Montesquieu
 

XXXI.32 Some consequences of the perpetuity of fiefs

It fol­lo­wed from the per­pe­tuity of fiefs that the right of the eldest, or pri­mo­ge­ni­ture, became esta­bli­shed in France. It was unk­nown in the first dynasty1 : the crown was divi­ded among bro­thers, allods were like­wise divi­ded ; and revo­ca­ble or life­time fiefs, not being an object of suc­ces­sion, could not be an object of divi­sion.

In the second dynasty, the title of empe­ror held by Louis the Debonaire, with which he hono­red his eldest son Lothaire, gave him the idea of giving that prince a sort of pri­macy over his youn­ger bro­thers. The two kings were to go see the empe­ror every year, take him pre­sents, and receive grea­ter ones from him ; they were to confer with him on com­mon mat­ters.2 That is what gave Lothaire the pre­ten­sions that tur­ned out so badly for him. When Agobart wrote for this prince, he alle­ged the dis­po­si­tion of the empe­ror him­self, who had asso­cia­ted Lothaire with the empire, after – in three days of fas­ting and cele­bra­tion of the holy sacri­fi­ces, in prayers and alms – God had been consul­ted, that the nation had sworn fealty to him and could not per­jure itself, that he had sent Lothaire to Rome to be confir­med by the pope.3 He empha­si­zes all this, and not his bir­thright. He does say that the empe­ror had sti­pu­la­ted a divi­sion with the youn­ger sons, and that he had pre­fer­red the eldest ; but to say that he had pre­fer­red the eldest, was to say at the same time that he could have pre­fer­red the youn­ger ones.

But when fiefs became here­di­tary, bir­thright was esta­bli­shed in the suc­ces­sion of fiefs, and for the same rea­son in that of the crown which was the great fief. The old law that for­med divi­sions no lon­ger sub­sis­ted ; the fiefs were accom­pa­nied by a ser­vice, which the pos­ses­sor had to be in a posi­tion to ful­fill. The right of pri­mo­ge­ni­ture was esta­bli­shed ; and the rea­son of feu­dal fide­lity for­ced that of poli­ti­cal or civil law.

With the fiefs pas­sing to chil­dren of the pos­ses­sor, lords lost the free­dom of dis­po­sing of them ; and to indem­nify them­sel­ves, they esta­bli­shed a right which they cal­led the right of redemp­tion, men­tio­ned in our cus­toms, which was paid first in direct line, and over time came to be paid only in a col­la­te­ral line.

Soon fiefs could be trans­fer­red to out­si­ders, like a patri­mo­nial pro­perty. This gave rise to the right of per­mis­sion and sales, esta­bli­shed almost throu­ghout the realm. These rights were at first arbi­trary ; but when the prac­tice of gran­ting these per­mis­sions became gene­ral, they were fixed in each region.

The right of redemp­tion was to be paid at each change of heir, and was at first paid even in direct line.4 The most gene­ral cus­tom had fixed it at one year’s reve­nue. That was one­rous and trou­ble­some for the vas­sal, and, in a sense, mort­ga­ged the fief. He often obtai­ned in the act of homage that the lord would no lon­ger require more than a cer­tain sum of money for redemp­tion,5 which, through chan­ges that have taken place in the cur­ren­cies, has become insi­gni­fi­cant : thus the right of redemp­tion is at this point redu­ced to almost nothing, whe­reas the right of per­mis­sion and sales has sub­sis­ted in its full extent. As this right concer­ned nei­ther the vas­sal nor his heirs, but was a for­tui­tous case which they were not expec­ted to fore­see or anti­ci­pate, these sorts of sti­pu­la­tions were not made, and they conti­nued to pay a cer­tain por­tion of the price.

When the fiefs were for life, one could not give a part of his fief in order to keep it fore­ver as a sub-fief ; it would have been absurd had a sim­ple usu­fruc­tuary dis­po­sed of its pro­perty. But when they became per­pe­tual, that was allo­wed,6 with cer­tain res­tric­tions pla­ced on it by cus­toms,7 which was cal­led dis­mem­be­ring one’s fief.8

The per­pe­tuity of fiefs having led to the esta­blish­ment of the right of redemp­tion, daugh­ters were able to suc­ceed to a fief for want of males. For by giving the fief to the daugh­ter, the lord mul­ti­plied the cases of his right of redemp­tion, because the hus­band was to pay it as well as the wife.9 This pro­vi­sion could not apply to the crown ; for since it was not held in anyone’s depen­dency, it could not be eli­gi­ble for right of redemp­tion.

The daugh­ter of William V, count of Toulouse, did not suc­ceed to the county. Subsequently, Eleanor suc­cee­ded to Aquitaine, and Mathilde to Normandy ; and the right of daugh­ters to suc­ces­sion see­med so well esta­bli­shed in those times that Louis the Younger, after the dis­so­lu­tion of his mar­riage with Eleanor, made no dif­fi­culty about retur­ning Guyenne to her. As these last two exam­ples came very soon after the first, the gene­ral law cal­ling daugh­ters to the suc­ces­sion of fiefs must have been intro­du­ced later in the county of Toulouse than in the other pro­vin­ces of the realm.10

The cons­ti­tu­tion of various king­doms in Europe has fol­lo­wed the pre­sent state which fiefs were in at the times when those king­doms were foun­ded. Women suc­cee­ded nei­ther to the French crown nor to the empire, because in the esta­blish­ment of those two monar­chies women could not suc­ceed to fiefs ; but they suc­cee­ded in king­doms whose esta­blish­ment came after that of the per­pe­tuity of fiefs, so that those which were foun­ded by the Norman conquests, those that were foun­ded by conquests made over the Moors, and finally still others which, beyond the limits of Germany and in rela­ti­vely modern times, had a sort of second birth with the esta­blish­ment of Christianity.

