“Making the Immobile Mobile: Land, Markets, and the Problem of Value
in Nineteenth-century France”
Alexia Yates
Center for History and Economics, Harvard University
Draft manuscript: Please do not circulate or cite without explicit permission of author
“Legal history teaches us that, in all times and in all places,
real and personal property have followed diametrically
opposed paths. […] More than anywhere else,
France demonstrates the spectacle of this grand rivalry
in its most dramatic form, in all its fascinating twists and turns.1
It is difficult to exaggerate the persistence and tenacity of the debate on mortgage reform, land
registration, and the mobilization of property values in nineteenth-century France. A domain of
specialist knowledge, arcane detail, and administrative convolution, these are on first glance
unlikely candidates for vigourous, even impassioned, public discussion. Yet participants in
debates on the mortgage question were convinced – particularly during moments of economic
crisis – that overhauling the legal structures that shaped the relationship of land to the market
was a “matter of life and death.”2 The hopes lodged on the fruits of reform could not have been
grander; witness the opening statement of one of the more substantial treatises penned on the
subject:
A reformed mortgage code will consolidate property, promote its transfer, foil bad
faith schemes, and generate confidence. It will attract capital needed for the
improvement of soil to agriculture, multiplying the resources of property-owners
and tenant farmers with abundant harvests, improving the condition of the
working classes by supplying work and lowering prices, and finally, procuring
goods that satisfy our needs and our pleasures by supplying materials to
manufacturing at the best possible price. Thus the mortgage code grants each of
1
Gabriel-Victor-Jules Demontzey, Etudes sur le développement parallèle de la propriété mobilière et de la
propriété immobilière en droit français, Thèse pour le doctorat, Faculté de Droit, Université de Strasbourg
(Strasbourg : Imprimerie Huder, 1854), 2
2
R. F. Fresnel, Mobilisation des propriétés immobilières. Cinq milliards de capital mis en circulation (Paris :
Imprimerie de E. Brière, 1848), 6
1
us comfort and joy in life, even as it forms the foundation for the wealth and
strength of the nation.3
The mortgage system is here fundamental to every facet of economic life. It is the scaffolding
upon which individual happiness and national well-being is erected. But this is not the only
reason that struggles over its mechanisms were often so fierce. As the century progressed,
mortgage reform became implicated in the most tumultuous political events of the day,
particularly the 1848 Revolution, one outgrowth of which was the establishment of the nation’s
central mortgage bank, the Crédit Foncier. Moreover, the matters at the core of the debate – the
relationship between the state and property, the legal and moral constraints on mobilizing land
values – grew increasingly urgent as socialist doctrines, agricultural crises, and imperialist
ventures proliferated.4
Indeed, nothing better reveals the contestation, ambiguity, and deep uncertainties that
characterize the process of market-making than the long debate surrounding the commercial
status of property and the economic role of property-holding. In a recent survey of the
development of modern capitalism in France, Great Britain, and the United States, historian
Alessandro Stanziani explicitly excludes the real property market from his analysis. While “it
would seem necessary,” he writes, “to include the land market in any study of competition,” he
concludes instead that the historically high degree of regulation of these markets makes their
J.-L. Loreau, Du Crédit foncier et des moyens de le fonder, ou Création d’un système hypothécaire appuyé sur le
cadastre, l’enregistrement des contrats et le revenu imposable de la propriété, suivi d’un mode de transfert des
créances sur l’hypothèque analogue à celui des rentes sur l’état (Paris : Hachette, 1841), 8
4
On the politics of property in the English case, see Avner Offer, Property and Politics, 1870-1914.
Landownership, Law, Ideology and Urban Development in England (Cambridge: Cambridge University Press,
1981). For the pressure of socialist thinking on the liberal stance on property, see Paolo Grossi, Lydia G. Cochrane,
trans., An Alternative to Private Property. Collective Property in the Juridical Consciousness of the Nineteenth
Century (Chicago: University of Chicago Press, 1981 [1977]). Several French economists and authorities on
property legislation – such as Paul Leroy-Beaulieu, Victor Flour de Saint-Genis, and Eugène d’Eichthal – penned
pamphlets on property as part of a series of anti-socialist publications sponsored by the Comité de Défense et de
Progrès Social at the turn of the century. The publications of Leroy-Beaulieu on French colonial endeavours are
particularly relevant for their treatment of land policy: L’Algérie et la Tunisie (Paris: Guillaumin, 1887) and De la
colonisation chez les peuples modernes (Paris : Guillaumin, 1874).
3
2
dynamics of less interest: “if we succeed in establishing that other markets were regulated
everywhere by showing the control of commercial transactions in movable property, products
and goods, the argument will hold all the more for the real estate market.”5 Certainly, property
markets were heavily regulated in most western countries in the nineteenth century. Yet
Stanziani assumes and elides a great deal by focusing solely on the realm of commercial,
movable assets. At the end of the nineteenth century – precisely the period that the author
designates as marking a crucial shift in capitalist development – the problem of legally defining
the modes by which land and built property (real estate) could circulate preoccupied
businessmen, legal experts, farmers, rural reformers, politicians, and property-owner
associations.
This paper follows the nineteenth-century debate on mortgage reform and agricultural
credit with an eye to reconstructing the ways that legal frameworks, bureaucratic paper practices,
and international political economy structured the conditions of marketability for real estate. The
wide-ranging discussion on the forms and desirability of the mobilization of land not only helps
illuminate the range of perspectives through which contemporaries understood the nature of
production and value in an economy undergoing rapid industrial and commercial expansion. The
registers, administrative reorganizations, money coupons, and property titles that were proposed
and debated in the context of these discussions also point to the key role of material practices in
constituting property as a particular kind of commodity. This approach builds on insights from
economic sociology and anthropology, particularly recent work on “economization” and
“marketization” by Michel Callon and Koray Çaliskan, and pursues the construction of markets
by unearthing the specific actors at work in the invention of market models and market sites,
5
Alessandro Stanziani, Rules of Exchange: French Capitalism in comparative Perspective, 18 th to early 20th
Centuries (Cambridge: Cambridge University Press, 2012), 9
3
giving attention to the various kinds of expert and lay knowledge mobilized for this task, as well
as accounting for the materiality of both markets themselves and the goods with which they are
concerned.6 This dual emphasis on knowledge and materiality is particularly appropriate for the
study of property markets. The nature of their commodities, notably the resistance of land and
buildings to physical relocation, has a significant impact on the form of these markets, rendering
their efficiency dependent on the centralization of information about and representations of the
land and buildings available for sale or rental. By focusing attention on the contestation that
surrounded the question of mobilizing land values in the long nineteenth century, this paper
complicates our understanding of the place of real estate in our ecology of investment.
A Revolution in Mortgages
There are a number of reasons why France provides a particularly illuminating case study for
better understanding this process of marketization. It was there that the eighteenth-century
individuals first known as economists developed a philosophy of economic growth that placed
primary importance on the wealth-generating capacity of land.7 For the Physiocrats, value
originated in the natural gifts of land; it was augmented by the labour of individuals, and
circulated through the realms of industry and commerce, though these could not themselves
generate or add to this original value. On this model, property ownership was a natural attribute
of man as a productive entity, and landed proprietorship fulfilled a crucial moral and economic
role in civil society, adjusting the social and natural order. Agreement on the social utility of
private property was such that even those opposed to the large estate ideal of the Physiocrats, or
Koray Çaliskan and Michel Callon, “Economization, Part 1: Shifting Attention from the Economy towards the
Processes of Economization,” Economy and Society 38, no. 3 (2009): 369–98, and “Economization, Part 2: A
Research Programme for the Study of Markets,” Economy and Society 39, no. 1 (2010): 1–32.
7
Keith Tribe, Land, Labour, and Economic Discourse (London: Routledge & Kegan Paul, 1978), particularly
chapter 5
6
4
more broadly critical of the rampant inequality that private property perpetuated, tended to
elaborate models of limited ownership that supported a more egalitarian distribution of property
rights rather than to reject private property outright.8 These articulations took on a particular
political importance during the Revolution, when both sans-culotte and republican ideology
demanded the limitation of property ownership in the name, respectively, of the individual
artisan and the virtuous yeoman farmer.9
While the Revolution radicalized reflections on the relationship between property
regimes, civil society, and individual freedom, such concerns were certainly not absent in other
polities. In France, however, the Revolution also transformed the country’s property rights
regime, and undertook some momentous experiments with property commoditization. The
multiple layers of privileges that constituted proprietorship in the ancien régime were leveled by
the abolition of feudalism and the enshrinement of private property as an individual, natural right
in the Declaration of the Rights of Man and Citizen in 1789. In point of fact, peasants had
established de facto private ownership of their lands in many regions of the country before the
Revolution, with use rights having come to predominate over eminent or seigneurial domain in
eighteenth-century jurisprudence. Thus historian Gérard Béaur notes that, "the members of the
Constituent Assembly simply put into law what had already been taken for granted by peasants
for ages.”10 Nevertheless, the import of the Revolution’s new legal framework for property
8
Chantal Gaillard, Le Débat sur la propriété au 18e siècle. Partie I : De la défense à la limitation de la propriété
(Paris : EHESS, Travaux de l’Atelier Proudhon, 1987).
9
James Livesey “Agrarian Ideology and Commercial Republicanism in the French Revolution” Past and Present
no.157 (November 1997): 94-121; Albert Soboul, The Parisian Sans-Culottes and the French Revolution, 1793-4
(Oxford: Clarendon Press 1964); William H. Sewell, Jr. Work and Revolution in France: The Language of Labour
from the Old Regime to 1848 Cambridge: Cambridge University Press, 1980, especially Chapters 5 and 6. For a
broader perspective on the place of property in eighteenth-century political thought, see Michael Sonenscher,
“Property, Community, and Citizenship,” in Mark Goldie and Robert Wokler (eds.), Cambridge History of
Eighteenth-century Political Thought (Cambridge: Cambridge University Press, 2006), pp.465-494.
10
Gérard Béaur, "Les rapports de propriété en France sous l’Ancien Régime," in Ruralité française et britannique
XIIIe-XXe siècles : approches comparées (Rennes : Presses universitaires de Rennes, 2005), pp.187-200.
5
relations cannot be underestimated; henceforth, property “became a private matter, free from
feudal rights, free from the community’s intervention, and from collective use-rights.”11 One of
the most spectacular episodes of the Revolution, the appropriation and sale of ecclesiastical
lands, typified the dissolution of collectively managed ‘national’ lands into real estate packages.
As much as this affair affected the material distribution of land and the social makeup of the
nation’s property-owning class, it was equally revolutionary in the manner it intervened in the
financial life of land.12 The assignat, one of the Revolution’s most infamous creations, was
introduced as a government issued, interest-bearing note intended for the purchase of national
lands. Subsequent issues of assignats abandoned provision of interest and became instead simple
paper notes, but continued to take their underlying value from the total estimated worth of the
national lands (an estimation that was becoming increasingly difficult given the monetary
climate). Anchored by the material reality of national territory, these notes reconciled the
mobility of currency with the immobility – and stability – of land, providing an antidote to fears
of financial chaos inherent to a potentially unhinged and imaginary currency. As historian
Rebecca Spang notes, recognizing the dual nature of the assignat is the only way to make sense
of statements such as that of the former marquis de Montesquiou, who opined in 1790 that: “Yes,
the money is made of paper, but it isn’t a paper money, and so none of the arguments against
paper money are applicable in this case.”13
The revolutionary period was rife with schemes, projects, and fantasies of mobilizing
land values in order to restore the country’s economic vitality. While the assignat provides the
Jean-Pierre Jessenne and Nadine Vivier, “Northern France, 1750-2000,” in Bas van Bavel and Richard Hoyle
(eds) Social Relations: Property and Power (Turnheut, Belgium: Brepols, 2010), pp.139-169, p.139.
