From the perpetuity of fiefs it followed that the right of seniority or
primogeniture was established among the French. This right was quite
unknown under the first race;
[203]
the crown was divided among the
brothers, the allodia were shared in the same manner; and as the fiefs,
whether precarious or for life, were not an object of succession, there
could be no partition in regard to those tenures.
Under the second race, the title of emperor, which Louis the
Debonnaire enjoyed, and with which he honoured his eldest son,
Lotharius, made him think of giving this prince a kind of superiority
over his younger brothers. The two kings were obliged to wait upon the
emperor every year, to carry him presents, and to receive much greater
from him; they were also to consult with him upon common affairs.
[204]
This is what inspired Lotharius with those pretences which met with such
bad success. When Agobard wrote in favour of this prince,
[205]
he
alleged the emperor's own intention, who had associated Lotharius with
the empire after he had consulted the Almighty by a three days' fast, by
the celebration of the holy mysteries, and by prayers and almsgiving;
after the nation had sworn allegiance to him, which they could not
refuse without perjuring themselves; and after he had sent
Lotharius to Rome to be confirmed by the Pope. Upon all this he lays
a stress, and not upon his right of primogeniture. He says, indeed, that
the emperor had designed a partition among the younger brothers, and
that he had given the preference to the elder; but saying he had
preferred the elder was saying at the saine time that he might have
given the preference to his younger brothers.
But as soon as the fiefs became hereditary, the right of seniority
was established in the feudal succession; and for the same reason in
that of the crown, which was the great fief. The ancient law of
partitions was no longer subsisting; the fiefs being charged with a
service, the possessor must have been enabled to discharge it. The law
of primogeniture was established, and the right of the feudal law was
superior to that of the political or civil institution.
As the fiefs descended to the children of the possessor, the lords
lost the liberty of disposing of them; and, in order to indemnify
themselves, they established what they called the right of redemption,
whereof mention is made in our customs, which at first was paid in a
direct line, and by usage came afterwards to be paid only in a
collateral line.
The fiefs were soon rendered transferable to strangers as a
patrimonial estate. This gave rise to the right of lord's dues, which
were established almost throughout the kingdom. These rights were
arbitrary in the beginning; but when the practice of granting such
permissions became general, they were fixed in every district.
The right of redemption was to be paid at every change of heir, and
at first was paid even in a direct line.
[206]
The most general custom
had fixed it to one year's income. This was burdensome and inconvenient
to the vassal, and affected in some measure the fief itself, It was
often agreed in the act of homage that the lord should no longer demand
more than a certain sum of money for the redemption, which, by the
changes incident to money, became afterwards of no manner of
importance.
[207]
Thus the right of redemption is in our days reduced
almost to nothing, while that of the lord's dues is continued in its
full extent. As this right concerned neither the vassal nor his heirs,
but was a fortuitous case which no one was obliged to foresee or expect,
these stipulations were not made, and they continued to pay a certain
part of the price.
When the fiefs were for life, they could not give a part of a fief
to hold in perpetuity as a rear-fief; for it would have been absurd that
a person who had only the usufruct of a thing should dispose of the
property of it. But when they became perpetual, this was permitted.
[208]
with some restrictions made by the customs, which was what they call
dismembering their fief.
[209]
The perpetuity of feudal tenures having established the right of
redemption, the daughters were rendered capable of succeeding to a fief,
in default of male issue. For when the lord gave the fief to his
daughter, he multiplied the cases of his right of redemption, because
the husband was obliged to pay it as well as the wife.
[210]
This
regulation could not take place in regard to the crown, for as it was
not held of any one, there could be no right of redemption over it.
The daughter of William V, Count of Toulouse, did not succeed to the
county. But Eleanor succeeded to Aquitaine, and Matilda to Normandy; and
the right of the succession of females seemed so well established in
those days, that Louis the Young, after his divorce from Eleanor, made
no difficulty in restoring Guienne to her. But as these two last
instances followed close on the first, the general law by which the
women were called to the succession of fiefs must have been introduced
much later into the county of Toulouse than into the other provinces of
France.
[211]
The constitution of several kingdoms of Europe has been directed by
the state of feudal tenures at the time when those kingdoms were
founded. The women succeeded neither to the crown of France nor to the
empire, because at the foundation of those two monarchies they were
incapable of succeeding to fiefs. But they succeeded in kingdoms whose
foundation was posterior to that of the perpetuity of the fiefs, such as
those founded by the Normans, those by the conquests made on the Moors,
and others, in fine, which were beyond the limits of Germany, and in
later times received in some measure a second birth by the establishment
of Christianity.
When these fiefs were at will, they were given to such as were
capable of doing service for them, and, therefore, were never bestowed
on minors; but when they became perpetual, the lords took the fief into
their own hands, till the pupil came of age, either to increase their
own emoluments, or to train the ward to the use of arms.
[212]
This is
what our customs call the guardianship of a nobleman's children, which
is founded on principles different from those of tutelage, and is
entirely a distinct thing from it.
When the fiefs were for life, it was customary to vow fealty for a
fief; and the real delivery, which was made by a sceptre, confirmed the
fief, as it is now confirmed by homage. We do not find that the counts,
or even the king's commissaries, received the homage in the provinces;
nor is this ceremony to be met with in the commissions of those officers
which have been handed down to us in the Capitularies. They sometimes,
indeed, made all the king's subjects take an oath of allegiance;
[213]
but so far was this oath from being of the same nature as the service
afterwards established by the name of homage, that it was only a
cere-money of less solemnity, occasionally used, either before or after
that act of obeisance; in short, it was quite a distinct thing from
homage.
[214]
The counts and the king's commissaries further made those vassals
whose fidelity was suspected give occasionally a security, which was
called firmitas,
[215]
but this security could not be an homage, since
kings gave it to each other.
[216]
And though the Abbot Suger
[217]
makes mention of a chair of
Dagobert, in which according to the testimony of antiquity, the kings of
France were accustomed to receive the homage of the nobility, it is
plain that he expresses himself agreeably to the ideas and language of
his own time.
When the fiefs descended to the heirs, the acknowledgment of the
vassal, which at first was only an occasional service, became a regular
duty. It was performed in a more splendid manner, and attended with more
formalities, because it was to be a perpetual memorial of the reciprocal
duties of the lord and vassal.
I should be apt to think that homages began to be established under
King Pepin, which is the time I mentioned that several benefices were
given in perpetuity, but I should not think thus without caution, and
only upon a supposition that the authors of the ancient annals of the
Franks were not ignorant pretenders,
[218]
who in describing the fealty
professed by Tassillon, Duke of Bavaria, to King Pepin, spoke according
to the usages of their own time.
[219]
