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first run on the book, which is always the most con-
siderable.

Literary property did, therefore, exist before any
law ; only, without the aid of law this right is ham-
pered in its exercise, and is only partially productive.

Property in inventions has followed the same
course ; it held good for a certain duration of time at
anyrate, before any law was made in reference to it,
from the nature of things and in the sentiments of the
people. M. de Molinari, who has written an account



THE MODERN STATE. 191

of his travels in Canada, tells us of a singular ante-
cedent to property in inventions. It seems that there
when a savage finds a burrow he sets a certain mark
about it, by virtue of which no one can dispute his ex-
clusive right to take whatever animals hemay find there.

The possessor of a mechanical or chemical inven-
tion may keep the secret for some time and apply it
in silence, keeping a veil of mystery around it. This
naturally hampers him somewhat, but he may, never-
theless, draw a considerable profit from it ; sometimes,
indeed, a very considerable one. This right has de-
volved upon him naturally : but while it is only this,
its exercise is precarious and liable to disturbance,
just as much as the right of him that has sown to
reap would be precarious, if there were no recognised
force to keep off marauders.

Was it necessary for the law to proclaim the good-
will of commercial businesses to be saleable before the
right or even the practice of selling such good-wills
could exist ? By no means : thousands of transac-
tions of this nature were carried through before the
legislator ever took thought about the matter.



192 THE MODERN STATE.

Nowadays, even a beggar sells or lets out his place,
if it is a good one, and he means to give up occupying
it. No tribunal has ever conferred this power on
him. But the right of the first occupier is so general,
and so strongly commends itself to human nature and
to the nature of things generally, as well as being
essential to social peace, that we find altogether un-
expected applications of it cropping up in the absence
of any legal sanction.

Are we to suppose again that it is the law
which has created trade-marks and the prestige
which attaches to them ? Not at all. Simply manu-
facturers were forced in order to avoid limitations to
multiply and modify their conventional signs in order
to keep up an understanding with their principal
customers.

Is it possible to believe that the law created the
practice of lending at interest, when three-fourths of
our legislators have shown themselves eager to pro-
scribe and mutilate it ? It has survived all attempts
at proscription, because it adapts itself to the require-
ments of human development,



THE MODERN STA TE. 193

f

We find the same to be the case with all rights.
The legislator, by nature a vain and presumptuous
person, must be restored to a sense of modesty. He
does not create right : he only regulates the exercise
thereof. He has absolutely no creative power. He
only wields a regulating force, and this unfortunately
is often transformed in his reckless and unskilled
hands into an immense power of perturbation. Ab-
solute faith in the power of reason is one of the most
fatal of the many superstitions which the eighteenth
century has bequeathed to us.

This same century it was, however, which dis-
covered the true definition of law. It is in the form
of a magisterial dictum, and admirably represents
the incarnation of all legislative wisdom. " Laws, in
the most extended signification of the word, are the
necessary relations which spring out of the nature of
things."

It has surprised me to find that so judicious and
penetrating a writer as M. Sorel, in his work on
Montesquieu, misses the depth, the exactness, and I
may add the clearness, of this statement. He considers



194 THE MODERN STATE.

this formula " the vaguest and most general of any."
It is the most general, undoubtedly, but the vaguest
no ! I should be rather inclined to term it the most
precise. " It is," says M. Sorel, " an algebraical formula
and has only the most distant and indefinite con-
nection with laws political and civil." My opinion is
quite other than this.

Here I am considering only civil laws, but I find
that Montesquieu's formula is marvellously adapted
to them. For instance, the legislator carries on for
whole centuries and over whole continents an in-
cessant struggle against interest on capital : eventually
not interest, but the legislator, is forced to capitulate.

In the same way both in France and England, not
only during the Revolution, but before it in the
eighteenth century, laws were made on orders issued
to fix the maximum prices for merchandise, and the
maximum terms for hire (many such decrees by the
Parliament of Paris are still extant), and here again
the nature of things does violence to the legislator.
A Government decree of 1848, which has never yet
been rescinded, prohibited sweating, that is, petty



THE MODERN STATE. 195

enterprises farmed out by a general middleman.
Sweating has changed its guise somewhat, but it still
continues to exist.

