customs, the barons having preserved for a longer period than is supposed the rights and privileges of the conquerors.

But alongside of allodial estates, one sees early growing up very different tenures, namely, the tenancy at will, the tenancy by rent, the fief, the serf's tenure-all originally life estates, but speedily transformed into hereditary ones, and having a character hitherto unknown in the legal world. We have seen (what the Roman lawyers, with their absolute notions of the right of property, could never admit) a right of property no longer absolute, but limited by a superior right; and for one and the same object two proprietors and two different orders of heirs. This new organisation of property sensibly modified the right of succession; and the tenancy at will, the fief, and the servile tenure were heritages of a nature very different from the Roman dominium or the barbarian allodium. How were these new rights organised? This is a question over which much mystery hangs.

All these estates, differing from each other as they do, have notwithstanding a common character which distinguishes them from all the preceding institutions. In the new world in which we are about to enter it is no longer the law which lays down the conditions of the estate, it is the contract, the charter, the concession. The conditions

of the estate are no longer matters of public, but of private interest, and the enjoyment of the soil, like the right of succession, changes according to the desire and caprice of the conceding proprietor. Not only every country, every town, every village, but every bit of land has its special statute; for, I repeat, it was the deed which made the law.

This right of the individual to modify the conditions of an estate is characteristic of the middle ages; it explains to us that frightful medley of customs which often made two inhabitants of the same district more foreign as regards the law they lived under than are in our day two citizens of different nations. This right, which was not disputed during the early period of feudalism, lasted until the establishment of a great public authority, which subordinated estates and individuals to the State; and if, since the strengthening of monarchical power, the laws of succession became a public question, it, nevertheless, up to the period of the French revolution, was permissible for some great families to establish the order of succession for their houses. Reversions and entails were nothing but a relic of this ancient Teutonic liberty.

What a De Luynes or a Montmorency could do, in the reign of Louis XIV., with the consent of the king and the approval of the parlement, a great proprietor used to do in the ninth century without asking. anybody's consent; the law which he imposed on his heirs constituted the custom of his manor, as the conditions which he imposed on his tenants were the custom of the estate.

That there should have resulted from this liberty an infinite diversity

in the terms of the charters follows as a matter of course, but what specially interests us in this question, is, that the alteration of the Teutonic customs was all to the advantage of women, and nothing is more usual, in the ancient deeds, than to see a share in the inheritance guaranteed to the wife, and the daughters put on a level with their brothers. Examples of this abound in the deeds of the eighth and ninth centuries, and these evidences are so numerous, that they suggest the theory that the facility of altering the law of succession was one of the causes, which, by occasioning a tenancy at will, assured the greatness and wealth of the Church.

In an age when small proprietors had need of a patron to guarantee the safety of their lives and their property, there was no more trustworthy protector, no more disinterested trustee, than the Church; it was the only power which respected the wishes of the poor husbandman, and saw to it that the heritage devolved upon the widow and children.

What is certain is, that in the case of all these donations, the donor always takes great care to establish the future order of his succession, and spares nothing to assure, from the first, the rights of the heirs whom he has chosen. Moreover, it is quite common to find the legitimate order of succession completely set aside; I am not speaking of the preference of the daughter, which does not happen sufficiently often that one can say that it was aught else than a freak of the donor; but often the wife is preferred to the children, and when this preference is not unlimited, the widow has always at least a half. The community of property which we found in the barbarian codes, exists in the deeds and the rustic customs; accordingly, we shall find in the customs of the Middle Ages, the Teutonic third given to the widow of a noble, whilst a half will remain the share of the wife of the common man—an apparent anomaly which can only be explained by the rooted hold Teutonic usages had on great families.

What is true of the tenancy at will and servile tenure, is true also of the fief; it was always the deed which was the law, and cases can be adduced where the daughter was called to the succession to a landed estate; yet it must be admitted that there was a constant effort upon the part of the vassals to impart to their tenures the forms and statute law of the allodium, which was the ideal tenure, absolute property par excellence.

BOOK IV.

THE FEUDAL EPOCH.

INTRODUCTION.

In the Roman period we only meet with one species of property, and therefore, by a natural consequence, with only one rule of succession.

No doubt, the changes which the judge effected in the capacity to inherit had this result-namely, to make several orders of heirs compete for one and the same heritage, at the same epoch; but the heritage itself never changed, either on account of the origin or the nature of the parts of which it was composed.

This was not the case in the barbarian customs. As I said above, the capacity to inherit was determined, not, as among the Romans, by considerations drawn from the person inheriting, but from the thing inherited; thus, there was one rule of succession for the personal property, and another for real estate; one rule for the wehrgeld, and another for the allodium; and, consequently, every man had as many heirs as he had different patrimonies.

This diversity was further increased, when to these normal rights of succession, which were recognised by the statute law, were added those chartered rules of inheritance, of which I spoke in the previous bookrules which depended entirely on the conditions established by the donor of the deed of grant. Thus, the fief, the tenancy at will, the servile holding, devolved, on the death of the tenant, not always on him whom the law would have called to succeed to the allodium, but on him whom the deed of grant had designated as heir. The wife, for instance, almost always succeeded to the tenancy at will to the extent of one half, and often continued with her children that partnership which she had commenced with her husband; the daughters shared alike with the sons; the ascendants were sometimes admitted to a share, and sometimes excluded. In a word, no fixed rule, no welldefined principle, regulated these rights of inheritance, which were unknown to the civil law; the contract alone determined the order in which these sort of perpetual leases were transmitted, as, at present, the lease lays down the law for tenancies of a shorter duration.

