SI TERRA MAJORUM DEVENERIT IN BAILLIUM, FRATER MAJOR POST EUM BAILLI...

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

53

`Coutume de Normandie', ch.

viii, para. 4 (p. 9) and ch.

lxxxiii, para. 6 (p. 92); `Coutume de

Touraine-Anjou', p. 22. See J. Yver, `Les caracteÁres originaux du groupe de coutumes de l'ouest

de la France',

RHD

30 (1952), 18±79 at 41±7.

54

J. Auberge (ed.),

Le Cartulaire de la Segsneurie de FougeÁres, connu sons le nom de cartulaire d'AlencËon,

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.

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

Ralph de FougeÁres 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