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The Pamphlet Collection of Sir Robert Stout: Volume 2

Land Laws of France

Land Laws of France.

Land Laws of France.

In France, before the Revolution of 1789, large properties prevailed throughout a great part of the country. They were held and preserved in families by laws very similar to those which still prevail in England. Primogeniture and entail were almost universally in practice among the upper classes. These laws, however, were the exclusive privilege of the nobility. The law was different for inferior classes. There existed even in those days a large number of small owners. This class had existed from time immemorial, and were either descendants of small freeholders, or of Roman coloni, holding on payment of small and hereditary rents, and who had been brought within the range of the feudal system, or were emancipated serfs who held by certain tenure, but subject to most arbitrary and galling services and clues, under feudal lords. These people had inherited from the Roman law the principle of equal and com- page 25 pulsory division of property on death. The principles

Land Laws of France.

of feudal law had never been extended to them. Primogeniture was not their privilege; entail was expressly prohibited to them.

Even before the Revolution great complaints were made of the effect of entails, in causing multiplicity of suits, in creating uncertainty as to title, in depriving creditors of their just rights, in promoting clandestine arrangements of property, in withdrawing from the freedom of commerce so large a portion of the land, and in tending to the accumulation of property in few hands; many attempts were made by the executive government to restrict and curtail this process, and to make it as little noxious as possible.

The celebrated chancellor, D'Aguesseau, wrote of entails, in the year 1750, in language which might be used of England in the present day. The president of Aix, another distinguished lawyer, had written to him as follows:—

"One may doubt whether it would not be advantageous to the interest of the State wholly to abolish entails (substitutions); they help to preserve family property, but it is only by sacrificing the creditors of the family, who have lent their money in good faith. Nothing is more unjust than this; and as it is a matter of indifference to the State that the property of such families should be preserved, it seems that no general reason exists for permitting the maintenance of entails, which page 26

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were invented by people possessed of a foolish obstinacy to prolong their names, but who forget that a bankruptcy, occurring in every second generation, dishonours them."
D'Aguesseau, in reply, wrote as follows:—

"The complete abolition of entails would probably, as you say, be the best of all laws; and there might be found more simple means of preserving a sufficiency of property in great families to sustain their position. But I fear that in order to arrive at this, we should have to commence by reforming men's brains, and this would be the enterprise of one whose own head might be in danger of being reformed away. It is in truth a great misfortune that the vanity of man-kind is the predominating influence of legislation."1

It was by the inspiration of D'Aguesseau that a law was passed in 1747 greatly limiting the power of entail, and compelling publicity of them. In the preamble of this law, it is stated that among other evils of entails, they provided an order of succession different from that of the State; that what had been intended for the benefit of the family often ended in its ruin; and that entails interfered with the freedom of commerce in land. The statute, however, effected little; it left untouched all the existing entails, which still continued to spread their noxious influence throughout France.

page 27
One of the earliest efforts of the Revolution of

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1789 was to deal with the land question. In the celebrated meeting of the National Assembly of the 4th of August, it was at the instance of Vicomte de Noailles and the Due d'Aiguillon, the foremost and wealthiest members of the nobility, that all feudal rights and privileges were abolished, and among these were the privilege of primogeniture and the power of making entails. Of the spirit which animated the Assembly on these subjects we can best judge from the well-known speech of Mirabeau on the law of succession. "Is it not sufficient," he said, "for society, that it has to bear the caprices and passions of the living? must it also suffer from those of the dead? Is it not enough that society should be charged with all the evil consequences resulting from testamentary despotism from time immemorial to the present? must we also subject it to all that future testators may add to this evil by their last wishes, so often whimsical and unnatural? Have we not seen a multitude of wills which breathed of pride or vengeance; in some an unjust, in others a blind preference? The law cancels those wills which are termed ab irato, but does not and cannot quash those which we may call à decepto, à moroso, ab imbecilli, à delirante, à superbo? How many are there of these acts of the dead towards the living, where folly seems to dispute with passion, and where the testator makes a disposition of his page 28

