Abstract and Keywords
The Epilogue discusses the efforts of a select group of legislator-jurists in the early 1800s to draft a Civil Code for France. Chosen by Napoleon from among the leading property reformers of the revolutionary decade, they drafted a lasting document—the Napoleonic Code—that incarnated the Great Demarcation between property and power the revolutionary transformation of property had sought to realize. These men were experienced jurists who had already risen to prominence before 1789 and were thus deeply versed in the Old Regime debates over the proper constitutional relationship between property and power. Recognizing the decisive role played by these men and the specific Old Regime legal culture that informed their actions, this section concludes with some thoughts on the place of influential, individual agents on the course of history.
To the citizen property, to the sovereign empire
—Jean-Etienne-Marie Portalis, 4 Ventôse XI/23 February 1803
It took many, many decades to realize in practice—and then only imperfectly—the Great Demarcation envisioned on the Night of August 4th. It would make for tedious reading indeed to follow this process to its bitter end, to the redemption of the last ground rent and engagement. Instead, this study concludes by examining the relationship between property and power as articulated in what many scholars take as the crowning achievement in the history of property in France—the Civil Code. Widely considered to be Napoleon’s signal achievement, the Code (according to its makers) enshrined the fundamental principles of the French Revolution. Many commentators have agreed with them, but in recent decades a growing number have detected conservatism, backwardness, and even cynicism in the Code’s provisions. Such critics have underlined some of its characteristics—the reinforcement of paternal authority, the disempowerment of women and children, and a general obsession with the absolute rights of property-holders—which fit uncomfortably with a certain vision of revolution.1 But if assessed in relation to August 4th, the Code veritably breathed the principles pronounced on that Night. Those principles—the disentanglement of property and power and full property-ownership—pervade its articles.
This was no accident, for these fundamental aims were very much on the minds of its makers. Speaking of its approach to the issue of property, Treilhard promised that the Code presented “no vestige of the unsettled dispositions of feudal anarchy.” It “ended the privileges of land just as much as those of birth … that is true equality.”2 As for the relationship between property and power, the Code confirmed their separation. “Property belongs to the citizen, empire to the sovereign,” proclaimed Portalis. “Empire, which is the sovereign’s share, contains no idea of domain … it consists solely in the power to govern.”3 Indeed, the very idea of a civil code reflected and reinforced the distinction made in 1789 between a public realm of power and a private realm of property. “The words civil (p.209) law and private law are today synonyms,” wrote the Council of State’s secretary, Locré. “The Napoleonic Code is itself proof of it; all of its dispositions concern only particular interests.”4 The Code, Locré suggests, did not just consolidate the revolutionary remaking of property and power. It was itself made possible by their demarcation.
From the perspective of the transformations this book has explored, the makers of the Code were faithful to the principles of 1789. But, like their legislative predecessors, their attempts to translate those principles into workable law did not always go smoothly. At several points in their initial draft of the Code, they fell into the old confusion between property and power. One example comes from their treatment of the “different manners in which one acquires property.” For reasons that are unclear, they resurrected a patriarchal conception of property rights by listing “paternal power” as the first way property could be acquired. The Paris appeals court, to which the draft was sent for comment, attacked this jarring provision.5 It was omitted from the final version. The challenge of guaranteeing the independence of individual property from the state also proved daunting. The drafters realized that, in practice, collective needs sometimes had to trump the inviolability of individual property. To balance the rights of the property-owner with the needs of the polity, they were forced to define property in a way that many commentators have found unsatisfying, even self-contradictory. Property, stated article 544, was “the right to use and dispose of things in the most absolute manner,” but, it went on, that right was only absolute to the extent that the proprietor did “not use it in a way prohibited by laws or regulations.”6 This open-ended limitation of property rights has led one thoughtful but mistaken commentator to conclude that the Code was neither “individualistic” nor “modern,” and that its reactionary makers wanted to preserve seigneurial property relations by renaming them.7 This is going too far. Rather than interpret the Code’s false steps and internal contradictions as evidence of bad faith, they should be seen as the byproducts of the makers’ struggle with some of the same thorny questions—how to deal with the remnants of divided domain and where to trace the line between public and private property—that had bedeviled revolutionary legislators before them. By exploring the Code makers’ efforts to resolve these issues, it becomes clear that they, like their predecessors, were consciously trying to realize in practice the principles crafted by the early modern jurists and proclaimed as the basis of the transformed polity by the revolutionaries on the Night of August 4th. In their attempts to do so, the makers of the Code would encounter the same problems of unifying divided domain and ensuring the demarcation between property and power.
In his famous Preliminary Discourse introducing the first draft of the Code to France, Jean-Etienne-Marie Portalis made this explicit. He began by insisting on the Code’s revolutionary pedigree. It “maintained the salutary reforms (p.210) enacted since the Revolution.” Specifically, it abolished not only formal social distinctions but also the hierarchies of property entwined with those politically determined social categories.
