839
[end of lecture 51]

LECTURE LII.

ON THE JURA IN RE ALIENÂ OF THE ROMAN LAW.

In my last Lecture, I considered such distinctions between primary jura in rem as are founded on differences between their respective durations: or, in other words, between the quantities of time during which they are respectively calculated to last.

According to the purpose which I then announced, I should now proceed to the distinction between present or vested rights, and future or contingent rights; including the distinction between such present rights as are coupled with a right to present enjoyment or exercise, and such present rights as are not coupled with a right to present enjoyment or exercise.

The distinction between Jus in re propriâ and Jus in re alienâ: jus in rem in re alienâ.

But before I proceed to the distinction between vested and contingent rights, I will endeavour to explain a distinction, which, I think, may be considered conveniently at the present point of my Course: namely, the distinction made by the Roman lawyers, and by the modern expositors of the Roman Law, between dominion strictly so called (property pre-eminently so called, in re potestas, or jus in re propriâ), and that class of rights which they oppose to dominion strictly so called (or to jus in re propriâ) by the name of jura in re alienâ, jura in re, or (more briefly and elliptically still), jura.⁶⁶

I advert to this distinction between jus in re propriâ and jus in re alienâ, for two reasons. 1st. The explanation of this distinction may tend to illustrate the two capital and insepar840ably connected distinctions with which my recent Lectures have been particularly occupied: namely, the distinction between rights which import an indefinite, and rights which import a definite power of user or exclusion; and the distinction between rights of unlimited duration and rights of limited duration.

2ndly. Without an idea of the distinction between jus in re propriâ and jus in re alienâ, as understood by the Roman lawyers and the modern expositors of the Roman Law, their writings, to an English lawyer, are extremely perplexing.

For many of the rights in rem which they rank with jura in re, or with jura in re alienâ, would rather be esteemed by an English lawyer modes of property or ownership than mere fractional rights subtracted from property in another. Such (for example) is the case (as I shall shew presently) with the emphyteusis: a right closely analogous to an estate in fee simple, and from which (it is supposed by some), the various systems of law, commonly styled feudal, took their origin. Such is also the case with certain rights, which, in the language of the Roman law, are styled servitudes: but which, as I shewed in a preceding Lecture, would rather be deemed by us, modes of property. Such is also the case with the right in rem of the pledgee or mortgagee, or the creditor whose right in personam is secured by a pignus or hypotheca.

By the Roman lawyers, he is deemed to have jus in re alienâ, although the pledgor or mortgagor was dominus or absolute proprietor of the thing pledged or mortgaged. But according to the law of England (or, at least, of its strict law, as contradistinguished from its equity), his right in the subject of the pledge or mortgage would rather fall under the category of property or ownership, than under that of rights over subjects owned by others.

Property pre-eminently so called, absolute property, dominium (s. s.) or jus in re propriâ.⁶⁷

In order to an explanation of the distinction between jus in re propriâ and jus in re alienâ, I must briefly revert to the nature (which I referred to in my last Lecture) of dominion strictly so called, property pre-eminently so called, absolute dominion or property, or the dominion (property or ownership) which is the least restricted or limited. For every jus in re alienâ is a fraction or constituent portion (residing in one party) of absolute dominion or property residing in another party.

Res publicæ (in the largest sense of the expression).

And in order that I may explain the nature of absolute dominion or ownership, or of jus in re propriâ, I must briefly advert to the nature of res publicæ, or of that right (or rather of 841that power) which the state possesses over all things within its territory or jurisdiction.

It is manifest that the state (or sovereign government) is not restrained by positive law from dealing with all things within its territory at its own pleasure or discretion. If it were, it would not be a sovereign government, but a government in a state of subjection to a government truly supreme.

Now since it is not restrained by positive law from dealing at its own pleasure with all things within its territory, we may say (for the sake of brevity, and because established language furnishes us with no better expressions), that the state has a right to all things within its territory, or is absolutely or without restriction the proprietor or dominus thereof. Strictly speaking, it has no legal right to any thing, or is not the legal owner or proprietor of any thing: for if it were, its own subjects would be subject to sovereign which conferred that legal right, and imposed upon others the correlative legal duty. When, therefore, I say that it has a right to all things within its territory (or is the absolute owner of all things within its territory), I merely mean that it is not restrained by positive law from using or dealing with them as it may please.

Consequently, if we take the expression res publicæ with the largest meaning which it will bear, all things within the territory of the state are res publicæ, or belong to the state (in the sense above mentioned).

Res publicæ (in the narrower sense), and res privatæ.

But of the things which belong to the state, there are some which it reserves to itself, and some the enjoyment or use of which it leaves or concedes to determinate private persons. To those which it reserves to itself, the term res publicæ is commonly confined: those, the enjoyment or use of which it leaves or concedes to determinate private persons, are commonly called res privatæ.

Classes of res publicæ (in the narrower sense of the term).⁶⁸

Of res publicæ (taking the expression with the narrower sense to which I have now adverted), various distinctions might be made.

For there are some, which, without leaving or conceding the use of them to determinate private persons, it nevertheless permits its subject generally to use or deal with in certain limited and temporary modes. Such, for example, are public ways, public rivers, the shores of the sea (in so far as they are not appropriated by private persons), the sea itself (in so far as it forms a part of the territory of the state), and so on. Res 842publicæ, the use of which the state thus permits to all its subjects, are commonly styled res communes: though the term is sometimes confined to certain things, of which the subjects generally are supposed to have the use by a title anterior to any that the state can impart.

This last notion is derived from the confused notions of a certain natural law and jus gentium, which gave rights independently of the state, and superior to any which the state could impart. It is obvious that in so far as these rights are legal rights, they must emanate from the state. And the Roman lawyers, occasionally speaking more precisely, say that res communes are quodammodo res publicæ.

Again: Of res publicæ (or of the things which the state reserves to itself), there are some which it reserves to itself in a more especial manner, and some which it concedes to public persons (individual or complex), as trustees for itself. The former are sometimes styled ‘the patrimony of the state,’ or the ‘domain of the state,’ or are said to belong to the fisc. Such, for example, is the money which it raises by taxes on its subjects, the land which it reserves especially for its own peculiar use, or the res privatæ which revert to it by forfeiture or escheat as being the ultimate hæres of all its subjects. Those which it concedes to public persons as trustees for itself, are styled by the Roman lawyers res universitatis: things being in the patrimony of corporate bodies. And, they were so called (I presume), because the public persons to whom they were conceded, were commonly complex or collegiate, rather than individual persons: as, for example, the corporate governments of cities. But the term res universitatis is manifestly inapplicable. For we may conceive that a res publica resides in a public person who is individual or single. And every corporate body is not public. Corporate bodies may exist for purposes not public, and then a thing belonging to them is res privata not res publica. In giving, therefore, to this class of res publicæ the name of res universitatis, the Roman lawyers took the name of one species and extended it to the whole genus.

It is manifest that the distinctions to which I now have adverted, blend at various points. For example: Of the res publicæ which are in the patrimony of the state, or which it reserves to itself in a more especial manner, it may concede some to private persons for periods of shorter or longer duration: It may let, for instance, a part of its domain to a private person in farm. And in these cases, the things would seem to become, 843during those limited periods, res privatæ. In these cases, however, the things are granted out to private persons, rather for the benefit of its own peculiar patrimony, than for the advantage of the private grantees. Whereas in the case of res privatæ, the things are left or conceded to the determinate private persons, rather for their own advantage than for that of the state.

And of res universitatis, or things which it concedes to public or political persons, in trust for itself, some will naturally fall under the species of res publicæ, which are styled res communes. Such, for example, is the case with a road or river, the property of which resides in a public corporation, but which it holds in trust to permit all the subjects of the state to pass and repass it.

One class of things which occurs in the Roman Law, and is there distinguished from res publicæ, I will also briefly advert to: namely, res divini juris. But res divini juris are merely a class of res publicæ. They are things specially reserved by the state or granted in trust to public persons, and destined to certain uses. The opposing them to res publicæ proceeds from the logical error so frequent in the writings of lawyers: namely, the co-ordinating as parts or members of one homogeneous system, various classes of objects which are derived from cross divisions.

Having given a brief statement of the leading distinctions between res publicæ (as opposed to res privatæ), I now return to res privatæ: that is to say, things of which the state is the ultimate owner, but the use or enjoyment of which it leaves or concedes to determinate private persons, rather for their own advantage, than for the immediate benefit of its own patrimony.

