The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of Public, Common, and Private Property
§ 234. What the Romans called res communes.
LET us now see what is the nature of the different things contained in the country possessed by a nation, and endeavor to establish the general principles of the law by which they are regulated. This subject is treated by civilians under the title de rerum divisione. There are things which in their own nature cannot be possessed: there are others, of which nobody claims the property, and which remain common, as in their primitive state, when a nation takes possession of a country: the Roman lawyers called those things res communes, things common: such were, with them, the air, the running water, the sea, the fish, and wild beasts.
§ 235. Aggregate wealth of a nation, and its divisions.
Every thing susceptible of property is considered as belonging to the nation that possesses the country, and as forming the aggregate mass of its wealth. But the nation does not possess all those things in the same manner. Those not divided between particular communities, or among the individuals of a nation, are called public property. Some are reserved for the necessities of the state, and form the demesne of the crown, or of the republic: others remain common to all the citizens, who take advantage of them, each according to his necessities, or according to the laws which regulate their use; and these are called common property. There are others that belong to somebody or community, termed join property, res universitatis; and these are, with respect to this body in particular, what the public property is with respect to the whole nation. As the nation may be considered as a great community, we may indifferently give the name of common property to those things that belong to it in common, in such a manner that all the citizens may make use of them, and to those that are possessed in the same manner by a body or community; the same rules hold good with respect to both. Finally, the property possessed by individuals is termed private property, res singulorem.
§ 236. Two ways of acquiring public property.
When a nation in a body takes possession of a country, every thing that is not divided among its members remains common to the whole nation, and is called public property. There is a second way whereby a nation, and, in general, every community, may acquire possessions, viz. by the will of whosoever thinks proper to convey to it, under any title whatsoever, the domain or property of what he possesses.
§ 237. The revenues of the public property are naturally at the sovereign’s disposal.
As soon as the nation commits the reins of government to the hands of a prince, it is considered as committing to him, at the same time, the means of governing. Since, therefore, the income of the public property, of the domain of the state, is destined for the expenses of government, it is naturally at the prince’s disposal, and ought always to be considered in this light, unless the nation has, in express terms, excepted it in conferring the supreme authority, and has provided in some other manner for its disposal, and for the necessary expenses of the state, and the support of the prince’s person and household. Whenever, therefore, the prince is purely and simply invested with the sovereign authority, it includes a full discretional power to dispose of the public revenues. The duty of the sovereign, indeed, obliges him to apply those revenues only to the necessities of the state; but he alone is to determine the proper application of them, and is not accountable for them to any person.
§ 238. The nation may grant him the use and property of its common possessions.
The nation may invest the superior with the sole use of its common possessions, and thus add them to the domain of the state. It may even cede the property of them to him. But this cession of the use of property requires an express act of the proprietor, which is the nation. It is difficult to found it on a tacit consent, because fear too often hinders the subjects from protesting against the unjust encroachments of the sovereign.
§ 239. Or allow him the domain, and reserve to itself the use of them.
The people may even allow the superior the domain of the things they possess in common, and reserve to themselves the use of them in the whole or in the part. Thus, the domain of a river, for instance, may be ceded to the prince, while the people reserve to themselves the use of it for navigation, fishing, the watering of cattle, etc., in that river. In a word, the people may cede to the superior whatever right they please over the common possessions of the nation; but all those particular rights do not naturally, and of themselves, flow from the sovereignty.
§ 240. Taxes.
If the income of the public property, or of the domain, is not sufficient for the public wants, the state supplies the deficiency by taxes. These ought to be regulated in such a manner, that all the citizens may pay their quota in proportion to their abilities, and the advantages they reap from the society. All the members of civil society being equally obliged to contribute, according to their abilities, to its advantage and safety, they cannot refuse to furnish the subsidies necessary to its preservation, when they are demanded by lawful authority.
§ 241. The nation may reserve to itself the right of imposing them.
Many nations have been unwilling to commit to the prince a trust of so delicate a nature, or to grant him a power that he may so easily abuse. In establishing a domain for the support of the sovereign and the ordinary expenses of the state, they have reserved to themselves the right of providing, by themselves or their representatives, for extraordinary wants, in imposing taxes payable by all the inhabitants. In England, the king lays the necessities of the state before the parliament; that body, composed of the representatives of the nation, deliberates, and, with the concurrence of the king, determines the sum to be raised, and the manner of raising it.1 And of the use the king makes of the money thus raised, that same body obliges him to render it an account.
