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. 44
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‚odale, p. 29; as to Penthievre, see Guillotel, `Guingamp'.
Á
fe
Tonnerre, Naissance de Bretagne, pp. 421±4; AD Ille-et-Vilaine, 1F536; Preuves, col. 541.
41

‚ Á
H. Guillotel, `Les vicomtes de Leon aux XIe et XIIe siecles', MSHAB 51 (1971), 29±51.
42


192
Appendix 1
authority.43 The punitive division of Leon adds another dimension to the term

`divisiones'. Arguably, this clause was also intended to restrain the duke from
intervening in the succession to baronies and to con®rm the eldest son's right to
inherit his patrimony in full.
One cannot be as certain about succession to knights' fees. Sources for this
lower rank of the aristocracy are even scarcer than those for baronial families, and
there is also the possibility of variation of custom from one region or barony to
another. The sources provide evidence for succession both by partible inheritance
and by primogeniture, but there is a chronological division. The examples I have
found of the former all date from the eleventh century. For example, some time
before 1053, Ebroin `miles stipendarius', his brothers and all his `coheredes' gave

the monastery of Tremeheuc, near Combour, which they held of Rivallon I de
Dol, to Saint-Florent de Saumur.44
One indication of the operation of the principle of primogeniture is in
contemporary charters which distinguish the eldest son of the actor from his other
sons and daughters, especially with the title `primogenitus'. Usually, in these cases,
the consent of the eldest son to his father's act is speci®cally recorded, as implicitly
having greater signi®cance than the consent of other family members. The earliest
instances I have found occur in the late eleventh century. For example, Baldwin
son of Homenes made a grant to Mont Saint-Michel with the consent of his son
Warin `primogenitus' and his other sons and daughters. In return, Baldwin was
received as a monk, and the offer was extended to Warin, or whichever one of his
brothers he should choose, an arrangement re¯ecting the superior role of the
`primogenitus' in the family.45
The expression becomes more common in the second half of the twelfth
Á
century. As early as 1163, a tenant of Ralph de Fougeres granted to Savigny the `jus
primogenitus' he enjoyed over his younger brother and all his `feodum', so that in
future the cadet should hold his lands of Savigny `quasi a primogenito'.46 In making
a grant to Mont Saint-Michel in 1182, Hamo Spina obtained the consent both of
his own `primogenitus' William, and of his nephew Geoffrey, who was the son of
Hamo's `primogenitus' brother.47 Thus it appears that, at least in north-eastern
Brittany, a custom of partible inheritance of knights' estates was replaced, in the
course of the eleventh century, by the custom of primogeniture. The `primogeni-
ture' clause of the Assize, although it merely con®rmed the existing custom in



Guillotel, `Leon', pp. 32±3. Cf. A. de la Borderie's assertion that Geoffrey retained only the
43

castellany of Morlaix and divided the rest of the viscounty between Guihomar's two sons,
‚ ‚
giving the younger son, Harvey, the greater share (Essai sur la geographie feodale, pp. 48±9). It is
more probable that Guihomar provided Hervey with a generous apanage after the barony had
been restored to him by Duchess Constance (`Communes petitiones Britonum', paras. 28±36).
AD Ille-et-Vilaine 1F517 (copy from `Livre noir', cartulary of Saint-Florent de Saumur, folios
44

64v-65r); Preuves, col. 438. From the same ms. source, see Preuves, cols. 407, 437, `compartices
milites'.
Cartulary of Mont Saint-Michel, Bibl. mun. d'Avranches ms 210, fol. 94v. Another early
45

example occurs in the record of a dispute between Adam son of Theobald and Andrew I de

Vitre (c.1090±c.1140), in which the consent of Adam's `primogenitus', Morehenn, is speci®cally
recorded (Preuves, cols. 495±6).
AN L975, `S'.
46

BN ms latin 5430A pp. 38, 197; BN mss fr. 22325, p. 666 and 22357, fol. 46; Preuves, col. 695.
47


193
The `Assize of Count Geoffrey'
baronies, may have been intended to establish or consolidate primogeniture as the
custom for knights' fees.
Finally, if any doubt remained as to the custom of primogeniture in Brittany
before 1185, one could observe the younger sons who ®gured among the courtiers
of Duke Geoffrey. These included Matthew de Goulaine, younger brother of the
marcher baron William de Goulaine, and Harvey Agomar.48
The need to make some provision for cadets is a direct result of the practice of
primogeniture, but is inevitably a source of tension. Family sentiment or custom
may dictate that some provision should be made for cadets, but the alienation of
patrimonial lands would be contrary to the whole rationale of primogeniture,
which was the preservation of the integrity of the patrimony. There were, of
course, solutions to this con¯ict, such as the grant to cadets of cash revenues,49 or
arrangements whereby land could be granted to a cadet for his life, but with
reversion to the senior branch, so that it would not be alienated from the
patrimony. It seems to me that one of the purposes, if not the main purpose, of the
Assize, was to prescribe such solutions by regulating provision for cadets. In other
words, the Assize did not introduce primogeniture, but addressed some of the
problems arising from its operation.

