The For said of the husband and wife “Ce sont deux causes dans une même chair." The husband had to clothe and feed and tend his wife in health and sickness, but he could correct her with moderation. It was only the life of the wife which the For protected by prescribed punishment. No divorce or separation was possible, but nullity of marriage could be pronounced where the marriage had been contracted within certain limits of consanguinity, or if the woman was exceptionally physically repellent.1 Both man and woman had their wedding portions, but that of the woman was held in greater favour than that of the man. Hers could be promised only, while his had to be properly secured. Her claim, again, in respect of dot prevailed over that of her husband's creditors. Those who provided the wife's dot could require its return, or that it should be passed on to a child. But the husband might keep any increment, and deduct out of it twenty sols for mourning for himself and six sols in respect of that for children.' When the husband had a marriage portion, he and his wife became co-partners with his father-in-law and mother-in-law. In Navarre and Soule a real co-seigneury was created. But the husband was entitled to the profits of his own and his wife's work, and all property was supposed to be free unless it was shown not to be 3 Béarn being a pays de franc-alleu, its people had to resort to no such methods as those to be found in other parts of France (communautés tacites) for preventing the domain from reverting to the lord by escheat in case of lack of heirs. The majority of the inhabitants were free men, and there were not a great many Questaus or serfs, and but few Cagots (in Navarre called Gafos)." These latter were at first lepers, who were cared for by the clerics (therefore called in the Old For Christiaas), and afterwards perhaps augmented by vagabond gipsies, who, as some suppose, came from Asia after the massacre of Tamerlane. Anyhow, the Custom of Navarre punished those who without cause called themselves lepers." One of the principal causes of litigation under the Old For was claims made by ecclesiastics against the laity to get back dimes which had got into lay hands, and also to uphold dying bequests of property given to the Church. As these dimes passed from hand For de Morlaas, Rubr. cxxxvi. Art. 357. 'If there was no other fund out of which it could come, funeral expenses for the wife could be deducted up to one-fourth of her dower, De Lagerie, Etude des Fors de Béarn, p. 23. 1 Old For. Rubr. lx. Art. 219 inf.; For de Morlaas, Rubr. Ixx. Old For. Rubr. xxxii. Art. 69; Rénov. Art. 9 inf. Faget, p. 123. to hand as did fiefs, there was here matter for frequent quarrels. Moreover, as the clergy were not entitled to their own dimes unless they performed the services of the church of the place, landowners often forcibly prevented their doing so, and forbade their tenants to attend services there. This, likewise, not unseldom resulted in litigation. There were also quarrels between ecclesiastics themselves as to their respective temporal rights. Indeed, the clergy were the richest men in Béarn, as the nobles often sold their lands to them to get the money with which to go to the Crusades. This is why they so frequently figure as litigants at this early period of Béarnais history. It is truly remarkable to what a degree of perfection even the tenure of land was reduced under the Old For. No servitude could be established which had not been rendered from time immemorial.' Peaceable possession for thirty years without any deed and with one for ten years inter præsentes and for twenty years inter absentes, constituted a good title. Debts were statute-barred after thirty years, and no claim could be made on a deed after twenty-two years. No due could be successfully claimed which was not provided for by the written contract under which land was held, unless the claimant was able clearly to show that it had been always paid, nor was a censitaire permitted to sell his land unless he could make it plain that he was allowed to do this also by his deed. Evidence of custom was generally given by one eye-witness and three hearsay ones, but this testimony could be rebutted as in other cases. Arrangements of all kinds with reference to land were held to be binding not only if made by deed, but also upon the evidence of a witness, as in the case of the land given by Saint Hippolyte at the door of the church as dower. A high degree of morality was inculcated, as, for example, that though a debt was statute-barred by thirty years, yet a claim ought to be answered even though a thousand years had passed. Also that if a censitaire had lost possession of his land he could reclaim it from his lord or from anybody else, and that all questions as to the tenure of land should be tried by the Sovereign himself, and in the district where the applicant lived. Though out of respect for the Caver who gives 6 Old For, Rubr. Ix. Art. 221, and note inf. Ibid. Rubr. Iviii. Art. 215 inf. Ibid. Rubr. Ixi. Arts. 224 and 225 inf. They assessed the amount of faith to be placed in a statement by the number of the witnesses, a thing which startles the modern psychologist. Mercier's Psychology, p. 174. Ibid. Rubr. lviii. Art. 208 inf. Ibid. Rubr. lxi. Art. 225 inf. land, a cens is enjoined on the censitaire,' the latter is allowed to leave his land, as long as he does so without fraud, and he can claim it again from the lord during a