Front Page Titles (by Subject) APPENDIX. - The Old Regime and the Revolution
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
APPENDIX. - Alexis de Tocqueville, The Old Regime and the Revolution 
The Old Regime and the Revolution, trans John Bonner (New York: Harper & Brothers, 1856).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain. It was scanned and originally put online by Google for non-commercial, educational purposes. We have retained the Google watermark as requested but have added tables of contents, pagination, and other educational aids where appropriate.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF THE PAYS D’ETATS, AND LANGUEDOC IN PARTICULAR.
IT is not my intention to examine in detail, in this place, the condition of affairs in each of the pays d’états, as they stood before the Revolution.
I merely design to state how many there were; which of them were distinguished by local activity; on what footing they stood as regards the royal government; wherein they departed from the rules I have mentioned, and in what particulars they were governed by these rules; and, lastly, to show, by the example of one of them, what they all might have become.
States had existed in most of the French provinces—that is to say, their government had been administered by members of the Three Estates (gens des trois états), as it was then the fashion to say; in other words, by an assembly composed of representatives of the clergy, the nobility, and the burghers. This provincial institution, like most of the political institutions of the Middle Ages, had flourished in a similar form throughout almost all civilized Europe, or, at all events, in every country into which German customs and ideas had made their way. In many German provinces States existed up to the French Revolution; in the others they did not disappear till the seventeenth or eighteenth century. For two centuries sovereigns had uniformly and steadily waged war against them, sometimes openly, sometimes secretly. No attempt had been any where made to adapt them to the improved condition of the times; but monarchs had never let slip an opportunity of destroying them, or deforming them when this was the worst they could do.
In France there were but five provinces of any extent, and a few small, insignificant districts, in which States still existed in 1789. Provincial liberty, properly speaking, subsisted in two only, Bretagne and Languedoc; every where else the substantial features of the institution had been taken away, leaving only the semblance behind.
I shall examine Languedoc separately, and at some length.
It was the largest and most populous of the pays d’états. It contained more than two thousand communes, or, as they were then called, communities, and nearly two millions of inhabitants. It was, moreover, the best ordered and prosperous, as well as the largest of these provinces. We may therefore learn, from an inquiry into its condition, what provincial liberty was under the old regime, and to what extent, in those sections of country where it was most vigorous, it had been subordinated to the royal power.
In Languedoc the Estates could not meet without an express order from the king. Each member must have received individually a letter addressed to him inviting him to be present at each session. Hence a malcontent of the time remarked: “Of the three bodies which compose our Estates, one, the clergy, is appointed by the king, as all livings and bishoprics are in his gift; and the two others are assumed to be in the same position, for the king can prevent any member from being present by simply withholding the invitation, though the member excluded has not been exiled or even put on his trial.”
The period when the session of the Estates must end was likewise fixed by the king. An Order in Council limited their ordinary sessions to forty days. The king was represented in the assembly by commissioners who had seats whenever they chose to demand them, and were the organ of the government. The authority of the Estates was strictly limited. They could come to no important decision, pass no appropriation bill, without an Order in Council approving the measure: they could neither impose a tax, nor effect a loan, nor institute an action at law without the express permission of the king. All their rules, including those which regulated their own sittings, were invalid till the king had sanctioned them. Their receipts and expenditures, their budget, as we should say at present, was subject to the same control.
The government exercised the same political rights in Languedoc as elsewhere. Whatever laws it chose to promulgate, whatever general rules it laid down, whatever measures it took, applied to Languedoc as well as the pays d’élection. It performed the natural functions of government, maintained the same police, employed the same agents there as elsewhere, and created, from time to time, a host of new functionaries, whose offices the province was obliged to buy up at very high rates.
Languedoc, like the other provinces, was governed by an intendant. In every district this intendant had sub-delegates, who were in relation with the heads of the communities, and directed them. The intendant was public guardian, precisely as in the pays d’élection. The smallest village, buried in the gorges of the Cevennes, could not make the least outlay without being authorized by an Order in Council from Paris. That branch of legal business which is now called the Department of Private Claims (contentieux administratif) was even more extensive there than elsewhere. The intendant had original jurisdiction over all questions of highways and roads, and generally over all disputes in which the government was, or chose to consider itself, interested. Nor were government agents less carefully protected there than elsewhere against prosecutions by citizens who were aggrieved by them.
Wherein, then, did Languedoc differ from the other provinces? How came it to be so envied by its neighbors? It differed from the rest of France in three respects:
1st. It possessed an assembly composed of substantial men, enjoying the confidence of the people and the respect of the general government. No government functionary, or, as they were called, king’s officer, could be a member. The assembly discussed freely and seriously the affairs of the province every year. The proximity of this centre of intelligence obliged the government to exercise its privileges very cautiously and moderately: though its agents and its tendencies were the same there as elsewhere, they produced very different results.
