talliatum. 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 conditionibus concessum, 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. Feudum. Craig, Lib. 1. 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. 17. 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. 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 heir does not require investiture from the lord within that time, he shall forfeit his feud. 82. If the vassal refused to perform the services which were reserved upon the investiture, he forfeited his feud. Non est alia justior causa beneficii auferendi Lib. Feud.id. quam si id propter quod beneficium datum fuerit, hoc servitium facere recusaverit, quia beneficium amittit. 83. If the vassal aliened the feud, or did any act by which its value was considerably diminished; he forfeited it. Si vassallus feudum dissipaverit, aut Zasins, 91. insigni detrimento deterius fecerit, privabitur. Tit. 5. § 1. 84. If the vassal denied that he held his feud of Craig, Lib. 3. the lord, by saying that he held it of some other person; or denied that the land was held by a feudal tenure, he forfeited it. 85. Every species of felony operated as a forfeiture of the feud; being the highest breach of the vassal's oath of fealty. might forfeit his Seignory. 86. It has been stated that the feudal lord was The Lord equally bound to observe the terms of relation on his part. For if he neglected to protect and defend his tenant; or did any thing that was prejudicial to him, or injurious to the feudal connexion; he forfeited his seignory. Thus it is said in the Liber Feudorum-Si dominus commisit feloniam, per quam Lib.2. Tit.26. vassallus amitteret feudum, si eam commiserit in domi- § 47. num, feudi proprietatem etiam dominus perdere debeat. Jurisdiction. 87. The feudal lord had not only a right to the Feudal service of his vassals in war; but had also the privilege of determining their disputes in time of peace. Thus we read in the Liber Feudorum-Si inter duos Lib.1.Tit.18. vassallos de feodo sit controversia, domini sit cognitio, et per eum controversia terminetur. Si vero inter dominum et vassallum lis oriatur, per pares curiæ a domino sub fidelitate debito conjuratos terminetur. 2.-55. Montesq. Hervé, V. 1. 222-252. Robertson's 67. 365. 88. The origin of the feudal jurisdiction is said to be derived from the following circumstances: By the laws of all the northern nations every crime, not Cha. 5. V.1. even excepting murder, was punished by a pecuniary fine, which was called fredum. In the infancy of the northern governments, the chief occupation of a judge consisted in ascertaining and levying those fines; which formed a considerable part of the public revenue. When extensive tracts of land were granted as feuds, the privilege of levying those fines was always included in the grant; with a right to hold a court for the purpose of ascertaining them; from whence followed a jurisdiction over the vassals, both in civil and criminal matters. Hervé, V. 1. 263. Craig, Lib. 2. 89. To all the nations descended from the Germans, justice was originally distributed in their general assemblies: nor did the king or chieftain pronounce sentence till he had consulted those persons who were of the same rank with the accused; without whose consent no judgement could be given.. 90. In imitation of this practice, every feudal lord had a court, in which he distributed justice to his vassals; and every freeman who held lands of him was bound, under pain of forfeiting his feud, to attend his court, there to assist his lord in determining all disputes arising between his vassals. And as all the tenants were of the same rank, and held of the same lord, they were called pares curiæ. 91. In the Liber Feudorum, Lib. 2. Tit. . it is said-Si inter duos vassallos de feodo sit controversia, domini sit cognitio; et controversia per eum terminetur. And in a law of the Emperor Conrad is the following regulation-Si inter capitaneos controversia sit, coram rege finiatur; si inter valvasores, coram paribus curiæ. 92. This practice appears to have been established so long ago as in the reign of the emperor Conrad I. A. D. 920, of whom there exists the follow Med. Ævi. ing law-Statuimus ut nullus miles episcoporum, abba- Muratori ant. tum, &c. vel omnium qui beneficium de nostris publicis v. 2. 287. beneficiis, aut de ecclesiarum prædiis, &c. tenent, &c. sine certa et convicta culpa, suum beneficium perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium parium. |