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The Invention of Ownership Societies

In the previous chapter we looked at some general characteristics of ternary (or trifunctional) societies, especially European societies of orders. The purpose of this chapter is to analyze how those trifunctional societies were gradually transformed into ownership societies in the eighteenth and nineteenth centuries, at a pace and via pathways that varied from country to country. In Part Two we will look at non-European ternary societies (especially India and China) and examine how their encounter with European proprietarian and colonial powers influenced the conditions under which states emerged and premodern trifunctional structures were transformed, which also yielded a variety of specific trajectories. Before we do that, however, we need to pursue the analysis of European trajectories a bit further.

In this chapter I will take a more detailed look at the French Revolution of 1789, which marked an emblematic rupture between the Ancien Régime society of orders and the bourgeois ownership society that flourished in France in the nineteenth century. In the space of a few years revolutionary lawmakers attempted a complete overhaul of all power and property relations. Analyzing what they did will give us a better grasp on the magnitude of the task and the contradictions they encountered. We will also discover how complex and ambiguous political and legal processes collided with the issue of inequality and concentration of wealth. Ultimately, the French Revolution gave rise to an extremely inegalitarian proprietarian society, which lasted from 1800 to 1914; this will be the subject of the next chapter. Comparison with other European countries, especially the United Kingdom and Sweden, will then afford us insight into the respective roles of revolutionary processes versus long-term trends (associated with state formation and the evolution of socioeconomic structures) in the transformation of ternary societies into ownership societies. We will see that many trajectories and forks in the road are possible.

The “Great Demarcation” of 1789 and the Invention of Modern Property

To gain a better understanding of the “Great Demarcation”* of 1789 separating trifunctional societies from the ownership societies that succeeded them, let us begin by looking at what was probably the most decisive moment in this transition. On the night of August 4, 1789, the French National Assembly voted to abolish the privileges of the clergy and nobility. In the months, weeks, and years that followed, the challenge was to define exactly what the word “privilege” meant and thus to establish the dividing line between prerogatives that should simply be abolished and those that were legitimate and therefore worthy of perpetuation or compensation, perhaps requiring reformulation in a new political and legal language.

The theory of power and property to which revolutionary lawmakers adhered was in principle fairly clear. Its purpose was to draw a sharp distinction between, on the one hand, the regalian powers (of security, justice, and legitimate violence) henceforth to be monopolized by the centralized state and, on the other hand, property rights, which only individuals could claim. The latter were to be full, complete, and inviolable, as well as guaranteed by the state, whose primary if not sole mission should be to protect them. In practice, however, establishing the rights of property proved to be a far more complex undertaking than this simple theory would suggest. This was because regalian powers and property rights were so intimately intertwined at the local level that it was extremely difficult to define consistent norms of justice acceptable to all the relevant actors, particularly when it came to the initial allocation of property rights. Once this initial allocation was firmly established, people knew (or thought they knew) how to proceed. But it proved very difficult to decide which existing claims deserved to be preserved as new property rights and which should simply be suppressed.

Recent work, especially that of Rafe Blaufarb, has shown that in order to understand these debates, one needs to distinguish several periods.1 In the first phase (1789–1790), the committee of the National Assembly in charge of these delicate issues adopted what it termed a “historical” approach. The idea was to examine the origins of each right in order to determine its legitimacy and in particular whether it was of a “contractual” nature (in which case it should be maintained) or a “noncontractual” nature (in which case it should be abolished). For instance, a right linked to the unwarranted exercise of seigneurial power (hence “feudal”) or derived from the illegitimate appropriation of some aspect of public authority should be deemed “noncontractual” and therefore abolished without compensation. Fiscal privileges were the most obvious example of this: the nobility and clergy were exempt from the payment of certain taxes. Jurisdictional powers were also deemed noncontractual. The right to dispense justice within a specified territory (sometimes known as seigneurie publique) was therefore withdrawn from lords and transferred to the centralized state without compensation. The immediate consequence of this was disruption of the lower levels of the judicial system (which to a large extent relied on seigneurial courts). The idea that the state should exercise a monopoly of the judicial function became firmly fixed in people’s minds.

