[107] CHAPTER VI.

Of acquisition derivative, by the act of man; and herein of the alienation of the Sovereignty, and of its accompaniments.

I. 1 THINGS become ours by derivative acquisition, by the act of man, or by the act of the law. That those who are the owners of things may transfer the ownership, either the whole or in part, is a part of Natural Law, when ownership has been introduced: for this is a part of the nature of plenary ownership. So Aristotle.

But two things are to be noticed; one, in the giver, one, in the receiver. In the giver an internal act of the will does not suffice; but there are required besides, either words or external acts; because a mere internal act, as we have said elsewhere, is not congruous to the nature of human society.

2 That tradition (delivery) also is required, is a matter of Civil Law; which, because it is received by many nations, is improperly called a part of Jus Gentium. So in other places we find the usage to be, that a declaration before the people or the magistrate, or a registry of the gift, is required; which it is quite certain are matters of the Civil Law.

An act of the will expressed by a sign must be understood to mean, of a rational will.

II. On^* the other side, in him to whom the thing is given, there is required, setting aside the Civil Law, by Natural Law, the will of accepting, with its sign: which will ordinarily follow the giving; but may precede it; as for instance if the receiver had asked that the thing be given, or granted: for such a will is supposed to continue to exist, except some change appear.

The other things which are required for the conveyance of a right and for acceptance of it, and how each maybe done, we shall treat of below, in the Chapter on Promises: for the right of alienating and of promising are the same, at least by Natural Law.

108 III. As other things may be alienated, so may Sovereign authority, by him who is really the owner, that is, as we have said above (I. iii. § xii.), by the king, if the authority is patrimonial: otherwise, by the people, but with the consent of the king; because he too has his right, as tenant for life, which is not to be taken away against his will. And so much of the whole sovereign authority.

IV. In the alienation of a part of the sovereignty, it is also required that the part which is to be alienated consent to the act. For those who unite to form a State, contract a certain perpetual and immortal society, in virtue of their being integrant parts of the same; whence it follows that these parts are not under the body in such a way as the parts of a natural body, which cannot live without the life of the body, and therefore may rightly be cut away for the utility of the body. The body of which we speak is of another kind, namely a voluntary combination. And thus its right over its parts is to be measured by its primeval will; and this must not be supposed to have been such that the body should have the right of cutting off parts from itself, and giving them into the authority of another.

V. And in like manner on the other hand, a part has not a right to withdraw from the body, except evidently it cannot otherwise preserve itself: for, as we have said, in every thing of human institution the case of extreme necessity is to be excepted, which reduces the matter to mere Natural Law. So Augustine. So in the oath of the Greeks, in which those who had submitted to the Persians were devoted to severe punishment, with the reservation, Except they had been plainly compelled.

VI. And hence it may be sufficiently understood, why, in this matter, the part has a greater right to protect itself than the body has over a part^*; because the part uses a right which it had before the society was formed, and the body does not. Nor must any one say to me that the sovereignty resides in the body as an attribute in its subject, and therefore may be alienated by it as ownership may. For it resides in the body as in an adequate subject, not divisible into several bodies, as the soul or life resides in perfect bodies. But the necessity which reduces the thing to Natural Law cannot have place with regard to the body: for in Natural Law, some things are comprehended, as consuming a thing by eating, and retaining possession of a thing, which are natural operations; but not alienation, which is introduced by the act of man, and takes its measure from that.

VII. But sovereignty over a locality, that is, a part of the territory, say an uninhabited or deserted part, may, so far as I see, be alienated by a free people, or by the king with the consent of the people. For a part of the people, because it has free will, has also the right of 109refusing consent; but the territory, both the whole and its parts, are common to the people, pro indiviso, as a whole, and therefore subject to its will. But if a people cannot alienate the sovereignty of a part of the people, as we have said, much less can a king, though having full sovereignty, but not in a full manner, according to the distinction explained above.

