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OMAGGIO A LETIZIA VACCA

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 JEROEN CHORUS*

INVESTITURA PROPRIE DICITUR POSSESSIO:

SOME REMARKS ON POSSESSION
IN THE LIBRI FEUDORUM

SOMMARIO: 1. Introduction. – 2. In the Libri feudorum the vassal has a real right
with regard to land. – 3. The fief entitles the vassal to possession of land. –
4. Possession and investitura. – 5. Function of possession for the acquisition
of the right of fief in land. – 6. Procedural or evidential function of posses-
sion of land as fief. – 7. Police function of possession of land as fief. –
8. Quasi possession of a right as fief. – 9. Conclusion.

1. Introduction
It is well known that the Libri feudorum are a very peculiar
part of the medieval Corpus iuris civilis. Peculiar, in that they re-
ceived their main form, the so-called recensio vulgata, shortly before
1250, while the Digest, the Institutes, the Codex and the Novels all
date from the 6th Century, at the latest. Peculiar also, in that they
were composed out of a handful treatises on northern Italian local
customs (as practised in the feudal courts at Pavia, Piacenza, Cre-
mona, Verona, but mostly in the court at Milano), to which were
added a number of constitutiones of Kings and Emperors of the
Holy Roman Empire. Peculiar, in the third place, because they are
written in a Latin which is, let us say, often rather different from the
Latin in the other parts of the Corpus iuris civilis.
I spent a good part of the last few years, together with Jop
Spruit, emeritus professor of Roman Law at Utrecht, on translating

* Jeroen M.J. CHORUS is a sometime vice-president of the Amsterdam Court of

Appeal and a sometime ordinarius professor of Roman law and legal history at Leiden
University. – This text was closed in April 2016. Annotation has been restricted to
what seemed to be strictly indispensable. Translations from the Latin are my own.
88 JEROEN CHORUS

the Libri feudorum into Dutch, covering also the seven appendices
up to and including the Peace of Constance of 1183. The Latin text
and the translation were published in April 20161. This may explain
why I chose the Libri feudorum as the source from which to take ‘le
situazioni possessorie’ to be presented at the 2015 ARISTEC con-
vegno.
I recall to you, in brief, how the Libri feudorum and their gloss
were made2. Around 1150 (between 1138 and 11543), Obertus de
Orto, at Milano, wrote two small treatises on the feudal customs, in
the shape of letters to his son Anselmus, who then was a student at
Bologna and had complained that his professors did not lecture on
the feudal usages. Obertus was a very experienced imperial causi-
dicus and judge and was many times consul of Milano. The two
treatises were soon enough inserted into what became the so-called

1 J.E. SPRUIT and J.M.J. CHORUS (transl.), C.H. BEZEMER (introd.), Libri feudorum
(Corpus iuris civilis. Tekst en vertaling, Deel 12 Addendum), Amsterdam, 2016.
2 I follow P. Weimar’s view, as developed in his Die Handschriften des Liber feu-
dorum und seiner Glossen, in Riv. intern. di dir. comune, I, 1990, 31-98; now also in
WEIMAR, Zur Renaissance der Rechtswissenschaft im Mittelalter, Goldbach, 1997, 171*-
238*, with Addenda et emendanda, 368*-371*. This view differs in some respects from
P. WEIMAR, Die legistische Literatur der Glossatorenzeit, in Handbuch der Quellen und
Literatur der neueren europäischen Privatrechtsgeschichte, I, Mittelalter (1100-1500),
edited by H. Cong, München, 1973, 166-168 and 186-188. The older literature is
found in WEIMAR 1973 and 1990 (1997); it has, of course, not been entirely super-
seded. Fundamental remains, inter alia, E.M. MEIJERS, Les glossateurs et le droit féodal,
in TR, XIII, 1934, 129-149, now also in E.M. MEIJERS, Etudes d’histoire du droit,
Leyde, 1959, 261-277. See also H. LANGE, Römisches Recht im Mittelalter, I: Die Glos-
satoren, München, 1997, 86-90; E. CORTESE, Il diritto nella storia medievale, II: Il basso
medioevo, Roma, 1995, 159-167 and 181-182; ID., Le grandi linee della storia giuridica
medievale, Roma, 2000, 304-308 and 317-318; M.G. DI RENZO VILLATA, La formazione
dei “Libri feudorum” (tra pratica di giudici e scienza di dottori), in Il feudalesimo nel-
l’alto medioevo, II, Spoleto, 2000, 651-721.
Good recent surveys are given by G. DILCHER, voce Libri Feudorum, in Hand-
wörterbuch zur deutschen Rechtsgeschichte, III, Berlin, 2015, col. 970-976; and H.
DONDORP - E.J.H. SCHRAGE, The sources of medieval learned law, in The creation of the
ius commune, edited by J.W. Cairns (et al.), Edinburgh, 2010, 7-56, at 49-52.
3 Obertus, in LF 2.3.1, refers to Emperor Lotharius III as bonae memoriae and
that emperor died 13th December 1138; and he does not mention legislation of
Emperor Frederic I Barbarossa relevant to his argument, e.g. the lex Quoniam divina
of July-August 1152, received in LF 2.27, and the Roncaglian lex of 1154, referred to
in LF 2.33.3.
 INVESTITURA PROPRIE DICITUR POSSESSIO 89

Antiqua compilatio, or Obertine recensio, of the Libri feudorum4. In

later, expanded versions of this collection of feudal consuetudines
imperial legislation was added as well. One of these versions, dating
from the end of the 12th century, is known as the Ardizonian recen-
sio, because it was – erroneously – attributed to Jacobus de Ardi-
zone, originating from Verona and teaching in Bologna during the
second quarter of the 13th century. From the first part of the 13th
century dates the so-called Accursian recensio, but by the mid 13th
century it had been ousted by the Vulgata version of the Libri feu-
dorum, developed independently from the Accursian one. The Libri
feudorum, divided into two books, each subdivided into titles (some
of which have been further subdivided) were, occasionally already in
the early 13th century, generally at some later date, inserted into the
Corpus iuris civilis, behind the nine collationes of the Authenticum,
as the Collatio decima. Since Odofredus this insertion was – erro-
neously – attributed to the glossator Hugolinus Presbyteri.
The glossator Pillius, in the years after he had left (probably in
1180) Bologna for Modena, had begun writing an apparatus of
glosses to the Ardizonian version, but it was not completed5 when
he died (in or before 12136). To a later version than the Ardizonian
one, Accursius, at Bologna, wrote the first complete apparatus7, in-
corporating in it most of Pillius’ Apparatus. After 1228, Accursius
published a second, expanded edition. An unknown glossator,

4 The first letter has been retained in LF 2.1-2.22 (but probably LF 2.6 and 2.7
pr did not form part of it), the second letter in LF 2.23-24.
5 According to the edition of A. ROTA, L’apparato di Pillio alle consuetudines feu-
dorum, in Studi e memorie per la storia dell’Un. di Bologna, XIV, 1938, VII, 1-170,
based on but one out of the six surviving manuscripts, the apparatus contains 255
glosses to LF 1.1 up to and including 2.37, as well as 2.55 and 2.56, but excluding 2.6
and 2.7 pr. WEIMAR 1990, 72 (1997, 212*) doubts whether glosses 202-204 to LF 2.27
and 245-255 to LF 2.55-56 originate from Pillius.
6 LANGE 1997, 229 with fn 23. CORTESE 2, 1995, 160 fn 36, and 2000, 305 fn 265,
rightly observed that the fact that the apparatus was not completed need not mean that
it was written in the last years of Pillius’ life.
7 Since Andreas de Isernia (†1316), this first complete apparatus was erroneously
attributed to Jacobus Colombi; thus still by WEIMAR 1973, 187, but he changed his
view in WEIMAR 1990, 224*-226* with 370*-371*, applauded by R. FEENSTRA, Do-
minium utile est chimaera: nouvelles réflexions sur le concept de propriété dans le droit
savant, in TR, LXVI, 1998, 381-397; now also in R. FEENSTRA, Histoire du droit savant
(13e-18e siècle), Aldershot e c. 2005, at 387 with Addenda 3; applauded also by
CORTESE 2000, 318 with fn 313.
90 JEROEN CHORUS

however, adapted Accursius’ first edition, mainly by adding text-

critical remarks. This adaptation became, as from the mid 13th cen-
tury, the Glossa ordinaria, which, for the sake of convenience, we
will still call the Accursian Gloss though this part of the Glossa or-
dinaria, i.e. the Glossa ordinaria on the Libri feudorum, is an adap-
tation of Accursius’ work, made by an unknown other glossator.
To the two books of the Libri feudorum a number of imperial
leges have been added, first as extravagantes, which have also been
provided with glosses. In later periods, some of these leges were
inserted into the two books of the Libri feudorum. The remaining
extravagantes, together with further imperial leges, canons from the
Decretum Gratiani and fragments of treatises and opinions of prac-
titioners and academic scholars, were accommodated, over the cen-
turies, in seven appendices, written, later printed, behind the Libri
feudorum (though the seventh appendix, the Peace of Constance of
1183, never was called appendix)8.