In the Old Regime, the distinction of privileged and non-privileged persons, of nobles and non-nobles, brought in its wake a crowd of property distinctions that have disappeared and cannot be revived. One might say that things were classed like persons. There were feudal properties and non-feudal, servile lands and free. All that exists no more.
But in the very same breath, Portalis admitted that this was just an ideal. Truly independent property was impossible to attain in a state of society. The “proximity of men” and their lands meant some degree of interdependence, and this would inevitably generate friction. Special laws on “urban and rural servitudes” (laws regulating the relations of real estate parcels to each other) were “indispensable.”8 Eliminating all traces of hierarchy and making all properties perfectly independent was thus impossible. Nor was it desirable in every circumstance. According to Portalis, the Revolution “had gone too far when, under pretext of erasing the smallest traces of feudalism, it had proscribed emphyteutic leases and perpetual ground rents.” But rather than include a “particular and most complicated legislation” on these sorts of contracts in the Code, he announced, the drafting commission left the question of their reestablishment to the government’s discretion.9
Before being submitted to the legislatures for approval, the draft of the Code was sent to the appellate courts of France for comment. Independently from one another, these courts zeroed in on the same set of articles—those related to proprietary independence and equality—at the heart of the revolutionary transformation of the polity. Portalis’s ambiguous statement on ground rents was of particular concern. Some courts strongly supported their reestablishment and complained that an article to this effect should be placed in the Code.10 The appellate court of Caen was insistent.
We do not see why this contract, so useful and frequent, should be omitted from our code. Could it be because it has been assimilated to a feudal rent? Such an error could only gain credit at a time [the Terror] when all ideas were clouded.
The reestablishment of ground rents was thus “indispensable.” But if it proved politically impossible to do so, the court suggested, perhaps it would be possible to stipulate that the rachat of such rents could only begin after a waiting period of twenty or thirty years.11
(p.211) Other courts recoiled at the prospective return of ground rents. The most outspoken of these, the appeals court of Lyon, feared that Portalis’s gesture in that direction presaged the return of feudalism itself. Going beyond the specific issue of ground rents, the Lyonnais magistrates issued a full-blown critique of the Code’s suspicious silence on the absolute independence of individual properties.12 They began by citing the law of 28 September 1791, which proclaimed that “the entire territory of France is free, just as the persons who inhabit it.” This article, the magistrates lectured, “formally expressed the unanimous vow of the French nation for the fullness of property.” But the draft code contained “not a single word about the liberty of the territory,” nor any “precaution against the reestablishment of feudal servitudes.” To remedy this, the court proposed a series of additional articles expressly prohibiting personal servitudes, property mutation fees, exclusive hunting rights, and other prerogatives formerly enjoyed by feudal lords. In essence, the Lyonnais magistrates wanted the Code to reiterate textually the many abolitions and prohibitions of August 4th.
When making their revisions, the Code’s authors did not go this far. But they appended a new article, article 543, that reiterated in a subtle yet comprehensive fashion the abolition of divided domain in all of its forms. It stated that one could have “either a right of property over, or a simple right of use of, or the right to collect rent from” something. The terms “either … or … or” were inserted by the drafters to ensure that these various kinds of rights were exclusive of one another. One could not simultaneously hold two or three of these rights over something. This was intended to prevent a person from having both a property right in a thing and the right to collect dues from it—as was the case of lords who held the direct domain over a vassal’s land while also levying various charges over it. By this elegant and entirely novel formulation, the makers of the Code had found a way to reaffirm the abolition of feudalism and divided domain without pronouncing the name of either, a kind of linguistic effacement even the members of the National Convention had been unable to achieve. But there could be no mistaking the drafters’ intention. Treilhard spelled out its radical implications in a speech to the legislature. “The last article  … abolishes even the slightest trace of that domain of superiority formerly known by the names of feudal and censuel seigneurie.”13 Théophile Berlier reassured the legislature on this score the following year, pronouncing that fiefs had been “abolished forever,” as did Jean Albisson, who explicitly referenced the Night of August 4th.14 Despite the fears of the appellate court of Lyon, it is certain that the makers of the Code had no second thoughts about the abolition of feudalism.
There still remained the question of perpetual ground rents. The Council of State seems to have been reluctant to deal with the issue, perhaps because opinions were sharply divided. These differences finally emerged into the open on 15 Ventôse XII/6 March 1804, after almost all the rest of the Code had been (p.212) definitively drafted and approved by the legislature. Realizing that an explicit statement on ground rents was necessary, the Council finally resigned itself on that day to what its members surely knew would be a heated debate. Its membership was almost evenly divided, with Cambacérès, Jacques de Maleville, Jean Pelet, and Félix-Julien-Jean Bigot de Préamenu in favor of their reestablishment, and Tronchet, Jacques Defermon, Jean Bérenger, Emmanuel Crétet, and Regnaud Saint-Jean d’Angéley opposed. Portalis, who remained almost entirely silent, maneuvered—as he had done on prior occasions—to straddle both positions, trying not to offend his colleagues while at the same time attending closely to the way Napoleon (who was also in attendance) seemed to be leaning.
