Chapter VII (4)

These blemishes were very great; and if the enormous old machine of the English judicial system be compared with the modern construction of that of France, and the simplicity, consistence, and natural connexity to be observed in the latter, with the remarkable complication and incoherence of the former, the errors of the English jurisprudence will appear greater still. Yet there is not a country in the world in which, in the days of Blackstone, the great ends of justice are more completely attained than in England; that is to say, no country in which every man, whatever his condition of life--whether he appeared in court as a common individual or a Prince--was more sure of being heard, or found in the tribunals of his country better guarantees for the defence of his property, his liberty, and his life.

It is not meant by this that the defects of the English judicial system were of any service to what I have here called the great ends of justice: it proves only that in every judicial organisation there are secondary defects that are only partially injurious to these ends of justice; and other principal ones, that not only prove injurious to them, but destroy them altogether, although joined to many secondary perfections. The first mentioned are the most easily perceived; they are the defects that generally first strike common minds: they stare one in the face, as the saying goes. The others are often more concealed; and it is not always the men the most learned in the law, and other men in the profession, who discover them and point them out.

It must be observed, moreover, that the same qualities may be either secondary or principal, according to the period of history or the political organisation of a country. In periods of aristocratic predominance and inequality everything that tends to lessen any privilege of any individual before the face of justice, to afford guarantees to the weak against the strong, and to give a predominance to the action of the state--which is naturally impartial in differences only occurring between subjects--becomes a principal quality; whereas it diminishes in importance in proportion to the inclination of the social state and political constitution towards democracy.

In studying the English judicial system upon these principles it will be found that, although it permitted the existence of every defect that could contribute to render justice in that country obscure, hampered, slow, expensive, and inconvenient, it had taken infinite precautions to prevent the strong from ever being favoured at the expense of the weak, or the State at the expense of the private individual. The more the observer penetrates into the details of the English legislation the more he will see that every citizen was provided with all sorts of weapons for his defence, and that matters were so arranged as to afford to every one the greatest number of guarantees possible against partiality, actual venality, and that sort of venality which is more common, and especially more dangerous in democratic times--the venality consisting of the servility of the courts towards the Government.

In this point of view the English judicial system, in spite of the numerous secondary errors that may still be found in it, appears to me superior to the French, which, although almost entirely untainted, it is true, by any one of these defects, does not at the same time offer in like degree the principal qualities that are to be found in it, which, although excellent in the guarantees it affords to every citizen in all disputes between individuals, fails precisely in that point that ought always to be strengthened in a democratic state of society like the French, namely, in the guarantees afforded to individuals against the State.

Note (LXVIII.)--Page 151, line 19.

ADVANTAGES ENJOYED BY THE GÉNÉRALITÉ OF PARIS.

This _Généralité_ was as much favoured in charities bestowed by the Government as it was in the levying of taxes. An example may be found in a letter of the _Contrôleur-Général_ to the _Intendant_ of the _Généralité_ of the Île-de-France (dated May 22nd, 1787), in which he informs the latter that the King had fixed the sum, which was to be employed upon works of charity during the year, in the _Généralité_ of Paris, at 172,800 livres; and 100,000 livres, moreover, were destined for the purchase of cows, to be given to different husbandmen. It may be seen by this letter that the sum of 172,000 livres was to be distributed by the _Intendant_ alone, with the proviso that he was to conform himself to the general rules already made known to him by the Government, and that he was to lay the account of the distribution before the _Contrôleur-Général_ for approval.

Note (LXIX.)--Page 152, line 27.

The administration of the old monarchy was made up of a multitude of different powers, which had been established at different times, but generally for the purposes of the Treasury, and not of the Administration, properly so called, and which frequently had the same field of action. It was thus impossible to avoid confusion and contention otherwise than by each party acting but little, or even doing nothing at all. As soon as they made any efforts to rise above this sort of languor, they hampered and entangled each other’s movements; and thus it happened that the complaints made against the complication of the administrative machinery, and the confusion as to its different attributions, were very much more grievous during the years that immediately preceded the Revolution than thirty or forty years before. The political institutions of the country had not become worse--on the contrary, they had been greatly ameliorated; but the general political movement had become much more active.

