reasons for the conclusion; but it may be conjectured from this passage of the report, that, in the opinion of the committee, fees should be levied on the principle of a return for services rendered; a ground on which the courts of justice should be made self-supporting, and a charge upon the suitors exclusively. Lord Langdale maintained a contrary doctrine in the following passage of his evidence before that committee, which may here be added to the opinions already quoted in illustration of the present question:

"I have long been of opinion that the courts and offices of law, so far as they depend on the organization, establishment, and management of officers, ought to be treated like every other department of government, and be paid by and kept under the superintendence and control of government; and that there is no more reason for charging the particular expense of judicial and legal services upon suitors, than there is for charging the expense of any other public services upon the particular persons who have occasion to apply to government for such services. The legal department is amongst the most important branches of government. The establishment is maintained for the benefit, not only of the particular persons who require remedies for the wrongs they have endured, but also for the common benefit and security of all who live under the protection of the law. It does not seem to me to be expedient, or even just, to charge the particular individuals, who already are in distress by reason of the insufficiency or inefficiency of the law, and the conduct of wrong-doers, with the further expense of maintaining the establishment by which the law is to be declared, and the wrong-doers are to be prevented from pursuing their course of injury. I think, therefore, that it is the proper duty of government to pay those expenses. It seems to me quite wrong to make any addition, which can be avoided, to the suffering already occasioned by the inadequacy of the laws."

With reference to throwing the costs on the unsuccessful party, his lordship added:-"Many persons who attend, as I think, but superficially to these things, proceed upon the notion that, for all service done in the courts of justice, the

person who occasions the present trouble should pay for it. This seems to me to be a considerable mistake; for the party who in this way is made to pay, is the very person who sets the law in motion, proves and makes public its useful operation, and from that operation produces examples and rules for the guidance of all others. The suitor is not the only person who profits by the lawsuit; for all other persons who are instructed and warned or guided by it, profit also."

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XXI. HISTORICAL REVIEW OF THE FEODAL SYSTEM. BY PATRICK MAC CHOMBAICH COLQUHOUN, LL.D., MEMBER OF THE SUPREME COUNCIL OF JUSTICE OF THE IONIAN ISLANDS. Ex-HON. SEC. OF THE SOCIETY.

[Read January 7, 1861.]

THE investigation of the origin, progress, and gradual development of the Feodal Law, is a subject of considerable interest to every legal student; and, although it has been on the decline for several centuries, its traces will remain in the juridical system of many countries for ages yet to come, and it will be long ere we shall be able to say of it, as Strabo said of Ilium in his day, ουτε ἴχνος οώζεται τῆς παλαίας πόλεως.

The object of the following pages will be to show its origin, nature, and progress, and in how far it was connected with the Roman law-to point out in what respects its principles were antagonistic to, and in what they coincided with, those of ancient Rome.

The Feodal System, its origin and progress, have occupied the attention, and given an opportunity for the exercise of the sagacity and research, of many distinguished authors. Sismondi and Guizot (a) have treated of it in France, Muratori in Italy, and latterly Sartori, and a host of others in Germany. Hallam, never quoting (by his own confession) original documentary authority, can hardly be said to give a view of the origin of feods which existed among nations, the connection between which is so remote that they can hardly be supposed to have borrowed it from each other. We therefore come to the conclusion that it is the natural result of a mode of life existing among uncivilized nations, and that it naturally fades out before the progress of commerce and international communication. Eminently adapted to the state of society down to the time of the middle age of every country, it is equally inapplicable to those periods in which civilization and civil government have superseded barbarism, and a purely military organization.

(a) Colquhoun's Summary of the Roman Civil Law, Sect. 126.

The law designated in Europe under the title of feodal, is traceable in countries entirely unconnected with the ancient civilized world. It existed before the great immigration of the Himalayan races into Europe, and is in its origin undoubtedly older than the law of Rome, borrowing in its turn, on its reappearance in Europe, its refinements from the Roman law; or, in other words, from that system which, although originally identical with it, had become refined and improved, and had undergone material modifications.

We trace a feodal or military system in the government of India; we find it existing in the ancient government of Egypt. We recognize it among the Jews when they became conquerors; among the ancient Greeks of the mythic period; in like manner among the barbarians who overthrew the Western empire. The government of the Tatars was feodal in its origin and organization.

Again, the Feodal System has its origin in the older patriarchal form of government, and is to be regarded from two distinct points of view; (1), that modified feodality which springs directly out of the patriarchal system; and (2), that more consonant with modern conceptions, which results when the bond of blood has been weakened, and the nation so organized becomes a conqueror, quitting its original locality to settle in a new country already peopled by a different race.

In the first treatise published by the author in these papers, he alludes to the Patria potestas being the real basis of the Roman system. The head of each family, in countries thinly peopled, was in the position of king, judge, lawgiver, and executive; those related to him in blood obeyed, jure sanguinis, this head; thus the family growing into a nation retained the patriarchal system, although the blood-relationship had long since ceased to be capable of proof and demonstration: thus the patriarchal naturally degenerated into the feodal system.

The descendant of the first colonist was looked upon, jure occupationis, as lord of a certain tract of country, and all who inhabited it were, by a fiction certainly, but perhaps also in fact, related to the first occupant. Linked by this bond,

common interest dictated the necessity of defending the chief of their nation against the encroachments of neighbours; hence arose the duty of military service. It is perfectly natural that the more immediate descendants of the first occupant should assume a position above those less nearly connected with the main stock; this led to the system of castes, indicating in fact degrees of relationship nearer or more remote from the parent stock.

In turning to Northern India we find three principal and well-defined castes-the Brahman, the Shaistra, and the Sudra-the noble, the soldier, and the agricultural slave. Now, in all countries the title of judge was originally the highest in the state; it implied all that could be desired by the most absolute monarch; and such is the interpretation of the word Brahman. Among the Jews we find judges performing all the kingly functions. The Irish kings were originally termed Brehon: when Cæsar invaded the Britons we find the chief men bearing the same title, of which Vergubratius (a) and Mandubratius are known instances; and even in recent times the Highland gillie would cheerfully obey the behests of his chief, while he set at nought the political laws of an organized state of society.

Where many of these patriarchs, with their followings, joined together for defence against a common enemy, or for purposes of aggression, they chose a generalissimo for the occasion, whose council consisted of the chiefs of different tribes. This we find exactly carried out in the attack on Ilium by the united Greeks; but on the termination of that war, Agamemnon resumed his position as a simple chief of the country round Mycena. Galgacus in the north, and Casibellaunus in the south of Britain, stood in exactly the same relative position to those by whom they had been placed there.

Before the election of Romulus as rex or generalissimo, a similar principle no doubt existed; and it was his endeavour to render his office permanent which cost him his life; or, perhaps, the usurpation of some of the rights he had cleverly left to the combined chiefs or patricians, by forming them into a

(a) Fear gu breith, man to judge.