12
Bernard Bodinier, Eric Teyssier, L’Evénement le plus important de la Révolution: la vente des biens nationaux
(1789-1867) en France et dans les territoires annexés (Paris: Editions du CTHS, 2000); Louis Bergeron, “National
Properties,” in François Furet, Mona Ozouf, Critical Dictionary of the French Revolution (Cambridge: Harvard
University Press, 1989), pp.511-518.
13
Rebecca Spang, “The Ghost of Law: Speculating on Money, Memory, and Mississippi in the French Constituent
Assembly,” Historical Reflections/Réflexions historiques vol.31 no.1 (2005): 3-25, p.21
11
6
most well-known example, still more profound innovations were attempted in the seemingly
mundane arena of mortgage and land tax reform. François Noël Babeuf, known as Gracchus
Babeuf, prefaced his vision of an egalitarian, communist republic (a vision that would eventually
lead to his execution) with a project for a reformed system of property taxes and land registration
articulated in his 1789 publication, Cadastre perpétuel.14 Babeuf’s proposal for remedying
inequality called for radical transparency in the state of the nation’s land; a new mathematical
system of surveying was elaborated that would lead to more accurate delineations of territory,
and would allow for pictorial depictions of individual parcels to accompany textual records in a
reformed land registry.15 This transparency applied to ownership as well, and the proposed
cadastre was to be ‘perpetual’ insofar as each property record would include space for updating,
allowing the juridical life of the property in question to evolve on the page.16 Babeuf’s was only
the most radical of many such plans; the numerous proposals for mortgage reform presented to
the National Assembly in the years following shared with his project an emphasis on the need to
make fortunes transparent – both to the state and to fellow citizens – in order to ensure a just
distribution of economic rights and responsibilities in the new regime, as well as to reinvigorate
the country’s agriculture and commerce. More than simply attending to economic concerns,
however, these plans were deeply linked to the revolutionary spirit of reform; they were an effort
to undo the system of privileges that had previously encumbered land and its transfer, to replace
14
F. N. Babeuf and J.P. Audiffred, Cadastre perpétuel (Paris : Chez les auteurs et Garnery & Volland, 1789)
On the novelty of visual record-keeping for property contracts, see Daneil Lord Smail, Imaginary Cartographies:
Possession and Identity in Late Medieval Marseille (Ithaca: Cornell University Press, 2000).
16
Eighteenth-century administrators identified as one of the chief inadequacies of seigneurial terriers (registries of
property rights and obligations used for estate management) their inability to simultaneously stand as legal records
of proprietorship and allow for evolution reflecting the fluid nature of land tenure. See Albert Soboul, “De la
pratique des terriers à la veille de la Révolution,” Annales. Economies, Sociétés, Civilisations vol.19, no.6 (1964) :
1049-1065 ; Yves Truel, « Terriers et compoix aux XVIIe et XVIIIe siècles. Coexistence de deux représentations
d’une même terre dans le Haut-Ségala quercynois, » Hypothèses (2010) : 181-194.
15
7
the obscurity of the ancien régime with the clarity and equality of a republic, and to link
individual self-interest with the public good of the nation.
Most noteworthy among revolutionary land reform works were those of Martin-Philippe
Mengin, an official from the mortgage registry bureau whose proposals for monetizing land
values became the basis for a new ‘Code hypothécaire’ or mortgage law instituted on 9 messidor
Year III (27 June 1795). As was the case for many of his contemporary petitioners, Mengin saw
improved facilities for credit for property-owners as a cure-all for the economic and political ills
of the revolutionary period. He proposed a “Banque Immobilière,” or Real Estate Bank, as an
antidote to the dependence of property owners on capitalists, restoring balance between the two
great classes that comprised the whole of economic life.17 Taking aim at bankers for their inept
and expensive intermediation, Mengin’s plan hinged on new form of credit based on land and
guaranteed by the state, which he projected would reduce the cost of money and draw foreign
investment to the country. The cédule, a special mortgage debt instrument, would be available to
property owners from departmental banks on the basis of official evaluations of property value,
up to an amount not exceeding three quarters of this value. With access to reliable and affordable
credit, owners would be free to direct their newly-liquid assets to agricultural improvements and
investment in commerce. National territory, a security that “ne pourra jamais présenter de perte
dans sa valeur” and that further required no intermediary to underwrite this value (precisely
because it was immovable and material, benefiting from a “crédit réel” rather than a “crédit
moral”), would prove uniquely capable of regulating international financial flows, rectifying
17
This division into landowners and commercial classes follows that of the founding Physiocratic thinker François
Quesnay, as elaborated, for instance, in his Tableau économique (1758).
8
France’s trade balances with foreign countries and placing the country once more at the head of
European economic development.18
Mengin’s plans are rich in indications of the profound transformations in economic and
political life occurring during their formulation. His proposal for a “mortgage on oneself”
(hypothèque sur soi-même) was an innovation in financing methods that owed much to foreign,
particularly German, examples; moreover, it was a practice that drew implicitly on the parallels
between sovereigns, uniquely empowered to print or designate money within their realms, and
the property owner, newly able to generate a paper money directly linked to his own domain. In
a political climate permeated by the task of redefining the source and terms of sovereignty,
Mengin suggested a means of endowing individual owners with some of the key trappings of
political authority, albeit within limits that aligned individual with national interest. Yet some
opponents were quick to point out that this new sovereign was a dangerously indebted
individual, his properties not only fractioned into a series of liens, but those liens themselves
mediated through state institutions that ultimately extended government authority over private
property. Reflecting on the code of 9 messidor Year III, Deputy Jourdan (Bouches-du-Rhône)
summarized the layering of debt and obligations on land as “a feudal regime” based on a
“confusion of power and property, the inevitable outcome of which is already evident: an
increase in wealth leading to the subjugation of people.”19
Mengin’s self-mortgage perpetuated the ancien régime amalgamation of land, identity,
and privileges, which while certainly not inhibiting vibrant markets in land, had nevertheless
Martin-Philippe Mengin, Ce qu’est réellement et politiquement une cédule (s.l., s.d.), p.2 ; Martin-Philippe
Mengin, Nouveau plan d’hypothèque (Paris: Imprimerie des Amis Réunis, n.d. [1790]), 70
19
Jourdan cited in Georges Rondel, La mobilisation du sol en France. Ses origines, son avenir, son application
actuelle (Paris : Librairie nouvelle de droit et de jurisprudence, 1888), 163.
18
9
ensured that an economy of prestige undergirded early modern tenure regimes.20 This was
something of a false step, insofar as his goal was to detach land from a multiplicity of
encumbrances that he believed hindered its free circulation. It also introduces the key cleavage
that bedeviled mortgage and land registry restructuring throughout the nineteenth century. The
most basic goal of such reform, upon which all commentators on the matter could agree, was a
system of publicity designed to guarantee the security of transactions, be these transfers of
ownership or credit arrangements. To operate effectively, this system had to be national. The
efficacy of local markets was not at issue; it was obvious to all that property owners were well
aware of the boundaries of estates, the customs governing common space, and the histories of
ownership and use rights that systematized tenure and transfer at the local level. But transferring
these exchanges to the national, or even international, scale required security, transparency, and a
level of standardization sufficient to overcome inequalities of information. Mengin’s plan
provided for constant communication between local officials and a central mortgage
administration, establishing a national database of accurate and easily accessible information on
the legal and financial standing of property, assuring lenders of the validity of their engagements.
The virtue of his system, as Mengin saw it, was that “buildings will be in a constant state of
readiness to be sold and liquidated.” 21 Indeed, the structure of his project – the final third of
which is dedicated to explicating simplified procedures of land seizure and sale – reminds
20
The further one recedes in time, the more profound these confusions were. Laurent Feller writes of the efforts to
marketize land in medieval France, “Il faut que des procédures soient inventées et des garde-fous construit qui
rendent la transaction possible, parce qu’il faut parfois vendre la terre sans que cela signifie s’aliéner soi-même.”
Laurent Feller, “Enrichissement, accumulation et circulation des biens ; Quelques problèmes liés au marché de la
terre,” in Laurent Feller, Chris Wickham (eds.), Le marché de la terre au Moyen Âge (Rome : Ecole française de
Rome, 2005), pp.3-29, 13. Ultimately, great distinctions also have to be drawn between the treatment of urban land
and its rural counterpart, which held different valences within property’s moral economy. See Natacha Coquéry,
L’hôtel aristocratique: le marché du luxe à Paris au XVIIIe siècle (Paris : Publications de la Sorbonne, 1998).
21
Mengin, Nouveau plan d’hypothèque, 56.
10
readers that making property liquid means making it easier to seize, and that security of title
often means insecurity of tenure.
If general agreement was possible on the need for coherent and reliable information on
the standing of property, fervent opposition coalesced around the mobility of property that such a
system was perceived – rightly – to tend toward. Mengin’s plan and the law it helped bring into
being were especially controversial for the ways that they brought into communication the
elements of mobilier and immobilier that define property as an asset. Mengin stressed repeatedly
that it was land itself that entered circulation in the form of a cédule. (Figure 1) The particular,
material nature of individual properties played a key role, both rhetorically and structurally, in
the purported stability of the system. Mengin’s bank would not pool mortgages and issue debt
instruments on that basis (this innovation had to wait until the Crédit Foncier, founded in 1852),
but rather served to connect individual lenders with specific parcels of land. Indeed, the bank was
forbidden from accepting capital from lenders unless it could provide a borrower within one
month. As a representative discussing monetizing land before the Assembly’s finance
commission opined in 1789, the mobilization of land values depended thoroughly on the
particularization of the security:
Offering nothing but an undefined mass of territory for the liquidation of creditors
does not amount to a real liquidation. We have to determine and specify values
[…] Invented monies, of whatever type, can only offer resources insofar as their
values are based on a special privilege on a specific and well known piece of land,
clearly determined and promptly available, not on land in general.22
This need for knowable, bounded, and individualized securities explains why these projects
generally included proposals for the reformulation of the country’s cadastre. In the eyes of their
authors, this immediate relationship between lender and security was one of the most important
22
Anson, Secretary of the Finance Committee, Archives parlementaires, décembre 1789 (Paris: Dupont, 1875), cited
in Rondel, Mobilisation du sol, 85.
11
persuasive tools in the project, distinguishing the cédule (or other mortgage instruments) from
the assignat.23
Figure 1: A sample bill backed on land values, issued by the proposed Banque
Immobilière. From Martin-Philippe Mengin, Plan de Banque nationale immobilière
(Paris: Imprimerie de Momoro, 1790). Source : Bibliothèque Nationale de France.
