De quelques lois particulières sur la jouissance et la disposition des propriétés, et sur la liberté

CHAP. 39: On some particular laws concerning the enjoyment and disposition of properties, and on freedom of industry.

IN almost all countries, more or less arbitrary limits have been given to the faculty of enjoying and disposing of properties, and particularly of those that consist in parcels of land. Several of these restrictions, born under the feudal regime, have generally had for their object to perpetuate the preeminence, in society, of a certain number of privileged families. A great number have had for their goal or pretext to favor the development of certain productions, at the expense of some others. Agriculture, like manufactures and commerce, has had its regulatory regime, although it was not carried as far; a certain kind of cultivation has sometimes been forbidden, in order to favor others.

There are two principal ways of disposing of a property: a person disposes of his goods when he transmits them to another by way of loan, sale, exchange, or donation; he also disposes of them when he limits himself to making them undergo the modifications that are commanded by his interests, his tastes, or even his caprices; when he converts a forest into arable land, or when he destroys a building to enjoy a more extensive view.

It is not a question here of dispositions of the first kind; the faculty of disposing of one's properties by alienations touches so closely on the interests and needs of families, and on all questions relative to population, that it would be impossible to speak of it properly before having treated of persons and the natural relationships that exist between them. The dispositions of property in question in this chapter are those that consist in the various modifications that each can make to the things that belong to him, and in the various ways of enjoying them.

I have already observed that there exist between properties and proprietors such intimate relationships that it is impossible to touch the ones without affecting the others. One can exercise an art, engage in a trade, only by acting upon things that are properties; a law that forbids, for example, the cultivation of the vine or of tobacco, seems to affect only properties; but it affects at the same time a more or less numerous class of persons; it forbids them the exercise of an industry. A law that forbids the exercise of the profession of printer appears at first to affect only persons; but it also affects properties; it prevents them from becoming the material of a printing house. By forbidding men the innocent exercise of their faculties, one would despoil them of their goods, for things have value only by the action we exercise upon them. Likewise, by placing all properties under interdiction, one would condemn men to death, since they can preserve themselves only by them. It follows from this that all laws that affect industry, whether they place fetters on it or render it free, affect properties in the same manner.

The freedom to dispose of one's properties and to engage in every kind of industry and commerce was recognized in France only after the abolition of the feudal regime. By a law of March 2, 1791 [^295], the Constituent Assembly suppressed the masterships, guilds and all professional privileges, whatever their denomination. It declared, in consequence, that every person was free to conduct such business, to engage in such profession, or to exercise such trade as he found good. It imposed no other conditions on persons who wished to profit from this liberty than to provide themselves with a license tax, that is to say, to submit to the payment of a certain tax. From the moment this law became executory, everyone therefore had the faculty of engaging his properties in such branch of industry or commerce as he judged would profit him.

The Constituent Assembly believed it had not done enough by abolishing privileges, and by restoring to each the faculty of disposing of his goods, and of exercising his industry, in the manner most conformable to his interests. It wished to prevent the return of the abuses it had just suppressed, by preventing the former privileged persons from colluding among themselves against the public, and from re-establishing, in fact, monopolies that could no longer exist legally. By a second law of June 14 of the same year, sanctioned on the 17th of the same month, it declared that the annihilation of all kinds of corporations of citizens of the same estate and profession being one of the fundamental bases of the French constitution, it was forbidden to re-establish them in fact, under any pretext and in any form whatsoever.

It was, in consequence, forbidden to citizens of the same estate or profession, to entrepreneurs, to those who had an open shop, to workers and journeymen of any art whatsoever, when they found themselves together, to name either presidents, or secretaries, or syndics, to keep registers, to pass resolutions or deliberations, and to form regulations, for their supposed common interests. It was, moreover, forbidden to all administrative or municipal bodies to receive any address or petition under the denomination of an estate or profession, and to make any response to it. They were enjoined, at the same time, to declare null the deliberations that might be taken in this manner, and to see to it that they were given no follow-up or execution.

If, against the principles of liberty and of the constitution, citizens attached to the same professions, arts, and trades, took deliberations or made conventions among themselves tending to refuse in concert or to grant only at a determined price the help of their industry or their labors, these deliberations and conventions, whether or not accompanied by an oath, were declared unconstitutional, assaults on liberty, and on the declaration of the rights of man; the authors and instigators who had provoked, drafted, or presided over them, were to be condemned each to a fine of five hundred francs, and suspended for one year from the exercise of all rights of an active citizen, and from entry into the primary assemblies.

If the deliberations or convocations, posters, letters, circulars, contained any threats against the entrepreneurs, artisans, workers or foreign day-laborers who came to work in the place, or against those who were content with a lower wage, all authors, instigators, and signatories of the acts or writings were punishable by a fine of one thousand francs each, and three months in prison; as for those who made use of threats or violence against the workers using the liberty granted, by the constitutional laws, to labor and to industry, they were to be prosecuted by criminal means, and punished as disturbers of the public peace.

All seditious assemblies composed of artisans, workers, journeymen, day-laborers, or incited by them against the free exercise of industry and labor, belonging to all sorts of persons, and under any kind of conditions agreed upon by mutual agreement, or against the action of the police and the execution of judgments rendered in this matter, as well as against public auctions and adjudications, were considered as seditious assemblies, and as such were to be dispersed by the public force, upon the legal requisitions made to them, and punished, upon the authors, instigators, and leaders, according to the full rigor of the laws.

