Slike strani
PDF
ePub

some countries, held by the feudal obligation, and treated as a fief. Whether money thus held, be, strictly speaking, a fief, has been the subject of much discussion. Thomasius, whose writings, in the course of this inquiry, have been found highly valuable, ticats a pecuniary feud as a chimera, and seems inclined to doubt its existence. Sir Thomas Craig thus expresses himself on this question: "The dominium directum of a fief must necessarily remain in the lord; the dominium utile must necessarily be granted to the feudatory. When the dominium utile of a moveable is granted, the profits of it must necessarily belong to the usufructuary. But the profits of a moveable proceed from the use which is made of it. Now the use which is made of a moveable, either consumes it or not. In the first case, the fief is necessarily extinguished; for it is impossible that a moveable in continual use should not, by that very use of it, be consumed, and the lord thereby deprived of it, without any fault on his part, against his will, and even without his knowledge. But if the moveable be not consumed by use, but may be preserved, the vassal has no profit from it. I know many writers of great authority hold, that there may be a fief of moveables, by way of analogy to an usufruct of those things which are consumed by use, where the fruit and the profits belong to the vassal, the propriety remains with the lord. But in this case, the propriety (to use the expression), is not of the individual thing, but of a thing of the same genus or species. And therefore Cujas justly observes, that, properly speaking, these are not fiefs. For natural reason cannot be altered by civil power. We are therefore of opinion, that there cannot be a fief, though there may be a quasi fief of a moveable. But even a quasi fief is not allowed by the law of Scotland. For though stipulations are frequent amongst us, that, for the use of money, a certain yearly sum, or a certain quantity of grain be allowed, yet this should not be honoured with the name of fief, as he to whom the payment is to be made, can never be said to die seized of the fee of that money.' But at the first establishment of fiefs, land or immovable property, in the narrowest sense of that word, was the subject of a fief. That this species of property, to the utter exclusion of every species of moveables, should be a point of connection between the sovereign and the subject, is another distinctive mark of feudality. To this it is owing, that while in this country, and in every other country, whose jurisprudence is of a feudal extraction, the difference between real and personal, or immovable and moveable property, is so strongly marked, and the legal qualities and incidents of the two species of property, are, in so many important consequences, utterly dissimilar, the distinction between them in the civil law, except in the term of prescription, is seldom discoverable.

3. The remaining point of difference between the feudal polity and the polity of other states is, the nature of the relation between the chief and the vassals. This is particularly distinguishable by six circumstances: 1stly, The relation between them was purely of a military nature; 2dly, Behind the sovereign and his immediate feudatories there followed a numerous train of arrere vassals, or sub-feudatories, between whom and the first or immediate feudatory there subsisted a relation nearly similar to that between him and the first or chief lord; 3dly, This relation was territorial, and was not considered to arise from the general allegiance due from a subject to a sovereign, but from an implied obligation

Vol. VI.-2

supposed to be annexed to the tenure of the fee; 4thly, The right of administering justice was an appendage of this military relation, and originally commensurate to it in its territorial extent; 5thly, The lord was not allowed to alien the fee without the tenant's consent, nor the tenant, without the consent of his lord; and 6thly, Though in point of dignity, of rank, and of honour, the lord, according to the ideas of those times, enjoyed a splendid pre-eminence over his vassals, his power over them was, comparatively speaking, extremely small. Thus, therefore, the supposed preservation of the dominium directum, or real ownership, to the lord, after he had parted with the beneficial ownership, or dominium utile, to the tenant; the exclusion of moveable property, from serving either as the sign or the subject of the relation between the sovereign and the feudatory; and the military nature of this relation, including in it the other circumstances before noticed, should be considered as three principal points which distinguish the law of feuds from every other law. To these the book of fiefs, and Cujas, and after them sir Henry Spelman, add the hereditary nature of fiefs; and it is observable, that Littleton, in his explanation of the word fee, says it is the same as an inheritance, without adverting to any other quality of a fief. But, as fiefs were not allowed to go in a course of descent, till after a considerable period of time, from their first introduction, and, as they might always be granted for a less estate, than an estate of inheritance, there seems to be no reason to suppose this descendible quality is essential to their nature. We have, therefore, omitted it.

Besides these, (which may be considered as the essentials of a fief,) there are qualities, which every fief should possess, to answer the notions originally entertained of this species of property. Thus, fiefs should be granted without price; to persons duly qualified; and the service should not be fixed to any particular mode or time of service. A fief possessing the essential and secondary qualities, we have noticed, was considered to be a proper fief. The absence of any of the qualities, reckoned essential, necessarily precluded the feudal tenure. But any, or all of the qualities reckoned merely proper, might be dispensed with, at the discretion of the parties, without precluding the tenure, according to the maxim, Modus et conventio vincunt legem. This introduced the distinction between proper and improper fiefs. But, wherever the feudal tenure was admitted, the fief was presumed to be a proper fief, till the contrary was shown, and it could only be shown by referring to the original investure. Thence the maxim, in these cases, Tenor investitura est inspiciendus.

SECTION 3. LIVERY OF SEISIN. The character and importance of livery of seisin in the fedual system of land ownership has been thus described by a recent author: “It is absolutely essential—if we leave out of account certain exceptions that are rather apparent than real—that there should be a livery of seisin. The doner and the donee in person or by attorney must come upon the land. There the words of gift will be said or the charter, if there be one, will be read. It is usual, though perhaps not necessary, that there should be some further ceremony. If the subject of gift be a house, the donor will put the hasp or ring of the door into the donee's hand (tradere per haspam vel annuluum); if there be no house, a rod will be transferred (trudere per fustem

We may

et baculum) or perhaps a glove. Such is the common and the safe practice; but it is not indispensable that the parties should actually stand on the land that is to be given. If the land was within their view when the ceremony was performed, and if the feoffee made an actual entry on it while the feoffor was yet alive, this was a sufficient feoffment. But a livery of seisin either on the land or within the view was necessary. Until such livery had taken place there was no gift; there was nothing but an imperfect attempt to give.

for

purposes of analysis distinguish, as Bracton does, the donatio from the traditio the feoffment from the livery, the declaration of the donor's will from the induction of the donee into seisin; but in law the former is simply nothing until it has been followed by the latter. The donatio by itself will not entitle the donee to take seisin; if he does so, he will be guilty of disseising the donor. Nor does the donatio by itself create even a contractual right and bind the donor to deliver seisin. The charter of feoffment, which professedly witnesses a completed gift, will not be read as an agreement to give. Until there has been livery, the feoffee, if such we may call him, had not even ius ad rem. Furthermore, the courts of Bracton's day are insisting with rigorous severity that the livery of seisin shall be no sham. Really and truly the feoffor must quit possession; really and truly the feoffee must acquire possession. No charter, no receipt of homage, no transference of symbolic rods or knives, no renunciation in the local courts, no ceremony before the high altar, can possibly dispense with this, for it is the essence of the whole matter—there must be in very truth a change of possession, and rash is the feoffee who allows his feoffor's chattels to remain upon the

« PrejšnjaNaprej »