Note (LXX.)--Page 157, line 30.

ARBITRARY AUGMENTATION OF THE TAXES.

What was here said by the King respecting the _taille_ might have been said by him, with as much reason, concerning the _vingtièmes_, as may be seen by the following correspondence:--In 1772 the _Contrôleur-Général_ Terray had decided upon a considerable augmentation (as much as 100,000 livres) upon the _vingtièmes_ of the _Généralité_ of Tours. It is evident that this measure caused M. Ducluzel, an able administrator and an honourable man, both sorrow and embarrassment; for, in a confidential letter, he says: ‘It is probably the facility with which the 200,000 livres’ (a previous augmentation) ‘have been given, that has encouraged the cruel interpretation and the letter of the month of June.’

In a private and confidential letter, which the Director of Contributions wrote thereupon to the _Intendant_, he says: ‘If the augmentations which have been demanded appear to you, on account of the general distress, to be as aggravating and as revolting as you give me to understand, it would be better for the province, which can have no other defence or protection than in your generous good-feeling, that you should spare it, at least, the _rôles de supplément_, a retroactive tax, that is always odious.’

It may be seen by this correspondence what a complete absence there was of any solid basis, and what arbitrary measures were exercised, each with honest intentions. Both Minister and Intendant laid the weight of the increased taxation sometimes upon the agricultural rather than the manufacturing interests, sometimes upon one kind of agriculture more than another (as the growth of vines, for instance), according as they fancied that the manufacturing or any one branch of the agricultural interest ought to be more tenderly handled.

Note (LXXI.)--Page 159, line 13.

EXPRESSIONS USED BY TURGOT RESPECTING THE COUNTRY PEOPLE IN THE PREAMBLE OF A ROYAL DECLARATION.

‘The rural communities consist, throughout the greater part of the kingdom, of poor peasants, who are ignorant and brutal, and incapable of self-administration.’

Note (LXXII.)--Page 163, line 24.

HOW IT WAS THAT REVOLUTIONARY IDEAS NATURALLY SPRANG UP IN MEN’S MINDS, EVEN UNDER THE OLD MONARCHY.

In 1779 an _avocat_ addressed a petition to the Council for a decree to establish a maximum of the price of straw throughout the whole kingdom.

Note (LXXIII.)--Page 163, line 32.

The Head Engineer, in a letter written to the _Intendant_, in 1781, relative to a demand for an increase of indemnification, thus expresses himself: ‘The claimant does not pay heed to the fact that the indemnifications granted are an especial favour to the _Généralité_ of Tours, and that people ought to consider themselves very fortunate in recovering only a part of their loss. If such compensations as the claimant requires were to be given, four millions would not suffice.’

Note (LXXIV.)--Page 167, line 39.

The Revolution did not break out on account of this prosperity, but that active, uneasy, intelligent, innovating, ambitious spirit, that was destined to produce the Revolution--the democratic spirit of new states of society--began to stir up everything, and, before it overthrew for a period the social state of France, was already strong enough to agitate and develop it.

Note (LXXV.)--Page 169, line 13.

COLLISION OF THE DIFFERENT ADMINISTRATIVE POWERS IN 1787.

The following may be taken as an example:--The intermediate commission of the Provincial Assembly of the Île-de-France claimed the administration of the _Dépôt de Mendicité_. The _Intendant_ insisted upon its remaining in his own hands, ‘inasmuch,’ said he, ‘as this establishment is not kept up by the funds of the province.’ During the discussion, the intermediate commission communicated with the intermediate commissions of other provinces, in order to learn their opinions. Among other answers given to its questions, exists one from the intermediate commission of Champagne, informing that of the Île-de-France that it had met with the very same difficulties, and had offered the same resistance.

