Abolishing the sale of offices: ambitions, ambiguities, and myths.
Nothing is clear about this: whether about how the abolition of venality came to be on the agenda at all; or about what the deputies thought they were doing when they agreed to it was it planned in advance? In his memoirs, Barere recalled being told that a magistrate from the parlement was intending to introduce the issue; but that is certainly not what happened. Nor was there an overwhelming mandate in the cahiers for abolition. Almost none had defended venality, or called for its retention, it is true; and those which did mention it, or aspects of it, wanted the whole thing stopped. But only a relatively small proportion of the cahiers mentioned the subject, or its various manifestations, at all. Nor was there much discussion of the question in the pamphlet literature of the spring of 1789. I conclude from this that, although nobody thought the sale of public offices defensible, abolishing it was not among the most pressing public priorities during that reform-obsessed spring. What happened on the Night of 4 August itself is a curious echo of this. During the first few hours of the debate (if it can be called that), the matter did not come up at all. The proposal only came when the session as it were got its second wind, way after midnight. Nor do we know for certain who moved the motion, except that he came from Franche Comte. Philip Dawson thinks(1) it may have been Claude-Francois Roux de Raze, lieutenant-general of the bailliage of Vesoul, who seems to have spoken only once in the entire proceedings of the National Assembly apart from this moment; but who had already denounced venality to the third estate assembly which had elected him. What is certain is that the motion was carried by acclaim. So was a subsequent motion (which this time was moved by a member of a sovereign court) for the abolition of heredity in offices, an essential corollary of the venal system. But when the minutes of the session came to be drawn up, and later drafted into a decree, abolition of venality found itself yoked not to this, but to another principle endorsed much earlier in the session: free justice. There was no logical reason for this. Magistrates did not buy office in the eighteenth century for the fees they Would be able to charge -- or if they did they would have been very disappointed, as innumerable studies have shown. But ever since Maupeou had attempted to popularize his attack on the parlements in 1771 by proclaiming the simultaneous abolition both of judicial venality and of judicial fees, they had been associated in the public mind as twin abuses, as the cahiers bore witness. So now they went down together.
But what exactly had been abolished on 4 August? Not venality tout court, it soon emerged. The decree of 11 August, implementing the decisions of 4th, spoke of the venality of judicial and municipal offices in unequivocal terms. But where did this leave other legal offices, those of procureurs, notaires, huissiers des justice, sergents, commissaires de saisies reeles, receveurs des consignations? Where did it leave military purchase, and the ambiguous brevets de retenue through Which it, and all the offices at the royal court, were sustained? Where did it leave the hated auctioneers, the jures-priseurs unleashed onto the country by Necker nine years previously and more condemned in the cahiers than any other specific manifestation of venality? Where did it leave barber-wigmakers throughout the kingdom, erected into royal officers when wigs became fashionable in the 1670s? And where did it leave the forty-six thousand master craftsmen who had bought heredity since Terray had offered it for sale in 1771? Nobody knew and nobody seems to have thought about it much, outside the closed sessions of the Assembly's comite de judicature whose job it was to devise a new judicial system while winding up the remnants of the old. All that was certain from August 1789 onwards was that, whatever offices were in the end abolished, their holders would receive compensation. This was embodied, uncontested, into the decree of 11th. The committee therefore knew from the start that whatever abolitions it proposed would have to be paid for. And not only that. When, a fortnight later, the Declaration of the Rights of Man and the Citizen was proclaimed, article seventeen stipulated that any property taken by the Nation would be compensated for by "une indemnite juste et prealable." Members of the newly-elected judicature committee strenuously opposed this prealable. They could already foresee that if compensation had to be prior, then it might never be possible to liquidate the system quickly and completely.
In the end it was quite quickly done. By September 1794 the liquidation of venal offices was to all intents and purposes complete, apart from a few persistent loose ends. But it had not been achieved by awarding indemnities that were either just or prealable; and even then it cost far more than anybody had dreamed; and in the longer run venality was still not eliminated from French public life. Let me take these three issues in turn, by way of a slight detour between the first two.