2. In the Libri feudorum the vassal has a real right with regard to
land
Before 1037, the relation between lord and vassal, in Roman
legal terminology, may only be described in terms of a set of con-
tractual obligations, springing from a kind of locatio conductio oper-
arum9 or, perhaps, operis. The knight was bound to perform mili-
tary services to the lord, who, on his turn, was bound to grant him
a stipendium, consisting in a personal right to receive the fruits of
some crown land or church. The lord, however, was free to revoke
such a right at will and grant the use of the land to someone else. In
this period the vassal does not yet have possession of the land.
Things changed, however, after the so-called Lex Conradi, the
lex In nomine, also known as Edictum de beneficiis, issued by the
Emperor Conrad II the Salian during the siege of Milano in 103710,

8 See, on the insertion of the Peace of Constance and its gloss into the Corpus
iuris civilis, CORTESE 2000, 392 fn 578.
9 P. BRANCOLI BUSDRAGHI, La formazione storica del feudo lombardo come diritto
reale, Milano, 1965, 35; 2nd, revised, edition, Spoleto, 1999, 41.
10 LF Appendix 5 [Cuiacius].1. See on this lex e.g. K. LEHMANN, Das lango-
bardische Lehnrecht, 1896 (below, fn 22), 77-80; CORTESE 2000, 169-170; H. KELLER,
 INVESTITURA PROPRIE DICITUR POSSESSIO 91

Three provisions of this statute should be highlighted here. In the

first place, the right of the chivalrous vassal was largely made irrev-
ocable, except if his own culpa justified his losing it, and the lord
was forbidden to exchange the land given in fief with a third party
or to charge it with precarium or emphyteusis in favour of a third
party, without the vassal’s consent. In the second place, it was
made, to some degree, inheritable, for it was provided that it would
pass, on death of the knight, to his son or certain other male near
agnates. Thirdly, the statute established the special court of the vas-
sal’s peers, the other vassals of the same lord, having jurisdiction
with regard to disputes between lord and vassal, e.g. whether the
vassal’s conduct amounted to culpa as just mentioned, withdrawing
that jurisdiction from the ordinary judices.
Henceforth, the feudal law in the Regnum Italicum, in the last
resort, does not rest on custom but on this imperial statute. This is
the main point on which Italian feudal law differs profoundly from
that of the transalpine countries. One will readily subscribe to this
view of Piero Brancoli Busdraghi. Before the Lex Conradi of 1037,
a feudal law, in the sense this term is commonly used, did not at all
exist in Italy11.
As Brancoli Busdraghi has equally convincingly demonstrated,
until the end of the third quarter of the 11th century the Lex Con-
radi was so interpreted that it did no more than compel the lord,
first, to renew the feudal service contract on the vassal’s death in
favour of the latter’s son and, secondly, not to dissolve it at will. The
vassal’s right was not yet seen as inheritable. And, if the lord had, in
violation of the Lex Conradi, alienated the land, the vassal could not
revendicate it from the third party; he could only bring a claim
against the lord before the feudal court of peers. The vassal’s right,
in other words, was only obligatory, it was not yet a real right12.
During the first half of the 12th century, in the Lombard King-
dom, in the practice of notaries and other lawyers the vassal’s right
in his feudum developed into a real right and an inheritable right.
By then, a fief, though still subject to various restrictions and con-

Das Edictum de beneficiis Konrads II. und die Entwicklung des Lehnswesens in der
ersten Hälfte des 11. Jahrhunderts, in Il feudalesimo, I, 2000, 226-257.
11 BRANCOLI BUSDRAGHI 1965, 51-52; 1999, 76-79.
12 BRANCOLI BUSDRAGHI 1965, 132-135; 1999, 173.
92 JEROEN CHORUS

ditions, came to guarantee to its titular a fairly sure and durable

control over the land. This accommodated the fact that infeudation
was now frequently used in practice for purely commercial pur-
poses which had nothing to do with its original, military function13.
Possibly a iudex et notarius at Arezzo, Guglielmo, in the instrument
of a feudal concession made up by him in 1129, already thought
that a feudal concession produced not only an obligatory relation
but also a real right14.
Obertus de Orto is the first to make (as seen above, between
1138 and 1154) a true and proper dogmatic analysis of the fief, ac-
cording to more or less exact Romanist concepts. His definition is
retained in Libri feudorum 2.23.115.
LF 2.23.1. …Huius autem generis [i.e. beneficii] species quae-
dam est beneficium illud quod ex benevolentia ita datur alicui,
ut proprietas quidem rei immobilis beneficiatae penes dantem
remaneat, ususfructus vero illius rei ita ad accipientem transeat,
ut ad eum heredesque suos masculos, sive feminas si de his no-
minatim dictum sit, in perpetuum pertineat, ad hoc ut ille et sui
heredes fideliter domino serviant…
Of this class [of benefit], one type is that benefit which is
given to someone out of benevolence, so that the propriety of
the immovable thing given as benefit remains with the giver,
but the usufruct of that thing passes to the receiver in such a
way that it shall perpetually belong to him and his male heirs,
or also his female heirs if especially was spoken of these, to this
end that he and his heirs shall faithfully serve the lord.
There cannot be any doubt that this right of fief is, in later
terminology, a real right, a ius in re aliena, a ius in re, though it is
neither here nor elsewhere in the Libri feudorum explicitly brought
under that category. In Obertus’ analysis the lord retains the
proprietas of land given in fief, and the vassal receives a perpetually
inheritable ususfructus of that land, subject to an obligation of
fidelity and service to the lord.

13 BRANCOLI BUSDRAGHI 1965, 127-129.

14 BRANCOLI BUSDRAGHI 1999, 179-182.
15 See on this text also CORTESE 2000, 309 with fn 279.
 INVESTITURA PROPRIE DICITUR POSSESSIO 93

An inheritable usufruct cannot exist under Roman law, and it

is odd that Obertus did not opt for emphyteusis, which is inherita-
ble. This is the only place in the Libri feudorum where the vassal’s
right to the land is qualified as ususfructus and no consequences are
derived from it. Already in Pillius’ apparatus, as later incorporated
in the Accursian Gloss, the quaint duality of inheritable ususfructus
and proprietas is abandoned. It was replaced by the duality of do-
minium directum and dominium utile16, quite so with regard to the
rights of lord and vassal as with regard to the rights of owners and
holders of certain other real rights17. In the Libri feudorum them-
selves, however, the concepts of dominium directum and utile are
not yet found, so we will not go into them.
Elsewhere, Obertus tells us that the vassal has the ability, as if
he himself were dominus, to quasi revendicate for himself the land
from whatsoever possessor and that he equally has the ability to
claim, obviously from the owner of land owing a servitus to the in-
feudated land, that this easement will be respected. See Libri feudo-
rum 2.8.118.
16 Gloss De suis rebus, to LF 2.3 pr; gloss Vendicare, to LF 2.8.1; gloss Tertiam
personam, to LF 2.34.3; gloss Ipse enim solus utiliter, to LF 2.43. Gloss De suis rebus
incorporated Pillius’ gloss 127, gloss Vendicare his gloss 139 and gloss Tertiam
personam his gloss 227, according to the edition of ROTA 1938, at 104-106, 112-114
and 159. See on glosses De suis rebus and Vendicare also CORTESE 2000, 310 fn 284 and
283. The gloss Ipse enim solus utiliter does not appear to have incorporated any of the
glosses edited by ROTA and may thus have been written in full by Accursius.
17 The other real rights mentioned are superficies, emphyteusis and the right of is
qui perpetuo vel ad non modicum tempus fundum conduxit, the lessee of land for ever
or for a non-short time. According to Bezemer, the dominium utile of the feudal vassal
is, probably, an invention of Pillius; see K. BEZEMER Legal remedies for non-Roman law
in medieval doctrine, in TR, LX, 1992, 63-80, at 79; now also in Miscellanea Domenico
Maffei dicata, II, Goldbach, 1995, 171-188, at 187. Feenstra concluded already in 1971
that Pillius was the first to avail himself of the term dominium utile with regard to the
right of the vassal, in the glosses to the Libri feudorum, mentioned in the preceding fn
and in other writings, and, while correcting a number of errors in his argument, he
could stick to that conclusion in 1998 and 2005: R. FEENSTRA, Les origines du
dominium utile chez les glossateurs, in Flores legum H.J. Scheltema oblati, Groningen,
1971, 49-63; now also in his Fata iuris Romani, Leyde, 1974, 215-259 with Notes
additionnelles nos. 91-97 at 397; FEENSTRA, Dominium, 1998 and 2005 with Addenda
3-4. See also: CORTESE 2000, 308-310; G. DILCHER, Das lombardische Lehnrecht der
Libri feudorum im europäischen Kontext, in Ausbildung und Verbreitung des Lehnswe-
sens im Reich und in Italien im 12. und 13. Jahrhundert, edited by K.H. Spiess,
Ostfildern, 2013, 41-91, at 75.
18 See on this text also CORTESE 2000, 309 with fn 279.
94 JEROEN CHORUS

