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So ftood the law, and such was the diftinction, in the time of the Regiam Majeftatem, and in the time of Glanville.

for the grant. The vaffal, on his part in one perfon; the ftranger remained fuagain, as he gave value for that grant, perior, whoever was the heir. was not contented with right of fuc ceffion to his defcending, but infifted it fhould go likewife to his collateral line. "Thus by practice, without a public law, it crept into the law of G. Britain, as well as into that of other European nations, that not only in feudis paternis, but even in fiefs which a man had purchafed himself, his collaterals in infini tum, as well as his defcendents in infinitum, fhould fucceed.

"When collateral fucceffion came to take place, it will readily occur, that difficulties could not fail to arife fpeedily in law, concerning the fucceffion of a middle brother dying without children, and leaving an elder and a younger bro. ther alive.

"When that happened, the law took the following courfe, and for the following reafons.

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If the fief had come by defcent, it went to the younger brother; if it was a purchase, it went to the elder.

"A fief of the nature of the firft kind could be in a middle brother only in confequence of a grant from his ancefor, or in confequence of a grant from his elder brother, both of which were, in conftruction of the ancient law, deemed to be feuda paterna. In either of these cafes, it behoved the elder brother to be either fuperior, or heir in the fuperiority, and it behoved the middle brother to be vaffal. But the feudal law had an averfion at joining again, with out a neceffity arifing from the feudal relations themfelves, the property and fuperiority in one perfon, when they had been once disjoined. The whole fyftem was built on the diftinct rights of fuperior and vaffal; and the blending thefe two characters in one perfon, without the neceffity I have mentioned, appeared to be the blending of contrary qualities together.

"As a purchase, on the contrary, had come to the middle brother from a ftranger, when the law allowed the fucceffion of fuch a fief to go to the elder brother, there was no danger of the junction of the property and fuperiority

"In England, the relations of fuperior and vaffal having been long ago loft, the danger of uniting these two characters in one perfon no longer fubfifts; and therefore the exclufion of the elder brother in feudo paterno, has for many ages been forgot, perhaps ever fince the end of the reign of Edward I.

"In Scotland, on the contrary, where the diftinction between fuperior and vaffal is ftill formally kept up; and where many maxims, however unneceffary in reality, yet founded upon the form of that diftinction, are fill kept up; the dif tinction, handed down through the writings of our lawyers, between, the heir of line, and the heir of conqueft, is as perfect at this day, as it was five hundred years ago. And therefore at prefent, if a middle brother should die, poffeffed of an eftate which had come to him by defcent, and fhould have a fon who made afterward a purchase; upon the death of this fon without iffue or bro thers, the fucceffion would, fplit, his younger uncle would take what had come by defcent, or, as it is called in Scotland, the heritage; and his elder uncle would take what had come by purchase, or, as it is called in Scotland, the conquest.

"The right of reprefentation was more flowly introduced into the collateral than into the defcending line, and confequently it took longer time to be firmly established in that line than in the other.

"In the original law of nature, reprefentation must be unknown. Thofe who are nearest in blood to a man, will be conceived to be nearest connected with him. Afterwards, it is obferved to be a hardship, that children bred up in a rank fuitable to that of their father, and with a profpect of fucceeding to his rights, fhould be cut off at once from that rank, and that profpect: it comes to be obferved as a farther hardship, that a woman who has married one feeming

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ly a match for her, fhould by his un- from the fecond fifter? And on the antimely death lofe not only her husband, fwer, importing, that representation but fee her children reduced to beggary. fhould take place, judgment was given "These confiderations bring in the for Baliol [x. 66. 521.] right of reprefentation in the defcending, but the fame confiderations do not occur in the collateral line. The children of a brother or coufin have not the prospect of fucceeding to their uncle's or coufin's eftates, because it is always to be fuppofed every man is to have children of his own; it is therefore no hardship upon them to be removed by another uncle, or another coufin, from a fucceffion to which they could have no views.

"Thus reprefentation must be late of coming into the collateral line; and when it comes in, it does fo rather by analogy of the other, than by principles of its own.

The fteps by which, in private fucceffions, it came into the collateral line in G. Britain, or even in any other country in Europe, are extremely difficult to be traced, and perhaps are not very certain when they are traced; therefore we must fupply them by the progrefs of the fame reprefentation in public fucceffions.