2dly. Many public works were carried on in Languedoc at the cost of the king and directed by his agents; others were partly defrayed and substantially directed by the crown; but a still larger number were executed at the cost of the province. When the king had once approved the design and authorized the outlay necessary for the latter, they were prosecuted by officials chosen by the States, under the inspection of commissioners selected from the assembly.
3dly. The province was entitled to levy, in the way it liked best, a portion of the royal taxes, and all the taxes that were required for its own necessities.
We shall now see the use which Languedoc made of these privileges. It is a matter which deserves close attention.
A most striking feature in the pays d’élection was the rarity of local taxes. The general taxes were often burdensome, but the province spent little or nothing on itself. In Languedoc, on the contrary, enormous sums were spent by the province for public works; in 1780 the annual appropriation exceeded 7,000,000 livres.
The central government was occasionally shocked at such extravagance. It began to fear that such appropriations would exhaust the province, and incapacitate it from paying the royal taxes. It reproached the States with a want of moderation. I have read a memorial in which the assembly replied to these criticisms. A few extracts from that document will depict the spirit which animated that little government better than any thing I could say.
The memorial admits that the province has certainly undertaken and is prosecuting immense works; but, instead of apologizing therefor, it declares that, if the king has no objection, this policy will be still farther carried out. The province has already improved and facilitated the navigation of the chief rivers which cross its territory, and is now engaged in prolonging the Burgundy Canal—which was constructed under Louis XIV., and is now inadequate—through Lower Languedoc, by Cette and Agde to the Rhone. It has adapted the port of Cette to commercial purposes, and keeps it in repair at great expense. These outlays, it is observed, are for national rather than provincial objects, but the province has made them, as it will be the chief gainer by the works. It is further engaged in draining and reclaiming the marsh of Aigues-Mortes. But its chief outlays have been for roads. It has either opened or repaired all the high roads which traverse its surface and lead into neighboring provinces. It has mended all the roads between the different cities and bourgs of Languedoc. All these roads are excellent even in winter, and compare very favorably with the hard, rough, ill-kept roads which are met with in most of the neighboring provinces, such as Dauphiné, Quercy, and Bordeaux (which, it is observed, are pays d’élection). On this head the memorial refers to the judgment of travelers and merchants; nor without reason, for Arthur Young, who traveled through the country a year afterward, notes, “Languedoc, pays d’état—good roads, made without corvées.”
If the king will grant permission, continues the memorial, the Estates will do more yet; they will undertake to improve the parish roads, which affect as many interests as the others. “For if produce,” continued the memorial, “can not find its way from the producer’s barn to the market, it is of very little use to provide for its exportation to a distance.” “The principle of the States with regard to public works,” the memorial adds, “has always been to look at their usefulness, not at their cost.” Rivers, canals, roads, give value to all products of the soil and of industry, by facilitating their conveyance at all seasons and at small expense to a market, and spreading commercial activity throughout the province; they are always worth more than they cost. Moreover, works of this character, if undertaken moderately, and spread uniformly over the territory of the province, sustain the value of labor, and give employment to the poor. “The king,” adds the memorial, proudly, “need be at no expense for the establishment of work-houses in Languedoc, as he has been obliged to do in the rest of France. We seek no favors of the kind: the works of public utility which we undertake ourselves stand us in the stead of work-houses, and furnish a remunerative demand for all our labor.”
The more I study the regulations which the king permitted the States of Languedoc to establish in those branches of administration which were left under their control, the more I admire the wisdom, the equity, the mildness which characterize them, and the more satisfied am I of the superiority of the policy of the local government over that which obtained in the provinces administered by the king.
The province was divided into communities, towns, or villages—into administrative districts, which were called dioceses; and, lastly, into three great departments, called sénéchaussées. Each of these divisions was separately represented in the Assembly; each had its own separate government, which acted under the direction of the States or the king. Public works for the benefit of any particular division were only undertaken when that division expressed a desire for them. If the work demanded by the community would be beneficial to the diocese, the latter was bound to bear a proportionate share of the expense. If the sénéchaussée was interested, it paid a share. But diocese, sénéchaussée, and province were all bound to contribute to works which the interests of a community required, if they were necessary, and beyond the means of the body directly concerned; for, as the States frequently observed, “The fundamental principle of our constitution is that all the divisions of the province are jointly and severally liable to each other, and bound to contribute to each other’s progress.”
