are applicable to this cafe as to the lofs of merchandise thrown overboard to fave the veffel.

Govern

ment of

Befides the eminent domain, the fovereignty gives a right of an-§ 245. other nature over all public, common, and private property,-that, is, the empire, or the right of command in all places of the country public probelonging to the nation. The fupreme power extends to every perty. thing that paffes in the state, wherever it is transacted; and confequently the fovereign commands in all public places, on rivers, on highways, in deferts, &c. Every thing that happens there is fubject to his authority.

things pof

In virtue of the fame authority, the fovereign may make laws 246. to regulate the manner in which common property is to be The fuperior may used, as well the property of the nation at large, as that of make laws diftinct bodies or corporations. He cannot, indeed, take away with refpect their right from thofe who have a fhare in that property: but the to the ufe of care he ought to take of the public repofe, and of the common ad- feffed in vantage of the citizens, gives him doubtless a right to establish common. laws tending to this end, and confequently to regulate the manner in which things poffeffed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the ftate to prevent, and against which the prince is obliged to take just measures. Thus the fovereign may eftablish wife laws with refpect to hunting and fishing,-forbid them in the seasons of propagation,-prohibit the use of certain nets, and of every deftructive method, &c. But as it is only in the character of the common father, governor, and guardian of his people, that the fovereign has a right to make thofe laws, he ought never to lofe fight 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 abufes his power.

Alienation

A corporation, as well as every other proprietor, has a right $247. to alienate and mortgage its property: but the prefent members of the proought never to lofe fight of the deftination of that joint pro- perty of a perty, nor difpofe of it otherwife than for the advantage of corporation. the body, or in cafes of neceflity. If they alienate it with any other view, they abufe their power, and tranfgrefs against the duty they owe to their own corporation and their pofterity; and the prince, in quality of common father, has a right to oppose the measure. Befides, the intereft of the ftate requires that the property of corporations be not fquandered away;-which gives. the prince, intrufted with the care of watching over the public fafety, a new right to prevent the alienation of fuch property. It is then very proper to ordain in a ftate, that the alienation of the property of corporations fhould be invalid, without the confent of the fuperior powers. And indeed the civil law, in this refpect, gives to corporations the rights of minors. But this is itrictly no more than a civil law; and the opinion of thofe who make the law of nature alone a fufficient authority to take from a corporation the power of alienating their property without the

I

confent

§ 248.

Ufe of com

mon property.

$249.

How each member is

confent of the fovereign, 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 predeceffors, or from any other perfons, with a clause that disables them from alienating it but in this cafe they have only the perpetual use of it, not the entire and free property. If any of their property was folely given for the prefervation of the body, it is evident that the corporation has not a right to alienate it, except in a cafe of extreme neceffity:-and whatever property they may have received from the fovereign, is prefumed to be of that nature.

All the members of a corporation have an equal right to the ufe of its common property. But, refpecting the manner of enjoying it, the body of the corporation may make fuch regulations as they think proper, provided that thofe regulations be not inconfiftent with that equality which ought to be preserved in a communion of property. Thus a corporation may determine the ufe of a common foreft or pasture, either allowing it to all the members according to their wants, or allotting to each an equal fhare; but they have not a right to exclude any one of the number, or to make a diftinction to his disadvantage by affigning him a lefs fhare than that of the others.

All the members of a body having an equal right to its common property, each individual ought fo to manage in taking adto enjoy it. vantage of it, as not in any wife to injure the common use. According to this rule, an individual is not permitted to conftruct upon any river that is public property, any work capable of rendering it lefs convenient for the ufe of every one elfe, as erecting mills, making a trench to turn the water upon his own lands, &c. If he attempts it, he arrogates to himself a private right, derogatory to the common right of the public.

8.250. Right of anticipation

it.

