August 21, 2019

Of Public, Common, And Private Property

Edition Used:
The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and
Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature
of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and
Richard Whitmore (Indianapolis: Liberty Fund, 2008).
Author: Emer de Vattel
Editor: Béla Kapossy
Editor: Richard Whitmore

Chapter XX, ppgs 141, 142

Besides the eminent domain, the sovereignty gives a right of another nature over all public, common, and private property,—that is, the empire, or the right of command in all places of the country belonging to the nation. The supreme power extends to every thing that passes in the state, wherever it is transacted; and consequently the sovereign commands in all public places, on rivers, on highways, in deserts, &c. Every thing that happens there is subject to his authority.

In virtue of the same authority, the sovereign may make laws to regulate the manner in which common property is to be used,—as well the property of the nation at large, as that of distinct bodies or corporations. He cannot, indeed, take away their right from those who have a share in that property: but the care he ought to take of the public repose, and of the common advantage of the citizens, gives him doubtless a right to establish laws tending to this end, and consequently to regulate the manner in which things possessed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the state to prevent, and against which the prince is obliged to take just measures. Thus the sovereign may establish wise laws with respect to hunting and fishing,—forbid them in the seasons of propagation,—prohibit the use of certain nets, and of every destructive method, &c. But as it is only in the character of the common father, governor, and guardian of his people, that the sovereign has a right to make those laws, he ought never to lose sight of the ends which he is called upon to accomplish by enacting them: and if, upon those subjects, he makes any regulations with any other view than that of the public welfare, he abuses his power.

A corporation, as well as every other proprietor, has a right to alienate and mortgage its property: but the present members ought never to lose sight of the destination of that joint property, nor dispose of it otherwise than for the advantage of the body, or in cases of necessity. If they alienate it with any other view, they abuse their power, and transgress against the duty they owe to their own corporation and their posterity; and the prince, in quality of common father, has a right to oppose the measure. Besides, the interest of the state requires that the property of corporations be not squandered away;—which gives the prince, intrusted with the care of watching over the public safety, a new right to prevent the alienation of such property. It is then very proper to ordain in a state, that the alienation of the property of corporations should be invalid, without the consent of the superior powers. And indeed the civil law, in this respect, gives to corporations the rights of minors. But this is strictly no more than a civil law; and the opinion of those who make the law of nature alone a sufficient authority to take from a corporation the power of alienating their property without the consent of the sovereign, appears to me to be void of foundation, and contrary to the notion of property. A corporation, it is true, may have received property either from their predecessors, or from any other persons, with a clause that disables them from alienating it: but in this case they have only the perpetual use of it, not the entire andfree property. If any of their property was solely given for the preservation of the body, it is evident that the corporation has not a right to alienate it, except in a case of extreme necessity:—and whatever property they may have received from the sovereign, is presumed to be of that nature.

All the members of a corporation have an equal right to the use of its common property. But, respecting the manner of enjoying it, the body of the corporation may make such regulations as they think proper, provided that those regulations be not inconsistent with that equality which ought to be preserved in a communion of property. Thus a corporation may determine the use of a common forest or pasture, either allowing it to all the members according to their wants, or allotting to each an equal share; but they have not a right to exclude any one of the number, or to make a distinction to his disadvantage by assigning him a less share than that of the others.

All the members of a body having an equal right to its common property, each individual ought so to manage in taking advantage of it, as not in any wise to injure the common use. According to this rule, an individual is not permitted to construct upon any river that is public property, any work capable of rendering it less convenient for the use of every one else, as erecting mills, making a trench to turn the water upon his own lands, &c. If he attempts it, he arrogates to himself a private right, derogatory to the common right of the public.