De la garantie des propriétés de tous les genres, contre les atteintes des particuliers.

CHAP. 43: On the Guarantee of Properties of All Kinds, Against the Infringements of Private Individuals.

THE infringements made on private, communal, or public properties by private individuals are those that governments repress most willingly, because they are rarely profitable to them, and almost always harmful. The guarantees given to properties of all kinds, against the infringements of persons who exercise no public function, are therefore the least imperfect. When they are weak or ineffective, one must blame not the intentions of the men who govern, but their incapacity.

One must remark here that whenever it is a matter of preventing or repressing the infringements made on property by simple private individuals, it is no longer necessary to distinguish national or communal properties from private properties; the power that is a guarantee for the latter can be a guarantee for the former. Thus, in practice, the man accused of having infringed upon the properties of a commune or those of the State is brought before the same judges, and subjected to the same penalties as if he had infringed upon private properties. We therefore do not need to concern ourselves henceforth with the distinctions made in the last two chapters.

Properties can be attacked clandestinely and by fraudulent means, or by open force, by men who have coalesced for pillage or spoliation. They can also receive infringements from persons who do not wish to brave the penal laws, and who seek to appropriate the goods of others only by means of the imperfections inseparable from all human institutions. The first of these infringements fall under criminal justice; the second fall under civil justice.

The surest guarantee against the infringements that can be made on property, by open force and by gatherings, is the armed organization of all the proprietors. When all the men who exist only by means of their properties or their industry are armed and organized, and when they are commanded by officers of their choice, properties cannot run a true danger, unless the proprietors divide themselves. The force destined to guarantee them is always found where the need for it is felt; it can be neither seduced, nor surprised, nor diverted from its true destination. The attacks committed openly and in broad daylight against properties, among nations where everyone possesses something, have, moreover, so few chances of success that they have become almost impossible. In a moment of scarcity, a famished population may attempt to openly seize the sustenance that is within its reach; but these infringements are always very circumscribed, as to the things that are their object, and to the circumstances or places in which they are made.

The guarantees against hidden infringements are of two kinds: some prevent the harm or stop it before it is entirely consummated; others repress it by the punishment of the guilty, which is also a way of preventing it. The first are established by instituting officers who watch over the guard of properties, and who arrest malefactors at the very instant their bad designs manifest themselves. In France, the guards who watch over rural properties, the gendarmes who patrol the main roads, the sentinels placed at certain points in the large cities, are guarantees of the first kind.

In England, mounted police officers patrol the main roads, especially during the night. As they do not have the mission to stop inoffensive travelers and to search their papers, they are not clad in any particular costume. They are more feared than our gendarmes, because malefactors cannot recognize them from afar, and they can fall into their hands while believing they are attacking travelers.

In all the cities, there exists another sort of guards called watchmen, who spread through the streets from the moment night has fallen. Each of them is equipped with a lantern, a rattle, and a baton, and wears on his back, written in large characters, the number under which he is registered with the police. They patrol the streets from a distance; they observe persons who appear suspect to them, and check if the doors of the houses or shops are well closed. If one of them finds a door that has been forgotten or badly closed, he warns the proprietor; and if the latter is absent, he guards the shop or the house until someone has arrived to take care of it. If he is witness to some offense, and he is not strong enough or agile enough to seize the culprit, he sounds his rattle, and from all the neighboring streets help arrives for him. The malefactor, who seeks to flee, finds himself surrounded on all sides by the guards who have run to the sound of the rattle, and if those he meets were not strong enough, they would call others by the same means. The watchmen do not have for their sole mission to shelter properties and persons from the attacks of malefactors; they are also charged with announcing fires that break out at the very instant they perceive signs of them. Finally, they are obliged to announce in the streets they patrol, every hour and every half-hour of the night, and thus to perform the office of ambulant clocks. They are therefore obliged to be always at their post.

But whatever precautions one takes to prevent infringements of property, one cannot prevent them all. In the best-policed countries, there are men who escape all surveillance, and who manage to execute their designs. It is therefore necessary, for properties to be guaranteed, for there to be officers charged with arresting malefactors and delivering them to justice; there must be a procedure to convict them, laws by virtue of which one can punish them, magistrates to apply to them the penalties they have incurred, and men charged with putting the judgments into execution. It is necessary, moreover, for there to be a well-organized civil justice; for there are always means of seizing the property of another or of retaining it, without exposing oneself to a criminal prosecution. The guarantee of properties therefore requires a civil procedure that, in any discussion, is proper to bring the truth to light. It requires, in addition, jurors or judges to pronounce between the parties, and officers to execute their judgments.

If I wished to make known in detail each of the conditions necessary to put properties beyond all infringement, it would be necessary to leave nothing unsaid on any of the branches of government; it would be necessary to treat of the legislative power, the executive power, the armed force, the municipal administrations, the judicial power, the procedure in civil and in criminal matters, the penal laws, the taxes, in a word, of the entire social organization, and of each of the means by the aid of which it subsists. It would be impossible to engage in such an examination without losing sight of the subject of this work, and without exceeding the limits I have prescribed for myself; one must not forget, moreover, that the same forces that guarantee to each the enjoyment and disposition of his goods, guarantee him the free exercise of his other rights. It is therefore only after having made these rights known, that it is suitable to treat in detail of the institutions by which the exercise of them is guaranteed to each of the members of society.