The session started with discussion of the economic ramifications of reviving ground rents. Those in favor rehashed arguments that had already been made in 1789, notably by Sieyès.15 According to them, ground rents were the economic engine of the French countryside and the historic reason for its admirable development over the centuries. According to Maleville, they had “repopulated Gaul, devastated by barbarians and civil war” (57). Without them, France would still be covered by primeval forests. And they could still increase the amount of productive land. This is because property-holders unable to cultivate their lands personally would concede them under ground rents to peasant families who would clear them and make them fertile. Without ground rents, such property-owners would instead let their lands lie fallow, decreasing the amount of cultivated—and taxable—land in the country. They thus stimulated agriculture, increased tax revenue, and opened property-ownership to the poor, enhancing the stability of their families and of society as a whole. It would be better, Maleville admitted, if all properties could be held free and clear, but tolerating ground rents was clearly preferable to letting good land lie fallow.
Against this, the opponents of ground rents argued that they placed a crushing burden on the rural economy.16 Far from encouraging poor peasants by the prospect of property-ownership, ground rents discouraged them by absorbing the fruits of their labor. The real way to spur agricultural production, Defermon argued, had been demonstrated by the Revolution—the “suppression of feudal rents and the possibility of redeeming ground rents” (61). Ground rents not only stifled production on individual fields but also dampened the rural land market in general. By “imprinting a perpetual stain” on properties, asserted Tronchet, ground rents “hindered the circulation of real estate; few people would consent to subject themselves to a charge from which they could never be freed” (57). In his only intervention in the debate, Portalis seemed at first to support ground rents, but ended up condemning them. He began by agreeing that they “multiplied the [number of] cultivators by making it possible for those without pecuniary means to make acquisitions.” As such, they were appreciated, not resented as an unjust burden, by their debtors. But over time, a rent’s “origin was forgotten,” (p.213) and it inevitably came to be seen as “a baseless servitude” (69). Despite their initial economic utility, ground rents inevitably evolved into sources of social tension and political liability.
The debate over the economics of ground rents thus raised political and constitutional issues that soon came to dominate the discussion. For the supporters of ground rents, the decisive consideration was to preserve the freedom of the proprietor to do as he liked with his property. For their opponents, what mattered most was the need to preserve the independence and equality of properties. Cambacérès spoke eloquently in favor of the former position. He began by noting that the sections of the Civil Code that had already been approved “authorized the most unlimited use, even abuse, of the right of property.” Without violating this sacred principle, how could it be possible to prohibit a property-owner from alienating his property under a ground rent if neither “moeurs [moral norms] nor the interest of the state” were hurt by it (62)? Ground rents were not “essentially feudal” (56). So why had the Constituent Assembly abolished them? In Cambacérès’s view, it had done so to “attack the privileged class” by going after “the property from which that class drew its force” while at the same time “attaching to itself the Third Estate.” The Assembly’s abolition of ground rents had “not been based on the principles of legislation,” but had been motivated entirely by “politics” and “circumstance” (63). Many other revolutionary laws of circumstance, such as the institution of equal inheritance, had been revoked; there was no reason not to revoke the similarly circumstantial and equally ill-considered abolition of ground rents.
The opponents of ground rents argued that this form of contract created inequalities incompatible with liberty and equality. They were, according to Crétet, “a powerful means of holding [peasant] proprietors in [a state of] dependence.” History had shown that ground rents always created “enormous inequalities.” If they were reestablished, “the nation would be split into two classes.” On one side would be those who “would enjoy the products of the earth without having to work.” On the other would be “serfs, condemned to toil at the harshest labor just to pay their taxes and ground rent, without being able to obtain even basic subsistence for their families” (64‒65). The revival of ground rents, chimed in Regnaud, would thus “create a new sort of supremacy in the village.” Even if they did not “reestablish the diverse orders,” they would nonetheless form “different classes of citizens” and the “drawbacks of feudalism” would return. Although a “purely civil” measure, the revival of ground rents would produce “great political effects” (68‒69).
The supporters of the rents tried to counter these arguments by pointing out an awkward fact that probably no one on the Council wanted to hear, namely that the division of French society along class lines “already existed” even without ground rents (65). But it did not matter. At this point in the discussion, (p.214) Napoleon, who had not expressed the slightest interest in either the economic or constitutional implications of ground rents, redirected the conversation (66‒67). What was “important above all else,” he stated, was to determine “whether it was in the interest of the state” to reestablish ground rents. In his view, the matter was crystal clear. It was inconceivable that it could be beneficial to the state to set up a struggle between the tax collector and the owner of the ground rent over the peasant’s surplus production. Moreover, as Bérenger had pointed out, properties burdened with ground rents generated less revenue in droits d’enregistrement because they changed hands less frequently and sold more cheaply than free properties. In all these ways, Napoleon concluded, it was the state that suffered most from ground rents. Under feudalism, when only a handful of great lords owned the land, they had been useful, for they had “softened the fate of the people” by giving them a property right (albeit subordinate) in their parcels. But with the end of feudalism, “this consideration had lost it force.”