For highly heterogeneous, immobile assets such as real estate to form the basis for a
vigourous system of financial circulation required a great deal of intellectual and institutional
labour. Local conceptions of value had to be shifted, via expert evaluation and administrative
consensus, into nationally valid registers.24 The agents and methods appropriate to this task were
by no means self-evident. Mengin’s plans and the law itself present a succession of ultimate
Martin-Philippe Mengin, Ce qu’est réellement et politiquement une cédule (Paris : Imprimerie de Du Pont, n.d.)
For a discussion of these tensions of scale in the English case, see Alain Pottage, “The Measure of Land,” The
Modern Law Review vol. 57 (1994): 361-384.
23
24
12
authorities on land values, from participatory community evaluations25 to state-designated
experts26 to market-based estimations.27 All, however, maintained the key basis of the system: a
framework of evaluation that translated the local and particularized into the general and
exchangeable, secured by the legal responsibility of evaluators for the values they affixed to
properties. Any person who found themselves in possession of a debt instrument that could no
longer be supported by the value of the underlying security would have recourse against state
officials for damages. This solution mixed local knowledge (regionalized property markets) and
state authority, covering the inescapable heterogeneity and idiosyncrasies of embedded property
markets with alternate sources of security.
For those opposed to the cédule, the immediate relationship between the individual parcel
and the system’s paper instruments was a source of volatility and immorality rather than
stability. Between the mortgage code of 1795 and the consolidation of the property ownership
and transfer regime that emerged with the Napoleonic Code and its rules of civil procedure in
1807, debates over mortgage reform grappled with the proper relationship between the fixed and
movable elements of real estate. Supporters of mobilization worked to “correct” land’s
immobility by rendering it the basis of a new regime of circulation, while opponents – those who
would see the law of messidor replaced with the code of 11 brumaire Year VII (1 November
1798), which eliminated the cédule – cleaved to an understanding of real estate as
insurmountably fixed. Objections to a potentially disastrous dissolution of the nation’s patrimony
25
Martin-Philippe Mengin, Plan de Banque nationale immobilière, dédié à la nation (Paris: Chez La Villette, 1790).
In this proposal, a public process that engaged the entirety of the local citizenry determined values, as citizens –
summoned by the local mayor upon exiting mass – designated evaluators and voted on the most appropriate
estimate.
26
Mengin, Nouveau plan d’hypothèque, 39-47.
27
Article 49 of the law of 9 messidor Year III required experts to consider simply “How much would a given
property rent for? How much would it sell for?, without any concessions in either case.” See M. J. Chérest, De la
mobilisation du crédit hypothécaire au moyen de titres négociables (Cédule et lettre de rente) Thèse pour le
doctorat, Université de Paris Faculté de Droit (Paris: Arthur Rousseau, 1912), 19.
13
into ephemeral paper money featured in these debates as they had in those on the assignat. Such
abstract, moral considerations took the form of dire prognostications with little substantiation
(hence the recourse to evocative and easily understandable analogies, such as John Law’s land
bank scheme), yet more prosaic doubts also invoked an untenable relationship between the
immovable and the circulating. What of the effects of time, for instance, which could just as
easily lead to the depreciation of a property as to its improvement?28 The particular physical
nature of the security left its paper representation vulnerable; houses could burn, barns could rot,
and roads could wash away, all while debt instruments on now devalued property circulated as if
still safely redeemable. Proponents of the cédule might proclaim ceaselessly that “nothing could
alter confidence in the instrument, because the object upon which it is based would be known
and indicated in an obvious manner,” but opponents and sympathetic skeptics replied that it was
folly “to try to fix a real estate value once and for all. It is impossible to say officially that a
property has this or that value.”29 Admittedly, there were high political (not to mention
economic) stakes riding on the particular shape of mortgage reform, and seemingly principled
expressions of disquietude regarding the circulation of wealth could cloak potentially unpopular
positions – such as a desire to protect the lands of the Church and émigrés from monetization
that would further complicate their status. Yet even if insincere, the broad intelligibility of this
position is important, both because it ran counter to the daily experiences of a national populace
thoroughly familiar with (and dependent on) paper credit and debt instruments, including a well-
28
Indeed, as finance minister Anne Robert Jacques Turgot remarked in his Mémoire sur les municipalités, built real
estate was “une commodité dispendieuse,” or an ‘expensive commodity.’ In context, it is not inappropriate to
translate this phrase as ‘wasting asset.’
29
Mengin, Banque hypothécaire, 78; Chérest, De la mobilisation du crédit hypothécaire, 25-6.
14
developed mortgage market, and because it proved deeply influential in shaping nineteenthcentury legal and economic structures.30
Much of the work of these mortgage codes was undone by the Napoleonic Code, the
strictures of which generations of analysts considered an insufficient framework for property and
mortgage registration. Like the mortgage practices it supplanted, the Code was born of a
particular political and economic context that left its mark on its dispositions. While the law of
11 brumaire Year VII had required registration in order for transactions to be legal between
parties, this requirement disappeared with the Napoleonic Code, article 1583 of which
recognized sales as legal and complete once consenting individuals agreed to the item to be
exchanged and its price. This was a system based entirely on the sanctity of private contract; it
required registration only for certain acts relating to property (substitutions, donations, and
mortgages) and then only in order for the transaction to be legal vis-à-vis third party claims.
More broadly, the speculation on nationalized lands that followed the French Revolution led
lawmakers to exclude real estate transactions from commercial law, seeking in this way to slow
down and stabilize property exchange. Landed and built property, classified as a bien immobilier
or real property, as opposed to a bien mobilier, personal or moveable property, was excluded
from the realm of merchandise, and made subject to the civil rather than commercial code.31
These conditions established a cumbersome system of land transfer, which by ensuring that
30
Philip T. Hoffman, Gilles Postel-Vinay, Jean-Laurent Rosenthal, Priceless Markets: The Political Economy of
Credit in Paris, 1660-1870 (Chicago : The University of Chicago Press, 2000) ; Gilles Postel-Vinay, La Terre et
l’argent. L’agriculture et le crédit en France du XVIIIe au début du XXe siècle (Paris : Albin Michel, 1998) ;
Laurence Fontaine, “Antonio and Shylock: Credit and Trust in France, c.1680 – c.1780” Economic History Review
vol.54, no. 1 (2001): 39-57, and Fontaine, L'économie morale : pauvreté, crédit et confiance dans l'Europe
préindustrielle (Paris : Gallimard, 2008); Julie Hardwick, Family Business: Litigation and the Political Economies
of Daily Life in Early Modern France (Oxford: Oxford University Press, 2009), particularly Chapter Four.
31
R. Défrétière, Essai sur la condition des marchands de biens. Les données actuelles du problème de la
commercialité des opérations immobilières (Paris: Les Presses Universitaires de France, 1923).
Gabriel-Victor-Jules Demontzey, Etudes sur le développement parallèle de la propriété mobilière et de la propriété
immobilière en droit français, Thèse pour le doctorat, Faculté de Droit, Université de Strasbourg (Strasbourg :
Imprimerie Huder, 1854).
15
property could not fulfill the critical conditions of a movable good – namely the simplicity and
rapidity of transfer, based on transparent and publicly-consented-to pricing – became a
justification that continually perpetuated those legal categories.
The Civil Code approached property as patrimony rather than as exchangeable asset.
Napoleon himself rejected the mortgage law of brumaire Year VII because it “was a system of
mobilizing land,” whereas on the contrary, the state found its advantage “in the stability of
property within the same families.”32 The Code perpetuated associations between landed
proprietorship, nobility, and social order; its treatment of real estate was tinged with an anticommercial ethos that found little value in facilitating the expansion of credit and debt. The same
commitment to conservation governed the controversial inclusion of the doctrine of rescision
pour lésion d’outre moitié in the code. This is a provision (which remains in force today) that
allows a seller of real property to seek damages or an invalidation of a sale if they suffer a
prejudice in excess of half the value of the property. It assumes that real property has an
objective, exogenous value, independent of the price that contracting parties attribute to it, and
that a deviation of price from value sufficient to violate principles of equity can consequently
occur. Importantly, this doctrine, with deep roots in Roman law as well as in French customary
and canon legal traditions, applies in the French case only to real property, whose value is here
construed as both intrinsic and knowable.33 In cases of lesion d’outre moitié the state’s solicitude
32
Cited in Anne-Marie Patault, Introduction historique au droit des biens (Paris: Presses Universitaires de France,
1989), 211. On lésion d’outre moitié, see Arthur Taylor von Mehren, “The French Doctrine of Lésion in the Sale of
Immovable Property,” Tulane Law Review vol. 49 (1974-5): 321-328, and Judith A. Miller, “Des contrats sous
tension: rétablir la propriété après la Terreur,” Annales historiques de la Révolution française no.352 (avril-juin
2008): 241-262.
33
Léon Lacomme, Des Mineurs de vingt-cinq ans, en droit romain. De la Rescision de la vente pour lésion en droit
français, Thèse pour le doctorat, Faculté de droit de Paris (Paris: Imprimerie A. Parent, 1873), 129. See the
statements of the jurist Jean-Etienne-Marie Portalis, one of the four authors of the Civil Code, rejecting the
possibility of determining prices for movable goods in the matter of lésion d’outre moitié: “It is clear that the
frequent exchanges and extreme price variations of movable goods makes rescission for damages of more than half
in their sale or purchase impossible, unless the intention is to introduce complete chaos into all commercial relations
16
and intervention was warranted by an obvious inequality between the seller, whose consent to an
inadequate price could only indicate duress and the necessity to sell, and the buyer, whose
opportunistic purchase could never be justified on grounds of an obligation to buy. Despite the
fact that it had been increasingly condemned in the eighteenth century as a violation of the
freedom of contract, and banned during portions of the Revolutionary period as a measure that
further unsettled commercial relations, the doctrine’s inclusion in the civil code was demanded
as an act of justice and humanity.34 Napoleon reasserted the importance of such laws for
protecting both individual and national patrimony, explaining that rescission “is a moral law that
concerns territory. The way an individual disposes of some diamonds, some paintings, is of little
importance; but how he disposes of his landed property is not without importance to society, and
society must set the rules and limits of that right of disposal.”35
The legal and administrative regime that emerged at the turn of the century thus
established a complex framework for the transmission and exchange of real property in the
nineteenth century. The stability of family fortunes was a vital concern to the state, yet their right
to secrecy was such that recording property sales was not required. The authority of the selfowning individual assured the sanctity of contract in those sales, unless that contract deviated
injuriously from the objective value of the estate in question, in which case external expertise
adjudicated a contract’s validity. Contracts could be rescinded in the name of protecting legacies
and inheritances, while laws of succession maintained Revolutionary requirements that heirs
and completely arrest the course of life’s daily operations.” And further, his assertion that rescission for movable
goods, in contrast to immovable, would require “excessively arbitrary discussions in an effort to determine whether
an item is more or less valuable.” Cited in Paul Anglès, De la lésion en droit romain et en droit français, Thèse pour
le doctorat, Faculté de droit de Lyon (Lyon: Imprimerie Schneider frères, 1878), 97.
34
Indeed, common interpretation of the law’s Roman roots emphasized its intention as a “humane” measure. Anglès
writes, “Diocletian’s goal was to come to the aid of a seller who gave way to an urgent need of money, to an
overwhelming necessity. It was not justice, or even equity that warranted this exceptional intervention; it was
compassion.” Anglès, De la lesion, 55.
35
Cited in Anglès, De la lésion, 96-7.
