended to these trees.
In all cases, it is the more important thing that draws the lesser to it. This means that, as the two rights of ownership are in conflict, it is of course the one with the greater force that exerts the greater power of attraction. Not only does the right spread in a general way, but it spreads, at the same time keeping the very same specific characteristics. For instance, the estate that passes by inheritance is, in many societies, inalienable. This inalienability is carried over from the estate to objects most constantly connected with the estate, that is, beasts of burden or draught animals. And the proof that this second inalienability derives from the first is, that it can be extinguished at an earlier stage and more easily. Indeed, there are many rights in which the traces of the inalienability of the land or buildings still exist, whilst all recollection of the inalienability of the agricultural implements has been lost.
Thus, we find on every hand striking analogies between the idea of the sacred thing and that of the thing appropriated. Their characteristics are identical. Further, we have seen that, in fact, the communication of the sacred character very often brings about an appropriation. To consecrate is a way of appropriating. What indeed does ‘to consecrate’ mean, if not to appropriate a thing to a god or consecrated personage and to make this thing his own? Let us imagine some kind of symbol of honour and merit subject to the use of ordinary people and available to everybody: it is already plain that there is little difference between this and a form of appropriation. But although what we have just discussed leads us to admit that such consecration may be possible, it still remains to show its reality.
To do this, we must examine the most ancient form of property known, that is to say, landed property. It is only from the time when agriculture became established that this kind of property can really be closely examined. There existed until then only a vague right of all members of the clan over the whole area held by them. A clearly defined right of property only appears at the focal point of the clan; small family groups settle on agreed pieces of land, set their landmark on them and dwell there permanently. Now it is certain that this ancient family holding was permeated by a profound sacredness and that the rights and privileges associated with it were of a sacred kind. Indeed, a proof of this is the fact that it was inalienable. For the inalienability has the distinctive characteristic of the res sacrae and of the res religiosae. And what indeed is inalienability, if not an insulation or setting apart more complete and more radical than that involved in the exclusive right of usage? An inalienable thing is one which must belong always to the same family, that is, not only at the present but in perpetuity, and which is withdrawn from common use. Not only is it impossible for individuals outside the family to enjoy this thing in the present, but they can never do so. The boundary separating them from the thing can never be crossed. We can see that, in some ways, the right to alienate or to sell is far from being the highest point of development in the right of property: it is rather the inalienability itself that represents this point. For it is here that appropriation is most complete and best defined. It is here that the bond between the thing and the subject (or individual) who is the possessor reaches its maximum force and here too that the exclusion of the rest of the society is most strictly imposed.
But this sacred nature of landed property is revealed in its very structure. The customs we shall go on to discuss have been especially observed with the Romans and the Greeks and in India. But in any case they were certainly very widespread.
Each field or holding was surrounded by a belt separating it clearly from all the neighbouring holdings, private or public. This was a strip of land a few feet wide that had to remain uncultivated and untouched by the plough. (Fustel de Coulanges.) Now, this belt was sacred—it was a res sancta. This was the name given to things which, without being, strictly speaking, divini juris, in the sphere of the gods, were so, however, to a certain extent, quodam modo, as Justinian says. To violate this sacred surrounding belt, to till it and profane it amounted to sacrilege. The man who committed such a crime was accursed, that is, declared sacer, both himself and his oxen, and therefore anyone might kill him with impunity. “He was condemned to have no issue and his race to death; for the extinction of a family, in the eyes of the ancients, was the supreme vengeance of the gods.”