Ground rents, like all other rents, should thus be redeemable by their debtors. But, Napoleon continued, proprietors would not want to alienate their lands under redeemable ground rents if their debtors could reimburse the capital of the rent whenever they chose. The experience of the Thermidorean period had shown that, if allowed such an unlimited right of rachat, debtors would monitor fluctuations in inflation and the interest rate and wait until the former was high or the latter low to liberate themselves. Property-owners would foresee this and either leave their lands fallow or set their ground rents at prohibitively high rates to offset the risk of capital reimbursement in devalued currency. It was necessary, Napoleon concluded, to find a way of reconciling the legitimate interest of property-owners with the equally legitimate right of ground-rent debtors to effect a rachat. And he had a way. To square the circle, Napoleon proposed allowing proprietors who alienated their land under a ground rent to stipulate a period during which the rent would be irredeemable.17 This compromise appealed to the Council. “Everything has been reconciled,” exclaimed Pelet, with evident relief (67). Ground rents were thus declared essentially redeemable, albeit with the possibility of a thirty-year period in which redemption would be prohibited (76). The Council of State had remained faithful to the promise of the Night of August 4th by outlawing the perpetuity of rents—the source of divided domain—while at the same time making a pragmatic concession to the property-owning elite Napoleon wanted to attach to his rule.
The ambiguous hints about ground rents that Portalis had dropped in his Preliminary Discourse stoked the passions of the appeals courts and sparked debate within a divided Council of State. But the controversy over ground rents paled in comparison to that generated by the question of the relationship between individual property and the state. The first draft of the Civil Code contained a number of provisions which, in the view of the appeals courts, blurred (p.215) the line between property and power. One of these provisions (Book II, Title 1, Article 1) seemed to classify the different categories of property according to the political status of their possessor. Properties, it read, belonged “either to the nation as a corps, or to public establishments, or to communes, or to individuals.”18 Of particular concern to the courts was that this article seemed to establish a distinct type of property right specific to public institutions. Even more threatening were articles 23 and 24. These not only appeared to reiterate the special property rights of public establishments, but worse, seemed to grant the state an open-ended authority to take the property of individuals. The first article stated that “the nation, public establishments, and communes” were bound by laws of property “specific to them,” and that these distinct laws allowed them to “sell their properties and acquire new ones.” The following article was even more troubling to the magistrates because it spoke of the nation’s “right of recovering” properties it had alienated.19 Taken together, these provisions gave the courts the impression that the Code was opening the way for the return of special laws for specific institutions, the revival of propertied political corps, and domanial exactions reminiscent of the Old Regime. They reacted with horror.
Leading the way again was the appeals court of Lyon.20 It began with a sharp critique of the draft Code’s implication of different kinds of property rights for the nation, public establishments, communes, and individuals. “The properties of the nation, communes, and public establishments,” it asserted, “are governed by the same laws and the same forms as those of citizens.”21 Echoing these sentiments, the court of Paris focused particularly on the property rights the draft Code seemed to be affording public establishments. The various articles in question, it began, amounted to “a very formal recognition of a particular property right in public establishments.” This was shocking, for “the question of whether these establishments are capable or not of possessing real estate as property was treated in great breadth and depth by the Constituent Assembly” during the debate over ecclesiastical property. That the drafting committee would include provisions “absolutely contrary” to the Assembly’s decisions was astounding. That it had taken such a dramatic step without “even the slightest explanation in the Preliminary Discourse” was terrifying.22 What was the government up to?
In fact, the makers had no secret intention of reviving propertied political corps. They had just been sloppy and subsequently rushed to correct their error. In their revised version of the Code, they erased all notion that the political status of the possessor somehow determined the nature of a property by deleting from Article 1 all reference to the “nation,” “public establishments,” “communes,” and “individuals.” Revised and renumbered as 516 in the definitive draft of the Code, the article simply stated that “all properties are moveable [meubles] or immovable [immeubles].” This implied that all property possessed the same, essential character, no matter to whom it belonged. Although seemingly minor, (p.216) this change powerfully confirmed the Great Demarcation by establishing that property was defined by rules specific to itself, not by extraneous political factors. This, in short, confirmed the autonomy of the sphere of property. With this, the prospect of reviving proprietary corps vanished. Presenting the revised version of these articles to the legislature, Treilhard made it clear that they regarded only private, individual property, the “only type with which the Code is concerned.” Things susceptible of private property could be “in the possession” of the nation or communes, but this did not change what Portalis described the following day as “their essential character.”23
Of even more concern to the courts than the prospect of restoring special property rights to public establishments were the suggestions in the draft Code of a national domanial prerogative. While the former stirred memories of independent political corps, like the pre-1789 Church, the latter raised the specter of inquisitions, exactions, and extortions like those formerly conducted by the royal domain. The courts’ fears centered on articles 23 and 24, which spoke of the nation not only buying and selling property, but, worse, recovering properties it had previously alienated.