Note (LXXVI.)--Page 172, line 2.

In the minutes of the first Provincial Assembly of the Île-de-France, the following declaration may be found, proceeding from the mouth of the reporter of the committee:--‘Up to the present time the functions of syndic, which are far more onerous than honourable, are such as to indispose from accepting them all those who unite a sufficient competency to the intelligence to be expected from their position in life.’

Note (LXXVII.)--Page 173, line 9.

FEUDAL RIGHTS, WHICH STILL EXISTED AT THE PERIOD OF THE REVOLUTION, ACCORDING TO THE FEUDAL LAWYERS.

It is not the intention of the author here to write a treatise upon feudal rights, and, least of all, to attempt any research into their possible origin. It is simply his desire to point out those which were still exercised in the eighteenth century. These rights played so important a part at that time, and have since retained so large a space in the imagination of the very persons who have no longer anything to suffer from them, that it was a most interesting task to find out precisely what they were when the Revolution destroyed them all. For this purpose a great number of _terriers_, or rolls of feudal manors, were studied,--those of the most recent date being selected. But this manner of proceeding led to nothing; for the feudal rights, although regulated by a legal code, which was the same throughout the whole of feudal Europe, were infinitely various in their kinds, according to the province, or even the districts, where they existed. The only system, then, which appeared likely to lead, in an approximate manner, to the required result, was the following:--These feudal rights were continually giving rise to all sorts of disputes and litigation. In these cases it was necessary to know how these rights were acquired, how they were lost, in what they consisted exactly, which were the dues that could only be collected by virtue of a Royal patent, which those that could only be established by private title, which those on the contrary that had no need of formal titles, and might be collected upon the strength of local custom, or even in virtue of long usage. Again, when they were for sale, it was necessary to know in what manner they were to be valued, and what capital each of them represented, according to its importance. All these points, so immediately affecting a thousand pecuniary interests, were subject to litigation; and thus was constituted a distinct class of legal men, whose only occupation it was to elucidate them. Many of these men wrote during the second half of the eighteenth century; some even just upon the threshold of the Revolution. They were not lawyers, properly speaking, but practitioners, whose only task it was to point out to professional men the rules to be followed in this special and little attractive portion of legal science. By an attentive study of these _feudistes_, a tolerably minute and distinct idea of a subject, the size and confusion of which is at first bewildering, may be at last come at. The author gives below the most succinct summary he was able to make of his work. These notes are principally derived from the work of Edmé de Fréminville, who wrote about the year 1750, and from that of Renauldon, written in 1765, and entitled ‘_Traité historique et pratique des Droits Seigneuriaux_.’

The _cens_ (that is to say, the perpetual quit-rent, in kind and in money, which, by the feudal laws, was affixed to the possession of certain lands) still, in the eighteenth century, affected most deeply the position of a great number of landed proprietors. This _cens_ continued to be indivisible, that is to say, the entire _cens_ might be claimed of any one of the possessors of the property, subject to the _cens_ at will. It was always irredeemable. No proprietor of any lands, subject to the _cens_, could sell them without being exposed to the _retrait censuel_, that is to say, without being obliged to let the property be taken back at the price of the sale; but this only took place in certain _coutumes_. The _coutume_ of Paris, which was the most general, did not recognise this right.

_Lods et Ventes._--It was a general rule that, in every part of the country where the _coutume_ prevailed, the sale of every estate subject to the _cens_ should produce what were called _lods et ventes_; in other words, the fines paid to the lords of the manor, upon the alienation of this kind of property. These dues were more or less considerable, according to the customs of the manor, but were everywhere considerable enough; they existed just as well in parts where the _droit écrit_ (written law) was established. They generally consisted of one-sixth of the price, and were then named _lods_. But in these parts the lord of the manor had to establish his rights. In what was called _pays écrit_, as well as in _pays coutumier_, the _cens_ gave the lord of the manor a privilege which took precedence of all other debts on the estate.

