De la garantie des propriétés de tous les genres, contre les atteintes du gouvernement et de ses age

CHAP. 42: On the Guarantee of Properties of All Kinds, Against the Infringements of the Government and Its Agents.

National properties can receive infringements from two classes of persons from within: from the men to whom the guard or administration of them are entrusted, and from simple private individuals. For them to be guaranteed, there must therefore exist in the State a power that prevents or represses the infringements that can be committed by the ones and the others, and which is not disposed to become their accomplice. Now, this power cannot be distinct from that of the proprietors, that is to say, of the nation itself, which exercises it by delegates whom it chooses, or whom it gives the mission to choose.

A nation therefore lacks guarantees, relative to its properties, every time that it is without influence on the nomination of the functionaries who have the guard or administration of them, and that it can neither determine the use of the things that belong to it, nor have an account rendered of them. The peoples who are subject to absolute governments, such as most of those of Europe, are completely deprived of guarantees, relative to their national properties, and to the infringements that the men who administer them can make against them. What, for example, in Russia, in Austria, in Italy, in Spain, is the power that can prevent the rulers from diverting national properties for their particular profit, or constrain them, either to take care of them, or to apply them to the needs of the true proprietors, that is to say, of the nations?

Under aristocratic governments, the classes of the population that are excluded from all participation in public affairs are deprived of guarantees relative to national properties. There exists, in effect, no power that prevents the members of the aristocracy from applying to the needs of their families the goods that should be employed only for the profit of all the members of the State. Thus, in all countries subject to this mode of government, one observes that a good part of the national revenues is employed to support and often even to enrich the possessors of power.

For the communes, as for the nations, there is a guarantee for their properties only insofar as they have the faculty of enjoying and disposing of them, and as there exists in the State a power that prevents or represses the infringements of which they are or can be the object. If, by violence or by fraud, one deprived a private individual of the faculty of enjoying and disposing of his goods, one would evidently infringe upon his properties; and if this deprivation were to be perpetual, the infringement would have all the characters of a veritable spoliation. For the same reason, if any power whatever seized the administration and disposition of the goods of the communes, they would find themselves by this sole fact despoiled of their properties.

At the beginning of this century, a similar spoliation was executed against all the communes of France, when a general dispersed, by armed force, the national representation, and seized public authority. The simulacrum of a constitution that was published to give to the usurpation of the citizens' rights an appearance of legality, did not say a word about the properties of the communes; but it attributed to the head of the government or to his delegates the nomination of all the officers to whom the administration of them was entrusted, and who could demand an account of it.

From that moment, there no longer existed any communal association properly so-called: the delegates of the communes were dismissed; men elected by the new government took their place; they seized the administration of the communal goods; they determined their use according to their particular views, or according to the orders that were transmitted to them by their superiors; finally, they were held to render an account of their management only to the power that had elected them or to its agents.

If ever a similar assault were executed against the citizens; if a general, after having destroyed the national representation and overthrown the government, were to pass into the hands of his delegates all private properties; if he were to make them accountable only to himself, what man would not see in such a measure a general spoliation? The circumstance, that the possessor of power had charged his delegates to consecrate the revenues of the ravished goods to satisfying some of the needs of the persons he had despoiled, would not change the nature of the fact. It would suffice, for the spoliation to be complete, that the proprietors be deprived of the faculty of enjoying and disposing of their goods, and that they be put in the impossibility of ever demanding an account of them. Now, it is evident that the act that would be a spoliation for one person, is one for an aggregation of persons: there is a difference only in the number of citizens despoiled, and in the importance of the spoliation.

The properties of the communes are therefore truly guaranteed only when they are beyond the particular infringements of the functionaries to whom the administration of them is entrusted, and of the government or its agents; when the proprietors, that is to say the members of the commune, have them administered by men whom they have chosen, and from whom they can demand an account of their management.

One must not, however, assimilate to a private individual these aggregations of persons to which one gives the name of communes or nations. An individual, from his birth to his death, passes through various states, and is subject to different rules, according to whether he is more or less capable. At the moment he is born, and even several years after, he can have properties, and yet his will exercises no influence over them. When he is completely developed, he enjoys and disposes of his goods, without being subject to any sort of control; his will has the power of a law. If his intellectual faculties disappear or weaken considerably, he loses the faculty of disposing of his properties, or is subject to various restrictions.

These periods of weakness and strength, of incapacity and intelligence, are not noticeable, at least in the same manner, in these bodies that we call nations or communes; but also one finds in them, at all times, a great number of persons who can take no direct or indirect part in the administration of the common goods, and who however have to these goods the same rights as the most capable men. Children, women, the interdicted, and those whom their supposed incapacity deprives of the exercise of any political right, have the right to enjoy, like all other members of the State, all the advantages that the properties of the commune and those of the nation can procure. None of them, however, can contribute to the election of the men charged with administering them, or with having an account rendered of them.

A commune, and still less a nation, cannot administer its goods by itself; it cannot, either, examine by itself the manner in which they have been administered. It must entrust the management of them to certain of its members, and delegate to others the power to verify the accounts of its administrators. But, when a commune or a nation delegates a part of its powers, the elections are not made unanimously; it is not, either, unanimously that resolutions are formed in deliberative bodies. There is therefore always, either in a commune, or in a nation, a great number of persons who have not been called to take part in the elections, or who have refused their votes to the men charged with public affairs. There are also, in every deliberative body, members who disapprove of the resolutions that are taken there. The men who form the minority and those who are not called to give their vote, either in the elections, or in the deliberating assemblies, have no less right, however, than those who compose the majority, to the communal or national properties.

