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CHAP. XXXIII.: Some Consequences of the perpetuity of Fiefs. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 2 The Spirit of Laws [1748]

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The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 2.

Part of: Complete Works of Montesquieu, 4 vols.

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CHAP. XXXIII.

Some Consequences of the perpetuity of Fiefs.

FROM the perpetuity of fiefs, it followed, that the right of seniority or primogeniture was established among the French. This right was quite unknown under the first race* ; the crown was divided among the brothers, the allodia were shared in the same manner; and as the fiefs, whether precarious or for life, were not an object of succession, there could be no partition in regard to those tenures.

Under the second race, the title of emperor which Lewis the Debonnaire enjoyed, and with which he honoured his eldest son Lotharius, made him think of giving this prince a kind of superiority over his younger brothers. The two kings† were obliged to wait upon the emperor every year, to carry him presents, and to receive much greater from him; they were also to consult with him upon common affairs. This is what inspired Lotharius with those pretences which met with such bad success. When Agobard‡ wrote in favour of this prince, he alledged the emperor’s own regulation, who had associated Lotharius to the empire, after he had consulted the Almighty by a three days fast, and by the celebration of the holy mysteries; after the nation had sworn aliegiance to him, which they could not refuse without perjuring themselves; and after he had sent Lotharius to Rome to be confirmed by the pope. Upon all this he lays a stress, and not upon his right of primogenitute. He says, indeed, that the emperor had designed a partition among the younger brothers, and that he had given the preference to the elder; but saying he had preferred the elder, was saying at the same time that he might have given the preference to his younger brothers.

But as soon as the fiefs became hereditary, the right of seniority was established in the feudal succession: and for the same reason in that of the crown, which was the great fief. The ancient law of partitions was no longer subsisting; the fiefs being charged with a service, the possessor must have been enabled to discharge it. The right of primogeniture was established, and the reason of the feudal law was superior to that of the political or civil institution.

As the fiefs descended to the children of the possessor, the lords lost the liberty of disposing of them; and, in order to indemnify themselves, they established what they called the right of redemption, whereof mention is made in our customs, which at first was paid in a direct line; and by usage came afterwards to be paid only in a collateral line.

The fiefs were soon rendered transferable to strangers, as a patrimonial estate. This gave rise to the right of fines of alienation, which were established almost throughout the kingdom. These rights were arbitrary in the beginning; but when the practice of granting such permissions was become general, they were fixed in every district.

The right of redemption was to be paid at every change of heir, and at first was paid even in a direct line∥ . The most general custom had fixed it to one year’s income. This was burthensome and inconvenient to the vassal, and affected in some measure the fief itself. It was often agreed§ in the act of homage, that the lord should no longer demand more than a certain sum of money for the redemption, which, by the changes incident to money, became afterwards of no manner of importance. Thus the right of redemption is in our days reduced almost to nothing, while that of the fines of alienation is continued in its full extent. As this right concerned neither the vassal nor his heirs, but was a fortuitous case which no one was obliged to foresee or expect; these stipulations were not made, and they continued to pay a certain part of the price.

When the fiefs were for life, they could not give a part of a fief to hold in perpetuity as a rear-fief; for it would have been absurd that a person who had only the usufruit of a thing, should dispose of the property of it. But when they became perpetual, this was* permitted, with some restrictions made by the customs† , which was what they call dismembering their fief.

The perpetuity of feudal tenures having established the right of redemption, the daughters were rendered capable of succceding to a fief, in default of male issue. For when the lord gave the fief to his daughter, he multiplied the cases of his right of redemption, because the husband was obliged to pay it as well as the wife‡ . This regulation could not take place in regard to the crown; for as it was not held of any one there could be no right of redemption over it.

The daughter of William V. count of Tholouse, did not succeed to the county. But Eleanor succeeded to Aquitaine, and Mathildis to Normandy; and the right of the succession of females seemed so well established in those days, that Lewis the Young, after his divorce from Eleanor, made no difficulty in restoring Guyenne to her. But as these two last instances followed close to the first, the general law by which the women were called to the succession of fiefs, must have been introduced much later† into the county of Toulouse, than into the other provinces of France.

The constitutions of several kingdoms of Europe have been directed by the state of feudal tenures at the time when those kingdoms were founded. The women succeeded neither to the crown of France nor to the empire, because at the establishment of those two monarchies, they are incapable of succeeding to fiefs. But they succeeded in kingdoms, whose establishment was posterior to that of the perpetuity of the fiefs, such as those founded by the Normans, those by the conquests made on the Moors; and others, in fine, which beyond the limits of Germany, and in latter times received in some measure, a second birth, by the establishment of Christianity.