In thefe laft fucceffions, it is plain, that reprefentation was originally unknown. In the hiftories of modern Europe, for a long tract of time, where. ever a fucceffion opens to collaterals, the nearest of blood takes, to the exclufion of reprefentation.

"In the time of Edward I. when reprefentation in the defcending line was tolerably well established throughout Europe, the point was fo doubtful in the collateral line, that, upon the death of Margaret of Norway, and the dispute for her fucceffion between her coufins Bruce and Baliol, not only the eighty Scotch commiffioners named by the candidates, and the twenty-four English named by King Edward, were long doubtful, but all Europe was doubtful, which fide ought to prevail. The precife queftion, in the end, put by the King to the commiffioners, was, Whether the more remote by one degree in Jucceffion, coming from the eldeft fifler, ought to exclude the nearer by a degree, coming

"The Scotch writers of thofe days are pofitive this judgment was wrong; the English writers of thofe days are as pofitive that it was right. Thefe different fentiments are reconcileable. In England, at that time, reprefentation in collateral fucceffion was beginning to take place; and this advance of their own nation the English made the meafure of their opinion. The Scotch, on the other hand, at the fame period had not arrived the fame length; this fpecies of reprefentation was unknown to them; and therefore they difapproved of the judgment.

Solemn as this decifion was, yet even in England, a century afterward, the right of reprefentation in this line was to far from being complete, that is was the fame doubt, which, in the dif putes between the houses of York and Lancafter, laid that kingdom for ages in blood.

On the abdication of Richard II. the two perfons ftanding in the right of the crown, were his two coufins, the Duke of Lancaster, fan of John of Gaunt, who was fourth fon to Edward III. and the Earl of March, grandfon to Lionel Duke of Clarence, who was third fon to the fame prince. It was the doubt concerning the right of thefe perfons, and therefore, in confequence of the uncertainty, whether reprefentation in collateral fucceffion fhould take place, from which all the miferies attending that competition ensued. [x. 340.]

"Yea, even in much later times, and when the growth of law was much firmer, it was on the fame ground, that, upon the death of Henry III. of France, the league fet up the Cardinal of Bourbon as heir to the crown, in oppofition to his nephew the King of Navarre. This laft prince was fon of the elder branch to the Cardinal, but the Cardinal being one ftep nearer to the common ftock, it was afferted, that nearness of blood, and not reprefentation, took place in collateral fucceffion. [x. 66.]

"For

For many ages, it has now been fixed in private fucceffions, that reprefentation in the collateral line fhall take place; and although of late in Europe, there has been little difpute in public fucceffions, to give room for either principle to prevail, yet the example of thofe private fucceffions, and the now rivetted notions of mankind, in favour of reprefentation, will probably prevent it from being ever made again the subject of a difpute.

"These notions in favour of reprefentation, both in the defcending and collateral lines, are now fo ftrong, that we are apt to term rebels and ufurpers, thofe who ever called them in question. Hiftory and law will convince us of our error; thefe will exhibit to us thousands of our ancestors dying in the field, in a prifon, or on a fcaffold, for rights which once were, though we, measuring eve ry thing by our prefent notions, fuperfeially imagine they could never exift." This is fufficient to give the reader an idea of this performance; in which it appears to us, that our author's learning and fagacity have enabled him to throw many new lights upon the fubjects of which he treats, while his judgment and good fenfe have preferved him from all trifling and falfe refinement.

Critical Review.

M

is the philofophy which runs through the
whole of it. This has enabled the wri-
ter to please us, by exciting our atten-
tion to the various revolutions of laws,
and maxims of law, from general caufes
common to mankind, or common to
that part of them governed by one fy.
ftem; and alfo to obferve their different
fates, from particular exigencies and fi-
tuations. Monthly Review.
To the author of the SCOTS Magazine.
SIR, Perthshire, Sept. 22. 1757.
FR Dalrymple's late book on the
history of feudal property, made
me look into the difpute concerning
Bruce and Baliol, in your Magazines for
1746, 7, 8. I once imagined that ré-
prefentation was indifputably founded
in the law of nature, and I fent you
my thoughts on that fubject, which you
was pleased to infert [ix. 527.]. But
Mr Dalrymple, and the author of the
effays concerning British antiquities
[x. 66.], have convinced me, that repre
fentation had not taken place in Scot
land when the competition between
Bruce and Baliol happened, and that
therefore Bruce had the preferable right,
as Mr Ruddiman ftrenuously contended
[ix. 369. x. 339.]. Ifhould be glad to
know if the authors of the two pieces,
intitled, The right of the boufe of Stewart
confidered [viii. 120. ix. 462.], and A
review of the difpute concerning Bruce and
Baliol [x. 61. 519.], who were of the
fame opinion with me, be likewife con-
vinced of their mistake.-
-But though