_Terrage or Champart.--Agrier.--Tasque._--These dues consisted of a certain portion of the produce, which the lord of the manor levied upon lands subject to the _cens_. The amount varied according to the contracts or the customs of the place. This right is frequently to be met with in the eighteenth century. I believe that the _terrage_, even in _pays coutumier_, could only be claimed under express deed. The _terrage_ was either _seigneurial_ or _foncier_. It is not necessary to explain here the distinctions which existed between these two different kinds. Suffice it to say that the _terrage foncier_ was fixed for thirty years, like the _rentes foncières_, whilst the _terrage seigneurial_ was irredeemable. Lands subject to _terrage_ could not be mortgaged without the consent of the lord of the manor.

_Bordelage._--A right which only existed in the Nivernais and Bourbonnais countries, and which consisted in an annual quit-rent, paid in money, corn, and fowls, upon lands subject to the _cens_. This right entailed very rigorous consequences: non-payment of the dues during three years gave cause for the exercise of the _commise_ or entry to the advantage of the lord of the manor. A tenant owing the _bordelage_ was more open than any other to a variety of annoyances on his property. Sometimes the lord of the manor possessed the right of claiming his inheritance, even when he died having heirs who had legal rights to the succession. This was the most rigorous of any of the feudal rights; and the law had finally restricted it only to rural inheritances. ‘For,’ as our author says, ‘the peasant is always the mule ready to bear every burden.’

_Marciage_ was the name of peculiar dues levied upon the possessors of land, subject to the _cens_, 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._--The _parcières_ were dues levied upon the crops of fruit gathered on the manor-lands. They bore resemblance to the _champart_ and the _dîme 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 the _champart_ was 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 called _coutumes serves_; they were very 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.] The _Servage_ (or, as the author terms it, the _Servitude_) 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 of _suite_. 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 a _Seigneur_ of the Nivernais in respect to his right of claiming the succession of Pierre Truchet, who was the son of a serf subject to _poursuite_, 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 the _suite_ could not take place. If the right of _asile_ alone prevented the _Seigneur_ from seizing upon property possessed by his serfs in the _lieu 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. The _corvée à volonté_, that is to say, at the arbitrary will of the _Seigneur_, had been completely abolished: forced labour had been for some time past confined to a certain number of days a year.

The _corvée_ might be either personal or real. The personal _corvées_ were paid by labourers and workmen, whose residence was established upon the manor, each according to his occupation. The real _corvées_ were 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 the _corvée_. A verdict, given on the 13th August, 1735, is cited by one of our authors, exempting a notary whom his _Seigneur_ wanted to force to come for nothing, during three days, and draw up certain law papers concerning the _seigneurie_ on which the notary resided. Another verdict, of the date of 1750, decides that, when the _corvée_ is personal, it may be paid either in person or by money, the choice to be left to the person by whom it is due. Every _corvée_ had to be established by written title-deeds. The _corvée seigneuriale_ had 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 from _banalités_. The Custom of Paris rigorously requires that this should not be exercised without written title. Every person domiciled within the circuit of the _banalité_ was subject to it, and, most generally, even the nobles and priests also.

Besides the _banalité_ of the wine-press and baking-office there existed several others:--

(1.) _Banalités_ of industrial establishments, such as for cloth, tanning, or hemp. This _banalité_ is established by many _coutumes_, as for instance, by those of Anjou, the Maine, and Brittany.

(2.) _Banalités_ of the wine-press. Few _coutumes_ mention this. But that of Lorraine, as well as that of the Maine, establish it.

(3.) _Banalité_ of the manor bull. No _coutumes_ mention this; but there were title-deeds that established the right. The same may be said of the right of _banalité_ for butchers’ shambles.