Works undertaken by the province were required to have been planned deliberately, and to have received the assent of all the secondary bodies concerned. All labor consumed was paid for in cash; corvées were unknown. I have stated that in pays d’élection land taken for objects of public utility was always tardily and inadequately paid for, and that occasionally the owner was not paid at all. This was one of the leading grievances of the Provincial Assemblies when they met in 1787. Some even complained that it was impossible to estimate the debts that had been thus incurred, as the property taken had been destroyed or transformed before it had been valued. In Languedoc, every foot of land taken from its owner was carefully valued before it was touched, and the value paid before the expiration of a year from the time the works were begun.
This system of the States of Languedoc with regard to public works appeared so excellent to the central government, that, without imitating, it admired it. The Royal Council, after having authorized its establishment, had it printed at the royal printing-office, and sent it to the intendants as a useful document to consult.
All that I have said with regard to public works is applicable, even in a greater degree, to that other and equally important branch of the provincial administration, the collection of the taxes. When one examines this department, first in the kingdom, then in the province, it seems impossible to believe that both are parts of the same empire.
I had occasion some time since to mention that the system used in Languedoc for the distribution and collection of the taille was substantially the same as the one now employed for the collection of our modern imposts. I shall not again revert to the subject, but will add simply that the province was so well convinced of the superiority of its method that, whenever the king established new taxes, the States paid heavily for the right of levying them in their own way, and by the hands of their own agents.
Notwithstanding all the outlays I have enumerated, the financial condition of Languedoc was so prosperous, and her credit so well established, that the central government often applied to it for endorsements, and borrowed in the name of the province at lower rates than would have been charged to the crown. I find that Languedoc borrowed in its own name, but for the use of the king, in the later years of the monarchy, 73,200,000 livres.
Yet the government watched these provincial liberties with a very jealous eye. Richelieu first multilated, then abolished them. The weak and slothful Louis XIII., who loved nothing, detested them: he had such a dislike for provincial privileges, according to Boulainvilliers, that he would fly into a rage at the mere mention of the subject. Weak minds always find energy enough to hate things which oblige them to exert themselves; their whole vigor is concentrated upon that one point, and, weak as they are every where else, they contrive to hate with some force. Good fortune happily restored the Constitution of Languedoc during the infancy of Louis XIV.; and that monarch, regarding it as his work, respected it. Louis XV. suspended it for a couple of years, but suffered its restoration afterward.
The creation of municipal offices involved great indirect dangers for the province. This detestable institution tended not only to destroy the constitution of cities, but to disfigure that of provinces. I am not aware whether the deputies of the Third Estate in the Provincial Assemblies had ever been chosen in view of the business they had to perform; certain it is that for a long period of time they had not been so elected. The only legitimate representatives of the middle classes and the people were the municipal officers of cities.
So long as the cities chose their magistrates freely by universal suffrage, and generally for a short period of time, but little inconvenience was occasioned by the fact that these deputies had not been specially appointed to represent the people, and defend their interest at that particular moment. Perhaps the mayor, council, or syndic was as faithful an exponent of the popular will as if he had been expressly chosen to represent the people in the assembly. But it will at once be understood that this ceased to be the case when the official had acquired his office for money. In this case he represented no one but himself, or, at best, only the small interests and petty passions of his coterie. Yet the powers of the magistrate by purchase were the same as those of the elected magistrate had been. Hence a total change in the character of the institution. Instead of a firm body of popular representatives, the nobility and the clergy had to contend in the Provincial Assembly with no one but a few isolated, timid, and powerless burghers; the Third Estate became more and more insignificant in the government as it grew more and more powerful in society. This was not the case in Languedoc, as the province always took care to buy up the offices which the king established from time to time. For this object a loan of more than four millions of livres was effected in the year 1773 alone.
Other causes, more potent still, had operated to imbue these old institutions with a modern spirit, and imparted to the States of Languedoc an indisputable superiority over all others.
In that province, as in a large portion of the South, the taille was a tax on the realty, not on the person. It was regulated by the value of the property, not the fortune of the owner. True, certain lands enjoyed a privilege of exemption. These lands had formerly all belonged to the nobility; but, in the course of events and the progress of industry, part of them had fallen into the hands of commoners, while, on the other hand, noblemen had in many cases become proprietors of lands subject to the taille. The absurdity of privileges was enhanced, no doubt, by their transfer from persons to property; but their burden was diminished, because, inconvenient as they were, they involved no humiliation. They were no longer inseparably bound up with class ideas; they created no class interests hostile to those of the public; they threw no obstacle in the way of a general administration of the public business by all classes. Nor was there, in fact, any part of France in which all classes mixed so freely, or on so decided a footing of equality as in Languedoc.
In Bretagne, all men of rank were entitled to be present in person at the States; hence these latter bore some resemblance to Polish Diets. In Languedoc, the nobility was represented in the States by twenty-three deputies; the clergy was represented by twenty-three bishops. It is worthy of remark, that the cities had as many members as the other two orders combined.
