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16.: Report Presented to the 1849 Session of the General Council of the Landes, on the Question of Common Land - Frédéric Bastiat, The Collected Works of Frédéric Bastiat. Vol. 1: The Man and the Statesman: The Correspondence and Articles on Politics [2011]

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The Collected Works of Frédéric Bastiat. Vol. 1: The Man and the Statesman: The Correspondence and Articles on Politics, translated from the French by Jane and Michel Willems, with an introduction by Jacques de Guenin and Jean-Claude Paul-Dejean. Annotations and Glossaries by Jacques de Guenin, Jean-Claude Paul-Dejean, and David M. Hart. Translation editor Dennis O’Keeffe (Indianapolis: Liberty Fund, 2011).

Part of: The Collected Works of Frédéric Bastiat, in 6 Vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


16.

Report Presented to the 1849 Session of the General Council of the Landes, on the Question of Common Land

[vol. 7, p. 263]

Sirs,

You have referred the question of common land to your third commission. It has charged me with making its report to you. I beg leave to regret that it was not possible for this work to be completed by the colleague of yours39 who, last year, began it so well.

Two diametrically opposed ideas have always dominated this question.

Some people, struck by the spectacle of infertility widely offered by these withered fields known as heath or common land and knowing, moreover, that what belongs to everyone is properly exploited by all, but taken care of by no one, are in a hurry to see the common domain become part of the private domain and invoke the help of the law to bring their system to fruition.

Others point out to us that agriculture, and consequently all the means of existence of this country, rest on common land. They ask what would become of the private domain without the resources of the common domain. Unless we find a system of crop rotation which enables us to do without fertilizer (an agricultural revolution that is not within sight), they consider alienation a public calamity and, in order to prevent it, they also invoke the help of the law.

Your commission considered that neither of these conclusions took enough account of a fact that dominates the entire subject and considerably simplifies the task of the legislator. This fact is property, before which the legislator himself has to give way.

In effect, does not the question whether the law should force or prevent alienation begin by giving communes property rights?

We have been struck by the lack of attention paid to this right, either in the questions asked by the ministers or in the replies given by the Council before the February revolution.40

This is how the ministerial circular set out the problem in 1846:

“What is the best use to which common land should be put? Should it be left as it is today? Or should it be let under a short or long lease? Should it be shared or sold?”

Is this a question that could be asked when it is a matter of a given property, short of its status as such being denied?

And what was the answer from the Council?

After speaking in justificatory and almost laudatory terms of the ancient means of appropriation, such as confiscation or usurpation, means which do not exist today, it concluded with the necessity of alienating, adding:

“The consent of municipal councils, which will nevertheless always be consulted, would not be absolutely essential for alienating common land which is either heath land or vacant. . . .”

And further on:

“The Municipal Council would be consulted on the necessity of alienation, and, whatever its opinion, would the proposal, communicated to the District Council, submitted to the General Council, and approved by it, legitimate the order authorizing the act of sale?”

It must be admitted that this dialogue between the minister and the Council totally misunderstood the rights of property. However, it is dangerous to let it be thought that this right is subordinate to the wish of the legislator. Doubtless, reasons of public good and progress were invoked, but do not those whom we have since seen take such little note of private property also invoke these reasons?

And here it was all the more worrying that the right of the commons was lost to sight, since it is precisely in this right that the solution to a number of the difficulties linked to the question of common land is to be found.

What is, in fact, the most notable of these difficulties? It is the extreme difference observed between the situations and the interests of the various localities. We would like to draw up a general law, but when we turn our hand to it, we seem to be pitting ourselves against the impossible and begin to understand that, in order to satisfy all requirements, we would have to draw up as many laws as there are communes. Why is this? Because each commune, depending on its antecedents, agricultural methods, needs, customs, the condition of its communications, and the market value of the land, has different interests with regard to its common land.

The deliberation of the General Council in 1846 accepted this in the following terms:

“The development of a policy entailing consultation as to the situation of individual interests for each département and each village would be going too far. Here, we are content to state that nothing is possible if this first law is not observed, and it is above all in this matter that local custom must play an important part in the law and that the main arrangements of the law itself must leave a great deal of liberty and authority to the electoral bodies which are responsible for representing or protecting the commune.”

The impossibility of drawing up a general law comes out in each page of the report made to you last year by M. Lefranc.

“Among the purposes that we may allot to our communal assets,” he said, “in each département it is necessary to choose the one which will allow one place to be dried out and irrigated, another to provide easy and prompt transport, sowing and plantation in the Landes, advanced agriculture in the Chalosse, etc.”

In fact, it seems to me that this means: since there are as many separate interests as there are communes, let us leave each commune to administer its common land. In other words, what should be done is not to violate common property but respect it.

Therefore, the one that has common lands only, which are essential for the grazing of livestock or for making fertilizer, will keep them.

The one that has more heath land than it needs will sell it, lease it out, or enhance its value depending on the circumstances and opportunity.

