De quelques lois destinées à garantir les propriétés contre les atteintes de l'extérieur.

CHAP. 41: On some laws destined to guarantee properties against external infringements.

A nation, whatever its political organization, cannot, without deluding itself, flatter itself that its frontiers will never be crossed by an enemy army, and that, at no time, will its territory be the theater of war. Now, it never happens that an army camps in an enemy country and that it abstains from infringing upon the properties in the midst of which it finds itself placed. Even when it permits itself no useless destruction, and when it is subject to the most severe discipline, it demands that the population whose territory it has invaded furnish it with sustenance or means of transport. If it does not attack private properties in detail, it attacks them in mass, by subjecting the proprietors to contributions. Sometimes also the interest of its security determines it to ravage the country, and to make disappear from it the resources that the national army would find there, if it succeeded in making itself master of it.

The burdens of war are therefore always infinitely more burdensome for the populations located near the frontiers than for those who are located in the center of the national territory. The security of the latter is all the greater as the former show more courage, selflessness, patriotism, and as they resign themselves to more sacrifices. If the inhabitants of the frontiers, to shelter their properties from pillage and to escape the calamities of an invasion, consented to open a passage for enemy armies and not to trouble them, it is above all on the inhabitants of the center that the weight of the war would fall.

It is, in effect, among them that the government, which is the soul of all military operations, ordinarily sits, and that the great masses of wealth are found.

However, there is a true association between the members of which a people is composed only insofar as all properties are equally guaranteed, and as the burdens and advantages of society are distributed in an equal manner. It is necessary that the benefits of peace and the misfortunes inseparable from war spread equally over all, at least insofar as the nature of things allows. But if, by their position, some parts of the population are more exposed than others, and if it is not possible to prevent the infringements to which their properties are exposed, what is the means of establishing the equality of burdens as much as possible? There is only one: it is to repair the harm that could not be prevented; it is to indemnify, at the expense of the State, the persons whose properties have been carried off or devastated by the enemy.

In 1792, at the moment when the independence and liberty of the French nation were threatened by most of the European governments, the National Assembly, by a decree of the 11th of the month of August, ordered that aid or indemnities would be granted to French citizens who, during the duration of the war, had lost, by the act of external enemies, all or part of their properties [^300].

According to this decree, all those who claimed aid or an indemnity were subject to proofs of residence, and other formalities imposed on persons who had to receive some payment at the national treasuries. These conditions had for their object to set aside the claims of persons who had gone abroad, out of hatred for the revolution.

The men who had refused to obey legal requisitions, and those who had not opposed, when they could, the ravages of the enemy, were excluded from all aid and all indemnity.

The citizens whose properties had been devastated were to present to the municipality of the place a detailed and estimated memorandum of the losses they had experienced; they were to join to it a certified extract of their tax assessments on the land and movable property tax rolls.

The municipalities were held to ascertain within a week the damages and devastations; they were to send their official reports to the district directories, which, after having verified the facts, were charged with sending them, with their opinion, to the department directory.

The department directories were to, within a week, send them, with their opinion, memoranda, and information, to the minister of the interior; and the latter was to place them before the eyes of the legislative body.

If the loss experienced by a citizen consisted in furniture, livestock, effects, or merchandise, it was to be justified, either by the attestation of neighbors, or by certified extracts of commercial books, balance sheets, bills of lading, and invoices.

The generals, commanders, and other military chiefs were charged with reporting, as much as would be possible for them, official reports of the devastations committed by the enemy; they were to address them to the minister of war, who was to remit them at once to the legislative body.

The National Assembly alone could determine, upon examination of the documents, and according to a report, the nature and the amount of the aid and indemnities; it was to proportion them to the fortune that remained to the citizens after the devastation, to their needs, and to the losses they had experienced.

If the totality of a municipality, a canton, or a district had been ravaged, the legislative body was to grant provisional aid before the fixing of the indemnities to which the private individuals had a right.

In this case, the official reports were to be reported by the municipal officers of the neighboring municipalities, and the verifications made by the administrators of the nearest district.

Any citizen convicted of having simulated losses in his declaration, to obtain a stronger sum, was stripped of all indemnity and even of all aid.

The citizens invested with a public function, and those who bore arms for the service of the fatherland, had a right to an indemnity equal to the losses they had suffered in their properties.

It belonged only to the National Assembly to rule what amount of damage was to remain the responsibility of the citizens, and in what cases they were to be subjected to it.

Experience soon showed the insufficiency of this decree; in consequence, the National Convention rendered a second, on the 14th of the month of August 1795, by which it tried to make disappear what was flawed in the first.

