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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.1. Tit.27. acquirendum est feudum.

Rei immobilis.-That is, nothing but land or im moveable 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 concéssion faite a la charge d'une reconnoissance toujours subsistante, qui doit se manifester de la maniere convenue. 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

kinds.

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 nor ligium was that for which the vassal owed fealty to his immediate lord; but with an exception in favour of some superior lord.

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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 which was originally acquired by the vassal himself.

Tit. 10. § 11.

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 inves Lib.2. Tit. 8. titura. It is thus described by Corvinus-Investitura

Tit. 19.

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ab investiendo dicta, quod per eam vassallus, possessione, quasi veste induatur. This ceremony was so essentially necessary to the creation of a feud, that

it could not be constituted without it.-Sciendum est Lib. Feud. 1. feudum sine investitura nullo modo constitui posse.

Tit. 25.

42. The convassalli or pares were the only per- Idem, Tit.28.

sons who could be witnesses to the investiture; their presence was required, as much for the advantage of the lord, as of the tenant: of the lord, that if the tenant was a secret enemy, or otherwise unqualified, he might be apprised of it; and that they might bear testimony of the obligations which he contracted of the tenant, that they might testify. the grant of the lord, and for what services it was made: lastly, for their own advantage, that they might know who was the tenant, and what land he held.

43. As it was frequently inconvenient for the lord to go to the lands intended to be granted, the improper investiture was introduced; which was a symbolical transfer of the lands, by the delivery of a staff, a sword, or a robe; which last being the most common method among the immediate vassals of kings and princes, gave rise to the word investiture.-Investitura quidem proprie dicitur possessio; Lib. Feud. 2. abusivo autem modo dicitur investitura, quando hasta vel aliud corporum quidlibet porrigitur a domino, se investituram facere dicente. Quem si quidem ab illo fiat qui alios habet vassallos, saltem coram duobus ex illis solemniter fieri debet: alioque licet alii intersint Craig, Lib. 2. Tit. 2. § 4. testes, investitura minime valet.

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44. It appears from the above description that a proper investiture and possession are synonymous terms: whenever therefore investiture is distinguished from possession, it is an improper one.

Tit. 2.

45. The services which the vassal was bound to perform, were declared by the lord, at the time of the investiture, in the presence of the other vassals. As a verbal declaration of the terms on which a feud was to be held, might be forgotten or mistaken, it became usual for the tenant to procure a writing from the lord, containing the terms upon which the donation was made, witnessed by the other vassals; Craig, id. §7. which was called a breve testatum. Where the lord could not conveniently come to the land, he delivered to the vassal a breve testatum, as an improper investiture; with a direction to some person to give him actual possession.

Oath of
Fidelity.

46. A breve testatum being a much better security than a verbal declaration, those who acquired feuds preferred this improper investiture, with a subsequent delivery of the possession, to a proper investiture. So that in process of time the feudal writers divided an improper investiture into three parts: a breve testatum, a præceptum seisinæ, and a possessionis traditio.

47. Upon the creation of a feud, a connexion and union arose between the lord and his vassal, considered by the feudal writers as stronger than any natural tie whatever, which the tenant was obliged to acknowledge by immediately taking the oath of Lib. Feud. 2. fidelity to the lord, in these words ---- Ego N. (vas

Tit. 7.

sallus) super hæc Sancta Dei Evangelia juro quod ab hac hora in antea usque ad ultimam vitæ meæ diem tibi M. (domino) meo fidelis ero contra omnem hominem ; excepto Rege, vel priori domino meo.

48. The idea of this oath appears to have been taken from the obligation which existed between the German princes and their comites. Thus Tacitus

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saysIllum defendere, tueri, sua quoque fortia gloriæ ejus assignare, præcipuum sacramentum est.

49. Fealty was so essentially requisite to the Wright, 35. nature of a feud, whether a proper or an improper one, that it could not exist without it. For if lands were given without a reservation of fealty, the tenure was considered as allodial; but the oath of fealty might be dispensed with.

50. When feuds became hereditary, another ce- Homage. remony was added, called homagium, or hominium, which was performed in this manner, The vassal being uncovered and ungirt, knelt down before his lord, and putting his hands within those of his lord said-Devenio homo vester de tenemento quod de vobis teneo et tenere debeo, et fidem vobis portabo contra omnes gentes. The lord then embraced the tenant, which completed the homage.

51. Fealty and homage have often been con- Hervé, founded by the feudal writers, but improperly. For Tome 1.352. Montesq. fealty was a solemn oath, made by the vassal, of fide- B. 31. c. 33. lity and attachment to his lord; whereas homage was merely an acknowledgement of tenure.

Vassal.

52. In consequence of the feudal connexion, Duties of the several duties arose, as well on the part of the lord Lord and as of the vassal. With respect to those which the lord owed to his vassal, it was a maxim of the feudal law that though the vassal only took the oath of fealty, and did homage; and the lord on account of his dignity took none, yet was he equally obliged, as if he had taken it, to do and forbear every thing, with respect to the vassal, which the vassal was bound to do and forbear towards the lord: so that the duties of both were in several respects reciprocal.

58. As for the duties which the vassal owed the lord, they are thus described in the Liber Feu

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