hundred years, provided he pay all the cens due in the meantime.2 This high moral tone was kept up, to some extent, especially in the boroughs and valleys which were the chief aggregations of men, by the jurats, who were municipal officers and local magistrates, and at the same time representatives of the people in the Cour Plénière. The principle of every man being tried in his own Vic was a valuable bulwark of liberty, as also an incentive to honest dealing, for the offender's roguery would be at once known to his fellows. The fact, too, that the jurat exercised, as he did, the office of witness, not only of what took place before him officially, but also of what came within his knowledge as an inhabitant, made attempts at extortion difficult; for every case to which a jurat testified was won unless a deed could be produced in opposition, except when his evidence was negative, for then it had no value, just as when it was hearsay and obtained from another jurat who might have been himself produced. Moreover, the recognition of the solidarity of the community under the principle of Voisinage, or Neighbour Right, further tended to uphold a high condition of interdependence. Indeed the Voisin was essentially a free man, in that he did but little military service, and could not be forced to make loans to the Sovereign, though able to make goods enter into Béarn and not to pay any unusual dues therefor. These societies of neighbours were further bound together in the towns through the medium of trading guilds, and in the valleys by communal rights of pasturage and suchlike privileges. A community frequently hired a tract of waste land from the Sovereign or other lord to run the cattle of the inhabitants upon, and these were sometimes guarded by herdsmen chosen among themselves, and not each flock kept by its particular owner. Furthermore, the communes themselves would occasionally band together against the Sovereign when their rights and privileges had been encroached upon, as they were by Margaret. In that case they did so at Lescar in A.D. 1391, their independence having been menaced at the death of Gaston Phoebus. Thus liberty was to some extent kept alive, notwithstanding the absolute power of the Sovereign, and fraternity promoted to a degree unknown in any other country similarly governed at that period. The Old and New Customs of Bayonne differ even more than do Old For, Rubr. lviii. Art. 213 in). 2 Ibid. Rubr. lviii. Art. 210 inf. For de Morlaas, Rubr. xxxiii. Arts. 55, 56, and 58. the Old and New Fors of Béarn. At Bayonne the introduction of the Établissements (1243) caused the growth of an aristocracy of merchants and of shopkeepers who were opposed to the popular party, the former having strong French and the latter English sympathies, as well as placed the power of nominating the mayor in the hands of the King, which power was, however, relinquished in 1297. The extent to which feudalism obtained in Bayonne is well shown by the inquest of 1311, made by the Commissioners of Edward II. for the express purpose of defining the rights of the Crown. A copy of this valuable document preserved in the Archives of Bayonne shows that all the land in Labourd dépend du Roi, though the Neighbour Right in respect of forests, wastes, and waters is expressly recognised. Feudal rules then governed all landed property there, except allodial holdings, which latter were subject to Gallic customs of equality of partition.1 And at Bordeaux, in 1261, Edward I. caused the Statutes of Bordeaux to be revised, dans le but d'effacer les articles contraires à la raison et à l'intérêt du prince." 2 SUMMARY. The Old Fors of Béarn, which were like those of Navarre and Gascony, and unlike the Fuero Judicum and Siete Partidas in being feudal and not inspired by ecclesiastics, had a great influence over the western Pyrenean district, while the eastern came under that of the Fuero Judicum. These two schools of law, then, divided between them that part of Europe in medieval times. The influence of Gaius's Institutes is plainly seen in the Fors, alongside of regulations with reference to Wehrgeld, Mundium, Dot, Equal Division of Property, and Neighbour Right.3 Whereas at first the rights of the people were effectually protected, by degrees what was formerly the Patria Potestas and the judicial power of the various Seigneurs passed into the hands of the Monarch as Seigneur Majeur. These monarchs, being absolute after the practical abolition of the Cour Majour, became often tyrannical, and on the whole the liberty of the subject got less rather than greater as time rolled on, mainly owing to all lack of control by the Cour Majour. The only hold the people had upon the Sovereign was their ability to stop supplies, as there were no nobles sufficiently strong to counterbalance the Laferrière, Hist. du Droit, ii. p. 112. Giry, Etab. de Rouen, i. p. 113; Livre des Bouillons, p. 377. See Archæological Journal (1901), vol. Iviii. No. 230, pp. 182–198. sovereign power. This reaction went on in an insulated State unaffected by outside influences, and it is for this reason that Béarn and the country round it affords so favourable a field for tracing the course of the growth of the kingly power, without, however, much decreasing the material well-being of the peasant proprietor, whose home there has always been remarkable for its great prosperity Béarn in this furnishing a useful object-lesson to other less-favoured lands. A. R. WHITEWAY. |