By this decree, the Convention declares, in the name of the nation, that it will indemnify all citizens for the losses they have experienced or will experience by the invasion of the enemy on French territory, or by the demolitions or cuttings that the common defense will have required on our part; it deprives of all right to indemnity only those who will be convicted of having favored the invasion of the enemy, or of not having complied with the requisitions or proclamations of the generals.

Commissioners named by the district administrators and by the government must have the citizens of each municipality convened, and take, in the presence of the communal council, the statements and observations of all those who have observations to make; they must also take information on the conduct that the claimants held at the time of the enemy's invasion and during its stay on French territory, and make mention of it in their official report [^301].

Whenever the loss consists in the carrying off of the harvest, of furniture, or of livestock, the commissioners ascertain, in the presence of the municipality, which is held to avow or to contradict the facts, in what the loss consists, if it was of the totality or simply of a part of the objects, if this part is of a third, a quarter, or any other amount.

If the citizen claims on account of the fire of his buildings or their demolition, relative to a cutting of wood, vines, or fruit trees, the commissioners go to the site, verify in the presence of the municipality in what the damage of which one complains consists, and examine if everything has been destroyed or simply a part. In this latter case, they indicate in what proportion what remains is relative to the destroyed part; they can, if they judge it necessary, be assisted by experts or men of the art, to help them in their operations.

The proprietor who, operating by himself or by people in his pay, has lost the totality of his harvest, receives, upon reporting the receipt for all his contributions, an indemnity equal to the valuation of the net income carried in the master tax roll, and, in addition, the operating and seed costs, according to the estimation made of them by the commissioners, without this part of the indemnity being able, nevertheless, to exceed that granted for the net income; if he has lost only a part of his harvest, his indemnity must be settled according to the same bases, proportionally to his loss.

If the heritages are leased out, the tenant farmer or cultivator of these heritages is indemnified for the loss he has experienced on the same harvest, according to the estimation made of it by the commissioners, without, nevertheless, this indemnity being able, in any case, to exceed that of the proprietor, which must be determined by the rules previously traced.

The value of houses, in the cities, is determined by the presumed income, according to the land tax they pay, and according to the bases established by the decree of 23 November 1790; in consequence, the proprietor receives, under the conditions already indicated, if they have been burned or demolished in their entirety, the totality of the indemnity thus fixed, or a part, if they have been destroyed only in part.

It is the same for the factories, manufactories, and mills that have been destroyed; the indemnity due to the proprietors is also fixed on the presumed value of the objects, according to the bases established by the same decree: the injured person can receive it only under the conditions previously stated, and in the proportions of his loss.

As for the houses situated outside the cities, and the buildings serving rural operations, which pay no land tax, and which are assessed only by reason of the terrain they occupy, their value is settled by the estimation made of them by the commissioners; it is paid to the citizens only upon reporting the receipt for all their contributions.

The commissioners also proceed to the estimation of the damages caused by the cutting of vines, wood, or fruit trees, and to the valuation of the livestock carried off by the enemy.

As for the movables, the valuation of them is likewise determined by the commissioners, according to the information they take, and having regard to the greater or lesser degree of comfort that the claimant enjoyed.

A decree of 6 Frimaire, Year II (26 November 1793) modifies some of the dispositions of that of 14 August; it provides that the indemnity granted to tenant farmers for operating and seed costs may not, in any case, exceed the valuation of the income and of the leased heritage, as it is carried in the master tax rolls, without the lease prices being able to enter into consideration, either in the interest of the tenant farmers or in that of the proprietors.

It wishes, moreover, that the value of the houses of the cities, of the factories, manufactories, and mills, be also determined, as is prescribed by articles 11 and 12 of the decree of 27 February and 14 August, and according to the bases established by that of 23 November 1790, relative to the land tax.

Finally, it declares that the maximum of household furniture for which one can be indemnified remains fixed at double the net income, without, nevertheless, it being able to exceed a sum of 2,000 francs, livestock and agricultural implements excepted.

The National Convention, fearing doubtless that favor would preside over the distribution of indemnities, rendered a decree on 16 Messidor, Year II (4 July 1794), to prevent such an abuse. This decree declares that no final indemnity for the losses experienced by the invasion and ravage of enemies will be paid except by virtue of a special decree. It is therefore only to the legislative power that it belongs to definitively fix the indemnities to which proprietors have a right, as under the empire of the decree of 11 August 1792. The fixings of indemnities must, however, continue to take place according to the rules traced by the decree of 14 August 1793; but they are irrevocable only when they have been approved by a law.