In France to-day the suppression of several degrees
of succession is talked of, and the measure is not
unlikely to be voted in the Chamber. Some ingenuous
Minister of Finance will probably inscribe on the
budget a certain number of millions as the probable
product of the projected confiscation. But the right of
succession is inherent in the very nature of man ; it
is necessary to ensure the personal impress which he
aims at having and at leaving behind him on things in
general, and to ratify those links of affection which
are usually created by community of ancestors and of
name, and by the persistence of relationships. The
right of bequest will baffle the projects of any Minister ;
instead of tens of millions, the unreflecting voracity
of the State will gain only at the most a few tens of
thousands of francs. 1

1 In France it has often been proposed to suppress a certain
number of degrees of succession in inheritance ab intestat.
Since 1880, several deputies have made proposals of this kind ;
and in 1888, M. Peytral, Minister of Finance, prepared a draft



196 THE MODERN STATE.

There are certain kinds of taxes which the legislator
tries to make use of as instruments for furthering
equality of conditions. But the phenomenon of reper-

of a law on this subject. It was supposed that by this means
the State would reap an annual increase of revenue amounting,
some said to 30, others to from 50 to 60 millions. If such
measures as these should ever be voted in the Chamber they will
result in prompt and bitter disappointment.

Certain legislatures, the French among the number, make
the limitation at the 12th degree, for successions ab intestat,
which is very distant, for cousins german are only of the 4th
degree. But they have done this not because they admit that
a succession which devolves upon the State can in any case be
better than succession which devolves upon private persons, but
for a purely practical reason, and one which grows out of the
conditions of modern life. They believed that in our restless
societies, where constant displacements take place, where families
scarcely ever remain rooted to their original soil, relationships
beyond the 12th degree become usually very uncertain, and are
liable to be very much contested, and that, this being the case,
successions where no will can be proved are only on the whole
productive of inextricable litigation which absorbs avast amount
of activity. It is this reason and this only which lies at the
base of such legislation. It amounts practically to a caution
addressed by the Code to all persons who have only very distant
relations to make a will if they do not \vish their inheritance to
be devoured by the agents of the law.

It is not from any motive of personal gain that the State has
fixed this distant limit at the 12th degree : as a matter of fact
this limitation profits it very little. But a very insignificant
portion of successions escheat to the State. In 1886 they
amounted to 102,837, out of a budget of more than



THE MODERN STA TE. 197

cussion or diffusion of taxes comes in to baffle his
efforts. In the nature of things there is an irony
which laughs at the legislator and takes its revenge
for his attacks.

120,000,000. This sum of 102,837 was, moreover, made up
of a considerable number of very small sums. A mere five or six
thousand small sums yearly of a few pounds each would be
enough to make up this comparatively insignificant total. Thus
we see published in the Journal Officiel every quarter or every
half-year the amount of Savings Bank deposits which have been
abandoned. These are very numerous, for the most part only
sums of a few pence or even a few shillings, very few amounting
to 2 or upwards. There are many men whose lives are full of
movement, and who, changing their place of abode and their
trade, and passing through various vicissitudes, forget to draw
the few shillings, or even sometimes the few pence which they
have left in a distant Savings Bank. This is how so many
small sums are forfeited. In the case of any large sum either
deposited in a Savings Bank or in public securities or bills, a
dying man would remember it, unless, of course, death seized him
suddenly in the fulness of health and vigour, and he would
prefer to bequeath his possessions either to a distant relative, a
friend, or a servant, or to works of beneficence or charity. For
the owners of private property have horror of the impersonal,
they hate to lose their own in it and make every possible effort
to avoid doing so and the State, this great modern State with
its 40, 60, 100 or even 300 millions of souls, as the case may be,
is the impersonal par excellence.