We know, moreover, the ritual ceremony by which the sacred character of this space was maintained in a regular way. “On certain appointed days of the month and year, the head of the family made a tour of his field following this line; he drove the victims before him, singing hymns and offering sacrifices.” (Fustel de Coulanges.) It was the path followed by the victims and sprinkled with their blood which constituted the inviolable boundary of the holding. The sacrifices took place on great stones or trunks of trees set up at intervals and called terminals. Let us hear how Siculus Flaccus described the ceremony. “This”, he says, “was the practice of our ancestors: they began by digging out a little ditch and setting up the terminal stone on the edge, they crowned it with garlands of herbs and flowers. Then they offered a sacrifice; the victim slain, its blood was made to flow into the ditch, and into this they threw live coals, grain, cakes, fruits, a little wine and honey. When all these had been consumed in the ditch on embers still glowing, the stone or block of wood was driven in.” It was this sacred act that was repeated every year. The terminal or boundary stone thus assumed a character that was decidedly sacred. With time, this sacred character became personified, and hypostasized in the form of a definite deity: this was the god Terminus, whose various terminals, placed about the field, were considered, in a sense, as so many altars. Thus, once the terminal was set up, no power on earth could displace it. “It had to remain in the same place for all eternity. In Rome, this sacred principle was expressed in a myth: Jupiter, desiring to have a site for a temple on the Capitoline Hill, had not been able to dispossess the terminal god. This ancient tradition shows to what degree property was sacred, for the immovable terminal means no more than inviolable property.” These ideas and practices were moreover not peculiar to the Romans. To the Greeks, too, the boundaries were divine and became Θϵ́οι ο̋ροι. We find the same ceremonies for making boundaries in India. (Manou, VIII, 245).
It was the same with gates and walls. “Muros sanctos dicimus quia poena capitis constituta sit in eos qui aliquod in muros deliquerunt.” It is believed that the phrase related only to the gates and walls of cities. But this limitation is arbitrary. The boundary wall of all houses is sacred: ϵ̋ρκος ίϵρòν, said the Greeks. In many countries, it was on the threshold that this sanctity reached its greatest force. Hence the custom of lifting the betrothed over the threshold before bringing her in, or of making an expiatory sacrifice on it. This, because the betrothed is not of the house. She is committing a kind of sacrilege in treading on sacred soil, which, if not prevented, has to be expiated. Further, it is usual for the building of a house to be accompanied by a sacrifice similar to the one for the marking of the field boundary. The purpose of this sacrifice was to sanctify either the walls or threshold or both at once. Sacrificial victims were immured within the walls or in the foundations; or they were buried beneath the threshold. Hence, its sacred character. It was a ritual similar to the one for marking the boundaries of a city. These solemn ceremonies were well known: the myth of Romulus and Remus carries on the memory. They served for private houses as well as for public domains.
So there is a sacred basis for property being property. It consists, in fact (following on what we have said), in a kind of insulation of the thing, which withdraws it from the common area. This insulation has sacred origins. It is the ritual procedure that creates—on the confines of the field or around the house—an enclosure that in each case makes them sacred, that is, inviolable, except for those who conduct these ceremonies, which means the owners and all that belongs to them in the way of slaves and animals. What amounts to a magic circle is drawn about the field, which shields it from trespass or encroachment, because such intrusions, in these circumstances, become sacrilege. But although it is clear that these practices led to the appropriation of the thing thus insulated, we may still not see how the practices themselves originated. What are the ideas that brought men to carry out these rites and so to yield to the gods the fringes of their domains and to make them sacred ground? It is true there might be a very simple answer: that these customs were only expedients resorted to by individuals to enforce respect for their possessions. The owners might have made use of religious beliefs to keep intruders at a distance. But a religion does not descend to the level of expediency, unless the beliefs it inspires are no longer a very living thing. The customs we have described are far too primitive to have been expedients intended to safeguard worldly interests. Moreover, they were as much a source of constraint as an advantage to the owners, for they fettered their freedom of action. For these customs did not allow them to alter the boundaries of the holding or to sell it if they wished to. Once consecrated, even the master himself could do nothing to change the enclosure in any way. It was, then, an obligation he was under, rather than an expedient invented by himself in his own interest. If he adopted the procedure we describe, it is not because it was useful to him but because he had to act in this way. (Terrible nature of some of these sacrifices, that of a child). But what are the causes that lie behind this obligation?
