Montesquieu
 

XXVI.15 That one must not determine by the principles of political law things that depend on the principles of civil law

As men have renoun­ced their natu­ral inde­pen­dence to live under poli­ti­cal laws, they have renoun­ced the natu­ral com­mu­nity of pro­perty to live under civil laws.

By these first laws they acquire liberty ; by the second, pro­perty. We must not decide by the laws of liberty, which, as we have said, is only the domain of the com­mu­nity, what should be deci­ded only by the laws that relate to pro­perty. It is a para­lo­gism to say that the pri­vate good must yield to the public good : that applies only in cases having to do with the domain of the com­mu­nity, which is to say the liberty of the citi­zen ; it does not apply in those per­tai­ning to the pro­perty of goods, because the public good is always that each per­son without excep­tion pre­serve the pro­perty which the civil laws give him.

Cicero main­tai­ned that agra­rian laws were dama­ging because the com­mu­nity was esta­bli­shed only so that every per­son would pre­serve his pro­perty.

Let us the­re­fore posit as maxim that where the public good is concer­ned, the public good is never to deprive an indi­vi­dual of his pro­perty, or even to take the least bit of it by law or poli­ti­cal sta­tute. In this case, the civil law, which is the gua­ran­tor of pro­perty, must be strictly fol­lo­wed.

Thus, when the public requi­res the land of an indi­vi­dual, it must never act by the rigor of the poli­ti­cal law, but it is there that civil law must pre­vail, which, with a mother’s1 eyes, looks at each indi­vi­dual even the same as the whole com­mu­nity.

If the poli­ti­cal magis­trate wants to cons­truct some public edi­fice or some new road, he must indem­nify ; the public is in this res­pect like an indi­vi­dual dea­ling with ano­ther indi­vi­dual. It is quite enough that he can oblige a citi­zen to sell him his inhe­ri­tance, and that he depri­ves him of the great pri­vi­lege which he holds by vir­tue of civil law of not being for­ced to give up his pro­perty.

After the peo­ples who des­troyed the Romans had abu­sed their own conquests, the spi­rit of liberty recal­led them to that of equity ; they exer­ci­sed the most bar­ba­ric rights with mode­ra­tion ; and if there were any doubt, one would only need to read the admi­ra­ble work of Beaumanoir, who wrote on juris­pru­dence in the twelfth cen­tury.2

In his day they were repai­ring the high­ways, as we do today. He says that when a high­way could not be repai­red, ano­ther was cons­truc­ted, as close to the old one as pos­si­ble ; but that the lan­dow­ners were com­pen­sa­ted at the expense of those who deri­ved some bene­fit from the road.3 At that time the deci­sion was based on civil law ; in our time we have deci­ded by poli­ti­cal law.

[A mother’s, because law (loi) is feminine in French.]

[Philippe de Beaumanoir, Coutumes de Beauvaisis, 13th century.]

The lord named collectors to raise the toll from the peasants ; gentlemen were obliged by the count to contribute, the man of the Church by the bishop (Beaumanoir, ch. xxii).