De la garantie des propriétés en général, et particulièrement contre les atteintes de l'extérieur.

CHAP. 40: On the Guarantee of Properties in General, and Particularly Against External Infringements.

IN researching how the things to which we give the name of properties are formed, we have seen that in general they are created only by taking possession of certain materials that one can appropriate without infringing upon the means of existence of other persons; we have then observed that human industry, sometimes by its sole efforts, and sometimes by putting to use the power of the laws of nature, gives to these materials the qualities that we need to find in them in order to use them; we have seen, moreover, that among peoples very advanced in civilization, a more or less large number of persons give value not only to material objects, but also to industrial or commercial establishments, to productions of the mind, and even to simple signs; we have remarked, furthermore, that the things that are the foundation of our existence and that we call properties receive this denomination only insofar as they are considered in their relationships with the persons whose needs they must satisfy and who have produced or legitimately acquired them; finally, we have seen that one of the conditions of all property is the power or the faculty in the individual whom we call a proprietor, to enjoy and dispose of the thing that belongs to him.

It now remains for us to observe how the faculty of enjoying and disposing of the things that we call properties is assured to the persons who have formed or legitimately acquired them; we have to examine what is the nature of this guarantee, whence it derives, how far it extends, and what are the sacrifices at the price of which it is obtained; we will then see what influence it exerts on the growth, conservation, and value of properties.

To guarantee to one or several persons the enjoyment and disposition of a thing, is not to give them the physical faculty of enjoying and disposing of it; it is quite simply to prevent other persons from infringing upon or placing an obstacle to the exercise of this faculty. Thus, to give guarantees to properties is to establish or organize forces that oppose one or more individuals attributing to themselves things that belong to others, or depriving them of the faculty of enjoying or disposing of them. Every guarantee of properties is therefore a power that prevents or represses theft, extortions, pillage, in a word, all spoliations, whatever their nature. The faculty that certain persons have of enjoying or disposing of the things they have formed or that have been regularly transmitted to them, can, in effect, be stopped or suspended only by the effect of their will or by a force that is foreign to them; and one stops a force only by an equal or superior force.

But where to find this power that protects every person or every aggregation of persons in the enjoyment and disposition of their goods; that is great enough to contain or repress all individuals disposed to seize the property of others, and which however can never become a means of spoliation? One can find it only in the enlightenment, the morals, the union, the organization, and the force of all the proprietors; it is effective and sure only when it comes from there. A power that comes from elsewhere may well sometimes prevent or repress the spoliations that do not profit it or that are damaging to it; but sooner or later it becomes a means of extortion in the hands of those who possess it.

When one studies the origin of properties and follows their development, one observes that populations grow as the mass of properties increases: men first create properties, and properties then give birth to new men. We exist, therefore, only by means of our goods, and the same principle that pushes us to defend our existence, leads us to defend the things that sustain it. Such is the true and I can even say the sole source of the guarantee that we have to observe.

There is only one way to know if all the properties that exist within a nation are guaranteed; it is to research what are the diverse infringements to which they are exposed, and to examine if a power exists that shelters them from each of the dangers they have to run.

In considering properties in the relationships they have with those whose needs they must satisfy, one can divide them into three great classes: there are some that are destined to satisfy certain national needs, to assure the defense of the country, to facilitate communications, for example; there are others that are destined to satisfy the needs of less considerable associations, such as communes, departments, provinces; there are others, finally, that are destined only to satisfy individual needs or family needs.

When one considers nations with regard to one another, one observes that each of them has a territory that is its own, and that this territory contains all the properties that belong to individuals, to communes, or to other more or less numerous aggregations. If one then considers each nation relative to the diverse fractions into which it is divided, one sees that it has, in the national territory, particular properties whose object is to satisfy a certain kind of general needs, such as the needs of security, justice, communications. Nations, considered as organized bodies, are not proprietors only of the rivers, canals, and roads that cross their territory; they always have goods that are of the same nature as those of private individuals. Several possess forests, farms, industrial establishments; all have a treasury that is fed by public contributions, and without which they could not subsist.

If we recognize that, for a nation as for a private individual, the faculty of enjoying and disposing is one of the essential elements of property, we will admit that there is an infringement of a national property, every time that a thing belonging to a people is diverted, without the consent of the proprietors, from its natural destination and applied to satisfy needs other than those of the people to whom it belongs; it matters little, moreover, whether it has been diverted or ravished by an army or by a single man, by a foreigner or by a member of the State, by an agent of the public authority or by a private individual; neither the number nor the quality of the persons changes anything in the nature of the action.