Fustel de Coulanges thought they lay in the cult of the dead. Every family, he said, has its own dead; these dead are buried in the field. They are sacred beings, for death makes almost gods of them—and this nature is therefore extended to the ground in which they lie. This ground becomes theirs by the very fact that they lie in it, and it is thereby sacred. We can understand that this sacredness spread from the little mound serving as a family sepulchre to the whole field. The inalienability of property established in this way is thus explained. For the true owners of this domain are divine beings and their right is indefeasible. The living are not free to dispose of the field because the right does not lie with them.
There is no doubt that these burial places were especially sacred. They could not be sold. And although Roman law allowed a family to sell its field or holding (such a sale was difficult and met with all kinds of obstacles) it had always to remain owner of the tombs. Does this mean that the right of property is only an extension of this sanctity of the tomb? The theory is open to a number of objections:
This error of Fustel de Coulanges springs from too narrow a concept of the family cult. He reduces it to the cult of the dead, when in reality it is far more complex. Family religion was not ancestor worship alone; it was the cult of all things that played a part in the life of the family, such as the harvesting, the seasonal fruitfulness of the fields, and so on. If we take this overall view, the practices we have described become intelligible. We have to remember that, from a certain point in evolution, the whole of nature takes on a sacred character—πάντα πλήρη Θϵωᵔν, gods crowd in everywhere. The life of the universe and of all things in it is related to an endless stream of divine principles. The fields, until then uncultivated, become inhabited, possessed by sacred beings conceived in some form, personified or not, who have command over them. Like all else in the world, the field has a sacred character. This quality makes it unapproachable. It matters little whether these sacred beings are devils malign by nature, or deities on the whole benevolent. The husbandman cannot enter his field without trespassing on their domain; he cannot till or shift the soil without disturbing them in their possession. Thus, he is exposing himself to their anger, which is always redoubtable, if he does not take the right precautions.
All this being granted, the rites we have described seem remarkably similar to others, well-known, that throw light on them: these are the sacrifices of the first-fruits. Just as the soil is a divine thing, the harvest which is the fruit of this soil contains, too, a principle that is divine. In the seed sown in the earth there is a sacred force that develops in the shoots of the corn and reaches its fulfilment in the grain. Thus the grains of corn are also sacred, since they have a god within them and are this god made manifest. In consequence, mortals may not touch them until certain ritual ceremonies have tempered the sacredness that resides in them, and in such a way that they can be made use of without peril. It is this purpose that is served by the sacrifice of the first-fruits. The supreme and most formidable element in this sacredness is concentrated in a sheaf or a number of sheaves, usually the first sheaves garnered, and these are sacred: no one touches them and they belong to the god of the harvest; they are offered to him and no mortal dare partake of them. The remainder of the harvest, although still keeping a certain sacred quality, is rid of something that made an approach to it too perilous. This remainder can serve for everyday use without the user being exposed to divine vengeance, for the god has had his due, and this came to him solely because the element in the harvest that was too sacred had been got rid of. The sacred element residing in the crops has been prevented from passing over into the profane, for it has been separated from the profane, and by the sacrifice, it has been kept within the divine sphere. The line of demarcation of the two worlds has been respected, and this is the supreme sacred obligation. What we have said on the harvest applies equally to all fruits of the earth. Hence the rule prohibiting men from touching these fruits, whatever they be, without having set aside the first-fruits beforehand and offered them to the gods. There is no religion that is not familiar with this practice.