There was but one assembly, and votes were taken by heads, not by orders; hence the Third Estate naturally became the preponderating body, and gradually imbued the whole assembly with its peculiar spirit. The three magistrates, known as syndics-general, who were intrusted with the general management of business before the States, were always lawyers, that is to say, commoners. The nobility was strong enough to maintain its rank, but not to rule. The clergy, on the other hand, though counting many men of rank among its members, always maintained a good understanding with the Third Estate. It took an ardent interest in many of the schemes proposed by the burghers, labored in concert with them to augment the material property of citizens, and extend commerce and industry, and often placed at their service its extensive knowledge of men, and its peculiar skill in the management of affairs. It was almost always an ecclesiastic who was sent to Versailles to discuss with ministers questions that were in dispute between the States and the crown. It may be said that during the whole of the last century the government of Languedoc was administered by burghers, under the control of noblemen, and with the aid of bishops.
Thanks to the peculiar constitution of the province, the spirit of the new era penetrated Languedoc easily, and made many modifications in its old system without destroying any thing.
This might have been the case every where. A portion of the perseverance and energy that were employed by the kings in abolishing or crippling the Provincial States would have sufficed for their improvement and adaptation to the necessities of modern civilization, had those monarchs ever sought any thing beyond extending and maintaining their own power.
NOTE REFERRING TO VARIOUS PASSAGES IN THIS VOLUME.
FEUDAL RIGHTS EXISTING AT THE TIME OF THE REVOLUTION, ACCORDING TO THE FEUDAL LAWYERS OF THE DAY.
I do not design to write a treatise on feudal rights, or to inquire into their origin. My object is merely to state which of them were still exercised in the eighteenth century. They have played so important a part in subsequent history, and filled so large a place in the imagination of those who have been freed from them, that I have thought it would be curious to ascertain what they really were at the time the Revolution destroyed them. With this view I have studied, first, the terriers, or registers of a large number of seigniories, choosing those which were most recent in date in preference to the older ones. Finding that this plan led to no satisfactory results, as the feudal rights, though regulated by the same general system of laws throughout Europe, varied infinitely in matters of detail in the different provinces and cantons, I resolved to pursue a different method, which was this. The feudal rights gave rise to countless lawsuits. These suits involved such questions as, How were these rights acquired? how were they lost? in what did they consist? which of them required to be based on a royal patent? which on a private contract? which on the local custom or long-established practice? how were they valued in case of sale? what sum of money was each class supposed to represent in proportion to the others? All these had been and still were litigated questions, and a school of lawyers had devoted their whole attention to their study. Of these, several wrote during the second half of the eighteenth century, some shortly before the Revolution. They were not jurisconsults, properly so called; they were legal practitioners, whose sole aim was to furnish the profession with rules of practice for a special and unattractive branch of the law. A careful study of these writers throws light on the intricate and confused details of the subject. I subjoin the most succinct analysis that I have been able to make of my work. It is mainly derived from the work of Edme de Freminville, who wrote about 1750, and that of Renauldon, written in 1765, and entitled Traité Historique et Pratique des Droits Seigneuriaux.
The cens (that is to say, the perpetual rent, in money or produce, which the feudal laws impose on certain possessions) still continues, in the eighteenth century, to modify the condition of many landholders. It is still indivisible; that is to say, when the property which owes the cens has been divided, it may be exacted from any one of the owners. It is not subject to prescription. According to some customs, the owner of a property burdened with cens can not sell it without exposing himself to the retrait censuel; that is to say, the creditor of the cens may take the property by paying the same price as the other purchaser. The custom of Paris ignores this right.
Lods et ventes (mutation-fine).— The general rule, in those parts of France where customary law obtains, is that a mutation-fine is due on every sale of land subject to cens: it is a due on the sale which accrues to the seignior. These dues differ in different customs, but they are considerable in all. They exist also in those parts of the country where written law obtains; there they amount to a sixth of the price, and are called lods; but the seignior, in these districts, must prove his right. Throughout the country the cens creates a privilege for the seignior, in virtue of which he is preferred to all other creditors.
Terrage or champart, agrier, tasque.— These are dues in produce which the debtor of the cens pays to the seignior; the quantity varies according to custom and private agreement. These dues were often met with during the eighteenth century. I believe that, even where customary law obtained, terrage required to be founded on a contract. It was either seigniorial, or connected with the land (foncier). It would be superfluous to explain here the signs by which these two kinds were distinguished; suffice it to say that the latter, like ground-rents, was subject to a prescription of thirty years, while the former could never be lost by prescription. Land subject to terrage could not be hypothecated without the consent of the seignior.