The ecclesiastical tithe was also abolished, and church property was nationalized, again without compensation, which provoked vigorous debate since many people (among them Abbé Sieyès, as noted in the previous chapter) feared that the religious, educational, and hospital services previously provided by the Church would suffer. But proponents of abolishing the tithe and nationalizing clerical property insisted that public sovereignty could not be divided and that it was therefore intolerable for the Church to remain the permanent beneficiary of a state-enforced tax, which would have left it in the position of a quasi-state organization. For good measure, crown property was included along with Church property under the head of biens nationaux to be sold at auction. The general philosophy was that the state—one and indivisible—would finance itself in the future through annual taxes duly approved by representatives of the citizenry, whereas the exploitation of perpetual property would henceforth be left to private individuals.2

Beyond these few relatively clear cases (fiscal privileges, public seigneuries, tithe, and Church property), it proved very difficult to agree on other “privileges” to be eliminated without compensation. In particular, most seigneurial dues—that is, payments in cash or kind by peasants to nobles—were in fact maintained, at least initially. Take the paradigmatic case of a peasant who farmed a plot of land in exchange for which he paid rent to a landlord: the general principle was that such rent was legitimate. The landlord-tenant relationship had the appearance of a legitimate “contractual” relationship as revolutionary legislators understood it; hence the former seigneurial dues should be continued in the form of rent. The lord could continue to collect rents—this was called seigneurie privée—but could no longer dispense justice (seigneurie publique). All legislative effort went to distinguishing these two components of the seigneurial relationship so as to set the new, modern concept of ownership apart from the old feudal system.

Corvées, Banalités, Loyers: From Feudalism to Proprietarianism

As early as 1789–1790, however, an exception was made for the corvée, that is, the peasant’s obligation to provide the landlord with a certain number of days of unpaid labor. Traditionally, peasants had been required to work one or two days a week and sometimes even more on the lord’s land. Also excepted were banalités, or seigneurial monopolies on various local services, such as mills, bridges, presses, ovens, and so on. Both were in principle to be abolished without compensation. Corvées in particular smacked too much of serfdom and the old seigneurial order. This had supposedly disappeared centuries earlier, but the terminology (if not the reality) persisted in the French countryside. Maintaining these privileges openly and without limitation would have been interpreted as an unacceptable betrayal of the revolutionary spirit and the meaning of the Night of August 4.

In practice, however, the committees and tribunals charged with applying the directives of the National Assembly found in many cases that the corvée had a contractual basis. It was seen as a kind of rent (loyer); the difference between a rent paid in cash or kind and a labor service was often more a matter of words than anything else. Accordingly, such services were to be maintained or else explicitly transformed into rent paid in cash or kind: for instance, a corvée of one day a week could be converted into a rent equal to a fifth or sixth or the harvest. Or it could be redeemed (that is, wiped out by a cash payment from the peasant to the lord), a solution many legislators regarded as a compromise. Many were afraid that straightforward elimination of the corvée without redemption or compensation of any kind might undermine the very concept of rent, if not of property in general.

Most poor peasants could not afford to redeem corvées or other seigneurial dues, however, especially since the assembly and its committees set a high price on redemption. The value of land was fixed at the equivalent of twenty years of rent for payments in cash and twenty-five years for payments in kind, which reflected the fact that the average yield of agricultural land at the time amounted to 4–5 percent of the local land price. This was completely out of reach for most peasants. Where the corvée was particularly onerous (say, several days a week of unpaid labor), the price of redemption might be high enough to leave the peasant in a situation of perpetual debt close to serfdom or slavery. In practice, redemption of seigneurial rights and national properties was limited to a small minority of noble or non-noble buyers with sufficient cash reserves; most peasants were excluded.

In some cases, banalités were also maintained, especially where it was difficult to provide a public service in any form other than a monopoly; for instance, when conditions were such that constructing a mill would have been particularly costly so that building several mills would have had a detrimental effect on their economic viability. Such natural monopolies were acknowledged to be justified, and so it was only right, legislators reasoned, that the profits should go to the person who built and owned the facility, which usually meant the local lord, unless he had sold out to some newcomer. These were difficult issues to resolve in practice. Again, they illustrate the inextricable mingling of property rights with quasi-public services in trifunctional society. The problem here was the same as with the tithe—its champions argued that it financed schools, dispensaries, and granaries for the poor. In practice, banalités were not preserved as often as corvées, yet they still provoked violent opposition from the peasantry when they were.

