Elster Jon, Goldhammer Arthur. Tocqueville: The Ancien Regime and the French Revolution (ENG)

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Notes

265

and unbroken possession were enough to establish this right. The var-

ious kings who wished at one time or another to establish uniformity

of weights and measures all failed, according to our authors. Things

remained as they had been when the customary laws were drafted.

Roads. Rights exercised by lords over roads.

The main roads, called king’s highways, were actually the property

of the sovereign. Their creation and maintenance, as well as jurisdic-

tion over crimes committed on them, fell outside the competence of

lords and their judges. As for private roads within the boundaries of an

estate, no one denied that these belonged to lords with powers of high

justice. Such lords reserved all rights pertaining to the building, mainte-

nance, and regulation of roads, and their judges had jurisdiction over all

offenses committed on them, apart from crown cases. At one time, lords

were responsible for maintaining highways that traversed their estates,

and in order to compensate them for the cost of such repairs, they were

granted the rights of péage, bornage, and traverse. Later, however, the king

reclaimed overall charge of the highways.

Waters. All navigable and oatable rivers belonged to the king, even if

they owed through a lord’s lands and notwithstanding any title to the

contrary (ordinance of 66). If the lord collected fees for shing, mills,

ferries, bridges, etc., he did so by virtue of a grant of authority, which had

to be issued by the king. There were some lords who continued to claim

rights of justice and regulation over rivers, but only in consequence of a

clear usurpation or extorted grant of authority.

That small streams belonged to the lords through whose lands they

owed was not contested. Over such streams lords enjoyed the same

rights of property, justice, and regulation as the king enjoyed over nav-

igable rivers. To secure ownership, they had no need of any title other

than that conferring powers of high justice. Some customs, such as the

custom of Berry, allowed private individuals to construct, without per-

mission from the lord, mills powered by rivers that belonged to the lord

but passed through property owned by the individual in question. The

custom of Brittany granted this right only to certain nobles. In general

law, it was undoubtedly the case that only lords with powers of high jus-

tice had the right to allow construction of a mill within the extent of their

judicial powers. No one could dam a seigniorial river, even to protect his

own property, without permission of the lord’s judges.

Fountains, wells, ax-wetting pits, ponds. Rainwater drained from high-

ways belonged to the lords of high justice, who had exclusive rights to its

Notes

266

use. A lord of high justice could construct a pond anywhere within the

extent of his judicial powers, even on property belonging to his subjects,

provided he paid for the land that was submersed. This was a specic

provision of certain customs, including those of Troyes and Nivernais.

Private individuals could construct ponds only on their own land. Even

then, certain customs required the owner to ask the lord for permission.

The customs that required the lord’s approval insisted that, if granted, it

be free of charge.

Fishing. Fishing rights in navigable or oatable rivers belonged exclu-

sively to the king; only he could grant them to others. His judges alone

had the right to judge offenses related to shing. There were, neverthe-

less, many lords who enjoyed the right to sh in these kinds of streams,

but it had either been granted to them by the king or else usurped. As

for non-navigable rivers, shing in them was not allowed, even using a

hand line, without permission from the lord having powers of high jus-

tice over the territory through which the stream owed. A decree of April

30, 4, condemned a sherman for such an offense. Furthermore, even

lords had to abide by general shing regulations. A lord with powers of

high justice could grant the right to sh in his river either as a ef or in

exchange for a cens (rent).

Hunting. Unlike the right to sh, the right to hunt could not be

leased. It was a personal right. Some maintained that it was a royal

right, of which even nobles could avail themselves only within the lim-

its of their jurisdiction, or ef, and then only with the permission of the

king. This doctrine was set forth in title 30 of the ordinance of 66.

The lord’s judges had jurisdiction over all offenses involving hunting,

except for those involving the hunting of “red-furred animals” (mean-

ing, I believe, large animals such as deer, both stags and does), which

were royal cases.

The right to hunt was more assiduously denied to commoners than

any other. It was denied even to freeholders. It was not among the favors

granted by the king. So strict was the principle that a lord could not even

grant permission to hunt. The law in this regard was very rigorous. Yet

it was quite common for lords to grant permission to hunt not only to

nobles but also to commoners. A lord of high justice could hunt any-

where within his jurisdiction, but only alone. Within that territory he was

entitled to impose whatever regulations, restrictions, and prohibitions

on hunting that he wished. Any ef-holding lord, even without powers

of justice, could hunt within the boundaries of his ef. Nobles who had

Notes

26

neither efs nor powers of justice could also hunt on land that belonged

to them in the vicinity of their residences. A court held that a commoner

with a park in an area of high justice had to open that park if the lord so

wished, but the judgment was very old; it dated from 66.

