Front Page Titles (by Subject) FEUDAL RIGHTS EXISTING AT THE TIME OF THE REVOLUTION, ACCORDING TO THE FEUDAL LAWYERS OF THE DAY. - The Old Regime and the Revolution
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FEUDAL RIGHTS EXISTING AT THE TIME OF THE REVOLUTION, ACCORDING TO THE FEUDAL LAWYERS OF THE DAY. - Alexis de Tocqueville, The Old Regime and the Revolution 
The Old Regime and the Revolution, trans John Bonner (New York: Harper & Brothers, 1856).
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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.