LF 2.8.1. Rei autem per beneficium recte investitae vasallus hanc

habet potestatem, ut tanquam dominus possit a quolibet possi-
dente sibi quasi vindicare et si ab alio eius rei nomine convenia-
tur, defensionem opponere. Nam et servitutem eidem rei debi-
tam petere potest et retinere.
Pursuant to the fief of the land which the vassal has been
rightly invested to, he has this power that he, as if he himself
were dominus, may quasi revendicate it for himself from any
which possessor, and, if sued by a third party concerning this
land, may oppose his defence. For he may also claim and re-
tain an easement which is owed to the same land.
Note that the object of the fief (beneficium) is res, a thing, and
particularly: land, as is clear from the fact that it is a praedium dom-
inans to which an easement is owed. Most fiefs referred to in the
Libri feudorum are fiefs of land (below, in Section 8, we will, very
lightly, touch upon fiefs of other property than land that may be
met in the Libri feudorum).
In this passage and in similar passages we are faced with dis-
putes between a third party and a vassal who has been invested by
his lord with regard to land, where that third party claims to be the
true owner of the land, or of part of it, or to have an easement or
any other real right in the land. It is said that the vassal when sued
has the power to oppose his defence, which implies that he need
not ask his lord to respond to the claim in his stead.
And Libri feudorum 2.43 states that the vassal can take part in
the procedure quasi as if it were his own procedure, because he has
the power to respond utiliter to an action on his own, and that
whether the judgment is in his favour or against him or the vassal
settles the matter with the other party, the lord should approve of it
just as if he himself had taken part in the procedure19. The view
that, under the Libri feudorum, the vassal has a real right in the
19 LF 2.43. Si controversia inter vasallum et alium de beneficio fuerit, adversario
proprietatem totius, vel partem, vel servitutem, vel aliud aliquod ius sibi vindicante,
causa per vasallum etiam domino absente quasi propria ad finem perducatur. Ipse enim
solus utiliter agendi et excipiendi habet potestatem, et si pro eo aut contra eum iudicatum
fuerit, vel cum adversario transegerit, dummodo fraudulenter factum non sit, etiam si
post beneficium domino aperiatur, tale erit, ac si eo causam agente iudicatum fuisset, et
ideo ab eo ratum haberi oportebit.
 INVESTITURA PROPRIE DICITUR POSSESSIO 95

land, while the lord remains the owner, the proprietor, of the land,
is further confirmed here.

3. The fief entitles the vassal to possession of land

In Libri feudorum 2.8.4 we are told by Obertus:
LF 2.8.4. Quamvis enim possessio per beneficium ad eum perti-
neat, tamen proprietas ad alium spectat…
For, though pursuant to the fief, possession comes to [the vas-
sal], yet propriety regards another person [viz. the lord].
Obertus points out that the possession belongs to the vassal,
by virtue of his fief, but that the propriety belongs to the lord. At
last, we meet the vassal’s possessory situation: he is entitled to pos-
session. Possession of what? It must be, without any doubt: posses-
sion of the land which he holds as fief. Not possession of the real
right in the land, but possession of the land itself. This follows from
the fact that it is contrasted with the position of the lord, viz. pro-
priety, ownership, which can only relate to the land. It is important
to stress that in the Libri feudorum the object of the vassal’s posses-
sion is almost always land. We read regularly: possessio beneficii or
possessio feudi, and possidere beneficium or possidere feudum, but
this is evidently the normal way of saying that the land itself which
the vassal holds in fief, is possessed. There is not the slightest indi-
cation that a real right of fief is possessed. In the same way as the
right of ownership of a thing, in many legal systems, is identified
with the thing itself, in the Libri feudorum feudum or beneficium is
frequently being identified with the land encumbered with it.
The possessory situation of the vassal is, of course, only met in
the Libri feudorum, not in any other part of the Corpus iuris civilis.
It is – normally – the possessory situation of the vassal with regard
to the land he holds as fief from the lord. Unlike the lessee, but sim-
ilar to e.g. the creditor who possesses a thing as pignus, the precar-
ious possessor and the emphyteuta, the vassal is a ‘Fremdbesitzer’.
His possessory situation is called, in the Libri feudorum, possessio,
possidere, tenere or habere. It may be acquired by the vassal by tra-
ditio (including missio by the lord in possessionem) or successio.
96 JEROEN CHORUS

4. Possession and investitura

Often acquisition of possession of a fief appears to occur pur-
suant to an act of the lord and the vassal which is called investitura.
In Libri feudorum 2.8.1 we met the term investitae, alongside possi-
denti. We shall have to pay attention to the relation between pos-
session and investitura in the Libri feudorum.
This investitura is clearly an important part of establishing the
feudal relation between lord and vassal. There are yet other parts of
establishing that relation which will be mentioned instantly. We saw
that the vassal often acquires possession of the land following in-
vestitura. Not rarely, however, the prospective vassal already ac-
quired possession before participating in an investitura; in that case,
investitura may either take place at a later date, or it may never take
place. We must therefore carefully distinguish between, on the one
hand, acquisition of possession of the land and, on the other hand,
investitura with regard to the land.
Let us read in Obertus’ first treatise, Libri feudorum 2.2 pr.
LF 2.2 pr. Investitura quidem proprie dicitur possessio, abusivo
autem modo dicitur investitura quando hasta vel aliud corpo-
reum quodlibet porrigitur a domino feudi, se investituram facere
dicente…
Investitura, properly speaking, is called possession, but in an
improper way it is called investitura when a lance or some
other thing is handed over by the lord of a fief while saying he
is performing an investitura.
Investitura, after 1250, is an act of lord and vassal. However,
here Obertus ascribes to the term investitura, in the proper sense of
the word, the meaning of possession of the land given in fief. It is
the vassal’s possessory position itself, not the act in virtue of which
he acquires possession. It will not come as a surprise that this am-
biguity of the term investitura has caused much confusion among
the readers of the Libri feudorum. Already Accursius deals with the
text as if it said that, properly speaking, investitura is called posses-
sionis traditio20. But Accursius and most other Glossators did not
fully understand the text, knowing little of Langobard law.
20 Gloss Dominum possessionem feudi, ad LF 2.26.15: …alias enim si de propria
investitura loqueretur, nulla esset dubitatio. Ad quid enim teneretur dominus tradere
 INVESTITURA PROPRIE DICITUR POSSESSIO 97