Broadly speaking, the “historical” approach taken in 1789–1790 faced one major obstacle: how to establish the “contractual” origin of any particular right. Provided one went far enough, perhaps several centuries, back in time, it was obvious to everyone that violence played a part in the acquisition of most seigneurial rights, which stemmed from conquest and serfdom. If one followed this logic to the end, it was clear that the very idea of a contractual origin of property rights was pure fiction. For revolutionary legislators, most of whom were bourgeois property owners or at any rate people less destitute than the masses, the goal was more modest: namely, to strike a reasonable compromise that would reestablish society on a stable foundation without undermining property rights in general. They feared that any other approach would lead straight to chaos, to say nothing of threatening their own property rights.

The historical approach was therefore in reality quite conservative. In practice, it allowed most seigneurial rights to continue with little change as long as enough time had passed to give them the appearance of settled acquisitions. The logical was “historical,” not in the sense that legislators sought to discover the real historic origins of any particular right but rather in the sense that any property right (or similar relationship) that had existed for a long enough time was regarded as prima facie legitimate.

This approach was often summed up by the famous adage “nulle terre sans seigneur,” no land without a lord. In other words, without incontestable proof to the contrary, and apart from a few explicitly inventoried cases, the basic principle was that payments in cash or kind received by the lord had a legitimate contractual origin and therefore remained enforceable, even if the terms of the contract now had to be rephrased in a new language.

In some provinces, especially in the south of France, however, a quite different legal tradition prevailed: its principle was “no lord without title.” In other words, without written evidence of title, ownership could not be established, and no payment was justified. In that region, where written law predominated, the assembly’s directives were not well received. In any case, most property titles, even when they did exist, were to be treated with caution since many had been established by the lords themselves or else by courts they controlled. As a result, peasants in many areas attacked lords in their castles in 1789, seeking to burn any titles they could find, which only added to the confusion.

The situation veered out of control as tensions with foreign governments increased, and the Revolution took a harsher turn. The National Assembly became the Constituent Assembly and adopted a new constitution, turning France into a constitutional monarchy with a property qualification for voting. In June 1791 Louis XVI attempted to flee and was arrested at Varennes in eastern France. The king was accused (not without reason) of seeking to join exiled nobles and plotting with foreign monarchies to crush the Revolution militarily. As war clouds gathered, an insurrection in August 1792 ended with the king’s arrest; five months later, in January 1793, he was guillotined. A new assembly known as the National Convention was put in place and charged with drafting a republican constitution based on universal suffrage; this was adopted but did not go into effect before the convention itself was toppled in 1795. Meanwhile, French forces won a decisive victory at Valmy in September 1792, marking the triumph of the republican idea and the symbolic defeat of the trifunctional order. Although France’s armies were deprived of their natural leaders, who had fled abroad, they triumphed over the combined forces of monarchy led by nobles from across Europe. Here was living proof that the people in arms could do without the old noble warrior class. Goethe, who witnessed the battle from a nearby hilltop, was in no doubt about the meaning of the event: “In this place on this date begins a new era in world history.”

Meanwhile, enforcement of the privilege-abolishing law of August 4, 1789, took a more radical turn. From 1792 on it became increasingly common to reverse the burden of proof by demanding that lords prove the contractual basis of their claims to property rights. In July 1793 the convention issued a decree that took this one step further, adopting what was called a “linguistic” approach: all seigneurial rights and ground rents were to be abolished immediately, without compensation, if the terminology designating them was directly linked to the old feudal order.

This decree applied not only to corvées and banalités but also to many similar obligations, such as cens and lods. The cens was a form of rent paid to a lord and at one point was linked to a tie of vassalage (that is, political and military subordination). The lod was even more interesting, partly because it was so common (in many provinces it was the primary mode of payment to landlords) and partly because it so perfectly illustrated the intimate connection between former regalian rights (which the revolutionaries considered illegitimate) and modern property rights (which they deemed legitimate).

Lods and the Superposition of Perpetual Rights under the Ancien Régime

Under the Ancien Régime, the lod was a seigneurial droit de mutation: a peasant who had acquired the right to use a plot of land in perpetuity (sometimes known as seigneurie utile) and who wished to sell that right to another person had to purchase a “right of mutation” (the lod) from the lord who had seigneurie directe over the property. The term seigneurie directe could itself be decomposed into two parts, private and public. The private part covered rights to the land while the public part referred to the judicial rights that went along with ownership. In practice, the lod could represent a significant sum, which varied from a twelfth to half of the amount of the sale (or two to ten years of rent).3 The origin of this payment was generally linked to the lord’s judicial power over the region in question: because the lord rendered justice, recorded transactions, guaranteed the security of persons and property, and settled disputes, he was entitled to payment of the lod when usage rights of a property were transferred from one person to another.