17
inherit in kind, not merely in value, preventing the substitution of real property by a cash proxy
and imposing the subdivision of landed estates. The abolition of feudalism and the declaration of
private property as a natural and universal right may have transformed real estate into a more
transparent object of exchange, but the conditions of its circulation remained far from liberal.
The mobilization of property persisted as the chief demand of those who believed that the
nation’s economic vitality depended as much on a brisk commerce in land as it did on industrial
and commercial expansion.
Mortgages and the Paper Life of Property
While the proposals and positions of the mortgage reform debate in the nineteenth century
continued to resonate profoundly with those set out by Mengin and his opponents, the
Napoleonic renovation of the country’s legal system provided a new framework for the debate.
The new code reorganized long-existing legal procedures and remained fundamentally
conservative in its innovations. The divisions it maintained between civil and commercial codes
both reinforced and reflected longstanding beliefs with regards to the nature of land and credit,
solidifying eighteenth-century ideas on the distinction between agriculture and commerce.
Mortgage reform would of necessity involve revision of many elements of the newly elaborated
civil code. But more importantly, the separate spheres of the code meant that many reforms, such
as the question of what formalities needed to accompany the transfer of mortgage debt
instruments, had to be articulated explicitly in terms of the extent of commerciality that could
(and should) legitimately adhere to the act in question. Legal reasoning thus centered particularly
on the boundaries and constitutive conditions of market activity, and brought into sharp focus
concerns which were held at all levels of society about the appropriate relationship between the
commercial and non-commercial realms.
18
More generally, the debates of this period are an illuminating attempt to come to terms
with the potential and pitfalls of a rapidly expanding industrial economy. Authors presented their
proposals as efforts to readjust the balance between agriculture and commercial and industrial
pursuits. F. Pougeard, the author of several studies on the mortgage question, saw in his projects
the means to draw capital way from “the insidious gambling of the Stock Exchange, or from
artificial industries” and back “to the mother of all industries, to AGRICULTURE. […] Need we
be reminded by Jean-Baptiste Say, that famous and too rarely cited economist, ‘that the capital
most advantageously employed for a nation is the capital that enriches its agriculture’?”36 As
these commentators perceived it, France’s primordial source of wealth, the great natural bounty
that placed land and agriculture at the heart of eighteenth-century political economy, was at a
disadvantage in a diversified investment environment, one with profound ramifications for
national identity as well as the national economy. Given the obvious economic and moral
superiority of agriculture over other sectors, this imbalance could only be the product of
ineffective legislation. What else could explain the paradox that, as public domains administrator
J.-L. Loreau wrote in 1841, “land is so rich and yet so devoid of credit”?37 In a work that
appeared in 1829, author Louis Gastaldi wondered at the “upheaval in the natural order of
things” that led “credit on land to be considered inferior to personal credit.” After all, while land
had a real value, “founded on a solid and productive source of wealth,” the personal credit of the
commercial realm was “abstract, based only on opinion.”38 Legal frameworks that were intended
to reinforce the “natural order” – for instance, by supplying legal privileges for realty that were
denied to personalty – instead distorted it by discouraging investment. Deputy and President of
36
F. Pougeard, Du régime hypothécaire considéré comme institution politique et sociale (Bordeaux : Imprimerie de
Lavigne, 1843), 16. Emphasis original.
37
Loreau, Du crédit foncier, 5
38
Louis Gastaldi, Recherches sur le crédit foncier, ce qu’il est, et ce qu’il devrait être (Paris : Delaunay, 1829), 5
19
the Chamber André-Marie-Jean-Jacques Dupin put his finger on the issue in 1836, when he
argued in favour of legislative reforms to heal what he construed as a disastrous gap in the
security of title and ease of transfer between real and personal assets: “In commerce, everything
is fast: the seizure of goods, the seizure of individuals, personal honour – everything is affected
when you don’t pay on time! In civil law, on the other hand, owing to a prejudice that originates
in the land and which is reinforced in our legislation […] it is the debtor that is protected, and the
creditor who expropriates is odious.”39 The result was that in practice, if not in theory,
commercial credit gained the upper hand.
Jurists, legislators, and members of the banking community embarked on individual and
collective rethinking of the nation’s mortgage system within only two decades of the
promulgation of the Napoleonic Code. As early as 1826, prominent banker and Deputy Casimir
Périer issued a public call for projects, offering a 3000 franc prize to the author who most
effectively isolated the vices of the current system, outlined the obstacles preventing the flow of
capital to land, and drafted the most appropriate legislative plan for rectifying both. Périer’s call
inspired many works, most prominent among them those of Alphonse Decourdemanche, one of
the most active – and actively self-promoting – mortgage reform advocates of the first half of the
nineteenth century.40 The same petition that sparked the comments of Deputy Dupin noted above
led to a national consultation with law courts and faculties on the state of the country’s mortgage
system in 1841, while the radical political revolution of 1848, which came on the heels of a
severe agricultural crisis, was the occasion for an outpouring of projects and legislative debate on
39
Cited in : Déclaration aux notaires, aux conservateurs des hypothèques, aux géomètres du cadastre, aux
propriétaires fonciers, et à toutes les personnes intéressées au succès des travaux de législation de M.
Decourdemanche, Tendant à la consolidation des propriétés immobilières et à l’établissement du crédit foncier en
France (n.p.: 1836), 22-3.
40
Decourdemanche’s most important work, Du danger de prêter sur hypothèque et d’acquérir des immeubles,
appeared in 1829, and was revised and reprinted many times.
20
mortgage reform and agricultural credit.41 The nation’s central mortgage bank, the Crédit
Foncier, and new legislation on the registration of property transactions would emerge in 1852
and 1855 from the confluence of these crises and the long period of remarkably vigorous debate
that predated them.
The legal life of property and the search for security
The projects that proliferated in the 1830s and 1840s varied in their sophistication, as well as in
the problems and solutions they described. Many adhered to what might be called a weak
program of reform, limited to a consideration of legal revisions that stood to improve the security
of land as a guaranty. There was basic consensus, evident even among the majority of the legal
opinions expressed in the context of the 1841 consultation, that fundamental conditions for
security in land titles were inadequate, stunting confidence amongst potential investors. As
Decourdemanche bluntly remarked, “strictly speaking, there is not a single property owner who
can be certain of not being ousted from a property he owns, nor any lender who can be sure of
not losing his claim.”42 The fact that sales of property did not have to be registered was seen as
an absurd obstacle to the security of transactions. Yet even if recorded, the reliability of the
transaction remained in jeopardy. Weeks of tedious research in tax offices, mortgage registry
bureaus, civil registry offices, and other administrative locales would be required to ascertain a
sale’s validity beyond a shadow of a doubt. But even the most assiduous research could not
reveal what was studiously concealed. Of particular concern was the status of general and
automatic legal claims that married women and minor wards retained on the real property of
their husbands and guardians. Under the Napoleonic Code, these did not have to be registered,
41
The Bibliographie de la France for 1848 lists forty-six substantial publications on the topic. See Bibliographie de
la France (Paris : Pillet aîné, 1848), 277-8
42
Alphonse Decourdemanche, Du danger de prêter sur hypothèque et d’acquérir des immeubles (Paris : Moreau,
1829, 2e édition), 3.
21
nor, if they were registered, did their amounts have to be specified. Reformers severely maligned
these “secret” or “concealed” mortgages, which enjoyed privileged positions in repayments and
particularly jeopardized the claims of creditors on an estate. Napoleon’s reflection that
“simplicity in legislation is the enemy of property” was frequently cited in exasperation by
reformers who championed increased transparency and centralization of information as the sine
qua non of a flourishing market in land and mortgages.43
Reforming the paper life of property was thus a preoccupation of mortgage reform
proponents. Plans ranged from fundamental administrative overhaul, such as combining the
diverse bureaus involved in the registration of acts pertaining to property into one “central public
archive,” to the reorganization of the columns formatting data on the sheets of existing
registries.44 Decourdemanche’s treatise contained pages of sample sheets that demonstrated how
a revised system of registration could work in coordination with the cadastre to make the
recording and referencing of information on land parcels a simple matter of rapid crossreferencing. (Figure 2) A proposal from Jean-Louis Langlois, a deputy from the department of
the Eure in 1848, aimed to “modify our civil laws to agree with commercial practice” and
described directories that would combine the civil registry, the cadastre, and the mortgage
registry.45 These directories would not merely link the personal credit of the individual to the real
credit of land; by assembling different ways of knowing about borrowers and their security, they
created a different kind of asset, ensuring that “the person of the borrower would weigh
Procès-verbaux du Conseil d’état, contenant la discussion du Code Napoléon (Paris : Imprimerie impériale, 1808,
2e édition), vol. 4, 412
44
On a central archive, see Gastaldi, Recherches sur le crédit foncier, 76-83. Loreau, Du crédit foncier proposed
combining the state mortgage and registrar bureaus as the basis for improved information sharing. The Ministry of
Finance addressed the question of administrative reform – namely, the possibility of combining, in various
permutations, the offices of Direct Taxation, Registrar, Mortgage Administration, and the Cadastre – extensively in
the 1841 legal consultation. See Documents relatifs au régime hypothécaire, vol.3, 532-551.
45
[Jean-Louis] Langlois, Du crédit privé dans la société moderne et de la réforme des lois qui doivent le constituer
(Paris : Joubert, 1848), 9, 100-122. Langlois’s system of combined registration expanded on that developed by
Loreau, Du crédit foncier.
43
22
significantly in the decision of the creditor.”46 The compilation and arrangement of information
in pursuit of a rationalized property and mortgage registry was not a simple matter, nor one to be
taken lightly. The form of property’s existence on paper helped shape its legal standing.
Figure 2: A page from
the reformed property
registry of Alphonse
Decourdemanche, Du
danger de prêter sur
hypothèque (1829).
Source: Bibliothèque
Nationale de France
46
Langlois, Du crédit privé, 102
23
When considering the question of potential reorganization of mortgage administration in 1841,
the Ministry of Finance not only addressed the complex expertise and legal responsibilities that
would necessarily be required of new positions, but critiqued the material practices that would
result:
One of the advantages of the system currently in place is that acts are transcribed
and mortgages registered on directories provided by the administration, each page
numbered and signed by the president of the civil tribunal and closed daily by the
registrar. In the new system, these registers would be replaced by excerpts from
acts submitted by public officials; in other words, by loose papers that the
registrar would assemble in a binder. This single change would eliminate all the
physical protections against insertions, substitutions, and subtractions that have
been carefully provided by the foresight of legislators and the administration,
risking not only the security of individual rights, but also the legal responsibility
of the administration’s agents.47
Indeed, the question of the legal power of these documents and of the administrators who
managed them was of critical importance to the question of mortgage reform. In discarding the
oft-lamented registration regime of the brumaire mortgage system, the Napoleonic Code had
rejected the German model of land registry that it explicitly emulated. This model remained
profoundly relevant for reformers (as a promise or a warning, depending on their outlook) until
the end of the nineteenth century; most of the authors so far discussed opened their proposals
with reference to the possible applicability of the German system to France. Germanic states
certified and accomplished land transfers through inscription on registers that served as the legal
record of the existence of the property in question, including the status of its owners and all
possible liens against the property.48 More than simply providing a public accounting of the state
of real estate within its jurisdiction, the Grundbuch (as the consolidated nineteenth-century
47
Documents relatifs au régime hypothécaire, vol.3, 538-9
Such systems existed in some cities and larger jurisdictions throughout the German territories from, in some cases,
the 12th century. They were consolidated and applied to the entire German empire in 1872 (law of 5 May 1872).
