第 26 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  dethroned monarch merely in order not to leave the crime committed
  by the people unavenged; or to do away with it as a scandal to all the
  states; and whether they are therefore justified and called upon to
  restore by force to another state a formerly existing constitution
  that has been removed by a revolution。 The discussion of this
  question; however; does not belong to this department of public right;
  but to the following section; concerning the right of nations。
  B。 Land Rights。 Secular and Church Lands; Rights of Taxation;
  Finance; Police; Inspection。
  Is the sovereign; viewed as embodying the legislative power; to be
  regarded as the supreme proprietor of the soil; or only as the highest
  ruler of the people by the laws? As the soil is the supreme
  condition under which it is alone possible to have external things
  as one's own; its possible possession and use constitute the first
  acquirable basis of external right。 Hence it is that all such rights
  must be derived from the sovereign as overlord and paramount
  superior of the soil; or; as it may be better put; as the supreme
  proprietor of the land (dominus territorii)。 The people; as forming
  the mass of the subjects; belong to the sovereign as a people; not
  in the sense of his being their proprietor in the way of real right;
  but as their supreme commander or chief in the way of personal
  right。 This supreme proprietorship; however; is only an idea of the
  civil constitution; objectified to represent; in accordance with
  juridical conceptions; the necessary union of the private property
  of all the people under a public universal possessor。 The relation
  is so represented in order that it may form a basis for the
  determination of particular rights in property。 It does not proceed;
  therefore; upon the principle of mere aggregation; which advances
  empirically from the parts to the whole; but from the necessary formal
  principle of a division of the soil according to conceptions of right。
  In accordance with this principle; the supreme universal proprietor
  cannot have any private property in any part of the soil; for
  otherwise he would make himself a private person。 Private property
  in the soil belongs only to the people; taken distributively and not
  collectively; from which condition; however; a nomadic people must
  be excepted as having no private property at all in the soil。 The
  supreme proprietor accordingly ought not to hold private estates;
  either for private use or for the support of the court。 For; as it
  would depend upon his own pleasure how far these should extend; the
  state would be in danger of seeing all property in the land taken into
  the hands of the government; and all the subjects treated as
  bondsmen of the soil (glebae adscripti)。 As possessors only of what
  was the private property of another; they might thus be deprived of
  all freedom and regarded as serfs or slaves。 Of the supreme proprietor
  of the land; it may be said that he possesses nothing as his own;
  except himself; for if he possessed things in the state alongside of
  others; dispute and litigation would be possible with these others
  regarding those things; and there would be no independent judge to
  settle the cause。 But it may also be said that he possesses
  everything; for he has the supreme right of sovereignty over the whole
  people; to whom all external things severally (divisim) belong; and as
  such he assigns distributively to every one what is to be his。
  Hence there cannot be any corporation in the state; nor any class or
  order; that as proprietors can transmit the land for a sole
  exclusive use to the following generations for all time (ad
  infinitum); according to certain fixed statutes。 The state may annul
  and abrogate all such statutes at any time; only under the condition
  of indemnifying survivors for their interests。 The order of knights;
  constituting the nobility regarded as a mere rank or class of
  specially titled individuals; as well as the order of the clergy;
  called the church; are both subject to this relation。 They can never
  be entitled by any hereditary privileges with which they may be
  favoured; to acquire an absolute property in the soil transmissible to
  their successors。 They can only acquire the use of such property for
  the time being。 If public opinion has ceased; on account of other
  arrangements; to impel the state to protect itself from negligence
  in the national defence by appeal to the military honour of the
  knightly order; the estates granted on that condition may be recalled。
  And; in like manner; the church lands or spiritualities may be
  reclaimed by the state without scruple; if public opinion has ceased
  to impel the members of the state to maintain masses for the souls
  of the dead; prayers for the living; and a multitude of clergy; as
  means to protect themselves from eternal fire。 But in both cases;
  the condition of indemnifying existing interests must be observed。
  Those who in this connection fall under the movement of reform are not
  entitled to complain that their property is taken from them; for the
  foundation of their previous possession lay only in the opinion of the
  people; and it can be valid only so long as this opinion lasts。 As
  soon as this public opinion in favour of such institutions dies out;
  or is even extinguished in the judgement of those who have the
  greatest claim by their acknowledged merit to lead and represent it;
  the putative proprietorship in question must cease; as if by a
  public appeal made regarding it to the state (a rege male informato ad
  regem melius informandum)。
  On this primarily acquired supreme proprietorship in the land
  rests the right of the sovereign; as universal proprietor of the
  country; to assess the private proprietors of the soil; and to
  demand taxes; excise; and dues; or the performance of service to the
  state such as may be required in war。 But this is to be done so that
  it is actually the people that assess themselves; this being the
  only mode of proceeding according to laws of right。 This may be
  effected through the medium of the body of deputies who represent
  the people。 It is also permissible; in circumstances in which the
  state is in imminent danger; to proceed by a forced loan; as a right
  vested in the sovereign; although this may be a divergence from the
  existing law。
  Upon this principle is also founded the right of administering the
  national economy; including the finance and the police。 The police has
  specially to care for the public safety; convenience; and decency。
  As regards the last of these… the feeling or negative taste for public
  propriety… it is important that it be not deadened by such
  influences as begging; disorderly noises; offensive smells; public
  prostitution (Venus vulgivaga); or other offences against the moral
  sense; as it greatly facilitates the government in the task of
  regulating the life of the people by law。
  For the preservation of the state there further belongs to it a
  right of inspection (jus inspectionis); which entitles the public
  authority to see that no secret society; political or religious;
  exists among the people that can exert a prejudicial influence upon
  the public weal。 Accordingly; when it is required by the police; no
  such secret society may refuse to lay open its constitution。 But the
  visitation and search of private houses by the police can only be
  justified in a case of necessity; and in every particular instance; it
  must be authorized by a higher authority。
  C。 Relief of the Poor。 Foundling Hospitals。 The Church。
  The sovereign; as undertaker of the duty of the people; has the
  right to tax them for purposes essentially connected with their own
  preservation。 Such are; in particular; the relief of the poor;
  foundling asylums; and ecclesiastical establishments; otherwise
  designated charitable or pious foundations。
  1。 The people have in fact united themselves by their common will
  into a society; which has to be perpetually maintained; and for this
  purpose they have subjected themselves to the internal power of the
  state; in order to preserve the members of this society even when they
  are not able to support themselves。 By the fundamental principle of
  the state; the government is justified and entitled to compel those
  who are able; to furnish the means necessary to preserve those who are
  not themselves capable of providing for the most necessary wants of
  nature。 For the existence of persons with property in the state
  implies their submission under it for protection and the provision
  by the state of what is necessary for their existence; and accordingly
  the state founds a right upon an obligation on their part to
  contribute of their means for the preservation of their fellow
  citizens。 This may be carried out by taxing the property or the
  commercial industry of the citizens; or by establishing funds and
  drawing interest from them; not for the wants of the state