VIII. Wherefore we cannot agree with jurists who, to the rule of not alienating the parts of the empire, add two exceptions, public utility, and necessity; except in this sense, that when the common utility of the body and of the part is the same, the consent both of the people and of the part may seem, even by a silence of no long time, to be given; and more easily still, if necessity appear. But when the will, either of the body or of a part, is manifestly on the contrary side, nothing ought to be understood as done, except, as we have said, when a part is compelled to secede from the body.

IX. Under alienation is rightly comprehended also infeudation, giving the kingdom as a fief to a superior, with the power of taking possession of it if the holder commit felony, or if his family fail^*. And hence we see that by most peoples, infeudations, as well as alienations, are held void when made by the kings without consulting the people. The consent of the people is understood to be given, whether it meet as a whole, which was formerly the usage among the Germans and Gauls, or by certain representatives of the integrant parts, invested with sufficient powers. For what we do by others we do ourselves. Nor can a part of the empire be oppignerated or put in pawn, except with similar consent; not only because oppigneration is commonly followed by alienation, but also, because the king is bound to the people to exercise the sovereign authority himself; and the people is bound to its parts to preserve this exercise in its integrity; for which purpose the members of the civil society came together.

X. To concede subordinate civil functions to persons, even with the right of hereditary succession, is what a people may do; since such concessions do not trench upon the integrity of the body politic and the sovereignty. But the king cannot do this without consulting the people, if we confine ourselves within the limits of Natural Law: for a temporary right, such as that of an elective or hereditary king, can only have temporary effects. But this right may be given to kings, not only by express consent, but by tacit assent introduced by usage, such as we now see commonly prevail. And so we perpetually read in history of the Median and Persian kings giving towns or provinces as possessions to be held for ever.

XI. The patrimony of a people, the produce of which is destined to support the burthens of the republic or of the royal dignity, may not be alienated by kings, neither in the whole nor in part. For in this too they have only a life interest. Nor do I admit the exception, If it 110be a thing of small amount; for of what is not mine, I may not alienate even a small part. But in things of small amount, the consent of the people may be presumed from its knowledge and silence, rather than in great matters. In which sense we may also apply what we have said above on the subject of alienating the parts of the sovereignty, to the case of the public patrimony; and the more, inasmuch as a matter of smaller amount is here involved: for the patrimony is constituted [not on its own account but] for the sake of the State.

XII. But many persons run into error by confounding the annual income of the patrimony with the patrimony itself. Thus the right to alluvial accession generally belongs to the patrimony; the things alluvially added are part of income; the right of receiving the taxes is in the patrimony; the annual produce of the taxes is income; the right of confiscation is in the patrimony; the property confiscated is income.

XIII. But the parts of the patrimony may be oppignerated, for cause arising, by kings who have plenary sovereignty; that is who have the right, for cause arising, of imposing new taxes. As the people is bound to pay taxes imposed for good cause, so is it to loose a thing pawned for good cause: for such loosing of a thing pawned is a sort of tax. And the patrimony of the people is [in this case] pledged to the king for the debts of the people. And I may oppignerate things pledged to me.

What we have hitherto said holds, except there be a law, besides the general condition of sovereignty, either enlarging or contracting the authority of the people or of the king.

XIV. 1 Also we must observe that when we speak of alienation, we include, in that class of processes, testamentary dispositions. For though a testament, like other acts, may assume a certain form by the Civil Law; yet its substance has a close affinity with ownership, and thus, is under Natural Law. For I may alienate my possession, not only simply, but also under condition; not only irrevocably, but revocably, and even retaining in the mean time possession and the fullest power of enjoying it. But alienation under condition, namely the condition of my death, and revocable before that event, while I retain possession and enjoyment in the mean time, is a Testament. So Plutarch, speaking of Solon’s granting the Athenians permission to make a will, adds, in order that every one might have full ownership over his own property. So Quintillan. So Abraham if he had died without children, would have left his property to Eliezer. Gen. xv. 2.

2 The law that in some places strangers are not allowed to make Wills, is not a part of Jus gentium, but of the peculiar law of such States; and if I am not mistaken, proceeding from that period when strangers were looked upon as enemies; and therefore it has deservedly fallen into disuse among the most civilized nations.