Land Laws of France.

property which he dared not confide to any one when alive; a disposition in respect of which he must have detached himself from all regard to his memory, and have thought that the tomb would protect him against ridicule and reproach? . . . . There are no longer eldest sons or privileges in the great family of the nation; there should be none in the smaller families of which each State is composed. How many are there who, born without fortune, succeed by some means or other in enriching themselves. Puffed up by this accident, they often conceive a respect for their name, and they will not let it pass to their descendants, except under escort of a fortune which may recommend it to consideration; they choose an heir among their children; they decorate him by will with all that can sustain the new existence which they prepare for him, and their ambitious pride paints for itself by anticipation, even beyond the tomb, a line of descendants who will do honour to their blood. Let us then stifle this germ of useless distinctions, let us break these instruments of injustice and folly!"
Under the influence of this passionate oration, the Assembly not only voted the repeal of the laws of primogeniture and entail, but would not even permit primogeniture; it made universal and applied to the nobility that which had been previously the law of the lower classes, namely, the compulsory division of the greater part of the page 29 paternal property, of whatever nature, equally

Land Laws of France.

among the children, leaving only a small proportion to the discretion of the testator.

In 1792 the Assembly carried the same principles further; it abolished all existing entails; the expectant heirs under entails were all irrevocably deprived of their expectations; and property subject to these settlements was, in the interest of the public, freed from all limitations and placed at the absolute disposal of existing holders.

It is worthy of notice, that so speedily did these great changes commend themselves to the habits, customs, and opinions of all classes, even of the upper classes and of the nobility, and so rapidly did the principle of equal division of property on death gain acceptance, that when after the restoration of the Bourbon monarchy, the reactionary government of 1826 endeavoured to restore, to a very limited degree, the principle of primogeniture and the power of entail, so great was the force of public opinion against the project, so strong was the family feeling even of what remained of the old nobility opposed to a restoration of such privileges, that the Chamber of Peers rejected the proposals; the leading members of the old nobility voted against them, and hundreds of eldest sons petitioned against them on the ground that they would introduce disagreement and discord into their families. This shows how strongly the principle of equal distribution of property had commended page 30

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itself, even to the families of the old nobility; and it is not too much to say that there is no institution in France so popular and so immutable, as that which requires equal division of property among children. The law permits a father to dispose of a certain portion of his property, and to accumulate this upon any favoured child, but the universal custom of France is to disregard this power, and to distribute equally among the children.
The French Revolution did more than merely alter the law. It took further measures to promote the wider distribution and ownership of property. The vast possessions belonging to the Church were appropriated by the State, and sold; 600,000 tenants became purchasers of their holdings, paying for them probably in depreciated "assignats." A portion of the property of the Emigres, though less than is generally supposed, was dealt with in the same way. A portion of the communal property was also sold. Not less than a million tenants were thus enabled to become owners. Long after the Revolution, speculators, known under the name of bandes noires, bought up large properties and sold them to the tenants. The result of all these operations was vastly to increase the number of landowners, and to produce the state of ownership which we now see there. Has the condition of the peasants improved? Who can doubt it who reads the description given of them before the Revolution and compares it with their present page 31 condition? Has France gained or lost in a political,

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social, or economic view, by this great accession to the number of her landowners? There is only one answer possible for those who look back at her history of the last few years. It is universally admitted that she has been able to emerge from her difficulties of foreign invasion, of a crushing war indemnity, of the gravest political convulsion, and of struggles with the Commune of Paris, only by the conservative force of her great mass of property owners, and the vast accumulations of wealth created by their industry and thrift.

The principles of the Revolution, especially as regards the land laws, were carried by the triumphant arms of the new Republic, and yet more by the spirit which had created this force to many other countries, to Belgium and Holland, to the Palatinate, to Baden, to Switzerland, and to a great part of Italy. Everywhere the old laws of primogeniture and entail were abolished, and the principles of the French Code were adopted.

1 See letters of D'Aguesseau, quoted in treatise on Substitutions by Coss´.