2. In feudal questions we are governed, in the first place, by our own statutes and customs ;where these fail us, we have regard to the practice of neighbouring countries, If the genius of their law appears to be the same with ours ; and should the question still remain doubtful, we may have recourse to the written books of the feus, as to the original plan on which all feudal systems have proceeded.
3. This military grant got the name, first of benrficium, and afterwards olfeudum ; and was defined, 4 gratuitous right to the Property of lands, made under the conditions of fealty and military service, to be performed by the grant or to the receiver, the radical right of the lands still remain ing in the grantor. Under lands in this definition, are comprehended all rights or subjects so connected with land, that they are deemed a part thereof ; as houses, mills, fishings, jurisdictions, patronages, Sec. Though feus in their original nature were gratuitous, they soon became the subject of commerce ; services of a civil or religious kind were frequently substituted in place of mili tary ; and now, of a long time, services of every kind have been entirely dispensed with in certain feudal tenures. He who makes the grant is called the superior, and he who re ceives it the vassal. The subject of the grant is common ly called the feu, though that word is at other times in out law used to signify one particular tenure. The interest retained by the superior in the feu is styled dominium di rectum, or the superiority ; and the interest acquired by the vassal dominium utile, or th_o property. The word fee is promiscuously applied tabSili.
4.. Allodial property is 6pposed to feus, by which is un derstood, property enjoyed by the owner independently of a superior. All moveable goods are allodial ; but with us no lands arc allodial except those of the king's own pro perty, his superiorities, and manses and glebes, the right of which latter is completed by the presbytery's designation, without any feudal grant.
5. A vassal, though he has only the dominium utile, can sub-fen his property to a sub-vassal by a subaltern right, and thereby raise a new dominium direc turn in himself, sub ordinate to that which is in his superior, and so in infinitum. The vassal who thus sub-feus, is called the sub-vassal's immediate superior, and the vassal's superior is the sub vassal's mediate superior.
6. Every heritable subject capable of commerce may be granted in feu. From this general rule is excepted, 1. The annexed property of the crown, which is not alien. able without a previous dissolution in parliament. 2. Tailzied lands, which are devised under condition that they shall not be aliened. 3. An estate in hereditate jacente cannot be effectually aliened by the heir apparent (i. e. not entered) ; but such alienation becomes effectual upon his entry, the supervening right accruing in that case to the purchaser.
7. The feudal right, or as it is called investiture, is con stituted by charter and seisin. By the charter, we under stand that writing which contains the grant of the feudal subjects to the vassal, whether it be executed in the proper form of a charter or of a disposition. Charters by subject superiors are granted, either, 1. ? me de supe•iore meo, when they are to be holden, not of the grantor himself, but of his superior. This sort is called a public holdirw, because vassals were in ancient times publicly received in the superior's court, before the pares curia. or co-vassals. Or, 2. De me, where the lands are to be holden of the grantor. These were called sometimes base rights, from bar, lower, and sometimes private, because before the establishment of our records they were easily concealed from third parties : the nature of all'which will he more fully explained in the following Title. An original charter is that by which the fee is first granted ; a charter by pro gress is a renewed disposition of that fee. The constituent parts of a charter are, the narrative or recital, which ex presses the causes inducing the grant ; the diapositive clause, in which the subjects made over are described by such characters as may sufficiently distinguish them ; and here also the order of succession and limitation of the fee is expressed ; the clause of tenendas, declaring the particular tenure by which the lands are to be holden ; the clause of warrandice, by which the grantor obliges himself that the right conveyed shall be effectual to the receiver ; and the precept of seisin, which is the command of the su perior or grantor of the right to his bailie, for giving seisin or possession to the vassal or his attorney, by •delivering to him the proper symbols of that possession.