Montesquieu
 

XXXI.28 On the nature of fiefs since the reign of Charles the Bald

I have said that Charles the Bald, when the pos­ses­sor of a high office or a fief left a son when he died, wan­ted the office or fief to be given to him. It would be dif­fi­cult to fol­low the pro­gress of the abu­ses that resul­ted from this, and of the exten­sion that was given to this law in each coun­try. I find in the books of fiefs that at the begin­ning of empe­ror Conrad II’s reign, the fiefs in the coun­tries of his domi­na­tion were not pas­sed down to grand­sons1 ; they only pas­sed to that child of the last pos­ses­sor whom the lord had cho­sen2 ; thus fiefs were given by a sort of elec­tion which the lord made among his chil­dren.

I have explai­ned in chap­ter XVII of this book how, in the second dynasty, the crown came to be in cer­tain res­pects elec­tive and in cer­tain res­pects here­di­tary. It was here­di­tary because the kings were always cho­sen from that dynasty, it was here­di­tary also because the chil­dren suc­cee­ded ; it was elec­tive because the peo­ple chose among the chil­dren. As things always come about lit­tle by lit­tle, and a poli­ti­cal law always has some connec­tion to ano­ther poli­ti­cal law, they fol­lo­wed3 for the suc­ces­sion of fiefs the same spi­rit they had fol­lo­wed for the suc­ces­sion to the crown. Thus fiefs pas­sed to the chil­dren both by right of suc­ces­sion and by right of elec­tion ; and each fief came to be, like the crown, elec­tive and here­di­tary.

This right of elec­tion in the per­son of the lord was no lon­ger cur­rent4 in the time of the authors of the books of fiefs,5 which is to say under the reign of the empe­ror Frederick I.

Book I, tit. 1.

Sic progressum est, ut ad filios deveniret in quem Dominus hoc vellet beneficium confirmare, ibid.

At least in Italy and in Germany.

Quod hodie ita stabilitum est, ut ad omnes æqualiter veniat, Book I of the Fiefs, tit. 1.

Gerardus Niger and Aubertus de Orto.