Marciagewas the name of peculiar dues levied upon the possessors of land, subject to thecens, in very few places, and consisting in certain payments due only upon the natural death of the lord of the manor.
Dîmes Inféodées.—There still existed in the eighteenth century a great number of tithes in fief. They were generally established by separate contract, and did not result from the mere fact of the lordship of the manor.
Parcière.—Theparcièreswere dues levied upon the crops of fruit gathered on the manor-lands. They bore resemblance to thechampartand thedîme inféodée, and were principally in usage in the Bourbonnais and Auvergne countries.
Carpot.—This was observed in the Bourbonnais country, and was a due levied upon the vineyards, as thechampartwas upon arable lands, that is to say, it was levied upon a portion of the crops. It amounted to a quarter of the vintage.
Servage.—The customs that still possessed traces of serfdom were calledcoutumes serves; they werevery few in number. In the provinces where they were still observed there were no estates, or at least very few, where some traces of ancient serfdom were not visible. [This remark is derived from a work written in 1765.] TheServage(or, as the author terms it, theServitude) was either personal or real.
The personal servitude was attached to the person, and followed him everywhere. Wherever the serf might go, to whatever place he might transport his substance, he might be reclaimed by the lord by right ofsuite. Our authors cite several legal verdicts that establish this right—among others, a verdict given on the 17th June, 1760, in which the court decides against aSeigneurof the Nivernais in respect to his right of claiming the succession of Pierre Truchet, who was the son of a serf subject topoursuite, according to the custom of the Nivernais, who had married a Parisian woman, and who had died in Paris, as well as his son. But this verdict seems to have been founded on the fact that Paris was a ‘place of refuge’ (lieu d’asile) in which thesuitecould not take place. If the right ofasilealone prevented theSeigneurfrom seizing upon property possessed by his serfs in thelieu d’asile, it formed no opposition against his claiming to succeed to property left in his own manor.
The ‘real’ servitude resulted from the occupation of land, and might cease upon the land being given up or residence in a certain place changed.
Corvées.—The right possessed by the lord of the manor over his subjects, by means of which he could employ for his own profit a certain number of their days of labour, or of their oxen and horses. Thecorvée à volonté, that is to say, at the arbitrary will of theSeigneur, had been completely abolished: forced labour had been for some time past confined to a certain number of days a year.
Thecorvéemight be either personal or real. The personalcorvéeswere paid by labourers and workmen, whose residence was established upon the manor, each according to his occupation. The realcorvéeswere attached to the possession of certain lands. Nobles, ecclesiastics, clerical personages, officers of justice, advocates, physicians, notaries, and bankers, and men in that position of life, were exempt from thecorvée. A verdict, given on the 13th August, 1735, is cited by one of our authors, exempting a notary whom hisSeigneurwanted to force to come for nothing, during three days, and draw up certain law papers concerning theseigneurieon which the notary resided. Another verdict, of the date of 1750, decides that, when thecorvéeis personal, it may be paid either in person or by money, the choice to be left to the person by whom it is due. Everycorvéehad to be established by written title-deeds. Thecorvée seigneurialehad become extremely rare in the eighteenth century.
Banalités.(Rights possessed by the lords of certain manors to oblige those residing on them to make use of his baking-office, mill, &c., upon payment.)—The provinces of Flanders, Artois, and Hainault were alone exempt frombanalités. The Custom of Paris rigorously requires that this should not be exercised without written title. Every person domiciled within the circuit of thebanalitéwas subject to it, and, most generally, even the nobles and priests also.
Besides thebanalitéof the wine-press and baking-office there existed several others:—
(1.)Banalitésof industrial establishments, such as for cloth, tanning, or hemp. Thisbanalitéis established by manycoutumes, as for instance, by those of Anjou, the Maine, and Brittany.
(2.)Banalitésof the wine-press. Fewcoutumesmention this. But that of Lorraine, as well as that of the Maine, establish it.
(3.)Banalitéof the manor bull. Nocoutumesmention this; but there were title-deeds that established the right. The same may be said of the right ofbanalitéfor butchers’ shambles.
In general these latterbanalitésof which we have just spoken were more uncommon, and looked upon with a still less favourable eye than the others. They could only be exercisedby the clearest declaration of thecoutumes, or, where that was wanting, by the most precise title.
Ban des Vendanges.—This was still practised throughout the whole of the kingdom in the eighteenth century. It was a simple right of police attached to the right ofhaute justice. In order to exercise it, theSeigneur, who wasHaut Justicier, did not need to possess any other title. Theban des vendangeswas obligatory upon everybody. Thecoutumesof Burgundy give theSeigneurthe right of gathering in his vintage a day before any other vine proprietor.
