maxims of the law are set at nought; in not a few the meaning of the legislature is so wrapt up in a phraseology which no man's wit can pierce through, so as to reach it like carefully hidden ore, but of which the value is far more questionable than the concealment. Not seldom the words of former acts are borrowed, but applied to cases to which they are wholly inapplicable. Not seldom reference is made to things existing in former acts, but not transferred to the new ones. The scissors are very frequently the instruments used in framing these statutes, and were the wit of the Judge as sharp as they, no possibility exists of finding a sense where none whatever is to be found.

When we reflect that there are above a hundred public acts passed every session, and twice as many private ones, surely we may well complain that there should be no more pains bestowed upon their composition. Surely the Judges may well complain that they should be called upon daily to explain and to apply such provisions. Surely the public may well complain that the time of the Courts should be so unprofitably wasted, when a slight degree of care, a very easy arrangement, might so easily remove this cause of vexation and delay in our judicial proceedings. But the worst of it is that in many cases the acts fail to accomplish their objects, sometimes by failing to express what the legislature intended, sometimes when the intention is expressed by their provisions being found to oppose and conflict with and counteract each other. There only wants, in order effectually to remedy the greater part of this crying evil, the appointment of a Board to revise all Bills before they are presented to either House of Parliament, and to consider all changes or additions proposed in their progress. The Government Bills would naturally form the bulk of those submitted to this scrutiny, but any member of Parliament might be allowed to avail himself of the Board's assistance. At the head of this Board ought to be placed beyond all doubt the Minister of Justice. Its operations would thus be naturally connected with the Government, and his care and superintendence would be of the greatest importance.

See as to this subject I L. R. 134.

It is not our intention in the present article to attempt to give a statement of the law as to heriots. We are desirous only of calling attention to certain points connected with them, some of which do not appear to be generally understood, and to offer some observations tending to the abolition of what we think must be generally considered as a partial, absurd, and oppressive impost.

The origin of heriots is perhaps more obscure than any other existing incident of tenure, and has been traced up by different writers to very different parents. A heriot is now indeed a brat which is laid to the door of many fathers, without getting a willing acknowledgment from any. "Heriots," say the Real Property Commissioners', "are a reproach to the law of England, and must be considered as a remnant of that barbarous state of society which existed at their introduction by the Danes," Perfectly agreeing with the learned Commissioners as to heriots being a reproach to the law, we are induced to differ from them as to their having been introduced by the Danes, although we are aware that this opinion has also the sanction of Blackstone2, who was probably followed in this by the learned Commissioners. But the heriot certainly existed at a much older period of our history. There can be no doubt that heriots were a part of the military system, and it seems now to be the better opinion that this was not an invention of the barbarians, but derived by them from the Romans. The theory broached by Robertson, and followed on this subject by Blackstone, appears to be incorrect. According to the former, "The king or general who led the warlike people forth to conquest, and continued still to be the head of the colony, had of course the largest portion allotted to him. Having thus acquired the means of rewarding ser

1 Third Report, p. 19.

2 Bl. Com. 422. This idea probably arose from the declaratory statute of Canute on the subject hereafter noticed. See post, p. 267.

vices, as well as of gaining new adherents, he parcelled out his lands with this view. His chief officers imitated the example of their sovereign, and in distributing portions of the land amongst their dependants, annexed the same conditions to their grants." But later writers give us a good reason for supposing that this is incorrect. Lands were granted by Alexander Severus, as noticed by Blackstone himself, and afterwards by Probus, to the Limitanean or Ripuarian soldiers, upon conditions well described as containing the germ of the feudal tenure of the middle ages, and which appear to have been adopted as the basis of the defensive system of Europe. It is not necessary for us to enlarge on this subject3; indeed, we only notice it because most of the text books familiar in the profession appear to give a mistaken account of the origin of the feudal tenure.

But heriots may be traced to a much earlier date than even this. They appear to have existed, although under different names, among the Roman institutions even of the the Republic, and in the first instance not to have been connected with the tenure of land, but to have been attached only to persons. They were, in fact, part of the system of patron and client, familiar to that people.

Lord Wynford seems to have had the idea that heriots were not originally connected with tenure present to his mind when he decided the case of Garland v. Jekyll.4 "It is probable," said Best, C. J., though this is mere con

1 Robertson, Charles V., sect. 1. p. 25.

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* 2 Bl. Com. 47., who says that the Emperor "took the hint" from the barbarians, but surely the reverse seems more probable.

3 The reader will find much information on this subject in Sir F. Palgrave's History of the English Commonwealth, who shows that the theory of Robertson has long been exploded by the more enlightened European writers on this subject. See 1 Palgrave, 496. Dr. Whewell, also, in his recent work, which we hope at a future time to examine, says, "The feudal system borrowed its more substantial elements, the tenure of land by military service, from the Roman empire. Even while the empire was only commencing, Sylla and Augustus assigned lands to their veterans; and a little later lands were granted to the Limitanean or Ripuarian soldiery, on condition of defending the boundaries of the empire. ** The lands thus possessed by military service were termed benefices (beneficia), and afterwards fiefs (feuds), by the barbarians, who received lands from the Roman rulers on the like conditions." Whewell's Elements of Morality, vol. ii. p. 964.

42 Bing. 292., as to which see post, p. 270.

jecture, for the history of heriots is so obscure that it is impossible to ascertain how they originated—it is probable that heriots were originally nothing more than the gift which, in a rude state of society, a person in an inferior situation of life, on approaching one of a superior situation always offered.1 We know that in many countries where knowledge and civilization have not made the progress they have in this happy country, an inferior person cannot approach a superior without the offer of a present. It has occurred to us that heriots were a species of tribute the tenant offered to the lord at the time he approached him, in order to secure his protection and to pray of the lord to confer on him the interest which had been determined by the decease of the former tenant."

This is not quite correct; because the heriot is payable, not by the next tenant or heir of the last tenant, but by the executors of the last tenant out of his personal estate. But we think Lord Wynford was right in his conjecture as to the heriot being originally a species of tribute payable by the tenant to the lord on the death of the former for his protection and countenance. According to the opinion of Mr. Spence, a part of whose forthcoming work has been placed at our disposal with his accustomed liberality, the heriot was originally payable only in respect of the personal relation of the patron or lord, and vassal or man, and whether the vassal held land or not. But as regards those who held land of their lord, a variation took place shortly before or at the Norman Conquest, when the payment of heriots became connected with the land.

Mr. Hallam, without any particular allusion to heriots, says, "There are vestiges of a very universal custom distinguishable from the feudal tenure of land, though so analogous to it, that it seems to have nearly escaped the notice of antiquaries. From this silence of other writers, and the great obscurity of the subject, I am almost afraid to notice what several passages in ancient laws and instruments concur to prove, that besides the relation established between lord and

'This is still the invariable custom in India, (where, by the bye, the feudal system is yet to be found among the natives;) and it exists to some extent in France.

vassal by beneficiary grants, there was another species more personal and more closely resembling that of patron and client in the Roman republic. This was usually called commendation, and appears to have been founded on two very general principles, both of which the distracted state of society inculcated. The weak needed the protection of the powerful; and the government needed some security for public order." 1

Whether this institution was borrowed from the Romans and was adopted by all those nations whom we are pleased to term Barbarian, or whether it existed among them before their intercourse with the Romans, we shall not now stop further to inquire. It is quite certain that heriots existed among the Anglo-Saxons, as is fully shown by Sir F. Palgrave.2

Upon the death of any landholder, the sovereign or the lord was entitled to claim the Heregeot3 or Heriot. The ex11 Hallam's Middle Ages, p. 114. Ed. 8.

"Ye see

Sir Thomas Smith, who wrote in the time of Elizabeth, says: that where the persons be free and their bodies at full libertie and maxime ingenui; yet by annexing a condition to the law, their is meanes to bring the owners and possessors thereof into a certain servitude, or rather libertinity. Thus, the tenants, beside paying the rent accustomed, shall owe to the lord a certain faith, duty, trust, obedience, and, as we term it (certain services), as libertus or cliens patronus: which, because it doth not consist in the persons (for the respect in them doth not make them bond, but the land and occupation thereof), is more properly expressed in calling the one tenant, the other lord of the fee, than either libertus or cliens can doe the one or patronus the other: for those words touch rather the persons and the office and duty between them than the possessions: but in one case leaving the possession and land, all the obligation of servitude and service is gone." Commonwealth, book iii. chap. 10.

2 Hist. of English Commonwealth, vol. 2. p. ccclxii.—v. mentioned in England as early as the time of Edgar. Ages, vol. ii. 416.; citing Selden's Works, vol. ii. p. 1620.

Heriots are also Hallam's Middle

Here-geat (apparatus bellicus, &c., see Willes, 194.) Under the name of Herwede, Heergewette, Herwad, Hergewæde and Hergerette, these gifts or payments were equally known to the German law. Palgrave, ccclxii. Lord Coke derives heriot from "here," lord, and "geat," beste; i. e. the lord's beste. Co. Litt. 185 b.

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In Mr. Thorpe's very recent translation of Dr. Lappenburg's England under the Saxon Kings we find Among other German tribes the heriot (heergewite) at an earlier period fell to him who inherited the land or fief of the ancestor ; and in England also at a later period the payment or redemption on the death of the last possessor was, with a total disregard of the original object, converted into a pecuniary burden on the successor on taking possession of the estate," vol. ii. p. 314.