First the liquidation. The committee of judicature presented its proposals on this in September 1790. It was not often that the French revolutionaries had a good word to say about the ministerial despots of the old regime, and particularly about such renowned extortioners as the Abbe Terray. But the men who managed the winding up of venality had nothing but praise for a measure he took, not against the sale of offices, but in order to make the system pay better. In 1771 he abolished the Paulette, the famous inheritance insurance tax imposed on most office-holders in 1604, and replaced it with a new 1 per cent annual levy, the centieme denier. It was to be levied on the official value of every office, and this value was to be set by office-holders themselves. Once declared, this valuation was also to be the authorized market price of the office, reimbursable in the event of suppression. In 1789 there was a suppression, and the declaration of 1771 provided an ideal, almost comprehensive basis on which to pay office-holders off. So the committee recommended it and the Assembly accepted the recommendation almost without debate. But there were two difficulties. First, because the declarations were for tax, everybody had undervalued. So any compensation office-holders were likely to get would be less than their offices were actually worth. Twenty years on, they were caught by their attempts to evade Terray's taxes. But there was worse. Those twenty years had seen a very substantial rise in the price of most offices. Many had doubled, and some even trebled, just like all other real estate in those inflationary times. So compensation on the basis of the 1771 declarations not only failed to reflect the true value of most offices in that year; it also took no account of the leap in their true value since. Ironically, the only office-holders to be compensated on a basis of market value were those who had been excused valuation in 1771, the holders of ennobling offices in the parlements and their chanceries. Thus the most privileged of old regime officers received a last privilege from the Revolution: liquidation of their offices at prices they were actually worth.
They were not, however, the only ones to escape the full rigour of the 1771 principle. So did the so-called "ministerial" officers, the procureurs and notaires, although by a different route. For many months, the Constituent Assembly was not at all sure what to do about these functionaries. At first the procureurs were assured that the abolition of venality would not apply to them, but then it was decided to abolish their monopoly of preparing court cases, allowing citizens the optional use of newly created avoues if they did not wish to handle their own cases. Even if former procureurs went on (as they were implicitly invited to do) to become avoues, their old monopoly, and the heredity and venality that went with it, would disappear. They, too, therefore, would have to be compensated: but there was a complication. All ministerial officers when they had bought, it was argued, had bought two separate things -- an office, and a practice. A practice consisted of a collection of records and a clientele, what today would be called goodwill. It was that which gave real value to the office, and not its titre nu. Few offices had risen so rapidly in price since 1771 as those of the procureurs; but company after company of them now claimed that their 1771 declarations had related only to their bare titles. Their practices were what had gone up in value, and this entitled them to a quite separate and additional compensation. It was not an entirely disingenuous argument, and it won most of the deputies over. Despite (or perhaps partially because of) the intervention of that boring dreamer from Arras, Robespierre, the proposal for separate compensation for both office and practice was carried by a large majority. The actual sums paid proved very complex to work out, and the process took several months. Even then most procureurs were net losers. But thanks, to a distinction which (as we shall see) lived on in French life, they lost much less by the process of liquidation than most of the magistrates before whom they had formerly practised.
