The same subject continued.
WHEN the fiefs were either precarious or for life, they seldom had 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 were become hereditary, when there was a power of giving, selling, and bequeathing them, they had 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 were become hereditary, the law relating to the order of succession must have been relative to the perpetuity of fiefs. Hence this rule of the French law, estates of inheritance do not ascend, was established in spite of the Roman and Salic laws. 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; therefore this rule took place at first only in regard to the feudal tenures, as we learn of Boutillier.
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 a feudal and a civil regulation. In an act of this kind under the lord’s inspection, regulations were made for the succession, with a 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 and Aufrerius have justly observed.
It is needless to mention that the power of redemption, founded on the old right of the relations, a mystery of our ancient French jurisprudence which I have not time to develop, could not take place with regard to the fiefs, till they were become hereditary.
Italiam, Italiam . . . . . . .
I finish my treatise of fiefs at a period, where most authors commence theirs.