In ancien régime criminal law, the confiscation of the whole of the property was a punishment for serious crimes, especially for those of a political nature. This was a complex punishment: it was connected to property rights and to being part of a society; it affected inheritance rights of children and spouse, as well as fiscal interests. Late 18th and early 19th century Penal Codes reflected the doctrinal hesitations on the legitimacy of confiscation. Not uncommonly, legislators thought that they could not abandon confiscation, in spite of all the principle declarations against it. In fact, confiscation of the estate seemed to never completely disappear. It has been outlined that it would return, when liberal political systems were in crisis. Interest in the history of ownership rights is growing and spreading to different disciplines. Historians are turning their attention mainly to the rise of private and individual ownership as it was codified in 19th-century liberal Europe. In writing this history, however, their perspective has too often ignored the other side of the coin, namely the restrictions which the sovereign imposed on such rights, allegedly in the interest of the community. The papers collected in the present volume suggest that private property is not necessarily the most safeguarded legal model, hence it is not less vulnerable to violation. They construct a close analysis of the most common forms of abuse of private property on record - expropriation, seizure, and confiscation - perpetrated by public authorities. They also seek to define the uneasy, often intricate relation between legal and legitimate. In a perspective of lights and shadows, the role of confiscation and expropriation changes : now seen as powerful instruments of change, now as enduring factors of conservation in the evolution of private ownership rights.
Illegitimate Appropriation or just Punishment ?The Confiscation of Property in ancien régimeCriminal Law and Doctrine
MONTI, ANNAMARIA
2012
Abstract
In ancien régime criminal law, the confiscation of the whole of the property was a punishment for serious crimes, especially for those of a political nature. This was a complex punishment: it was connected to property rights and to being part of a society; it affected inheritance rights of children and spouse, as well as fiscal interests. Late 18th and early 19th century Penal Codes reflected the doctrinal hesitations on the legitimacy of confiscation. Not uncommonly, legislators thought that they could not abandon confiscation, in spite of all the principle declarations against it. In fact, confiscation of the estate seemed to never completely disappear. It has been outlined that it would return, when liberal political systems were in crisis. Interest in the history of ownership rights is growing and spreading to different disciplines. Historians are turning their attention mainly to the rise of private and individual ownership as it was codified in 19th-century liberal Europe. In writing this history, however, their perspective has too often ignored the other side of the coin, namely the restrictions which the sovereign imposed on such rights, allegedly in the interest of the community. The papers collected in the present volume suggest that private property is not necessarily the most safeguarded legal model, hence it is not less vulnerable to violation. They construct a close analysis of the most common forms of abuse of private property on record - expropriation, seizure, and confiscation - perpetrated by public authorities. They also seek to define the uneasy, often intricate relation between legal and legitimate. In a perspective of lights and shadows, the role of confiscation and expropriation changes : now seen as powerful instruments of change, now as enduring factors of conservation in the evolution of private ownership rights.
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