Investitura or vestitura as the term for possession of land ap-

pears in documents, first north of the Alps, after the carolingian
conquest also in Italy, from the 9th century onwards. It is the Latin
translation of the German ‘Gewere’ and the French ‘saisine’. The
‘Gewere’ was known to Germanic peoples in Western Europe, such
as the Langobards and the Franks21. The semantic root of ‘Gewere’
is ‘wern’, which means dressing or clothing someone, but it also in-
cludes the notion of keeping or guarding something. I will not go
any deeper into ‘Gewere’, one of the most controversial concepts of
European medieval legal history. It seems to be generally accepted
that possessio of the Roman law in some respects is similar to
‘Gewere’ and, at any rate, ‘Gewere’ was translated into Latin both
as investitura and as possessio.
Otherwise than Accursius, Obertus obviously knew the old no-
tion of investitura in the sense of possession, but he was well aware
of the fact that in contemporary feudal practice the term investitura
was used, no longer in that sense, but generally to indicate one out
of a series of acts usually required for establishing the feudal relation
between lord and vassal with regard to land. The other acts are: the
vassal’s swearing the oath of fidelity, facere fidelitatem, and acquiring
possession of the land, either by taking it on having been missus in
possessionem by the lord, or by receiving it on traditio.
Possessio, in LF 2.2 pr, is interpreted by Karl Lehmann, in his
classical editions of the Libri feudorum, as ‘Gewere’ or ‘saisine’, to

possessionem, cum iam tradita erat?… See E.M. MEIJERS, Het zogenaamde jus ad rem,
in RIDA, V, 1950, 183-202; now also, translated into French as: Le soi-disant “jus ad
rem”, in MEIJERS, Etudes d’histoire du droit, IV, Leyde, 1966, 175-189, at 183 (note
that, in fn 28 at 183, clearly § sciendum – not: secundum – of LF 1.25 is meant).
Meijers’ attribution of the gloss to Jacobus Columbi will no longer be subscribed to.
The gloss does not appear to have incorporated any of Pillius’ glosses edited by ROTA
1938 and may thus have been written in full by Accursius.
21 G. KÖBLER, Die Herkunft der Gewere, in TR, XLIII, 1975, 195-211; G. DI-
URNI, Le situazioni possessorie nel medioevo. Età longobardo-franca, Milano, 1988, 57-
82; CORTESE 1, 1995, 330-333; ID. 2000, 194-196; E. CONTE, Vetustas, prescrizione
acquisitiva e possesso dei diritti nel medioevo, in E. CONTE et al., Uso, tempo, possesso
dei diritti, Torino, 1999, 49-128, at 69-75; W. OGRIS, voce Gewere, in Handwörterbuch,
II, 2008-2012, col. 347-352; E. CONTE, Gewere, vestitura, spolium: un’ipotesi di inter-
pretazione, in Der Einfluss der Kanonistik auf die europäische Rechtskultur, I: Zivil- und
Zivilprozessrecht, edited O. Condorelli (et al.), Köln, 2009, 169-191; also in B. D’ALTE-
ROCHE et al. (ed.), Mélanges Anne Lefebvre-Teillard, Paris, 2009, 267-287.
98 JEROEN CHORUS

which he adds: traditio realis22. If Lehmann is implying here that we

may interpret possessio as traditio realis, a physical handing over of
possession, he does not explain, and I do not see, why this interpre-
tation should be justified. I suggest we stick to possession. I feel
happy to follow here the view of eminent scholars like Giovanni Di-
urni23, Mario Montorzi24 and Cristina Danusso25. Obertus intended
to say the following. The term investitura corresponded, properly
speaking, to the Roman concept of possessio. It had come, however,
to be used in an improper way to indicate the solemn act between
the lord and the vassal, forming part of the concession of a fief. Ap-
parently, the author feels a little uneasy about the latter terminology,
for he stresses that it is an improper way of speaking, if not the pos-
session itself of the land, but that solemn act, is called investitura.
Danusso explains Obertus’ choice of the words abusivo modo
as justifiable by the fact that jurists trained in Roman law, accus-
tomed as they were to the rule traditionibus et usucapionibus do-
minia rerum, non nudis pactis, transferuntur26, were not inclined to
accept the Germanic principle according to which things were
transferred by virtue of a symbolic act, without the physical traditio
of the thing itself. We should not, however, read implied in what
Danusso is writing here, that Obertus taught that the fief was
granted by mere investitura by way of handing over the hasta and
pronouncing ritual words. Such a view was clearly not held by
Obertus. As is obvious from other passages of Obertus’ two trea-
22 K. LEHMANN, Consuetudines feudorum, I: Compilatio antiqua, Gottingae 1892,
24 fn 6, and ID., Das langobardische Lehnrecht, Göttingen, 1896, 115 fn 5: «‘Gewere’
‘saisine’ traditio realis…». Both editions have been reprinted in Consuetudines feudo-
rum, edited by K.A. Eckhard, Aalen, 1971. Lehmann refers to the fundamental study
A. HEUSLER, Die Gewere, Weimar, 1872, repr. Aalen, 1968, at 291. Heusler, however,
clearly is referring here to investitura abusivo modo dicta, not to delivery of possession;
at 297 he is writing, clearly with regard to investitura proprie dicta, that in LF 2.2 pr
“eine Reminiscenz an früheren Zeiten… sich… ausspricht: ursprünglich hiess der
Besitz investitura”.
23 DIURNI 1988, 74 fn 68.
24 M. MONTORZI, Diritto feudale nel basso medioevo, Torino, 1991, 95-99; ID.,
L’“intellettualismo pratico” della lectura super usibus feudorum di Baldo degli Ubaldi, in
VI Centenario della morte di Baldo degli Ubaldi 1400-2000, a cura di C. Frova (et al.),
Perugia, 2005, 205-261, at 251.
25 C. DANUSSO, Ricerche sulla “Lectura feudorum” di Baldo degli Ubaldi, Milano,
1991, 92-93.
26 C. 2.3.20.
 INVESTITURA PROPRIE DICITUR POSSESSIO 99

tises, investitura was required but not sufficient for vesting the vas-
sal with the real right in the land. Beside other acts, such as the oath
of fidelity, it was particularly also required that the vassal either was
in possession of the fief already before investitura, or was given pos-
session of it at the same time of or subsequently to investitura. Mere
investitura could produce only a personal right.
Whatever the reason of Obertus stating that it is improper to
call investitura the solemn act with the lance and ritual words, that
statement appears to be merely rhetorical. In the rest of his treatises
it is only investitura in this improper sense of the word which is dis-
cussed: how investitura is done, by whom and to whom it may be
done, what, if it is done with respect to land which does not belong
to the lord, etc. That investitura is an act is manifest in the Latin ex-
pression investituram facere, which is often used. You cannot ‘do’
possession. The same is true if the author avails himself of the fol-
lowing expressions: investituram confirmare, ratam habere, implere,
investire aliquem or investire aliquam rem. We find, less frequently,
investituram dare and concedere, or, seen from the vassal’s part, in-
vestituram accipere. In these terms investitura could, in theory, mean
both possession and the solemn act. It seems to me, however, that
also in these cases it is always the solemn act that is envisaged, not
possession.
A century after Obertus, the Decretalists of the canon law are
distinguishing two types of investitura, concerning both the spiri-
tual and the temporal corollaries of ecclesiastical dignities. Investi-
tura may have the sense of introduction into possession and is then
called investitura realis or corporalis. It is opposed to investitura in
the sense of granting a right itself (without an introduction into or
a transfer of possession), called investitura verbalis or abusiva27.
Likewise, with regard to the feudal relation, the writers of glosses to
and summae on the Libri feudorum, from Accursius onwards, often
say that a double investitura is required: a formal, verbal, abusive
one, and a real, corporeal one. Thus, while LF 2.26.15 merely holds
that a lord who performed an investitura of a fief but did not trans-
fer possession of it, may be compelled to deliver possession of the

27 C.G. BRUNS, Das Recht des Besitzes im Mittelalter und in der Gegenwart,
Tübingen, 1848, 199, fn 4.
100 JEROEN CHORUS

fief concerning which he performed the investitura, Accursius

writes in the gloss Dominum possessionem feudi to this capitulum:
“and you should understand that this passage speaks of that in-
vestitura, i.e. the verbal one, which in an improper way is called so,
not of the one which properly speaking is called investitura, ac-
cording to what is said above, in LF 2.2 pr”28. In the Libri feudorum
themselves, inclusive of all the seven appendices, nowhere the in-
troduction of the vassal into possession or the transfer of possession
to the vassal is called investitura nor is it anywhere said that a dou-
ble investitura takes place. Moreover, as far as I can see, nowhere in
the rest of the Libri feudorum, apart from LF 2.2 pr, investitura
means possession; it always means the solemn act of lord and vas-
sal. Equally, in the Libri feudorum investitura is called abusiva only
in capitulum 2.2 pr.
Meijers29 argued that investitura per hastam in Libri feudorum
2.2 pr is a descendant of the act required for the transfer of owner-
ship of land under Lombard law. That act (which Meijers, like
many scholars of his time30, called traditio per cartam) was originally

