CHAP. III, OF THE DESCENT OF REVERSIONS AND REMAINDERS [91] SECT. I. Of a Mesne Seisin, &c. of such Estates. BUT before I speak immediately to this point, I will make a few historical remarks prefatory to the subject;—they may elucidate the doctrines which will be presently deduced. And without wearying myself or wearying my readers, with looking into the pages of antiquity, I shall just give a deduction of facts, as they occur to my memory, and refer to a few writers, and those chiefly of a recent date; not for the purpose of establishing such facts, (for then, perhaps, more proper authorities might be vouched,) as I think the reader's own recollection will confirm and bear testimony of what he finds; but because he may, in the books referred to, meet with observations more illustrative of the subject, and [92] more worthy of his attention and trouble. The dominium directum ori state. At an early age, at the dawn of the feudal ginally in the system, the ultimate property, or dominium directum of the lands, seems to have been in the nation or society at large. Indeed it must have required a length of time to have arrived at this state of refinement; yet it certainly is no more than what we find many states which we deem barbarous, and even savage, have attained to (a). However, at the age I speak of, and in several countries of Europe, the abstract idea of society, or the public, prevailed, and the absolute property of the soil was supposed to belong to such society at large. Among the ancient Germans we find the custom of dividing the lands annually among the freemen, while the ultimate property therein seems to have been lodged in the tribe. As society, therefore, was an abstract idea, it was requisite to have a corporeal representative, in whom certain properties attributed to such society should be vested. Hence arose the chief political person of the state. [93] Several small clans form a nation. In those early times a state consisted of a number of petty clans or hordes, the individuals of each of which were more immediately subject to a (a) See Sullivan's Lect. 4, p. 36; Stuart's Diss. Ant. Eng. Const. part 1, s. 3, and View of Soc. in Europe, 24, 151, 201, 213, 4to. edit.; De Lolme on the Const. of Eng. b. 1, ch. 1, p. 10, 11, (edit. 1789.) See Linschoten, b. 2, p. 219, 221; Lamb. Observ. As. Af. & Am. vol. 1, ch. 20, p. 205; Ferguson on Civ. Soc. part 2, s. 2, p. 124, and Aristotle, Pol. particular chief, who led them to war, and who presided over them in peace, in a civil capacity, as their magistrate. But when a cause arose between the chieftains, or any of the individuals of the several clans, they must have had recourse (when the contention was not decided by the sword) to an higher tribunal, which had authority over each. As several of these petty districts formed a state, each was subject to the general control: but as every freeman was thus amenable to the acts of such society, every freeman had a seat in the supreme assembly. These assemblies met at certain stated times, or upon some pressing emergency, and framed rules, &c. for the direction of the state. Thus was the supreme authority vested in the aggregate of freemen ; and thus was it to continue. [94] general mo march or chief. But it was necessary on many occasions, to And elect a delegate a portion of such power to particular individuals and therefore, we find that over these rude states a monarch or king was generally elected to preside, though with very limited authority. And when a war was determined on, or an invasion impended, as a leader or chief was requisite to conduct the united clans, such king led them to battle: or, in case the cause was not a general one, and only a particular clan, or a few of such districts were concerned in the enterprise, or the monarch declined leading them himself, or in case several states united in a general war, they elected a chief for the pur Pro tempore. [95] Civil magis trates. [96] pose of conducting them but, as that purpose was frequently the only one for which he was elected, when the war determined his authority ceased, and he descended to his pristine station (b). Again, as to the civil government, a certain portion of authority was delegated to magistrates, who, deriving their power from the society at large, were not confined to a particular clan or family, but enabled to decide those causes which arose between the individuals of separate districts, or between the lord or chief and the particular persons who were immediately subject to him, in order to secure to the individual that impartial administration of justice which society was instituted to confer. These magistrates, thus chosen, were generally such men whom experience had taught wisdom, and whose understanding was (b) See Versteg. Rest. Dec. Intel. c. 3, p. 68. See it also in Speed's Chron. b. 7, c. 3, s. 10, p. 290; and in 1 Tyrr. Gen. Hist. Eng. Introd. xxxix. See North. Antiq. vol 1, ch. 4, p. 61; ch. 8, p. 158, 168; Bick. Alf. 1, 11, 41; 1 Tyrr. Hist. Eng. b. 2, p. 33; b. 3, p. 116; b. 5, p. 254; Camd. Brit. Introd. (Engl. Saxons); Mod. Univers. Hist. vol. 42, p. 2. See Hottom, F. G. ch. 1, 6, 10; Verst. c. 10, p. 349; Speede, b. 5, c. 6, p. 173; b. 7, c. 1, p. 282. See Loc. on Gov. b. 2, s. 102, 106, 108, &c.; Adair's Am. Ind. 428, 435; and Leo's Afric.; Falc. on Climate, &c. b. 4, c. 2, p. 228; Sullivan's Lect. p. 30; and Ferguson on Civil Soc. part 2, s. 3, p. 152; 1 War. Wales, b. 1, p. 4, 42; b. 2, p. 119; b. 3, p. 132, 136; b. 4, p. 246; Stuart's Diss. Eng. Con. part 3, s. 2, p. 132; Roberts. America, vol. 2, b. 4. ripened by age. Hence the titles of them, in assembly. Thus were the chiefs and the civil magistrates elected by the society, while the freemen, constituting the nation, reserved the supreme power to themselves. When a war threatened, when magistrates were to be chosen, or when the lands were to be apportioned out to the individuals entitled, the subject was debated and determined on in the general council or assembly. The General council or assembly appointed the portion of ground to the subject; they chose their magistrates; and, when unity of action was more immediately requisite, when the assembled army was to be conducted, they nominated an individual to preside and to direct the belligerent clans. This, or something very similar to this, seems to have been the manner of government among our German ancestors (d), from very [97] (c) So the title of Sheikh, among the Arabs, signifies an old man. See Journal from Aleppo to Damascus, p. 6, note (f). (d) See Tacitus, of the Manners of the Germans. |