The very small proportion which the amount escheating to
the State bears to the successions which devolve upon strangers,
may be easily verified by a small calculation. The dates are
given us in the Bulletin de Statistique el de Legislation comparee



198 THE MODERN STATE.

Unfortunately, the Modern State, in the presump-
tion engendered by electoral triumph, and the con-
sciousness of representing a newly formed majority,
and with the haste which inevitably characterises men
who have a precarious tenure of power, is too often
prone to ignore both the nature of things and the
nature of men. Under the title of permanent Parlia-

du Ministers des Finances (vol. ii. } 1887, pp. 146-147, and 158-
159). In 1886 the sum of inheritances, devolving upon persons
not related to the testator, rose to 8,800,842, while the suc-
cessions escheating to the State amounted only to 102,837, or
about 1'15 per cent, of the former total. In the same year,
1886, successions to relatives beyond the 4th degree and up to
the 12th (note that it is not proposed to do more than suppress
the right of succession beyond the 6th degree), amounted to no
more than 4,109,457. Applying to this order of succession the
same proportion of escheats as we found to the successions
devolving on strangers, we see that, by the suppression of the
right of inheritance ab intestat, the State would only be enriched
by the amount of 46,000 a year. The suppression of several
degrees of succession would be a brutal, but, at the same time,
an ingenious undertaking. It is all very well to be ready to
confiscate wealth, but there still remains to make the confisca-
tion inevitable. Moreover, there is always the loophole of the
will by which private fortunes may escape the State, and even
if bequests were forbidden, the State might still be kept out of
the inheritances by the sinking of funds in an annuity.

The following list shows, for the year 1886, in France, how
succession-values were distributed, and the fiscal duties by which
they were encumbered.



THE MODERN STATE.



199



rnents it has established lasting instruments of legisla-
tion, working like the incessant looms of the spinning
industry. By this means it wields an immense force



Degrees of Relationship.



Rates of
taxation.



1. In the direct line 1'20%

2. Between husband and wife 375 ,,

3. In a collateral line : be-

tween brothers and sis-
ters, uncles and aunts,
nephews and nieces.... 8'125,,

4. Between great-uncles and

great -aunts, great-
nephews and great-
nieces, and cousins
german 8'75 ,,

5. Between relations from

the 4th to the 12th
degree 10'75,,

6. Between unrelated per-

sons H'25,,



Amounts taken
Succession- by the State
Values. in taxation.

143,329,684 1,791,673
20,828,282 781,061



32,570,268 2,646,342

5,131,032 448,965

4,109,437 410,945

8,800,842 990,095



Totals, 214,769,645 7,069,081



From all this it appears that if the State wishes to suppress
degrees of succession it will gain nothing thereby unless it sup-
presses also the right of bequest. Even then the sinking of
funds in annuities, which it cannot do away with, would compete
with it, and eventually reduce its shares to a mere nothing.



THE MODERN STA TE.



of perturbation. Happily, the obstruction of parlia-
mentary oppositions often arrests the rapid progress
of this arrogant machine. Happily, also, social
plasticity, finding itself more or less hampered, pro-
ceeds to develop combinations by which the effects
of legislative caprices are suppressed or minimised.



CHAPTER IV.

Function of General Conservation.

As the representative of social permanence the State^should
watch over and preserve the general conditions of existence
for its people Conservation of climate, of arable land, of
natural riches of a kind which does not reproduce itself The
State may receive assistance in this task from private persons
and associations, but it must not altogether abstain from per-
forming it Marvels accomplished by Holland in its struggles
with the sea Instances in France both of admirable theo-
retical treatises and fine practical works connected with this
task of general conservation The science of Hydraulics is in
its infancy among European peoples The State may play a
considerable part in the conservation or the repeopling of
forests In this direction, its intervention is much more
necessary in southern than in northern countries, and much
more necessary in democratic than in aristocratic States
Inferiority of France, relatively to Germany, in the mainten-
ance of domanial forests The State must take care to enforce
the laws which relate to fishing and the chase, and to prevent
the destructive exploitation of natural wealth which is not of
a self-productive kind Incompetency of the Modern State
to fulfil this important task.