Two of the greatest names * in the learned world are mentioned, whofe infpection of this work muft greatly recommend it to the public, and do hoIt is with pleanour to the author.fure we can obferve, upon the whole of reprefentation did not take place in an. this performance, that it well deferves cient times, it may, notwithstanding, the attention of the public. The aube founded in nature. It may be one thor has expreffed his ideas in language of the later difcoveries made by learned that conveys them fully and eafily to the men, of which there are many in the reader. The method he has purfued is moral or political, as well as in the naas good as his style is elegant. In ac- tural world. The question, Whether counting for the rife, progrefs, and va- reprefentation is or is not agreeable to riations of the laws and cuftoms obtain the law of nature? is curious, and much ing in the feudal fyftem, he is always difputed; Mr Dalrymple, and the learningenious, and betrays no want of judg-feem to think that it is not: I would ed author of the aforementioned effays, ment; and what renders this effay extremely entertaining, as well as ufeful,

* The Prefident Montefquieu, and Lord Kaims; to the latter of whom this work is de

dicated.

therefore beg leave to recommend, as of weight in the determination, to inquire, what was the rule of fucceffion in the Jewish high-priesthood; or if this is

done

done already, to point out where: for
it can scarcely be doubted that cafes did
occur in that fucceffion, in which repre-
fentation did take or might have taken
place, both in the defcendent and col-
lateral lines; and the rules of fucceffion
in a priesthood inftituted by the author
of nature, may be prefumed agreeable
to the law of nature.
I am, &c.

IN

The life of Adm. Blake, concluded. [395] N November 1654, Blake was fent by Cromwell into the Mediterranean with a powerful fleet, and may be faid to have received the homage of all that part of the world; being equally courted by the haughty Spaniards, the furly Dutch, and the lawlefs Algerines.

failing to Tripoli he concluded a peace with that nation; then returning to Tunis, he found nothing but submission: and fuch indeed was his reputation, that he met with no further oppofition, but collected a kind of tribute from the princes of thofe countries, his business being to demand reparation for all the injuries offered to the English during the civil wars. He exacted from the Duke of Tufcany 60,000l. and, as it is faid, fent home fixteen fhips laden with the effects which he had received from scveral states.

The refpect with which he obliged all foreigners to treat his countrymen, appears from a ftory related by Bp Burnet. When he lay before Malaga, in a time of peace with Spain, fome of his failors went ashore, and meeting a proceffion of the hoft, not only refused to pay any respect to it, but laughed at thofe that did. The people, being put by one of the priests upon refenting this indignity, fell upon them, and beat them feverely. When they returned to their fhip, they complained of their ill treatment; upon which Blake fent to demand the priest who had procured it, The Viceroy answered, That, having no authority over the priest, he could not fend him. To which Blake replied, "That he did not inquire into the extent of the Viceroy's authority, but that if the priest were not fent within three hours, he would burn the town." The Viceroy then fent the prieft to him; who pleaded the provocation given by the feamen. Blake bravely and rationally anfwered, That if he had complained to him, he would have punished them feverely, for he would not have his men affront the established religion of any place; but that he was angry that the Spaniards fhould affume that power; for he would have all the world know,

