Chapter 48: The Legislative Assembly and the Communal Lands

History of communal lands — Rise of middle — class peasants — Opposition to poorer peasants — Active and passive citizens — Appropriation of communal land by well-to-do peasants — Inaction of Assembly — Proposal of Mailhe rejected — Decree of Assembly — Indignation produced by decree — Difficulty of carrying decree into effect — Assembly frames new law to advantage of “grabbers”

The restoration of the communal lands to the village communes and the definite abolition of the feudal laws were, as we have seen, the questions that dominated all others in rural France; questions of immense importance in which two-thirds of France was intensely interested, and yet so long as the Girondins, the “defenders of property “ruled the Convention, they remained in suspense.

Since the beginning of the Revolution, or rather since 1788, when a ray of hope had penetrated into the villages, the peasants had expected to regain possession of the communal lands, and had even tried to take back what the nobility, the clergy and the upper middle classes had appropriated under the edict of 1669. Wherever they could, the peasants took back these lands in spite of the terrible repression which very often followed their attempts at expropriation.

Formerly, the whole of the land — meadows, woods, waste lands, and clearings — had belonged to the village communities. The feudal lords held the right of administering justice over the inhabitants, and most of them had also the right of levying various taxes, generally consisting of three days’ work and various payments, or gifts, in kind, in exchange for which the lords were pledged to maintain armed bands for the defence of the territory against invasions and incursions, whether of other lords or of foreigners or of local brigands.

Gradually, however, with the help of the military power they possessed, and of the clergy, who sided with them, as well as the lawyers versed in Roman law, whom they maintained in their courts, the lords appropriated considerable tracts of land as their private property. This appropriation was gradual; it took centuries — the whole of the Middle Ages — to accomplish but towards the end of the sixteenth century it was accomplished. The lords were, by that time, in possession of large tracts of arable land and pastures. But still they were no satisfied.

As the population of Western Europe increased, and the land acquired a greater value, the lords, having become the, King’s peers, being under the protection of both King and Church began to covet the lands still in the possession of the village communities. To take these lands by a thousand ways and under a thousand pretexts, either by force or by legal fraud, was the customary thing in the sixteenth and seventeenth, centuries. Then came the ordinance of Louis XIV., le Roi Soleil, in 1669, to furnish the lords with a new legal weapon for the appropriation of the communal lands.

This weapon was the triage, which permitted the lord to appropriate a third of the lands belonging to the village communities that had formerly been under his jurisdiction, and the lords eagerly took advantage of the edict to seize upon the best land, chiefly the meadows.

Under Louis XIV. and Louis XV. the nobility and the Church continued to seize the communal lands under various pretexts. A monastery would be founded in the midst of virgin forests, and the peasants of their own accord would give the monks vast tracts of the forest, and this possession soon became property. Or else the lord, for a mere nothing, would obtain the right of building a farm on land belonging to the commune in the centre of uncultivated lands, with the result that he soon claimed the right of property over all, and, if need were, did not hesitate to fabricate title-deeds. In other places they took advantage of the law of enclosures (bornage), and in several provinces the lord who had put a fence round of the communal lands declared himself the owner of it received the royal sanction or the sanction of the parliaments his rights of property over these enclosures. As the resistance of the communes to these appropriations was treated as rebellion, while the lords had protectors at Court, the theft of the communal lands, on a large and small scale, continued throughout the whole kingdom. Several provincial assemblies had, prior to 1789, tried to compel the village communes to divide their lands, either in equal parts per head, or in proportion to the personal tax (la taille) paid by each householder. Several cahiers of 1789 made a similar demand. Others, on the contrary, complained of the enclosures (bornage) which the King had authorised in certain provinces in 1769 and 1777. ²³¹

However, as soon as the peasants became conscious of the approaching Revolution, they began to insist that all the appropriations made since 1669, whether under the law of triage or otherwise, should be declared illegal, and that the lands, which the village communes themselves had been induced by a thousand fraudulent means to give up to individuals should be restored. In certain places, during the risings 1789–1792, the peasants had already taken back these lands, but reaction might set in any day, and if successful the ci-devants — the dispossessed nobles — would again seize upon them. It was necessary, therefore, to make the restoration of the lands general and to legalise it, a measure which was strenuously opposed, not only by the two Assemblies, the Constituent and the Legislative, but also by the Convention, so long as it was under the domination of the Girondins.