Emile Worms, De la propriété consolidée, ou Tableau historique et critique de tous les systèmes les plus propres à
la sauvegarde de la propriété foncière et de ses démembrements (Paris: E. Dentu, 1888), Chapter Three.
48
24
register was known) granted legal standing to the transactions and transmissions it collected.
Sales were incomplete without being inscribed on its pages, and conversely, a notation within its
folios was sufficient to enact a transfer. In short, the Grundbuch conferred rather than recorded
title. The authority vested in the land registry system stemmed from a property regime based on
the eminent domain of the state over all proprietorship. Property, in the German legal system,
was “always being born;” at each transaction “it returns to its source,” the state, from which the
new owner acquires their right, rather than from contract with the previous owner.49
Thus the question of mortgage and land registry reform invoked competing notions of the
proper relationship between the state and private property rights. While proponents of the
German system lauded the modern efficacy of its transparent procedures, detractors blasted its
“materialism” as feudal and primitive, equating its acts of transcription with the “coterie of
sacramental solemnities” and swapping of tokens that accompanied land transfers in tribal
societies.50 More particularly, in drawing comparisons between the political cultures of the two
countries, French critics of the Germanic system decried the elevation of state officials and
public authority over the rights of freely-contracting citizens engaged in private transactions. As
the eminent jurist Raymond-Théodore Troplong wrote in his reflections on the 1855 French law
on mortgage registration, “the right of proprietorship is too dearly valued in our country to be
given over to the discretion of a voluntary jurisdiction that will make decisions without
awareness of the facts.”51 The legal force of the Grundbuch privileged state authority over
private contract, just as its material form – which organized the national territory by land parcel
rather than by property owner – privileged the legal biography of the property over the legal
49
Rondel, La mobilisation du sol en France, pp.21-7 ; Léon Estivant, Etude sur la mobilisation de la propriété
foncière dans l’act Torrens (Paris : Arthur Rousseau, 1899), 4
50
Raymond-Théodore Troplong, Privilèges et hypothèques. Commentaire de la loi du 23 mars 1855 sur la
transcription en matière hypothécaire (Paris : Charles Hingray, 1856), 16
51
Troplong, Privilèges et hypothèques, 62
25
standing of individuals. For some, such as Victor-Bénigne Flour de Saint-Genis, an official with
the mortgage registry and prolific writer on the subject in the second half of the nineteenth
century, this was a system incompatible with a democratic polity in which the individual formed
the basis for the national community:
In Latin countries, all the incidentals of social and civil life are based around the
individual; property rights […] are simply the extension of individual will and
initiative. The opposite holds true with Germanic peoples, where feudal traditions
have survived; there the land is everything, and man is incidental.52
While Flour de Saint-Genis believed the French system erred in building its land registration
system exclusively around the individual (who was, after all, “insubstantial and fleeting” in
comparison with durable land), he felt that the German system lacked the subtlety required to
balance the legal personality of land and that of its owners. If German property was constituted
anew at each scratch of a bureaucrat’s pen, French property was a historical artifact that took
shape, both physically and legally, thanks to the workings of owners across generations.
From security to securitization: Mobilizing property
Concern with paper life of property took on even greater importance in the many works that
treated the mobilization of land values and mortgage debt. If the weaker version of French
mortgage reform coalesced around provisions that strengthened the security of property titles, a
stronger program of reform emerged from a range of projects that sought to facilitate the
circulation of these newly-secure claims. Here again the German model was crucial; based on the
unshakeable security of their property titles, several German states provided examples of some of
the most radical experiments with property mobilization, in which land served as the basis for
52
Victor Flour de Saint-Genis, Le Crédit territorial en France et la réforme hypothécaire (Paris : Guillaumin et Cie,
1889, 2e éd.), 11.
26
negotiable instruments that circulated either as interest-bearing notes or as forms of currency.53
The move from the fixing of land as a secure and transparent asset to the mobilization of its
values – the wedding of immobilier and mobilier – was a controversial one. It involved
surmounting legal obstacles that inhibited mortgages from circulating with the ease of
commercial instruments. It required careful negotiation of monetary theory, and reckoning with
the fears of those who saw a new form of “paper money,” contemptible and catastrophic, in the
range of coupons, bonds, obligations, and contracts that might be backed on land. It meant
quelling or overcoming moral objections that opposed the alleged transformation of property into
a gambling chip. Yet those seeking to place agricultural investment on par with the more
dynamic sectors of the French economy recognized that the ease with which a credit contract
could be paid out, either through exchange or liquidation, was just as important to its
marketability as its security. As Decourdemanche wrote, “If state bonds have occasionally
reached such high prices, despite having no material basis, it is because they are easy to sell.
Since land cannot decay, how much higher might its price reach once its instruments can be as
easily transferred as bonds?”54 The market for movable assets, where supply and demand met in
conditions of transparency and carried out their business with minimal cost and maximum speed,
provided the inevitable model for reformers.
Just what, precisely, did contemporaries mean when they lauded or harangued the
“mobilization of land”? As one treatise remarked in 1849, “everyone seems to have more or less
understood that with regard to the question of land credit, we are dealing with a mobilization of
property, at least of that portion of land that is mortgaged. But the means of that mobilization
53
See, for instance, Jules Challamel, De la cession des créances hypothécaires, etude sur les cédules hypothécaires
(Handfesten, bons fonciers) (Paris : Challamel aîné, 1878)
54
Decourdemanche, Déclaration aux notaires, 13
27
have not yet been found.”55 Even within this statement, which underestimates the complexity of
the question and overestimates consensus, ambiguity is evident between property and mortgages,
between physical land and its credit, between property rights and their financial equivalents.
Mortgages were by their nature hybrid artifacts that lent themselves to this conceptual ambiguity.
Paper avatars of property ownership, they were designed to stand in for a physical transfer of
proprietors, allowing a debtor to remain in possession of the good that formed the security of the
debt, the land, while granting the creditor rights to payments and, in the final eventuality, powers
of expropriation over the property. In narrow legal terms, the concept of mobilizing land
emerged as a way of talking about the possibility of “correcting the immobile elements” of this
artifact and granting it the character of a bien mobilier or movable good.56 More particularly,
mobilization referred to legal revisions that would be required to allow mortgages, which were
real and civil (as opposed to personal and commercial) legal claims, to be transferred and
exchanged in accordance with the simplified rules that characterized commercial trade. Might it
be possible, for instance, for a mortgage to change hands by means of simple endorsement, from
one creditor to another, after the fashion of bills of exchange? While this mode of transfer was
not explicitly prohibited by law (and, indeed, had even on occasion been upheld in
jurisprudence), legal opinion insisted on the theoretical incommensurability of mortgages and
other commercial instruments. The former were contracts that were embedded and
ungeneralisable, and hence not freely transferable. The Court of Paris concluded in 1841 that
“the consequences of a mortgage contract, the rights it grants over property and the reciprocal
obligations it imposes on creditor and borrower” made it both illogical and dangerous to
55
A. de Clinchamp and J.-A. Leeker, De la richesse mobilière et de la nécessité de la créer en France, Essai sur le
crédit foncier, le crédit agricole et l’instruction agricole (Paris : Garnier Frères, 1849), 3
56
M. J. Chérest, De la mobilisation du crédit hypothécaire au moyen de titres négociables (Cédule et lettre de rente)
Thèse pour le doctorat, Université de Paris Faculté de Droit (Paris: Arthur Rousseau, 1912), 12-13
28
encourage the ability of the creditor “to change from one moment to the next, thanks to a simple
endorsement.”57
The question of endorsement opens up the heart of the debate on the mobilization of
property. For enthusiasts, the multiplication of paper instruments in the expanding industrial
economy provided a glittering path for the release of untold wealth locked in the form of dirt and
houses. Pougeard proposed the development of “real estate shares” that would trade on an
exchange overseen by the state, “a centre where the respective needs of borrowers and lenders
will meet and balance,” much like the nation’s stock exchange.58 The registries discussed above
were proposed as “grands livres de la dette foncière” or national registers of mortgage debt,
parallel to the “grand livre de la dette publique” that tracked the placement of state bonds.59 The
report issued by representative Louis-Hugues Flandin in 1848 marveled at the simplicity of the
logic of “monetized” (monnayée) land:
The state has its credit instruments; commerce and banking have their own credit
instruments. The state’s paper is simply the representative sign of its tax resources; the
tradesman and banker’s paper is simply the representative sign of their business and their
capital. A property owner’s paper will be the representative sign of that portion of their
land estimated to be of equal value to that which it is exchanged against.60
Despite the seductive felicity of such comparisons, for skeptics the gap between security and
securitization remained as disastrous as it had been in 1797, when Deputy Jourdan drew stark
contrasts between mortgages and their mobilization: “the first is a system that reinforces
obligations, the second one that destroys them; in the first, claims take on the solidity of
57
Documents relatifs au régime hypothécaire, vol.1, 567
Pougeard, Du régime hypothécaire
59
Louis Wolowski, De l’organisation du crédit foncier (Paris: Guillaumin et Cie., 1848), 44. See also Nigay
Principales bases d’un système de crédit foncier, au comité general de l’agriculture et du Crédit Foncier (Paris :
Lacour, 1848), which proposed a “grand-livre du crédit sur hypothèques privées” that would be “numbered and
signed just like registers in use for the civil registry” (p.16), and Langlois, Du Crédit privé, which recommended the
establishment of a “grand-livre du crédit hypothécaire” (p.135).
60
Cited in Wolowski, De l’organisation du crédit foncier, 12. Emphasis original.
