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far as I can read the evidence, is that both in England and Normandy private war was always a latent possibility and could not be treated as a crime in itself. In both countries it was met by the reservation of certain persons, places and crimes as subject to the jurisdiction of the sovereign. Owing to the peculiar turn which feudalism took in England, this proved to be sufficient, until a new law of conspiracy and treason developed. In Normandy, feudal theory was too strong. Normandy was not an island, and feudal obligations crossed each other in a bewildering manner.1 Hence, though the rights of the duke did not differ from the rights of the king in England, special measures were necessary. It can hardly be maintained that these special measures, already well advanced by 1091, prove a comparative weakness in the authority of the duke.
NOTE B. PARAGE IN ENGLAND AND NORMANDY. There are two marks of tenure by parage.
In the first place, the lands which are divided among brothers are held of the eldest brother by the rest. The eldest is sole lord, responsible to the overlord and the outside world for the whole estate. In the second place, the younger brothers do not pay homage to the eldest of whom they hold their lands. If land held in parage descends to others, the lord (i.e., the eldest brother or his successor) may in certain circumstances demand homage. In Normandy the rule was that homage was not required until the fourth grade
1. Below p. 420.
3. Coutume de Touraine-Anjou, c. lxviii (Viollet, Etablissements de Saint Louis, jii, 44, 45); Guilhiermoz, Essai sur l'origine de la noblesse, pp. 203-220.
4. Statuta et consuetudines Normannie, c. xlv (Tardif, Coutumiers de Normandie, I, I, 38). * Frater non debit servicium fratri suo, nec cognatus germanus cognato germano, nec aliquis de cognatione donec perventum fuerit [ad quartum gradum] de genesi, et tunc, juxta modum tenementi et morem patrie, super terram eius servicium imponetur.' Later the law was extended to the seventh degree : Génestal, p. 28.
had been reached in relationship. Mainly for this reason parage was, wrongly, derived from par: the brothers were equal, and therefore could not be expected to do homage to each other, even though they held their lands of the eldest brother. The advantage of the system of parage lay in the fact that the holding which was divided remained a unity for purposes of service and was represented by the eldest brother, while subinfeudation of brother to brother, and so on, was avoided. 1
In England after the Norman Conquest there was only one case in which this form of succession was possible, i.e., in the case where daughters alone survived. Where sons survived, English law at the end of the twelfth century recognised primogeniture: there was no division of a feudal tenement. If the tenement was not held by military service, the succession in England was regulated by local custom.2 It has been pointed out that, as a matter of fact, nearly all tenure in England was military tenure. For all practical purposes, therefore, parage did not exist in England, save for a short time in the case of female succession to military tenements and some free socage tenements—a practice which broke down during the thirteenth century.4 M. Guilhiermoz generalises too widely when he states that Glanvill knew and Bracton did not know or recognise tenure by parage.5
It might, however, be contended that the existence of tenure by parage to such a limited extent as this was a
1. Guilhiermoz, p. 204. 2. Glanvill, De legibus Angliae, lib. vii, c. 3. If the hereditas of the free sokeman was not divided of old among the sons, “tunc primogenitus secundum quorundam consuetudinem totam hereditatem obtinebit, secundum autem quorundam consuetudinem postnatus filius haeres est."
3. Pollock and Maitland, History of English Law (second edition), ii, 269. 4. Ibid, ii, 276–278.
5. Guilhiermoz, p. 219, note ". The passage in Glanvill to which Guilhiermoz refers deals only with co-heiresses.
survival from the period when primogeniture was not insisted upon in military tenure in England and that parage was more widespread in earlier days. This contention gains force from the fact that, as Domesday Book shows, tenure in paragio was well known in England before the Norman Conquest.
Several objections to this view may be urged.
(1) Tenure in paragio, as it appears in Domesday Book,
is always referred to as a thing of the past (tempore Edwardi). Moreover, it describes a kind of tenement rather than a rule of tenure. Certain lands were regarded as a whole, were held by brothers as pares, or if there was only one heir, were described as held of the lord in paragio. This last fact, though it does not disprove the view that Anglo-Saxon parage was identical with continental parage, 1 shows that the practice was confined to certain tenements.