In March 1656, having forced Algiers to fubmiffion, he entered the harbour of Tunis, and demanded reparation for the robberies practifed upon the English by the pirates of that place, and infifted that the captives of his nation should be fet at liberty. The Governor having planted batteries along the fhore, and drawn up his fhips under the caftles, fent Blake an haughty and infolent anfwer, "There are our caftles of Goletta and Porto Ferino," faid he, "up. on which you may do your worft;" adding other menaces and infults, and mentioning in terms of ridicule the inequality of a fight between fhips and caftles. Blake had likewife demanded leave to take in water, which was refufed him. Fired with this inhuman and infolent treatment, he curled his whiskers, as was his cuftom when he was angry, and entering Porto Ferino with his great fhips, discharged his fhot so fast upon the batteries and caftles, that in two hours the guns were difmounted, and the works forfaken, though he was at firft expofed to the fire of fixty cannon. He then ordered his officers to fend out their longboats" that an Englishman was only to be well manned, to feize nine of the piratical fhips lying in the road, himself continuing to fire upon the cattle. This was fo bravely executed, that with the lofs of only twenty-five men killed, and forty-eight wounded, all the fhips were fired in the fight of Tunis. Thence

punished by an Englishman." So ha ving ufed the prieft civilly, he fent him back, being fatisfied that he was in his power. This conduct fo much pleafed Cromwell, that he read the letter in council with great fatisfaction, and faid, he hoped to make the name of an Englishman

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Englishman as great as ever that of a Roman had been."

In 1656, the Protector having declared war against Spain, difpatched Blake with twenty-five men of war to infeft their coafts, and intercept their thipping. In purfuance of thefe orders he cruifed all winter about the freights, and then lay at the mouth of the har bour of Cadiz, where he received in telligence that the Spanish plate-fleet lay at anchor in the bay of Santa Cruz in the island of Teneriffe. On the 13th of April 1657, he departed from Cadiz, and on the 20th arrived at Santa Cruz, where he found fixteen Spanish veffels. The bay was defended on the north fide by a castle well mounted with cannon, and in other parts with feven forts with cannon proportioned to the bignefs, all united by a line of communication manned with mufqueteers. The Spanish admiral drew up his fmall fhips under the cannon of the caftle, and ftationed fix great galleons with their broadfides to the fea: An advantageous and prudent difpofition; but of little effect against the English commander; who determining to attack them, ordered Stayner to enter the bay with his quadron, then pofting fome of his lar geft fhips to play upon the fortifications, himfelf attacked the galleons; which after a gallant refiftance were at length abandoned by the Spaniards, though the leaft of them was bigger than the biggest of Blake's fhips. The forts and fmaller veffels being now fhattered and forfaken, the whole fleet was fet on fire, the galleons by Blake, and the fmaller weffels by Stayner, the English veffels being too much fhattered in the fight to bring them away. Thus was the whole plate-fleet deftroyed, and the Spaniards, according to Rapin's remark, “fuftained a great lofs of fhips, money, men, and merchandife, while the Englifh gained nothing but glory:" as if he that increases the military reputation of a people did not increate their power, and he that weakens his enemy in effect trengthen himself.

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The whole action," fays Clarenwas fo incredible, that all men

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who knew the place, wondered that any fober man, with what courage fo ever endued, would ever have undertaken it, and they could hardly perfuade themfelves to believe what they had done; while the Spaniards comforted themfelves with the belief, that they were devils and not men who had deftroyed them in such a manner. So much a strong refolution of bold and courageous men can bring to pass, that no refiftance, or advantage of ground, can disappoint them. And it can hardly be imagined how fmall a lofs the Englifh fuftained in this unparallelled action, not one fhip being left behind, and the killed and wounded not exceeding 200 men; when the flaughter on board the Spanish fhips and on fhore was incredible." The Admiral cruifed for fome time afterwards with his victorious fleet at the mouth of Cadiz to intercept the Spanish fhipping; but finding his conftitution broken by the fatigue of the laft three years, determined to return home, and died before he came to land.

His body was imbalmed, and ha ving lain fome time in ftate at Greenwich houfe, was buried in Henry VII.'s chapel, with all the funeral folemnity due to the remains of a man fo famed for his bravery, and fo fpotless in his integrity. Nor is it without regret that I am obliged to relate the treatment his body met a year after the restoration, when it was taken up by exprefs command, and buried in a pit in St Margaret's church-yard. Had he been guilty of the murder of Charles I. to infult his body had been a mean revenge; but as he was innocent, it was, at least, inhumanity, and perhaps ingratitude. "Let no man,' fays the oriental proverb, pull a dead lion by the beard.'

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