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.

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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.