Hunting. — The right of hunting can not be farmed out like the right of fishery. It is a personal right. It is held to be a royal right, which even men of rank can not exercise within their own jurisdiction, or on their own feud, without the king's permission. This doctrine is laid down in the 30th title of the ordinance of 1669. The seigniorial judges are competent to sit in all cases rel- ative to hunting, except those which refer to the chase of red beasts (these are, I imagine, large game, such as stags and deer), which must be left to the royal courts.
The right of hunting is, of all seigniorial rights, the one most carefully withheld from commoners; even ihe franc-aleu roturier does not carry it. The king does not grant it in his pleasures. So strict is the principle, that a seignior can not grant leave to hunt. That is the law. But in practice seigniors constantly grant permission to hunt, not only to men of rank but to commoners. High justiciaries may hunt throughout the limits of their jurisdic- tion, but they must be alone. Within these limits they are enti- tled to make all regulations, prohibitions, and ordinances regulat- ing hunting. All feudal seigniors, even without justiciary rights, may hunt within their feud. Men of rank, who have neither feud nor justiciary rights, may hunt upon the lands adjoining their resi- dences. It has been held that a commoner who owns a park with- in the limits of a high justice must keep it open for the pleasures of the seignior; but the judgment is old; it dates from 1668.
Warrens. — None can now be established without a title. Com- moners can establish warrens as well as noblemen, but none but men of rank can have forests.
Pigeon-houses. — Certain customs restrict the right of having pigeon-houses to high justiciaries; others grant it to all owners of feuds. In Dauphine, Brittany, and Normandy, no commoner can own a pigeon-house; no one but a noble can keep pigeons. Most severe punishments, often corporal, were inflicted on those who killed pigeons.
Such are, according to the authors quoted, the chief feudal rights exacted during the latter half of the eighteenth century. They add that " these rights are generally established. There are a host of others, less known and less extended, which exist only in certain customs or in certain seigniories in virtue of special titles." These rare or restricted rights which the authors enumerate num- ber ninety-nine. Most of them weigh upon agriculture, being NOTE. 341 dues to the seignior on harvests, or on the sale or transport of produce. The authors say that many of these rights were dis- used in their time. I fancy, however, that several of them must have been enforced in some places as late as 1789.
Having ascertained from the feudal lawyers of the eighteenth century what feudal rights were still enforced, I wished to ascer- tain what pecuniary value was set upon them by the men of that day.
One of the authors I have quoted, Renauldon, furnishes the req- uisite information. He gives a set of rules for legal functionaries to follow in appraising in inventories the various feudal rights which existed in 1765, that is to say, twenty-four years before the Revolution. They are as follows: Rights of Jurisdiction. — He says, " Some of our customs value the right of jurisdiction, high, low, and middle {justice haute, basse, et moyenne^, at one tenth the revenue of the land. Seign- iorial jurisdictions were then highly important. Edme de Tremin- ville thinks that, in our day, jurisdiction should not be valued high- er than a twentieth of the income of the land. I think even this valuation too high."
Honorary Rights. — Though these rights are not easily appre- ciated in money, our author, who is a practical man, and not easily imposed upon by appearances, advises the appraisers to value them at a very small sum.
Seigniorial Corvees. — The author supplies rules for the valu- ation of corvees, which shows that they v/ere still occasionally en- forced. He values the day's work of an ox at 20 sous, and that of a man at 5 sous, besides his food. This is a fair indication of the wages paid at the time.
Tolls. — With regard to the valuation of tolls, the author says: " No seigniorial rights should be valued at a lower rate than these tolls. They are very fluctuating; and now that the king and the provinces have taken charge of the roads and bridges which are of most use to trade, many tolls have become useless, and they are being abolished daily."
Right of Fishing and Hunting. — The right of fishery may be farmed out and regularly appraised. The right of hunting can not be farmed out, being a personal right. It is, therefore, an honor- ary, not a productive right, and can not be estimated in money.
The author then proceeds to speak of the rights of banality, hanvin, leyde, hlairie, and the space he devotes to them shows that they were the most frequently exercised and the most import- 342 NOTE.
ant of the surviving feudal rights. He adds: " There are, besides, a number of other seigniorial rights, which are met with from time to time, but it would be tedious and even impossible to enumerate them here. In the examples we have given, appraisers will find rules to guide them in estimating the rights which we have not specially valued."
