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Accounts and extracts * of a book late. tending the conquests of the German ly published, intitled, An essay towards nations, which never did attend those a general history of feudal property in G. of any other conquering people; and Britain. By John Dalrymple, Elai without a peculiarity of cause, there ne[ Advocate.]

ver will be a peculiarity of effect.

• The Greek and Carthaginian coO ftudy is better calculated to en. lonies came from republics. If they did

large the mind, and to fill it with not preserve a dependence on their nagenerous ideas, than that of jurispru- tive country, they at least preserved a dence, considered in an extensive view, great connection with it. They went as connected with philosophy and histo- out in small bodies, and as such they

Nor can there be a more agreeable formed themselves into republics. E. or instructive spectacle, than the con quality among the citizens had been a templation of laws in their progress rooted and political principle with them through a fate, from their first simple at home; it became now, from their fiorigin in the wants and neceflities of tuation, ftill more the natural and conmen, to their alteration, refinement, fiftent principle of their union. or declension, from the fluctuating man. “ The various conquests of Asia by ners, and more complicated interests of Asiaties, have been made for one man, civilized society. To discover the pro- and not for a people; and therefore per clue, in order to trace this progress, standing armies have always been kepo and to point ic out with accuracy and


to secure them. precision, should seem to require a more “ Alexander and his army fought not than ordinary share of discernment and for habitations, but for glory and domi. good sense. With regard to the per- nion. That dominion was maintained formance before us, which is an attempt by armies and cities. He and his fucto trace, from the earliest feudal times, ceffors reserved to themselves the ancient the great outlines of the laws which re

revenues of the prince, together with late to land-property in England and in the military and political adininiftration Scotland, so far as they relate to a feu. of the state. The armies found a redal origin, Mr Dalrymple bas acquitted fuge in the cities for themselves and himself very' much to his honour. His their plunder ; but the ancient inhabi, production appears to be the result of tants preserved their land-property and great application and labour, under the

their laws. conduct of superior judgment and pene " The Hebrews in Canaan followed tration.

different principles of conqueft. They His first chapter contains the history extirpated, for neceflary reasons, the of the introduction of the feudal system ancient inhabitants, instead of associating into G. Britain ; from whence we shall

with them. extract the following paffage.

“ The modern European colonies “ The thought of distributing a

are kept in subjection, not only to their mong a conquering people the lands native country, but even forsetimes to they have conquered, and of annexing particular companies of merchants in ir. to the gift a condition of military ser. They are considered merely as inftruvice, is in itself an exceeding simple ments of commerce, and are therefore one. Accordingly we learn from hiftory, generally allowed to be regulated by it has been often reduced into practice, the laws and police which happen to as among some of the Roman colonies on the confines of the Roman empire, whence they came.

prevail in the different countries from

Their principles among the Timarriots in the Turkish cf fertlement are not determined by the empire, and among other nations. But

natural circumstances attending a fettlethere were particular circumstances at

ment, but by the particular views with * [In the extracts we have been favoured with which they are settled. feveral corrections by the author.]

The Romans, who extended their Vol. XIX.


empire farther than all other nations, oligarchy, and not of equality.preserved their conquests too by colo- Simple both in their manners and in their nies; but as the members of them were views, they could have no conception for a long time taken from the dregs of of a standing army, with the expence, the people, they went out without any and discipline, and resources néceslaextensive subordination. Afterwards, ry to fopport it.-On the contrawhen the soldiers constituted the colo- ry, having quitted their own countries nies, and paid military service in return in vaft bodies from neceflity, being in for their lands, they had indeed a regu- queft merely of a habitation, and lar subordination : but then their con- pursuing neither glory nor dominion nection with their native country was but with a view to attain that habi. not broken, and besides they were in tation, they took up with the simple continual danger from the incursions of thought, of spreading themselves all o. the enemy. In these circumstances, it ver the country, among the ancient in. was not natural that the possessions habitants.- As the nations they con. should be hereditary; for in the succes- quered were more numerous, fo were fion to a vacant poffeffion, valour, where they likewise more polifhed, and expert valour was so necessary, would be pre. in arts, than themselves; they durft not ferred to consanguinity: nor would the therefore put such nations to the sword. preference be complained of by men _Unacquainted even with commerce having connections with the mother itfelf, they were still more unacquainted country, and ftill considering Rome with the refinement of being made the as the seat of their fortunes. Accor. inftruments of it to others. As long dingly none of the lands given under the as the most diftant views to their native condition of military service, to the country remained, and as long as conmembers of these colonies, went in de- tinual danger obliged them to be ready scent; a few given by the Emperor Se- for continual defence, the poffeffions, it verus excepted; and which, though or- is true, upon the death of the tenants, dered to descend, seldom in reality ever could not regularly descend to their did descend to heirs.

