69 



FIDEI COMMISS. 



FIERI FACIAS. 



FIDEI COMMISS. According to German civil law, the fidei 

 commiss is intimately connected with the law of inheritance among 

 the nobility, being the regulation according to which the whole or part 

 of a family property is enjoyed by a certain member of the family, on 

 the condition of leaving it unimpaired to the person pointed out by 

 the particular family arrangement ; either to the first-born male, when 

 it is allied majarat; or to the last-born male, when it is called minorat; 

 or to the oldest member of the family without regard to direct descent, 

 when it is called geniorat. Like the English law of entail, the object 

 of this institution is to render the family property inalienable ; it may 

 however be mortgaged, but this is merely a temporary sequestration of 

 the revenues which are applied to cancelling the debt. In modern 

 times, this institution, like many others, has been abolished in some 

 parts of Germany, partly by the introduction of the French law, as in 

 the Rhenish provinces, and partly by the amalgamation of the former 

 German civil law with the Code Napoleon, as in Bavaria. In the north 

 of Germany, however, where the ancient Saxon law was prevalent, as 

 in Hanover, Saxony, and other countries, it has been maintained, and 

 is still in force. 



FIDEICOMMISSUM, or a transaction dependent upon honour and 

 probity (pudar) rather than legal sanction (vinculum juris), I. 2. 23, 1, 

 in the Roman law, is something given by will or codicil, not directly to 

 the person bene6cially interested in it, but to some other person, with 

 a request that he will transfer it to the party for whom it was intended. 

 The person thus intrusted was called Heres Fiduciarius ; and the per- 

 son for whom it was intended Heres Fideicommissarius. It was neces- 

 .-:n v that an heir (htres in the Roman sense) should be named, or no 

 property could be transmitted to the fideicommissarius ; for, without 

 institutio heredis," the will itself was invalid, but a fideieom- 

 missum might be left by an intestate in the manner prescribed in the 

 Institutes 2. 23, 10. (Gains, ii., 248, &c.) Originally it entirely 

 depended on the good faith of the trustee (Jiduciarlus) whether he 

 performed the will of the testator or not. 



The origin of these fideicommissa probably was in a desire to evade 

 the strictness of the old civil law ; as we see in the case of Q. P. Rufus 

 (Val. Max., iv. 2, 7), who, being an exile, was incapacitated from taking 

 a gift under the will of a Roman citizen, but yet could claim it from 

 his mother, to whom it had been given in trust for him. (See also Cic. 

 de Fin., ii. 18, 58 ; and Quintil. Declam., 325.) Gaius, however 

 (Comm., ii. 285), attributes the origin of these testamentary injunc- 

 tions to the capacity of the peregrini to receive bequests in this way ; 

 but he gives no account of the time when, or the mode in which, such 

 capacity was obtained. In the time of Augustus the rights of the 

 fideicommissarius became legally established by the emperor giving 

 the consuls jurisdiction in such matters. Afterwards pretors were 

 expressly appointed, under the name of Pratores Fideicommissarii, to 

 take cognizance of such trusts, but the consuls still retained their 

 jurisdiction also. (I. 2. 23, 1.) In the provinces the governors 

 i'/a) took cognizance of fideicommissa. (Ulpian, ' Frag.,' 25, 

 Fideicommissa, or trusts of specific things, became gradually 

 assimilated as to their qualities and incidents to legacies. The follow- 

 ing remarks apply to fideicommissa where the whole inheritance 

 (hereditax in the Roman sense), or a determinate part, was given to a 

 trustee in trust. 



By the old Roman law, the hem who was the successor in universum 

 jus defuncti, on taking possession of the testator's property, became 

 liable to all his debts and obligations, and consequently those who only 

 took the property as trustees (htredes fiduciarii) often refused to encum- 

 ber themselves with a burden from which they could derive no advan- 

 tage, and might sustain great loss. To remedy this inconvenience, it 

 was enacted by the Senatusconsultum Trebellianum, passed in the 

 i' NVro, that when the trustee had given up the property to the 

 inmissarius (eestui que trust of the English law), all right of 

 actions by or against the trustee, in respect of the property, should be 

 transferred to the cestui que trust. (I. 2. 23, 4 ft 6.) 



If the trustee refused to accept the inheritance, the pretor, on the 

 n nf the cestui que trust, could compel him under the Senatus- 

 consultum Pegasianum , passed in the time of Vespasian, to accept and 

 nfer the property to his cestui que trust, who took it with all it? 

 burdens. No particular form was requisite in order to effect this 

 transfer. ( I. -J. 3, 5, and 6.) 



By the Senatusconsultum Trebellianum, if the heres was required to 



transfer lint mom than three-fourths of the inheritance to the cestui 



' -list, the two parties were liable to all suits and burdens in 



i of the property according to their several shares. If he was 



n-d to transfer more than three-fourths or the whole, the S. Pega- 



i allowed him to retain one-fourth, as the Falcidian law did 



in the case of legacies. If the heres let himself be compelled to 



accept the trust under the 8. Pegasianum, he lost his one-fourth. 



1,1.) 



T!L. matui que trust was himself sometimes only a trustee for others, 

 this case never had the benefit of the one-fourth : the same wa 

 ise if a legatee had to transfer a legacy to another. 



In hi* remarks upon the origin of Uses and Trusts in England, Mr. 