Rabbit warrens. None could be established at the time of writing with-

out a title. Both commoners and nobles could keep warrens, but only

nobles could keep ferrets.

Dovecotes. Certain customs granted the right to keep dovecotes to

lords of high justice alone; others granted it to any owner of a ef. In

Dauphiné, Britanny, and Normandy, commoners were prohibited from

keeping dovecotes, pigeon coops, or birdcages; only nobles could keep

pigeons. The punishment for killing a pigeon was quite harsh, often

involving corporal punishment.

According to the authors I am following, these were the principal

feudal dues and obligations still in force in the second half of the eigh-

teenth century. They write: “Thus far we have discussed only generally

established rights. There were a host of others, less well known and less

extensively practiced, which existed in only a few customs or even on

only a few estates, in virtue of specic titles.” The rare and restricted

rights mentioned and named by the authors were ninety-nine in

number, and most impinged directly on agriculture, by granting lords

certain claims on the harvest or establishing tolls on the transport and

sale of staples. The authors state that several of these dues had fallen

into disuse during their lifetime. Nevertheless, I believe that a substan-

tial number of them were probably still being collected in a few places

in .

After studying what the main feudal dues still in effect in the eigh-

teenth century were, according to the feudal law specialists of the time, I

wanted to know how important they were in the eyes of contemporaries,

including both those who derived income from them and those who were

obliged to pay.

One of the authors I have been discussing, Renauldon, provides that

information while telling us about the rules that lawyers charged with

assessing estate inventories had to follow when evaluating feudal dues still

extant in 65, that is, twenty-four years before the Revolution. Here,

according to this lawyer, are the rules to be followed in this realm.

Rights of justice. “Some of our customs,” Renauldon writes, “estimate

the rights of high, low, and medium justice at one-tenth the revenue of

the land. Seigniorial justice was of great importance at the time. Edme

Notes

26

de Fréminville thinks that today the rights of justice should be estimated

at only one-twentieth of the income from the land. I believe that this

estimate is still too high.”

Honoric rights. However invaluable these rights may be, Renauldon, a

very down-to-earth fellow not unduly impressed by appearances, insists

that a prudent expert ought to set a moderately low price for them.

Seigniorial labor services. The author gives rules for estimating the

value of these services, which proves that they were still used to some

extent. He puts the cost of an ox at 20 sous per day and a laborer at 5 sous,

plus food. This gives us a fairly good idea of the wage level in 65.

Tolls. In evaluating tolls, the author says: “There are no seigniorial

dues for which a lower price should be set than for tolls. They are highly

variable. Since the maintenance of the roads and bridges most useful for

trade is now the responsibility of the king and the provinces, many tolls

today serve no purpose, and more are abolished every day.”

Fishing and hunting rights. Fishing rights can be leased and are there-

fore subject to expert appraisal. Hunting rights are purely personal and

cannot be leased. They therefore count as honoric rights rather than

remunerative rights and should not be included in expert appraisals.

The author then discusses the rights of banalité, banvin, leyde, and blai-

rie, showing that these rights were the most frequently invoked and most

important of all. He adds that “there are quite a few other seigniorial

rights that one still encounters on occasion and that would be tedious if

not impossible to enumerate here. From the examples we have just given,

however, intelligent experts will be able to dene rules for appraising the

rights we do not discuss.”

Appraisal of the cens. Most customs valued the cens at one thirtieth of

the land’s income. The reason for this high estimate is that the cens repre-

sented not only itself but other dues calculated as a percentage of income,

such as lods et ventes.

Feudal tithes, terrage. Feudal tithes were evaluated at a minimum of 4

percent, since this was an asset that required no care, labor, or nancial

outlay. When terrage or champart entailed lods et ventes, that is, when a

eld subject to these obligations could not be sold without paying a trans-

fer fee to the lord with a direct claim on it, this variable revenue reduced

its value to one-thirtieth; otherwise it was to be appraised the same as

the tithe.

Ground rents, which did not yield lods et ventes or retenue (that is, which

were not seigniorial rents), were to be estimated at 5 percent.

Notes

26

es t i m a t e o f va r i o u s fo r m s o f Pr o P e r t y ho L d i n G i n fr a n c e

e f o r e t h e re v o L u t i o n

France, the author states, recognizes only three types of property:

. Freehold. This is free tenure, exempt from all charges and not subject

to any seigniorial obligations or dues, whether pecuniary or honoric.

