Commons House, but appointed by the Sovereign, and hence no change whatever would be made in the constitution of Parliament, or in the frame of the Government, nor would the great office of Chancellor be lost to the Constitution and the Bar.

It is necessary to add that the Minister of Justice, by whatever title he might be known, would have the undivided department of superintending the whole judicial system of the country, both at home and abroad. He would name, that is, recommend to the Crown, all the judges, both chiefs and puisne, in England and in the colonies. He would also recommend the Irish judges, while the Irish Chancellor, like the English, should hold his office for life. The other functions of the Minister of Justice have been already sufficiently described in the foregoing statement of the reasons for establishing such a department.

But it is very possible that the appointment of a Minister of Justice might in a short time tend to a further change, and that the Chief Judge in Equity might preside both in the Lords and in the Privy Council. The only remaining portion of the present anomaly would then be removed, and no one of the greater judicial offices would be held otherwise than for life or good behaviour. But so little that is important in this anomaly would be left by the Minister of Justice acting as presiding judge when others not removable were found with him in the Privy Council and in the Lords, that no practical harm could arise from the arrangement suggested before the new system assumed its ultimate and more perfect form. Besides, it is not to be denied that great benefit would arise from the Minister of Justice, who has to select the persons fittest for judicial situations, having an opportunity of communicating with the Bar personally, as he would by hearing the advocates address the Court in the discharge of their duty.

But there is another and a most important branch of the public business which may most appropriately be placed under this department. The superintending of Government Bills on all subjects, we have more than once had occasion to show, ought to be confided to a Board exclusively framed for this purpose. Nothing can be more inconvenient than the present practice. Bills are drawn, and are presented from various departments, each preparing its own drafts without

any communication to any other, and all being carried through Parliament without the least controul from any general supervision, because all are carried through by the members who represent the several departments. Bills affecting the naval service are prepared at the Admiralty, and carried through by the Lord or the Secretary who happens to have charge of the Admiralty business in the Lower House, and by the First Lord in the Peers, or by nobody at all if the First Lord be a commoner. Bills affecting the army are in like manner prepared at the Horse Guards, and carried through the Commons by the Secretary at War, through the Lords by the Commander-in-chief, if a Peer and a man of business, if not, by any one who chooses to be present at their successive stages. The Secretary at War and the Secretary of the Admiralty never communicate together on the principle or on the details of their several measures, how nearly soever their provisions may touch in principle or in detail. In like manner the Colonial Bills are kept apart from those that proceed from the Home Department, and the Treasury Bills are as insulated as the rest. The original concoction of these several streams of legislation is confined to the several fountains from whence they take their rise, and as each source is wholly unconnected with all the others, so each channel in which their various waters flow through Parliament is entirely kept apart from the rest. But after all it is the same material of which the whole are composed; it is only new law that is mixed or conveyed, and the separation continues not a moment after the bills become statutes. Then they all are consigned to the interpretation and execution of the same tribunals, and their endless inconsistencies and discrepancies are at once perceived. Nothing can be more perplexing to the Judges than the confusion in which they are thus bewildered. They find the same things said in various language; they find different things expressed in the same terms; they see principles adopted in one act that are repudiated in another; they perceive that the very reasons urged to show the lawgiver's intention in one case to be of one kind prove him in another to have had a different, nay, an opposite view. In many cases the known language of the law is disregarded; in still more the known principles and

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 1 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 Blackstone, 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.

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

1

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 2, 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

22 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.