Bordelage.— This was a due which existed only in Nivernais and Bourbonnais, and consisted in an annual rent payable by all land subject to cens, in the shape of money, grain, and poultry. This due entailed very rigorous consequences: the non-payment of it for three years involved the commise, or confiscation of the property to the seignior. The rights of property of debtors of bordelage were, moreover, inchoate: in certain cases the seignior was entitled to their inheritance, to the exclusion of the rightful heirs. This was the most rigorous of all the dues of the feudal tenure, and its exercise had gradually been restricted to the rural districts; for, as the author says, “peasants are mules ready to carry any load.”
Marciage was a peculiar right, only exercised in certain places. It consisted in a certain return which was paid by the possessors of property liable to cens on the natural death of the seignior.
Enfeoffed tithes.—A large portion of the tithes were still enfeoffed during the eighteenth century. In general, they could only be claimed in virtue of a contract, and did not result from the mere fact of the land being seigniorial.
Parcières were dues levied on the harvest. They bore some resemblance to the champart and enfeoffed tithes, and were chiefly in use in Bourbonnais and Auvergne.
Carpot, a due peculiar to Bourbonnais, was to vines what champart was to arable land—a right to a portion of the produce. It was one quarter of the vintage.
Serfdom.—Those customs which retain traces of serfdom are called serf customs; they are few in number. In the provinces where they obtain, no lands, or very few indeed, are wholly free from traces of serfdom. (This was written in 1765.) Serfdom, or, as the author terms it, servitude, was either personal or real.
Personal servitude was inherent in the person, and clung to him wherever he went. Wherever he removed his household, the seignior could pursue and seize him. The authors contain several judgments of the courts based on this right. Among them, one, dated 17th June, 1760, rejects the claim of a seignior of Nivernais upon the succession of one Pierre Truchet. Truchet was the son of a serf under the custom of Nivernais, who had married a free woman of Paris, and died there. The court rejected the seignior’s demand on the ground that Paris was a place of refuge from which serfs could not be recovered. The ground of this judgment shows that the seigniors were entitled to claim the property of their serfs when they died in the seigniory.
Real servitude flowed from the possession of certain land, and could not be got rid of except by removing from the land and residing elsewhere.
Corvées were a right by which the seignior employed his vassals or their cattle for so many days for his benefit. Corvées at will, that is to say, at the discretion of the seignior, are wholly abolished. They were long since reduced to so many days’ work in the year.
Corvées were either personal or real. Personal corvées were due by every laborer living on the seigniory, each working at his own trade. Real corvées were attached to the possession of certain lands. Noblemen, ecclesiastics, clergymen, officers of justice, advocates, physicians, notaries, bankers, notables, were exempt from corvées. The author quotes a judgment of 13th August, 1735, rendered in favor of a notary whose seignior wished to compel him to work for three days in the year in drawing up deeds for the seignior. Also another judgment of 1750, deciding that when the corvée is to be paid either in money or in labor, the choice rests with the debtor. Corvées must be substantiated by a written document. Seigniorial corvées had become very rare in the eighteenth century.
Banality.—There are no banal rights in the provinces of Artois, Flanders, and Hainault. The custom of Paris strictly forbids the exercise of this right when it is not founded on a proper title. All who are domiciled in the seigniory are subject to it—men of rank and ecclesiastics even oftener than others.
Independently of the banality of mills and ovens, there are many others:
1st.Banality of Factory-mills, such as cloth-mills, cork-mills, hemp-mills. Several customs, among others those of Anjou, Maine, and Touraine, establish this banality.
2d. Banality of Wine-presses.—Very few customs speak of it. That of Lorraine establishes it, as also does that of Maine.
3d. Banal Bull.—No custom alludes to it, but it is established by certain deeds. The same is true of banal butcheries.
Generally speaking, this second class of banalities are rarer and less favorably viewed than the others. They can only be established in virtue of a clear provision of the custom, or, in default of this, by special agreement.
Ban of the Vintage.—This was a police authority, which high justiciary seigniors exercised, without special title, throughout the kingdom during the eighteenth century. It was binding on every one. The custom of Burgundy gave to the seignior the right of gathering his crop of grapes one day before any other vine-grower.
Right of Banvin.—This right, which, according to the authors, a host of seigniors exercised either in virtue of the custom or under private contracts, entitled them to sell the wine made on their own estates a certain time—usually a month or forty days—before any other vine-grower could send his wine to market. Of the greater customs, those of Tours, Anjou, Maine, and Marche are the only ones which recognize and regulate this right. A judgment of the Court of Aides, bearing date 28th August, 1751, permits innkeepers to sell wine during the banvin; but this was an exceptional case; they were only allowed to sell to strangers, and the wine sold must have come from the seignior’s vineyard. The customs which mention and regulate the right of banvin usually require that it be founded on written titles.