It must be noted that the idea of dividing the communal lands between the inhabitants of each commune, which was often brought forward by the village bourgeoisie, was not at all favoured by the great mass of the peasants, no more than it is favoured in our own day by Russians, Bulgarians, Servians, Arabs, Kabyles, Hindus, or any other peasantry among whom the village community still persists. We know, in fact, that whenever a voice is raised in a country where communal property exists, demanding the division of lands belonging to the village community, it is raised in behalf of the village middle-class people, who have grown rich by some small business, and hope to appropriate the poor man’s acre, as soon as the land divided. The bulk of the peasantry is nearly always opposed to such a division.

This was also what happened in France during the Revolution. In the midst of the great mass always sinking deeper and deeper in their hideous poverty, a peasant middle class was being evolved, which was growing rich, in one way or another, and whose demands were the more readily heard by a revolutionary administration, middle class in its origin, its tastes and its point of view. These bourgeois-peasants were quite in agreement with the mass of the poor peasants in demanding the restoration of the communal lands taken by the lords since 1669, but they were against this mass when they demanded the peremptory division of these lands. The opposition of the poorer peasants was the stronger, because of the distinctioin which had been established during the course of the centuries between two classes of inhabitants, in both rural and urban communes. There were families, more or less well-to-do, who were, or said they were, descended from the first founders of each commune. These styled themselves the bourgeois, in Alsace die Bürger, the “citizens,” or even simply “the families” but there were also those who had entered the commune lateron, and who were called “the inhabitants,” les menants; die Ansässigenin Alsace and Switzerland.

Only the former had rights over the communal arable lands, and they alone in many cases shared the right of pasturage and the right over the woods, the waste lands, the forests, &c.; while the inhabitants, the manants, the Ansässigen, were often debarred all rights, and were scarcely allowed to pasture a goat, on the waste land, or to pick up the fallen wood and chestnuts.

Their situation became still worse after the National Assembly had established the fatal distinction between active and passive citizens, not only for political rights but also for the election of the communal councils, the officials, and the judges. By the municipal law of December 1789, the Constituent Assembly had, indeed abolished the popular village assembly, which was composed, as in the Russian mir, of all the heads of families in the commune, which till then had continued to meet under an elm or in the shadow of the belfry; and instead of the folk-mote, had introduced an elected municipality which could be elected by the active citizens alone.

From that time the appropriation of communal lands by well-to-do peasants and all sorts of middle-class people must have proceeded rapidly. It was easy, indeed, for the “active” citizens to come to an understanding among themselves about purchases of the best pieces of ground, and thus to deprive the poor commoners of the use of the common lands which were perhaps the sole guarantee of their existence. This must have been the case in the Vendée, and undoubtedly all through Brittany also, where the peasants, as may be seen from the laws of 1793, enjoyed till then extensive rights over wide stretches of waste lands, heaths and pastures-rights which the village bourgeoisie began to dispute when the ancient custom of communal assembly was abolished by the law of December 1789.

Under the influence of the laws made by the Constituent Assembly, the little village bourgeoisie began to insist more and more that the lands appropriated under the law of triage should be given back to the villages, and that the division of communal lands should be decreed at the same time. They were, no doubt, quite sure that if the division were decreed by the National Assembly, it would be accomplished to the advantage of the well-to-do peasants. The poor, the “passive” commoners, would be excluded. But neither the Constituent nor the Legislative Assembly did anything until 1792. They were both opposed to any solution of the land question that might be unfavourable to the nobility, and for that reason they took no action. Robespierre had already demanded in the Constituent Assembly abolition of the ordinance of 1669, and the restitution of the communal lands which “the towns, boroughs and villages of Artois possessed since time immemorial,” and to the preservation of which had mainly been due the abundance of cattle and the prosperity of agriculture and the flax industry. These lands had been taken away by States-General of Artois for the enrichment of the administrative officials and to place them in the hands of the nobility. He demanded, therefore, the abolition of the ordinance of 1669. (Motion de Robespierre su nom de la province d’Artois et des Provinces de Flandre, d’Hainaut et de Cambrésis pour la restitution des biens nationaux envahis par les seigneurs. Imprimerie Nationale, 1791. British Museum Pamphlets.) ²³²

