61. This practice, which was called subinfeudation, became extremely common in France, during the eleventh and twelfth centuries; but was Hervé, V. 1. prevented by an ordonnance of Philip Augustus in 1210, which directed that in future, where any estate was dismembered from a feud, it should be held of the chief lord. 101. Estate of the 62. With respect to the estate or interest which the lord had in the lands, after he had granted them as a feud, it consisted of the dominium verum, with a Wright, 30. right to the services reserved upon the grant; and in case of failure in any of these, the lord might enter and take possession of the feud. 63. Although the lord had the dominium verum of the lands, yet he could not alien or transfer his seignory to another, without the consent of the Lib. Feud. 2. vassal. Ex eadem lege descendit quod dominus, sine Tit. 34. § 1. voluntate vassalli, feudum alienare non potest. For His obligation on Eviction. Lib. Feud. 2. Tit. 25. 30. Ten. 38. the obligations of the lord and vassal being mutual, the vassal was as much interested in the personal qualities of his lord, as the lord was in those of his vassal. 64. There was another obligation on the part of the lord of very considerable importance; namely, that in case the vassal was evicted out of the feud, the lord was obliged to give him another feud of equal extent, or else to pay him the value of that which he had lost. 65. Sir Martin Wright doubts whether the obligation of the lord to protect and defend his vassal made him antiently liable on eviction, without any fraud or defect in him, to make a compensation for the loss of the feud; inasmuch as it could hardly be imagined that while feuds were precarious, and held at the will of the lord, by whom they were granted, without any consideration, the lord should be subject to such a loss. He was of opinion that the lord's obligation to compensate the vassal, in case of eviction, only prevailed as to improper feuds, for which a price had been paid, or an equivalent stipulated. They 66. Craig agreed with Sir M. Wright. however both acknowledge that none of the antient feudal writers make any such distinction; but that all admit the lord's obligation to compensate the vassal on eviction, to have been general. Feuds. 67. We have seen that although feuds were Descent of originally granted at will only, yet in course of time they became descendible. It will therefore be necessary to enquire what rules of descent were established by the feudal law, where no particular mode of descent was directed by the original grant, for in such case the maxim was, tenor investituræ est inspiciendus. 68. The first rule was, that the descendants of the person to whom the feud was originally granted, and none others, should inherit. Because, as the personal ability of the first acquirer, to perform the duties and services reserved, was the motive of the donation, it could only be transmitted by him to his lineal descendants. Craig, Lib. 1. 69. In consequence of this rule the ascending line was in all cases excluded. Hence it is laid down in the Liber Feudorum-Successionis feudi talis Lib.2.Tit.10. est natura, quod ascendentes non succedunt; and a modern feudist has said-Jus tamen feudale, adscen- Corvinus, dentium ordine neglecto, solos descendentes et collaterales, admittit. Quoniam qui feudum accipit, sibi Lib. 2. Tit. 4. 321. Balus, V. 1. et liberis suis, non parentibus, prospicit. Whereas in allodial property the ascending line was capable of inheriting. Tit. 4. 70. All the sons succeeded equally, as was the case in France, even respecting the succession to the crown; during the first and part of the second race. But the frequent wars occasioned by these partitions caused a regulation that kingdoms should be considered as impartible inheritances, and descend to the eldest son. 71. In imitation of the sovereignty, the same alteration was made in the descent of the great feuds. By a constitution of the Emperor Frederick, honorary feuds became indivisible; and they, as also the military feuds, began to descend to the eldest son, because he was sooner capable of performing the military services than any of his brothers. Lib. Feud. 1. 72. Females were originally excluded, not only on account of their incapacity to perform the military services, but also lest they should carry the feud to strangers or enemies. Lib. Feud. 1. Craig, Lib. 1. 73. The rule that none but the descendants of the first feudatory could inherit, was so strictly adhered to, that in case of a feudum novum, the brother of the first acquirer could not succeed to his brother; because he was not descended from the person who first acquired the feud. But in the case of a feudum antiquum, a brother or other collateral relation, who was descended from the first acquirer, might inherit. 74. A mode was afterwards adopted of letting in the collateral relations of the first acquirer of a feud, by granting him a feudum novum to be held ut antiquum, that is, with all the qualities of an antient talliatum. Feudum. feud, derived from a remote ancestor; and then the collateral relations were admitted, however distant from the person who was last possessed of the feud. 75. To restrain this general right of inheritance Feudum in all the collateral relations, a new kind of feud was invented, called a feudum talliatum, which is thus described by Du Cange-Feudum talliatum Gloss. voce dicitur, verbis forensibus, hæreditas in quamdam certitudinem limitata; seu feudum certis conditionibusconcessum, verbi gratia, alicui et liberis ex legitimo matrimonio nascituris. Unde si is cui feudum datum est moriatur absque liberis, feudum ad donatorem redit. Talliare enim est in quamdam certitudinem ponere, vel ad quoddam certum hæreditamentum limitare. 76. It is observable that the principles of the feudal descent were peculiar to that tenure; and differed entirely from those of succession established by the Roman law; in which the heir was a person instituted by the ancestor, or appointed by the law to represent the ancestor, in all his civil rights and obligations. Whereas in the feudal law, the heir succeeded, not under any supposed representation to the ancestor, but as related to him in blood, and designated, in consequence of that relationship, by the terms of the investiture, to succeed to the feud. Craig, Lib. I. Tit. 10. § 17. upon a 77. When feuds became descendible, the lord, Investiture upon the death of every tenant, claimed a right Descent. of granting a new investiture to the successor, without which he could not enter into possession of the feud. This shewed that the right of inheriting was originally derived from the bounty and acquiescence of the lord: and these investitures were evidence of the tenure, as well as of the services which were due for the feud. Relief. Schilt. Cod. $52. Escheat. 78. It was also customary for the lord to demand some present from the tenant, upon granting him investiture, which in course of time became part of the profits of the feud. It was called relevium, and is thus described by a feudal writerRelevium est præstatio heredum, qui cum veteri jure feudali non poterant succedere in feudis, caducam et incertam hæreditatem relevabant; soluta summa vel pecuniæ, vel aliarum rerum, pro diversitate feudorum. 79. As feuds were originally granted on condition of military or other services, it was deemed just that where there was no person capable of performing those services, the feud should return to the lord. Therefore, where a vassal died without heirs, the lord became entitled to the feud as an Lib.2.Tit.86. escheat. Thus it is said in the Liber FeudorumSi aliquis decesserit nullo in feudo relicto hærede, jus feudi ad dominum pertinere dicimus. Feudal Lib.2.Tit.23, 24. 80. Feuds having been at all times considered as voluntary donations, it was very soon established that every act of the vassal which was contrary to the connexion that subsisted between him and his lord, and to the fidelity he owed him; or by which he disabled himself from performing his services; should operate as a forfeiture of the feud. 81. In the Liber Feudorum there is a long letter from Obertus de Orto to his son, respecting feudal forfeitures, which he says are not reducible to any general principles. He then proceeds in stating, that if the vassal omits to require an investure from the heir of his lord for a year and a day after the death of the lord, and to take the oath of fealty to him, he shall lose his feud. So in the case of the death of the vassal, if the |