I COME now to the third function of the State,
which is one of the most important and at the same

2OI



THE MODERN STATE.



time one of the least efficiently performed. I shall
only indicate its main outlines.

The State being the representative of social per-
manence, it ought to see that the general conditions
of existence do not deteriorate among its people ; this
is the minimum which can be asked of it; what
would be better still would be that it should improve
them.

Among these general conditions of existence I in-
clude both the moral and the physical conditions of
the people. For the moment I shall only speak of
the latter, which are of the two the less open to
dispute.

These consist first in maintaining or improving, in
so far as man can contrive to maintain or improve,
the climatic conditions of a country, in preserving
arable land, and in watching over such natural
wealth as is not self-productive. In the accomplish-
ment of this multiform task, which has been of all
others the most neglected in the past, the State has
to contend now against certain natural forces which
are far from being easy to control, and now against



THE MODERN STATE. 203

the greed or short-sighted recklessness of the current
generation.

To preserve the soil intact against those natural
scourges which continually threaten it ; for instance,
in European countries the invasions of the sea along
the coast, devastations inland caused by floods and
the ravages of water- courses, the danger of drought,
which may be averted by the maintenance of forests,
is a task for which the State is not without qualifica-
tions, although it does not devolve solely upon it.
Private persons and associations may come to the aid
of the State in these matters ; but this must not
incline it to withdraw from them altogether.

Holland has accomplished marvels in its struggle
with the sea. There all the elements which go to
make up the nation contributed to it. M. de Lave-
leye, who is generally an advocate of State interfer-
ence, tells us in his work on Agriculture in Belgium
of the many agricultural triumphs won by enterpris-
ing individuals over the floods in Flanders and the
Netherlands. The rich lands which are called
polders are the triumphant results of private in-



204 THE MODERN S TA TE.

dustry. But these would have been impossible but
for the previous collaboration of free syndicates of
proprietors, or more frequently of whole communes
or provinces, in the construction of dykes and the
management of works on a large scale. The Minis-
try of Rivers and Waters is one of the most impor-
tant ministerial departments of Holland.

The prospect of immediate or ultimate profit is
not alwa}'s sufficient to spur individuals to action in
these matters. Besides, the work to be of any real
good must often extend over a considerable area.
This necessitates the co-operation and mutual under-
standing not only of most of the dwellers in the
district, but also of all or almost all the owners of
the soil. If this understanding fails, the intervention
of the State is justified, whether it be in an absolute
or in a modified degree. France has reason to be
proud of several great undertakings of this kind.
Towards the end of the eighteenth century, Brdmon-
tier, an Inspector-General of bridges and highways,
succeeded in fixing the dunes or "sandhills of the Gulf
of Gascony between the Gironde and the Adour, and



THE MODERN STA TE. 205

in planting them with beautiful pine forests, thus
preserving the adjacent villages and cultivated land.
In the course of this century another engineer be-
longing to the same department, M. Chambrelent,
having first facilitated the drainage of the Landes,
was enabled to render the country more healthy by
new plantations, so that whole tracts of land were
reclaimed from the marshes and rendered productive
for the nation. There are other instances which
might be quoted both of theoretical studies and of
practical works undertaken by State functionaries in
the interests of general conservation. Among the
former we may notice a very fine book on torrents
by M. Surrel, and his demand for the replantation
of the Alps. His appeal induced the Government to
pass laws and to take steps, which, however, are not
yet completed, for the replanting of mountains and
the regulating of waterways.

We may safely affirm that the practical science of
Hydraulics is still in its infancy among the peoples
of Europe. Water-courses ought to be regulated,
banked up, and so on. They have been considered



206 THE MODERN STATE.

hitherto chiefly from the point of view of the trans-
port of merchandise. Bat there are other interests
to be considered : such are irrigation, the regularity
of the supply, the creation of reservoirs and of
motive power. By a system of wisely-conducted
works we might at one stroke redeem much land and
secure an efficient water-supply.