': has given a short but clear and able sketch of the introduction 



icommisaa at Rome ; and in a note to that part of his text which 



treats of the technical terms necessary to constitute a fideicommissum, 



he states " that these forms of expression are constantly referred to as 



guides to the Court of Chancery on questions of the like nature." Vide 

 int. al. " Knight r. Knight," 3 Beavan, 161 & 172. 



(Spence's Equitable Jurisdiction of the Court of Chancery, vol. i., 

 p. 438.) 



FIEF. [FEUDAL SYSTEM.] 



FIELD (in Magnetism), is the space between the two poles of a 

 magnet, where the two forces mutually re-act. [MAGNETISM.] 



FIELD (in Optics), is the actual magnitude of the space that can 

 be presented at once to the eye of the observer ; it must vary with 

 the magnifying power, and is large in proportion as this is small. 

 With the lowest class of powers it is a circular space not exceeding the 

 eighth or the tenth of an inch in diameter. With the power of 

 500, the field is only l-70th of an inch in diameter. [MICROSCOPE.] 



FIELD-GLASS. Between the object-glass and the eye-glass of a 

 microscope there is usually interposed a convex lens, which receiving 

 the diverging rays from the former before they form an image, has the 

 effect of contracting the dimensions of the image and increasing its 

 brightness, so that it is not too large or indistinct to be seen at once 

 by means of the eye-glass. This interposed lens is called the field-lens, 

 and that portion of the image which can be seen at once with the eye- 

 glass is called the field of riew of the microscope. [EYE-GLASS; FIELD; 

 MICROSCOPE.] 



FIELD-MARSHAL, a military dignity conferred on generals and 

 commanders of armies for distinguished services, and also as a com- 

 pliment to persons of high personal rank, as princes of the blood 

 royal. 



It has been supposed that the tenn marshal is derived from Martin 

 SenetckaltM, but it is more probable that it came from the Saxon words 

 mar, or marach, a horse, and scale!.', a servant; and it appears to have 

 designated the person who had the care of a certain number of horses 

 in the royal stables. In the Teutonic laws such a person is called 

 mam miens, and the fine for his murder is particularly specified. 



The earl-marshal of England had originally the chief command of 

 the army ; and history records the names of two noblemen, De Mont- 

 morency and Fitzosborne, on whom the title was conferred by William 

 the Conqueror. 



The office was by Henry VIII. made hereditary in the family of the 

 duke of Norfolk ; but it is probable that it had before that time ceased 

 to be connected with the military service ; for from the ' Anecdotes of 

 the Howard Family,' we learn that while another person held the post 

 of earl-marshal, Sir Robert Willoughby Lord Brooke was appointed by 

 Henry VII. to be marshal of the army. 



The title of Marechal de France appears to have become a military 

 dignity in that country in the time of Philip Augustus ; and, according 

 to Pere Daniel, the first person who held it was Henry Clement, the 

 commander of the French army at the conquest of Anjou, in 1204. 

 Originally there was but one Mare'chal de France, but, in 1270, when 

 the king, Saint Louis, went on his expedition to Africa, a second was 

 appointed. Francis I. added a third ; and the number has since been 

 greatly increased. 



The marechaux de camp, in the old French service, were charged 

 with the duty of arranging the encampment and providing subsistence 

 for the troops ; and in action they had the command of the wings, or 

 of the reserve of an army, under the general-in-chief. From the title 

 borne by this class of general officers is derived that of feld-marschall 

 in the German armies ; and from the latter title has arisen that which 

 corresponds to it In the British service. 



The number of field-marshals in the British army is at present four. 



FIELD OF VIEW. [TELESCOPE.] 



FI'ERI FA'CIAS, a judicial writ of execution issued on a judgment 

 obtained in a personal action in I the queen's courts. It is directed 

 against the goods and chattels of the defendant, and is called a writ of 

 fieri facia, from the words in it whereby the sheriff is commanded 

 " quod fieri facias de bonis," &c., that he cause to be made of the 

 goods and chattels of the defendant the debt or sum required. 

 [EXECUTION.] It lies against privileged persons, as peers, &c., as well 

 as other persons, and also against executors and administrators, so far 

 as regards the goods of the deceased. 



This writ, like all other writs of execution, being founded upon the 

 judgment, must strictly conform to, and be warranted by, the terms 

 of the judgment, or it will be void. By virtue of this writ, the 

 sheriff may sell the goods and chattels of the defendant till he has 

 raised enough to satisfy the judgment and costs, as well of the suit 

 as of the execution ; and also to satisfy any rent due to the landlord 

 of the premises where the goods may be at the time of the taking, not 

 exceeding one year's rent in the whole. If the judgment is not 

 satisfied by the sale of the goods of the defendant, the plaintiff' may 

 have a capias ad satisfaciendum for the residue. [CAPIAS.] 



The sheriff is not justified in breaking open any outer doors to 

 execute this writ, but having peaceably obtained entrance, he may 

 break open any inner door belonging to the defendant in order to 

 obtain possession of the goods. The clothes which the defendant 

 actually has on or in wearing cannot be taken, and royal palaces are 

 privileged against the sheriff'* intrusion for the purpose of levying 

 upon the goods of a resident therein. 



Formerly it was necessary that writs of execution should bear teste 

 or date, and be returnable in term time ; but now, by stat. 3 & 4 

 William IV., c. 67, they may be tested, that is. dated on the day when 