Valuation of the Cens. — Most of the customs say that the cens must be valued at rather more than 3^ per cent. This high val- uation is due to the fact that the cens carries with it various casual benefits, such as mutation-fines.
Enfeoffed Tithes, Terrage. — Enfeoffed tithes can not be val- ued at less than four per cent., as they involve no care, labor, or expense. When the terrage or champart carries with it muta- tion-fines to the seignior, this casualty must settle the value at 3^o per cent., otherwise it must be valued like the tithes.
Ground-rents, bearing no mutation-fines or right of redemption — that is to say, which are not seigniorial — must be valued at five per cent.
ESTIMATE OP THE VARIOUS TENURES IN USE IN FRANCE BEFORE THE REVOLUTION.
We only know in France, says the author, three kinds of real estate: 1st. The franc-aleu, which is a freehold, exempt from all bur- dens, and subject to no seigniorial dues or rights, either beneficial or honorary.
Francs-aleux are either noble or common (roturiers). Noble francs-aleucc carry with them a right of jurisdiction, or they have feuds or lands held by cens depending on them. They are divided according to feudal law. Covcmioii francs-aleux have no jurisdic- tion, or feuds, or lands held by cens. They are divided according to the ordinary rules {roturierement). The author considers that the holders oi francs-aleux are the only landholders who enjoy a complete right of property.
The franc-aleu was valued higher than any other kind of tenure. The customs of Auvergne and Burgundy valued it 2^ per cent. The author thinks that 3^ per cent, would be a better valuation.
It must be noticed that common francs-aleux, existing within the limits of a seigniorial jurisdiction, were dependent thereon. It was not a sign of subjection to the seignior, but an acknowledg- ment of the jurisdiction of courts which took the place of the royal tribunals.
NOTE. 34H 2d. Lands held by feudal tenure (a fief).
3d. Lands paying cens, or, as they are here called in law, ro- tures.
The valuation of lands held by feudal tenure was the lower in proportion to the feudal burdens laid upon them. In some cus- toms, and in that part of the country which was governed by writ- ten law, feuds paid nothing but " la bouche et les maiyis,''^ that is to say, feudal homage. In other customs, such as Burgundy, feuds not only owed homage, but were what was called de danger; that is to say, they were liable to commise, or feudal confiscation, when the owner took possession of them without having rendered " fealty and homage." Other customs, such as that of Paris, for instance, and many more, declared feuds subject not only to fealty and hom- age, but likewise to re-emption, quint and requint. Others again, such as that of Poitou and some others, burdened them with a fine on the oath of fealty {chamhellage), and service on horseback, etc.
The first class of feuds must be valued higher than the others. The custom of Paris set them down at five per cent., which the author thinks very reasonable.
To arrive at a valuation of lands held en roture and those sub- ject to cens, they must be divided into three classes: 1st. Lands paying the mere cens.
2d. Lands liable not only to cens, but to other burdens.
3d. Lands mainmortable, subject to real taille, to hordelage.
The first two classes of lands en roture were common enough in the eighteenth century. The third was rare. The first, says the author, must be valued higher than the second, the second than the third. Indeed, landholders of the third class can hardly be called owners, in the strict sense of the word, as they can not al- ienate their property without leave from the seignior.
Terriers. — The feudal lawyers I have quoted furnish the fol- lowing rules for drawing up or renewing the seigniorial registers called terriers, which I have mentioned in the text. The terrier, as is known, was a great register, in which all the deeds establish- ing rights belonging to the seigniory, whether beneficial or honor- ary, real, personal, or mixed, were entered at length. It contain- ed all the declarations of the copyholders, the customs of the seign- iory, quit-rent leases, etc. In the custom of Paris, the authors say that seigniors may renew their terriers every thirty years at the expense of the copyholders. They add, however, that " one is fortunate to find a fresh one every century." The terrier could not be renewed (it was a troublesome formality for all those who ^n^-'*^^-K; 344 NOTE.
held under the seignior) without obtaining an authorization which was called lettres a terrier. When the seigniory was within the jurisdiction of several Parliaments, this was obtained from the high chancellor; in other cases it was procured from the Par- liament. The court named the notary, before whom all vassals, noblemen and commoners, copyholders, emphyteutic lessees, and persons amenable to the seigniorial jurisdiction, were bound to ap- pear. A plan of the seigniory was required to be attached to the terrier.
Besides the terriers, there were kept in each seigniory other registers called lieves, in which the seigniors or their stewards en- tered the sums they had received from their copyholders, with their names, and the dates of the payments.
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