28 LF 2.26.15. Si facta de feudo investitura poeniteat dominum, antequam posses-

sionem transferat: an praestando interesse vasallo liberetur, quaesitum fuit. Responsum est
praetermissa illa condemnatione dominum possessionem feudi de quo investituram fecit
tradere compellendum. The part of the gloss Dominum possessionem feudi we are con-
cerned with here, is: …Et intelligas quod hic loquitur de ea investitura, scilicet verbali,
quae abusivo modo dicitur, et non de ea quae proprie dicitur investitura, secundum quod
de utraque dicitur supra quid sit investitura. ca. j. [LF 2.2 pr]… The gloss may be attrib-
uted to Accursius, as was argued above, in fn 20, when another part of it was quoted.
29 MEIJERS (1950) 1966, 180-186. Meijers started from a passage in the Summa
feudorum, contained in a manuscript in the Bibliotheca Palatina at Parma. This trea-
tise had for centuries, at least since Baldus, 1393, been attributed, erroneously, to
Jacques de Révigny. Meijers hypothesised that its author wrote at an earlier time than
Révigny, before 1250, because he did not yet know the Accursian Gloss on the Libri
feudorum, but did know the Glossa ordinaria on Justinian’s codification, and he situ-
ates that author in the Kingdom of Naples. See CORTESE 2000, 372 with fn 504 for fur-
ther references. Bezemer recently argued that the author, more likely, is the glossator
Jacobus Balduini, a student of Azo and a teacher of many famous men, such as
Jacques de Révigny, Odofredus and Hostiensis, and that he composed the summa
between September 1234 and his death, 10th April 1235: K. Bezemer, Jacobus Bal-
duini: probably the author of the Summa feudorum Parmensis, in TR, LXXIV, 2006,
325-335.
30 MEIJERS (1950) 1966, 180 fn 19, refers to F. SCHUPFER, Il diritto privato dei
popoli germanici, II: Possessi e dominii, Città di Castello, 1909, 127 f. (in the 2nd ed.,
III, 1914).
 INVESTITURA PROPRIE DICITUR POSSESSIO 101

accompanied by handing over a stick or something else, symboliz-

ing or even representing the land which was transferred. Soon,
enough, this formal act took place independent of any transfer of
possession and was effective not only against the transferor but also
against third persons. If the owner under Lombard law transferred
the same land twice, to different persons, it was not the person that
first had been sent into possession of the land, but the one to whom
first the land had been formally transferred who became the owner,
and he could revendicate his land from whichever third person.
Meijers saw a specific type of such a formal transfer of ownership
without handing over possession already in the 7th Century, in the
Edictus Rothari31. This, however, is clearly no longer the position
under the Libri feudorum32. If two persons each have been invested
by the same person, not the one who had first been invested but the
one who obtained possession will prevail, as may be derived from
LF 2.34.1 and LF Appendix 4 [Baraterius].3.

31 In capitula 173 and 174 of the Edictus Rothari (or Edictum Rotharis) which
MEIJERS refers to, we are concerned with a gratuitous transfer of res suae, all the
transferor’s property. The transferor remains in possession and may use and exploit it
in a reasonable way until his dying day, but he must not squander it, non dispergat res
ipsas postea doloso animo, nisi fruatur eas cum ratione. He is even entitled to sell or
mortgage it to a third person if necessity compels him so to do and the first transferee
does not want to help him; what he thus gave to that third person, will be stable
and firm for the latter, quod alii dederit, sit illi stabilem et firmum. See on these texts
also CORTESE 1, 1995, 137-138. Both capitula have been inserted into the Lombarda,
2.15.2-3.
32 According to MEIJERS (1950) 1966, 183, the first book of the Libri feudorum
still shows the old view that the vassal’s right was not established by effective transfer
of possession, but by the formal investitura. He points, in fn 28 (where clearly scien-
dum is meant, instead of secundum), to LF 1.25 pr: Sciendum est feudum sine investi-
tura nullo modo constitui posse, etiamsi domino iubente quis alicuius rei possessionem
nomine feudi nanciscatur et teneat. Licet tamen possessionem taliter adeptam dum
vixerit quasi feudi nomine retinere, herede eius in hoc iure nullo modo ei succedente.
One must admit that the text is perplexing, as Meijers put it (in the translation into
French of J. Van Damme), “les commentateurs postérieurs ne savent à quel saint se
vouer pour expliquer cette conception”. It may, however, be submitted that neither
this text nor the rest of the first book offers a sufficient basis for the idea that this first
book shows the view that the vassal acquired his real right in the land by mere formal
investitura, in the absence of delivery. LF 1.25 pr does show no more than the view
that (obviously in the case of land in possession of the lord, which either had not yet
been given in fief before, or had returned to the lord) delivery is not sufficient, if no
investitura had occurred.
102 JEROEN CHORUS

LF 2.34.1: Si inter pares duos de aliquo beneficio controversia

sit, quorum uterque suum feudum proprium esse dicat, sive asse-
rant eundem investitorem, sive diversos, coram iudice vel arbitro
finiatur. Sed cum unum producunt investitorem, si possidenti
sine fraude dominus guarentare voluerit, ipse obtinebit, nisi
adversarius contra aliquid induxerit.
If there is a dispute about some fief between peers, of whom
both say it is his own fief, then, whether they assert they had
been granted investitura by the same person or by different
persons, this should be ended before a judge or an arbitrator.
But if they produce one and the same person as their grantor
of investitura, then, if the lord wants to guarantee for the peer
who possesses without fraud, this one will win, unless the ad-
versary could bring forward something against it.
LF Appendix 4 [Baraterius].333. Tit. VI. c. 4. Beneficium intel-
ligitur investitura cum traditione. Ex quo ita fit, ut, si quis primo
investiatur re nondum tradita, ille, cui posterior investitura cum
traditione facta fuerit, potior habeatur.
Title 6, capitulum 4. A fief is deemed to [come about] by in-
vestitura combined with delivery. Hence the position is thus
that, if first someone is invested and the thing has not yet been
delivered, another person to whom a later investitura com-
bined with delivery has been made, must be considered the
strongest.
The act of investitura, on its own, does neither provide the vas-
sal with possession nor with a real right. In modern terminology, in-

33 MEIJERS 1966, 182 fn 26, holds: “Voir également Capitula extraordinaria Bara-
terii, c. 3; cf. également la Summa de Jacobus de Ardizone c. 36”. But “Voir également”
is a ‘Verschlimmbesserung’ and should rather run “Voir”. The Dutch text of 1950 has:
“Zie Capitula extraordinaria Baraterii, c.3, ook aangehaald in de Summa van Jacobus
de Ardizone, c. 36”. Indeed, LF App. 4.3 is the very passage from “un capitulum
extraordinarium de la fin du XIIe siècle” which is quoted by Meijers. No doubt,
Baraterius published his Libellus feudorum reformatus, – in which he inserted this and
other capitula extraordinaria not otherwise handed down to us – in 1442, but he had
taken these capitula from an unknown old codex, which may well, with MEIJERS, be
dated by the end of the 12th century. See E.A. LASPEYRES, Über die Entstehung und
älteste Bearbeitung der Libri feudorum, Berlin, 1830, repr. Aalen, 1969, 132.
 INVESTITURA PROPRIE DICITUR POSSESSIO 103

vestitura is an obligatory contract. By it the lord binds himself to

provide the prospective vassal with the real right of fief in the land
and to allow him to take possession of the land, while the vassal
binds himself and his heirs to render certain services to the lord,
services generally and services as specified in the investitura. The
acquisition of possession may concur with investitura but may as
well, and does frequently, happen at another time, before or after
investitura. In the case of a new fief, the vassal will take possession
soon after investitura; in the case of an old fief, often the vassal will
have possession already before investitura.

5. Function of possession for the acquisition of the right of fief in

land
In the Libri feudorum possession plays an essential role in the
creation of the vassal’s real right in the land, in vesting the vassal
with his feudal right in the land. It is a dynamic function of posses-
sion: possession, combined with the proper formalities, provides
the vassal with his real right in the land. This function, fulfilled by
possession with regard to the acquisition of property rights, is well
known to the modern lawyer. It is the function of possession as the
basis of delivery of a right. It operates in legal systems, such as the
Austrian, Dutch and German system, which require, in principle,
traditio, delivery, for the transfer of property rights and for the cre-
ation of limited absolute rights in property, like the Roman Law of
the Corpus iuris civilis required traditio for such transfer and cre-
ation. That function is not allotted to possession in e.g. the Belgian,
French and Italian system, where, in principle, solus consensus of
transferor and transferee about transfer or creation suffices for the
passing of property rights and the establishing of limited rights.
We saw already above, in Section 4, that LF Appendix 4.3 is
explicit in requiring, beside investitura, also traditio for creating the
real right of fief in land. In some seven other passages in the Libri
feudorum that function of possession is met. Repeatedly it is said
that investitura binds the lord to provide the vassal with possession.
LF 1.4 pr. …[S]i investitura facta fuerit coram paribus curtis…,
recte eum qui investitus est, cogitur dominus mittere in feudi
possessionem.
104 JEROEN CHORUS

If investitura has been performed before the peers of the court,

the lord is rightly compelled to send the person who has been
invested, into possession of the fief.