The subsidiary provisions
Given that the primary clause was merely a restatement of the existing custom of
primogeniture, it seems to me that, for contemporaries, the remaining provisions
were more signi®cant. These subsidiary provisions have tended to be overlooked in
discussions of the Assize, which focus on the issue of primogeniture. They govern
provision for younger sons, wardship, female succession and provision for daughters
(that is, by maritagium), and the inheritance of lands granted by the heir to his
younger brothers.
1. Junioribus suis majores providerent et invenirent honori®ce necessaria juxta posse suum.
This con®rms and reinforces the tenor of the main substantive provision, the eldest
will inherit the whole patrimony. His only obligation to his cadets is to provide
them with the necessities of life. Thus stated, primogeniture was more rigorous in
Brittany than in neighbouring regions; only in England was the law as unequi-
vocal.50 In Normandy, the eldest inherited the barony or, in the case of a knight,
the `feodum lorice', but if there was any residue in the estate, this would be shared
between the younger sons.51 In Anjou, only baronies descended undivided to the
eldest son; in the case of succession to other lands held by feudal tenure, the eldest
was entitled to only two-thirds, his cadets sharing the remaining one-third.52 In
these provinces, younger sons could share in the inheritance in many cases; they

Preuves, col. 711. For Harvey Agomar, see above, pp. 102±3.
48

For example, Guethenoc I d'Ancenis (¯.1070) gave the revenues of a toll, `ex bene®cio meo', to
49

his younger brother, Hoderic `Barbotin' (Preuves, col. 437).
G.D.G. Hall (ed.), Tractatus de Legibus et Consuetudinibus Regni Angli± qui Glanvilla vocatur,
50

London, 1965, book vii. 3, `Secundum jus regni Anglie primogenitus ®lius patri succedit in
totum, ita quod nullus fratrum suorum partem inde de jure petere potest' (p. 75).
`Coutume de Normandie', chs. viii, paras. 2±5 (pp. 8±9) and lxxxiii, paras. 4±6 (p. 92).
51

`Coutume de Touraine-Anjou', pp. 15±16, 22.
52


194
Appendix 1
were only excluded if the estate consisted of a single barony or `feodum lorice'. In
such cases, as in the Assize, the eldest son was obliged to provide for his siblings,
providing his brothers with a reasonable living and his sisters with dowries.53
2. Quae tunc juniores possidebant in terris sive denariis tenerent quamdiu viverent, heredes
quidem terras tenentium possiderent illas imperpetuum. Heredes vero denarios et non terras
habentium, post patres non haberent.
This clause is rather ambiguous due to the economical language of the text.54 In
my opinion, it applies to dispositions made inter vivos by fathers to their sons. It ®rst
provides that cadets may enjoy anything they possess in the patrimony, whether in
land or revenues, for their lives. At the death of a cadet, the lands (and by
implication any revenues, since these derived from land) will revert to the heir and
to the patrimony. This was no doubt designed to limit the fragmentation of
baronies by the creation of hereditary apanages. Before 1185, the legal position of
an apanage after the death of the younger son may have been uncertain. In the
cases of divided baronies discussed above, the `apanage' was inherited by the cadet's
son and was permanently lost to the barony. This clause would have prevented this
result. Henceforth, grants of lands to younger sons would only create life-interests.
The second part of the clause addresses inter vivos dispositions to eldest sons, but is
even more opaque. My interpretation is that it is assumed that land received by the
eldest son from the patrimony during his father's life is regarded as an `advance' on
his inheritance, and he will simply retain it after his father's death. For this reason,
the clause only expressly refers to revenues, which are to be treated differently. After
his father's death, the heir may be required to give up any revenues he previously
enjoyed from patrimonial lands to make provision for his sisters and younger
brothers, for instance, in the circumstances provided for in clause 5, below.
3. Si terra majorum devenerit in baillium, frater major post eum baillium habebit, quod si
fratrem non habuerit, ille de amicis bailliam habeat cui decedens cum assensu domini sui eam
voluerit commendare.
`Baillium' is the expression used here for wardship. The patrimony would have
become `in baillium' if the heir was a minor, or, in the case of an heiress,
unmarried. This clause dictates that, in these circumstances, the guardian should be
the eldest of the deceased's brothers. This stipulation of the paternal uncle as
guardian appears to be consistent with existing Breton custom. I am aware of few
cases occurring before 1185 where a situation of `baillium' can be identi®ed at all,
but of those where the guardian can be identi®ed, there certainly are instances of
wardship by the deceased's brother. Conan II, count of Rennes, was in the
guardianship of his paternal uncle, Eudo, the younger brother of Duke Alan III,
from 1040 to around 1047. Geoffrey Boterel III, lord of Lamballe (c.1164±c.1177),
may have been in the guardianship of his paternal uncle, Stephen, since before