(2) The Leges Henrici, and the chroniclers testify to
the early practice of primogeniture in England after the Conquest, so far as the indivisibility of the knights' fee or chief tenement was concerned. ?
1. That Anglo-Saxon parage is not essentially different from continental parage is clear from a comparison of the passages collected in Vinogradoff, English Society in the Eleventh Century, pp. 246–250. M. Guilhiermoz has contested this view, as stated by Maitland, on the ground that single persons often hold in paragio of the king, whereas in true parage brothers hold of the eldest. But most of the cases deal with brothers holding pariter, and if some holdings were indivisible, and held by parage, they would continue to do so even if only one brother survived to hold them. At the same time I suggest that the extracts show that the tenure was peculiar to particular holdings. M. Guilhiermoz acutely traces these to the indivisible holdings of Alfred's law (p. 215, note).
2. Pollock and Maitland, ii, 267, 268.
(3) Where primogeniture was not practised, complete
division seems to have been the rule. Fragments
of knights' fees were held directly of the lord, etc. If it is uncertain whether parage ever existed, except in the case of inheritance by females, in England after 1066, it is equally uncertain to what extent it existed in Normandy before the reign of Henry II. M. Guilhiermoz is satisfied that the practice was not Norman. On the other hand, the Normans evidently understood what parage was, when they found it in England, and gave it a continental name. A reference to parage exists in an agreement of the late eleventh century between William Painel and the abbot of Mont St. Michel. If, however, parage had been extensive in Normandy it is strange that it was not continued in England. On the whole the view that Henry II. made the system universal, and that the passages in the custumal which describe what seems to be parage and what was certainly called parage in the thirteenth century, are fragments of late edicts, seems to be well founded. 2 It is clear that Henry insisted upon the impartibility of the barony, the fee of the hauberk and the serjeanty. Later Norman parage, as M. Génestal has shown, was really concerned with the succession to several impartible holdings; therefore it is reasonable to suppose that Henry's edict formed the law of parage. The similar policy of Count Geoffrey in Brittany (1185) implies the joint operation of primogeniture and parage.
It is more difficult to say whether the custom of succession before the changes of Henry II was more than that of simple division tempered by the voluntary sacrifice
1. Round, Calendar, no. 714; edited in full by Haskins, English Historical Review, xxii, 647. After arranging for the service of Hugh de Bricavilla the agreement proceeds : "et nepos illius Hugonis similiter faciet si in parage terram suam tenuerit, secundum hoc quod tenebit.” This charter was unknown to M. Guilhiermoz.
2. Guilhiermoz, p. 214.
of their shares by co-heirs. M. Guilhiermoz is confident that the rule was division with homage to the eldest.1 He infers this from a chapter in the custumal of Normandy, and a clause in the assize of Count Geoffrey for Brittany. According to these an elder brother who had received homage for the lands of his brothers could not succeed to them as heir. But the trend of English law at this period shows rather that this regulation was an 'equitable temperament of primogeniture.'3 If a man gave lands to his younger son in return for homage, this rule prevented the reunion of the fiefs in the future after the succession of the eldest son.
In Normandy the rule shows a conscious bias towards parage (i.e., the equality of the sons), since the bar to the succession of the eldest did not operate in the case of parage. In England, where a whole system of equitable jurisprudence formed about the universal practice of primogeniture, this rule became involved in the general maxim that the lord cannot be the heir; and in order to maintain the essential unity of their fiefs, fathers who granted lands to their younger sons, refused homage. They introduced a voluntary form of parage as a legal fiction. In Normandy, where primogeniture was, except in Caux, less popular, the rule against the succession of a man who had received the homage of his brother must have worked directly in favour of parage. It does not seem to be sufficient, in the absence of other evidence, to justify the view of M. Guilhiermoz that homage to the eldest was the normal rule of succession in Normandy before the policy of Henry II. was effected.
1. Essai sur l'origine de la noblesse, p. 214, note ".
2. “Se li freres done a son frere, ou la suer a sa suer, etc." Statuta et consuetudines, c. xxxiv (Tardif, I, I, 28). Note that a voluntary and occasional act is implied.
3. History of English Law, ii, 293, and note. 4. See Génestal, p. 19.