Montesquieu

It is said in the books of fiefs that when the empe­ror Conrad left for Rome, the fidè­les who were in his ser­vice asked him to make a law so the fiefs that pas­sed down to chil­dren should also pass on to grand­chil­dren, and that the man whose bro­ther had died without legi­ti­mate heirs could suc­ceed to the fief which had belon­ged to their com­mon father.1 This was gran­ted.

They add, and it must be remem­be­red that those who speak were living in the time of the empe­ror Frederick I,2 that the ancient juris­consults had always held that the suc­ces­sion of fiefs in a col­la­te­ral line did not go beyond full bro­thers, although in modern times it had been exten­ded as far as the seventh remove, as by the new right it had been car­ried in direct line ad infi­ni­tum.3 That is how Conrad’s law was gra­dually exten­ded.

All these things unders­tood, a sim­ple rea­ding of the his­tory of France will show that the per­pe­tuity of fiefs was intro­du­ced ear­lier in France than in Germany. When the empe­ror Conrad II began to reign in 1024, things were still in Germany as they already were in France under the reign of Charles the Bald, who died in 877. But in France, since the reign of Charles the Bald, such chan­ges were made that Charles the Simple found him­self in no posi­tion to dis­pute with a foreign house his incontes­ta­ble rights to the empire ; and that, finally, at the time of Hugh Capet, the rei­gning house, strip­ped of all its domains, could not even main­tain the crown.

Charles the Bald’s weak­ness of mind meant in France an equal weak­ness in the state. But as Louis the German his bro­ther and some of those who suc­cee­ded him had grea­ter qua­li­ties, the strength of their state was main­tai­ned for lon­ger.

Nay, per­haps the phleg­ma­tic humor, and if I dare say it the immu­ta­bi­lity of the spi­rit of the German nation, stood up for lon­ger than that of the French Nation against this dis­po­si­tion of things that cau­sed fiefs, as if by natu­ral ten­dency, to be per­pe­tua­ted in fami­lies.

I add that the king­dom of Germany was not devas­ta­ted, and so to speak obli­te­ra­ted, as the French one was, by that par­ti­cu­lar sort of war brought against her by the Normans and the Saracens. There was less wealth in Germany, fewer cities to sack, less coast­line to sur­vey, more mar­shes to cross, and more forests to pene­trate. Princes who did not see the state about to col­lapse at every ins­tant had less need of their vas­sals, in other words, were less depen­dent on them. And it seems likely that if the empe­rors of Germany had not been obli­ged to go get them­sel­ves crow­ned in Rome and to make conti­nual expe­di­tions into Italy, their fiefs would have pre­ser­ved their ori­gi­nal nature at home for lon­ger.

Cum vero Conradus Romam proficisceretur, petitum est a fidelibus qui in ejus erant servitio, ut lege ab eo promulgatâ, hoc etiam ad nepotes ex filio producere dignaretur, et ut frater fratri sine legitimo hærede defuncto in beneficio quod eorum patris fuit, succedat (book I of fiefs, tit. 1).

Cujas has solidly proven it.

Sciendum est quod beneficium advenientes ex latere, ultra fratres patrueles non progreditur successione ab antiquis sapientibus constitutum, licet moderno tempore usque ad septimum geniculum sit usurpatum, quod in masculis descendentibus novo jure in infinitum extenditur (ibid.).