The appeals court at Lyon led the protest yet again.24 It began by criticizing the language of article 23—the one that spoke of the right of the nation, public establishments, and communes to buy and sell property. The article had to be replaced, it argued, because it involved those public instances too deeply in the realm of property, a realm that properly belonged to individuals. It proposed eliminating all reference to public establishments and replacing the existing formulation with the categorical statement that “the nation and communes can only acquire what is absolutely necessary and must sell everything that is not.” Property had no place in the political sphere, except under exceptional circumstances; ideally, it should remain the exclusive preserve of the society of individuals.25 Requiring that the state and communes alienate all but “absolutely necessary” properties amounted to a reaffirmation of the vision underlying the sale of biens nationaux, the vision of the Great Demarcation.
The court was even more troubled by article 24, which spoke of the nation’s right to “recover” properties it had formerly alienated. The existence of such a right of recovery had never even been hinted at in the revolutionary debates over the national domain. But it was disturbingly familiar, for it had been the fundamental principle governing the former royal domain, that of inalienability, and enshrined in the Edict of Moulins. Did the makers of the Code hope to go back to the era of engagements and domanial extortion? The appeals court of Lyon certainly hoped not and lashed out at the article in a blistering attack that deserves to be quoted at length. (p.217)
On seeing this article establish the principle that the nation has a right to recover its properties and rights, we bitterly recall the worry and expense, the harm and loss, even the ruin, that a great mass of citizens suffered in former times from inquisitions into domanial properties.
We ask ourselves what right the nation wants to reestablish or recover, over what properties it could have the right and intention to reclaim? …
The government’s greatest interest, its first duty, is to ensure the stability of the citizens’ properties. Their instability is a thousand times more dangerous, takes from the government a thousand times more revenue than it could possibly draw from the few properties it might recover. It is thus useful, even imperative, to suppress the end of this article and replace it with a disposition that assures that “the nation will never reclaim properties that it has alienated in proper legal form.”
The shape of the polity envisioned by the Lyonnais magistrates emerges clearly from this criticism. On one side should be the sovereign state, divested of its holdings but guaranteeing the property of persons, while on the other should be society, defined by inviolable, individual property-holding. The continuity with the Night of August 4th—and the sixteenth-century jurists whose dream of demarcation informed it—is clear.
The enlarged committee charged with assimilating the magistrates’ feedback and revising the original draft Code fundamentally rewrote the offending articles. There was no debate, no resistance to this within the committee. Louis-François-Antoine Goupil-Préfeln, the spokesman it chose to present the revised version to the legislature, portrayed it as an ironclad guarantee against future encroachment by the state upon an individual’s private property. Thanks to it, he boasted, people would for the first time be able to obtain permanent legal injunctions against state claims to their property. As a result, private property would enjoy security to a degree it had never known before.
If this maxim had been consecrated by the ancient French legislation, if legitimate proprietors had been able to use it to oppose those men known under the name of domanistes or feudistes—men whose sole aim was … to despoil families who had possessed peacefully for many centuries—how many costly lawsuits mounted before distant tribunals would not have ruined those who defended themselves fruitlessly?
The Revolution’s domanial reforms had “stopped these spoliations in their tracks.” But the new disposition of the Code, permitting proprietors to prescribe (p.218) against the nation in the same way they could against “particulars,” would make “future and current property-holders [even] more confident.”26
Speaking the same day, Portalis took great pains to reassure the legislators that he and his colleagues were utterly opposed to the notion of a proprietary state. When the “sovereign” levied taxes, it was not as a “superior and universal proprietor of the territory, but as supreme administrator of the public interest” that it did so. When it issued “civil laws to regulate the use of private property,” it did so not as “master, but solely as arbitrator, as regulator, to maintain good order and peace.” This had not always been the case. The “establishment of the feudal regime” had provoked a “strange revolution” through which “all ideas of the right of property were denatured … its true maxims obscured.” It was because of this feudal revolution that the line between power and property had become blurred, that princes began to “arrogate property rights over the lands of particulars.” But, he continued, the resulting confusion was never total. Neither in France nor anywhere else had “feudal lordship ever been seen as the necessary consequence of sovereignty.” Even sovereign princes were considered to have two distinct qualities: that of “superior in the order of fiefs” and that of “political magistrate in the common order.” The sixteenth-century jurists had clarified this distinction in theory, the Revolution had begun to carry out their vision in practice, and now the Code was enshrining the Great Demarcation permanently. Property was to be excluded forever from “the prerogatives of sovereign power.”
In its silences, the language of the definitive version of the Code virtually screamed this demarcation. Its makers completely expunged those earlier provisions that spoke of the nation’s right to acquire, sell, and recover property. Indeed, almost all references to the nation itself were deleted. When the drafters did mention the nation, it was to restrict its property rights. Thus, article 541 formally recognized the right of individuals to obtain injunctions against the state. And article 545 guaranteed that “no one can be forced to give up his property, except for the public utility and only after first receiving a just indemnity.” In general, the Code limited the kinds of properties that could become “dependencies of the public domain” to those things “that are not susceptible of private property” such as rivers and ports.27 The phrase “dependencies of the public domain” is significant because, like many other formulations in the Code, it is cast in such a way as to avoid the phrase “national property” or “property of the nation.” Terms like “belonging to the nation,” “in possession of the nation,” or even “properties that do not belong to particulars” appear instead. This was no accident. The Code gives the nation a limited ability to possess, but never the right to own.28 In contrast, the Code is full of references to “proprietors” and their “private property,” The import of this is clear: individuals had a fundamental right to property, while the state could only dispose of things in exceptional circumstances. From its language, to its provisions, to its essential nature as a civil (p.219) Code, this legal monument confirmed and reinforced the distinction between property and power, confining each to its respective realm.