When the fiefs were revo­ca­ble, they were given to men who were in a posi­tion to serve them, and there was no ques­tion of minors ; but11 when they became per­pe­tual, the lords took their fief until their majo­rity, either to increase their pro­fits, or to have the pupil rai­sed in the exer­cise of arms. This is what our cus­toms call garde-noble, which is based on other prin­ci­ples than those of guar­dian­ship, and is enti­rely dis­tinct from it.

When the fiefs were for life, one peti­tio­ned for a fief, and the real trans­mis­sion that was done by the scep­ter confir­med the fief, as it is confir­med today by the homage. We do not see that the counts, or even the king’s envoys, recei­ved homa­ges in the pro­vin­ces ; and this func­tion is not found in the com­mis­sions of those offi­cers that have been pre­ser­ved for us in the capi­tu­la­ries. They did indeed some­ti­mes require all sub­jects to take the oath of fealty12 ; but that oath was so far from an homage of the same nature as those since esta­bli­shed that in these lat­ter homa­ges the oath of fealty was an act13 cou­pled with the homage, which some­ti­mes fol­lo­wed and some­ti­mes pre­ce­ded the homage, did not apply in all homa­ges, and was less solemn than the homage and enti­rely dis­tinct from it.

The counts and the king’s envoys fur­ther, on occa­sion, had vas­sals whose fide­lity was sus­pect put up a secu­rity which they cal­led fir­mi­tas14 ; but this secu­rity could not be an homage, since the kings gave it to each other.15

Now if the abbé Suger16 speaks of a chair of Dagobert, on which, accor­ding to the report of anti­quity, it was the cus­tom for kings of France to receive the homa­ges of the lords, it is clear that he is making use here of the notions and lan­guage of his time.

When fiefs pas­sed on to the heirs, the ack­now­ledg­ment of the vas­sal, which in the ear­liest times was only an occa­sio­nal thing, became an act of duty ; it was done in a more pom­pous man­ner, it was filled with more for­ma­li­ties, because it was to vehi­cle the memory of the mutual duties of the lord and the vas­sal in all ages.

I could believe that homa­ges began to be intro­du­ced in the time of king Pépin, which is the time when I have said that some bene­fi­ces were given in per­pe­tuity ; but I would believe it hesi­tantly, and only on the sup­po­si­tion that the authors of the ancient annals of the Franks17 were not igno­rant men who, des­cri­bing the cere­mo­nies of the act of fealty which Tassillon, duke of Bavaria, made to Pépin, spoke in terms of the usa­ges they were seeing prac­ti­ced in their time.18

See the Sallic law and the law of the Ripuarians, at the heading on Alleux.

See capitulary of the year 817, which contains the first division that Louis the Debonaire made among his children.

See his two letters on this subject, one of which has as its title : De divisione imperii.

See Ordinance of Philip Augustus, 1209, on fiefs.

We find in the charters several of these conventions, as in the Cartulaire de Vendôme and of the abby of St. Cyprien in Poitou, of which Mr. Galland, p. 55, has given excerpts.

But one could not shrink the fief, in other words, eliminate a portion of it.

They set the portion which they wished to break up.

[Se jouer de son fief : “In feudal jurisprudence, it is said that a lord is allowed to dismember his fief, meaning that he is allowed to sell a part of it, to dismember it without paying the permission and sales to the higher lord” (Trévoux.)]

That is why the lord forced the widow to remarry.

Most of the great houses had their own laws of succession. See what Mr. de la Thaumassière tells us about the houses of the Berry.

We see in the capitulary of the year 877 apud Carisiacum, art. 3, Baluze ed., vol. II, p. 269, the moment when the kings had the fiefs administered, to preserve them to the minors : example that was followed by the lords, and furnished the origin of what we have called the garde-noble.

We find its formula in the capitulary II of 802. See also that of 854, art. 13 and others.

Mr. Du Cange, at the word hominium, p. 1163, and at the word fidelitas, p. 474, cites the charters of the ancient homages where these differences are found, and a large number of authorities which one can see. In the homage, the vassal placed his hand in the hand of the lord, and swore, the oath of fidelity was taken by swearing on the Gospels ; the homage was done kneeling, the oath of fidelity standing ; only the lord could accept the homage, but his officers could take the oath of fidelity. See Litleton, sect. 91–92, Foi et hommage, it is Fidélité et hommage.

Capitulary of Charles the Bald, 860, post reditum a Confluentibus, art. 3, Baluze ed., p. 145.

Ibid., art. I.

Book de administratione sua.

Anno 757, ch. xvii.

Tassillo venit in Vassatico se commendans, per manus sacramenta juravit multa et innumerabilia, reliquiis sanctorum manus imponens, et fidelitatem promisit Pippino. It would seem that this includes an homage and an oath of fidelity. See on p. 506 note (b).