The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the power of the sovereigns over the bona Reipublicæ, or the goods contained in the commonwealth.
I. THE right of the sovereign over the goods, contained in the commonwealth, relates either to the goods of the subject, or to those, which belong to the commonwealth itself, as such.
II. The right of the prince over the goods of the subject may be established two different ways; for either it may be founded on the very nature of the sovereignty, or on the particular manner in which it was acquired.
III. If we suppose, that a chief ruler possesses, with a full right of property, all the goods contained in the commonwealth, and that he has collected as it were his own subjects, who originally hold their estates of him, then it is certain, that the sovereign has as absolute a power over those estates, as every master of a family has over his own patrimony; and that the subjects cannot enjoy or dispose of those goods or estates, but so far as the sovereign permits. In these circumstances, while the sovereign has remitted nothing of his right by irrevocable grants, his subjects possess their estates in a precarious manner, revocable at pleasure, whenever the prince thinks fit; they can only supply themselves with sustenance and other necessaries from them. In this case the sovereignty is accompanied with a right of absolute property.
IV. But, 1. this manner of establishing the power of the sovereign over the goods, of the subjects cannot be of great use; and if it has sometimes taken place, it has only been among the oriental nations, who easily submit to a despotic government.
2. Experience teaches us, that this absolute dominion of the sovereign over the goods of the subject does not tend to the advantage of the state. A modem traveller observes, that the countries, where this propriety of the prince prevails, however beautiful and fertile of themselves, become daily more desolate, poor, and barbarous; or that at least they are not so flourishing, as. most of the kingdoms of Europe, where the subjects possess their estates as their own property, exclusive of the prince.
3 The supreme power does not of itself require, that the prince should have this absolute dominion over the estates of his subjects. The property of individuals is prior to the formation of states, and there is no reason, which can induce us to suppose, that those individuals entirely transferred to the sovereign the right they had over their own estates; on the contrary, it is to secure a quiet and easy possession of their properties, that they have instituted government and sovereignty.
4. Besides, if we should suppose an absolute sovereignty acquired by arms, yet this does not of itself give an arbitrary dominion over the property of the subject. The same is true even of a patrimonial sovereignty, which confers a right of alienating the crown; for this right of the sovereign does not hinder the subject from enjoying his respective properties.
V. Let us therefore conclude, that in general the right of the prince over the goods of the subjects is not an absolute dominion over their properties, but a right founded on the nature and end of sovereignty, which invests him with the power of disposing of those estates in different manners, for the benefit of individuals, as well as of the state, without depriving the subjects of their right to their properties, except in cases where it is absolutely necessary for the public good.
VI. This being premised, the prince, as sovereign, has a right over the estates of his subjects principally in three different manners.
The first consists in regulating, by wise laws, the use, which every one ought to make of his goods and estate, for the advantage of the state and that of individuals.
The second, in raising subsidies and taxes.
The third, in using the rights of sovereign or transcendental property.1
VII. To the first head we must reduce all sumptuary laws, by which bounds are set to unnecessary expenses, which ruin families and consequently impoverish the state. Nothing is more conducive to the happiness of a nation, or more worthy of the care of the sovereign, than to oblige the subjects to economy, frugality, and labor.
When luxury has once prevailed in a nation, the evil becomes almost incurable. As too great authority spoils kings, so luxury poisons a whole people. The most superfluous things are looked upon as necessary, and new necessities are daily invented. Thus families are ruined, and individuals disabled from contributing to the expenses necessary for the public good. An individual, for instance, who spends only three fifths of his income, and pays one fifth for the public service, will not hurt himself, since he lays up a fifth to increase his stock. But if he spend all his income, he either cannot pay the taxes, or he must break in upon his capital.
Another inconvenience is, that not only the estates of individuals are squandered away by luxury, but, what Is still worse, they are generally carried abroad into foreign countries, in pursuit of those things, which flatter luxury and vanity.
The impoverishing of individuals produces another evil for the state, by hindering marriages. On the contrary, people are more inclined to marriage, when a moderate expense is sufficient for the support of a family.
This the emperor Augustus was very sensible of; for when he wanted to reform the manners of the Romans, among the various edicts, which he either made or renewed, he reestablished both the sumptuary law, and that, which obliged people to marry.
When luxury is once introduced, it soon becomes a general evil, and the contagion insensibly spreads from the first men of the state to the very dregs of the people. The king’s relations want to imitate his magnificence; the nobility, that of his relations; the gentry or middle sort of people, endeavour to equal the nobility; and the poor would fain pass for gentry. Thus every one living beyond his income, the people are ruined, and all orders and distinctions confounded.