This brief look at the relationship between property and power in the Civil Code illustrates the extent to which legal personnel and their culture informed the revolutionary transformation of the polity. Its principal drafters were prominent jurists who had established their reputations well before the Revolution. They had thrown themselves into public affairs in 1789, serving as deputies and members of the government. One important finding of this book is that a distinct group of jurists (Cambacérès, Merlin, Treilhard, Tronchet, and several others) were instrumental in engineering the transformation of property that would make the Great Demarcation a reality. Historians have long recognized the role of lawyers in shaping eighteenth-century political culture and also their preponderance in the revolutionary assemblies.29 But few scholars have considered how their professional culture helped define the Revolution’s aims and policies.30 The property reforms they enacted during the 1790s and enshrined by the Civil Code show the influence of sixteenth-century legal humanist thought. During the Restoration, the legal profession was proud of this filiation. Go back several centuries, the head of the Parisian bar urged his colleagues in 1829, “to the time when Bodin, Coquille, Loyseau, and Dumoulin were writing,” for “mines of gold” could be found there.31 Quietly, beneath the sturm und drang of the Revolution, the heirs of these early modern jurists steadily pursued their intellectual forebears’ vision of a demarcation between property and power. They ultimately succeeded in making it the basis of the post-revolutionary polity.
This vein of continuity suggests that the French Revolution had a more deliberate, programmatic character than recent historical approaches allow for. Ever since the waning of the Marxist interpretation in the 1970s, historians have not emphasized the purposefulness of the revolutionary movement. This is in stark contrast to the Marxist interpretation, for which 1789 stood as the moment when a self-aware social class deliberately overturned the existing state of affairs and established a new order to suit its economic interests. This understanding of the Revolution rested on two notions: that objective socioeconomic factors determined revolutionary political aspirations and that the revolutionaries knew what they were aiming for when they overthrew the Old Regime. The collapse of the Marxist interpretation threw into question both of these notions.
The major historiographical trends that emerged in the wake of revisionism have articulated very different responses to the question of the relationship between social factors and political action. The discursive approach denies the existence of objective social reality behind political action. Instead, political action is impelled and given form by the discourses which structure a society’s political culture. “Society” and the “social” are highly significant—but as discursive constructions which emerged (with fatal results for the old order) over the (p.220) course of the eighteenth-century.32 There is no objective social reality structuring action, only the internal logic of discourse itself.
Social historians have reacted against this position by focusing on instances where political actors, preferably from non-elite groups such as the peasantry or urban working class, inflected the course of revolutionary politics through their actions. To varying degrees, these historians acknowledge that “discourse” or “culture” mediated between the social realities that drove popular action and the forms and meanings that action assumed. But not infrequently, the role they allot to it is so secondary as to imply, like Marx did, a self-evident causal link between social reality and political action.
A third tendency, cultural history, has tried to bridge the gap between the two other approaches by showing how deep cultural shifts (which are increasingly being attributed to economic changes such as the rise of consumerism and the colonial economy) strained the political culture of the Old Regime to the breaking point and gave rise to new frames of meaning with radical political implications. The practitioners of cultural history recognize the importance of discourse, but they are equally concerned with the social forces that play upon and reshape it. It is the interaction between culture and society that produces political change.
In their very different ways, these approaches all provide new answers to the question of the relationship between the social and the political. But they share a common tendency to foreclose the possibility that the deputies self-consciously led the Revolution toward specific goals. The discursive approach leaves neither the revolutionaries nor anybody else with agency. Discourse structures their actions, discourse transforms occurrences into politically meaningful revolutionary events.33 Paradoxically, the social approach also diminishes the agency of the revolutionary deputies. So intent is it upon highlighting popular action that it reduces the role of the legislators to insignificance. Like firemen rushing from one blaze to the next, they veer from crisis to crisis. In this view, people drive revolutionary politics, but this reduces the Revolution itself to a series of emergencies with no guiding purpose.34 The cultural approach to the Revolution allows for both legislative and popular agency, but only within the cultural framework which defines the possibilities and meanings of action. Although individuals have choice and can act efficaciously, their choices and actions are constrained by the cultural grid within which they operate. Tectonic cultural shifts have already formed the channels through which revolutionary thought and action is compelled to flow.
