- Category: Court of the Ekklesia
OF THE ALIENATION OF THE PUBLIC PROPERTY, OR THE DOMAIN, AND THAT OF A PART OF THE STATE
§ 257. The nation may alienate its public property.
The nation, being the sole mistress of the property in her possession, may dispose of it as she thinks proper, and may lawfully alienate or mortgage it. This right is a necessary consequence of the full and absolute domain: the exercise of it is restrained by the law of nature only with respect to proprietors who have not the use of reason necessary for the management of their affairs; which is not the case with a nation. Those who think otherwise, cannot allege any solid reason for their opinion; and it would follow from their principles that no safe contract can be entered into with any nation; — a conclusion which attacks the foundation of all public treaties.
§ 258. Duties of a nation in this respect.
But it is very just to say, that the nation ought carefully to preserve her public property — make a proper use of it — not to dispose of it without good reasons, nor to alienate or mortgage it but for a manifest public advantage, or in case of a pressing necessity. This is an evident consequence of the duties a nation owes to herself. The public property is extremely useful and even necessary to the nation; and she cannot squander it improperly without injuring herself, and shamefully neglecting the duty of self-preservation, I speak of the public property, strictly so called, or the domain of the state. Alienating its revenues is cutting the sinews of government. As to the property common to all the citizens, the nation does an injury to those who derive advantage from it, if she alienates it without necessity, or without cogent reasons. She has a right to do this as proprietor of these possessions; but she ought not to dispose of them except in a manner that is consistent with the duties which the body owes its members.
§ 259. Duties of the prince.
The same duties lie on the prince, the director of the nation: he ought to watch over the preservation and prudent management of the public property — to slop and prevent all waste of it — and not suffer it to be applied to improper uses.
§ 260. He cannot alienate the public property.
The prince, or the superior of the society, whatever he is, being naturally no more than the administrator, and not the proprietor of the state, his authority, as sovereign or head of the nation, does not of itself give him a right to alienate or mortgage the public property. The general rule then is, that the superior cannot dispose of the public property, as to its substance — the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, the alienation he makes of it will be invalid, and may at any time be revoked by his successor, or by the nation. This is the law generally received in France; and it was upon this principle that the duke of Sully1 advised Henry IV. to resume the possession of all the domains of the crown alienated by his predecessors.
§ 261. The nation may give him a right to it.
The nation, having the free disposal of all the property belonging to her (§ 257), may convey her right to the sovereign, and consequently confer upon him that of alienating and mortgaging the public property. But this right not being necessary to the conductor of the state, to enable him to render the people happy by his government — it is not to be presumed that the nation have given it to him; and, if they have not made an express law for that purpose, we are to conclude that the prince is not invested with it, unless he has received full, unlimited, and absolute authority.
§ 262. Rules on this subject with respect to treaties between nation and nation.
The rules we have just established relate to alienations of public property in favour of individuals. The question assumes a different aspect when it relates to alienations made by one nation to another:2 it requires other principles to decide it in the different cases that may present themselves. Let us endeavour to give a general theory of them.
1. It is necessary that nations should be able to treat and contract validly with each other, since they would otherwise find it impossible to bring their affairs to an issue, or to obtain the blessings of peace with any degree of certainty. Whence it follows, that, when a nation has ceded any part of its property to another, the cession ought to be deemed valid and irrevocable, as in fact it is, in virtue of the notion of property. This principle cannot be shaken by any fundamental law by which a nation might pretend to deprive themselves of the power of alienating what belongs to them: for, this would be depriving themselves of all power to form contracts with other nations, or attempting to deceive them, A nation with such a law ought never to treat concerning its property: if it is obliged to it by necessity, or determined to do it for its own advantage, the moment it broaches a treaty on the subject, it renounces its fundamental law. It is seldom disputed that an entire nation may alienate what belongs to itself: but it is asked, whether its conductor, its sovereign, has this power? The question may be determined by the fundamental laws. But, if the laws say nothing on this subject, then we have recourse to our second principle, viz.
2. If the nation has conferred the full sovereignty on its conductor — if it has intrusted to him the care, and, without reserve, given him the right, of treating and contracting with other states, it is considered as having invested him with all the powers necessary to make a valid contract. The prince is then the organ of the nation: what he does is considered as the act of the nation itself; and, though he is not the owner of the public property, his alienations of it are valid, as being duly authorized.