Is it not a good thing that, on this occasion, as on many others, respect for the law, in harmony with public utility, is in the end the best policy?

This policy may appear very simple, perhaps too simple. These days, we are inclined to want to carry out experiments on others. We do not allow them to decide for themselves, and when we have fathered a theory, we seek to have it adopted in order to go faster, using coercive means. To leave communes to dispose of their common land would seem to be folly both to partisans and to opponents of improvement. Communes are people of habit, the first will say; they would never want to sell. They are improvident, the others will say, and will not be able to keep anything.

These two fears are mutually destructive. Besides, nothing justifies them.

In the first place, the facts prove that communes do not oppose alienation absolutely. In the last ten years, more than fifteen thousand hectares have moved into the private domain and we can predict that this movement will accelerate with the improved viability, the growth of the population, and the rise in the market value of the land.

As for the fear of seeing the communes hurry to strip themselves of their wealth, this is even more of an illusion. Each time that administrative zeal has been directed to alienations, has it not met with resistance from the communes? Is it not this resistance, allegedly customary, that constantly provokes the legislator and all our deliberations? Did not M. Lefranc remind you last year that the Convention itself was not able to put across in this country a method of alienation truly attractive to people in the communes: sharing! I cannot stop myself from quoting the words of our colleague at this point:

“In order for a legislator, as powerful in his deeds and radical in his determination as the legislator of 1793, to have hesitated both to prescribe sharing in a uniform manner and to do violence to what he called the retrograde ideas of the provinces, he must have had a deep and irresistible sense of some sacred right, some imperative necessity hidden under the routine of tradition. In order for populations so violently dragged into the revolutionary current not to have found almost unanimously within their ranks a third of the votes favorable to the new procedure, eager for immediate and personal satisfaction and forgetful, given the price proffered, of the common interests and duties attaching to this common land, individuals determined, in the face of resistance, to introduce a standard, uniform law, the state of things that they wanted to destroy must have had its raison d’être elsewhere than in routine and ignorance.”

From the above, sirs, you will guess the conclusion: that the interfering law should be limited to acknowledging communal rights of property with all their consequences.

But communal property is not placed under the sole safeguard of the municipal councils. These councils are frequently renewed. A majority may occur in one of them that is the result of a momentary upset, especially under the effect of a brand-new law which is, so to speak, at the experimental stage. An intrigue ought not to result in irremediable damage for the commune. Even though the municipal councillors are the natural administrators of the commons, your commission considered that with regard to important measures, such as alienation, the General Council might be armed with a temporary veto, without the right of property being compromised. It would have the right to adjourn the execution of the Municipal Council’s conclusions until an election had given the inhabitants of the commune the opportunity of making their own opinion on the importance of the measure known.

We cannot end this report without drawing your attention to the opinion issued by the prefect,41 not that we share all of his views, but because they are imbued with the most generous sentiments toward the poor classes and show all his care for the public good.

The prefect bases great hope on the common lands, not as a means of increasing the wealth of the region, since he agrees that personal appropriation would achieve this aim better, but as a means of rendering it more equal.

I have to say I find it difficult to understand how it can be the case that the exploitation of common lands, although this produces less wheat, less wine, less wool, and less meat than personal appropriation, nevertheless achieves the result that the whole community, even the poor, is better provided with all these things.

I do not wish to discuss this conception here, but I have to make the following remark: the belief of the prefect in the power of the common land is such that he is in favor, not only of absolute inalienability, but even of the setting up of common land where it no longer exists. What next? Are we now going down the path of moving land from the private to the common domain when so many years have been spent by the government in moving land from the common to the private domain?

Nothing is more likely, it seems to me, to give us confidence in the solution we have put before you than a respect for property with all its consequences. The law must stop at the point where it encounters the rights it is responsible for maintaining and not destroy them. For lastly, if for a few years the law forces common lands to be alienated because of the prevalence of the idea that common land is harmful, and if for another few years the law forces common land to be restored because it is thought to be useful, what will become of the poor inhabitants of the countryside? Will they have to be pushed in opposite directions by external forces, in line with the theory of the moment?

Note that the question is worded wrongly when you are asked, “What should be done with common lands?” It is not up to the legislator but the owner to dispose of it.

However, the commission is in full agreement with the views of the prefect when he speaks of the usefulness to the communes of adding value to the heath land that is not needed by agriculture. The council will probably second his efforts in this direction and the region will reward him with gratitude.

For these reasons, the third commission has charged me with submitting to you the following draft proposal:

The General Council considers that a law on common lands cannot do other than recognize properties of this type and regulate the method by which they are administered;

It considers it natural that the Municipal Council should be charged with this administration in the name of the inhabitants of the commune;

It is of the opinion that, should the Municipal Council vote for a land sale, the General Council should have the right to suspend the implementation of this vote, if it considers this to be appropriate, until it is confirmed by the Municipal Council at the next election.

[39 ]Victor Lefranc.

[40 ]The revolution of 1848.

[41 ](Paillottet’s note) M. Adolphe de Lajonkaire.