Sidebilder
PDF
ePub

fociety : it sets the passions on the vident fathers from dividing of fide of duty, and prompts a man charging their efates as the exto deferve well of the public, when igence of their families required. he is sure that the reward of his This introduced pretty generalservices will not die with himself, ly the right of difpofing one's but be transmitted to those with property, or a part of it, by tel; whom he is connected by the dear. tameni; that is, by written or oral est and moft tender affections. instructions, properly witnessed and Yet, reasonable as this foundation authenticated, according to the of the right of inheritance may pleafure of the deceased; which Seem, it is probable that its im we therefore emphatically style his mediate original arose not from will. This was established in speculations altogether fo delicate fome countries much later than in and refined : and, if not from others. With us in England, till fortuitous circumftances, at leaft modern times, a man could only from a plainer and more simple dispose of one third of his move. principle. A man's children or ables from his wife and children: nearest relations are usually about and, in general, no will was peshim on his death bed, and are the mitted of lands till the reign of carliest witnesses of his decease. Henry the Eighth ; and then only They became therefore generally of a certain portion : for it was the next immediate occupants, till not till after the restoration that at length, in process of time, this the power of devising real profrequent usage ripened into ge- perty became so universal as at neral law. And therefore also in present. the earliest ages, on failure of Wills therefore and testaments, children, a man's servants born rights of inheritance and fuccefunder his roof were allowed to be fions, are all of them creatures of his heirs ; being immediately on the civil or municipal laws, and the spot when he died. For we accordingly are, in all respects, re. find the old patriarch Abraham gulated by them; every diftinct expressly declaring, that, "since country having different ceremo“God had given him no feed, his nies and requifites to make a "fteward Eliezer, one born in his teftament completely valid: nei. " house, was his heir."

ther does any thing vary more While property continued only than the right of inheritance under for life, testaments were uselefs different national eltablishments. and unknown; and when it be- In England, particularly, this dicame inheritable, the inheritance versity is carried to fach a length, was long indefeasible, and the as if it had been meant to point children or heirs at law were in- out the powers of the law in re.

capable of exclusion by will. Till gulating the fucceffion to property, at-length it was found, that so and how futile every tale inuft ftrict a rule of inheritance made be that has not its foundation in heirs disobedient and headftrong, the positive rules of the state. In defrauded creditors of their just personal estates the fathes may sacs debts, and prevented many proceed to his children ; in landed

pro

property, he never can be their fake of civil peace by the positive immediate beir, by any the re- law of society. The pofitive law moteft poffibility : in general only of fociety, which is with us the the eldest son, in some places only municipal law of England, di. the youngest, in others all the rects it to veft in such perfons as fons together, have a right to fuc- the last proprietor Mall by will, at. ceed to the inheritance : in real e- tended with certain requisites, apo ftates males are preferred' to fe- point; and, in defect of such ap. males, and the eldest male will pointment, to go to some parti usually exclude the rest; in the cular person, who, from the result division of personal eftates, the fe- of certain local conftitutions, ap. males of equal degree are admit. pears to be the heir at law. Hence ted together with the males, and it follows, that, where the apno right of primogeniture is al- pointment is regularly made, there lowed.

cannot be a shadow of right in This one consideration may any one but the person appointed : help tớ remove the scruples of and, where the necessary requi. many well-meaning persons, who fites are omitted, the right of the fet up a mistaken conscience in heir is equally Atrong and built oppolition to the rules of law. If upon as solid a foundation, as the a man difinheries his son, by a will right of the devisee would have duly executed, and leaves his e. been, fuppofing such requisites ftate to a stranger, there are many were observed. who consider this proceeding, as But, after all, there are some contrary to natural juftice : while few things, which, not withftanding others fo fcrupuloofly adhere to the general introduction and con. the supposed intention of the dead, tinuance of property, muft ftill unthat if a will of lands be attefted avoidably remain in common; be. by only two witnesses inftead of ing such wherein nothing but an three, which the law requires, they unfufructuary property is capable of ate apt to imagine that the heir is being had; and therefore they bound in conscience to relinquish fill belong to the first occupant, his title to the devisee. But both during the time he holds poffeffion of them certainly proceed upon of them, and no longer. Such very erroneous principles : as if, (among others) are the elements of on the one hand, the fon had by light, air, and water; which a nature a right to succeed to his