There are noble freeholds and common freeholds. A noble freehold has

powers of justice, or efs subordinate to it, or associated land on which

rent is due in the form of the cens. It is subject to feudal law in regard

to division upon inheritance. A common freehold has neither powers of

justice nor efs nor dependent lands subject to the cens, and its divi-

sion upon inheritance is subject to the law governing commoners. For the

author, only freeholders enjoy full ownership of the land.

Appraisal of freehold property. It should be as high as possible. The

customs of Auvergne and Burgundy put it at 2.5 percent. The author

believes that 3.3 percent might be correct.

It should be noted that common freeholds located within the juris-

diction of seigniorial justice were subject to it. This was not a form of

subjection to the lord but rather submission to a jurisdiction that sup-

planted the jurisdiction of state tribunals.

2. The second type of property was property held as a ef.

3. The third type of property was property subject to the cens, or common

tenure, in legal parlance.

Appraisal of property held as a ef. The appraisal was to be reduced in

proportion to the feudal dues encumbering the property.

. In regions of written law, as well as in several customs, efs owed

nothing other than “hand and mouth,” that is, homage to the lord.

2. In other customs, efs, beyond owing the homage of hand and mouth,

were what was called “precarious” (de danger), as in Burgundy, and

subject to commise, or feudal conscation, if the owner took possession

without having sworn an oath and paid homage to the lord.

3. Other customs, such as that of Paris and a good many others, sub-

jected the ef not only to the obligation of oath and homage at the time

of purchase but also to the taxes known as quint and requint (one-fth

and one-twenty-fth, respectively).

4. In still other customs, such as that of Poitou and a few other places,

efs were subject to the obligation of chambellage, a cash payment at

the time the oath of fealty was sworn, as well as the obligation to sup-

ply horses on demand.

Notes

20

Property in the rst category was to be appraised at a higher value than

the other three.

The custom of Paris set the estimate at 5 percent, which seemed

reasonable to the author.

Appraisal of land in common tenure, subject to the cens. To arrive at this

estimate, it was best to consider three classes of land of this type.

. Property simply subject to the cens.

2. Property subject to other servitudes in addition to the cens.

3. Property that was in mainmorte, subject to the real taille, or subject to

bordelage.

Of these three forms of common tenure, the rst and second were quite

common in the eighteenth century; the third was rare. The appraised

value should decrease, the author recommended, as one moved from the

rst to the second and especially the third category. Those in possession

of property of the third class were, in fact, not even true owners because

they could not sell without the lord’s permission.

The terrier. Here, according to the feudal law specialists cited previously,

are the rules that were followed in establishing and revising the terrier, the

feudal land registers that I mentioned several times in the text. As is well

known, each estate had a terrier recording all the titles underlying the

various rights associated with that estate, whether as property rights or

honoric, real, personal, or mixed rights. It included the declarations of

cens payers, the customs of the estate, leases, etc. Under the custom of

Paris, according to our authorities, lords could revise the terrier every

thirty years at the expense of the cens payers. They add, however, that

“you would nevertheless be quite lucky if you found one revision per

century.” Revision of the terrier was an inconvenience for everyone under

the estate’s jurisdiction, and it could not be done without authorization

from the high chancellery (for estates situated within the jurisdiction of

more than one parlement) or the parlement; this authorization was known

as a letter à terrier. A notary was appointed by the court. All vassals, noble

as well as commoner, cens payers, leaseholders, and others subject to the

estate’s jurisdiction were required to appear before this notary, and a map

of the estate had to be inserted into the terrier.

In addition to the terrier, estates also kept another record book called

the liève, in which the lord or his lessees recorded the sums received from

the cens payers, along with their names and the date of their payment.



absenteeism, and nobility, 8, 3

administration: and conicts of powers

in late eighteenth century, 58–9;

customs of under Ancien Régime,

6–0; and municipal governments

of towns as institution of Ancien

Régime, 4–54, –, 3–4; and

religious government of ecclesiastical

provinces, 44–5; revolution in at

end of eighteenth century, 0–9;

and village government in Île-de-

France, –5. See also centralization

agriculture: and central government

of Ancien Régime, 45; class and

societies for, 9; roles of intendant

and comptroller general in societies

for, 54. See also famine

Aigues-Mortes (district), 90

Algeria, administrative centralization of

Ancien Régime in Canada compared

to, 6

America: and English system of

decentralization, 6, ; and role

of religion in society, 40; and rural

parishes of Middle Ages compared

to New England townships, 5.