Much can be said for and against each of these approaches. But none of them fits well with the story told in this book. The Great Demarcation has highlighted the importance of a compact group of lawyer-deputies who shared common social backgrounds, education, ideas, and aspirations. They seem to have been (p.221) in control of the concepts furnished by their specific historio-legal milieu and to have used them purposefully to achieve their ends. They were doing more than articulating discourse, reacting to popular upheaval, and navigating culture. They were pursuing a program. That program, the Great Demarcation, was embedded within the legitimating discourses of the Revolution, resonated with revolutionary political culture, and contended with crises of all sorts. But to recognize these facts explains neither the substance of lawyer-deputies’ overarching goal, nor the deliberate steps they took to realize it in practice.
Nothing better illustrates the clarity of their vision and the constancy with which they strove to attain it than their response to what was probably the most pressing and complex of all the contingencies faced by the Revolution—the debt. The national debt impinged on almost every aspect of political and social life during the Revolution. And in many ways it inhibited the revolutionary transformation of problematic properties. But at critical junctures, the revolutionaries shrugged off fiscal considerations in order to enact key constitutional reforms. Two striking instances of this were the decisions to abolish venal offices with full compensation for their owners (a commitment that added nearly a billion livres to the national debt) and to eliminate, rather than nationalize, the tithe (which, had it been treated like a feudal due and opened to rachat, would have easily provided for the reimbursement of those offices). Debt exerted a powerful influence, and that influence is at last being recognized by scholars.35 But imperious as it could be, the debt took second stage to the Revolution’s constitutional reforms. This is one of the reasons why the French Revolution was so radical and why contemporaries perceived it as such. When it mattered most, the revolutionaries pursued principle, even if that meant throwing pragmatism to the winds and bulling through contingencies. The issue of the debt—and the way the revolutionaries often set it aside in favor of their ideals—underlines the programmatic dimension of the Revolution.
There were many other revolutionary actors than Merlin and his like who were motivated by a conscious desire for change and pursued their aims with determination. Many of them were more visible and, in their moments of prominence, shone more brightly than the jurist-deputies. But most of them came to a bad end, and many of their aims remained unrealized—at least until 1848. Perhaps what helped Merlin and his kind to avoid the fate of Brissot, Danton, and Robespierre was that they were able to position themselves as technical experts above the fray. Whatever the reason for their survival and persistence, they were able to weather the storms of the Revolution and implement their program of demarcation. By recognizing that a core of revolutionary jurist-legislators successfully pursued a conscious vision of change with deep intellectual roots, we can restore the missing element of volition—and thus meaning—to historical understanding of the French Revolution. This perspective can help to explain (p.222) why 1789 was significant and why contemporaries saw it as such a momentous event. Understood as the Great Demarcation, the Revolution was the moment when Europeans began a deliberate effort to break linguistically, legally, and institutionally with what had been the essence of their constitutional order—the confusion of property and power.
The revolutionaries’ vision of a polity based on the separation of property and power was utopian. It not only sapped the conceptual foundation of the existing order, but also sought to make real what turned out to be an impossible distinction. The Great Demarcation has shown that the ideal of perfectly demarcated spheres of property and power proved stubbornly difficult to implement, not least because of the opposition it engendered. But the resistance of entrenched interests was eventually overcome. A more persistent—indeed, insurmountable—obstacle to the realization of the Great Demarcation was the inevitable friction of human interaction itself. The simple fact is that property-ownership (taken here in its broadest sense) conveys power over other people and their things. It could never be truly equal and absolutely independent. Yet, like all utopians, the revolutionaries attempted to realize the radical simplification of what existed—in their case, by trying to replace the interlocking webs of domination and dependence characteristic of early modern property relations with what the makers of the Code came to term “absolute” property. But despite their commitment to this ideal of hermetic property, they were forced to accept that, in the real world, properties, like the people who owned them, were entangled with other properties. And these entanglements were often hierarchical. Proprietary hierarchy could reemerge, they came to realize, in real-world situations, such as when water flowed from elevated terrain onto an adjacent land below (a case the makers of the Civil Code explicitly addressed) or when intellectual property is sold under a copyright (a case they did not consider). The history of property law since 1789 could be summed up as an ongoing attempt by jurists to construct new categories capable of comprehending the multiplicity of relationships generated by these entangled claims. Thus the proliferation of easements, servitudes, subsoil rights, condominium, and many others. Yet despite the messiness and complexity, the revolutionaries’ impossible demarcation between pure power, on the one side, and absolute property, on the other, became the standard by which both are judged.
(1.) For example, Suzanne Desan, The Family on Trial in Revolutionary France (Berkeley: University of California Press, 2004); and Jennifer Ngaire Heuer, The Family and the Nation: Gender and Citizenship in Revolutionary France, 1789‒1830 (Ithaca, NY: Cornell University Press, 2005).
(2) AP, series 2, 4:587.
(3) AP, series 2, 4:14. In a subsequent speech, Portalis stated that “empire” and “sovereignty” were synonyms. AP, series 2, 5:208.
(4.) Jean-Guillaume Locré, Esprit du Code Napoléon (Paris: Imprimerie impériale, 1807), 24.
