“Making the Immobile Mobile: Land, Markets, and the Problem of Value in Nineteenth-century France”

Alexia YatesCenter 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), 22 R. F. Fresnel, Mobilisation des propriétés immobilières. Cinq milliards de capital mis en circulation (Paris : Imprimerie de E. Brière, 1848), 6

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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

3 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), 84 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).

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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, 18th to early 20th Centuries (Cambridge: Cambridge University Press, 2012), 9

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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

more broadly critical of the rampant inequality that private property perpetuated, tended to 6 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

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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

relations cannot be underestimated; henceforth, property “became a private matter, free from

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.

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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

most well-known example, still more profound innovations were attempted in the seemingly

11 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

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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

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.

14 F. N. Babeuf and J.P. Audiffred, Cadastre perpétuel (Paris : Chez les auteurs et Garnery & Volland, 1789)15 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.

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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

France’s trade balances with foreign countries and placing the country once more at the head of

European economic development.18

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).18 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

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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

ensured that an economy of prestige undergirded early modern tenure regimes.20 This was

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), 163.20 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).

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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

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

21 Mengin, Nouveau plan d’hypothèque, 56.

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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

persuasive tools in the project, distinguishing the cédule (or other mortgage instruments) from

the assignat.23

22 Anson, Secretary of the Finance Committee, Archives parlementaires, décembre 1789 (Paris: Dupont, 1875), cited in Rondel, Mobilisation du sol, 85.23 Martin-Philippe Mengin, Ce qu’est réellement et politiquement une cédule (Paris : Imprimerie de Du Pont, n.d.)

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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

authorities on land values, from participatory community evaluations25 to state-designated

24 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): 361-384.25 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.

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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

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

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.

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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-

developed mortgage market, and because it proved deeply influential in shaping nineteenth-

century legal and economic structures.30

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, 25-6.30 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.

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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

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

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

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 anti-

commercial 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

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

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 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.

16

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 self-

owning 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

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

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

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.

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

18

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

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

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, 538 Louis Gastaldi, Recherches sur le crédit foncier, ce qu’il est, et ce qu’il devrait être (Paris : Delaunay, 1829), 5

19

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

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.

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. 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

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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,

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

42 Alphonse Decourdemanche, Du danger de prêter sur hypothèque et d’acquérir des immeubles (Paris : Moreau, 1829, 2e édition), 3.

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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 cross-

referencing. (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

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.

43 Procès-verbaux du Conseil d’état, contenant la discussion du Code Napoléon (Paris : Imprimerie impériale, 1808, 2e édition), vol. 4, 41244 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. 46 Langlois, Du crédit privé, 102

22

Figure 2: A page from the reformed property registry of Alphonse Decourdemanche, Du danger de prêter sur hypothèque (1829). Source: Bibliothèque Nationale de France

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:

23

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

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, 47 Documents relatifs au régime hypothécaire, vol.3, 538-948 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.

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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

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:

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), 450 Raymond-Théodore Troplong, Privilèges et hypothèques. Commentaire de la loi du 23 mars 1855 sur la transcription en matière hypothécaire (Paris : Charles Hingray, 1856), 1651 Troplong, Privilèges et hypothèques, 62

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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

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

52 Victor Flour de Saint-Genis, Le Crédit territorial en France et la réforme hypothécaire (Paris : Guillaumin et Cie, 1889, 2e éd.), 11.53 See, for instance, Jules Challamel, De la cession des créances hypothécaires, etude sur les cédules hypothécaires (Handfesten, bons fonciers) (Paris : Challamel aîné, 1878)

26

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

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

54 Decourdemanche, Déclaration aux notaires, 1355 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

27

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

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

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), 12-1357 Documents relatifs au régime hypothécaire, vol.1, 567

28

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

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

58 Pougeard, Du régime hypothécaire59 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.61 Le Moniteur Universel, no.104, 14 nivôse an V (3 janvier 1797), 415

29

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

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 62 Decourdemanche, Du danger de prêter sur hypothèque, 41-42, 8363 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 Louis-Hugues 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), 158-21264Discours sur le Crédit Foncier par M. Thiers (Paris : Michel Lévy Frères, 1848), 24, 465 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.

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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

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

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, 668 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

31

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

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

70 Documents relatifs au régime hypothécaire, vol.1, 50071 Documents relatifs au régime hypothécaire, vol.1, 531, 56372 Documents relatifs au régime hypothécaire, vol.1, 551

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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

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

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, 7-874 Documents relatifs au régime hypothécaire, vol.3, 52775 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

33

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

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.

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), 1277 Cited in Chérest, De la mobilisation du crédit hypothécaire, 45

34

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

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

78 Discours sur le crédit foncier par M. Thiers, 1579 Discours sur le crédit foncier par M. Thiers, 14-15, 20-21

35

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

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 80 Pougeard, Du régime hypothécaire, 2081 Decourdemanche, Déclaration aux notaires, 1482 Nigay, Principales bases d’un système de crédit foncier, 1783 Fresnel, Mobilisation des propriétés immobilières, 14-15

36

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

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

84 Wolowski, De l’organisation du crédit foncier, 2285 Wolowski, De l’organisation du crédit foncier, 23

37

(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), 2687 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

and the establishment of transmissible mortgage instruments, and spread throughout the British

and French colonial territories at the end of the nineteenth century.90

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): 253-285.90 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

40

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.

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

(“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

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

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

93 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), 17695 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). 96 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

42

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

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, 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).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).

43

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

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 mid-

century, 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

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), 191-215103 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.

44

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

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

105 Troplong, Privilèges et hypothèques, 11106 Jules Challamel, Ministère des Finances. Commission extraparlementaire du cadastre. Sous-commission juridique. Rapport général sur les privilèges et hypothèques (Paris : Imprimerie Nationale, 1901)

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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

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

107 Rondel, La mobilisation du sol en France, 238-9108 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

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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 Leroy-

Beaulieu 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

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

110 Alain Pottage, “The Measure of Land,” The Modern Law Review vol. 57 (1994): 361-384, 382111 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)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

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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.

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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