`Coutume de Normandie', ch. viii, para. 4 (p. 9) and ch. lxxxiii, para. 6 (p. 92); `Coutume de
53

Á
Touraine-Anjou', p. 22. See J. Yver, `Les caracteres originaux du groupe de coutumes de l'ouest
de la France', RHD 30 (1952), 18±79 at 41±7.
Á

J. Auberge (ed.), Le Cartulaire de la Segsneurie de Fougeres, connu sons le nom de cartulaire d'Alencon,
Ë
54

Rennes, 1913, p. 57, suggests that it was intended to apply to cadets who were holding land or
rents of their patrimony at the time the Assize was made, to avoid uncertainty as to whether the
Assize operated retrospectively. Planiol omits any discussion of this clause.

195
The `Assize of Count Geoffrey'
Geoffrey had his own seal he con®rmed a grant to Saint-Aubin-des-Bois using
Stephen's seal.55
This custom is remarkable in that it contrasts with all the neighbouring regions.
In England and Normandy, the only proper guardian was the lord of whom the
inheritance was held.56 In Maine and Anjou, the heir's mother had wardship.57
As the different custom of Anjou indicates, it was not merely the exercise of
strong seignorial authority in England and Normandy that dictated against wardship
by the deceaseds' brother. The `Coutume de Normandie' explains in rather
gruesome terms how his relations may not have the infant heir's best interests at
heart since they were potentially his heirs, while, since his lord could never be his
heir, the infant's best interests would be served in the custody of his lord. The
`Coutume de Touraine-Anjou' shows a similar concern, although this custom
trusted in the strength of maternal affection to protect the heir, even from a
stepfather. If both father and mother were dead, the custom prescribed a `double-
baillium', in which custody of the inheritance and of the heir's person was divided
between his paternal and maternal relations.58 Since there was a clear rationale for
the Norman custom, if the Angevin regime had been intent on reforming the
Breton law of succession on Anglo-Norman lines, it is dif®cult to see why the
custom of wardship by the heir's paternal uncle should have been con®rmed in
Brittany in 1185. It is therefore doubly signi®cant that, in the wardship provision,
the Assize preserves a distinctive Breton custom.
This clause further provides that, if the deceased is not survived by a brother,
then wardship may go to anyone nominated by the deceased, subject to the
consent of his lord. Presumably, if the deceased had not made any such provision,
the lord could appoint a custodian (including himself ) at his own discretion. It
appears that this is consistent with existing custom insofar as, lacking brothers, the
deceased could nominate anyone he wished. In 1162, John de Dol nominated
Á
Ralph de Fougeres guardian of his infant daughters and the barony of Combour
without, apparently, obtaining the consent of Duke Conan IV. Henry II showed
his disapproval of this `custom' by removing Ralph from his charge in 1164. The
Assize of 1185 thus re¯ects a compromise; the Bretons could continue their custom
of guardianship by the deceased's brother, but in default of a brother, the lord's
consent to the choice of guardian was required. The requirement of the lord's
consent was an innovation, at least in respect of baronial estates. It represented an
increase in ducal authority, because it gave the duke the right to veto the deceased's
choice of guardian, nominate the guardian or even to assume the `baillium' himself,
in appropriate circumstances. An early instance of this is Duchess Constance having
the `baillium' of Harvey, prepositus of Lamballe at some time between 1186 and
1200.59 The clause was equally valuable to the barons, giving them the same rights
in respect of their own tenants, if they did not enjoy them already.




Chedeville and Tonnerre, La Bretagne feodale, pp. 41±2; AE, iii, `Saint-Aubin-des-Bois', nos. v
55

and ix.
Hall (ed.) Glanvill, book vii, 9 (p. 82); `Coutume de Normandie', ch. xi (p. 10±11), ch. lxvi
56

(pp. 60±1), ch. lxxxiv (p. 94). See Yver, `Coutumes de l'ouest', 40±1.
`Coutume de Touraine-Anjou', pp. 19, 43±4 (widow's wardship of her unmarried daughters).
57

`Coutume de Normandie', ch. xi, para.1 (pp. 10±11); `Coutume de Touraine-Anjou', p. 79.
58

`Communes petitiones britonum', p. 101.
59


196
Appendix 1
4. In ®liabus vero qui majorem habuerit, terram habeat, et juniores maritabit de terra ipsa ad
consilium domini et propinquorum generis.
This clause provides, in effect, that in default of sons the eldest daughter will inherit
the patrimonial estate. It is not an exaggeration to say that the Assize treats male and

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