The best deal, however, was reserved for that other large category of "ministerial" offices, the notaires. Nothing at an was stipulated about them until the last few weeks of the Constituent. Only a few people suggested that notaries were not necessary. If, therefore, notaries were to survive, should they remain venal? In effect the Assembly said yes, in that it stipulated that in future all incoming notaries should put up caution money as a guarantee of their probity. But, as if to emphasize that this was not the old venality, it was decided to abolish all the old offices, and compensate their holders, on the same basis as the procureurs, drawing that now-classic distinction between tide and practice. But, unlike those of the procureurs, the practices of most notaries did not disappear. Those already practising simply carried on as before, and, since they were already en exercice, they were excused the new caution money as well. They therefore received compensation for something they had not lost; a gesture of revolutionary largesse matched only, perhaps, by the earlier decision to allow landlords to raise rents by 10 per cent to compensate for their tenants' emancipation from tithes. Whether it would have gone through if the Constituent had not been preoccupied by then with wrapping up all its outstanding business before the end of September 1791, nobody can say. What we can say is that the Constituents' inability to conceive of a nation without notaries, or of notaries without a financial input into their functions, laid down an influential marker for the future practice of law in France
We can now proceed to the second question: how much the whole operation cost, and how the money was raised- In September 1790 the committee of judicature set a very precise figure on it all: 460 millions. But this was before the compensation of procureurs and notaries had even been seriously thought about, not to mention a number of non legal offices which were strictly outside the judicature committee's remit. So that in the end the cost of paying off the seventy thousand or so venal offices in the system was almost twice the 1791 estimate: 796 million, plus another nine million to pay off the hereditary guild-masters. Now obviously, these were sums that could never be raised out of ordinary revenue. Throughout the whole history of venality, the strongest argument against trying to abolish it had always been the crippling cost of compensation. What enabled the revolutionaries to do what absolute monarchs had never been able to afford was, of course, the assignats. During the first two years of their existence, in fact, the cost of buying out the venal system was the main driving force in the multiplication of the assignats. The first really big issue, far bigger than the initial quite modest one, was that decreed late in September 1790, which tripled the number in circulation. It was quite clearly intended to cover the compensation that had just been decreed. A year later it was equally clearly seen to be inadequate, and a further issue was authorised. The link to the liquidation of venality was made explicit when on this occasion a proposal was made to suspend the liquidation so as to avoid the debasement of the assignats' value which the new issue would probably bring about. The proposal was voted down as entailing a colossal breach of faith likely to ram that majority of former office-holders who were still unliquidated, counter-revolutionary. The new issue went ahead. And although it was the costs of war which finally and irrevocably debauched the assignats, the first serious drop in their value had already occurred before war broke out as a result of the strain put on them by the still-escalating costs of liquidating venality.
Here, then, was yet another way in which the former office-holders did not get back all their money, or all the value of their offices. Their compensation was paid in depreciating currency. It has often been said that the liquidation of venal offices was practically cost-free to their holders, who simply transmuted their investments in office into purchases of biens nationaux. This was certainly what the constituents hoped would happen; and what Alfred Cobban, who created as many historical myths as he demolished, would have had us believe.(2) It would certainly have been surprising if none of those suddenly receiving substantial liquid assets from the suppression of their offices had not chosen to invest them in the unprecedented quantities of national property now coming on to the market. But there is no evidence that a massive and general reinvestment of this sort took place; and with a little reflection we can see why. Not only was there the depreciation in the assignats to add to the under-compensation that the adoption of the 1771 declarations as a basis for compensation meant, for all those who had made them. There was also the fact, often overlooked, that most venal offices were heavily encumbered with mortgages, debts incurred in order to buy them in the first place. The creditors who had lent these sums had the first claim on any compensation paid, and if anyone reinvested the capital derived from the liquidation of venality in national properties, it was them, rather than those to whom they had lent. This was why undercompensation was such a serious matter. If the sum office-holders got were less than they had borrowed, they were stranded with what is now called negative equity. Unlike today's house-owners, however, the holders of abolished offices did not have the option of sitting tight and hoping values would recover. What they got from the nation was all they were ever going to get; and they had to settle for it, even if it ruined them.