When these fiefs were at will, they were given to such as were capable of doing service for them, and therefore were never bestowed on minors; but‡ when they became perpetual, the lords took the fiefs into their own hands, till the pupil came of age, either to increase their own emoluments, or to train the pupil to the use of arms. This is what our customs call the guardianship of a nobleman’s children, which is founded on principles different fom those of tutelage, and is intirely a distinct thing from it.

When the fiefs were for life, it was customary to vow fealty for a fief; and the real delivery, which was made by a scepter, secured the fief, as it is now secured by homage. We do not find that the counts, or even the king’s commissaries, received, the homage in the provinces; nor is this ceremony to be met with in the commissions of those officers, which have been handed down to us in the capitularies. They sometimes, indeed, made all the king’s subjects take an oath of allegiance∥ ; but so far was this oath from being of the same nature as the service afterwards established by the name of homage, that it was only a§ ceremony, or less solemnity, occasionally used, either before or after that act of obeisance; in short, it was quite a distinct thing from homage.

The counts and the king’s commissaries made those vassals* whose fidelity was suspected, give occasionally a security which was called firmitas; but this could not be an homage, since the king’s† gave it to one another.

And though the abbot Suger† makes mention of a chair of Dagobert, in which according to the testimony of antiquity, the kings of France were accustomed to receive the homage of the nobility; it is plain that he expresses himself agreeably to the ideas and language of his own time.

When the fiefs descended to the heirs, the acknowledgment of the vassal, which at first was only an occasional service, became a regular duty. It was performed in a more solemn manner, and attended with more formalities, because it was to be a perperual monument of the reciprocal duties of the lord and vassal.

I should be apt to think, that homages began to be established under king Pepin, which is the time I mentioned that several benefices were given in perpetuity; but I should not think thus without caution, and only upon a supposition that the authors of the ancient annals‡ of the Franks were not ignorant pretenders, who in describing the fealty professed by Tassillo, duke of Bavaria, to king Pepin spoke∥ according to the usages of their own time.

[* ]See the Salic law, and the law of the Ripuarians, in the title of allodia.

[† ]See the capitulary of the year 817, which contains the first partition made by Lewis the Debonnaire, among his children.

[‡ ]See his two letters upon this subject, the title of one of which is, de divisione imperii.

[∥ ]See the ordinance of Philip Augustus, in the year 1209, on the fiefs.

[§ ]We find several of these conventions in the charter, as in the register-book of Vendome, and that of the abbey of S. Cyprian in Poitou, of which Mr. Galland has given some extracts, page 55.

[* ]But they could not abridge the fiefs, that is, abolish a portion of it.

[† ]They fixed the portion which they could dismember.

[‡ ]This was the reason that the lords obliged the widow to marry again.

[† ]Most of the great families had their particular laws of succession. See what M. de la Thaumassiere says, concerning the families of Berry.

[‡ ]We see in the capitulary of the year 877, apud Carsiacum, art. 3. Baluzius’s edition. tom. 2. page. 269. the moment in which the kings caused the fiefs to be administred in order to preserve them for the minors; an example followed by the lords, and which gave rise to what we have mentioned by the name of the guardianship of a nobleman’s children.

[∥ ]We find the formula thereof in the second capitulary of the year 802. See also that of the year 854, art. 13. and others.

[§ ]M. Du Change, in the word bominium, page 1163. and in the word fidelitas, page 474, cites the charters of the ancient homages where these differences are found, and a great number of authorities which may be seen. In paying homage, the vassal put his hand on that of his lord, and took his oath; the oath of fealty was made by swearing on the gospels. The homage was performed kneeling, the oath of fealty standing. None but the lord could receive homage, but his officers might take the oath of fealty. See Littleton, sect. 91, 92. of homage, that is, fidelity and homage.

[* ]Capitularies of Charles the Bald, in the year 860, post redditum a Confluentibus, art. 3. Balusius’s edition, page 145.

[† ]Ibid. art. 3.

[† ]Lib. de administratione sua.

[‡ ]Anno 757. chap. 17.

[∥ ]Tassillo venit in vasatico se commendans, per manus sacramenta juravit multa et in numerabilia, reliquiis sanctorum manus imponens et fidelitatem promisit regi Pippinio. One would think that here was an homage and an oath of fealty. See the Capihilaries of Charles the Bald. Balus. edit.