We do not have to concern ourselves here with the damages caused to property by accidents independent of the will of men. A property can perish or be damaged by a shipwreck, by an inundation, or by fire from heaven, as by the invasion of an army, or by the irruption of a troop of brigands. One can establish guarantees against the calamities that come from nature, as one establishes them against those that come from the perversity of men. The latter are the only ones in question here.

The properties of a nation can be attacked by three classes of persons, by external enemies, by the members of the government themselves, to whom the guard and administration of them are entrusted, and by private individuals; there must therefore exist guarantees against these three classes of persons, that is to say, forces capable of preventing or repressing their assaults.

There are nations whose territory is partly guaranteed against invasion by the physical circumstances in the midst of which it is placed, by high mountains, by seas, and sometimes by vast deserts. We do not have to concern ourselves with guarantees of this kind; the peoples who are deprived of them have only one means of obtaining them; it is to unite with those of their neighbors who possess them, to make but one nation. We have to treat only of the guarantees that peoples find in themselves, against the aggressions of which they can be the object.

The forces that can infringe upon our properties, and against which we seek guarantees, are found in men, and to contain or repress them, other forces are needed which can likewise be found only in men. If it is a matter, for example, of guaranteeing the territory of a nation against the invasion of a foreign army, it is clear that one can find a guarantee only in the existence of another army. If it is a matter of sheltering them from the enterprises of malefactors from within, other men must be charged with arresting or punishing them.

The greatest difficulty that presents itself, every time that it is a question of social guarantees, is not to find a force that is an obstacle to invasion, or that represses the infringements of properties by private individuals; it is to find a guarantee against the abuse of the forces that one has organized, whether to defend national independence, or to repress malefactors from within. What will be the power that will guarantee us from the frauds, extortions, and violence of our guarantors? The solution to this problem is very difficult; I will not even fear to say that it is impossible, among any people whose morals, intelligence, and industry have not made great progress.

A nation in which there still exist many remnants of barbarism can make only vain efforts to establish guarantees; when it has organized a force or created a magistracy, to prevent or repress certain spoliations, it must think of sheltering itself from the assaults of this force or this magistracy; as soon as it has organized and armed defenders, it must seek to guarantee itself from their enterprises.

There is no constitution, however perfect one supposes it, that can make a cowardly, ignorant, or corrupt people exit this circle. Some publicists have appeared to believe that constitutional monarchy had given the solution to the problem; this is an error. Let one subject to whatever constitution one wishes, a people of which a considerable part aspires to live on the product of the labor of others, and of which the other is fashioned for oppression; let one give it two chambers, an inviolable king, responsible ministers, and all that composes a constitutional government; when all that exists, the legislators, the ministers, the king and their agents will employ their power to satisfy their appetites. If they had the desire or the habit of enriching themselves at the expense of others, each of them will make the share of authority devolved to him serve to live at the public's expense; and if some of the men previously enslaved arrive in power, they will not be the last to take their share.

There can therefore exist no true guarantees, let it never be forgotten, whether against the dangers from the exterior, or against the dangers from the interior, except where men are very advanced in civilization, where morals are good, where minds are enlightened, where the most influential families are in the habit of living, not from more or less disguised extortions, but from the products of their industry or their properties; in countries, finally, where all classes of society respect each other and know how to make themselves respected [^298].

That being understood, it will be easy to comprehend what are the circumstances in which national, communal, and individual properties lack guarantees, and what are the means by the aid of which proprietors assure themselves the enjoyment and disposition of them.

The guarantee of the national territory and of all the properties it contains, against attacks from within, is composed of two things: a good political organization and a good military organization. A nation that had no influence on its government, or whose government obeyed external influences, could not defend its territory and shelter itself from invasion, even if all its members were trained in arms. A nation would be equally incapable of defending itself, even if it governed itself, by men whom it had chosen and who would be accountable to it for the exercise of their powers, if it were not armed, or if it did not know how to make use of its arms. It is not enough, in effect, to repulse an armed aggression, to be free in one's movements; it is necessary, moreover, to know how to make use of one's limbs, and not to be deprived of means of defense.