History informs us, that in all ages luxury has been one of the causes, which has more or less contributed to the ruin and decay even of the most powerful states, because it sensibly enervates courage, and destroys virtue. Suetonius observes, that Julius Cæsar invaded the liberties of his country only in consequence of not knowing how to pay the debts, he had contracted by his excessive prodigality, nor how to support his expensive way of living. Many sided with him, because they had not wherewith to supply their luxury, to which they had been accustomed, and they were in hopes of getting by the civil wars enough to supply their former extravagance.2
We must observe in fine, that, to render the sumptuary laws more effectual, princes and magistrates ought, by the example of their own moderation, to put those out of countenance, who love extravagance, and to encourage the prudent, who would easily submit to follow the pattern of a good economy and honest frugality.
VIII. To this right of the sovereign of directing the subjects in the use of their estates and goods, we must also reduce the laws against gaming and prodigality, those, which set bounds to grants, legacies, and testaments; and in fine those against idle and lazy people, and against persons, who suffer their estates to run to ruin, purely by carelessness and neglect.
IX. Above all, it is of great importance to use every endeavor to banish idleness, that fruitful source of disorders. The want of a useful and honest occupation is the foundation of an infinite number of mischiefs. The human mind cannot remain in a state of inaction, and, if it be not employed on something good, it will inevitably apply itself to something bad, as the experience of all ages demonstrates. It were therefore to be wished, that there were laws against idleness, to prevent its pernicious effects; and that no person was permitted to live without some honest occupation either of the mind or body. Especially young people, who aspire after political, ecclesiastical, or military employments, ought not to be permitted to pass, in shameful idleness, the time of their life most proper for the study of morality, politics, and religion. It is obvious that a wise prince may, from these reflections, draw very important instructions for government.
X. The second manner, in which the prince can dispose of the goods or estates of his subjects, is, by demanding taxes or subsidies of them. That the sovereign has this right will evidently appear, if we consider, that taxes are no more than a contribution, which Individuals pay to the state for the preservation and defence of their lives and properties, a contribution absolutely necessary both for the ordinary and extraordinary expenses of government, which the sovereign neither can or ought to furnish out of his own fund. He must therefore, for that end and purpose, have a right to take away part of the goods of the subject by way of tax.
XI. Tacitus relates a memorable story on this subject. “Nero,” he says, “once thought to abolish all taxes, and to make this magnificent grant to the Roman people; but the senate moderated his ardour; and, after having commended the emperor for his generous design, they told him, that the empire would inevitably fall, if its foundations were sapped; that most of the taxes had been established by the consuls and tribunes during the very height of liberty in the times of the republic, and that they were the only means of supplying the immense expenses necessary for the support of so great an empire.”
XII. Nothing is then generally more unjust and unreasonable, than the complaints of the populace, who frequently ascribe their misery to taxes, without reflecting, that these are, on the contrary, the foundation of the tranquillity and safety of the state, and that they cannot refuse to pay them without prejudicing their own interests.
XIII. However the end and prudence of civil government require not only, that the people should not be overcharged in this respect, but also that the taxes should be raised in as gentle and imperceptible a manner as possible.
XIV. And 1. the subjects must be equally charged, that they may have no just reason of complaint. A burden, equally supported by all, is lighter to every individual, but, if a considerable number release or excuse themselves, it becomes much more heavy and insupportable to the rest. As every subject equally enjoys the protection of the government, and the safety, which it procures; it is just that they should all contribute to its support in a proper equality.
XV. 2. It is to be observed however, that this equality does not consist in paying equal sums of money, but in equally bearing the burden, imposed for the good of the state; that is, there must be a just proportion between the burden of the tax and the benefit of peace; for though all equally enjoy peace, yet the advantages, which all reap from it, are not equal.
XVI. 3. Every man ought therefore to be taxed in proportion to his income, both in ordinary and extraordinary exigencies.
XVII. 4. Experience shows, that the best method of raising taxes is to lay them on things, daily consumed in life.
XVIII. 5. As to merchandizes imported, it is to be observed, that, if they are not necessary, but only subservient to luxury, very great duties may justly be laid on them.
XIX. 6. When foreign merchandizes consist of such things, as may grow, or be manufactured at home, by the industry and application of our own people, the imposts ought to be raised higher upon those articles.
XX. 7. With regard to the exportation of commodities of our own growth, if it be the interest of the state, that they should not go out of the country, it may be right to raise the customs upon them; but on the contrary, if it is for the public advantage, that they should be sent to foreign markets, then the duty of exportation ought to be diminished, or absolutely taken away. In some countries, by a wise piece of policy, rewards are given to the subjects, who export such commodities, as are in too great plenty, and far surpassing the wants of the inhabitants.