And the vassal is entitled to specific performance. The lord

could be compelled to introduce the vassal into vacua possessio and
to compensate for all the vassal’s missed utilitas during the time the
lord postponed providing possession.

LF 2.7.1. Investitura… facta et fidelitate subsecuta, omni modo

cogatur dominus investitum in vacuam possessionem mittere;
quod si differat, omnem utilitatem ei praestabit.
When investitura has been performed and the oath of fidelity
has followed, the lord may in each manner be compelled to
send the person invested into free possession; and should he
postpone this, he shall compensate that person for all utility
[he missed].

But the lord cannot confine himself to paying compensation:

if, after investitura, he regrets having performed it, he must never-
theless transfer possession.

LF 2.26.15. Si facta de feudo investitura poeniteat dominum an-

tequam possessionem transferat, an praestando interesse vasallo
liberetur, quaesitum fuit. Responsum est: praetermissa illa con-
demnatione, dominum possessionem feudi de quo investituram
fecit, tradere compellendum…
With regard to the case that, after investitura concerning the
fief has been performed, the lord were to regret this before he
transfers possession, the question has been raised whether he
will be liberated on compensating the vassal for his interests.
The answer has been given: that besides that condemnation
[with regard to the interests], the lord may be compelled to
deliver possession of the fief concerning which he performed
investitura34.

34 The text and a gloss to it were already discussed above, Section 4, fn 20 and
main text at fn 28.
 INVESTITURA PROPRIE DICITUR POSSESSIO 105

The lord and the prospective vassal may, however, at the occa-
sion of investitura agree that it will only be implemented at a later
date, e.g., if the fief was in the hands of another person to whom it
had been granted before, as soon as the fief would return to the
lord; then the lord and his successor are bound to implement the
investitura and transfer possession when the agreed time has
come35. The relation between investitura and possession had been
expressed, with regard to ecclesiastical beneficia, in a maxim which
Gratian inserted in his Decretum: Maius est possessionem dare,
quam sit investituram concedere, ‘it is a greater deed to give posses-
sion than to concede investitura’. It was applied to fiefs as well,
and, sometime between 1240 and 1293, inserted into the Capitula
extraordinaria of Jacobus de Ardizone which were appended to the
Libri feudorum36.

6. Procedural or evidential function of possession of land as fief

We may now continue reading LF 2.2 pr and 137. For the sake
of clarity, however, we omit much of the detail concerning proof of
investitura and the vassal’s quasi-possession38. This text is apparently
concerned with a new fief and with the situation where the vassal
claims that investitura has been performed, but the lord denies it.
LF 2.2 pr. …Si… domino adhuc in possessione constituto, an
facta sit investitura quaeratur, non debet probari nisi per pares
curtis illius domus vel per publicum instrumentum a… paribus
confirmatum…, aut iurisiurandi domino detur electio ut… iuret
‘investituram factam non esse’ aut sacramentum vasallo referat,

35 LF 1.3 pr-1; 2.35; except if church land is concerned and the clerical lord dies
before the fief has returned to him: then the infeudation is cancelled, LF 1.25.1.
36 Decretum Gratiani C 16 q 2 c 1 § 1; LF App. 3 [J. de Ardizone].150.16. As E.
Seckel has demonstrated, LF App. 3.150.2-26 have not been included by Jacobus de
Ardizone himself among his capitula extraordinaria as collected in cap. 150 of his
Summa feudorum (composed between 1227 and 1240), but were later inserted into
that cap. 150, some time before 1393, when Baldus’ Lectura super usibus feudorum was
completed: E. SECKEL, Quellenfunde zum lombardischen Lehenrecht, in Festgabe Otto
Gierke, I, Breslau, 1910, 47-168, at 152-160.
37 Some aspects of LF 2.2 pr were discussed above, Section 4.
38 Below, in Section 8, we will discuss what LF 2.2.1 has to say on quasi-posses-
sion.
106 JEROEN CHORUS

et ille aut iuret aut acquiescat… 1. Si vero vasallus quidem possi-

deat,… dominus autem, feudum negans esse, rem suam petat,…
tunc non est opus probatione sed possidenti data electione aut
iuret ‘suum esse feudum rectum’ aut domino referat iusiurandum.
If the question is raised whether investitura has been done,
then, when the lord is still in possession, proof must be
brought by means of the vassal’s peers in the court of the lord’s
house, or by means of a public instrument confirmed by the
peers, [and if that proves to be impossible,] the lord may be
given the choice, either to swear ‘that investitura has not been
done’, or to refer the oath to the vassal, and the latter must
then swear or acquiesce. 1. When, however, the vassal pos-
sesses but the lord denies there is a fief and demands the land
as his own, there is no need for proof, but the person who pos-
sesses is given the choice either to swear ‘that his is a proper
fief’ or to refer the oath to the lord.
We are meeting here a second function of possession in the
Libri feudorum, again well known to the modern lawyer: the proce-
dural or evidential function of possession. It operates essentially in
the same manner under Roman law as under many modern legal sys-
tems. It operates in a lawsuit concerning a dispute as to who has a
real right or another absolute right in property, ownership or an-
other full or limited right, and it consists in that the burden of proof
of the disputed right lies with the person without possession. The
possessor need not prove that he has a right by which he is entitled
to his possession, but may await whether the person who claims to
be entitled in his stead, will be able to prove that person’s preten-
sion. Modern codes express this rule mostly as a rebuttable pre-
sumption of title (in the sense of entitlement) in favour of the pos-
sessor39, but the Libri feudorum do not know of any such expression.
There are some 16 passages of the Libri feudorum where pos-
session of land plays this procedural role40. They present a vivid
image.
39 E.g.Dutch Civil code, Art. 3:119 para. 1: ‘De bezitter van een goed wordt
vermoed rechthebbende te zijn’, the possessor of property is presumed to be the
person who has title.
40 Besides the passages discussed in this Section, also: LF 1.12, 1.26 pr, 2.8.1 and
2.43.
 INVESTITURA PROPRIE DICITUR POSSESSIO 107

In LF 2.2 pr-1 we are told of disputes between the lord and

someone pretending to be his vassal, where the question is whether
investitura had been properly performed. If the lord is in posses-
sion, the pretender must bring evidence, and if he fails in proving,
the lord must swear an oath or refer the oath to the pretender. If,
however, the pretender is in possession, ‘there is no need for proof’,
apparently: proof to be brought by such a pretender. The passage
tacitly supposes that the lord may, but does not, bring evidence that
investitura never had been performed. This, however, does not
mean that then the possessor already is victorious, for he must still
swear an oath or refer the oath to the lord.
Likewise, in a number of other passages, it is generally stated
that the pretender in possession need not prove his assertion that
investitura has been performed, but is given, on account of his pos-
session, a defence consisting of the possibility to swear an oath to
that assertion41.
Some refining, however, must be applied. LF 2.33.2 seems to
deal with the same question in dispute between a lord and a pre-
tender, i.e. whether investitura had been properly performed. This
text only refers to the situation where the pretender is in posses-
sion. It qualifies the statement (of LF 2.2.1) that he must be given
the choice to swear the oath that investitura has been performed
(or, as we may add, to refer the oath to the lord). When there is, we
are told, some circumstance in favour of either party by which the
court is moved, that party – hence: not necessarily the possessor –
will be given the choice to swear (or to refer the oath). But if there
is no such circumstance other than the possession of the pretender,
the court may, if the lord does not prove that investitura never oc-
curred, either give the pretender the choice, or dismiss the lord’s
claim even without the pretender (or the lord) having sworn an
oath42.