Finally, it was forbidden to all administrative and municipal bodies to employ, admit, or suffer to be admitted to the works of their professions, in any public works, those of the entrepreneurs, workers, and journeymen who provoked or signed the deliberations or conventions prohibited by the law, except in the case where, of their own motion, they had presented themselves at the clerk's office of the police court to retract.

The Constituent Assembly having guaranteed to each the free disposition of his movable properties, and, consequently, the faculty of engaging them in such industrial or commercial enterprise as he judged useful to his interests, made similar dispositions for immovable properties. By the law of June 5, 1791 [^296], it declared the territory of France, in its entire extent, free like the persons who inhabit it. Thus, it said, all territorial property can be subject, toward private individuals, only to the fees and charges whose agreement is not forbidden by law, and toward the nation, only to the public contributions established by the legislative power, and to the sacrifices that the general good may require, under the condition of a just and prior indemnity.

According to the same law, proprietors are free to vary at their will the cultivation and exploitation of their lands, to preserve at their will the harvests, and to dispose, at their will, of all the productions of their properties, in the interior of the kingdom and abroad, without prejudicing the rights of others, and by conforming to the laws.

No agent of agriculture can be arrested in his external agricultural functions, except for a crime, before provision has been made for the security of the livestock serving his labor or entrusted to his care; and even, in case of a crime, provision must be made for the security of the livestock immediately after the arrest, and under the responsibility of those who executed it.

No fertilizers, furniture or utensils for the exploitation of lands, and none of the livestock serving for plowing can be seized or sold for cause of debt, except by the person who furnished the utensils or livestock, or for the settlement of the creditor's claim against his farmer, and only in case of insufficiency of other movable objects.

Finally, no authority can suspend or interrupt the labors of the countryside in the operations of sowing and harvesting.

The authors of the constitution of September 3, 1791, had believed that, to prevent the re-establishment of monopolies or privileges, and thus to assure to every person the faculty of employing his goods in the exercise of such industry or commerce as he judged profitable, it was sufficient to guarantee to each the disposition of his properties; the authors of the constitution of 5 Fructidor, Year III, thought that such a disposition was insufficient, and that it was necessary to proscribe, in formal terms, the return of any monopoly.

In the declaration of rights, they defined property: "The right to enjoy and dispose of one's goods, one's revenues, the fruit of one's labor and one's industry." By article 355, they declared that there was neither privilege, nor mastership, nor guild, nor limitation to the liberty of the press, of commerce, and to the exercise of industry and arts of every kind.

"Any prohibitive law in this genre," adds the same article, "when circumstances render it necessary, is essentially provisional, and has effect only for one year at most, unless it is formally renewed."

The faculty of disposing of one's goods, of engaging them in all sorts of industrial enterprises, or of making them undergo the modifications one judged advantageous, was again implicitly recognized by the Code of Offenses and Penalties of 3 Brumaire, Year IV (October 25, 1799), which declared that no act, no omission would be reputed an offense, if there was no contravention of a law promulgated previously, and that no offense could be punished by penalties that were not pronounced by the law before it was committed.

These latter dispositions have been textually reproduced in the Code of Offenses and Penalties of 1810, so that, according to the laws, no one should be punished for having disposed of his properties in a manner conformable to his interests, if moreover no one had been injured in his rights.

From the beginning of the revolution until the overthrow of the representative government by armed force, the constitution and the laws therefore had for their object to assure to each the free use of his properties; but, after the establishment of the empire, a great number of arbitrary decrees re-established a part of the monopolies or privileges that the Constituent Assembly had abolished, and whose return the National Convention had wished to prevent, and it was no longer permitted to consecrate one's properties to the exploitation of certain branches of industry or commerce [^297].

The monopolies arbitrarily established by imperial decrees were carefully preserved by the Restoration, and the government that succeeded it has not abolished them. If the various governments that have existed since 1800 have not always shown much respect for the laws and for properties, it is just to say that they have been little contradicted by the mores of the population. Outside of a few rare circumstances, the citizens and their representatives have resigned themselves to arbitrariness with such facility that it would have required, in a government, to forbid itself the use of it, a foresight, a disinterestedness, and an enlightenment that one rarely encounters in the men who ambition the exercise of power.Since I do not have to describe, at this moment, the diverse assaults of which properties can be the object, whether on the part of governments or on the part of private individuals, I do not have to concern myself with the diverse monopolies by means of which citizens have been despoiled of the faculty of employing their goods in certain branches of commerce or industry; it suffices for me to observe that, wherever monopolies exist, proprietors do not have the free disposition of their properties.

It is so evident, in effect, that the establishment of any monopoly is an infringement of property, that, to render most lands and capitals worthless, it would suffice to multiply privileges to excess. What would proprietors do with their goods, under a government that successively reduced to monopolies, for the profit of a certain number of privileged persons, all branches of industry and commerce, and even the cultivation of lands?

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Notes

[^295]: Promulgated on the 17th of the same month. [^296]: Sanctioned on the 10th of the same month. [^297]: The Charter of 1830, like that of 1814, declares that all properties, without exception, are inviolable; but it is understood that they will not be used to exercise a branch of industry or commerce reduced to a monopoly; otherwise there would be grounds for confiscation, despite the inviolability promised by the Charter.