In general these latter _banalités_ of which we have just spoken were more uncommon, and looked upon with a still less favourable eye than the others. They could only be exercised by the clearest declaration of the _coutumes_, 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 of _haute justice_. In order to exercise it, the _Seigneur_, who was _Haut Justicier_, did not need to possess any other title. The _ban des vendanges_ was obligatory upon everybody. The _coutumes_ of Burgundy give the _Seigneur_ the 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 of _Seigneurs_ (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 the _grandes coutumes_ those of Tours, Anjou, the Maine, and La Marche alone established it, and had regulations for it. A verdict of the _Cour des Aides_, dated 28th August, 1751, authorises publicans (as an exception to the common rule) to sell wine during the _banvin_; but this must have referred only to the wine of the _Seigneur_, made from that year’s growth. The _coutumes_ that establish and regulate the right of _banvin_ generally require that it should be founded upon legal title.

_Droit de Blairie_ was a right belonging to the _Seigneur_, who was _Haut 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 by _droit écrit_; but it was common enough in those where the _droit coutumier_ was 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 the _Seigneur_, in such wise that, after the distribution of the greater part into _fiefs_, _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. The _blairie_ was established in several _coutumes_; but it could only be claimed by a _Seigneur_ who was _Haut 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 by _tarif_ regulating the dues, which each kind of merchandise had to pay. It was necessary that this _tarif_ should 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. It was 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 our _feudistes_) considered this right as one attached to the right of _haute 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 the _Seigneur_, who was _Haut Justicier_: he levied the police fines, to which the exercise of the right gave occasion. It appears, however, that, although by theory the _droit de leyde_ could 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 old _coutumes_ were 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 the _Seigneurs_ or their judges. The by-roads, to be met with on any portion of a _Seigneurie_, doubtless belonged to such _Seigneurs_ as were _Hauts Justiciers_. They had all the rights of _voirie_ and police upon them, and their judges took cognisance of all the offences committed upon them, except in Royal cases. At an earlier period the _Seigneurs_ had been obliged to keep up the high roads passing through their _seigneurie_, 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 the _Seigneurs_ through 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. All _Seigneurs Hauts Justiciers_ were 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 of _haute justice_. There were some customs, such as the _Coutume du Berri_, that authorised private individuals to erect a mill upon the seignorial river passing through the lands they occupied, without the permission of the _Seigneur_. The _Coutume de Bretagne_ only granted this right to private personages who were noble. As a matter of general right, it is very certain that the _Seigneur Haut Justicier_ had alone the right of erecting mills throughout every part of his jurisdiction. No one was entitled to erect barriers for the protection of his property without the permission of the judges of the _Seigneur_.

_Fontaines.--Puits.--Routoirs.--Étangs._--The rain-water that fell upon the high roads belonged exclusively to the _Seigneurs Hauts Justiciers_; they alone were enabled to dispose of it. The _Seigneur Haut Justicier_ possessed 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, many _coutumes_ require that permission should be obtained of the _Seigneur_. The _coutumes_, however, thus requiring the acquiescence of the _Seigneur_, 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 many _Seigneurs_, 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 the _Seigneur Haut Justicier_ within whose limits they flowed. A judgment (dated April 30th, 1749) condemns a fisherman in a similar case. Even the _Seigneurs_ themselves, however, were obliged, in fishing, to observe the general regulations respecting fisheries. The _Seigneur Haut Justicier_ was enabled to give the right of fishing in his river to tenants in fief, or _à 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 the _Seigneur_ had the power of taking cognisance of all offences against the rights of the chase, except in cases appertaining to _bêtes 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 the _Seigneur_ was not allowed to give any permission to hunt. But still it did constantly occur that _Seigneurs_ granted such permissions not only to nobles but to non-nobles. The _Seigneur Haut Justicier_ possessed 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. Every _Seigneur 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 a _Seigneur Haut Justicier_ was 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._--Certain _coutumes_ only give the right of _colombiers à pied_ (dovecots standing apart from a building) to the _Seigneurs 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 afflictive punishments 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 certain _coutumes_, or only in certain _seigneuries_, 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 the _Seigneurs_ certain 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 our _coutumes_,’ he says, ‘estimate the value of _justice haute_, _basse_, or _moyenne_ at 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 of _banalité_, _banvin_, _leyde_, and _blairie_, 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 the _coutumes_ place the estimation of the _cens_, _au denier_ 30 (3-1/3 per cent.). The high valuation of the _cens_ arises from the fact that it represents at the same time all such remunerative casualties as the _lods 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 the _terrage_ or _champart_ includes _lods et ventes_, that is to say, when the land subject to these dues cannot be sold without paying for the right of exchange to the _Seigneur_, who has the right of tenure _in 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 no _lods et ventes_ or _droit 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.) The _Franc 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-noble _francs alleux_. The noble _franc alleu_ had 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-noble _franc alleu_ had neither jurisdiction, nor fief, nor _censive_, and was heritable according to the laws affecting non-nobles. The author looks upon the holders of _francs alleux_ as alone possessing complete property in the land.