41 LF 1.4.1, 4 and 5; 1.10; 1.23; 2.58.3 in fine.

42 LF 2.33.2. Sacramentum non semper est dandum possidenti, sed quandoque pos-
sidenti, quandoque petenti, quandoque neutri; et cum alicui horum datur, ita demum
datur, si aliquid pro eo sit, quod iudicem moveat. Ubi nihil est, quod faciat pro aliquo
eorum, praeter possessionem solam, tunc secundum quod iudici melius visum fuerit aut
possidenti dabitur sacramentum, aut actore nihil probante, qui convenitur, etiamsi nihil
praestiterit, obtinet…
108 JEROEN CHORUS

LF 2.33.5 gives some further information, not to be thought

conflicting with what we read in LF 2.2 pr and 1. As to the case
where the lord is in possession, this passage adds that then no oath
may be sworn and the claim against the lord must be dismissed. As
to the case where the pretender is in possession, it is made clear that
the lord may certainly bring evidence and that only if he is not suc-
cessful in proving that investitura never occurred, the oath comes
within sight. But there is a qualification of the statement that the
pretender in possession is competent to swear the oath that investi-
tura has been performed. Not each possessor may swear, but only a
possessor whose possession is longa, lengthy. If, however, his posses-
sion is new, it is open to the lord to swear, unless there is some other
circumstance than that new possession in favour of the pretender.
LF 2.33.5. Si inter dominum et vasallum controversia sit de
beneficio, possidente domino, et vasallo in probatione deficiente,
qui convenitur nullo praestito sacramento absolvatur; vasallo
vero possidente, et actore in probatione deficiente, si longa sit
vasalli possessio, eius iuramento causa finiatur. Ubi vero nova est
possessio, sacramentum ei non praestabitur, sed domino defere-
tur, nisi aliud faciat pro possidente.
If there is a controversy between the lord and the vassal about
the fief, when the lord possesses and the vassal fails in furnish-
ing proof, the claim against the person sued must be dismissed
without any oath having been sworn; but when the vassal pos-
sesses and the claimant fails in furnishing proof, if the vassal’s
possession is lengthy, the cause must be ended by the latter’s
oath. Where, however, his possession is new, the oath will not
be allowed to him but referred to the lord, unless something
else works in favour of the person who possesses.
How long must possession have lasted in order to qualify as
lengthy? The question was highly debated, and various passages of
the Libri feudorum seem to contradict each other on this issue. The
authoritative answer was given by Accursius, in the (first) gloss In
possessione to LF 1.4.1.43.
43 This
gloss does not appear to have incorporated any of Pillius’ glosses edited
by ROTA 1938 and may thus have been written by Accursius.
 INVESTITURA PROPRIE DICITUR POSSESSIO 109

LF 1.4.1. Si vero fuerit in possessione [feudi] et mota fuerit ei

controversia a domino, ei defensio detur propter possessionem…
If [someone], however, is in possession of the fief and against
him a controversy [about the investitura with regard to the
fief] is raised by the lord, he must because of this possession
be given the defence [by oath].

Gloss In possessione: In qua stetit ad minus per annum et do-

mino sciente et non contradicente: ne alias iusta ignorantia vel
parvi temporis negligentia cum iniquae possessionis periurio
quandoque domino posset damnum afferre: ut infra, si de feu.
defun. conten. sit inter do. et agna. vas. § si facta de feudo [LF
2.26.15, recte LF 1.26.1 in fine].
In possession: In which he has been at least for a year, while
the lord knew it and did not object to it: so that not otherwise
[the lord’s] justified ignorance or short-lived inadvertence,
combined with [the possessor’s] perjury concerning unjust
possession, might sometimes inflict damage to the lord, as be-
low, LF 1.26.1 in fine.
When the Accursian gloss points to LF 1.26.1, it clearly refers
to the last two sentences of that text.
LF 1.26.1. …Si autem aliquis in possessione feudi sit, de quo do-
minus dicit ‘eum investitum non fuisse’, tunc sine probatione
ulla testium debet solus iurare: ‘se vel patrem suum fuisse inve-
stitum’. Haec autem sunt ita tenenda, si per unum annum
sciente domino et non contradicente in possessione feudi per-
mansit, alioqui iusta ignorantia vel parvi temporis negligentia
cum iniquae possessionis periurio quandoque domino in posses-
sione<m> damnum afferat.
If someone is in possession of a fief and the lord asserts ‘he has
not been invested of that [fief]’, then he may on his own, with-
out any proof by witnesses, swear: ‘that he or his father has
been invested’. This, however, must only be so held, if he has
remained in possession of the fief during one year while the
lord knew it and did not object to it; otherwise [the lord’s] jus-
110 JEROEN CHORUS

tified ignorance or short-lived inadvertence, combined with

[the possessor’s] perjury concerning unjust possession, might
sometimes inflict damage to the lord if he is in possession.
Thus, the oath to the assertion that investitura has been per-
formed, is only open to the pretender if his possession has lasted
one year and, additionally, has been exercised with the lord’s
knowledge and without his objecting to it. This would restrict the
procedural function of the vassal’s possession, if not so qualified, to
the mere advantage of not having to prove the investitura by means
of witnesses or a public instrument.
More or less the same impression arises from Libri feudorum
2.33 pr, the sentence starting with Inde etiam.

LF 2.33 pr. …Inde etiam dicitur quod, si aliquis probaverit se

aliquid nomine beneficii aliquo tempore tenuisse domino prae-
sente et non contradicente et servitium eius quasi a vasallo reci-
piente: licet non probet investituram, veruntamen obtinebit
praestito iuramento, nisi aliud contra inducatur.
Therefore it is also stated that if someone has proved that he
has held something during some time under the name of fief,
while the lord was present, did not object to it and received his
service quasi as from a vassal, then, though he cannot prove in-
vestitura, he will nevertheless prevail [in the procedure against
the lord] after having taken the oath, unless something else is
brought forward against it.
The time is not specified as a year, but it is similarly stressed
that the possession had been exercised in the lord’s presence and
without the lord objecting to it, which implies that this exercise
happened with the lord’s knowledge.
The difficulty remains, as I see it, that most passages in the
Libri feudorum merely require possession, without qualifications as
to the duration of the possession and as to its exercise with the
lord’s knowledge and without objections having been made by the
lord.
Libri feudorum 1.28 shows an uncommon Milanese case. A is
possessor of land which had, more than 30 years before, been given
 INVESTITURA PROPRIE DICITUR POSSESSIO 111

in possession to his late father as security, pignus, for a money loan.

That fact is apparently undisputed. A, however, pretends his father
had later on been invested of the land as a fief. Now the lord has
died and his son offers the money leant and demands that the land
be freed from the security and, presumably, that the possession be
restored to him. Apparently, no evidence of the pretended investi-
tura is available. Just as in Libri feudorum 2.2.1, the pretender in
possession is competent to swear an oath or refer the oath to the
son of the lord and if the pretender swears, respectively if the lord’s
son does not swear, the latter must perform investitura of the land
as a fief. We may leave aside the fact that the oath the possessor is
allowed to swear includes that during 30 years no claim with regard
to the security had been made from the side of the lord. What mat-
ters for our argument, is that also in this case possession is allowed
to fulfil its procedural function.

7. Police function of possession of land as fief

A third function which may be awarded to possession is the
so-called police function. Here the role of possession is envisaged
to keep or restore the public peace by way of a provisional measure.
The law facilitates this role by giving the possessor certain remedies
by which he could protect his possession against infringements,
even against infringements perpetrated by someone with a better
right than the possessor himself. The Libri feudorum do neither
mention the Roman interdicta, nor the medieval ‘rédintegrande’,
‘complainte’, ‘maintenue’ or actio spolii. No doubt, these remedies
were open in practice to feudal possessors, but they do not figure in
the Libri feudorum. Nevertheless, the Libri feudorum do provide for
something like a possessory remedy and for interim possessory
remedies.
Libri feudorum 2.22.1 focuses on the infringement committed
by the lord who first intrudes the fief in an improper manner and
next does not respond adequately to the vassal’s complaint thereof.
LF 2.22.1. Si vero vasallus conqueritur de domino, forsan quia
feudum malo ordine intravit, domino perperam respondente,
quid vasallo faciendum sit? quaeritur. Respondeo: eum curiam
112 JEROEN CHORUS

debere vocare, et in eadem curia de domino conqueri. Curia au-

tem debet adire dominum, eumque salva reverentia competenter
cogere, ut vel possessionem restituat, et acquiescat, vel iudicio cu-
riae se committat. Quod si ter admonitus facere distulerit, tunc li-
ceat vasallo ad aliam maiorem potestatem ire, et sibi consulere, et
si dominus ei iustitiam facere noluerit, poterit eum depraedare.
If, however, the vassal complains about the lord – e.g. because
he entered into the fief in a bad way – and the lord responded
the wrong way, it is asked what the vassal should do. I reply he
must convene the court and complain in that court about the
lord. The court must approach the lord and, with due respect,
compel him sufficiently to either restore possession and acqui-
esce or commit himself to the court’s judgment. But if he, hav-
ing been urged three times, has postponed to do this, then the
vassal must be allowed to address another higher authority and
arrange for himself, and if the lord has not wanted to do him
justice, the vassal will be able to deprive him of the possession.
Some kind of possessory remedy is here granted to the vassal:
he can ask the peers’ court to compel the lord to restore possession
or subject himself to the court’s judgment. And if the lord will not
yield, the vassal may approach a higher authority and is permitted
to take the possession away from the lord. It does not look like a
very useful remedy.
In a number of passages in the Libri feudorum a provisional
measure occurs: the court allows the vassal to retain provisionally
possession of the land, pending the further course of the procedure
concerning the right in the land.
In one of the extraordinary capitula of Jacobus de Ardizone,
LF Appendix 3.149.1044, we are faced with a conflict between the
lord and the vassal concerning the fief, contentio de beneficio. Be-
fore the principal case may be dealt with, so we are told, on the one