There are, in these various decrees, three sorts of dispositions that it is important to distinguish well: those that consecrate the principle that the French nation guarantees the properties of each of its members against the infringements of which they could be the object on the part of foreign nations or their armies; those that determine the bases according to which the indemnities must be settled, when, in effect, properties have been pillaged or devastated by enemy armies; and those that designate the functionaries to whom the provisional settlement and the definitive fixing of the indemnities are attributed.

The principle of the guarantee is a condition so essential to the social state that there would be no society properly so-called, if it were not admitted. It is, in effect, only to shelter themselves from spoliations and violence that the citizens of a free State pay taxes, and devote themselves for a more or less long time to military service. As there is equality in the burdens that the laws impose in the common interest, there must be equality in the protection. The means of existence of each of the fractions of society must be equally protected against the aggressions of the common enemies. If the populations located on the circumference of the territory shelter those of the center from spoliations and outrages, it is up to the latter to indemnify them for the sacrifices made to public safety.

In countries where power is exercised only in the interest of those who possess it, this principle of guarantee is not admitted; because, among peoples thus governed, there does not exist, properly speaking, a society, nor consequently any guarantees. The government considers the infringements made on the properties that are on the theater of war only in the relations they have with its interests. It is more concerned with not displeasing the population in the midst of which it is placed than with repairing the damages that enemy armies have done from afar. Its own security demands that the places in which it makes its residence experience, last, and as late as possible, the calamities that it brings upon the country, or that it does not know how to ward off from it. It finds, moreover, that there is less danger and dishonor in ceding to the demands of a foreign sovereign or an enemy army, than in submitting to the law that the wishes and interests of its subjects would impose on it. It could not admit the principle of the guarantee without thereby admitting that of property, and without recognizing, consequently, that, under its empire, each is master of his person and his goods. This would be to avow that between the State and each of its members, there are reciprocal obligations, and thus to arrive at the principle of national sovereignty. Absolute governments and those that tend to become so must not, therefore, admit that society is held to repair the infringements made by an enemy army on private properties.Free peoples, on the contrary, can flatter themselves that they can preserve their independence and their liberty only by the rigorous observation of this principle. It is impossible that the populations whose properties are most exposed to the ravages of war should make great efforts to repulse the enemy, if these efforts, useful to the entire nation, are to have no other results for them than ruin and misery. On the other hand, the populations whose properties are beyond the enemy's infringements, and who are not currently stricken by the calamities of an invasion, cannot put much energy into defending their independence, if they do not have the current sentiment of the evils that war brings in its wake. The defense can be energetic and general only when each of the blows struck against a part of the social body is immediately felt by the entire body, and when each of the stricken parts is instantly aided by those that are not. The laws that guarantee properties against the infringements of which they can be the object on the part of an enemy army, and which make it a duty for the government to distribute, among all the members of the State, the damages caused to some, are therefore a condition as essential to the preservation of national independence as to the good administration of justice.

The dispositions of these laws, which determine the bases on which the indemnities must be established, have principally for their object to prevent arbitrariness in the valuations. These bases vary like the nature of the properties; but, in general, they are taken from the laws made to determine the amount of the tax that each must pay in proportion to his revenue. If it is a matter of indemnifying tenant farmers for their operating and seed costs, the indemnity cannot exceed the valuation of the net income of the leased heritage, as it is carried in the master tax roll. The value of the houses of the cities, of the factories, manufactories, and mills, must be determined, as has been seen, according to the bases established by the law of 23 November 1790, relative to the land tax [^302]. Household furniture cannot be valued at a sum that exceeds double the net income, without it ever being able to rise above two thousand francs. As for the other objects, their value is fixed according to the rules traced by the decree of 14 August 1793.

The authorities called upon by this latter decree and by that of 6 Frimaire, Year II (26 November 1793), to contribute to the provisional fixing of the indemnities due to the persons whose properties were pillaged or devastated, were the government commissioners, the commissioners named by the district administrations, and the communal councils; it is to the legislative power that the definitive fixing belonged and still belongs. The district administrations having been suppressed, must be replaced, for the nomination of the commissioners, by the arrondissement councils. They must not be by the sub-prefects, since the government would have a double nomination of commissioners.

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Notes

[^300]: The motives for this decree deserve to be reported; here they are: [^301]: The government commissioners were suppressed by a decree of 26 Floréal, an II (May 15, 1794), which replaced them with district commissioners. [^302]: Here are some of the provisions of the law of November 23, 1790: