Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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rights may become heritable, by the fupsryening of an
heritable fecurity : Thus, a fum due by a perfonal bond
becomes heritable, by the creditor’s accepting an heritable
tight for fe-curing it, or by adjudging upon it,
7. Heritable rights do not become moveable by accef-
fory moveable fecurities, the heritable right being in fuch
cafe the jus nobilius, which draws the other after it.
8. Certain fubjefts partake, in different refpedls, of
the nature both of heritable and moveable. Perfonal
bonds are moveable in refpedf of faccelSon, but heritable
as to the fide, and hufband and wife. All bonds, whe¬
ther merely perfonal, or even heritable, on which no feifm
has followed, may be affeded at the fuit of creditors,
either by adjudication, which is a diligence proper to he¬
ritage; or by arreftment, which is peculiar to moVeabies.
Bonds fecluding executors, though they defeend to the
creditor’s heir, are payable by the debtor’s executors,
without relief againft the heir; fince the debtor’s fuccef-
fion cannot be affeded by the deflination of the creditor.
9. All queftions, whether a right be heritable or move-
able, mult be determined according to the condition of
the fubjed at the time of the anceftor’s death. If it was
heritable at that period, it mult belong to the heir ; if
moveable, it muft fall to the executor, without regard
to any alterations that may have affeded the fubjed in
the intermediate period between the anceftor’s death and
the competition.
Tit. 10. Of the Conftltution of heritable Rights
by Charter and Seijin.
Heritable rights are governed by the feudal lav/,
which owed its origin, or at leaft its firft improvements,
to the Longobards; whofe kings, upon having penetrated
into Italy, the better to preferve their conquefts, made
grants to their principal commanders of great part of
the conquered provinces, to be again fubdivided by them
among the lower officers, under the conditions of fidelity
and military fervice.
2. The feudal conftitutions and ufages were firft re¬
duced into writing, about the year 1150, by two lawyers
of Milan, under the title of Confueludtries Feudorum.
None of the German Emperors appear to have exprefsly
confirmed this colledion by their authority; but it is
^generally agreed, that it had their tacit approbation, and
was confidered as the cuftomary feudal law of all the
countries fubjetfl to the empire. Noother country has ever
acknowledged th.efe books for their law; but each ftate
has formed to itfelf fuch a fyftem of feudal rules, as beft
agreed with the genius of its own conftitution. In feudal
queftions, therefore, we are governed, in the firft place,
by our own ftatutes and cuftoms ; where thefe fail us, we
have regard to the pradliceof neighbauringcountries, if
the genius of their law appears to be the fame with ours;
and fhould the queftio-n flill remain doubtful, we may
have reccurfe to thofe written books of the feus, as to
the original plan on which all feudal fyftems have pro¬
ceeded.
3. This military grant got the name, firft of beneficium,
and afterwards oLfeudutn; and was defined a gratuitous
right to the property of Hnds, made under the conditions
A W.
of fealty and military fervice, to be performed to the
granter by the receiver; the radical right of the lands
ftill remaining in the granter. Under lands, in this defi¬
nition, are comprehended all rights or fubjefts fo con-
ne&ed with land, that they are deemed a part thereof j
as houfes, mills, fifhings, jurifdidtions, patronages, &c.
Though feus in their original nature were gratuitous, they
foon became the fubjeft of commerce ; fervices of a civil
or religious kind were freqeuntly fubftituted in place of
military ; and now, of a longtime, fervices of every kind
have been entirely difpenfed with, in certain feudal te¬
nures. He who makes the grant is called the fuperior,
and he who receives it the vaffal. The fubjedt of the
grant is commonly called the feu ; though that w< rd is
at other times, in our law, ufed to fignify one particular
tenure. See Tit. 11. The intereft retained by the fu¬
perior in the feu is ftyled do-minium direttum or the fu-
periority; and tke intereft acquired by the vaflal, domi¬
nium utile, or the property. The word fee is promif-
cuoufiy applied to both.
4. Allodial goods are oppofed to feus; by which are
underftood, goods enjoyed by the owner, independent of
a fuperior. All moveable goods are allodial; lands on¬
ly are fo, when they are given without the condition of
fealty or homage. By the feudal fyftem, the fovereign,
who is the fountain of feudal rights, referves to himfelf
the fuperiority of all the lands of which he makes the
grant ; fo that, with us, no lands are allodial, except
thofe of the King’s own property, the fuperiorities which,
the King referves in the property-lands of his fubjedls,
and manfes and glebes, the right of which is compleat-
ed by the prelbytery’s defignation, without any feudal
grant.
5. Every perfon who is in the right of an immoveable
fubjeift, provided he has the free adminiftration of his e-
ftate, and is not debarred by ftatute, or by the nature of
his right, may difpofe of it to another. Nay, a valla);
though he has only the dominium utile, can fubfeu his
property to afubvaffal by a fubaltern right, and thereby
raife a new dominium direllum in himfelf. fubordijate
to that which is in his fuperior; and fo in infinitum.
The vaflal who thus fubfeus, is called the fubvafiai’s im¬
mediate fuperior, and the vaffal’s luperior is the fubvaf-
fal’s mediate fuperior.
6. All perfons who are not difabled by law, may ac¬
quire and enjoy feudal rtghs. Papifts cannot purchafe a
land eftate by any voluntary deed. Aliens, who owe al¬
legiance to a foreign prince, cannot hold a feudal right
without naturalization ; and therefore, where fuch privi¬
lege was intended to be given to favoured nations or per¬
fons, ftatutes of naturalization were neceflary, either ge¬
neral, or fpecial; or at leaft, letters of naturalization by
the fovereign.
7. Every heritablefubjeift, capable of commerce, may
be granted in feu. From this general rule is ex¬
cepted, 1. The annexed property of the Crown, which
is not alienable without a previous diftblution in parlia¬
ment. 2. Tailzied lands, which are devifed under
condition that they fhall not be aliened. 3. An eftate
in kereditate jacente cannot be effedtually aliened by the
heir-apparent (/'. e. not entered); but fuch alienation
becomes.