The analogies with the ritual ceremonies of the boundary stones are striking. The field is sacred, it belongs to the gods, therefore it may not be used. To enable it to serve profane ends, recourse is had to the same procedure as used in the harvest or the vintage. It has to be relieved of the excess of sacredness in order to make it profane or at least profanable, without incurring peril. The sacredness, however, is indestructible: it can therefore only be shifted from one point to another. This dreaded force dispersed about the field will be drawn off, but it has to be transferred elsewhere, so it is accumulated at the periphery. This is the purpose of the sacrifices described. It is upon an animal that the diffused sacred forces are now concentrated: then this creature is led all around the field. Wherever it passes, it communicates to the soil it treads on the sacred character that is in it and which it has drawn off from the field. This ground becomes sacred. In order to fix this awe-inspiring sacredness upon it the better, the animal is sacrificed and in the very ground furrowed for the purpose the blood of the victim is made to flow, for the vital fluid is the supreme vehicle of all sacred principles. The blood is life itself, the living thing. Henceforward, the strip that was the scene of this ceremony is consecrated land: what was divine in the field is now transferred to the strip. Moreover, it is set aside and may not be touched; it is not to be tilled and cannot be changed in any way. It does not belong to men but to the god of the field. From now onwards all within the domain is at the disposal of men to make use of for their own needs. By the very fact, however, that the sacredness has been, as it were, pushed back to the boundary of the land, this land is ipso facto fenced in, surrounded by a circle of sanctity protecting it against any intrusions or occupancy from without.
Furthermore, the sacrifices made in these circumstances are quite likely to have had more than one purpose. Since the husbandman, in spite of all, had interfered with the possession of the gods, and committed an offence that placed him in peril, it was necessary to atone for it. The sacrifice brought about this atonement at one stroke. The victim took upon itself the offence committed and expiated it on behalf of the guilty. And then (as a further result), owing to the ritual carried out, not only were the deities disarmed but transformed into protective powers. They kept guard over the field, defended it and ensured that it should prosper. We could interpret the practices that were current when a house was built in the same way. To get this house built has meant disturbing the guardian spirits of the soil. They have been roused and antagonized. Thus, any and every house is forbidden to us and taboo. Before entering, there must first be a sacrifice. The victims are killed on the threshold or on the foundation stones. By this means the guilt of sacrilege was atoned for. At the same time the vengeance which has threatened is changed to favour and the angry dæmons are turned into protective spirits.
But only those who had carried out the ritual could make use of the field or house. They alone have atoned for the sacrilege committed; they alone have conciliated the divine elements with whom they are in communication. The deities had an absolute right over the things: those who conciliated them have in part taken their place in so far as this right over things is concerned. It is those alone who effected this process of substitution who can benefit by it. They alone, therefore, can exercise the right won, as it were, from the gods. The power to use and make use of belongs to them exclusively, in their own right. Before the ritual was carried out, everyone had to keep at a distance from the things entirely withdrawn from profane use; afterwards, everyone was bound to the same stricture, these others alone excepted. The sacred virtue that until then protected the divine domain from any occupancy or trespass, was henceforth exercised for their benefit: it is that virtue which constitutes the right of property. It is because they have enlisted its service in this way that the land has become theirs. A moral bond has been forged between themselves and the gods of the field by the sacrifice, and since the link already existed between the gods and the field, the land has therefore become attached to men by a sacred bond.
This, then, seems to show how the right of property had its origin. Man’s right of property is only a substitute for the right of property of the gods. It is because the things are by nature sacred, that is, appropriated by the gods, that it has been possible for them to be appropriated by the profane. Also, the quality that makes property an object of respect and inviolable—a quality which in effect makes it property—is not communicated by men to the domain; it is not an attribute which has been inherent in men and from them has devolved on things. It is in things that the quality originally resided, and it is from things that it has risen towards men. The things were inviolate in themselves by virtue of sacred concepts, and it is this derived inviolability that has passed into the hands of men, after a long process of being diminished, tempered and canalised. Respect for property is, then, not—as we often hear—an extension to things of the respect that human personality imposes, individually or collectively. It has a very different source, exterior to the human person. If we want to know whence it comes, we have to see how things and men acquired a sacred character.
Note
1 See note, Lect. XII.