§ 242. Of the sovereign who has this power.
In other states, where the sovereign possesses the full and absolute authority, it is he alone that imposes taxes, regulates the manner of raising them, and makes use of them as he thinks proper, without giving an account to anybody. The French king at present enjoys this authority,2 with the simple formality of causing his edicts to be registered by the parliament; and that body has a right to make humble remonstrances, if it sees any inconveniences attending the imposition ordered by the prince: a wise establishment for causing truth, and the cries of the people, to reach the ears of the sovereign, and for selling some bounds to his extravagance, or to the avidity of the ministers and persons concerned in the revenue.3
§ 243. Duties of the prince with respect to taxes.
The prince who is invested with the power of taxing his people ought by no means to consider the money thus raised as his own property. He ought never to lose sight of the end for which this power was granted him: the nation was willing to enable him to provide, as it should seem best to his wisdom, for the necessities of the state. If he diverts this money to other uses, if he consumes it in idle luxury, to gratify his pleasures, to satiate the avarice of his mistresses and favorites, we hesitate not to declare to those sovereigns who are still capable of listening to the voice of truth, that such a one is not less guilty, nay, that he is a thousand times more so, than a private person who makes use of his neighbors’ property to gratify his irregular passions. Injustice, though screened from punishment, is not the less shameful.
§ 244. Eminent domain annexed to the sovereignty.
Every thing in the political society ought to tend to the good of the community; and, since even the persons of the citizens are subject to this rule, their property cannot be excepted. The state could not subsist, or constantly administer the public affairs in the most advantageous manner, if it had not a power to dispose occasionally of all kinds of property subject to its authority. It is even to be presumed, that, when the nation takes possession of a country, the property of certain things is given up to the individuals only with this reserve. The right which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the state, is called the eminent domain. It is evident that this right is, in certain cases, necessary to him who governs, and consequently is a part of the empire, or sovereign power, and ought to be placed in the number of the prerogatives of majesty (§ 45). When, therefore, the people confer the empire on any one, they at the same time invest him with the eminent domain, unless it be expressly reserved. Every prince, who is truly sovereign, is invested with this right when the nation has not excepted it, however limited his authority may be in other respects.
If the sovereign disposes of the public property in virtue of his eminent domain, the alienation is valid, as having been made with sufficient powers.
When, in case of necessity, he disposes in like manner of the possessions of a community, or an individual, the alienation will, for the same reason, be valid. But justice requires that this community, or this individual, be indemnified at the public charge: and if the treasury is not able to bear the expense, all the citizens are obliged to contribute to it; for, the burdens of the state ought to be supported equally, or in a just proportion. The same rules are applicable to this case as to the loss of merchandise thrown overboard to save the vessel.
§ 245. Government of public property.
Besides the eminent domain, the sovereignty gives a right of another nature over all public, common, and private property, that is, the empire, or the right of command in all places of the country belonging to the nation. The supreme power extends to everything that passes in the state, wherever it is transacted; and, consequently, the sovereign commands in all public places, on rivers, on highways, in deserts, etc. Every thing that happens there is subject to his authority.
§ 246. The superior may make laws with respect to the use of things possessed in common.
In virtue of the same authority, the sovereign may make laws to regulate the manner in which common property is to be used, as well the property of the nation at large, as that of distinct bodies or corporations. He cannot, indeed, take away their right from those who have a share in that property: but the care he ought to take of the public repose, and of the common advantage of the citizens, gives him doubtless a right to establish laws tending to this end, and, consequently, to regulate the manner in which things possessed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the state to prevent, and against which the prince is obliged to take just measures. Thus, the sovereign may establish wise laws with respect to hunting and fishing, forbid them in the seasons of propagation, prohibit the use of certain nets, and of every destructive method, etc. But, as it is only in the character of the common father, governor, and guardian of his people, that the sovereign has a right to make those laws, he ought never to lose sight of the ends which he is called upon to accomplish by enacting them; and if, upon those subjects, he makes any regulations with any other view than that of the public welfare, he abuses his power.