With regard to res privatæ (as thus understood), they may be left or granted to private persons with various restrictions: with various restrictions in respect of user, and with various restrictions in respect of time.

In respect of user, the right (or series of rights), which is granted by the state, may amount to a mere servitude (or a right to use the thing in a definite manner), or to property (in any of its various modes). In which last case, the property may be burthened with a servitude (or with a something analogous to a servitude) reserved by the state to itself.⁶⁹

Quasi-servitus over a thing reserved by the state to itself.

For example: we may conceive that the state may grant to 844a private person a right of way, or a right of common, over land in its own patrimony. On which supposition, the grantee would have a right analogous to a servitude over the given subject. I say ‘analogous to a servitude:’ for a servitude, properly so called, is a burthen on the property of another; and property properly so called, or legal property properly so called, the state has not, and cannot have.

Quasi-servitus reserved by the state over a res privata.

Or, assuming that the right granted by the state amount to a right of property, we may suppose that the state reserves to itself a something analogous to a right of servitude. For example: we may suppose that it reserves to itself (in case the subject of the property be land) all the minerals under the land, with the right or power of working for them. In most or many countries, all land owned by private persons is held subject to a special reservation like that which I have now mentioned. And, in our own country, the King (who, for the present purpose, may be deemed to represent the State) is also commonly entitled to any of the more precious minerals which may be found under land belonging to any of the subjects.⁷⁰

Absolute property, dominium. (s. s.), or jus in re propriâ.

With regard to time, the thing may be subject to a right of limited or unlimited duration, or to a series or succession of any number of rights, each being a right of limited or unlimited duration. For, as I remarked in my last Lecture, a thing which is subject to one right of unlimited duration, may also be subject to another right of the same unlimited duration. This, for example, is the case with freehold land (according to the Law of England), where the tenant in fee simple is properly a rere vassal, and the interest or estate of the mesne lord is also an estate in fee simple. And if we suppose that the mesne lord held of a mesne lord interposed between him and the king, and that the estate of either lord were an estate in fee simple, here would be three estates (each of unlimited duration) each of which must expire before the land could revert to the king as representing the sovereign or state.

And cases may be imagined, in which the thing would be subjected to a much longer series of rights of unlimited duration, each to take effect in enjoyment on the expiration of the right preceding.

But whatever may be the right (or the series of successive rights) to which the thing is subject, presently or contingently, that right, or that series of rights, must be liable to end. If the right be of limited duration (or each of the series be of 845limited duration), it must end on the lapse of the time fixed for its duration. If it be a right (or a series of rights) of unlimited duration, it must also be liable to end on the failure of persons who by the constitution of the right are entitled to take it.

Now on the expiration of the right, or of the series of rights, to which the thing is subject, presently or contingently, the thing reverts, as of course, to the sovereign or state: for since the state (speaking by analogy) is the ultimate owner of the subject, it also (speaking by a similar analogy) is the ultimus hæres. On the expiration of all the rights over the thing, which merely subsist over the thing by its own pleasure, it naturally retakes the thing into its own possession.

But, in different countries, the practice in this respect is different. In some, the thing (generally speaking) is actually resumed by the state as ultimus hæres. In others, the state does not exercise its right or power of resumption, but leaves the thing to the first occupant: who, by virtue of his occupancy, takes from the state a fresh right, which is also liable to end like the preceding right, on the extinction of which he stepped into possession.⁷¹

But, in this case of acquisition by occupancy, the occupant may be considered as merely representing the sovereign: or, rather, the thing in effect reverts to the sovereign, and the occupant acquires from the sovereign a new right.

Where, in our own country, the thing is resumed by the sovereign, and is not conceded by the sovereign to the first occupant, it reverts to the king. But the king, although he may be deemed to take by a legal right conferred by the sovereign body of which he is only a member, may, perhaps, more properly be deemed, for this purpose, as merely representing the sovereign. For, according to the old and irregular constitution, in which the prerogative in question arose, the king was sovereign; and, instead of sharing the sovereign powers with his parliament, great council, or what not, merely received from them suggestions and advice for the guidance of his conduct. There is much, at least, of our legal language, of our established forms of judicial procedure, and even of the forms observed by our present parliament, which cannot be explained on any other supposition. And I observe that Mr. Palgrave (in those parts of his Commonwealth of England which I have had time to examine) appears to lean to the supposition that the king was originally the sovereign.⁷²

846Now since the occupant takes in the place of the sovereign, and since the king takes as representing the sovereign, I shall assume that the thing, on the expiration of every right to which it is actually subject, invariably reverts to the sovereign government, in every country whatever.

With what I have premised, I can now (I believe) determine the nature of absolute property: of dominion strictly so called; or of jus in re propriâ.

It is not only a right of unlimited duration, and imparting to the owner a power of indefinite user, but it also gives him a power of aliening the subject from all who, by virtue of any right existing over the subject, might, in default-of such alienation, succeed to it.

It therefore implies more than a power of aliening the subject from those who might succeed by descent to the unlimited right. It implies a power of aliening from all those possible successors, and also from all other successors, who, by virtue of any right existing over the subject, are interposed between the possible successors to his own unlimited right, and the sovereign as ultimus hæres.

The mesne lord has not absolute property. He has merely nuda proprietas (or proprietas simply): i.e. absolute property subject to a right of indefinite user (as well as of unlimited duration) residing in the tenant. In the language of the English law, he has merely a reversion expectant on the determination of the tenant’s usufruct: a usufruct unlimited in point of duration. And hence it follows, as I remarked in my last Lecture, that, according to the English Law, there is no absolute property in land: or, at least, there is no perfect dominion in land, where there is a mesne lord between the tenant in fee simple and the king as suzerain.

For there is a reversion in the mesne lord which the tenant in fee cannot defeat by his own alienation: though by his own alienation he can divert the land from his own heirs general, or from the series of possible successors to his own right of unlimited duration. If he were absolute owner, he would stand to the 847mesne lord in the relation in which tenant in tail stands to those in remainder or reversion expectant on his own estate tail, and whose right, as well as that of the heir in tail, he could defeat by fine and recovery.⁷³

The term property, as, in a preceding Lecture, I opposed it to servitus, includes many rights which are not rights of absolute property: that is to say, every right of limited, or of unlimited duration, which imparts to the person entitled an indefinite power of user, although it is not coupled with the power of aliening from every possible successor between the party and the ultimus hæres.⁷⁴

Jura in re alienâ.

Having endeavoured to determine the notion of absolute property, of dominion strictly so called, or jus in re propriâ, I can now explain the nature of jura in re alienâ.

Every jus in re alienâ is a fraction or particle (residing in one party) of dominion, strictly so called, residing in another determinate party.

Different jura in re alienâ are different fractions of the various rights which constitute the dominium from which they are respectively detached.⁷⁵

But jura in re alienâ have no other common property than that which I have now stated. Different rights of the class are composed of different fractions of that right of absolute property from which they are respectively detached. Some are mainly definite subtractions from the right of user and exclusion residing in the owner. Others are indefinite subtractions from his power of user and exclusion for a limited time; and so on.

The classes of jura in re alieniâ which are noted by expositors of the Roman Law: viz. Servitus, Emphyteusis, Superficies, and Jus pignoris hypothecæ.

The jura in re alienâ, which commonly are marked by modern expositors of the Roman law, are servitus, emphyteusis, superficies, and the jus in rem which is taken by a creditor under a pledge or mortgage.⁷⁶ And, to shew the nature of the distinction between jus in re propriâ and jus in re alienâ, I will briefly advert to each of the four in the order wherein I have stated them.

I must first observe, that the Roman lawyers confined the term dominium to dominium rei singulæ, or dominium (or absolute property) over a single thing; and this together with jura in re 848alienâ they opposed to the dominium which heirs and other universal successors take in the aggregate of the rights to which they succeed. This last dominium is of so peculiar a character, that it might be considered apart. I shall, therefore, for the present, understand dominium in the sense of the Roman lawyers, namely, absolute property over some determinate thing.

Servitus.

Servitudes properly so called (whether affirmative or negative, real or personal) were esteemed jura in re alienâ, because they gave a right of definite user over a subject owned by another, or of subtracting a definite fraction from the owner’s right of user or exclusion.

Servitudes improperly so called (usufructus, usus, and habitatio) were property for life limited to life of owner, though the limitation for life was not essential.

When property for life, they were jus in re alienâ, because they were subtracted from the dominion of the author or grantor, and on their expiration reverted to the grantor or his representatives.⁷⁷

Emphyteusis.

Emphyteusis under the Roman law, meant originally land of which some corporate body (as for instance a municipium) had the absolute property and which was let out to a person and his heirs (that is, for an unlimited duration) in consideration that he would cultivate it (and hence the origin of the term which was analogous to the original meaning of the word colonists), and would bring to the owner a given rent. Now this was jus in re alienâ, because, although of unlimited duration, accompanied with power in the emphyteuta of unlimited user, and though alienable from his own heirs, it was nevertheless a right or estate carved out of another estate, or having a reversion expectant upon it. It reverted to the author or grantor or his representatives. It was not absolute property, because there was no power of aliening from all future succession.⁷⁸

The relation of the emphyteuta to the dominus emphyteuseos was the same as that of our tenant in fee to the mesne lord. Each has an estate of unlimited duration with an estate in reversion expectant, which neither part can defeat. Emphyteusis answers almost exactly to our copyhold tenure.

Where an estate in fee simple of freehold tenure is subject to a quit rent, there would seem to be a servitus in the lord, as lord of the fee.

849So in case of copyhold.

So in case of emphyteusis.⁷⁹

Or perhaps an obligation quasi ex contractu. Or a servitus and an obligation combined.⁸⁰

[Usufruct unlimited in duration, etc., would have resembled emphyteusis.

And this is another inconsistency about those improper servitudes mentioned in a former Lecture. If usufruct be a servitude, so ought emphyteusis to be deemed one; for a usufruct, or any other personal servitude, may be granted to a party and his heirs.]

And here I will remark that the feudal system is supposed by Mr. Palgrave, for whose opinion I have a great respect, to have originated in their Roman institution. He supposes emphyteusis to have been the origin of beneficium or feud. In this, however, I am not inclined to agree. Emphyteusis seems to me nothing more than a common case of a municipium first, and a private proprietor afterwards, letting his land to a man and his heirs for a rent. It is true that, in later times, and during the invasions of the barbarians, the emperors not uncommonly granted out rights analogous to emphyteuses on condition of military service; and it is not impossible that this may have suggested the principle of feuds; but it is not likely; because a feud was originally a beneficium, or a grant to a party for life.

The feudal system is an expression often used with most perplexing vagueness; and the word feud is often extended to any right, of limited or unlimited duration, granted on condition of military service by the grantee. If the term be used in this sense, the feudal system has probably existed in every part of the 850world. It existed in India; in the Roman empire; it exists in Turkey.

But when we use the word feud in a more specific sense, we mean something incomparably more definite; we always contemplate a feud when it ceased to be beneficium, and became hereditary, and accompanied with the incidents of homage, fealty, &c. In these peculiarities the feudal system, considered as a system; stands perfectly distinct. The word feud, etymologically speaking, is probably derived, not as Mr. Palgrave supposes, from emphyteusis, but simply from the Latin fidelis; and did not originate until feuds changed their character and became hereditary.⁸¹ Like a thousand other notions which have been supposed to be universal and of the essence of law, feuds and the feudal system are really an exceedingly specific and purely historical notion, not to be got at by scientific speculation, but by diligent reading of the history of the middle ages.

I may here advert to an obscure point which has been finely explained by Thibaut with his usual combination of logic and profound learning: I mean the distinction between dominium directum and dominium utile. The vassal himself was said to have dominium utile, but the lord only to have dominium directum: now, why the tenant should be said to have dominium utile more than any one who has the usufruct or power of using the thing which he has, I cannot possibly conceive. It is merely the obvious case of a right in one person with a reversion in another. But the reason is obvious when we look to the history of emphyteusis. Actions were distinguished into actiones directæ and actiones utiles, that is, into actions given jure civili, or by the original Roman law, and actions given by the prætor, uti, or by way of analogy, like our actions on the case in the largest sense, which were actions in consimili casu. When none of the old forms of action would apply to the case, new actions were given by analogy to the established ones; and these in Roman law were called utiles, from uti or quasi. Now emphyteusis was originally merely a prætorian right; it was, consequently, clothed not with an action given jure civili, or an actio directa, but a utilis actio.

And as a right of emphyteusis, though not property, was so analogous to property, a right of vindication was given for it, as for property, and thus again it was analogous. The Italian glossators, seeing these terms actiones directæ and actiones utiles applied to the cases of emphyteusis and absolute property, extended the 851terms from the remedies to the rights themselves to which those remedies were attached. They styled the absolute property in the dominus emphyteuseos, dominium directum, and the jus in re of the emphyteuta himself dominium utile, because the former was clothed with an actio directa, the other (as being like property) with an actio utilis. It was a mere misconception and misapplication of terms.

Superficies.

The next case of jus in re alienâ is the right styled superficies. Whatever was the precise nature of the services implied in this right, it gave to a party, not an entire right of disposing of the subject, but merely a right of detaching certain parts of the subject, such as a right to the vesture. In English law it has been held that one person may have a freehold in the soil and another in the vesture: in the right of cutting grain, for instance, on the land, and that each had a freehold, and could maintain a trespass. The right to the superficies concurring with the right in the proprietor is one of the many cases of condominium or joint ownership, and cannot with any propriety be deemed jus in re alienâ. And here I may remark the inconsistency of those who include improper servitudes with servitudes proper, without including superficies among them. For an improper servitude, like superficies, gives a right of indefinite user, and may be a right of unlimited duration.

The jus in rem of the creditor in a thing pledged or mortgaged.

The last of these rights is the right of a creditor by virtue of a pledge or mortgage. The creditor has a double right: he has jus in personam in respect of the rights secured to him by the pledge; jus in rem in the subject pledged or mortgaged as a security. For against any possible possessor, whether by alienation from the pledger or mortgagor, or as adverse possessor, the pledgee or mortgagee may make his right over the subject good or available. Hence pignus or hypotheca in Roman law is often called obligatio rei; the thing itself is said to be obliged. This means that the right follows the thing into the hands of any party who by any means whatever may take it. The name answers to lien. And here the matter thickens: for the obliged thing may itself be jus in re alienâ: as, for example, a personal servitude granted out of the dominion of another may itself be the subject of a mortgage, and thus the jus in rem of the mortgagee would be jus in re alienâ over a subject which is itself jus in re alienâ.

There is a considerable difference between the right of the pledgee and mortgagee in English and in Roman law. In Roman 852law, the right of the pledgee or mortgagee is merely a right to alien the obliged thing in case his debt is not duly satisfied, and to repay from the proceeds of the sale his debt with the interest and all incidental costs. In English law the pledge or mortgage gives a property to the creditor in the pledged thing if the debt is not paid at the appointed time. But in English equity as opposed to law, the pledged thing is still considered the property of the pledger; he has an equity of redemption. The pledge is considered much as it is by the Roman law—as a mere lien. But there is this difference: in English law the creditor by foreclosure may completely acquire a property in the mortgaged thing: in the Roman law he could not; he could only alien the thing, repay himself, and hand over the residue of the proceeds to the mortgager. The right of the pledges or mortgagee was much like the right which would be acquired in our own law by a mortgage with a power of sale, provided the mortgage could not foreclose.⁸² In the Roman law the creditor could not acquire property in the subject.

Remarks on the term ‘jura in re alienâ,’ sometimes called jura in re, or jura.

Before I conclude I will remark, that jura in re alienâ are sometimes called jura in re, and sometimes jura simply. As I have stated in my tables, the phrase jura in re is often used by modern Civilians as synonymous with jura in rem or dominia in the largest acceptation; that is, rights which avail against the world at large. But that is a misconception of the meaning of the term as used by the Roman lawyers.

‘Droits réels’ is ambiguous, as sometimes denoting jura in rem, and sometimes jura in re (sensu stricto). This arises from the extension of jus in re to dominia, and of jus ad rem to obligationes or jura in personam.

Difficulty: Where a thing is subject to a series of rights,—is subject to a series of vested rights (descendible perhaps from present vestees), or to contingent rights to determinate parties, existing or not.

But the right of the occupant is not even inchoate. There is no specifically determinate party (existing or not) to take the right. It is nothing but a right that may accrue to everybody capable of taking, who may occupy.

Rights of which, it is difficult to fix the class.

There are certain rights whose class it is not very easy to determine, such, for instance, as an advowson. It is a right not 853importing any right of user, but only of designating or naming the party who shall enjoy or exercise a certain right. But still it is a jus in rem; for it may be disturbed by persons generally, and might be asserted by an action.⁸³ It is like many rights to personal franchises.

Quære. Right of disposition without right of user.

Power of appointing without power of enjoying. See Blackstone, vol. iii. p. 243.

If coupled with a right to enjoy the subject, a power of appointment is in reality tantamount to a power of aliening, generally or partially. If of appointing to any object whatever absolutely, it renders the limited interest to which it is attached absolute property.

[Observe that a right of disposition does not necessarily suppose a right of user: And that an unlimited right of user by way of consumption, supposes no right of disposition.

A limitation of user, as well as of disposition, is, however, necessarily supposed, wherever there is a vested right in another; since the last would otherwise be nugatory].—Marginal Note.

A right to personal tithes, is not a servitude. So far as it amounts to jus in rem it is a right without a specific subject: analogous to a right in a monopoly; a right in an office; a right to a toll; a right to jurisdiction, etc. The right in each particular case to exact the tithe, is jus in personam arising from a quasi-contract; like right to possession against a possessor bonâ fide.

[Tithe is a Servitus combined with an obligation (s. s.) on the occupant: A right to a part of the produce of the subject adversus quemcunque, with an obligation on the actual occupant to set out, etc.—Marginal Note. Blackstone, vol. iii. p. 89.]

Analogous also to the case of right in a servant;—my right against him is jus in personam; but my right against the rest of the world, in rem.

Quære. Whether prædial tithe be a servitude? And, if so, whether real or personal? It is attached to an office.⁸⁴

NOTE.

ON THE LAND CONTRACTS OF THE MIDDLE AGES, AND THE ORIGIN OF THE WORD FEUDUM.

The tenure which, in the Latin of the eleventh century, assumed the name of Feudum, was modelled in part upon the tenure Precario (so called 854from preco because the grant was made on the petition of the tenant), and in part upon the Emphyteusis of the later Roman law.

In the eighth and ninth centuries, and possibly still earlier (Marculfi Formulæ, apud Baluze), precarium found favour with the lords (probably lay as well as churchmen, although we know most about the latter owing to the more careful preservation of their documents), doubtless because it gave the tenant possession availing against all except the grantor (Dig. xliii. 26, ‘De precario’), and gave a disseisor of the grantee no title at all. But it gave the heir of the grantee not even a possessory title. (Dig. ‘De precario,’ l. 12, § 1. cf. l. 4, § l.)

Possibly for this last reason, certainly in fact, the contract of Emphyteusis became commonly grafted upon the Precarium (Muratori, Antiq. Med. Ævi, dies. xxxvi.). Emphyteusis had, moreover, the advantage, looking from the part of the lord, of imparting to the personal obligation annexed to the grant a character of greater legal weight than the mere promise or offer contained in the prayer for the possession precario. It was also conveniently elastic. ‘Talis contractus quia inter veteres dubitabatur, et a quibusdam locatio, a quibusdam venditio existimabatur, lex Zenoniana lata est, quæ emphyteuseos contractus propriam statuit naturam, neque ad locationem neque ad venditionem inclinantem, sed suis pactionibus fulciendam.’ (Inst. iii. 24, § 3.)

Combining with the precarium the elastic form of the emphyteusis, it is easy to conceive how the contract so moulded was ready to incorporate whatever amongst local usages and tenures, German, French, or Celtic, would be likely to bring money into the exchequer of the lordly clients of the conveyancers who adopted the model. So far the explanation is simple. Although we should not imagine that these feudal lawyers had much originality of invention, they may be credited with a certain combination of subtlety and learning, including some acquaintance with the Institutes and Imperial Constitutions of Justinian.

But the appearance of the word feudum is more difficult to account for. Muratori (Antiq. Med. Ævi, vol. i. p. 575), with a critical judgment rare in his time (1734), denies that it occurs in any genuine document earlier than the eleventh century, and challenges proof to the contrary. Proof does not appear to have been forthcoming, and Robertson (Hist. of Charles V., Proofs, p. 269) mentions that a charter of King Robert of France (a.d. 1008) is the earliest deed in which he has met with the word feudum. It must, therefore, be latinised vernacular and not corrupted Latin.