The right of anticipation (jus præventionis) ought to be faithfully obferved in the ufe of common things which cannot be in the ufe of ufed by feveral perfons at the fame time. This name is given to the right which the firft-comer acquires, to the ufe of things of this nature. For inftance, 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 fecond, who has an equal right, cannot affert 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 fame

The fame rule ought to be obferved in regard to thofe comright in an- mon things which are confumed in ufing them. They belong other cafe. to the perfon who first takes poffeffion of them with the intention of applying them to his own ufe; and a fecond, who comes after, has no right to take them from him. I repair to a common foreft, and begin to fell a tree: you come in afterwards, and would wish to have the fame tree: you cannot take it from me; for this would be arrogating to yourself a right superior to mine, whereas

whereas our rights are equal. The rule in this cafe is the fame as that which the law of nature prescribes in the use of the productions of the earth, before the introduction of property.

The expenfes neceffary for the prefervation or reparation of $252. the things that belong to the public, or to a community, ought Prefervato be equally borne by all who have a fhare in them, whether tion and repairs of the neceffary fums be drawn from the common coffer, or that common each individual contributes his quota. The nation, the corpo- poffeffions. ration, and, in general, every collective body, may also establish extraordinary taxes, impofts, or annual contributions, to defray thofe expenfes, provided there be no oppreffive exaction in the cafe, and that the money fo levied be faithfully applied to the ufe for which it was raised. To this end alfo, as we have before obferved (103), toll-duties are lawfully established. Highways, bridges, and caufeways, are things of a public nature, from which all who pafs over them derive advantage: it is therefore juft that all thofe paffengers fhould contribute to their fupport. We fhall fee presently that the fovereign ought to provide for § 253 the prefervation of the public property. He is no lefs obliged, Duty and as the conductor of the whole nation, to watch over the prefer- fovereign right of the vation of the property of a corporation. It is the intereft of the ftate in this reat large that a corporation fhould not fall into indigence, by the spect. ill conduct of its members for the time being. And as every obligation generates the correfpondent right which is neceffary to difcharge it, the fovereign has here a right to oblige the corporation to conform to their duty. If therefore he perceives, for inftance, that they suffer their neceffary buildings to fall to ruin, or that they deftroy their forefts, he has a right to prefcribe what they ought to do, and to put his orders in force.

$254.

property.

We have but a few words to fay with refpect to private property: Private every proprietor has a right to make what ufe he pleases of his own fubftance, and to difpofe of it as he pleafes, when the rights of a third perfon are not involved in the bufinefs. The fovereign, however, as the father of his people, may and ought to fet bounds to a prodigal, and to prevent his running to ruin, especially if this prodigal be the father of a family. But he muft take care not to extend this right of infpection fo far as to lay a reftraint on his fubjects in the adminiftration of their affairs;which would be no lefs injurious to the true welfare of the state than to the juft liberty of the citizens. The particulars of this fubject belong to public law and politics.

po

It must alfo be obferved, that individuals are not fo perfectly The fove$ 255. free in the economy or government of their affairs, as not to be reign may fubject to the laws and regulations of police made by the fove- fubject it reign. For instance, if vineyards are multiplied to too great anons of puto regulati extent in a country which is in want of corn, the fovereign may lice. forbid the planting of the vine in fields proper for tillage; for here the public welfare and the fafety of the itate are concerned. When a reafon of fuch importance requires it, the fovereign or the magiftrate may oblige an individual to fell all the provifions

$ 256. Inherit

ances.

$257. The nation may alienate its

perty.

in his poffeffion above what are neceffary for the fubfiftence of his family, and may fix the price he fhall receive for them. The public authority may and ought to hinder monopolies, and fupprefs all practices tending to raise the price of provifions,-to which practices the Romans applied the expreflions annonam incendere, comprimere, vexare.

Every man may naturally chuse the person to whom he would leave his property after his death, as long as his right is not limited by fome indifpenfable obligation,-as, for inftance, that of providing for the fubfiftence of his children. The children also have naturally a right to inherit their father's property in equal portions. But this is no reason why particular laws may not be eftablished in a state, with regard to teftaments and inheritances,a respect being however paid to the effential laws of nature. Thus, by a rule established in many places with a view to fupport noble families, the eldeft fon 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 fource in the will of the perfon, who, being fole owner of those lands, has bequeathed them in that manner.