man may occupy by means of his father's lands ; or as if, on the windows, his gardens, his mills, other hand, the owner was by na- and other conveniencies : fach alfo ture entitled to direct the suc. are the generality of those animals ceffion of his property after his which are said to be ferae natural, own decease. Whereas the law or of a wild and untameable dira of nature fuggefis, that on the pofition; which any man may death of the possessor the estate seize upon and keep for his own should again become common, use or pleasure. All these things, and be open to the next occupant, so long as they remain in pofler. unless otherwise ordered for the fion, every man has a right to

enjoy enjoy without disturbance; but if gives of the Feodal System; which, once they escape from his cuftody, though a subject often handled, or he voluntarily abandons the use appears new in his hands. of them, they return to the com- * It is impoffible to underftand, mon stock, and any man else has with any degree of accuracy, either an equal right to seize and enjoy the civil conftitution of this kingthem afterwards.

dom, or the laws which regulate Again ; there are other things, iss landed property, without some in which a permanent property general acquaintance with the may subfift, not only as to the tem. nature and doctrine of feuds, or porary use, but also the solid fub- the feodal law ; a fyftem so uniAtance; and which yet would be versally received throughout Eu. frequently found without a pro. rope, upwards of twelve centuries prietor, had not the wisdom of ago, that Sir Henry Spelman does the law provided a remedy to ob- not fcruple to call it the law of viate this inconvenience. Such nations in our weftern world, are forests and other wafte grounds, This chapter will be therefore de. which were omitted to be appro- dicated io this inquiry. And priated in the general distribution though, in the course of our ob. of lands: fuch also are wrecks, servations in this and many other eftrays, and that fpecies of wild parts of the present book, we may animals, which the arbitrary con. have occasion to search pretty ftitutions or positive law have dif- highly into the antiquities of our tinguished from the rett by the English jurisprudence, yet furely well-known appellation of game. no industrious student will imagine With regard to these and some o- his time mif-employed, when he thers, as disturbances and quarrels is led to consider that the obsolete would frequently arise among in- doctrines of our laws are frequently dividuals, contending about the the foundation, upon which what acquisition of this species of pro. remains is erected; and that it is perty by firft occupancy, the law impracticable to comprehend many has therefore wisely cut up the rules of the modern law, in a root of dissension, by vesting the scholar-like scientifical manner, things themselves in the fovereign without having recourse to the of the state; or else in his repre- ancient. Nor will these researches fentatives, appointed and autho- be altogether void of rational enrized by him, being usually the tertainment as well as use : as in lords of manors. And thus the viewing the majestic ruins of Rome legislature of England has univer- or Athens, of Balbec or Palmyra, fally promoted the grand ends of it administers both pleasure and civil society, the peace and secu. instruction to compare them with rity of individuals, by steadily the draughts of the fame edifices, pursuing that wife and orderly in their priftine proportion and maxim, of afligning to every thing splendor. capable of ownership a legal and The conftitution of feuds had determinate owner.”

its original from the military poWe shall conclude with the ac- licy of the northern or Celtic nacount which our learned writer tions, the Goths, the Hunns, the

Franks,

Franks, the Vandals, and the vernment, and to that purpose su. Lombards, who all migrating from bordination was necessary. Every the fame officina gentium, as Crag receiver of lands, or feudatory, was very juftly entitles it, poured them- therefore bound, when called upon selves in valt quantities into all the by his benefactor, or immediate regions of Europe, at the declen- lord of his feud or fee, to do all fion of the Roman empire. It was in his power to defend him. Such brought by them froin their own benefactor or lord was likewife countries, and continued in their subordinate to and under the com. respective colonies as the most mand of his immediate benefactor likely means to secure their new or superior ; and fo upwards to the acquisitions : and, to that end, prince or general himself. And large districts or parcels of land the several lords were also reciprowere allotted by the conquering cally bound, in their respective general to the superior officers of gradations, to protect the poslefthe army, and by them dealt out fions they had given. Thus the again in smaller parcels or allot. feodal connection was established, ments to the inferior officers and a proper military subjection was most deserving foldiers. These al. naturally introduced, and an army lotments were called feoda, feuds, of feudatories were always ready fiefs, or fees ; which lait appella- enlisted, and mutually prepared to tion in the northern languages sig. muster, not only in defence of each nifies a conditional ftipend or re- man's own several property, but ward. Rewards or ftipends they also in desence of the whole, and evidently were; and the condition of every part of this their newly annexed to them was, that the acquired country: the prudence poffeffor should do service faithof which constitution was Yoon suf. fully, both at home and in the ficiently visible in the strength and wars, to him by whom they were spirit, with which they maintained given; for which purpose he took their conquests. the juramentum fidelitatis, or oath The univerfality and early use of feally : and in case of the breach of this feodal plan, among all of this condition and oath, by not those nations which in complaiperforming the ftipulated service, fance to the Romans we still call or by deserting the lord in battle, barbarous, may appear from what the lands were again to revert to is recorded of the Cimbri and Teu. him who granted them.