The necessity, either of refusing the exercise of political rights to a great number of persons incapable of exercising them, or of deferring, in an infinity of circumstances, to the decisions of the majority, have caused certain restrictions to be put, certain limits to be given to the authority of the men charged with administering the goods of a commune or a nation. It has been felt that it was necessary to prevent the abuses that majorities can make of their power, and especially to protect the interests of the persons whom their age, their sex, or other causes, deprive of all influence in the administration of public things. The restrictions given to the various powers of the State, when they have for their goal and result the conservation of the rights or interests of the persons who cannot defend themselves, either by themselves, or by their delegates, are not infringements of property; they are, on the contrary, true guarantees. They are, for a great number of the members of the communes or of the State, what the laws relative to guardianship are for children who have not reached their majority.

Individual or family properties are exposed to the same dangers as the properties of the State and of the communes; they can receive infringements from neighboring peoples, from the members of the government or its agents, and from simple private individuals. They are therefore completely guaranteed only when there exist, within the nation, powers that prevent or repress the infringements of which they are or can be the object, whoever the authors may be.

The power that shelters national properties from the attacks of the foreigner, guarantees by that very fact private properties from the infringements that could come from the exterior. It can happen, however, that an individual property receives an infringement, not from a neighboring nation, but from a man who is part of that nation. It can also happen that a foreigner whom the national laws cannot reach, is the holder of a citizen's goods. When such events happen, and the person injured in his interests cannot obtain justice from the judges of the person of whom he complains, he is protected by diplomatic agents. The institution of these agents is therefore a true guarantee, even for simple private individuals; but this guarantee is effective only insofar as it can, if need be, be supported by a force that knows how to make itself respected.

When we speak of the infringements that a government can make against private properties, these words must be understood in the broadest sense. This word government does not designate here only the ministers to whom the execution of the laws is entrusted; it embraces the principal powers of the State and their agents. Properties can receive infringements from the power that makes the laws, as from the armed force that ensures their execution; from the magistrates charged with the administration of justice, as from the officers whose mission is to have the judgments executed. Properties are not guaranteed, when the legislators charged with voting the taxes share them among themselves, under the name of functionaries, in concert with the ministers; and especially when the share of each is in proportion to his complaisance for the agents accountable for the public fortune.

One must not, either, lose sight of the fact that by the word property we do not mean only territorial properties, as is too often the practice; we mean properties of all kinds, all the means of existence that an individual has created for himself without violating the laws of morality, and without infringing upon the liberty of others, or which have been regularly transmitted to him by those who had formed them.

A government can infringe upon the properties of citizens, by seizing them by a simple direct seizure; by imputing to the proprietors certain offenses, in order to appropriate their goods by confiscation; by attributing to itself the monopoly of an industry that furnishes means of existence to one or several families; by defaulting on its creditors, or, what is the same thing, by freeing itself from its debts by means of a depreciated currency; by attributing to itself, for its particular advantage, a more or less large share of the citizens' revenues; finally, by borrowing considerable sums that it employs in its particular interest, and of which it declares the people the debtor.

The infringements that governments make against private properties are more or less brutal, more or less disguised, according as the nations they govern are more or less enlightened. The governments of civilized peoples have renounced the most violent spoliations; they find that it is more lucrative and less dangerous to appropriate a share of everyone's revenues, than to despoil a small number of rich families of all their goods. It is now only governments that are completely barbarous and that understand nothing of the refinements of civilization, that seek to enrich themselves by confiscations. If the others do not always have more probity, they have at least more skill; according to the precept of the wisest of kings, they oppress their peoples with prudence.

There is, for a nation, only one truly effective means of putting private properties as well as public properties beyond the infringements of the men charged with the government; it is to organize itself in such a way that dishonest men can never seize the direction of its affairs, or that at least they cannot keep it, if, by cunning or by hypocrisy, they manage to seize it. A people that could not or would not know how to prevent men disposed to enrich themselves at its expense from reaching the highest employments, would seek in vain for guarantees against their improbity; it would not know how to find any. The organization of all the proprietors, for their common defense is, as I have already said, the foundation of all true guarantee.

But it is not enough, for properties to be beyond the infringements of the persons invested with public authority, that the proprietors be organized and that they govern themselves by men whom they have chosen; it is necessary, moreover, that no tax can be required or collected, unless the necessity for it has been ascertained, and it has been consented to by the delegates of those who must pay it; it is necessary, in the third place, that the men who vote the taxes not be authorized to share them among themselves; it is necessary finally that the functionaries to whom the execution of the laws is entrusted, and who are depositaries of a part of the national properties, be responsible, to the public, for the use they have made of their powers, and that, consequently, they can be prosecuted in the name of the nation to which they have to render an account.Finally, the third condition necessary for the existence of the guarantee is that any person who believes himself injured in his goods by depositaries of power, whatever their rank, may bring them before a tribunal of integrity, enlightened, and independent. A tribunal whose members had all been chosen by one of the interested parties, and who would await from it their advancement and their fortune, would not always be, for the other party, a very sure guarantee [^303].

In England, where judges are appointed by the King, as in France, one would believe that no guarantee exists, either for persons or for properties, if these delegates of the crown were called upon to pronounce on the questions that arise between private individuals and the government; however, these judges are truly irremovable; for them, there is no possible advancement. In France, we think or at least we act differently; it is to the men whom the monarch has chosen and who await from him their advancement and their fortune, that is devolved the judgment of all the lawsuits that may exist between him and the citizens. This manner of proceeding is, doubtless, a guarantee for the prince; but it is not one for the persons against whom he has lawsuits brought by his delegates.

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Notes

[^303]: When Bonaparte seized power, he inserted into his constitution a provision that forbade prosecuting a government agent, unless the prosecution had been authorized by the Council of State. This provision, which the Restoration preserved, and which has not yet been abrogated, would be sufficient to render all guarantees illusory.