The State of Society in France Before the Revolution of 1789 / And the Causes Which Led to That Event

by Alexis de Tocqueville

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.