heirs, who perhaps were not able to • In almost all those various tranf. defend them, but were given to those migrations, it is observable, that the in general who appeared the most likely conquerors either conformed to the civil to be able to do so; yet when in course laws of the conquered people, if they of time that fituation was changed, and left a people at all, reserving to this valour was not so continually neces. themselves the political and military fary, then the possessions we are speak. administration; or they retained their ing of, in contradiction to all others in own laws among themselves, leaving to the history of the world which have the conquered people the enjoyment of any resemblance to feudal ones, became theirs. The reason was, a contrary re. hereditary. When such were the gulation would have been either impof- circumstances attending the conquests of lible for them to coinpass, or useless the German nations, it followed in the when compassed.

courle of things, that being an army, “ On the other hand, in every one of these conquerors would fail into a fubthose various circumstances, the fituation ordination in their settlement; it folof the Germans was different. As there lowed in the same courie, that being was no general fyltem of government in very valiant, their genius as well as fie their own country, they had been sub- tuation would lead them to institutions, jected in their various districts to that which made it an obligation upon alchieftain who could do them most most the whole body to be ready at a good or moft hurt. When they issued military call; and ibis settlement, fubabroad, then, they went rather as a ordination, and obligation to military band of independent clans, than of in- service carried in themselves a system of dependent members, with a fpirit of laws, without the plan of a legiflator,

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which, however the laws of the con- trouble to him, to wit, his personal serquered people might for some time sub- vice; he was well contented to get it to fift, could not fail in the end to swallow himself and his pofterity ; but thought up all the laws of all the countries where not of asking the succession to his colit came.

laterals. " Naturally fond of the institutions “ Nor is it any objection to this doce of our ancestors, we are apt to make trine, that collaterals are observed, in this system the result of the most con. the earliest fiefs, to have sometimes sucfummate political prudence and refine- ceeded : for this their fuccession was not ment. But, regular and extensive as in a fief acquired by the vasíal himself, the fabric became, it was originally no but only in feudo paterno; and in a fief more than the very natural consequence of this laft kind, the fucceffor took as of very natural causes. In inventing descendent to the original vafial, and other causes, we only deceive ourselves, thereby nominée in the original grant, by transferring the refined ideas of our but not at all as collateral to the last own age to ages too simple to be capable vassal. Accordingly, in a law in the of forming them."

books of the fiefs, the distinction beThe remaining part of this valuable tween the succession to the one of these performance contains the history of te• fiefs, and that to the other, is laid nures, of alienation, of entails, of suc. down : Frater fratri fine legitimo herede cession, of conveyances, of jurisdictions, defunéto, in beneficio, quod eorum patris and of the conftitution of parliament. fuit, fuccedat. Sin autem unus ex fraIt hath been a great loss, Mr Dalrymple tribus a domino feudum acceperit, eo devery justly observes, both to history and functo fine legitimo herede, frater ejus in law, that they have too little contribu. feudum non fuccedit. And by the proted their mutual aids to each other. mulgation of that law, it appears, that Lawyers themselves feldom give deduc- even in feudis paternis, the real quality tions of laws, and historians seldom of descendent to the original vassal, had meddle with laws at all, even those been so far forgot in the seeming quawhich give occafion for the constitution lity of collateral to the last one, that a of a state, and on which, more than on public law was necessary to overcome battles and negotiations, the fate of it the difficulty which was made of recei. doth often turn. To confirm this ob- ving such real descendent. fervation, and to fhew how necessary to " By degrees, however, the collatean historian a thorough acquaintance ral succession gained ground. It first with law-subjects is, before he can be took place in brothers only, afterwards qualified to judge properly of political it was extended to the father's brother, questions, we Thall transcribe sect. 2. and, in process of time, to the collateral from our author's history of succession, line, even to the seventh degree. Craig in which he treats of the progress of suc. relates, that whether this succession was ceffion in the collateral line.

