Id. c. 14. Du Cange, Gloss. voce Fiscus. Balus, V.1. 453. Dissert. 11. rank and condition of persons in the middle ages,) was triple to that paid for the murder of a common freeman. 24. While the German princes remained in their own country, they courted and preserved the favour of their comites, by presents of arms and horses, and by hospitality. Thus Tacitus says, Exigunt (comites) principis sui liberalitate, illum bellatorum equum, illam cruentam victricemque frameam. Nam epuli et quamquam incompti, largi tamen apparatus pro stipendia cedunt. When these princes settled in the countries they had conquered, they bestowed a part of the lands allotted to them, which were known by the name of Fiscus Regis, or Domanium Regis, on their adherents, as the reward of their fidelity. 25. These donations were originally called beneficia, because they were gratuitous; in course of time they acquired the name of feuda. The persons to whom this kind of property was given, became thereby subject to fidelity, and the performance of military services, to those from whom they received them. 26. Mons. Bignon in his notes on the Formulæ of Marculphus says-Proprietate et fisco duæ notantur bonorum species, et velut maxima rerum divisio quæ eo seculo recepta erat. Omnia namque prædia, aut propria erant, aut fiscalia, propria seu proprietates dicebantur, quæ nullius juri obnoxia erant, sed optimo maximo jure possidebantur; ideoque ad hæredes transibant. Fiscalia vero beneficia, sive fisci, vocabantur, quæ a Rege ut plurimum, posteaque ab aliis, ita concedebantur, ut certis legibus servitiisque obnoxia, cum vita accipientis finirentur. 27. The learned Muratori, in his Antiquitates Italicæ Medii Ævi, has given a dissertation on allo dial and feudal tenures. He states that feuds derive their origin from the Germans, and were originally called beneficia. That the antient vassi et vassalli were persons who attached themselves to kings and princes, in order to acquire the privileges, to which those who formed a part of their families were entitled, and also in the hope of obtaining, from the liberality of their lords, beneficia, that is, the usufruct of a portion of their royal demesnes, during the lives of their lords. That whenever a person of noble birth attached himself in this manner to a prince, he took an oath of fidelity to him, and was afterwards called vassus or vassallus. That these words occurred in a capitularium of Louis the Pious, of the year 823. That to constitute a vassus, it was not necessary he should have a beneficium. That an allodium was an inheritance which might be alienated at the pleasure of the possessor: and the words by which it was granted usually were, ut proprietario jure teneat atque possideat; seu faciat inde quicquid voluerit, tam ipse, quamque hæredes ipsius. 28. Although feuds were originally granted by kings and princes only, yet in a short time the great lords to whom the kings had allotted extensive tracts of land, partly from a disposition to imitate their superiors, and partly for the purpose of attaching persons to their particular fortunes, bestowed a portion of their demesnes, as benefices, or feuds. The greater part of the lands were however held by an allodial tenure, till the beginning of the tenth century, when the feudal system appears to have been generally adopted. 29. As allodial property was much more desirable than feudal, such a change appears surprising; espe cially when we are informed that allodial property was frequently converted into feudal, by a voluntary deed of the possessor. 30. The reasons which induced the proprietors of allodial lands to convert them into feuds are thus explained by the President Montesquieu. Those who held feuds were entitled to great privileges; the composition or fine for the commission of a crime, against a feudatory, was much greater than that for a person who held his lands by an allodial tenure. But the chief motive for this alteration was, to acquire the protection of some powerful lord; without which, in those times of anarchy and confusion, it was scarce possible for an individual to preserve either his liberty or his property. These and probably other reasons, with which we are unacquainted, produced an extension of the feudal tenure over the whole western world. 31. Feuds upon their first introduction were regulated by unwritten customs. In the year 1170, the Emperor Frederick Barbarossa directed a code of the feudal law to be compiled, which was accordingly executed, and published at Milan. It was called the Liber Feudorum, and was divided into five books, of which the two first, and some fragments of the three last, still exist, and are printed at the end of all the modern editions of the Corpus Juris Civilis. This work is probably no more than a collection of the customs most generally adhered to in feudal matters; and the constitutions of the Emperors Lotharius, Conrad, and Frederick, respecting feuds. 32. A feud is thus defined by Craig-Est feudum beneficium, seu benevola et libera rei immobilis, aut æquipollentis, concessio, cum utilis dominii translatione; retenta proprietate, seu dominio directo, sub fidelitate, et exhibitione servitiorum honestorum. 33. It was benevola et libera concessio, for it was supposed to have been originally granted from motives of mere benevolence, and not for any sum of money, or other valuable consideration; or as it is expressed in the Liber Feudorum-Tantum ex amore et honore Lib.I. Tit.27. acquirendum est feudum. Rei immobilis.-That is, nothing but land or immoveable property could be granted as a feud. Dominii utilis.-The Civilians distinguish between the proprietas, and the dominium utile. The proprietas is the absolute property; the dominium utile is only the right of using the thing for a certain time. Sub fidelitate.-This was the bond of connexion between the lord and his vassal; it was the most essential circumstance in the contract, as will be shewn hereafter. Servitiorum.-Services were also essential to a feud; they were generally of a military nature; but still feuds were not unfrequently granted in consideration of other services. 35. A modern French writer observes that it Hervé, V. 1. will appear, from an attentive consideration of the 370–372. origin and progress of feuds, to have been the lord's intention, to secure a constant acknowledgement of the grant, as long as it subsisted; in which it differed from all other contracts; and from which a gift of a feud ought to be defined. Une concession faite a la charge d'une reconnoissance toujours subsistante, qui doit se manifester de la maniere convenue. kinds. 36. The first and most general division of feuds Different was into proper, and improper ones. Proper feuds were such as were purely military, given militiæ gratia; without price or stipulation, to persons duly qualified for military service. Improper feuds were those which did not in point of acquisition, services, and the like, strictly conform to the nature of a mere military feud, such as those that were sold or bartered for any equivalent, or granted free from all services; or in consideration of any certain return of service. 37. A feud was however always considered as a proper one, unless the contrary appeared; which could only be proved by a reference to the original investiture. Hence arose the maxim in the feudal law, tenor investituræ inspiciendus. Improper feuds were distinguished from proper ones by those qualities only in which they varied: for in all other respects they were considered as proper feuds. 38. A feudum ligium was that for which the vassal owed fealty to his lord, against all persons whatever, without any exception. A feudum non ligium was that for which the vassal owed fealty to his immediate lord; but with an exception in favour of some superior lord. 39. A feudum antiquum was that which had descended to the vassal from his father, or some Craig. Lib. 1. more remote ancestor. A feudum novum was that Tit. 10. § 11. which was originally acquired by the vassal himself. Idem, § 12. Investiture. 40. A feud granted by a sovereign prince, to hold immediately of himself, with a jurisdiction, was called feudum nobile, and conferred nobility upon the grantee; where a title of honor was annexed to the lands so granted, it was called feudum dignitatis. 41. Feuds were originally granted by a solemn and publick delivery of the very land itself, by the Lib. Feud. 2. lord to the vassal in the presence of the convassalli, or other vassals of the lord, which was called invesLib.2. Tit. 8. titura. It is thus described by Corvinus—Investitura Tit. 19. |