44 LF App. 3 [J. de Ardizone].149.10. Tit. LXXXII. Prius possessionem resti-

tuendam esse, quam de principali causa agatur. Si qua contentio de beneficio inter
aliquos, prout saepe fieri solet, orta fuerit, si unus dominus vel loco domini habeatur, et
alter vasallus vel loco vasalli habeatur, si per pares secundum usum regni iudicium ven-
tiletur, primo de suo recto beneficio investiri debet, et si possessio aliqua perturbata
fuerit, modo restitui debet.
 INVESTITURA PROPRIE DICITUR POSSESSIO 113

hand the vassal must be invested de suo recto beneficio, with regard
to his rightful fief, and on the other hand, if any possession had
been disturbed, this possession must be restored. Though it is not
made clear what the conflict was concerned with, obviously it was
not disputed that the vassal had a personal right to the fief. Note
that the possession which had been disturbed and should be re-
stored could be the lord’s as well as the vassal’s possession. Also,
the disturbance amounted clearly to loss of possession.
Similarly, in LF 2.26 pr-245, in various positions in the case a
vassal has died, such a provisional measure is given.
First, in the principium, a dispute between the lord and the ag-
nate relatives of the vassal is discussed. The lord asserts that the fief
was new and therefore has returned to him; the agnates pretend
that the fief had already been granted to their forefather. Appar-
ently the lord has already assumed possession. In that situation, so
the text, the agnates must straight away be brought into possession
and only after this the principal question will be decided.
Secondly, in § 1, the dispute is between the vassal’s daughter
and the agnates. She asserts that is was no fief but allodium or em-
phyteusis; the agnates pretend it was a fief. Now possession must
provisionally be put up with the daughter.
In the third place, in § 2, we are presented with the dispute be-
tween the lord and the daughter, where he asserts it was a fief and
she it was allodium or emphyteusis. Possession, in this situation,
must remain with the daughter until a judgment on the matter will
be brought.

45 LF 2.26. Si de feudo defuncti militis sit contentio inter dominum et agnatos de-
functi, domino novum feudum, agnatis vero paternum esse contendentibus, agnati in pos-
sessione feudi, de quo quaeritur, constituendi sunt. Eo facto, super principali quaestione
cognoscendum est, utroque autem deficiente in probatione, electio iurisiurandi agnatis
danda est.
1. Inter filiam defuncti et agnatos eius de quodam praedio mota est quaestio, ag-
natis feudum, filia vero allodium sive libellarium esse asserentibus, super possessione,
apud quem manere debeat, quaerebatur. Responsum est: apud filiam possessionem in-
terim esse collocandam, deficientibus vero hinc inde probationibus, per iusiurandum
causa cognita res decidatur, electione danda agnatis.
2. Defuncto milite, inter dominum et filiam illius super quodam feudo [recte:
fundo] quaerebatur, domino feudum, filia allodium sive libellarium esse allegante. Re-
spondi: filiam in possessione feudi [recte: fundi] manere debere, donec de eo iudicetur;
probatione vero hinc inde cessante, electio iurisiurandi filiae danda est.
114 JEROEN CHORUS

In the last two cases a possessor, the daughter, is allowed pro-

visionally to retain possession of the land, pending the further
course of a procedure. The first case seemingly is in contradiction
with the other two, for here the possessor, the lord, must provi-
sionally vacate his possession and leave it to the agnates who had
never been possessors. The explanation may be that the agnates
should normally, if it was really an old fief, as successors of the de-
funct vassal, have acquired possession in a derivative way, while the
lord can only have acquired possession by way of occupation.

8. Quasi possession of a right as fief

So far, we only discussed the type of fief and possession which
mostly occurs in the Libri feudorum, viz. a fief of land and posses-
sion of land. Land may include here what does cohere to land, such
as buildings and fruits. Movables can generally not be subject to a
fief (except what must be given annually or monthly)46. It is well
known that already in the later Middle Ages also incorporeal prop-
erty was given out in fief. The Libri feudorum mention such fiefs, but
for the most only in passing, without further analysis. Such is the
case of jurisdiction over the territory of dukes, margraves and
counts47, and advocacy over ecclesiastical institutions48. The only in-
stances of fiefs of incorporeal property which are given some analy-
sis in the Libri feudorum are the chamber fief and the cellar fief,
feudum camerae aut canevae. Roughly speaking, such fiefs entitle the
vassal to money payments or supplies of food or wine out of what
from time to time is stored by the lord in a chamber or cellar49.
Let us go into a part of Libri feudorum 2.2.1 which we omitted
when we read that text while discussing the procedural function of
possession.
46 LF 2.1.1. Sciendum est autem feudum sive beneficium non nisi in rebus soli aut
solo cohaerentibus, aut in iis quae inter immobilia connumerantur, velut cum de camera
aut de cavena [recte: caneva] feudum datur, posse consistere…
47 E.g. LF 1.14 pr; 2.10 pr; 2.55.4; App. 1 [H. de Gambolado].1; App. 3 [J. de
Ardizone].150.3; App. 7 [Peace of Constance].5, 6 and 18. See on App. 3.150.3 above,
fn 36.
48 E.g. LF 2.27.16; App. 3 [J. de Ardizone].150.12-15, 22 and 25. See on these
capitula of App. 3.150 above, fn 36.
49 See on this peculiar type of fief, besides LF 2.2.1, also LF 2.1.1 and 2.58 pr.
 INVESTITURA PROPRIE DICITUR POSSESSIO 115

LF 2.2.1. Si vero vasallus quidem… feudum camerae aut cave-

nae [recte: canevae] in duabus seu tribus acceptionibus quietis
quasi possideat, dominus autem, feudum negans esse,… quod de
camera vel de cavena [recte: caneva] bis vel ter, sicut diximus,
iam solutum est, deinceps solvere renuat, tunc non est opus pro-
batione, sed possidenti data electione aut iuret ‘suum esse feu-
dum rectum’, aut domino referat iusiurandum.
When, however, the vassal, by way of two or three undisturbed
receipts, quasi possesses a fief of a chamber or cellar, but the
lord denies there is a fief and refuses henceforth to pay what,
as we said, has been performed already twice or three times
from the chamber or cellar, there is no need for proof but the
person who possesses is given the choice either to swear ‘that
his is a proper fief’ or to refer the oath to the lord.
We notice that the expression quasi possidere is used and that,
according to this text, if the right of fief has been quietly exercised
a few times, this is enough for quasi-possession, while this quasi-
possession fulfils the procedural function in the same way as in the
case of regular possession of land as a fief.

9. Conclusion
Our conclusion could be brief. Possession plays an important
role in the Libri feudorum. We met with two vital functions of pos-
session in the feudal customs. First, possession is essential for the
acquisition of the right of fief in land. Of course, there is more re-
quired than possession for such acquisition, notably investitura.
Secondly, possession fulfils an essential procedural function. It al-
lots, in a conflict between the lord and someone who pretends to be
his vassal, the burden of proof of investitura concerning a fief in
land to the non-possessor; if evidence is not brought or if it fails,
the possessor must still confirm his stance by choosing between
swearing an oath or referring the oath to the other party, but the
pretender is only allowed this choice if his possession has lasted a
year with the lord’s knowledge and without his having objected. A
police function in the usual form, viz. remedies for the possessor to
protect his de facto position by means of interdicta or possessory ac-
116 JEROEN CHORUS

tions, does not figure in the Libri feudorum. Nevertheless, some-

thing like a possessory remedy of the vassal against the lord occurs.
And there are also some situations where possession entitles its
holder to remain in possession, or where the heirs of a possessor are
even entitled to be brought into possession – always provisionally,
as long as the lawsuit concerning the right has not terminated. But
if possession had been disturbed in such a way that the possessor
had lost it, it must always be restored to the former possessor. It
may, therefore, be submitted that in the Libri feudorum possession
does also play a police role, albeit a modest one. Finally we saw that
the procedural function of possession does also operate in the case
of quasi-possession of a right.
There is perhaps a further point we may conclude. The Libri
feudorum, in all their peculiarity, easily reaching in places the point
of being bizarre in our eyes, and in spite of their chaotic structure
and internal contradictions, must not be neglected as a source of
wonderful case law. We are presented with sound, creative and in-
ventive legal argument, for all its lack of dogmatic finesse.