extended beyond that degree, was so “ Such being the progress of succes- much a doubt, as to be the subject of fion and representation in the descending two contests before courts in his time. line, a ftill farther progress, and from But when wars came to be waged in the same caufes, may be seen extending Europe by standing armies, and not by itself in the other lines of succeffion. vasfals; when trade, manufactures, and

Originally, none could succeed in money, introduced luxury; when by the fief, except those who were specified this luxury the great lords were impovein the original grant. Now, as, an. rished, and that money was in the hands ciently, the interest of the lord in the of those who had been formerly their fief was greater than that of the vaffal; flaves ; it then became of little conle. and as ic was a favour to this last, to quence to the lord, who was the vaffal in give him a fief, for which he paid only, the fief; and therefore he gave it to him what in a military age was no great who was willing to advance molt money

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for the grant. The vallal, on his part in one person; the stranger remained fų.
again, as he gave value for that grant, perior, whoever was the heir.
was not contented with a right of fucı “ So stood the law, and such was the
cession to his descending, but insisted it distinction, in the time of the Regiam

go likewise to his collateral line. Majeftatem, and in the time of Glanville. “ Thus by practice, without a public ". In England, the relations of supe. law, it crepe into the law of G. Britain, rior and vassal having been long ago as well as into that of other European loft, the danger of uniting thele two nations, that not only in feudis paternis, characters in one person no longer subbut even in fiefs which a man had pur- lifts; and therefore the exclusion of the chased himself, his collaterals in infini elder brother in feudo paterno, has for tum, as well as his descendents in infini. many ages been forgof, perhaps ever tum, should fucceed.

since the end of the reign of Edward I. " When collateral fucceffion came to “ In Scotland, on the contrary, where take place, it will readily occur, that the distinction between superior and vaffal difficulties could not fail to arise speedily is still formally kept up; and where many in law, concerning the succellion of a maxims, however unnecessary in reali

, middle brother dying without children, ty, yet founded upon the form of that and leaving an elder and a younger bro. distinction, are still kept up; the dis. ther alive.

tinction, handed down through the wri. “ When that happened, the law took tings of our lawyers, between the heir the following course, and for the follow- of line, and the heir of conquest, is as ing reasons.

perfect at this day, as it was five hanIf the fief had come by descent, it dred years ago. And therefore at pre, went to the younger brother; if it was sent, if a middle brother should die, pof. a purchase, it went to the elder. feffed of an estate which had come to him

“ A fief of the nature of the first kind by descent, and should have a fon who could be in a middle brother only in made afterward a purchase; upon the consequence of a grant from his ance- death of this son without issue or bro, stor, or in consequence of a grant from thers, the succession would {plit; his his elder brother, both of which were, in younger uncle would take what had construction of the ancient law, deemed come by descent, or, as it is called in to be feuda palerna. In either of these Scotland, the heritage ; and his elder cases, it behoved the elder brother to uncle would take what had come by be either superior, or heir in the fupe. purchase, or, as it is called in Scotland, riority, and it behaved the middle bro. the conquesl. ther to be vaffa). But the feudal law ". The right of representation was had an aversion at joining again, with. more slowly introduced into the collaa out a necessity arising from the feudal teral than into the descending line, and relations themselves, the property and consequently it took longer time to be superiority in one person, when they firmly established in that line than in the had been once disjoined. The whole other. system was built on the distinct rights of “ In the original law of nature, re. fuperior and vafial; and the blending presentation must be unknown. Those these two characters in one person, with who are nearest in blood to a man, will out the necessity I have mentioned, ap- be conceived to be nearest conne&ted peared to be the blending of contrary with him. Afterwards, it is observed qualities to ether.