After August 10, 1792, however, the Legislative Assembly, on the eve of dissolution, felt itself obliged to do something, and what it did was for the benefit of the village bourgeoisie. When Mailhe brought forward, on August 25, 1792, a well-thought-out proposal for a decree to annual the effects of the ordinance of 1669, and compel the lords to restore the communal lands which had been taken from the village communes within the last two hundred years, his decree was not accepted. Instead, eleven days previously, on August 14, the Legislative Assembly, on the motion of Francois (of Neufchâteau), had already decreed as follows: “First, this year, immediately after the harvest, all the communal lands and usages other than woods [which meant even the grazing lands still held by the communes, over which rights of pasturage generally belong to all the inhabitants] shall be divided among the citizens of each commune. Secondly, these citizens shall enjoy complete ownership of their respective portions. Thirdly, the communal property known as nobody’s and vacant shall be equally divided between the inhabitants. And fourthly, to fix the method of division the Committee of Agriculture shall in three days propose a plan to be decreed.” By this same decree the Legislative Assembly abolished also the joint liability of the commoners for the payment of dues and taxes.

It was indeed a treacherous blow dealt to communal ownership. Hurriedly drawn up, with incredible vagueness and carelessness, this decree seemed to me so extravagant that for some time I could not believe that the text, as given by Dalloz was anything but an imperfect summary, and I searched for complete decree. But I found Dalloz had given the exact and full text of this amazing law, which, with the stroke of a pen, abolished communal property in France and deprived those who were called inhabitants, or Ansässigen, of all right over communal lands.

We can quite understand the fury provoked by this decree throughout France among the poorer of the rural population. It was understood to be an order to divide the communal lands among the active citizens, and those “citizens” only, to the exclusion of the “inhabitants” and the poor. It was a spoliation for the benefit of the village bourgeoisie, The decree was so interpreted indeed by the law-courts (vide Dalloz, X. P. 265, No. 2261, note). ²³³ and this decree, with its third paragraph, would in itself have sufficed to rouse the whole of the Breton peasantry against the Republic.

Already on September 8, 1793, a report was read before the Assembly to state that the carrying out of this decree was so vigorously opposed by the people that it would he impossible to apply it. However, nothing was done. The Legislative Assembly separated without having abrogated it, and it was not rescinded until October by the Convention.

Seeing the difficulty of carrying the decree into effect, the Convention decided first, by the decrees of October 11–13, 1792, that “the communal lands under cultivation shall, until the time of partition, continue to be ploughed and sown as before in accordance with local customs, and the citizens who hall have done the aforesaid ploughing and sowing shall enjoy the crops resulting from their labours.”

So long as the Girordins dominated the Convention nothing better could be done. But it is very probable that the peasants — those of them, at least, to whom the purport of these counter-decrees was explained — realised that the attempt to divide the communal lands had failed for the time being. But who shall measure the harm that this threat of expropriation, still suspended over the communes, did to the Revolution? Who shall tell the amount of hatred stirred up by it in agricultural districts against the revolutionists of the towns?

Nor was this all. Between August 28 and September 14, on the eve of its dissolution, the Legislative Assembly had published another decree concerning the communal lands, which, if it had been upheld, would have been turned completely to the advantage of the lords. It declared, true enough, that “the unoccupied and waste lands shall be considered as belonging to the village communes, and shall be adjudged as theirs by the tribunals”; but if the lord had appropriated these lands or part of them earlier than within the last forty years, and had held them since, they remained his property. “These lands shall be restored to the communes unless the former lords (ci-devant seigneurs) can prove by title-deeds or by exclusive and undisturbed possession for forty years that they have proprietary rights.” ²³⁴ This law, as was shown later by Fabre (deputy for the Hérault), in a report by him to the Convention, was of a very great advantage to the lords, for “nearly all the former lords were able to prove the necessary forty years’ possession,” and so to nullify the clauses “of this decree which were favourable to the communes.” Rapport de Fabre, p. 36. British Museum Pamphlets on the French Revolution, R.F., vol. 247. ²³⁵ Fabre also pointed out in this decree the injustice of Article 3, according to which the village commune could never regain possession of its lands once the lord had sold his acquired or supposed rights over them to a third person. Dalloz has, furthermore, shown clearly how difficult it was for the village communes to produce the positive and certain proofs which were demanded of them by the law-courts for reinstating them in possession of their lands.

Such as it was, the law of August 1792 was, therefore, always turned to the advantage of the “grabbers” of the communal property. It was only in the Convention, and then only after the insurrection of May 31 and June 2, which ended in the expulsion of the Girondist leaders, that the question of the communal lands could again be considered in a light favourable to the mass of the peasants.