Feudalism increased this diversity of tenures. There was the allodium, whose devolution continued to be regulated by the Teutonic Customs; the fief, in which the rule of devolution was complicated by the necessities of military service; the villenage, in which it depended generally on the caprice of the lord, if indeed the lord tolerated any devolution at all. There was also the censive in France, the erbpacht in Germany, and the soccage* tenure in England; a sort of plebeian fiefs, the succession to which was partly feudal and partly servile. There was, finally, the

*Soccage, from the French soc, a ploughshare. A tenure of lands by or for certain inferior services of husbandry, to be performed to the lord of the fee. This was a tenure of so large an extent that, Littleton tells us, all the lands in England which were not held in knights'-service were held in soccage. So that it seems the land was divided between these two tenures, and as they were of different natures, so the descent of these lands was in a different manner; for the lands held in knights'service descended to the eldest son, but those held in villano socagio (base soccage) equally among all the sons.-Jacobs' "Law Dictionary."-TRANSlator.

roture and the burgage tenures, the succession to which had also a peculiar character. Add to this, that not only did these different tenures exist alongside of each other in every feudal country, but that in the smallest parish and village cach of them branched out into infinite varieties, and that every manor, I might almost say every field, had an order of succession peculiar to itself.

What conclusion are we to draw from this diversity? That the study of feudal legislation is without a possible result, on account of the multiplicity and the difference of the deeds of grant? Such a conclusion would be unworthy of science. From the mere fact that all these men were of the same race, that they were living side by side, with the same necessities, the same ideas, the same manners, a similarity of circumstances was sure to bring about similar usages, and to create as it were a common stock of feudal law, which it is our duty to disengage from all those distinct appearances which prevent an inexperienced eye from recognising it.

Only, when we meet with anomalies, we must not be surprised thereat, nor seek to classify them under the head of ordinary rules by any strained explanation; for this prodigious variety is of the essence of the feudal epoch. Unity in legislation is an idea of modern date; in France it dates only from yesterday, and the change has hardly commenced in the rest of Europe.

In order to throw some light on this difficult subject, we will distinguish between the different sorts of tenures, and we will examine the order of devolution which was established for every variety of estate. Thus, confining ourselves to feudal countries, we will speak successively

1. Of the fief and the allodium.

2. Of villenage.

3. Of the tenure by grant, the roture, and the burgage tenure.

We will examine, in each of these three parts, the influence which each kind of estate exercised on the right of inheritance, and on the administration of property during marriage.

We shall conclude by considering, in a last chapter, what was the order of devolution in the countries in which feudalism penetrated only imperfectly, combatted as it was by Roman influence; I mean the south of France, Italy, and Spain.

Feudalism as a perfect system did not come and suddenly invade Europe, as it were by a theatrical coup; it grew up slowly, gradually, unequally. There were, at first, very different tenures joined in the hand of one proprietor, and consequently a great variety in the devolution of different parts of the same heritage. From a very early period, there were men who were proprietors both of allodiums, of fiefs liable to military service, and of soccage lands. The bourgeoisie often

possessed fiefs, and the villeins themselves have sometimes ended by getting possession of the lord's manor. All these tenures co-existed, continually commingled, and crossed each other.

I will explain in this book every one of these tenures as if it existed separately, but I will also explain, as I go along, what were the general causes which tended to merge them in one grand species of estate, a revolution which commenced on the first day of feudalism by the slow movement of human affairs, and which was concluded when the legislators of 1789 proclaimed the equality of all citizens, and the equalisation of tenures; one and the same right under two different names.

PART I.

OF THE NOBILITY AND GENTRY.

CHAPTER I.

THE WOMAN AS A DAUGHTER.

§ 1. WHAT WAS THE FIEF?

THIS word "fief" comprehended tenures of very different origins and characters, and these differences influenced the rule of devolution; it is then obligatory on me to give an account of the origin and formation of fiefs.

At the time of the barbarian conquest, Europe presents us with the spectacle, not of a regular state, as the Roman empire had been, but of thousands of independent estates, of which each proprietor was the absolute master, or the lord. All these great proprietors, captains of bands, assembled under the first Merovingians for expeditions and continual forays upon the countries they had recently conquered, knit together for a moment by the genius of Charlemagne, who had partitioned among them Lombardy, Saxony, and the Marches of Spain, became too powerful for the monarchy. When the empire fell, each of these captains established himself on his estate, annexed to it, nolens volens, those large possessions which the kings ordinarily conceded for life under the name of fiefs, assured to themselves the fee-simple of the concession and of his fief, and made a real allodium.

Master of immense estates, the baron, who was properly a captain of men, and who had preserved all the valour and indolence of the German, granted a portion of the land, either to some leal companion who, in consideration of the revenue of the field, would be ever ready to defend and aid his lord; or to some tiller of the soil, whether a serf or a freeman, who was ready to give, in consideration of the grant, a share of the fruits of the soil, or some domestic service.

But when the lord had thus granted away a portion of his demesne to assure his power by surrounding himself with faithful arms, his power