tones, nations of the same norAllotments thus acquired, na. therr original as those whom we turally engaged such as accepted have been describing, at their first them to defend them : and, as irruption into Italy about a cen. they all sprang from the same right tury before the christian of conqueft, no part could sublift They demanded of the Romans, independent of the whole; where- ui martius populus aliquid fibi fore all givers as well as receivers terrae daret, quali fipendium: were mutually bound to defend " caeterum, ut vellet, manibus at. each others possessions. But, as que armis fuis uteretur.The that could not effectuaily be done sense of which may be thus renin a tumultuous irregular way, go. dered; they desired ftipendiary lands (that is, feuds) to be allowed years, the feodal conftitution, or them, to be held by military and the doctrine of tenore, extended it. other personal services, whenever self over all the weitern world. their lords fhould call upon them. Which alteration of landed proper. This was evidently the same con- ty, in fo very material a poine, ne ftitution, that displayed itself more ceffarily drew after it an alteration fully about seven hundred years of laws and customs : fo that the afterwards; when the Salii, Bur- feodal laws foon drove out the Ro. gundians, and Franks brole in man, which had hitherto univer. upon Gaul, the Visigoths on Spain, fally obtained, but now became and the Lombards upon Italy, and for many centuries loft and for. introduced with themselves this gotten ; and Italy itfelf (as fome northern plan of polity, serving at of the civilians, with more {pleen once to distribute, and to proiect, than judgment, have expressed it) the territories they had newly belluinas, atque ferinas, immanesque gained. And from hence it is Longobardorum leges accepit. probable that the emperor Alex- But this feodal polity, which ander Severus took the hint, of was thus by degrees established dividing lands conquered from the over all the continent of Europe, enemy among his generals and feems not to have been received in victorious soldiery, on condition of this part of our iland, at least not receiving military service from universally and as a part of the them and their heirs for ever, national conftitution, till the reign

lands

æra.

Scarce had these northern con.' of William the Norman. Not bat querors established themselves in that it is reasonable to believe, their new dominions, when the from abundant traces in our hiftory wisdom of their conftituiions, as and laws, that even in the times of well as their personal valour, the Saxons, who were afwarm from alarmed all the princes of Europe; what Sir William Temple calls the that is, of those countries which same northern hive, something had formerly been Roman pro. milar to this was in use : yet not vinces, but had revolted, or were so extensively, nor attended with deserted by their old masters, in all the rigour that was afterwards the general wreck of the empire. imported by the Normans. For Wherefore moít, if not all, of them the Saxons were firmly settled in thought it necessary to enter into this island, at least as early as the the same or a similar plan of policy. year 600 : and it was not till ewa For whereas, before, the poster. centuries after, that feuds arrived fions of their subjects were per- to their full vigour and maturity, fectly allodial; (that is, wholly even on the continent of Europe. independent, and held of no fue This introdoction howeverof the perior at all) now they parcelled feodal tenures into England by out their royal territories, or per. King William,does not seem to have fuaded their subjects to furrender been effected immediately after the up and retake their own landed pro- conquest, nor by the mere arbitrary. perty, under the like feodal obli. wilt and power of the conqueror; gation of military fealty. And but to have been confented to by the thus, in the compaís of a very few great council of the nation long after

« ForrigeFortsett »