council of elders. Nor can it be doubted that, but for the continual state of warfare in which the Romans were engaged, they would not have elected another rex-an office which, after all, endured for no lengthened time, and the permanence of which was so abhorrent to the traditions of the people, that even Augustus, after a lapse of seven centuries, did not think it prudent to risk his popularity by assuming it, but avoided the difficulty by a translation. Hence we find the patriarchal system prevalent in the cradle of the human race; we find it continued in their descendants of the Keltic, Greek, and Roman tribes. We find it among the Jews, Arabs, Tatars, and indifferently among all nations to whom, from ignorance or for convenience, historians, ethnologists, and philologians have given the conventional but absurd distinctive appellations of Shemetic, Hametic, or Japhetic.

It is hardly necessary to discuss the question, as to whether the Feodal System be or be not derived from and founded on the Roman law: the Romanizing spirit of the middle age strove to establish this fact, and among its adherents we find the great Montesquieu himself. The theory is however now generally exploded; and, although we may trace many points of resemblance, we must not be drawn into the error of supposing the one derived from the other, but admit that, derived from a common origin, they were branches of one tree or sprung from one root, which acquired a different development in different climates. That strong points of similarity exist cannot be denied, but these points are better referred to the natural development of two different systems, respectively tending to a common object.

The aids and reliefs of English feods are remarked by Blackstone to bear a strong resemblance to the relation of patron and client; for as the client was bound to pay the debts of his impoverished patron, redeem him from captivity, or furnish a portion for his daughter, so the feodal vassal must grant his relief for the knighting the lord's heir, for ransoming him when a prisoner, or marrying his daughter. But it must be remembered by the advocates of this theory that the two systems differed in principle, the one being in its

nature and intention military, and the Roman system civil. While, then, the collators and arrangers of the feodal law imitated the order of the Roman codifiers and digesters, and borrowed their terms for a science which in Latin had none of its own, they did no more than give it a semblance of an origin which it had not, and thus aided in leading into error those who overlooked the far more important question of principle.

The Jews on leaving Egypt under Moses were reorganized -I say reorganized, because the Jews, supposed to have been originally natives of the modern kingdom of Oude (Lovdaíor), brought with them to Egypt a system which was only revived and re-established by Moses as lawgiver or judge, upon a basis strictly military, but nevertheless retaining so much of the patriarchal system of India, that the different tribes were kept apart, and a priestly caste segregated for the purposes of religion, a captain appointed over each, and the position of his encampment clearly defined, as well as the age of military service. At the period, therefore, when the Hebrews permanently settled in a new country, all traces of the patriarchal had merged in the feodal system, a necessary result of the chronic state of aggressive warfare in which the Hebrews were so long engaged.

The law of inheritance is also referable to the title by occupancy; for the sons, being in quasi possession during their father's lifetime, naturally were the first to assume the vacant possession on his decease; and it is equally consistent to suppose that they would divide this inheritance among themselves in equal shares, and this is the true origin of those allods, or allodal lands, which preceded the introduction of the military system. Menzel, following Tacitus, tells us, that wherever the Germans were vanquishers, they divided the land fraternally amongst the free warriors; and every such estate, remaining in the hereditary possession of the family of the first occupant, obtained the denomination of allod or perfect estate; and so proud were the later German tribes of these allodal lands, that they often refused a larger feodal estate tendered in exchange for this so termed "Sun feod," from the formula-"This

estate which I hold of God and that glorious element the sun."

The title to an allod was indefeasible save by sale or gift of the owner; nor could the state deprive a man of this free possession, however great his offence might have been. It was considered sacred, and, as it were, a part of the individual himself, because it was the only species of estate upon which the family could live freely without any obligation of service for its enjoyment, neither could any one enter the land without the owner's leave; and all injuries committed on the owner of an allod, within its boundaries, was mulcted in penalties double and treble of those inflicted under like circumstances elsewhere: nay, the privilege of the allod went further, for the state could not enter and forcibly seize the owner or any one else within its boundaries; but especially sacred was the allodal house, more so indeed than a church; even in the case of an outlaw no one dared break the door and enter; they set it on fire from without, and in this may be seen the origin of the English maxim, "Domus sua est unicuique tutissimum refugium," or, Every man's house is his castle. (a)

The succession to allodal lands was strictly in the male line, as women could not exercise the rights, nor perform the obligations, of an allodal proprietor.

