Montesquieu

When fiefs were revo­ca­ble or for life, they were a part of the poli­ti­cal laws only ; that is why in the civil laws of those times there is so lit­tle men­tion of the laws of fiefs. But once they became here­di­tary, and could be given, sold, and bequea­thed, they were part both of the poli­ti­cal laws and of the civil laws. The fief consi­de­red as an obli­ga­tion for mili­tary ser­vice was an aspect of poli­ti­cal law ; consi­de­red as a type of pro­perty that could be tra­ded, it was an aspect of civil law. This is what gave birth to the civil laws rela­tive to fiefs.

Fiefs having become here­di­tary, laws bea­ring on the order of suc­ces­sions had to be rela­tive to the per­pe­tuity of fiefs. Thus was esta­bli­shed, des­pite the pro­vi­sion of Roman law and of the Salic law,1 this rule of French law : pro­pres ne remon­tent point.2 The fief had to be ser­ved, but a grand­fa­ther or a great-uncle would have been bad vas­sals to give to a lord : thus this rule at first applied only to fiefs, as we learn from Boutillier.3

Fiefs having become here­di­tary, the lords, who had to see that the fief was ser­ved, requi­red that daugh­ters who were to suc­ceed to the fief, and I think some­ti­mes the males, should not marry without their consent,4 and so mar­riage contracts became for nobles a feu­dal dis­po­si­tion and a civil dis­po­si­tion. In such an act, conclu­ded befire the lord’s eyes, they made pro­vi­sions for the future suc­ces­sion, with the inten­tion that the fief could be ser­ved by the heirs ; and so it was nobles alone who were first at liberty to dis­pose of future suc­ces­sions by mar­riage contract, as Boyer5 and Aufrerius6 have obser­ved.

It is need­less to say that redemp­tion by one of the lineage,7 based on the ancient right of fami­lies, which is a mys­tery of our ancient French juris­pru­dence which I have not the time to deve­lop, could apply with res­pect to fiefs only when they became per­pe­tual.

Italiam, Italiam…8

I close the trea­tise on fiefs where most authors have begun it.

Under the heading of allods. [“[…] c’est-à-dire qu’en pays coutumier les ascendants ne succèdent à leurs descendants que dans les meubles, acquêts, et conquêts immeubles, et non pas dans les propres.” Claude-Joseph de Ferrière, Dictionnaire de droit et de pratique, Paris : Brunet, 3rd edition, 1749, t. II, p. 614.]

Book IV, De feudis, tit. 59. [I.e., properties do not revert to a previous generation.]

Somme rurale, book I, tit. 76, p. 447.

Following an ordinance of St. Louis in 1246, to confirm the customs of Anjou and the Maine, those who have the trusteeship of a daughter hier of a fief will give an assurance to the lord that she will be married only with her own consent.

Decision 155, no. 8 and 204. No. 38.

In Capelle Tholose, decision 453.

[Retrait lignager se dit quand un lignager retire des mains d’un tiers acquereur un ancien propre de sa famille vendu par son parent. (Furetière).]

[Æneid, book III, line 523, representing the cry of the voyager who has first spied the coast of Italy.]