Right of Blairie.—This is the right in virtue of which high justiciary seigniors grant permission to the inhabitants of the seigniory to pasture their cattle upon the lands within their jurisdiction, or waste lands. This right does not exist in those districts which are governed by written law; but it is well known within the limits of the various customs. It is found under different names in Bourbonnais, Nivernais, Auvergne, and Burgundy. It rests on the assumption that the property of all the land was originally in the seignior, and that, after having distributed the best portions in feuds, copyholds (censives), and other concessions, for specific rents, he is still at liberty to grant the temporary use of those lands which are only fit for pasture. Blairie is established by several customs; but no one can claim it but a high justiciary, and he must be able to show either a positive title to it, or old acknowledgments of its existence, fortified by long usage.
Tolls.—Originally, say the authors, there existed a vast number of seigniorial tolls on bridges, rivers, and roads. Louis XIV. abolished many of them. In 1724, a commission appointed to inquire into the subject abolished twelve hundred of them; and in 1765 they were still being reduced. The first principle in this matter, says Renauldon, is that a toll, being a tax, must not only be established in virtue of a title, but that title must emanate from the crown. The toll is mentioned as being de par le roi. One of the conditions of tolls is that there must be attached to them a tariff of the rates which all merchandise must pay. This tariff must always be approved by an Order in Council. The title, says the author, must be confirmed by uninterrupted possession. Notwithstanding the precautions taken by the legislator, the value of some tolls has largely increased of late years. I know a toll, he adds, which was farmed out for 100 livres a century since, and which now brings in 1400; another, farmed out for 39,000 livres, now produces 90,000. The chief ordinances and edicts regulating tolls are the 29th title of the ordinance of 1669, and the edicts of 1683, 1693, 1724, and 1775.
The authors whom I quote, though rather prepossessed, in general, in favor of feudal rights, acknowledge that great abuses are practiced in the collection of tolls.
Ferries.—The right of ferry differs sensibly from the right of tolls. The latter is levied on merchandise only; the former on persons, cattle, and vehicles. This right can not be exercised without the king’s sanction, and the tariff of rates charged must be included in the Order in Council authorizing or establishing the ferry.
The Right of Leyde (its name varies in different places) is an impost on merchandise sent to fairs or markets. The lawyers I am quoting say that many seigniors erroneously consider this a right appurtenant to high justice, and purely seigniorial; whereas it is a tax which requires the sanction of the king. At any rate, the right can only be exercised by a high justiciary, who receives the fines levied in virtue thereof. And it appears that though theoretically the right of leyde could not be exercised except by grant from the king, it was often in part exercised in virtue of a feudal title and long usage.
It is certain that fairs could only be established by authorization of the king.
Seigniors need no specific title or royal grant to regulate the weights and measures that are to be used in the seigniory. It suffices that the right is founded on the custom or long continued usage. The authors say that all the attempts that have been made by the kings to introduce a uniform standard of weights and measures have been failures. No progress has been made in this matter since the customs were drawn up.
Roads.—Rights exercised by the seigniors over the roads.
The highways, which are called the king’s roads, belong wholly to the crown. Their establishment, their repairs, crimes committed upon them, are not within the jurisdiction of the seigniors or their judges; but all private roads within the limits of a seigniory belong, without doubt, to the high justiciary. They have entire control over them, and all crimes committed thereon, except cases reserved to the king, are within the jurisdiction of the seigniorial judges. Formerly the seigniors were expected to keep in repair the high roads which traversed their seigniory, and rights of toll, boundary, and traverse were granted them by way of indemnity; but the king has since taken the direction of all highways.
Rivers.— All rivers navigable for boats or rafts belong to the king, though they traverse seigniories, any title to the contrary notwithstanding (ordinance of 1669). Any rights which the seigniors may exercise on these rivers—rights of fishing, establishing mills or bridges, or levying tolls—must have been acquired by grant from the king. Some seigniors claim civil or police jurisdiction over these rivers; but any such rights have been usurped or obtained by fraudulent grants.
Small rivers undoubtedly belong to the seigniors whose domain they traverse. They have the same rights of property, jurisdiction, and police, as the king has over navigable rivers. All high justiciaries are universal seigniors of non-navigable rivers flowing through their territory. They need no better title to establish their right of property than the fact of their existence as high justiciaries. Some customs, such as that of Berri, authorize individuals to erect mills on seigniorial rivers flowing through their property without permission from the seignior. The custom of Bretagne granted this right to noblemen. Generally, the law restricts to the high justiciary the right of granting permission to build mills within his jurisdiction. Even traverses can not be made upon a seigniorial river, for the protection of a farm, without permission from the seigniorial judges.