§ 247. Alienation of the property of a corporation.
A corporation, as well as every other proprietor, has a right to alienate and mortgage its property: but the present members ought never to lose sight of the destination of that joint property, nor dispose of it otherwise than for the advantage of the body, or in cases of necessity. If they alienate it with any other view, they abuse their power, and transgress against the duty they own to their own corporation and their posterity; and the prince, in quality of common father, has a right to oppose the measure. Besides, the interest of the state requires that the property of corporations be not squandered away; which gives the prince intrusted with the care of watching over the public safety, a new right to prevent the alienation of such property. It is then very proper to ordain in a state, that the alienation of the property of corporations should be invalid, without the consent of the superior powers. And indeed the civil law, in this respect, gives to corporations the rights of minors. But this is strictly no more than a civil law; and the opinion of those who make the law of nature alone a sufficient authority to take from a corporation the power of alienating their property without the consent of the sovereign, appears to me to be void of foundation, and contrary to the notion of property. A corporation, it is true, may have received property, either from their predecessors or from any other persons, with a clause that disables them from alienating it: but in this case they have only the perpetual use of it, not the entire and free property. If any of their property was solely given for the preservation of the body, it is evident that the corporation has not a right to alienate it, except in a case of extreme necessity: and whatever property they may have received from the sovereign is presumed to be of that nature.
§ 248. Use of common property.
All the members of a corporation have an equal right to the use of its common property. But, respecting the manner of enjoying it, the body of the corporation may make such regulations as they think proper, provided that those regulations be not inconsistent with that equality which ought to be preserved in a communion of property. Thus, a corporation may determine the use of a common forest or pasture, either allowing it to all the members according to their wants or allotting to each an equal share; but they have not a right to exclude any one of the number, or to make a distinction to his disadvantage, by assigning him a less share than that of the others.
§ 249. How each member is to enjoy it.
All the members of a body having an equal right to its common property, each individual ought so to manage in taking advantage of it, as not in any wise to injure the common use. According to this rule, an individual is not permitted to construct upon any river that is public property, any work capable of rendering it less convenient for the use of every one else, as, erecting mills, making a trench to turn the water upon his own lands, etc. If he attempts if, he arrogates to himself a private right, derogatory to the common right of the public.
§ 250. Right of anticipation in the use of it.
The right of anticipation (jus praeventionis) ought to be faithfully observed in the use of common things which cannot be used by several persons at the same time. This name is given to the right which the first comer acquires to the use of things of this nature. For instance, if I am actually drawing water from a common or public well, another who comes after me cannot drive me away to draw out of it himself: and he ought to wait till I have done. For, I make use of my right in drawing that water, and nobody can disturb me; a second, who has an equal right, cannot assert it to the prejudice of mine; to stop me by his arrival would be arrogating to himself a better right than he allows me, and thereby violating the law of equality.
§ 251. The same right in another case.
The same rule ought to be observed in regard to those common things which are consumed in using them. They belong to the person who first takes possession of them with the intention of applying them to his own use: and a second, who comes after, has no right to take them from him, I repair to a common forest, and begin to fell a tree: you come in afterwards, and would wish to have the same tree: you cannot take it from me: for this would be arrogating to yourself a right superior to mine, whereas our rights are equal. The rule in this case is the same as that which the law of nature prescribes in the use of the productions of the earth before the introduction of property.
§ 252. Preservation and repairs of common possessions.
The expenses necessary for the preservation or reparation of the things that belong to the public, or to a community, ought to be equally borne by all who have a share in them, whether the necessary sums be drawn from the common coffer, or that each individual contributes his quota. The nation, the corporation, and, in general, every collective body, may also establish extraordinary taxes, imposts, or annual contributions, to defray these expenses, provided there be no oppressive exaction in the case, and that the money so levied be faithfully applied to the use for which it was raised. To this end, also, as we have before observed (§ 103), toll-duties are lawfully established. Highways, bridges, and causeways are things of a public nature, from which all who pass over them derive advantage: it is therefore just that all those passengers should contribute to their support.
§ 253. Duty and right of the sovereign in this respect.
