31.34. 34. The same Subject continued.
When the fiefs were either
precarious or for life, they seldom bore a relation to any other than
the political laws; for which reason in the civil institutions of those
times there is very little mention made of the laws of fiefs. But when
they became hereditary, when there was a power of giving, selling, and
bequeathing them, they bore a relation both to the political and the
civil laws. The fief, considered as an obligation of performing military
service, depended on the political law; considered as a kind of
commercial property, it depended on the civil law. This gave rise to the
civil regulations concerning feudal tenures.
When the fiefs became hereditary, the law relating to the order of
succession must have been in relation to the perpetuity of fiefs. Hence
this rule of the French law, estates of inheritance do not ascend,
[220]
was established in spite of the Roman and Salic laws.
[221]
It was
necessary that service should be paid for the fief; but a grandfather or
a great-uncle would have been too old to perform any service; this rule
thus held good at first only in regard to the feudal tenures, as we
learn from Boutillier.
[222]
When the fiefs became hereditary, the lords who were to see that
service was paid for the fief, insisted that the females who were to
succeed to the feudal estate, and I fancy sometimes the males, should
not marry without their consent; insomuch that the marriage contracts
became in respect to the nobility both of a feudal and a civil
regulation.
[223]
In an act of this kind under the lord's inspection,
regulations were made for the succession, with the view that the heirs
might pay service for the fief: hence none but the nobility at first had
the liberty of disposing of successions by marriage contract, as
Boyer
[224]
and Aufrerius
[225]
have observed.
It is needless to mention that the power of redemption, founded on
the old right of the relatives, a mystery of our ancient French
jurisprudence I have not time to unravel, could not take place with
regard to the fiefs till they became perpetual.
Italiam, Italiam . . .
[226]
I finish my treatise of fiefs at a period where most authors
commence theirs.
Footnotes
[220]
Book iv, de fendis, tit. 59.
[221]
In the title of allodia.
[222]
"Somme Rurale," book i, tit. 76, p. 447.
[223]
According to an ordinance of St. Louis, in the year 1246 to
settle the customs of Anjou and Maine; those who shall have the care of
the heiress of a fief shall give security to the lord, that she shall
not be married without his consent.
[224]
Decision 155, No. 8; and 204, No. 38.
[225]
In "Capell. Thol.," decision 453.
[226]
"Æneid," book iii, v. 523.