Droit de Banvin.—This was a right still possessed by a quantity ofSeigneurs(as our authors have it), either by custom or special title, to sell the wine grown upon their manors for a certain period of time, in general a month or forty days, before any one else. Among thegrandes coutumesthose of Tours, Anjou, the Maine, and La Marche alone established it, and had regulations for it. A verdict of theCour des Aides, dated 28th August, 1751, authorises publicans (as an exception to the common rule) to sell wine during thebanvin; but this must have referred only to the wine of theSeigneur, made from that year’s growth. Thecoutumesthat establish and regulate the right ofbanvingenerally require that it should be founded upon legal title.
Droit de Blairiewas a right belonging to theSeigneur, who wasHaut Justicier, to grant permission to the inhabitants to have their cattle graze upon lands situated throughout his jurisdiction, or upon waste lands. This right did not exist in any parts regulated bydroit écrit; but it was common enough in those where thedroit coutumierwas in force. It was to be found under different denominations, more particularly in the Bourbonnais, the Nivernais, Auvergne, and Burgundy. This right rested upon the supposition that the whole territory originally belonged to theSeigneur, in such wise that, after the distribution of the greater part intofiefs,cencites, and other concessions of lands upon quit-rents, there still remained portions which could only be used for waste pasture-ground, and of which he might grant the temporary use to others. Theblairiewas established in severalcoutumes; but it could only be claimed by aSeigneurwho wasHaut Justicier, and was maintained only by some special title, or at least by old claims supported by long possession.
Péages.—According to our authors, there originally existed a prodigious number of manorial tolls upon bridges, rivers, and roads. Louis XIV. did away with a great number of them. In 1724 a commission, nominated to examine into the titles by which the tolls were claimed, suppressed twelve hundred of them; and, in 1765, they were still being constantly suppressed. ‘The principle observed in this respect,’ says Renauldon, ‘was that, inasmuch as the toll was a tax, it was necessary to be founded not only upon legal title, but upon one emanating from the sovereign.’ The toll was levied ‘De par le Roi.’ One of the conditions of the toll was that it should be established bytarifregulating the dues, which each kind of merchandise had to pay. It was necessary that thistarifshould be approved by a decree of the Council. ‘The title of concession,’ says one author, ‘had to be followed by uninterrupted possession.’ In spite of these precautions legally taken, it appears that the value of the tolls had greatly increased in later times. ‘I know one toll,’ says the same author, ‘that was farmed out, a century ago, at 100 livres, and now brings in 1400; and another, farmed at 39,000 livres, that brings in 90,000.’ The principal ordinances or principal decrees that regulated the right of toll, were paragraph 29 of the Ordinance of 1669, and the Decrees of 1683, 1693, 1724, 1775.
The authors I have quoted, although in general favourable enough to feudal rights, acknowledge that great abuses were committed in the levying of the tolls.
Bacs.—The right of ferries differed materially from the right of toll. The latter was only levied upon merchandise; the former upon individuals, animals, and carriages. Itwas necessary that this right, in order to be exercised, should likewise be authorised by the King; and the dues, to be levied, had to be fixed by the same decree of Council that established and authorised it.
Droit de Leyde(to which many other names have been given in different places) was a tax levied upon merchandise brought to fairs and markets. Many lords of the manor (as appears by ourfeudistes) considered this right as one attached to the right ofhaute justice, and wholly manorial, but quite mistakenly, inasmuch as it could only be authorised by the King. At all events, this right only belonged to theSeigneur, who wasHaut Justicier: he levied the police fines, to which the exercise of the right gave occasion. It appears, however, that, although by theory thedroit de leydecould only emanate from the King, it was frequently set up solely upon the basis of feudal title or long possession.
It is very certain that fairs could not be established otherwise than by Royal authorisation.
The lords of the manor, however, had no need of any precise title, or any concession on the part of the King, for the exercise of the right of regulating the weights and measures to be used by their vassals in all fairs and markets held upon the manor. It was enough for the right to be founded upon custom and constant possession. Our authors say that all the Kings, who, one after the other, were desirous of re-establishing uniformity in the weights and measures, failed in the attempt. Matters had been allowed to remain at the same point where they were when the oldcoutumeswere drawn up.
