26.15. 15. That we should not regulate by the Principles of political Law
those Things which depend on the Principles of civil Law.
As men have
given up their natural independence to live under political laws, they
have given up the natural community of goods to live under civil laws.
By the first, they acquired liberty; by the second, property. We
should not decide by the laws of liberty, which, as we have already
said, is only the government of the community, what ought to be decided
by the laws concerning property. It is a paralogism to say that the good
of the individual should give way to that of the public; this can never
take place, except when the government of the community, or, in other
words, the liberty of the subject is concerned; this does not affect
such cases as relate to private property, because the public good
consists in every one's having his property, which was given him by the
civil laws, invariably preserved.
Cicero maintains that the Agrarian laws were unjust; because the
community was established with no other view than that every one might
be able to preserve his property.
Let us, therefore, lay down a certain maxim, that whenever the
public good happens to be the matter in question, it is not for the
advantage of the public to deprive an individual of his property, or
even to retrench the least part of it by a law, or a political
regulation. In this case we should follow the rigour of the civil law,
which is the Palladium of property.
Thus when the public has occasion for the estate of an individual,
it ought never to act by the rigour of political law; it is here that
the civil law ought to triumph, which, with the eyes of a mother,
regards every individual as the whole community.
If the political magistrate would erect a public edifice, or make a
new road, he must indemnify those who are injured by it; the public is
in this respect like an individual who treats with an individual. It is
fully enough that it can oblige a citizen to sell his inheritance, and
that it can strip him of this great privilege which he holds from the
civil law, the not being forced to alienate his possessions.
After the nations which subverted the Roman empire had abused their
very conquests, the spirit of liberty called them back to that of
equity. They exercised the most barbarous laws with moderation: and if
any one should doubt the truth of this, he need only read Beaumanoir's
admirable work on jurisprudence, written in the twelfth century.
They mended the highways in his time as we do at present. He says,
that when a highway could not be repaired, they made a new one as near
the old as possible; but indemnified the proprietors at the expense of
those who reaped any advantage from the road.
[42]
They determined at
that time by the civil law; in our days, we determine by the law of
politics.
Footnotes
[42]
"The lord appointed collectors to receive the toll from the
peasant, the gentlemen were obliged to contribute by the count, and the
clergy to the bishop." — Beaumanoir, chap. 22, sections 13, 17.