XXI. 8. In a word, in the application of all these maxims, the sovereign must attend to the good of trade, and take all proper measures to make it flourish.
XXII. It is unnecessary to observe, that the right of the sovereign, with respect to taxes, being founded on the wants of the state, he ought never to raise them, but in proportion to those wants; neither should he employ them, but with that view, nor apply them to his own private uses.
XXIII. He ought also to attend to Ac conduct of the officers, who collect them, so as to hinder their importunity and oppression. Thus Tacitus commends a very wise edict of the emperor Nero, “who ordered, that the magistrates of Rome and of the provinces should receive complaints against the publicans at all times, and regulate them on the spot.”
XXIV. The sovereign or transcendental property,3 which, as we have said, constitutes the third part of the sovereign’s power over the estates of his subjects, consists in the right of making use of every thing, the subject possesses, in order to answer the necessities of the state.
XXV. Thus for example, if a town is to be fortified, he may take the gardens, lands, or houses of private subjects, situated in the place, where the ramparts or ditches are to be raised. In sieges he may beat down houses and trees belonging to private persons to the end, that the enemy may not be sheltered by them, or the garrison incommoded.
XXVI. There are great disputes among politicians, concerning this transcendental property. Some absolutely will not admit of it; but the dispute turns more upon the word, than the thing. It is certain, that the very nature of sovereignty authorises a prince, in case of necessity, to make use of the goods and fortunes of his subjects; since in conferring the supreme authority upon him, they have at the same time given him the power of doing and exacting every thing necessary for the preservation and advantage of the state. Whether this be called transcendental property, or by some other name, is altogether indifferent, provided we are agreed about the right itself.
XXVII. To say something more particular concerning this transcendental property, we must observe it to be a maxim of natural equity, that, when contributions are to be raised for the exigencies of the state, and for the preservation of some particular object by persons, who enjoy it in common, every man ought to pay his quota, and should not be forced to bear more of the burden, than another.
XXVIII. But since it may happen, that the pressing wants of the state, and particular circumstances, will not permit this rule to be literally followed, there is a necessity, that the sovereign should have a right to deviate from it, and to seize on the property of a private subject, the use of which, in the present circumstances, is become necessary to the public. Hence this right takes place only in case of a necessity of state, which ought not to have too great an extent, but should be tempered as much as possible with the rules of equity.
XXIX. It is therefore just in that case, that the proprietors should be indemnified, as near as possible, either by their fellow subjects, or by the exchequer. But if the subjects have voluntarily exposed themselves, by building houses in a place, where they are to be pulled down in time of war, then the state is not in rigour obliged to indemnify them, and they may be reasonably thought to have consented to this loss. This is sufficient for what relates to the right of the sovereign over the estates of the subject.
XXX. But, besides these rights, the prince has also originally a power of disposing of certain places, called public goods, because they belong to the state as such. But, as these public goods are not all of the same kind, the right of the sovereign in this respect also varies,
XXXI. There are goods, intended for the support of the king and the royal family, and others to defray the expenses of the government. The former are called the crown lands, or the patrimony of the prince; and the latter the public treasure, or the revenue of the state.
XXXII. With regard to the former, the sovereign has the full and entire profits, and may dispose of the revenues, arising from them, as he absolutely pleases. So that what he lays up out of his income makes an accession to his own private patrimony, unless the laws of the land have determined otherwise. With regard to other public goods, he has only the simple administration of them, in which he ought to propose only the advantage of the state, and to express as much care and fidelity, as a guardian with respect to the estate of his pupil.
XXXIII. By these principles we may judge to whom the acquisitions belong, which a prince has made during his reign; for if these acquisitions arise from the goods, intended to defray the public expense, they ought certainly to accrue to the public, and not to the prince’s private patrimony. But if a king has undertaken and supported a war at his own expense, and without engaging or charging the state in the least, he may lawfully appropriate the acquisitions, he has made in such an expedition.
XXXIV. From the principles here established it follows also, that the sovereign cannot, without the consent of the people or their representatives, alienate the least part either of the public patrimony, or of the crown lands, of which he has only the use. But we must distinguish between the goods themselves and the profits or produce of them. The king may dispose of the revenues or profits, as he thinks proper, though he cannot alienate the principle.
XXXV. A prince indeed, who has a right of laying taxes if he thinks meet and just, may, when the necessities of the commonwealth require it, mortgage a part of the public patrimony. For it is the same thing to the people, whether they give money to prevent the mortgage, or it be levied upon them afterwards in order to redeem it.