§ 263. Alienation of a part of the state.
The question becomes more distinct, when it relates, not to the alienation of some parts of the public property, but to the dismembering of the nation or state itself — the cession of a town or a province that constitutes a part of it. This question, however, admits of a sound decision on the same principles. A nation ought to preserve itself (§ 26) — it ought to preserve all its members — it cannot abandon them; and it is under an engagement to support them in their rank as members of the nation (§ 17). It has not, then, a right to traffic with their rank and liberty, on account of any advantages it may expect to derive from such a negotiation. They have joined the society for the purpose of being members of it — they submit to the authority of the state for the purpose of promoting in concert their common welfare and safety, and not of being at its disposal, like a farm or a herd of cattle. But the nation may lawfully abandon them in a case of extreme necessity; and she has a right to cut them off from the body, if the public safety requires it. When, therefore, in such a case, the state gives up a town or a province to a neighbour or to a powerful enemy, the cession ought to remain valid as to the state, since she had a right to make it: nor can she any longer lay claim to the town or province thus alienated, since she has relinquished every right she could have over it.
§ 264. Rights of the dismembered party.
But the province or town thus abandoned and dismembered from the state, is not obliged to receive the new master whom the state attempts to set over it. Being separated from the society of which it was a member, it resumes all its original rights; and if it be capable of defending its liberty against the prince who would subject it to his authority, it may lawfully resist him, Francis I. having engaged, by the treaty of Madrid, to cede the duchy of Burgundy to the emperor Charles V., the state of that province declared, "that, having never been subject but to the crown of France, they would die subject to it; and that, if the king abandoned them, they would take up arms, and endeavour to set themselves at liberty, rather than pass into a new state of subjection."3 It is true, subjects are seldom able to make resistance on such occasions; and, in general, their wisest plan will be to submit to their new master, and endeavour to obtain the best terms they can.
§265. Whether the prince has power to dismember the state.
Has the prince, or the superior of whatever kind, a power to dismember the state? We answer as we have done with respect to the domain: — if the fundamental laws forbid all dismemberment by the sovereign, he cannot do it without the concurrence of the nation or its representatives. But, if the laws are silent, and if the prince has received a full and absolute authority, he is then the depositary of the rights of the nation, and the organ by which it declares its will. The nation ought never to abandon its members but in a case of necessity, or with a view to the public safety, and to preserve itself from total ruin; and the prince ought not to give them up except for the same reasons. But, since he has received an absolute authority, it belongs to him to judge of the necessity of the case, and of what the safety of the state requires.
On occasion of the above-mentioned treaty of Madrid, the principal persons in France, assembled at Cognac after the king's return, unanimously resolved, "that his authority did not extend so far as to dismember the crown."4 The treaty was declared void, as being contrary to the fundamental law of the kingdom: and, indeed, it had been concluded without sufficient powers: for, as the laws in express terms refused to the king the power of dismembering the kingdom, the concurrence of the nation was necessary for that purpose; and it might give its consent by the medium of the states-general. Charles V. ought not to have released his prisoner before those very states had approved the treaty; or rather, making a more generous use of his victory, he should have imposed less rigorous conditions, such as Francis I. would have been able to comply with, and such as he could not, without dishonour, have refused to perform. But now that there are no longer any meetings of the states-general in France, the king remains the sole organ of the state, with respect to other powers: these latter have a right to take his will for that of all France; and the cessions the king might make them would remain valid, in virtue of the tacit consent by which the nation has vested the king with unlimited powers to treat with them. Were it otherwise, no solid treaty could be entered into with the crown of France. For greater security, however, other powers have often required that their treaties should be registered in the parliament of Paris; but at present even this formality seems to be laid aside.
1. See his Memoirs.
2. Quod domania regnorum inalienabilia et semper revocabilia dicuntur, id respectu privatorum intelligitur; nam contra alias gentes divino privilegio opus foret Leibnitz, Praefat. ad Cou. Jur. Gent. Diplomat
3. Mezeray's History of France, vol. ii. p. 458.
4. Mezeray's History of France, vol. ii. p. 458.