to be a hardlhip, that children bred up As a purchase, on the contrary, in a rank suitable to that of their father, had come to the middle brother from a and with a prospect of succeeding to his stranger, when the law allowed the fuc- rights, should be cut off at once from cefsion of such a fief to go to the elder that rank, and that prospect: it comes brother, there was no danger of the to be observed as a farther hardship, that junction of the property and fuperiority a woman who has married one seeming.


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ly a match for her, should by his up- from the second fifter? And on the antimely death lose not only her husband, swer, importing, that representation but fee her children reduced to beggary. should take place, judgment was given

“ These confiderations bring in the for Baliol (x. 66. 521.] right of representation in the descending, “ The Scotch writers of those days but the same confiderations do not occur are positive this judgment was wrong; in the collateral line. The children of the English writers of those days are as a brother or cousin have not the prospect positive that it was right. These diffeof fucceeding to their uncle's or cousin's rent sentiments are reconcileable. In estates, because it is always to be sup- England, at that time, representation posed every man is to have children of in collateral fucceffion was beginning to

his own; it is therefore no hardship up- take place; and this advance of their di on them to be removed by another un. own nation the English made the mea

cle, or another cousin, from a succession sure of their opinion. The Scotch, ona to which they could have no views. the other hand, at the same period had

“ Thus representation must be late of not arrived the same length; this species coming into the collateral line ; and of representation was unknown to them; when it comes in, it does fo rather by and therefore they disapproved of the analogy of the other, than by principles judgment. of its own.

• Solemn as this decision was, yet · The steps by which, in private even in England, a century afterward, fuccessions, it came into the collateral the right of representation in this line line in G. Britain, or even in any other was lo far from being complete, chat je country in Europe, are extremely diffi- was the same doubt, which, in the dir. cult to be traced, and perhaps are not putes between the houses of York and very eertain when they are traced; there. Lancaster, laid that kingdom for ages foré we must supply them by the progress in blood. On the abdication of Riof the same representation in public suc. chard II. the two persons standing in the ceffions.

right of the crown, were his two coubi “ In these last successions, it is plain, fins, the Duke of Lancaster, fan of Joha

that representation was originally un- of Gaunt, who was fourch son to Edknown. In the histories of modern Eu. ward III. and the Earl of March, grandrope, for a long tract of time, where. fon to Lionel Duke of Clarence, who ever a succession opens to collaterals, was third son to the same prince. It the nearest of blood takes, to the exclu. was the doubt concerning the right of fion of representation.

these persons, and therefore, in confe“ In the time of Edward I. when re- quence of the uncertainty, whether re

presentation in the descending line was presentation in collateral Tuccellion ed

tolerably well established throughout Eu- should take place, from which all the rope, the point was so doubtful in the miseries attending that competition en. collateral line, that, upon the death of sued. (x. 340.] Margaret of Norway, and the dispute Yea, even in much later times, and for her succession berween her cousins when the growth of law was much firmBruce and Baliol, not only the eighty er, it was on the same ground, that, upScotch commissioners named by the can on the death of Henry III. of France, didates, and the twenty-four English the league set up the Cardinal of Bournamed by King Edward, were long bon as heir to the crown, in opposition doubtful, but all Europe was doubtful, to his nephew the King of Navarre. which side ought to prevail. The pre- This last prince was son of the elder cise question, in the end, put by the branch to the Cardinal, but the CardiKing to the commissioners, was, Wheo 'nal being one step nearer to the common ther the more remote by one degree in luce stock, it was afferted, that nearness of celion, coming from the eldest fifter, ought blood, and not representation, cook to exclude the nearer by a degree, coming place in collateral succesiion. [x. 66.]


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