(5.) For first draft of Code containing the offending expression “puissance paternelle,” see Pierre-Antoine Fenet, Recueil complet des travaux préparatoires du code civil (Paris: Videcoq, 1836), 2:123. For the critique of the Paris appellate court, see ibid., 5:211.
(6.) Article 544.
(7.) James Gordley, “Myths of the French Civil Code,” American Journal of Comparative Law 42, no. 3 (Summer 1994): 462. Gordley claims that neither the revolutionary abolition of feudalism nor the Code’s anti-feudal provisions had any “practical [i.e., economic] consequences” and challenges scholars to name them. This is easily done: the end of property mutation fees (the droit de lods), the abolition of the seigneurial right of first refusal (the droit de re traite), and the prohibition on entailments, to name a few.
(8.) Fenet, Recueil, 1:508–9. The Code ultimately included an entire section of servitudes.
(13) AP, series 2, 5:203.
(14) AP, series 2, 5:220 and 238.
(15.) Fenet, Recueil, vol. 11. Especially Maleville (57–59 and 64), but also Cambacérès (56), Pelet (60–61), and Bigot (66). Pages numbers in parentheses in text.
(17.) This was the fall-back position suggested by the appellate court of Caen.
(18.) Fenet, Recueil, 2:97.
(23.) Treilhard in AP, series 2, 5:203, and Portalis in AP, series 2, 5:206. The revised, definitive version of the Code expunged all reference to public establishments, thus implicitly denying their right to own property.
(24.) And again, Paris echoed the opinions of the Lyonnais magistrates. See Fenet, Recueil, 5:205–7.
(27.) Article 538.
(28.) This is significant when considered in the context of the principle, put succinctly by Portalis, that “property is a right, simple possession is just a fact.” AP, series 2, 5:209.
(29.) David A. Bell, Lawyers and Citizens: The Making of a Political Elite in Old Regime France (New York: Oxford University Press, 1994); Lenard R. Berlanstein, The Barristers of Toulouse in the Eighteenth Century (1740‒1793) (Baltimore, MD: Johns Hopkins University Press, 1975); Philip Dawson, Provincial Magistrates in Revolutionary Politics in France, 1789‒1795 (Cambridge, MA: Harvard University Press, 1972); and Michael P. Fitzsimmons, The Parisian Order of Barristers and the French Revolution (Cambridge, MA: Harvard University Press, 1987).
(30.) An exception is Donald R. Kelley, “Men of Law and the French Revolution,” in Politics, Ideology, and the Law in Early Modern Europe: Essays in Honor of J. H. M. Salmon, ed. Adrianna E. Bakos (Rochester, NY: University of Rochester Press, 1994), 127–46. Also helpful is Kelley’s Historians and the Law in Postrevolutionary France (Princeton, NJ: Princeton University Press, 1984), as well as Jean-Louis Halpérin, L’Impossible Code civil (Paris: Presses universitaires de France, 1992), which examines the unsuccessful attempts by Cambacérès to push through a civil code during the 1790s.
(31.) M. Dupin, ainé, Profession d’avocat (Paris: Alex-Gobelet, 1832), 1:6. Speech delivered on 1 December 1829.
(32.) Keith Michael Baker, “Enlightenment Idioms, Old Regime Discourses, and Revolutionary Improvisation,” in From Deficit to Deluge: The Origins of the French Revolution, ed. Thomas Kaiser and Dale Van Kley (Palo Alto, CA: Stanford University Press, 1994), 165–97; and Daniel Gordon, Citizens Without Sovereignty: Equality and Sociability in French Thought, 1670‒1789 (Princeton, NJ: Princeton University Press, 1994).
(33.) Keith Michael Bakers gives the wonderful example of the King’s Flight to Varennes. It was revolutionary discourse, he observes, that transformed the “glimpse of a fat man heading toward the French border in a lumbering carriage” into the politically significant event it immediately became. Baker, “Enlightenment Idioms,” 167.
(34.) John Markoff gives much consideration to the dialogue between the National Assembly and peasantry, but concludes that it was peasant pressure that drove forward the revolutionary abolition of feudalism. In contrast, both Peter McPhee and Noelle Plack assign responsibility for revolutionary change almost exclusively to the peasantry. See Markoff, Abolition of Feudalism; Peter McPhee, “A Social Revolution: Rethinking Popular Insurrection in 1789,” in Oxford Handbook, ed. Andress, 164–79; and Noelle Plack, “Challenges in the Countryside, 1790‒2,” in Oxford Handbook, ed. Andress, 346–61.
(35.) Clare Haru Crowston, Credit, Fashion, Sex: Economics of Regard in Old Regime France (Durham, NC: Duke University Press, 2013); Michael Sonenscher, Before the Deluge: Public Debt, Inequality, and the Intellectual Origins of the French Revolution (Princeton, NJ: Princeton University Press, 2007); Spang, Stuff and Money; and Erika M. Vause, “In the Red and in the Black: Bankruptcy, Debt Imprisonment, and the Culture of Credit in Post-Revolutionary France” (Ph.D. dissertation, University of Chicago, 2012).