The idea of a painless abolition of venality, therefore, is a myth. Even those the Revolution agreed to compensate for what it deprived them of, still ended up losers to one degree or another. So did many of their creditors. And this paper ends with another myth. Although the process of abolition and compensation was indeed largely completed by September 1794, no sooner was the sale of offices abolished, then it began in various ways to resurrect itself Notaries were selling practices among themselves almost before the ink was dry on their liquidation bonds. And although the caution money, demanded by the Constituent Assembly of new notaries entering practice, was abolished (as an unsavoury relic of venality) by the Convention, it was reintroduced after scarcely more than half a dozen years under the Consulate. The Convention also abolished the uneasy creation of the Constituent, the avoues, but they, too were reinstated by Napoleon. On the analogy of their fellow-ministerials, the notaries, they were required to put up caution money; and they were soon following the notarial example by selling their practices, too. It was the same story with huissiers de justice, avocats aux conseils, and commissaires-priseurs. And all these habits were only confirmed by Louis XVIII at the Restoration. In 1816 the right of all these officials to nominate their own successors was formally recognized, winch in practice meant that they were able, as under the old regime, to pass their practices on to their children or other heirs, or to sell them. Soon the office-trade was being taxed just as it had been before the Revolution, with caution money subjected to a mutation surcharge, and a sales tax imposed on the transfer of practices.
We should not lose perspective on this. There was never any full-blown restoration of ancien regime venality. Nineteenth-century governments did not sell offices; nor did nineteenth-century magistrates or army officers have the right to designate their own successors or expect any payment from them. In these senses, and for these important groups of public servants, venality had gone forever, and the Revolution was responsible. But in the sense that some important bodies of professionals still passed their powers on by heredity or sale, the Revolution's abolition of venality proved less than complete. Nineteenth-century radicals recognized the fact: Clemenceau, for instance, devoted a lot of energy to denouncing the relics of venality and trying to get them abolished afresh. But he, and radicals like him, found their efforts met by an argument as old as venality itself Where was the money to come from to buy the office-holders out? Only the Revolution had found an answer and we have seen that even then it was seriously flawed.
And so these bastard remnants of venality have lumbered on into the Fifth Republic, resisting successive attempts by new-broom administrations to reform them. In the new dawn of Gaullism, the Armand-Rueff report of 1960 denounced self-perpetuating venal professional monopolies as impediments to economic activity, but offered no solutions to the problem of buying their beneficiaries out. In Mitterand's early, socialist days, proposals were elaborated for opening up the notariate to market forces, and recruitment by open competition. They were furiously resisted by the republic's seven thousand notaries, and dropped along with much other left-wing baggage in 1984. And now, with Gaullism resurgent, a new attack is being mounted, though on a less well-entrenched regiment than the notaires. In a cabinet decision of November 1995, which attracted relatively little attention as Alain Juppe confronted mass unrest over other reform programmes, it was announced that in 1998 the monopoly of state auctioneers, the commissaires-priseurs, will be ended. How they will be bought out has not yet been explained, but the decision of principle has been taken. The auctioneers sought to fight this off until the very last moment, but both they, and Juppe's government, found themselves up against a new player in the game: Europe. The Brussels Commission had threatened to take France to the European Court for infringing free market provisions in the Treaty of Rome unless it opened the French art market to all comers. And who drew the Commission's attention to this un-European restrictive practice? None other than Christie's and Sotheby's, the free-market British, who want to break into an art market from which the commissaires-priseurs have long succeeded in excluding them. It should be reassuring to know, for those who feel in need of such reassurances, that Great Britain is not the only country whose rooted national peculiarities are threatened by the process of European integration.
(*) This paper is a distillation of some of the conclusions of Venality. The Sale of Offices in Eighteenth Century France (Oxford: Clarendon Press, 1996) which was unpublished at the time of the colloquium. Full documentation of the information given and claims made here can now be found in the book; hence the paucity of footnotes in what follows.
(1.) P. Dawson, Provincial Magistrates and Revolutionary Politics in France 1189-1799 (Cambridge, Mass. 1972), p. 223 or 80.
(2) A. Cobban, The Social Interpretation of the French Revolution (Cambridge, 1964), p. 84.
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|Title Annotation:||French Revolution|
|Publication:||Canadian Journal of History|
|Date:||Dec 1, 1997|
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