CHAP. XXI.

Of the Alienation of the public Property, or the Domain, and that of a Part of the State.

THE

HE nation being the fole miftrefs of the property in her poffeffion, may difpofe of it as the thinks proper, and may lawfully alienate or mortgage it. This right is a neceffary conpublic pro fequence of the full and abfolute domain: the exercise of it is restrained by the law of nature, only with respect to proprietors who have not the use of reafon neceffary for the management of their affairs; which is not the case with a nation. Those who think otherwife cannot allege any folid reason for their opinion; and it would follow from their principles, that no fafe contract can be entered into with any nation;-a conclufion, which attacks the foundation of all public treaties.

Duties of a

$258. But it is very juft to fay that the nation ought carefully to preferve her public property,-to make a proper use of it,-not this refpect. to difpofe of it without good reafons, nor to alienate or mortgage it but for a manifeft public advantage, or in cafe of a preffing neceffity. This is an evident confequence of the duties a nation owes to herself. The public property is extremely useful and even neceflary to the nation; and the cannot fquander it improperly, without injuring herfelf, and fhamefully neglecting the duty of felf-prefervation. I fpeak of the public property strictly fo called, or the domain of the ftate. Alienating its revenues is cutting the finews of government. As to the property common to all the citizens, the nation does an injury to those who derive advan

tage

tage from it, if she alienates it without neceflity, or without cogent reasons. She has a right to do this as proprietor of these poffeffions; but he ought not to difpofe of them except in a manner that is confiftent with the duties which the body owes to its members.

The fame duties lie on the prince, the director of the nation : § 259. he ought to watch over the prefervation and prudent manage. Duties of ment of the public property,-to ftop and prevent all wafte of the prince. it, and not fuffer it to be applied to improper ufes.

He cannot

The prince, or the fuperior of the fociety, whatever he is, being§ 260. naturally no more than the adminiftrator, and not the proprietor alienate the of the ftate, his authority, as fovereign or head of the nation, public prodoes not of itself give him a right to alienate or mortgage the perty. public property. The general rule then is, that the fuperior cannot difpofe of the public property, as to its fubftance,-the right to do this being referved to the proprietor alone, fince proprietorfhip is defined to be the right to difpofe of a thing fubftantially. If the fuperior exceeds his powers with refpect to this property, the alienation he makes of it will be invalid, and may at any time be revoked by his fucceffor, or by the nation. This is the law generally received in France; and it was upon this principle that the duke of Sully advised Henry IV. to resume the poffeffion of all the domains of the crown alienated by his predeceffors.

*

The nation

may give

The nation having the free difpofal of all the property belong-§ 261. ing to her (§ 257), may convey her right to the fovereign, and confequently confer upon him that of alienating and mortgaging him a right the public property. But this right not being neceflary to the to it. conductor of the ftate, to enable him to render the people happy by his government,-it is not to be prefumed, that the nation have given it to him; and if they have not made an exprefs law for that purpose, we are to conclude that the prince is not invested with it, unless he has received full, unlimited, and abfolute authority.

The rules we have just established relate to alienations of public property in favour of individuals. The queftion affumes a different afpect when it relates to alienations made by one nation to another +: it requires other principles to decide it in the different cafes that may present themselves. Let us endeavour to give a general theory of them.

§ 262.

Rules on this fubject with re

fpect to treaties be

tween na

tion and

1. It is neceffary that nations fhould be able to treat and con- nation. tract validly with each other, fince they would otherwise find it impoffible to bring their affairs to an iffue, or to obtain the bleflings of peace with any degree of certainty. Whence it follows, that when a nation has ceded any part of its property to another, the ceffion ought to be deemed valid and irrevocable, as

See his Memoirs.

Quod domania regnorum inalienabilia & femper revocabilia dicuntur, id refpectu privatorum intelligitur; nam contra alias gentes divino privilegio opus foret. Leibnitz, Præfat. ad Cod. Jur. Gent. Diplomat.