ought in general to be confined to the punishment of crimes committed in its own territories, we ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Poisoners, assassins, and incendiaries by profession, may be exterminated wherever they are seized; for they attack and injure all nations, by trampling under foot the foundations of their common safety. Thus pirates are sent to the gibbet by the first into whose hands they fall. If the sovereign of the country where crimes of that nature have been committed, reclaims the perpetrators of them in order to bring them to punishment, they ought to be surrendered to him, as being the person who is principally interested in punishing them in an exemplary manner. And as it is proper to have criminals regularly convicted by a trial in due form of law, this is a second reason for delivering up malefactors of that class to the states where their crimes have been committed.
Of public, common, and private Property.
§234. What the Romans called res communes.
Let us now see what is the nature of the different things contained in the country possessed by a nation, and endeavour to establish the general principles of the law by which they are regulated. This subject is treated by civilians under the title de rerum divisione. There are things which in their own nature cannot be possessed; there are others, of which nobody claims the property, and which remain common, as in their primitive state, when a nation takes possession of a country: the Roman lawyers called these things res communes, things common: such were, with them, the air, the running water, the sea, the fish, and wild beasts.
§235. Aggregate wealth of a nation, and its divisions.
Every thing susceptible of property is considered as belonging to the nation that possesses the country, and as forming the aggre-<110>gate mass of its wealth. But the nation does not possess all those things in the same manner. Those not divided between particular communities, or among the individuals of a nation, are called public property. Some are reserved for the necessities of the state, and form the demesne of the crown, or of the republic: others remain common to all the citizens, who take advantage of them, each according to his necessities, or according to the laws which regulate their use; and these are called common property.—There are others that belong to some body or community, termed joint property, res universitatis; and these are, with respect to this body in particular, what the public property is with respect to the whole nation. As the nation may be considered as a great community, we may indifferently give the name of common property to those things that belong to it in common, in such a manner that all the citizens may make use of them, and to those that are possessed in the same manner by a body or community: the same rules hold good with respect to both.—Finally, the property possessed by individuals is termed private property, res singulorum.
§236. Two ways of acquiring public property.
When a nation in a body takes possession of a country, every thing that is not divided among its members remains common to the whole nation, and is called public property. There is a second way whereby a nation, and, in general, every community, may acquire possessions, viz. by the will of whosoever thinks proper to convey to it, under any title whatsoever, the domain or property of what he possesses.
§237. The revenues of the public property are naturally at the sovereign’s disposal.
As soon as the nation commits the reins of government to the hands of a prince, it is considered as committing to him, at the same time, the means of governing. Since therefore the income of the public property, of the domain of the state, is destined for the expenses of government, it is naturally at the prince’s disposal, and ought always to be considered in this light, unless the nation has, in express terms, excepted it in conferring the supreme authority, and has provided in some other manner for its disposal, and for the necessary expenses of the state, and the support of the prince’s person and household. Whenever therefore the prince is purely and simply invested with the sovereign authority, it includes a full discretional power to dispose of the public revenues. The duty of the sovereign indeed obliges him to apply those revenues only to the necessities of the state; but he alone is to determine the proper application of them, and is not accountable for them to any person.
§238. The nation may grant him the use and property of its common possessions,
The nation may invest the superior with the sole use of its common possessions, and thus add them to the domain of the state. It may even cede the property of them to him. But this cession of the use or property requires an express act of the proprietor, which is the nation. It is difficult to found it on a tacit consent, because fear too often hinders the subjects from protesting against the unjust encroachments of the sovereign.
§239. or allow him the domain, and reserve to itself the use of them.
The people may even allow the superior the domain of the things they possess in common, and reserve to themselves the <111> use of them in the whole or in part. Thus the domain of a river, for instance, may be ceded to the prince, while the people reserve to themselves the use of it for navigation, fishing, the watering of cattle, &c. They may also allow the prince the sole right of fishing, &c. in that river. In a word, the people may cede to the superior whatever right they please over the common possessions of the nation; but all those particular rights do not naturally and of themselves flow from the sovereignty.
If the income of the public property, or of the domain, is not sufficient for the public wants, the state supplies the deficiency by taxes. These ought to be regulated in such a manner, that all the citizens may pay their quota in proportion to their abilities, and the advantages they reap from the society. All the members of civil society being equally obliged to contribute, according to their abilities, to its advantage and safety,—they cannot refuse to furnish the subsidies necessary to its preservation, when they are demanded by lawful authority.
§241. The nation may reserve to itself the right of imposing them.
Many nations have been unwilling to commit to the prince a trust of so delicate a nature, or to grant him a power that he may so easily abuse. In establishing a domain for the support of the sovereign and the ordinary expenses of the state, they have reserved to themselves the right of providing, by themselves or by their representatives, for extraordinary wants, in imposing taxes payable by all the inhabitants. In England, the king lays the necessities of the state before the parliament; that body, composed of the representatives of the nation, deliberates, and, with the concurrence of the king, determines the sum to be raised, and the manner of raising it. And of the use the king makes of the money thus raised, that same body oblige him to render them an account.
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