IN ®LIABUS VERO QUI MAJOREM HABUERIT, TERRAM HABEAT, ET JUNIORES MAR...
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
female succession as the same in principle. The eldest son, as heir to the whole
patrimony, must provide for his cadets (`juniores'), male and female. The eldest
daughter, as heiress, must provide for the marriage of her younger sisters, which
amounts to the same thing. The difference is that it is not the heiress herself who
disposes of her inheritance, but her husband. Implicit in this clause is an assumption
that, whatever the age of the eldest daughter, the inheritance will be `in baillium'
unless or until she is married. This was the case with Duchess Constance, and with
Isolde, daughter of John de Dol. In both cases, though, the heiress was an infant at
the death of her father, and was married as soon as she was of marriageable age. The
`age of majority' for heiresses was thus the age of marriage.
60
Again, this custom is different from the neighbouring regions. In England,
Normandy and Anjou, in default of a male heir, the inheritance would be shared
equally between the deceased's daughters. The eldest daughter had priority only in
that she received the family's dwelling-house and its curtilage, and that the eldest
daughter's husband would do homage for the whole estate. The younger daughters
and their husbands would hold their portions of him, but in parage, without
rendering homage for them.
61
In England, at least, parceny between heiresses was
introduced in 1130, the pre-existing customary law on female succession being less
certain, with at least the possibility of primogeniture.
62
In Brittany, the customary law before 1185 seems to have followed the principle
of female primogeniture. The succession of the barony of Combour after the death
of John de Dol in 1162 is an example of this. John left two infant daughters, Isolde
and Dionysia, yet the barony passed undivided to Isolde.
63
I have no examples of
female succession to knights' fees before1185 which provide any information about
the fate of younger daughters, so there is insuf®cient evidence to determine
whether primogeniture was in operation before the Assize. Two examples from
soon after 1185 indicate that primogeniture had been adopted, if it was not already
the custom. One is the succession to the lands of William Spina, a prominent
Combour tenant. William, who died around 1200, was succeeded by the elder of
his two daughters, Juliana, and her husband, William de Montborcher.
64
In 1208, a
dispute was determined by William, seneschal of Rennes, between the two
60
Cf. Hall (ed.),
Glanvill, books
vii.12 (pp. 85±6) and
ix.4 (p. 108).
61
Hall (ed.)
Glanvill, book
vii.3 (p. 106); `Coutume de Normandie', ch.
ix, para. 1 (p. 9) and ch.
xiii
(pp. 13±4); `Coutume de Touraine-Anjou', p. 17.
62
J.C. Holt, `Feudal society and the family in early medieval England: IV, the Heiress and the
Alien',
Transactions of the Royal Historical Society, 5th series, 35 (1985), 1±28 at 9±11, 19±20.
63
In an early charter of Hasculf de Subligny, lord of Combour, all of the benefactions made by
John de Dol to La Vieuville are con®rmed by Hasculf, his wife Isolde and her sister, Dionysia
(BN ms fr. 22325, p. 523).
64
In 1198, William had two daughters, Juliana and Olive, by his ®rst wife and an infant son by his
second wife (BN ms latin 5476, p. 95). Presumably the son did not survive infancy. In an
undated charter, William's younger brother Geoffrey recorded that William's land was divided
between Geoffrey himself and Juliana (`terra ejus partita est inter me et primogenitam suam . . .
`) (BN ms latin 5476, pp. 120±1, ms fr. 22325, pp. 533±4). Although this case is an example of
daughters of Harvey de
Lanceyo. The date of Harvey's death is unknown and could
have been before 1185. The younger daughter, Juliana, claimed that the eldest,
described in the seneschals' charter as Harvey's heiress, had assigned to her the right
to half of the property in question in the
curia
of Saint-Melaine de Rennes. The
records of the
curia
were searched and no record of this transaction could be found.
Juliana was then permitted to produce witnesses, but their evidence was deemed
insuf®cient and the claim was dismissed.
65
This case demonstrates that the eldest
daughter was presumed to be the heiress, and if a cadet claimed a share of the
patrimony, the onus was upon her to prove the exceptional circumstances which
gave rise to her entitlement.
Since parceny was an Anglo-Norman innovation in England, it is again
signi®cant that Duke Geoffrey did not follow this precedent in enacting the Assize.
Instead of imposing Anglo-Norman law, he sanctioned the contrary Breton custom
of female primogeniture.
In the Assize, the eldest daughter's enjoyment of the whole patrimony is made
subject only to the obligation to `marry' any of her younger sisters with land from
the estate. Again, such dispositions by way of
maritagium
must be made with the
counsel of the lord and of the close relatives. The disappearance from seignorial
acta
of Dionysia, the younger daughter of John de Dol, probably indicates that she
received a
maritagium
from the barony of Combour,
66
ending any further claims she
might have had in the barony.