Chemins.(Rights exercised by the lords of the manor upon roads.)—The high roads, called ‘Chemins du Roi’ (King’s highway), belonged, in fact, to the sovereigns alone; their formation, their reparation, and the offences committed upon them, were beyond the cognisance of theSeigneursor their judges. The by-roads, to be met with on any portion of aSeigneurie, doubtless belonged to suchSeigneursas wereHauts Justiciers. They had all the rights ofvoirieand police upon them, and their judges took cognisance of all the offences committed upon them, except in Royal cases. At an earlier period theSeigneurshad been obliged to keep up the high roads passing through theirseigneurie, and, as a compensation for the expenses incurred in these repairs, they were allowed the dues arising from tolls, settlement of boundaries, and barriers; but, at this epoch, the King had resumed the general direction of the high roads.
Eaux.—All the rivers, both navigable and floatable (admitting the passage of rafts), belonged to the King, although they flowed through the property of lords of the manor, and in spite of any title to the contrary. (See Ordinance of 1669.) If the lords of the manor levied any dues upon these rivers, it was those arising from the rights of fishing, the mills, ferry-boats, and bridge-tolls, &c., in virtue of concessions emanating only from the King. There were some lords of the manor who still arrogated to themselves the rights of jurisdiction and police upon these rivers; but this manifestly only arose from usurpation, or from concessions improperly acquired.
The smaller rivers unquestionably belonged to theSeigneursthrough whose property they flowed. They possessed in them the same rights of property, of jurisdiction, and police, which the King possessed upon the navigable rivers. AllSeigneurs Hauts Justicierswere universally the lords of the non-navigable rivers running through their territory. They wanted no other legal title for the exercise of their claims than that which conferred the right ofhaute justice. There were some customs, such as theCoutume du Berri, that authorised private individuals to erect a mill upon the seignorial river passing through the lands they occupied, without the permission of theSeigneur. TheCoutume de Bretagneonly granted this right to private personages who were noble. As a matter of general right, it is very certain that theSeigneur Haut Justicierhad alone the right of erecting mills throughout every part of his jurisdiction. No one was entitled toerect barriers for the protection of his property without the permission of the judges of theSeigneur.
Fontaines.—Puits.—Routoirs.—Étangs.—The rain-water that fell upon the high roads belonged exclusively to theSeigneurs Hauts Justiciers; they alone were enabled to dispose of it. TheSeigneur Haut Justicierpossessed the right of constructing ponds in any part throughout his jurisdiction, and even upon lands in the possession of those who resided under it, upon the condition of paying them the price of the ground put under water. Private individuals were only able to make ponds upon their own soil; and, even for this, manycoutumesrequire that permission should be obtained of theSeigneur. Thecoutumes, however, thus requiring the acquiescence of theSeigneur, establish that it is to be given gratuitously.
La Pêche.—The right of fishing on navigable or floatable rivers belonged only to the King, and he alone could make grants of this right. The Royal Judges alone had the right of judging offences against the right of fishery. There were manySeigneurs, however, who exercised the right of fishing in these streams; but they either possessed by concession made by the King, or had usurped it. No person could fish, even with the rod, in non-navigable rivers without permission from theSeigneur Haut Justicierwithin whose limits they flowed. A judgment (dated April 30th, 1749) condemns a fisherman in a similar case. Even theSeigneursthemselves, however, were obliged, in fishing, to observe the general regulations respecting fisheries. TheSeigneur Haut Justicierwas enabled to give the right of fishing in his river to tenants in fief, orà cens.
La Chasse.—The right of the chase was not allowed to be farmed out like that of fishing. It was a personal right, arising from the consideration that it belonged to the King, and that the nobles themselves could not exercise it, in the interior of their own jurisdiction, without the permission of the King. This doctrine was established in an Ordinance of 1669 (par. 30). The judges of theSeigneurhad the power of taking cognisance of all offences against the rights of the chase, except in cases appertaining tobêtes rousses(signifying, it would appear, what were generally called ‘grosses bêtes’—stags, does, &c.), which were considered Royal.
The right of shooting and hunting was more interdicted to the non-noble than any other. The fee fief of the non-noble did not even bestow it. The King never granted it in his own hunt. So closely observed was this principle, and so rigorous was the right considered, that theSeigneurwas not allowed to give any permission to hunt. But still it did constantly occur thatSeigneursgranted such permissions not only to nobles but to non-nobles. TheSeigneur Haut Justicierpossessed the faculty of hunting and shooting on any part of his own jurisdiction, but alone. He was allowed to make regulations and establish prohibitions upon matters appertaining to the chase throughout its extent. EverySeigneur de Fief, although not having the feudal power of judicial courts, was allowed to hunt and shoot in any part of his fief. Nobles who possessed neither fief nor jurisdiction were allowed to do so upon the lands belonging to them in the immediate neighbourhood of their dwelling-houses. It was decided that the non-noble possessing a park upon the territory of aSeigneur Haut Justicierwas obliged to leave it open for the diversion of the lord. But this judgment was given as long ago as 1668.