Every member of the family was entitled to live in the house, and be sustained from the produce of the land, nor was it in the power of the father to disinherit his children; and, if the eldest son took possession of the allod, he was obliged to surrender to all other relations a portion of the chattels and of the fruits of the land for their maintenance.

The technical term applied to the family was "Sippe," "Sippschaft," and literally "Magschaft" (b) indifferently, which was distinguished into Schwerdmagen (c) or Spillmagen, sword-side or spindle-side, expressions still used in Scotland for male and female relations.

This family, including the slaves, was legally represented by the paterfamilias in all external or forensic matters, and (a) 11 Co. 82, a. (b) Stomach. (e) Sword stomachs and spindle-stomachs.

he was their guardian; and they, on the other hand, were bound to obey him, as within his bann or allodal boundary on entering foreign service or on marriage, they were free of the bann, and received an abbann, which has been in French corrupted into apanage, and applied only to those having the rights of royal blood, because, by the principle of the later feodal law, the sovereign is the legal owner of all landed property, and therefore the only person who, since the disappearance of allods, possessed an entirely free estate in land; those, however, who did not marry remained for ever under the bann; hence in German the term for bachelor is Hagestolzer, because he remained within the gehage or enclosure. The women remained under perpetual guardianship, which was on marriage transferred to the husband by purchase; whereupon the woman passed under the guardianship of her husband, and became a member of his family. (a) Here is certainly a striking analogy with the Roman law, which reminds us of the perpetua muliebris tutela and the conventio in manum of the older law, where by a fiction the wife became the filia familias of her husband, as otherwise she would have lost by the change of family her rights of succession, without having gained equivalent rights in that whereof she had then become a member. Hence our women assume their husbands' epitheta; hence, too, the origin of the prohibition to marry the deceased wife's sister, because, since by the conventio in manum mariti the wife was a filia familias of the husband, his sisters-in-law were in a manner his daughters by the same fiction, and we, rejecting the fiction, have maintained the result, and forbid the intermarriage of persons between whom there is no tie of blood, a restriction which has no longer even common-sense to support it-a somewhat illogical result.

Thus the allodal possessor combined in himself the dominium directum and the dominium utile, whereas by the feodal law he only had the latter. A mortgage does not destroy the allodal nature of land, even though perpetual. Neither does land cease to be allodal by subjection to the

(a) Colquhoun, u. s., sections 564, 741-2.

jurisdiction of some lord; for jurisdiction no more confers direct ownership, than direct ownership confers jurisdiction, for fief et justice n'ayent rien de commun.

The presumptio juris, in cases of doubt, is always in favour of allodality, as in the case of persons it is always in favorem libertatis. On the continent few allodal lands remain, for on the introduction of feods every possible pressure was put upon the allodal owners, and every possible inducement held out to them to surrender their allods, and receive them back as feofs.

In

In England, allods were abolished on the Norman Conquest at one fell swoop, and the feodal law substituted, which vested the dominium directum of all land in the crown. the northern countries of Europe, Norway, Denmark, and Sweden, the constitutional system prevailed, the former of these taking the lead in political organization. The first kings were the sons of the deified Odin, who willed his conquests as follows:-

East Saxony to Begeleg, West Saxony to Balld, France to Sigge, Denmark to Skiold, Norway to Sæming, Sweden to Yngivi-Freor. Subordinate to these Drottar, or Divine kings, were a number of Fylker kings, equivalent to the Gaugrafen or Counts of the Valley in Germany, otherwise Jarls. All these kings combined in their persons the supreme legal power, and consequently the presidency, as well in the courts as in the Legislative National Assembly, and at the sacrifices: they moreover took the command on land and sea.

The people consisted of bonden or free peasants, possessed of a free and unalienable Allfod or Odol, who elected the king, and held the Public National Assembly, or Thing, under his presidency. The richer bonden had their vassals or infeodated tenants, under whom again came the trælle or slaves; thus, while the general government was constitutional, local government was feodal. Those heroes who dedicated their energies to what, in modern days, passed under the uncivil denomination of piracy, were termed Sea or Næs-kings, from the islets they made their points of rendezvous. This was an occupation for the surplus population of a maritime