It is enough for me to have remarked here that properties are exposed to receiving infringements from all sorts of persons, and that they are completely guaranteed only when there is no kind of infringement that remains without repression; that infringements of properties, whether they come from the exterior or from the interior, whether they originate from the government that should protect them, or whether they take place on the part of simple private individuals, are always the result of a force; that one can stop or vanquish a force only by a superior force, and that the peoples who take declarations, promises, or even oaths for guarantees, fall into a grave and dangerous error; what it was above all important to observe, is that the proprietors alone, taking this word in the broadest sense, can guarantee properties from the diverse infringements to which they are exposed, and that they can guarantee them only insofar as they are organized and armed to defend them.

The power that guarantees properties does not dispense each proprietor from the surveillance of his goods; in society, each is the first guarantor of the things that belong to him. If it happens that, by fraud or by violence, a private individual is despoiled of his property, the public authority will intervene to have it returned to him or to punish the spoliator; but it will not repair the damage caused. A nation that would engage to repair all infringements made on properties would expose itself by that very fact to giving such encouragements to negligence that it would have to fear finding itself in the impossibility of fulfilling the engagements it had taken.

If it happened, however, that the properties of a person were pillaged or devastated, because the authorities charged with protecting them had not fulfilled their duties, would it not be just to condemn these same authorities to indemnify the proprietor? At a time when all the communes of France appointed the magistrates charged with maintaining public order in their midst, and when they were organized for their defense, a law was passed that made them responsible for the attacks committed on their territory, either against persons or against properties. This law, which is still in force, was very just when the communes governed themselves, and when they had the means to defend public order; but it ceased to be so when the central power had despoiled them of the faculty of appointing their magistrates and their officers. Today, as they have re-entered, at least in part, into the exercise of their rights, the only objection they could make against the law that declares them responsible for the attacks committed by open force on their territory against properties, would consist in saying that the government has too great a part in the choice of their magistrates. This would be a reason not to restrict their liberty; but it would be unfortunate if it caused them to be freed from the responsibility that weighs upon them.

According to the dispositions of this law, which is of 10 Vendémiaire, Year IV (2 October 1795), all citizens inhabiting the same commune are civilly responsible for the attacks committed on the territory of the commune, either against persons or against properties.

Each commune is responsible for the offenses committed by open force or by violence on its territory, by armed or unarmed gatherings or assemblies, either against persons, or against national or private properties, as well as for the damages to which they will give rise.

In the case where the inhabitants have taken part in the offenses committed on its territory by gatherings or assemblies, this commune is held to pay to the State a fine equal to the amount of the principal reparation.

If the gatherings or assemblies have been formed of inhabitants of several communes, all are responsible for the offenses they have committed, and contributory both to the reparation and damages and to the payment of the fine.

The inhabitants of the commune or of the contributory communes who claim to have taken no part in the offenses, and against whom no proof of complicity or participation in the gatherings arises, may exercise their recourse against the authors and accomplices of the offenses.

In cases where the assemblies have been formed of individuals foreign to the commune, on the territory of which the offenses have been committed, and where the commune has taken all the measures that were in its power, for the purpose of preventing them and of making known their authors, it remains discharged of all responsibility.

When, as a result of assemblies or gatherings, an individual, domiciled or not in a commune, has been pillaged, mistreated, or murdered there, all the inhabitants are held to pay him, or, in case of death, to his widow and his children, damages.

When, as a result of assemblies or gatherings, a citizen has been constrained to pay, when he has been robbed or pillaged on the territory of a commune, all the inhabitants of the commune are held to the restitution, in the same kind, of the pillaged objects and things taken by force, or to pay the price of them, at the rate of double their value, at the course of the day on which the pillage was committed.

In England, there exists a law analogous to that of France, for the guarantee of properties: the inhabitants of the cities, boroughs, or villages are responsible for the attacks committed against property, on their territory, by gatherings or assemblies [^304].

A nation, like a commune, should be responsible for the infringements made on private or communal properties, every time that these infringements have taken place only because the officers of the State have not done their duty. One does not see, in effect, why a people would not answer for the faults or the offenses of its agents, as a commune answers for the negligence, the incapacity, or the offenses of its own.

Nations do not obtain the guarantee of their properties for free; they are obliged to pay for it with their treasures, their services, and sometimes even their blood. A people that wished to have everything done for money, and that would not wish to take part, either in the guard of its territory, or in the making of its laws, or in the administration of justice, or in the maintenance of internal order, would soon be the most enslaved people. There are true guarantees only for nations that possess enough energy, activity, and enlightenment, to guard themselves, to give themselves laws, to administer themselves, to judge themselves, in a word, to govern themselves. Now, this requires the sacrifice of much time and even of much money.

One would be mistaken, however, if one imagined that liberty costs nations more than despotism; it is, on the contrary, infinitely less expensive. If one has seen nations that seemed free, more burdened with taxes than peoples deprived of all political liberty, it is because their princes had been rich enough to corrupt the men charged with the defense of the national interests. With the contributions collected from the citizens, they bribed legislative majorities; and with these majorities they established taxes to buy their votes. Montesquieu, who had not observed this game, spread the error that servitude is less expensive than liberty; and this error has been defended, as an incontestable maxim, by all the men who, no longer able to lead nations by force, have wished to govern them by corruption. The English, who have been cited as an example, bore the burdens of two regimes: those that liberty requires, and those that the domination of their aristocracy imposed upon them.

It is not enough, moreover, to know what a government costs, to calculate the sums that one pays to the tax collectors, or the sacrifices of time to which the citizens are obliged; one must take into account the losses of which it is the cause, or the profits that it prevents from being made. In calculating the sacrifices of all kinds, which are inseparable from the diverse forms of government, one can easily convince oneself that the regime under which properties are best guaranteed is that which costs the least, and which gives at the same time the most security.

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Notes

[^304]: Statute 57, George III, ch. XIX, § 38.