58
29
property, whereas in the second, they take on the quality of movable goods, monetary goods,
even of assignats.”61
Jourdan’s statement is particularly useful as an indication of the spectres that haunted
mortgage and land reform debates. Once mobilization became monetization, proponents of a
flourishing trade in mortgages and land values had to grapple with accusations of reducing land
to “paper money,” a term that immediately (and intentionally) evoked both the failures of John
Law’s early-eighteenth-century banking scheme and the ruinous Revolutionary adventure with
assignats. These were not unfounded comparisons. Decourdemanche’s projects explicitly revived
the cédule, even going so far as to recommend that readers consult Mengin’s projects in order to
get an idea of the physical form of the mortgage instruments he was describing.62 The
revolutionary context of 1848, which saw a multitude of land monetization schemes proposed as
solutions to temporary and long-term economic problems, further solidified links between
revolution and fiduciary experiments.63 In legislative debates on the possible issuance of 2 billion
francs worth of notes that would be guaranteed by the state, backed on land values, and circulate
as legal currency, Adolphe Thiers drew liberally on easy and alarming analogies to disastrous
experiments with paper money: “You will use the law to tell people ‘Accept mortgage paper,’
and they will accept it; yes, they will accept it like they accepted assignats.” More dramatically,
he opened his speech with an inflammatory recollection of “those two terrible souvenirs of the
61
Le Moniteur Universel, no.104, 14 nivôse an V (3 janvier 1797), 415
Decourdemanche, Du danger de prêter sur hypothèque, 41-42, 83
63
A commission named by the legislature to study the question of mortgage reform and land banks issued a
nineteen-point project that included the creation of freely circulating mortgage instruments in 1848. See LouisHugues Flandin, Rapport fait, au nom du Comité de l’agriculture, sur les propositions des citoyens Turck et
Prudhomme, relatives à l’établissement du crédit foncier (Paris : Imprimerie de l’Assemblée nationale, 1849). For a
summary of the most prominent proposals discussed in 1848, see Robert Le Bret, Des procédés de mobilisation de
la propriété foncière expérimentés ou proposés en France et dans les principaux états étrangers, Thèse pour le
doctorat, Faculté de droit de Paris (Paris : Imprimerie des Ecoles, 1888), 158-212
62
30
Revolution, the scaffold and paper money,” leaving little uncertainty about the dire ends to
which such forms of mobilization necessarily tended.64
So powerful were these spectres that proponents of mobilization dedicated considerable
time to excising them. Louis Wolowski, a Polish expatriate who worked tirelessly to enlighten
the French on the potential of land banks throughout the 1830s and 40s, distinguished between
Law’s commendable fiduciary principles and the “system” that led to his demise.65 The cédule
remained an unavoidable touchstone for all those engaged in a more thorough-going strain of
mortgage reform – indeed, it reappeared as an unbidden ghost in mortgage reform literature until
the early twentieth century – and here again Wolowski offered some precisions, noting that the
mortgage law of Year III “did not, as it is often accused, endeavor to mobilize land itself, thereby
eroding the nation’s landed wealth; it sought merely to mobilize mortgage titles, which is not at
all the same thing.”66 He was equally precise in his discussion of monetization, praising Deputy
Léon Faucher for delivering a speech in 1848 that rejected paper money, but cautioning both he
and Thiers against confusing the “dead idea” of “monnaie hypothécaire” with the “living idea” of
“crédit territorial.”67 Indeed, the years around 1848 saw a profusion of possibilities for the types
of instruments that might best mobilize land and its values. Whether bills representing mortgage
obligations should circulate from hand to hand; whether they should garner an interest; whether
they should be exchangeable versus hard currency; whether they should be issued and
guaranteed by the state or by private companies – all of these were topics of lively debate, to say
64
Discours sur le Crédit Foncier par M. Thiers (Paris : Michel Lévy Frères, 1848), 24, 4
Wolowski, De l’organisation du crédit foncier, 25-28, 36-37. Wolowski became the director of the Banque
Foncière de Paris, the institution founded in 1852 that would rapidly become the Crédit Foncier de France.
66
Louis Wolowski, « Hypothèques, » in Coquelin and Guillaumin (eds.) Dictionnaire d’économie politique
(Bruxelles: Méline, Cans et Cie, 1853), vol.1, pp. 978-992, 982.
67
Wolowski, De l’organisation du crédit foncier, 6
65
31
nothing of the nitty gritty of banking and fiduciary theory, the amounts under discussion, the
most fitting way of determining land values, or even the colour of the proposed bills.
Despite the careful distinctions drawn between the mobility of credit and the mobility of
territory, there is little doubt that an increase in trade in land itself was a component of
mobilizing schemes, particularly amongst liberals such as Wolowski, Flandin, and Jean-Baptiste
Josseau.68 Elsewhere in his writing, Wolowski made no secret of the desirability of ensuring that
easy credit helped facilitate transactions, ensuring that property “can move into the hands of
those who can best exploit it.”69 The slippage between transferable paper and transferable
patrimonies was, however, much resisted by many mid-century commentators, and became
increasingly suspect as agricultural crises worsened at the end of the century. In the legal
consultation carried out in 1841, it was impossible for the participating courts and law faculties
to separate the question of transferable mortgage titles from the circulation of the land itself. The
national Court of Appeals rejected “all provisions that tend toward facilitating the more rapid
circulation of what is called real estate capital, or rather, that tend toward putting land and
buildings themselves into circulation.”70 The Court of the city of Colmar pointed out that while
the circulation of capital was a sign of wealth and prosperity in a nation, the circulation of landed
property, particularly in a society “in which man holds so dearly to the land,” could only be a
sign of decline. The inevitable conclusion, then, was that “instead of promoting the mobilization
of land, it is important that it be as immobile as possible,” that, as the Court of Nancy added, an
“artificial mobilization” be denied in favour of “the natural bond between man and landed
68
Jean-Baptiste Josseau, Traité du crédit foncier, ou Explication théorique et pratique de la législation relative au
crédit foncier (Paris : Cosse, 1853) ; Jean-Baptiste Josseau, Des institutions de crédit foncier et agricole dans les
divers états de l’Europe (Paris : Imprimerie Nationale, 1851)
69
Wolowski, De l’organisation du crédit foncier, 43-4; Louis Wolowski, “De la division du sol” Revue des Deux
Mondes vol.27 no.10 (1er juillet 1857) : 640-667, 645
70
Documents relatifs au régime hypothécaire, vol.1, 500
32
property.”71 Even if, as the Court of Limoges recognized, the sorts of mobilization envisioned by
the question of endorsement were not the same as those envisioned by the architects of the
mortgage law of year III, easily negotiable mortgages would invariably see “family farms spread
out on the gaming table, mixed in with bearer bonds in the corridors of the Stock Exchange.”72
From hand-wringing about the fate of smallholdings once hoards of “illiterate peasants”
were granted access to the seductive world of the Stock Exchange, to expert outrage at the
mutations of monetary theory at work in the sudden creation of billions in new currency, there
was no shortage of reasons undergirding opposition to the mobilization and monetization of land
values. Perhaps the most intriguing were those that rejected monetization on the basis of the
inadequacy of land itself. The debates surrounding the mortgage question reveal remarkably little
consensus on the reliability of land as a source of value. Deputy Léon Faucher expressed the
extreme position on this issue in 1848:
Land is far from the best security. In fact, on its own it is no kind of security at all.
It may have been reasonable to think of it as the definitive security when the
origin of value was little understood, when we didn’t grasp the nature of
production. But today […] what is it that produces? Is it the earth? No! It’s
labour. […] Land is worth as much as the man who works it is worth.73
In a similar statement that seemed an outright rejection the Physiocratic truism of the
productivity of land, the Ministry of Finance expressed skepticism over the viability of a market
for mortgage instruments because with mortgages, unlike rentes sur l’Etat or public debt, “the
opportunity for an increase of one’s capital is nonexistent.”74
Even if land could produce value, the conditions that would make this value evident and
credible to observers were lacking. As several courts consulted in the 1841 legal consultation
71
Documents relatifs au régime hypothécaire, vol.1, 531, 563
Documents relatifs au régime hypothécaire, vol.1, 551
73
Discours prononcé par M. Léon Faucher, représentant de la Marne, dans la discussion des propositions relatives
à l’établissement du crédit Foncier. Séance du 10 octobre 1848, 7-8
74
Documents relatifs au régime hypothécaire, vol.3, 527
72
33
pointed out, a tradesman enjoyed credit because his transactions were “based on daily appeals to
mutual trust, on the incessant surveillance of public opinion and the sanctions that follow any
lack of good faith.” This personal network supplied the instruments he inscribed with a reliable
face value. In contrast, “a mortgage’s security cannot be deduced from a glance at a title;”
moreover, “a property owner’s transactions are few and secret […] nothing regulates the level of
trust he should be accorded.”75 Indeed, Faucher based his opposition to paper mortgage money in
1848 precisely on what he saw as the wrong-headedness of replacing bills representing “a
metallic value, a definitive and universal means of exchange” with bills representing “landed
property or merchandise, values that are, in other words, uncertain, variable, local, and
arbitrary.”76
Land values were risky; they were unknowable, and what’s more, they were
ungeneralisable. Quite aside from the problems of hidden mortgages and uncertain transaction
histories identified by reformers seeking a superior property registration regime, land’s
inherently local and unreproducible qualities resisted the homogenization required by the
marketplace. Léon Michel, a lawyer and frequent writer on property matters, stated the problem
simply: “How can you establish a single rate across mortgages, for example, for a field in the
Beauce and for a house in Paris?”77 A fundamental concern, repeated by authors who cautioned
against overly liberal mobilization, was the danger and unreliability that inhered in the act of
setting a value for property. The need for standardization, along with the inherent riskiness and
opaqueness of property values, meant that proposals for mobilization dedicated significant time
Documents relatifs au régime hypothécaire et aux réformes qui ont été proposées. Publiés sous l’ordre de M.
Martin (du Nord), Garde des Sceaux (Paris : Imprimerie Royale, 1844) (3 vols.), vol. 1, xcii, 552-3
76
Rapport fait au nom du Comité des finances, sur la proposition du citoyen Pougeard, tendant à remplacer l’impôt
extraordinaire de 45 centimes, l’impôt sur les créances hypothécaires et l’impôt sur les successions par un emprunt
forcé de deux cents millions, payable soit en argent, soit en effets ayant cours de monnaie, par le citoyen Faucher
(Léon), Représentant du Peuple (29 août 1848), 12
77
Cited in Chérest, De la mobilisation du crédit hypothécaire, 45
75
34
and ingenuity to defining processes and intermediaries that could determine and secure those
values. Options ranged from the state itself acting as issuer and guarantor of mortgages, to
chartered companies that examined and insured values, to associations of property owners who
secured debt through mutual guarantees. Their task would be to bear the risk of values that
varied inherently across time and space, thereby reducing rates for borrowers and facilitating
investment. Moreover, they would perform the necessary work of translating what were
understood to be naturally local goods into a national investment space, one in which actors
unknown to one another (and unfamiliar with the particularities of specific parcels and towns)
could operate with reasonable expectations of security and reliability.
The local nature of property markets makes certain kinds of arguments about the
“illegibility” of real estate obvious. Michel’s statement above, which appealed to a
commonsense understanding of the inability of land parcels to substitute for one another, is an
example of the obstacles that the physical immobility of land – the particularized qualities of
location – posed to mobilization. Other arguments approached the problem of land’s immobility
rather differently. When historian and deputy (and later President of the Republic) Adolphe
Thiers dismissed the legislative proposal for land monetization in 1848, he rejected “this grand
idea, mobilization” as “an absurdity,” explaining that “it is impossible to make it so that a
mortgage lien has the mobility of a 45-day commercial note in a bank’s portfolio.”78 As Thiers
explained it, the inability of mortgage debt to act like commercial debt had less to do with land’s
fixity in space and more to do with its fixity in time. Property operated on a different timeline
than that of other assets. Its capital requirements were long-term requirements, its returns were
long-term returns; these conditions resulted from both its nature and its location within an
ecology of investment. The great virtue of property was its durability, a feature that arose “from
78
Discours sur le crédit foncier par M. Thiers, 15
35
the nature of things” and which ensured that increased mobility, in the unlikely event that it was
possible, would add little to its value as an investment.79
Proponents of mobilization grappled mightily with the issue of land’s differential
relationship to market time. Some were delighted with and eager to exploit the varying terms of
investment and productivity that seemed to inhere naturally in land. In his 1843 project for the
establishment of a state program for mortgage lending, Pougeard reminded his audience that the
long-term nature of property investment supplied his program with stability: “It will be
remembered, of course, that as we are dealing with mortgage investments, any variation and
movement in operations will of necessity be extremely slow, and will thus avoid any
unforeseeable or unpredictable developments.”80 Similarly, Decourdemanche pushed the
financialization of land as a way of bringing stability to an economy that otherwise risked
constant crisis because of the dominance of fluctuating and unreliable commercial sectors.81 Yet
the gap between the speed of capital circulation in the realms of immobilier and mobilier also
posed problems, particularly that property values were liable to change over the lifespan of the
paper instruments based upon them. When an individual named Nigay presented his proposals to
“not simply mobilize, but monetize property” in 1848, he attempted to compensate for risks of
devaluation by developing an evaluation scheme that classified “buildings subject to
degradation” separately and requiring fire insurance for built properties.82 A project by R.F.
