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The droit d'aubaine was a feudal right stipulating that a lord inherited the property of an outsider to the lordship, or "aubain,"[1] upon their death, as if they lived under servile conditions.
According to historian Peter Sahlins, this right was adopted under the Ancien Régime by European sovereigns, particularly in France.[2]
Aubain
[edit]The aubains were distinguished from régnicoles, that is, subjects of the Crown who were born and resided in the kingdom.
According to the Dictionnaire de droit by Claude-Joseph de Ferrière in its 1749 edition, an aubain, meaning a foreigner, is someone born in another kingdom, quasi alibi natus. Foreigners paid no tribute to the king to reside there: they were only incapable of civil rights and subject to the droit d'aubaine unless they had obtained letters of naturalization from the king, but they were always capable of the Law of Nations. They could thus engage in all sorts of acts and contracts between living persons, make and accept donations between living persons. They had the ability to acquire and possess real estate and dispose of it during their lifetime as they wished. However, they could not make donations upon death, nor wills, nor any last will dispositions. The reason and difference are that contracts between living persons fall under the Law of Nations, which is common to all people, without distinguishing whether they are citizens or foreigners, whereas wills and last will dispositions depend entirely on civil law, in which citizens participate and from which foreigners are entirely excluded. Foreigners had no heirs ab intestat because they lived as free individuals but died as slaves. Thus, the property they left behind upon death belonged to the king. An exception was made when a foreigner who died in France left behind régnicole children born in legitimate marriage, who would inherit to the exclusion of the treasury. The succession of aubains belonged to the king, excluding the lords, notwithstanding any contrary customs.[3]
Seigneurial aubaine
[edit]However, there was also a seigneurial droit d'aubaine in certain customs. It consisted of the fact that a person foreign to a lordship who settled there was considered to be of servile condition (mainmortable) if they had not declared their bourgeois status, and upon their death, the property of their estate was acquired by the lord.[3] This right persisted in the few regions where real serfdom or mainmorte had not been completely abolished.
Casual right
[edit]This casual right posed a significant risk for foreign merchants attending fairs, entrepreneurs and workers attracted to manufactories, mercenary soldiers, foreigners holding annuities or loan securities, and cities with large foreign populations. To secure their situation while ensuring revenue for the state, the droit d'aubaine was transformed into a specific tax on foreigners: in exchange for a 5% tax on the value of the deceased’s property, the king waived the droit d'aubaine for nationals of Geneva (1608), Holland (1685), England (1739), Denmark (1742), Naples, Spain and other possessions of the European Bourbons (1762), the Grand Duchy of Tuscany (1768),[4] and the Duchy of Parma[5] (1769).
Abolition
[edit]The droit d'aubaine was abolished by the National Constituent Assembly during the Revolution. Reinstated in the draft of the Civil Code of 1803,[6] it was definitively abolished in 1819 under the Restoration. The concept of escheat or vacant succession can be considered a distant successor to this droit d'aubaine.
References
[edit]- ^ the term is related to the concept of ban
- ^ Sahlins, Peter (2000). "La nationalité avant la lettre. Les pratiques de naturalisation en France sous l'Ancien Régime" [Nationality Before the Term: Naturalization Practices in France Under the Ancien Régime]. Annales. Histoire, Sciences Sociales (in French). 55 (5): 1083. doi:10.3406/ahess.2000.279901. Retrieved 2020-04-08.
- ^ a b de Ferrière, Claude-Joseph (1749). Dictionnaire de droit et de pratique [Dictionary of Law and Practice] (in French). Vol. 1 (3rd ed.). Paris: Brunet. pp. 186–189.
- ^ de Clercq, Alexandre (1864). Recueil des traités de la France, tome 1 (1713-1802) [Collection of Treaties of France, Volume 1 (1713–1802)] (in French). Paris: Amyot. p. 106.
- ^ de Clercq, Alexandre (1864). Recueil des traités de la France, tome 1 (1713-1802) [Collection of Treaties of France, Volume 1 (1713–1802)] (in French). Paris: Amyot. p. 106.
- ^ Weil, Patrick (2003). Sirinelli, J.-F. (ed.). Dictionnaire historique de la vie politique française (XXe siècle) [Historical Dictionary of French Political Life (20th Century)] (PDF) (in French). Paris: PUF. pp. 719–721. Archived from the original (PDF) on 2013-10-17. Retrieved 2025-09-24.
Bibliography
[edit]- Wells, Charlotte Catherine (1992). The Language of citizenship in early modern France: Implications of the droit d'aubaine [The Language of Citizenship in Early Modern France: Implications of the Droit d'Aubaine]. Indiana University.
- Wells, Charlotte Catherine (1995). Law and citizenship in early modern France [Law and Citizenship in Early Modern France]. Baltimore - London: Johns Hopkins University Press. p. 198. ISBN 0-8018-4918-7.
- Dubost, Jean-Pierre (1996). "Étrangers en France" [Foreigners in France]. In Bély, Lucien (ed.). Dictionnaire de l'Ancien Régime [Dictionary of the Ancien Régime] (in French). Paris: PUF.
- Cerutti, Simona (2012). Etrangers: Etude d'une condition d'incertitude dans une société d'Ancien Régime [Foreigners: Study of a Condition of Uncertainty in an Ancien Régime Society] (in French). Paris: Bayard. p. 301. ISBN 978-2-227-48303-3.
- Pothier, Robert-Joseph (1778). Traité des personnes et des choses [Treatise on Persons and Things] (in French). Paris.