_Valuation of Estates in Franc Alleu._--They were valued the highest of all. The _coutumes_ of 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-noble _francs alleux_ placed within the limits of a seignorial jurisdiction were subject to this jurisdiction. They were not in any dependence of vassalage to the _Seigneur_, 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 the _coutumes_, 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 other _coutumes_ the fiefs, besides the obligation of ‘_la bouche et les mains_,’ were what was called ‘_de danger_,’ as in Burgundy, and were subject to the _commise_, or feudal resumption, in case the holder of the property should take possession without having rendered submission or homage.

(3.) Other _coutumes_, again, as in that of Paris and many others, subject the _fiefs_ not only to the obligation of doing homage, but to the _rachat_, the _quint_, and the _requint_.

(4.) By other _coutumes_, also, such as that of Poitou and a few others, they were subjected to _chambellage_ dues, the _cheval de service_, &c.

Of these four all estates of the first category were valued more highly than the others.

The _coutume_ of 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 the _Seigneur_.

_Le Terrier._--The _feudistes_, 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. The _Terrier_ was a single register, in which were recorded all the titles proving the rights appertaining to the _seigneurie_, whether in property or in honorary, real, personal, or mixed rights. All the declarations of the payers of the _cens_, the usages of the _seigneurie_, the leases _à cens_, &c., were inserted in it. We learn by our authors that, in the _coutume_ of Paris, the _Seigneurs_ were permitted to renew their registers every thirty years at the expense of their _censitaires_: they add, however, ‘It may be considered a very fortunate circumstance, nevertheless, when a new one may be found once a century.’ The _Terrier_ could not be renewed (it was a vexatious business for all the persons dependent on the _seigneurie_) without obtaining, either from the _Grande Chancellerie_ (if in cases of _seigneuries_ situated 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 the _cens_, holders of long leases (_emphytéotes_), and personages subject to the jurisdiction of the _seigneurie_ were bound to appear before this notary. A plan of the _seigneurie_ had to be annexed to the _Terrier_.

Besides the _Terrier_, the _seigneurie_ was provided with other registers, called ‘_lièves_,’ in which the _Seigneurs_ or their farmers inscribed the sums received in payment of the _cens_, with the names of those who paid and the dates of the receipts.

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FOOTNOTES:

[139] These Notes and Illustrations were translated by the late Lady Duff Gordon.

[140] See last note.

[141] _I.e._ not corporations for trading purposes, but bodies like our livery companies.

* * * * *

Transcriber’s note:

Original spellings and variations in hyphenation have been retained.

The following apparent typographical errors were corrected:

Page 38, “sate” changed to “sat.” (some of whom sat there in virtue)

Page 74, “commmunity” changed to “community.” ( The other classes of the community)

Page 169, “not” changed to “no.” (could no longer give orders)

Page 300, “uresses” changed to “rousses.” (appertaining to _bêtes rousses_)