Fresnel, which also appeared in 1848, observed that “as long as mobilization is in place, the
mobilized properties cannot be allowed to suffer any reduction in their value that would
endanger the security of the mobilization.” He followed this with several stipulations, the
79
Discours sur le crédit foncier par M. Thiers, 14-15, 20-21
Pougeard, Du régime hypothécaire, 20
81
Decourdemanche, Déclaration aux notaires, 14
82
Nigay, Principales bases d’un système de crédit foncier, 17
80
36
purpose of which was to fix mobilized properties as far as possible in the state that they enjoyed
at the time of their securitization: wood-cutting could not advance abnormally, alterations to built
properties required the authorization of lending authorities, and local mayors would be
empowered to monitor all properties, “mobilized or otherwise,” for potentially detrimental
transformations.83
The question of aligning value on paper and value in land make particularly clear the
imperatives that capitalism exerts not only over space, but over time. Creating the conditions
necessary to direct capital towards land – turning it into a secure investment in which capital
could enter and exit at will – required managing and transforming the timeframes in which real
estate operated. The law passed in 1852 authorizing the formation of land banks instituted one
solution to this problem: a central entity charged with (and eventually granted a monopoly over)
the issuance of mortgage loans funded on the basis of bonds. The Crédit Foncier reconciled
immobilier – land fixed in particular locations – with mobilier – circulating signs representing
the value of mortgage debt. The instruments it created were designed to best mirror the nature of
land itself; as the institution’s first governor, Louis Wolowski, wrote in 1848, “if we are to
mobilize property, its essence must be captured in its representative sign; the paper that it
generates must produce interest, just as land produces revenue.”84 By creating a market in which
bonds could circulate freely, the bank acted as a node not merely between borrowers and lenders,
but between long- and short-term operations in the market, between property as store of
accumulated capital and property as future revenue. After all, Wolowski continued, “time is
money.”85
83
Fresnel, Mobilisation des propriétés immobilières, 14-15
Wolowski, De l’organisation du crédit foncier, 22
85
Wolowski, De l’organisation du crédit foncier, 23
84
37
The Crédit Foncier represented a particular innovation in the abstraction of land values.
In the process of channeling capital from lenders in search of an investment to borrowers in
search of a loan, it created a new type of mortgage instrument, commonly referred to at its outset
as a “lettre de gage,” or mortgage bond. The total value of these bonds could not exceed the total
value of loans issued by the company, and the capital of one was guaranteed on the security of
the other. Yet the particularization inherent to the mortgage was gone. Bond holders had no
claim on a particular parcel of land; rather their claims were lodged on the mass of mortgage
debt consolidated by the company. Jean-Baptiste Josseau explained: “this mortgage instrument
detaches the security from the claim. It makes the security a distinct and movable value, which
becomes itself the guarantee of the bond issued by the company and taken up by capitalists
(either from the company itself, or from borrowers) in exchange for money.”86 Land parcels and
personal claims were flattened; Wolowski wrote:
For mortgage instruments to circulate like state bonds, for them to have a public
rate, their guarantees have to be standardized, they have to be made identical,
each equal in value to the other […] Their intrinsic, particular character has to be
modified, which will allow them to circulate, not only through endorsement like
bills of exchange, but even as bearer certificates.87
The great work of mobilizing land values depended not, as Mengin and proponents of the cédule
would have it, in the particularization of land, but in its homogenization and financialization.
(Figure 3)
86
Cited by Joseph Josseau, Des Obligations foncières ou lettres de gage émises par le Crédit Foncier de France,
Thèse pour le doctorat, Université de Paris, Faculté de Droit (Paris : Librairie de la Société du Recueil J.-B. Sirey et
du Journal du Palais, 1907), 26
87
Wolowski, De l’organisation du crédit foncier, 78
38
Figure 3: Bond issued by the Crédit Foncier, 1879. Source: Archives Nationales du Monde du
Travail, 2003 040 562. Photo by author.
Territories of Mobilization
The foundation of the Crédit Foncier and the legislative reforms that accompanied its expansion
offered a partial reformulation of the nation’s system of property registry and mobilization, one
that was quickly found wanting in the competitive international political economy of the latter
decades of the nineteenth century. The law of 23 March 1855 on property registration, put in
39
place largely to facilitate the activities of the Crédit Foncier, answered some of reformers’
complaints regarding the invisibility of particular kinds of property transactions. Sales, for
instance, would henceforth have to be registered if they were to be binding on third parties. Yet
the hidden mortgages of wives and minors remained exempt from registration. Registration itself
continued to operate merely as the record of a right rather than the legal force constituting that
right, and no changes were introduced regarding the negotiability of mortgage titles. For
adherents of more radical reform of the mortgage code, then, the 1855 law left much room for
improvement. Its inadequacies became both increasingly obvious and more urgent as the
territorial domain of French property law was transformed in the second half of the nineteenth
century. The loss of the territories of Alsace and Lorraine in 1870 meant that considerations on
the desirability of the application of the German model of land registry and mobilization were no
longer contained to the realm of the academic. Throughout the 1880s and 1890s, a succession of
laws brought the property system of these newly acquired territories steadily in line with the
consolidated German property code of 1872.88 Concerns over the treatment of the nation’s
patrimony in paper form, here inflected by territorial loss, were also prompted by territorial
expansion. From the 1860s onwards, discussion of the pitfalls and potentials of the German
model drew inevitable comparisons with those evidenced in Australia’s Real Property Act,
known as the Torrens System.89 The Torrens land registration and transfer system shared many
characteristics with Germanic titling regimes, including the authoritative status of land registers
88
For a summary, see Louis-Vincent Guillouard, Traité des privilèges et hypothèques (Paris : A. Pedone, 1897),
vol.1, 108-117.
89
Greg Taylor, “Is the Torrens System German?” Journal of Legal History vol.29 no.2 (August 2008): 253-285.
40
and the establishment of transmissible mortgage instruments, and spread throughout the British
and French colonial territories at the end of the nineteenth century.90
In the last decades of the nineteenth century, mortgage reform discussions were
dominated by the question of the livre foncier, a French version of the Grundbuch and Torrens
systems. Yet by the 1880s and 1890s, the landscape of the debate had changed considerably. Not
only did the changes to the country’s territorial jurisdiction admit new priorities, but agricultural
crises and fears engendered by both the depopulation of the French countryside and its
partitioning, or morcellement – from 1880 to 1900, the value of the nation’s rural lands
diminished by a third – once more recast the necessity of supporting property markets and
mobilizing land values.91 Moreover, a proliferation of national interest groups attached to the
question provided a range of new opportunities and venues for debate. The government named
an extra-parliamentary commission to study the nation’s cadastre and all questions relating to the
registration, transfer, and mobilization of property in 1891.92 Partially in response to that
commission, France’s first Congrès de la propriété bâtie (Congress of Built Property), held in
Lyon in 1894, saw a prolonged discussion of the livre foncier. The majority opinion was
expressed by Georges Deloison, former legal council to the Parisian Chamber of Property
Owners and president of the Union of Built Property Associations of France, founded in 1892-3.
90
Much of the French discussion of the Act drew inspiration from the studies that economist and politician Yves
Guyot dedicated to it in a series of articles in Le Globe (28 July, 11 August, and 1 September 1882; 28 September
and 5 October 1883; 25 April 1884). He also raised the question for debate at the Society for Political Economy
(“De l’application en Francede l’Acte Torrens sur la propriété foncière,” Journal des économistes (August 1883):
288- 295. See also Estivant, Etude sur la mobilisation de la propriété ; Maurice Tourolle, La Cédule hypothécaire :
Etude historique et critique (Paris : A. Pedone, 1912).
91
Pierre Caziot, La Valeur de la terre en France (Paris : J.-B. Baillière et Fils, 1914), 8 ; Edmond Michel, Etudes
statistiques économiques, sociales, financières et agricoles. Tome 3, La Propriété (Paris : Berger-Levrault et Cie,
1908), 101-3 ; Alfred de Foville, Etudes économiques et statistiques sur la propriété foncière : le morcellement
(Paris : Guillaumin, 1885).
92
Sylvie Devigne, “La Commission extraparlementaire du cadastre de 1891 à 1905: le projet de transformation du
cadastre français en cadastre juridique,” Florence Bourillon, Pierre Clergeot et Nadine Vivier (eds.), De l’estime au
cadastre en Europe. Les systèmes cadastraux au XIXe et XXe siècles (Paris : Comité pour l’histoire économique et
financière de la France, 2008), pp.217-231
41
Deloison was vehemently opposed to the livre foncier. After enumerating the logistical and
logical impediments to the functioning of such a registry, he attacked what he perceived as its
moral danger: the abstraction of landed property into ephemeral paper wealth. The goal of this
project, he wrote, “all obstacles overcome, all sacrifices made, all the principles of our law and
all previously sacred interests abandoned, aims at replacing land by a negotiable share, like a
bearer bond.” Such a transformation not only raised the spectre of speculation and economic
destabilization. It posed a threat to the moral economy of the nation, encouraging people to view
land not as an inalienable component of the homeland, but as a venal commodity. Substituting
the “nobility” of land for a “simple exchange value” would lead inexorably “not only to the
mobilization but also to the demoralization of land.”93 When the first International Congress of
Built Property was held in Paris in 1900, the livre foncier was again rejected as a tool that would
“turn the eyes of the peasant away from the lands he tends, instead accustoming him to seeing
only the easily negotiable security that will allow him to capitalize on them in the city.”94
Hopes were much greater for the application of the livre foncier on the imperial frontier.
Here, fresh from a traumatic and radicalizing experience with communism in the municipal
uprisings of 1871, France confronted territories and polities whose collective patterns of land
ownership presented them with an ideological as well as an economic problem.95 Efforts to
transform colonial society by privatizing land and facilitating transactions began in earnest in
Georges Deloison, “Les Livres fonciers,” in Congrès de la Propriété bâtie de France (Lyon: Imprimerie du Salut
Public, 1894), 24, 25, emphasis original.
94
“Jeudi 31 mai. La Propriété bâtie et le crédit hypothécaire dans les différents États. Rapport de M. Hernance,
docteur en droit” in Premier Congrès International de la propriété bâtie. Exposition Universelle Internationale de
1900, à Paris (Paris: Société des Publications Scientifiques et Industrielles, 1901), 176
95
On the fascinating international debate on collective property at the end of the nineteenth century, see Grossi, An
Alternative to Private Property; Peter Linebaugh,“The Law of the Jungle,” Capitalism, Nature, Socialism vol.18
no.4 (2007): 38-53. Key contemporary works in France include Emile de Laveleye, De la propriété et de ses formes
primitives (Paris : G. Ballière, 1877, 2e ed [1874]) ; Numa Denis Fustel de Coulanges La Cité antique, étude sur le
culte, le droit, les institutions de la Grèce et de Rome (Paris : Durand, 1864) ; Henry d’Arbois de Jubainville,
Recherches sur l’origine de la propriété foncière et des noms de lieux habités en France (Période celtique et
période romaine) (Paris : F. Vieweg, 1887).