Fountains, Pumps, Retting-tanks, Ponds.— Rain falling upon the highway belongs exclusively to the high justiciary, who alone can make use of it. He can make a pond in any part of his jurisdiction, even on the property of his tenants, by paying them for the land that is submerged. This rule is distinctly laid down by several customs; among others, by those of Troyes and Nivernais. Private individuals can only have ponds on their own land; and even for this, according to several customs, they must obtain leave from the seignior. The customs which require leave to be asked of the seignior forbid his selling permission.
Fishery.— The right of fishery in rivers navigable for boats or rafts belongs to the king. He alone can grant it. His judges have sole cognizance of infractions of the fishery laws. Many seigniors, however, enjoy rights of fishery on these rivers, but they have either usurped them, or hold them by special grant from the king. As for non-navigable rivers, it is forbidden to fish therein, even with line, without the leave of the high justiciary in whose domain they flow. A judgment of 30th April, 1749, condemned a fisherman on this rule. Seigniors themselves must obey the general regulations regarding fisheries in fishing in these rivers. The high justiciary may grant the right of fishing in his river, either as a feud, or for a yearly cens.
Hunting.— The right of hunting can not be farmed out like the right of fishery. It is a personal right. It is held to be a royal right, which even men of rank can not exercise within their own jurisdiction, or on their own feud, without the king’s permission. This doctrine is laid down in the 30th title of the ordinance of 1669. The seigniorial judges are competent to sit in all cases relative to hunting, except those which refer to the chase of red beasts (these are, I imagine, large game, such as stags and deer), which must be left to the royal courts.
The right of hunting is, of all seigniorial rights, the one most carefully withheld from commoners; even the franc-aleu roturier does not carry it. The king does not grant it in his pleasures. So strict is the principle, that a seignior can not grant leave to hunt. That is the law. But in practice seigniors constantly grant permission to hunt, not only to men of rank but to commoners. High justiciaries may hunt throughout the limits of their jurisdiction, but they must be alone. Within these limits they are entitled to make all regulations, prohibitions, and ordinances regulating hunting. All feudal seigniors, even without justiciary rights, may hunt within their feud. Men of rank, who have neither feud nor justiciary rights, may hunt upon the lands adjoining their residences. It has been held that a commoner who owns a park within the limits of a high justice must keep it open for the pleasures of the seignior; but the judgment is old; it dates from 1668.
Warrens.— None can now be established without a title. Commoners can establish warrens as well as noblemen, but none but men of rank can have forests.
Pigeon-houses.— Certain customs restrict the right of having pigeon-houses to high justiciaries; others grant it to all owners of feuds. In Dauphiné, Brittany, and Normandy, no commoner can own a pigeon-house; no one but a noble can keep pigeons. Most severe punishments, often corporal, were inflicted on those who killed pigeons.
Such are, according to the authors quoted, the chief feudal rights exacted during the latter half of the eighteenth century. They add that “these rights are generally established. There are a host of others, less known and less extended, which exist only in certain customs or in certain seigniories in virtue of special titles.” These rare or restricted rights which the authors enumerate number ninety-nine. Most of them weigh upon agriculture, being dues to the seignior on harvests, or on the sale or transport of produce. The authors say that many of these rights were disused in their time. I fancy, however, that several of them must have been enforced in some places as late as 1789.
Having ascertained from the feudal lawyers of the eighteenth century what feudal rights were still enforced, I wished to ascertain what pecuniary value was set upon them by the men of that day.
One of the authors I have quoted, Renauldon, furnishes the requisite information. He gives a set of rules for legal functionaries to follow in appraising in inventories the various feudal rights which existed in 1765, that is to say, twenty-four years before the Revolution. They are as follows:
Rights of Jurisdiction.— He says, “Some of our customs value the right of jurisdiction, high, low, and middle (justice haute, basse, et moyenne), at one tenth the revenue of the land. Seigniorial jurisdictions were then highly important. Edme de Treminville thinks that, in our day, jurisdiction should not be valued higher than a twentieth of the income of the land. I think even this valuation too high.”
Honorary Rights.— Though these rights are not easily appreciated in money, our author, who is a practical man, and not easily imposed upon by appearances, advises the appraisers to value them at a very small sum.
Seigniorial Corvées.— The author supplies rules for the valuation of corvées, which shows that they were still occasionally enforced. He values the day’s work of an ox at 20 sous, and that of a man at 5 sous, besides his food. This is a fair indication of the wages paid at the time.
Tolls.— With regard to the valuation of tolls, the author says: “No seigniorial rights should be valued at a lower rate than these tolls. They are very fluctuating; and now that the king and the provinces have taken charge of the roads and bridges which are of most use to trade, many tolls have become useless, and they are being abolished daily.”