A people also finds a guarantee against external aggressions in the alliances it forms with peoples interested in its conservation and its independence. France, for example, is protected by the independence and liberty of the Swiss cantons, and reciprocally the Swiss cantons find a guarantee of their conservation in the independence and liberty of France. If the small peoples of Germany all had a social organization analogous to ours, their existence would guarantee a considerable part of our frontiers from invasion; but, for the same reason, we will be a guarantee for them, every time that we have a government that is the organ of the interests of France.

One must not confuse the guarantees that exist in the interest of a government with the guarantees that exist in the interest of the nation to which it gives laws. A family that considers as its property the people who are subject to it, may have forces to defend it against attacks coming from the exterior. It may also have allies who guarantee its power; the members of the Holy Alliance, for example, mutually guaranteed to each other the possession of their States. But the external force that guarantees the existence or the domination of a prince does not necessarily protect his nation; it is often, on the contrary, relative to it, a means of internal or external tyranny.

Infringements can be made on the national territory, as a result of a coalition formed between the government of the country and foreign governments; assaults of this kind are not even as rare as one would be tempted at first to believe. They ordinarily take place when a nation aspires to free itself from the domination that weighs upon it, and its government does not possess a sufficient force to keep it under the yoke. In such a case, the government makes an appeal to foreign governments that may fear a similar fate for themselves, and delivers the country to their armies, in the hope that it will be returned to it, if not in totality, at least in part.

Montesquieu observes that Sylla and Sertorius, in the fury of the civil wars, preferred to perish rather than do anything from which Mithridates could draw advantage; but that, in the times that followed, as soon as a minister or some great man believed that it was important to his avarice, his vengeance, his ambition to have the barbarians enter the empire, he at once gave it to them to ravage [^299].

The reason for this difference is easy to see: the Roman people, under the republic, were themselves the guarantor of the inviolability of their independence and their security; but, from the moment they had been enslaved, the national territory no longer had guarantees against the assaults of the emperors or their ministers.

It is not rare, however, for a prince who considers himself the master of the country and the men he governs, to defend national properties against attacks that come from the foreigner, if, internally, his power is not contested; but the forces of which he disposes for his defense, and which, for him, are a guarantee, are not one for his subjects; nothing can oppose, in effect, if such is his good pleasure or that of his ministers, the strongholds, the arsenals, the ports, the navy, and even the treasures of the State being delivered to the foreigner.

The nations that have made enough progress to know how to govern themselves are not exposed to dangers of this kind; they find a guarantee in the choice they make directly or indirectly of the men charged with the direction of their affairs, in the continual surveillance they exercise or have exercised over them, in the faculty of rewarding or punishing them, and finally in their entire social organization.We sometimes consider as a guarantee of national properties, relative to the exterior, the promise to respect them, made by a foreign government or by the heads of its armies. It is not rare for an army that proposes to invade the territory of a people it considers an enemy to be preceded by proclamations in which it says it guarantees properties of all kinds. These promises are a means to make a part of the population lay down its arms, and to destroy resistance without a fight, that is to say, to overthrow the only effective guarantees. They resemble, in some respects, those declarations made by a prince who wishes to weaken the obstacles that oppose his elevation, declarations which are also given the name of guarantees, and which are often neither more sincere nor more effective than the manifestos of invading armies.

When these promises do not have for their object and result to deceive the peoples to whom they are made, they are worth less than nothing; but they are not worth much more. A promise is a true guarantee only when there exists above the one who made it, a power having the force and the will to have it executed. It is almost always illusory when he who is its author has above him neither superiors nor judges, or when these superiors are themselves interested in its not being executed. All men, even those who are invested with great power, are, it is true, placed under the empire of their conscience, but we are still far from the time when nations will be able, in their mutual relations, to consider as an invincible force the conscience of the men who govern them.

One of the essential elements of all property, we have said, is the faculty, in the proprietor, of enjoying and disposing of the thing that belongs to him. A nation therefore really has the prerogatives attached to the quality of proprietor only when it has the power to dispose of or enjoy the things that are its own. Its properties are fully guaranteed to it only insofar as it governs itself; as it determines, consequently, the use of its goods, and as it can have an account rendered of them.

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Notes

[^298]: One should not conclude from these observations that, for a little-civilized people, all forms of government are equally bad; there are degrees in evil as in good. [^299]: Grandeur et décadence des Romains.