93
42
Algeria, for instance, with the law of 26 July 1873.96 The livre foncier could operate in this
context unproblematically. As one speaker asserted at the 1889 Congress on Land Transfer, held
in Paris in conjunction with the World’s Fair, dispositions that would disturb the venerable
traditions of “a perfectly civilized country” were “necessary for new countries.”97 In Algeria,
Tunisia, Madagascar, and New Caledonia – all of which saw portions of the Torrens system
imposed – there was no fear of violating the supremacy of the freedom of contract distinctive to
liberal nations. Here, rather, the system encouraged “the conversion of collective tribal lands into
individual property, bringing forth trees and gardens from yesterday’s wastes.”98 In passages that
would not be out of place in Peruvian economist Hernando De Soto’s elegy to land registration,
The Mystery of Capital, supporters of the Torrens system championed its relevance amidst “a
real estate crisis that has gripped the entire globe for the past several years, drawing the attention
of economists and legal scholars to the land question. They have sought its remedy in the
mobilization of property values, in a set of measures that aim to give to real property the
constitutive quality of personal property: ease of circulation.” The alchemical reaction that
occurs when “land and capital are in contact” would “give credit a magical flight.”99
Perhaps it is unsurprising that fin-de-siècle administrators rushed to embrace legal
reforms that would facilitate the regularization and transfer of landed wealth within the distant
territories over which they had acquired authority, while remaining reticent about their potential
Alain Sainte-Marie, “Législation foncière et société rurale. L’application de la loi du 26 juillet 1873 dans les
douars de l’Algérois, » Etudes rurales no.57 (January-March 1975) : 61-87
97
Ministère du commerce, de l’industrie, et des colonies, Congrès international pour l’étude de la transmission de
la propriété foncière, 11.
98
Victor [Flour] de Saint-Genis, Les adversaires de la propriété (Paris: Comité de défense et de progrès social,
1896), 36-7.
99
Estivant, Etude sur la mobilisation de la propriété, 1, 20. Hernando de Soto, The Mystery of Capital: Why
Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000).
96
43
utility within metropolitan France.100 Yet the strength, the means, and the terms by which these
impulses were restrained within the hexagon remain illuminating, particularly in a century
known for dedicating particular attention to remaking its citizenry.101 The effort to standardize
and make (more) easily exchangeable parcels of French land crashed repeatedly on the financial,
the technical, and importantly, the political difficulty of remaking that country’s cadastre.102
Even sympathetic commentators considered mortgage reform doomed by the intrinsic invisibility
of French property – a feature that others celebrated as a sign of the independence of the nation’s
proprietors. When Troplong wrote on the country’s property regime at mid-century, he rejected
the Germanic model as one appropriate only to a land where people are sedentary and situations
fixed. In France, in contrast, “land is free; it moves without restriction, alternating between
subdivision and consolidation, multiplying transactions and ceaselessly increasing the number of
owners,” and doing so with a force that would bring crashing down “the mountains of paper” of
the Grundbuch.103 Factors that demanded intervention in land regimes in the colonial sphere –
the profusion of local customs, the obscurity of titles, the absence of coherent parcels – were in
France evidence of individual autonomy and the natural outcome of contractual freedom. Clear
and authoritative titling was perfectly suited to these “pays neufs” whereas in France, “the
ancient forms of proprietorship” meant that “titles are often defective, [and land] is broken into
tiny parcels with irregular configurations.”104 If this was precisely the problem that bedeviled
100
For the classic work on the rationalizing approach to space on the part of the modern state, see James C. Scott,
Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale
University Press, 1998).
101
Eugen Weber, Peasants into Frenchmen: The Modernization of Rural France (Stanford: Stanford University
Press, 1976).
102
Nadine Vivier, “Les Débats sur la finalité du cadastre, 1814-1870,” in De l’estime au cadastre en Europe. Les
systèmes cadastraux aux XIXe et XXe siècles (Paris : Comité pour l’histoire économique et financière de la France,
2006), 191-215
103
Troplong, Privilèges et hypothèques, 60.
104
Ministère du commerce, de l’industrie, et des colonies, Congrès international pour l’étude de la transmission de
la propriété foncière, 9.
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reformers, for others it was functioning system that spoke to the powers of self-governance of
French civil society.
Conclusion
When the jurist Troplong surveyed the plethora of projects for the mobilization of land at midcentury, he was happy to be able to dismiss the wild ambitions of this period, which despite
“having exploded in the assembly, in books, and in newspapers” amounted to nothing but “vain
and chimerical utopias,” now happily buried under “ridicule and disdain from which they can
never recover while common sense governs in France.”105 But this paper has suggested that these
debates, when explored within the context of a century-long contestation surrounding the
relationship of property to the marketplace, remain deeply valuable as artefacts of the intellectual
labour and material practices that constitute markets. The mechanisms that negotiated between
the circuits of investment that constituted the particular double life of property as an asset were
far from unmediated outgrowths of the logic of capital. Defining the marketability of land was an
ongoing struggle that implicated legal and financial expertise, quotidian administrative
procedures, and questions of national identity and sovereignty.
Despite the immense success of the operations of the Crédit Foncier, it was not the final
word on the relationship between mobilier and immobilier in nineteenth-century France.
Experiments with the mobilization of land in the colonial setting stimulated continued efforts in
similar directions in the metropole. In 1901, Jules Challamel, a lawyer and student of land
questions, succeeded in having the extra-parliamentary commission on the reform of the
country’s cadastre endorse a proposal for the creation of bons fonciers. These bills borrowed
from proposals for Algerian reforms, and were modeled on the handfesten of the former German
105
Troplong, Privilèges et hypothèques, 11
45
city-state of Bremen.106 These were unique instruments that recalled the cédule in their intense
particularity, but which eliminated the element of anticipation (the fact that debt instruments
were formed before a credit relationship was constituted) that was one of its more controversial
elements. Georges Rondel, the author of an extensive treatise on the mobilization of land in
France, explained the principle of the handfesten in the following way:
The physical property as the object of property rights is rendered inert, and
replaced by a given number of instruments that represent portions of the value of
the property given in marks. It [the handfeste] is not simply parts of the property’s
price varying in proportion to that price, nor is it the equivalent of a share in a
limited liability company. But neither is it a simple mortgage instrument. It is
something in between. It is the security of real estate given physical form, so that
it can be deployed in commercial operations as it can in civil operations. It is the
financial power of a building stored in a series of papers.107
Bons fonciers answered a persistent desire to reconcile local and particular obligations with the
desires and needs of modern markets, the “circulating machines” of the contemporary
economy.108 Like the handfesten, bons fonciers were intended as a hybrid form of property:
“they take their circulatory abilities from bills of exchange; they can be transferred freely,” but at
the same time, far from relaxing the ties between the security and the instrument, “they reinforce
the obligation formed between the debtor and the creditor at the time of the original contract.”109
Moreover, they were designed to transfer by endorsement, and included a large empty space
intended for the signatures of successive owners of the debt. The inclusion of these signatures
was all the more significant insofar as the committee rejected the concept of a legal chain of
guarantees between endorsers. Without this legal force, the signatures testified to a transfer, but
not to the solidity of the debt, whose value was ensured by other authorities. They simulated a
106
Jules Challamel, Ministère des Finances. Commission extraparlementaire du cadastre. Sous-commission
juridique. Rapport général sur les privilèges et hypothèques (Paris : Imprimerie Nationale, 1901)
107
Rondel, La mobilisation du sol en France, 238-9
108
The phrase was used by both Wolowski and Josseau.
109
Challamel, Rapport général sur les privilèges, cited in Maurice Tourolle, La Cédule hypothécaire. Etude
historique et critique, Thèse pour le Doctorat, Université de Paris, Faculté de Droit (Paris : Pedone, 1912), 181
46
legal history of the debt, mirroring the practices of registration that constructed property as a
historical artifact.
Projects for the rationalization of property – the rationalization of its legal existence,
modes of transfer, and even topographical identity – remained incomplete at the end of the
nineteenth century. The commission for the reform of the cadastre sat from 1891 to 1905, but its
work would not begin to bear fruit until the interwar period; a comprehensive and obligatory
system of property registration had to wait until 1955. If, as historian Alain Pottage has
documented in the English case, the triumph of title registration marked “a transition from
contractual property to property proper,” the conditions necessary to move French property from
a regime in which it is “irremediably uncertain” to one in which it is a “presupposition” had not
yet occurred.110 This uncertainty might indeed find a suggestive corollary in one of the more
controversial practices of the Crédit Foncier. Benefiting from both government guarantees and
the seemingly irrefutable security of a massive pool of mortgages, the bonds of the Crédit
Foncier became one of the most widespread, popular investment vehicles of the second half of
the nineteenth century.111 Yet the appeal of their bonds also lay in their method of
reimbursement, which occurred through semi-annual lotteries in which bondholders stood to win
huge cash bonuses in addition to the restitution of their capital. Within only a few years, lottery
bonds (as they were called) were being sold across the country, often on credit, and not
infrequently by shady middlemen. “For our urban populations,” wrote economist Paul LeroyBeaulieu at the turn of the century, “the lottery bond has become what the parcel of land has
been for the peasant: something that made saving attractive, turned it into a dream, appealing not
Alain Pottage, “The Measure of Land,” The Modern Law Review vol. 57 (1994): 361-384, 382
Alfred Neymarck, Le Morcellement des valeurs mobilières. Les salaires, la part du capital et du travail (Paris :
Bureaux de la Revue Politique et Parlementaire, 1896)
110
111
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only to the reason, but to the imagination.”112 The legality of these instruments, which some
believed amounted to simple lottery tickets in a country in which the lottery was illegal, was
settled in their favour by 1876, and the conditions regularizing their sale on installment plans
were decided in 1900.113 But moral qualms continued:
Lottery bonds completely overturn the principle that remuneration follows work
and contribution to society; they no longer direct wealth towards those most
worthy of it. They sap the spirit of planning and encourage envy in the hearts of
the poor, a gnawing and troublesome envy fostered by the spectacle of insolent
and prodigious wealth with no basis in work, savings, or honesty.114
As an ironic twist on the security of land, the Crédit Foncier instituted mechanisms that
deliberately destabilized schedules and expectations of returns. The story of property constituted
by these practices was one of windfalls, rather than of labour and the credibility of steady
improvement. The wheel of chance became the ultimate vehicle for the mobilization of property.
112
Paul Leroy-Beaulieu, Traité de la science des finances. T.2 Le budget et le crédit public (Paris : F. Alcan, 1906),
7e édition, 369-70.
113
Georges Frèrejouan Du Saint, Jeu et pari, au point de vue civil, pénal et réglementaire : loteries et valeurs à lots,
jeux de bourse, marchés à terme (Paris : L. Larose, 1893) ; Henri Levy-Ullmann, “Lottery Bonds in France and in
the Principal Countries of Europe,” Harvard Law Review, vol.9, no.6 (Jan 25, 1896): 386-405
114
Emile Montagnon, Traité sur les sociétés de crédit foncier (Paris : A Rousseau, 1886), cited in Josseau, Des
obligations foncières, 135
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