The lod might or might not be accompanied by other payments that were sometimes annual, sometimes paid at fixed intervals (the term lod often referred to a package of obligations and payments rather than a single sum). Because the lod originated with the lord’s judicial powers, one might have expected it to be abolished without compensation, like the tithe and the seigneurie publique. In practice, however, usage of the lod had expanded well beyond its original purpose; revolutionary legislators (or at any rate the most conservative and least bold among them) therefore feared that eliminating it without compensation might undermine the entire proprietarian social order, plunging the country into chaos.

Broadly speaking, one of the characteristics of property relations in the Ancien Régime (and, more generally, in many premodern ternary societies) was the superposition of different types of perpetual rights over the same piece of land (or other property). For instance, one person might enjoy the right to perpetual use of a plot of land (including the right to sell to other individuals), while another might enjoy the right to receive a perpetual payment on a regular basis (such as an annual rent in cash or kind, possibly dependent on the size of the harvest), and yet another might benefit from a right exercised when a transaction took place (a lod). Still another individual might hold a monopoly on the oven or mill needed to prepare the product of the land for market (a banalité), and another might be entitled to payment of part of a harvest on the occasion of a religious holiday or other ceremony. And so on.

These individual “owners” might be lords, peasants, bishoprics, religious or military orders, monasteries, corporations, or bourgeois. The French Revolution put an end to the superposition of rights and declared that the only perpetual right belonged to the owner of the property; all other rights were necessarily temporary (such as a lease or fixed-term rental contract), with the exception of the state’s perpetual right to collect taxes and promulgate new rules.4 Instead of superposing perpetual rights subject to the rights and duties of the two privileged orders as under the Ancien Régime, the Revolution sought to restructure society around two primary actors: the private property owner and the centralized state.

In the case of the lod, the solution adopted by the Revolution was to create a public cadastre, the central and emblematic institution of the new ownership society, of which this was the foundational act. Henceforth, the centralized state would maintain a vast register listing all legitimate owners of fields and forests, houses and other buildings, warehouses and factories, and goods and property of every imaginable description. This register would have branches at the local and regional level: prefects and subprefects carefully established maps of départements and communes, which took the place of a complex patchwork of overlapping territories and jurisdictions that constituted the Ancien Régime.

It was therefore quite natural for revolutionary assemblies to transfer the lod to the state in the context of the new fiscal system established in 1790–1791. The droits de mutations (sales taxes on property transfers) created at that time took the form of a fairly heavy proportional tax on sales of land and buildings. Payment of the tax allowed the new owner to register his property (and if need be establish his title to it); the proceeds went to the government (apart from a small additional component paid to the notary charged with drawing up the necessary documents). These droits de mutation still exist in France to this day, in virtually the same form as when they were created; they amount to roughly two years of rent, which is not insignificant.5 During debates in the period 1789–1790, there was never any doubt that the lod would become a tax paid to the state (and cease to be a seigneurial right) nor that maintaining the cadastre and protecting property rights would become a state responsibility: this was the very foundation of the new proprietarian political regime. The question was what would be done about the existing lods. Should they be abolished without compensation for the existing beneficiaries, or should they be treated as legitimate property rights, which would then be translated into the new judicial vocabulary? Or—a third possibility—should they be eliminated, but with compensation?

In 1789–1790, the assembly opted for full compensation of the lods. A schedule of payments was even established: a peasant (or other holder of usage rights for a plot of land or other property who was by no means always the actual tiller of the soil) could redeem the lod for a sum ranging from one-third to five-sixths of the most recent sale, depending on the rate of the lod to be redeemed; this was a fairly high price.6 If the potential buyer could not come up with the sum required, the lod could be replaced by an equivalent rent: for example, a half-rent if the lod was fixed at half the value of the property (all this in addition to the state droit de mutation). Thus the assembly envisioned that an authentic former feudal right would become a modern property right, just as former corvées, linked to serfdom, were transformed into rents.