We shall see presently that the sovereign ought to provide for the preservation of the public property. He is no less obliged, as the conductor of the whole nation, to watch over the preservation of the property of a corporation. It is the interest of the state at large that a corporation should not fall into indigence by the ill conduct of its members for the time being. And, as every obligation generates the correspondent right which is necessary to discharge it, the sovereign has here a right to oblige the corporation to conform to their duty. If, therefore, he perceives, for instance, that they suffer their necessary buildings to fall to ruin, or that they destroy their forests, he has a right to prescribe what they ought to do, and to put his orders in force.
§ 254. Private property.
We have but a few words to say with respect to private property: every proprietor has a right to make what use he pleases of his own substance, and to dispose of it as he pleases, when the rights of a third person are not involved in the business. The sovereign, however, as the father of his people, may and ought to set bounds to a prodigal, and to prevent his running to ruin, especially if this prodigal be the father of a family.4 But he must take care not to extend this right of inspection so far as to lay a restraint on his subjects in the administration of their affairs which would be no less injurious to the true welfare of the state than to the just liberty of the citizens. The particulars of this subject belong to public law and politics.
§ 255. The sovereign may subject it to regulations of police.
It must also be observed, that individuals are not so perfectly free in the economy or government of their affairs as not to be subject to the laws and regulations of police made by the sovereign. For instance, if vineyards are multiplied to too great an extent in a country which is in want of corn, the sovereign may forbid the planting of the vine in fields proper for tillage; for here the public welfare and the safety of the state are concerned. When a reason of such importance requires it, the sovereign or the magistrate may oblige an individual to sell all the provisions in his possession above what are necessary for the subsistence of his family, and may fix the price he shall receive for them.5 The public authority may and ought to hinder monopolies, and suppress all practices tending to raise the price of provisions to which practices the Romans applied the expressions annonam incendere, comprimere, vexare.
§ 256. Inheritances.
Every man may naturally choose the person to whom he would leave his property after his death, as long as his right is not limited by some indispensable obligation as, for instance, that of providing for the subsistence of his children.6 The children also have naturally a right to inherit their father’s property in equal proportions. But this is no reason why particular laws may not be established in a state, with regard to testaments and inheritances a respect being, however, paid to the essential laws of nature. Thus, by a rule established in many places with a view to support noble families, the eldest son, is of right, his father’s principal heir. Lands perpetually appropriated to the eldest male heir of a family, belong to him by virtue of another right, which has its source in the will of the person who, being sole owner of those lands, has bequeathed them in that manner.
1. All money bills, imposing a tax, must originate in and be passed by the House of Commons, and afterwards submitted to the lords and the king for their sanction, before they can become law.
2. This was, of course, when Vattel wrote, and before the Revolution.
3. Too great attention cannot be used in watching the imposition of taxes, which, once introduced, not only continue, but are so easily multiplied. Alphonso VIII. king of Castile, besieging a city belonging to the Moors (Concham urbem in Celtiberis), and being in want of money, applied to the states of his kingdom for permission to impose, on every free inhabitant, a capitation tax of five golden maravedis. But Peter, Count de Lara, vigorously opposed the measure, “contractaque nobilium manu, ex conventu discedit, armis tueri paratus partam armis et virtute a majoribus immunitatem, neque passururn affirmans nobilitatis opprimendæ atque novis vectigalibus vexandæ ab eo aditu initium fieri; Mauros opprimere non esse tanti, ut graviori servitute rempublicam implicari sinant. Rex, periculo peromotus, ab ea cogitatione desistit. Petrum nobiles, consilio communicato, quotannis convivio excipere decreverunt, ipsum et posteros, navatæ operæ mercedem, rei gestæ bonæ posteritati monumentum, documentumque ne quavis occasione jus libertatis imminui patiantur.” MARIANA.
4. In Great Britain no such right of interference exists, and a person may lay waste or even burn his own property, unless he thereby endangers a third person, or defrauds a person who has insured against fire. Co. Lit. 254; Saville’s case, For. 6, 3 Thomas Co. Lit. 243, n. (m). C.
5. In Great Britain no such interference now takes place, though formerly it was exercised. See 1 Bla. Com. 287, C.
6. In England a parent has an absolute right to devise or bequeath all his property to a stranger in exclusion of his children.