Right of Fishing and Hunting.— The right of fishery may be farmed out and regularly appraised. The right of hunting can not be farmed out, being a personal right. It is, therefore, an honorary, not a productive right, and can not be estimated in money.
The author then proceeds to speak of the rights of banality, banvin, leyde, blairie, and the space he devotes to them shows that they were the most frequently exercised and the most important of the surviving feudal rights. He adds: “There are, besides, a number of other seigniorial rights, which are met with from time to time, but it would be tedious and even impossible to enumerate them here. In the examples we have given, appraisers will find rules to guide them in estimating the rights which we have not specially valued.”
Valuation of the Cens.— Most of the customs say that the cens must be valued at rather more than 33/10 per cent. This high valuation is due to the fact that the cens carries with it various casual benefits, such as mutation-fines.
Enfeoffed Tithes, Terrage.— Enfeoffed tithes can not be valued at less than four per cent., as they involve no care, labor, or expense. When the terrage or champart carries with it mutation-fines to the seignior, this casualty must settle the value at 33/10 per cent., otherwise it must be valued like the tithes.
Ground-rents, bearing no mutation-fines or right of redemption—that is to say, which are not seigniorial—must be valued at five per cent.
ESTIMATE OF THE VARIOUS TENURES IN USE IN FRANCE BEFORE THE REVOLUTION.
We only know in France, says the author, three kinds of real estate:
1st. The franc-aleu, which is a freehold, exempt from all burdens, and subject to no seigniorial dues or rights, either beneficial or honorary.
Francs-aleux are either noble or common (roturiers). Noble francs-aleux carry with them a right of jurisdiction, or they have feuds or lands held by cens depending on them. They are divided according to feudal law. Common francs-aleux have no jurisdiction, or feuds, or lands held by cens. They are divided according to the ordinary rules (roturièrement). The author considers that the holders of francs-aleux are the only landholders who enjoy a complete right of property.
The franc-aleu was valued higher than any other kind of tenure. The customs of Auvergne and Burgundy valued it 21/2 per cent. The author thinks that 31/3 per cent. would be a better valuation.
It must be noticed that common francs-aleux, existing within the limits of a seigniorial jurisdiction, were dependent thereon. It was not a sign of subjection to the seignior, but an acknowledgment of the jurisdiction of courts which took the place of the royal tribunals.
2d. Lands held by feudal tenure (à fief).
3d. Lands paying cens, or, as they are here called in law, rotures.
The valuation of lands held by feudal tenure was the lower in proportion to the feudal burdens laid upon them. In some customs, and in that part of the country which was governed by written law, feuds paid nothing but “la bouche et les mains,” that is to say, feudal homage. In other customs, such as Burgundy, feuds not only owed homage, but were what was called de danger; that is to say, they were liable to commise, or feudal confiscation, when the owner took possession of them without having rendered “fealty and homage.” Other customs, such as that of Paris, for instance, and many more, declared feuds subject not only to fealty and homage, but likewise to re-emption, quint and requint. Others again, such as that of Poitou and some others, burdened them with a fine on the oath of fealty (chambellage), and service on horseback, etc.
The first class of feuds must be valued higher than the others. The custom of Paris set them down at five per cent., which the author thinks very reasonable.
To arrive at a valuation of lands held en roture and those subject to cens, they must be divided into three classes:
The first two classes of lands en roture were common enough in the eighteenth century. The third was rare. The first, says the author, must be valued higher than the second, the second than the third. Indeed, landholders of the third class can hardly be called owners, in the strict sense of the word, as they can not alienate their property without leave from the seignior.
Terriers.—The feudal lawyers I have quoted furnish the following rules for drawing up or renewing the seigniorial registers called terriers, which I have mentioned in the text. The terrier, as is known, was a great register, in which all the deeds establishing rights belonging to the seigniory, whether beneficial or honorary, real, personal, or mixed, were entered at length. It contained all the declarations of the copyholders, the customs of the seigniory, quit-rent leases, etc. In the custom of Paris, the authors say that seigniors may renew their terriers every thirty years at the expense of the copyholders. They add, however, that “one is fortunate to find a fresh one every century.” The terrier could not be renewed (it was a troublesome formality for all those who held under the seignior) without obtaining an authorization which was called lettres à terrier. When the seigniory was within the jurisdiction of several Parliaments, this was obtained from the high chancellor; in other cases it was procured from the Parliament. The court named the notary, before whom all vassals, noblemen and commoners, copyholders, emphyteutic lessees, and persons amenable to the seigniorial jurisdiction, were bound to appear. A plan of the seigniory was required to be attached to the terrier.
Besides the terriers, there were kept in each seigniory other registers called lièves, in which the seigniors or their stewards entered the sums they had received from their copyholders, with their names, and the dates of the payments.