Much ingenuity has been spent upon accounting for this word. Several have hit upon the idea of connecting it with some root of which pecus, pecunia, &c., are the Latin derivatives (Spelman, Gloss. voce ‘Feudum;’ Robertson, Hist. of Charles V., Proofs, p. 269; Jamieson’s Scottish Dictionary, voce ‘feu;’ Guizot, Hist. of Civilisation). But they have attempted the connection through Anglo-Saxon or German roots, which have to encounter the difficulties, 1st, of the late introduction of feus into England; and, 2ndly (the objection of Palgrave), that the German name for land of feudal tenure is not any word akin to feu, &c. but Das Lehen.

While looking for light upon the subject, a friend has drawn my attention to the article, voce ‘Fio,’ in the Etymological Dictionary of Romance Languages by Diez. (Wörterbuch der romanischen Sprachen, von Friedrich Diez: Bonn, 1853; and transl. and ed. by Donkin. London: Williams and Norgate, 1864.) I here give an abstract:—

‘Fio, Ital.; Provençal, old Catalan, feu (hence old Portug. feu): French 855fief (from the old fieu), [German translation, Lehngut, Lehnzins]: verb, French fieffer (from the old fiever), Provençal affeuar [zu Lehen geben]. The Romance words immediately accord with the Lombardian fiu in faderfiu-m [väterliches Gut], the old High German fihu, fehu [Vieh], the Gothic faihu [Vermögen], the old Friesland fia in both senses [Vieh and Vermögen. Here Donkin suggests pecus, and I may add pecunia]. The h was dropped, the short e in fehu became the diphthong ie (as the Provençal mien from the Latin meus), and the Provençal u sharpened into the French f (as the French juif from Provençal judeu), which f also strongly asserts itself in fieffer (comp. ensuifer and ensuiver). In the Sicil., fegu (as usual) substitutes g for h. From fiu, feu, came an important word of middle-age Latin, which appeared about the ninth century in the form feudum, feodum, the d being inserted for euphony, as in ladico for laico, &c.’

This seems conclusive. It avoids the objection of Palgrave, and, moreover, it accords with certain historical indications of the system having been matured amongst Longobard lawyers. (Spelman, ut supra; Erskine, Institute of the Law of Scotland, b. ii. tit. iii. § 6.) It also accounts for all the set of words, Fief, Feoffment, Feu, Infeft, and Fee.

There remains, however, stir a word to say about Emphyteusis. The idea of its identity with feu, fio, &c., is not merely the invention of our own age. It belongs to the period of transformation itself, and possibly tended in some measure to aid the assimilating power of the contract so moulded by these mediæval lawyers.

I will cite a curious example from the coIlection of Muratori, to which I have referred. (Antiq. Med. Ævi, vol. i. p. 15.) The descriptive heading given by him is ‘Charta permutationis inter Ingonem Episcopum Mutinensem et Bonifacium Ducem et Marchionem Tusciæ atque Rechildam ejus uxorem in qua conjuges Episcopo donant Castra et Curtes Bajoariæ et Fossati Regis, Episcopus vero eis concedit in emphiteusim Castra et Curtes Clagnani et Saviniana. Anno 1033.’ The conveyance on the part of the bishop after mentioning the parcels, and the destination to the duke and wife and the survivor and the heirs of their bodies, proceeds as follows:—‘habendum tradidi precaria atque enfiothecaria nomine .…’

The witnesses to the bishop’s signature are two lawyers, one described as legem viventis Longobardorum, and the other as legem viventis Romana. Doubtless these lawyers had settled the draft, and between them coined, or borrowed from others of their craft, the strange word enfiothecaria. The word speaks for itself of the association in the minds of the authors.

It only remained to systematise the consequences of this threefold combination : viz. the precarium, the emphyteusis, and the various incorporated tenures. This was a task exactly suited to the capacities of these mediæval lawyers, Longobard and others, and by the time of the appearance of the libri feudorum—(whether in the twelfth century or later)—that had been fairly accomplished. The traces of all three sources long remained in the feudal law. The necessity of new investiture of the heir was a consequence of the precarium, the forfeiture ob non solutum canonem, of the emphyteusis, the fealty, homage, &c., of the particular usages of the various societies who adopted the contract.—R. C.