In 1793, the convention decided to reject this logic: lods were to be abolished without compensation, so that users of the land would become full owners without being forced to pay out of pocket in the form of a redemption fee or rent. More than any other measure, this reflected the convention’s ambition to redistribute wealth. But this approach was relatively short-lived (1793–1794). Under the French Directory (1795–1799) and even more under the French Consulate and First French Empire (1799–1814), the country’s new leaders reinstated the property qualifications and other more conservative dispositions of the early stages of the Revolution.7 They nevertheless ran into trouble when it came to canceling transfers of ownership (through straightforward abolition of the lods) decided in 1793–1794, as the concerned peasants and other beneficiaries were not about to give up their new rights without a fight. Broadly speaking, the many legal twists and turns of the revolutionary years gave rise to a spate of lawsuits, which would occupy the courts through much of the nineteenth century, especially when property was sold or passed on to heirs.

Can Property Be Placed on a New Footing Without Measuring Its Extent?

Among the difficulties that the convention faced in 1793–1794, the most problematic was the fact that the term lod appeared very frequently in land contracts during the Ancien Régime. Many contracts between parties who had no noble or “feudal” antecedents used the word to designate the payment to be made in exchange for the right to use the land, even when it took the form of a quasi-rent (usually paid quarterly or annually) rather than a sum paid only when usage rights changed hands. In many cases the word lod thus became a synonym for ground rent (rente foncière) or rent in general (loyer), regardless of its exact form.

With the “linguistic” approach, one could therefore find oneself outright expropriating a non-noble (and not necessarily wealthy) landowner who had simply rented land acquired a few years before the Revolution but who had had the unfortunate idea of using the word lod or cens in the rental contract. However, an authentic aristocrat could go on placidly collecting significant seigneurial dues acquired by violent means in the feudal era as long as the vocabulary used in his dealings with the peasants used the words rente or loyer instead of lod or cens. In the face of such glaring injustices, revolutionary committees and tribunals were often forced to backtrack so that no one knew any longer what new principles were being followed.

In hindsight, of course, it is possible to imagine other possible solutions that would have avoided the pitfalls of both the “historical” and “linguistic” approaches. Was it really possible to define the conditions of just ownership without taking inequality of ownership into account—that is, without taking into account the value of each property and the extent of the patrimonial holdings in question? In other words, to establish the property regime on a new footing acceptable to the majority, would it not have made more sense to treat small holdings (such as plots suitable for a family farm) differently from very large holdings (such as estates large enough to support hundreds or thousands of family farms), regardless of the vocabulary used to designate the remuneration in each case (lods, rentes, loyers, and so on)? It is not always a good idea to search for origins when seeking patrimonial justice. And even if it is sometimes inevitable, it is probably best to think about the size and social significance of the fortunes involved. The task is not simple, but is there any other way to go about it?

In fact, the revolutionary assemblies did provide a stage on which many debates about progressive taxation of income and wealth played out, especially in connection with various projects to establish a droit national d’hérédité (national inheritance tax), the rate of which varied with the size of the bequest. For instance, in a bill proposed in the fall of 1792 by Sieur Lacoste, an administrator in the Registry of National Estates, the smallest bequests were to be taxed at less than 5 percent, whereas the rate on the largest was to be more than 65 percent (even for direct line bequests—that is, from parents to children).8 Ambitious progressive tax proposals had also been put forward in the decades prior to the Revolution, such as the one published in 1767 by Louis Graslin, a tax collector and city planner in Nantes, who envisioned a tax gradually rising from 5 percent on the lowest incomes to 75 percent on the highest (Table 3.1).9 To be sure, the highest rates proposed in these pamphlets applied only to extremely high incomes (more than a thousand times the average income of the day). But such extreme disparities did exist in late-eighteenth-century French society, and if these tax schedules had been applied within the framework of the law and parliamentary procedure, those inequalities could have been corrected. The proposed tax schedules envisioned substantial rates on the order of 20–30 percent (which was quite high, especially for an inheritance tax) for levels of wealth and income on the order of ten to twenty times the average, well below the levels associated with the high nobility and haute bourgeoisie of the era. This shows that the authors had fairly ambitious ideas of social reform and redistribution, ideas that could not be limited to a tiny minority of the super-privileged if they were to have any real effect.

Capital and Ideology