Garennes.—Rabbit-warrens could not be established without title-right. Non-nobles, as well as nobles, were allowed to have rabbit-warrens; but the nobles alone were allowed to keep ferrets.
Colombiers.—Certaincoutumesonly give the right ofcolombiers à pied(dovecots standing apart from a building) to theSeigneurs Hauts Justiciers; others grant it to all holders of fiefs. In Dauphiny, Brittany, and Normandy, no non-noble was allowed to possess dovecot, pigeon-house, or aviary; the nobles alone were allowed to keep pigeons. The penalties pronounced against those who killed the pigeons were extremely severe: the most afflictivepunishments were sometimes bestowed.
Such, according to the authors above cited, were the principal feudal rights still exercised and dues still levied in the second half of the eighteenth century. ‘The rights here mentioned,’ they add, ‘are those generally established at the present time. But there are still very many others, less known and less widely practised, which only occur in certaincoutumes, or only in certainseigneuries, in virtue of peculiar titles.’ These rarer and more restricted feudal rights, of which our authors thus make mention, and which they enumerate, amount to the number of ninety-nine; and the greater part of them are directly prejudicial to agriculture, inasmuch as they give theSeigneurscertain rights over the harvests, or tolls upon the sale or transport of grain, fruit, provisions, &c. Our authors say that most of these feudal rights were out of use in their day; I have reason to believe, however, that a great number of these dues were still levied, in some places, in 1789.
After having studied, among the writers on feudal rights in the eighteenth century, the principal feudal rights still exercised, I was desirous of finding out what was their importance in the eyes of their contemporaries, at least as regarded the fortunes of those who levied them and those who had to pay them.
Renauldon, one of the authors I have mentioned, gives us an insight into this matter, by laying before us the rules that legal men had to follow in their valuation of the different feudal rights which still existed in 1765, that is to say, twenty-four years before the Revolution. According to this law writer, the rules to be observed on these matters were as follow:—
Droits de Justice.—‘Some of ourcoutumes,’ he says, ‘estimate the value ofjustice haute,basse, ormoyenneat a tenth of the revenues of the land. At that time the seignorial jurisdiction was considered of great importance. Edmé de Fréminville opines that, at the present day, the right of jurisdiction ought not to be valued at more than a twentieth of the revenues of the land; and I consider this valuation still too large.’
Droits Honorifiques.—‘However inestimable these rights may be considered,’ declares our author, a man of a practical turn of mind, and not easily led away by appearances, ‘it would be prudent on the part of those who make valuations to fix them at a very moderate price.’
Corvées Seigneuriales.—Our author, in giving the rules for the estimation of the value of forced labour, proves that the right of enforcing it was still to be met with sometimes. He values the day’s work of an ox at 20 sous, and that of the labourer at 5 sous, with his food. A tolerably good indication of the price of wages paid in 1765 may be gathered from this.
Péages.—Respecting the valuation of the tolls our author says, ‘There is not one of the Seignorial rights that ought to be estimated lower than the tolls. They are very precarious. The repairs of the roads and bridges—the most useful to the commerce of the country—being now maintained by the King and the provinces, many of the tolls become useless nowadays, and they are suppressed more and more every day.
Droit de Pêche et de Chasse.—The right of fishing may be farmed out, and may thus give occasion for valuation. The right of the chase is purely personal, and cannot be farmed out; it may consequently be reckoned among the honorary rights but not among the profitable rights, and cannot, therefore, be comprehended in any valuation.
Our author then mentions more particularly the rights ofbanalité,banvin,leyde, andblairie, and thus proves that these rights were those most frequently exercised at that time, and that they maintained the greatest importance. He adds, ‘There is a quantity of other seignorial rights, which may still be met with from time to time, but which it would be too long and indeed impossible to make mention of here. But intelligent appraisers will find sufficient rules, in the examples we have already given, for the estimation of those rights of which we do not speak.’
Estimation du Cens.—The greater number of thecoutumesplace the estimation of thecens,au denier30 (3-1/3 per cent.). The high valuation of thecensarises from the fact that it represents at the same time all such remunerative casualties as thelods et ventes, for instance.
Dîmes inféodées.—Terrage.—The tithes in fief cannot be estimated at less than 4 per cent.; this sort of property calling neither for care, culture, nor expense. When theterrageorchampartincludeslods et ventes, that is to say, when the land subject to these dues cannot be sold without paying for the right of exchange to theSeigneur, who has the right of tenurein capite, the valuation must be raised to 3-1/3 per cent.; if not it must be estimated like the tithes.