XXXVI. This however is to be understood upon supposition, that things are not otherwise regulated by the fundamental laws of the state.
XXXVII. In respect to the alienation of the kingdom, or some part of it, from the principles hitherto established, we may easily form a judgment of the matter.
And 1. if there be any such thing, as a patrimonial kingdom, it is evident that the sovereign may alienate the whole, and still more 80, that he may transfer a part of it.4
XXXVIII. 2. But, if the kingdom be not possessed as a patrimony, the king cannot by his own authority, transfer or alienate stay part of it; for then the consent of the people is necessary. Sovereignty of itself does not imply the right of alienation, and as the people cannot take the crown from the prince against his wilt, neither has the king a power of substituting another sovereign in his place without their consent.
XXXIX. 3. But if only a part of the kingdom is to be alienated, besides the approbation of the king and that of the people, it is necessary, that the inhabitants of the part, which is to be alienated, should also consent; and the latter seems to be the most necessary. It is to no purpose, that the other parts of the kingdom agree to the alienation of this province, if the inhabitants themselves oppose it. The right of the plurality of suffrages does not extend so far, as to cut off from the body of the state those, who have not once violated their engagements, nor the laws of society.
XL. And indeed it is evident, that the persons, who first erected the commonwealth, and those, who voluntarily came into it afterwards, bound themselves, by mutual compact, to form a permanent body or society, under one and the same government, so long at least, as they inclined to remain in the territories of the same state; and it is with a view to the advantages, which accrued to them in common from this reciprocal union, that they first erected the state. This is the foundation of their compacts in regard to government. Therefore they cannot, against their will, be deprived of the right, they have acquired, of being a part of a certain body politic, except by way of punishment. Besides, in this case, there is an obligation, corresponding to the above right. The state, by virtue of the same compact, has acquired a right over each of its members, so that no subject can put himself under a foreign government, nor disclaim the authority of his natural sovereign.
XLI. 4. It is however to be observed, that there are two general exceptions to the principles here established, both of them founded on the right and privileges, arising from necessity. The first is, that, though the body of the state has not the right of alienating any of its parts, so as to oblige that part, against its will, to submit to a new master, the state however may be justified in abandoning one of its parts, when there is an evident danger of perishing if they continue united.
XLII. It is true that even under those circumstances, the sovereign cannot directly oblige one of his towns or provinces to submit to another government. He only has a power to withdraw his forces, or abandon the inhabitants; but they retain the right of defending themselves if they can; so that, if they find they have strength sufficient to resist the enemy, there is no reason why they should not; and, if they succeed, they may erect themselves into a distinct commonwealth. Hence the conqueror becomes the lawful sovereign of that particular country only by the consent of the inhabitants, or by their swearing allegiance to him.
XLIII. It may be said, that, properly speaking, the state or the sovereign do not alienate, in this case, such a part, but only renounce a society, whose engagements are at an end by virtue of a tacit exception, arising from necessity. After all it would be in vain for the body to persist in defending such a part, since we suppose it unable to preserve or defend itself. It is therefore a mere misfortune, which must be suffered by the abandoned part.
XLIV. 5. But, if this be the right of the body with respect to the part, the part has also, in like circumstances, the same right with regard to the body. Thus we cannot condemn a town, which, after having made the best resistance it could, chooses rather to surrender to the enemy, than be pillaged and exposed to fire and sword.
XLV. In a word, every one has a natural right to take care of his own preservation by all possible means; and it is principally for the better attainment of this end, that men have entered into civil societies. If therefore the state can no longer defend and protect the subjects, they are disengaged from the ties they were under, and resume their original right of taking care of themselves independently of the state, in the manner they think most proper. Thus things are equal on both sides; and the sentiment of Grotius, who refuses the body of the state, with respect to the part, the same right, which he grants the part, with respect to the body, cannot be maintained.
XLVI. We shall conclude this chapter with two remarks. The first is, that the maxim, which some politicians inculcate so strongly, namely, that the goods, appropriated to the crown, are absolutely unalienable, is not true, except on the terms, and agreebly to the principles here established. What the same politicians add, that an alienation, succeeded by a peaceable possession for a long course of years, does not hinder a future right to what belonged to the crown, and the resumption of it by main force, on the first occasion, is altogether unreasonable.
The second observation is, that, since it is not lawful for a king independently of the will of the people or of their representatives, to alienate the whole or any part of his kingdom, it is not right for him to render it feudatory to another prince; for this is evidently a kind of alienation.
END OF THE THIRD PART.
1. Dominium eminens.
2. See Sall. ad Cæsar, de Repub. ordinand.
3. Dominium eminens.
4. See Grotius, lib. ii. cap. 6.