The draining and drying up of marshes is another
of the tasks which might occupy the State : either in
the sense of keeping a supervision over its perform-
ance by contract, or of itself executing it. It is not
always impossible for private individuals to under-
take this task. It is well known that only lately in
Italy, Prince Torlonia drained the Lake Fucino, very
likely for the sake of ostentation, or for that kind of
aristocratic, almost royal sport to which I referred in
a preceding chapter. In Greece, Lake Copais was
drained by a French Company. In Algeria the great
Mining Company of Mokta-el-Hadid has undertaken
the draining of Lake Fezzara, near Bone. It is
therefore not only the State which can execute these
great undertakings : but when private initiative is



THE MODERN S TA TE. 207

lacking, or where public resources abound, the State
ought not to stand aloof from them.

Next to rivers come forests : here again the State
may play an important part.

Wherever man takes up his abode, whether he be
in the pastoral stage, or in the first stage of agri-
cultural development, he destroys the woods and
forests : he does this primarily for the sake of
security, next on grounds of health, finally from
motives of greed, to extend the pastures of his flocks
or to fertilise with wood-ashes soil which he cannot
otherwise manure. This destruction goes on for
some time without causing more than a very slight
inconvenience, because, since almost the entire country
is covered with forests, their extent may be largely
reduced without any disturbance to the water-
system. But there comes a day when it is needful
to preserve, or even to restore, what clumps of trees
still remain, especially on sloping grounds or table-
lands. The main object of this is not to secure wood
for maritime purposes, nor yet to prevent wood from
becoming dear, nor to give the State, and therefore



208 THE MODERN STATE.

indirectly everybody, a share in the rise of wood :
these are all merely secondary considerations. The
object is primarily to maintain the water-system of
the country and the conditions of climate generally.

The intervention of the State is here justified as
the representative of permanent interests. But the
extent to which it is desirable or useful varies in
different countries and according to circumstances.
It is more essential in southern than in temperate
regions, and more necessary in democratic than in
aristocratic countries, or countries which possess
strong and numerous corporate bodies.

In almost all countries the peasant has no love for
forests. In the south he dislikes trees ; for he has
but little notion of the indirect utility of things.
Large and moderate-sized properties, those parks
which the heedless spirit of democracy so often at-
tacks, render, from this point of view, real service to
the community. They form reserves of trees, of
greensward, of moisture, and of birds.

In England, thanks to the climate, to the numerous
gigantic properties, and to the sporting tastes of the



THE MODERN STATE. 209

people, the State has no need to intervene in the
regulation of rivers and forests. England possesses
in some sort a scattered forest system diffused
throughout the whole of its territory. The same
is true of Belgium. But it is not so in France, Spain,
or Italy, least of all in Africa.

State-intervention in the domain of forestry is
based on entirely different principles from its inter-
vention in the regular course of agricultural pro-
duction. With this it has nothing or almost
nothing to. do. In forestry the part it plays is
justified by purely general considerations. It is
not with the object of increasing present production
or of introducing new methods, or of directing the
cultivator of the soil. The State would have no
qualifications for doing this. It is simply for the
sake of guarding permanent and universal interests
as against immediate and local interests. The
destruction of the Alpine forests, for instance, has
been pernicious to the whole of Provence.

In former times the action of the State in this

matter was by no means so necessary. The forests





THE MODERN STATE.



were much more numerous and much better kept :
partly by the agency of corporations, especially
religious corp orations, which have more regard for
permanence, and make a study of detachment
from the things of the present, and partly from
the prepossessions of the nobility who preserved
forests for the purposes of the chase.

Nowadays, a very large part of this duty devolves
upon the State, that is, upon the central State not
the commune, which is too often both ignorant and
short-sighted. This is the case not in France only,
but also in Canada, Australia, and Brazil.

If the State in France wishes to play its part as
the representative of national permanence and to
render genuine service to succeeding generations, it
must set to work to parcel out its 394,400 acres of


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Online LibraryPaul Leroy-BeaulieuThe modern state in relation to society and the individual; → online text (page 10 of 11)