Les Rentes foncières, which produced nolods et ventesordroit de retenu(that is to say, which are not seignorial revenue), ought to be estimated at 5 per cent.
ESTIMATE OF THE DIFFERENT HEREDITARY ESTATES EXISTING IN FRANCE BEFORE THE REVOLUTION.
We recognise in France, says this writer, only three kinds of estates:—
(1.) TheFranc Alleu.—This was a freehold estate, exempt from every kind of burden, and subject neither to seignorial duties nor dues, either profitable or honorary.
There were both noble and non-noblefrancs alleux. The noblefranc alleuhad its right of jurisdiction or fiefs dependent on it, or lands paying quit-rents: it followed all the observances of feudal law in subdivision. The non-noblefranc alleuhad neither jurisdiction, nor fief, norcensive, and was heritable according to the laws affecting non-nobles. The author looks upon the holders offrancs alleuxas alone possessing complete property in the land.
Valuation of Estates in Franc Alleu.—They were valued the highest of all. Thecoutumesof Auvergne and Burgundy put the valuation of them as high as 40 years’ purchase. Our author opines that their valuation at 30 years’ purchase would be exact. It must be observed that all non-noblefrancs alleuxplaced within the limits of a seignorial jurisdiction were subject to this jurisdiction. They were not in any dependence of vassalage to theSeigneur, but owed submission to a jurisdiction which had the position of that of the Courts of the State.
(2.) The second kind was that of estates held in fief.
(3.) The third was that of estates held on quit-rents, or, in the law language of the time,Rotures.
Valuation of an Estate held in Fief.—The valuation was less, according as the feudal burdens on it were greater.
(1.) In the parts of the country where written law was observed, and in many of thecoutumes, the fiefs lay only under the obligation of what was called ‘la bouche et les mains,’ that is to say, that of doing homage.
(2.) In othercoutumesthe fiefs, besides the obligation of ‘la bouche et les mains,’ were what was called ‘de danger,’ as in Burgundy, and were subject to thecommise, or feudal resumption, in case the holder of the property should take possession without having rendered submission or homage.
(3.) Othercoutumes, again, as in that of Paris and many others, subject thefiefsnot only to the obligation of doing homage, but to therachat, thequint, and therequint.
(4.) By othercoutumes, also, such as that of Poitou and a few others, they were subjected tochambellagedues, thecheval de service, &c.
Of these four all estates of the first category were valued more highly than the others.
Thecoutumeof Paris laid their valuation at 20 years’ purchase,which is looked upon by our author as tolerably correct.
Valuation of Estates ‘en roture’ and ‘en censive.’—In order to come to a proper valuation, these lands have to be divided into three classes:—
(1.) Estates held simply on quit-rents.
(2.) Those which, beside the quit-rent, are subject to other kinds of feudal servitude.
(3.) Those held in mortmain,à taille réelle, en bordelage.
Only the first and second of these three forms of non-noble property were common in the eighteenth century; the third was extremely rare. The valuations to be made of them, according to our author, were less on coming down to the second class, and still less on coming down to the third. Men in possession of estates of the third class were not even, strictly speaking, their owners, inasmuch as they were not able to alienate them without permission from theSeigneur.
Le Terrier.—Thefeudistes, whom we have cited above, point out the following rules observed in the compilation or renewal of the seignorial registers, called ‘Terriers,’ mention of which has been made in many parts of the work. TheTerrierwas a single register, in which were recorded all the titles proving the rights appertaining to theseigneurie, whether in property or in honorary, real, personal, or mixed rights. All the declarations of the payers of thecens, the usages of theseigneurie, the leasesà cens, &c., were inserted in it. We learn by our authors that, in thecoutumeof Paris, theSeigneurswere permitted to renew their registers every thirty years at the expense of theircensitaires: they add, however, ‘It may be considered a very fortunate circumstance, nevertheless, when a new one may be found once a century.’ TheTerriercould not be renewed (it was a vexatious business for all the persons dependent on theseigneurie) without obtaining, either from theGrande Chancellerie(if in cases ofseigneuriessituated within the jurisdiction of different Parliaments), or of the Parliaments (in the contrary case), an authorisation which was denominated ‘Lettres à Terrier.’ The notary who drew them up was nominated by the judicial authorities. All the vassals, noble or non-noble, the payers of thecens, holders of long leases (emphytéotes), and personages subject to the jurisdiction of theseigneuriewere bound to appear before this notary. A plan of theseigneuriehad to be annexed to theTerrier.
Besides theTerrier, theseigneuriewas provided with other registers, called ‘lièves,’ in which theSeigneursor their farmers inscribed the sums received in payment of thecens, with the names of those who paid and the dates of the receipts.
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