Sivut kuvina

The nature of this rule of in

This rule, so far as it is affirmative and relates to lineal heritance con- descents, is almost universally adopted by all nations; and

it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish law, on failure of issue, the father succeeded to the son, in exclusion of brethren, unless one of them married the widow and raised up seed to his brother (t). And by the laws of Rome, in the first place, the children or lineal descendants were preferred ; and on failure of these, the father and mother or lineal ascendants succeeded together with the brethren and sisters(v); though by the law of the twelve tables the mother was

(t) Seld. de Success. Ebraeor. c. 12.

(v) Ff. 38, 15; 1 Nov. 118, 127.

sequences, and those alone, remain in speaking, unsophisticated reason and
full operation. It is certainly compe- natural feeling willingly subscribe: (see
tent to the municipal law of any country post, chapter 32, pp. 515 et seq.:)
to mark out the path of descent; but, why should the descent of real pro-
as certainly, (notwithstanding our au- perty be controlled by another and very
thor's opposite declaration and able different set of rules? It is not asked
apology,) injustice is done to indi- why these latter ever were established ;
viduals when the line is arbitrarily the occasion of their introduction we
traced, so as to violate private natural have learned from our author's fourth,
feelings, without thereby securing an fifth, and sixth chapters, and it may be
equivalent public advantage. The admitted they were necessary to sup-
feudal rule in question, as our author port in its vigour the system of feudal
fairly acknowledges, is not only in op- tenure; but, why are they allowed still
position to the Jewish law, and to the to disfigure our code of laws regulating
refined code of Roman jurisprudence, the descent of real property ?
but also to our own old Saxon laws : It is hoped that the commissioners
and it would be very difficult to prove now engaged in an investigation of the
the utility of preserving some disjoint- laws of real property, to whose atten-
ed fragments of feudality, merely be- tion the present writer has taken
cause they may possibly have contri. the liberty of proposing this subject,
buted to the strength, or even have will think it deserving notice.
been essential compotent parts of the This hope has, since the first pub-
feudal edifice, whilst that was entire. lication of this note been realized, and
The devolution of personal property the law of inheritance amended, by the
is directed by rules to which, generally statute of 3 & 4 Gul. IV. c. 106.

originally, on account of her sex, excluded (u). Hence this rule of our laws has been censured and declaimed against, as absurd and derogating from the maxims of equity and natural justice (w). Yet that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good legal reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing it into our laws. *We are to reflect, in the first place, that all rules of suc- , [ * 211 ]

Its propriety. cession to estates are creatures of the civil polity, and juris positivi merely (16). The right of property, which is gained by occupancy, extends naturally no farther than the life of the present possessor : after which the land by the law of nature would again become common and liable to be seised by the next occupant; but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions ; whereby the property originally gained by possession is continued and transmitted from one man to another, according to the rules which each state has respectively thought proper to prescribe. There is certainly therefore no injustice done to individuals, whatever be the path of descent marked out by the municipal law.

If we next consider the time and occasion of introducing The time and this rule into our law, we shall find it to have been grounded introduction into upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence of, the feodal tenures. For it was an express rule of the feodal law (x), that successionis feudi talis est natura, quod ascendentes non succedunt; and therefore the same maxim obtains also in the French law to this day (y). Our Henry the first indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line (z): but this soon fell again into disuse ; for so early as Glanvil's time, who wrote under Henry the second, we find it laid down as established

occasion of its

our law,

(u) Inst. 3. 3. 1.

(w) Craig. de jur. Feud. 1. 2, t. 13, s. 15; Locke on Gov. part 1, s. 90.

(26) 2 Feud. 50.

(y) Domat. p. 2, 1.2, t. 2; Montesq. Esp. L. l. 31, c. 33.

(2) LL. Hen I. c. 70.

(16) But see ante, p. 13, note.

law (a), that hæreditas nunquam ascendit; which has remained an invariable maxim ever since. These circumstances evidently show this rule to be of feodal original ;

and taken in that light, there are some arguments in its [ *212 ] favour, besides those which are drawn *merely from the

reason of the thing. For if the feud of which the son died
seised, was really feudum antiquum, or one descended to
him from his ancestors, the father could not possibly suc-
ceed to it, because it must have passed him in the course of
descent, before it could come to the son; unless it were
feudum maternum, or one descended from his mother; and
then, for other reasons (which will appear hereafter), the
father could in no wise inherit it. And if it were feudum
novum, or one newly acquired by the son, then only the de-
scendants from the body of the feudatory himself could
succeed, by the known maxim of the early feodal constitu-
tions (6); which was founded as well upon the personal
merit of the vassal, which might be transmitted to his chil-
dren, but could not ascend to his progenitors, as also upon
this consideration of military policy, that the decrepid
grandsire of a vigorous vassal would be but indifferently
qualified to succeed him in his feodal services. Nay, even
if this feudum novum were held by the son ut feudum anti-
quum (17), or with all the qualities annexed to a feud de-
scended from his ancestors, such feud must in all respects
have descended as if it had been really an ancient feud;
and therefore could not go to the father, because, if it had
been an ancient feud, the father must have been dead before
it could have come to the son. Thus, whether the feud was
strictly novum or strictly antiquum, or whether it was novum
held ut antiquum, in none of these cases the father could
possibly succeed. These reasons, drawn from the history
of the rule itself, seem to be more satisfactory than that
quaint one of Bracton (c), adopted by Sir Edward Coke (d),
which regulates the descent of lands according to the laws
of gravitation (18).
(a) L. 7. c. 1.

derosum quid cadens deorsum recta li(6) 1 Feud. 20.

nea, et nunquam reascendit. 1. 2, c. 29. (c) Descendit itaque jus, quasi pon- (d) 1 Inst. 11.

(17) See post, the note to p. 222.
(18) Mr. Christian observes, that

“however ingenious and satisfactory these reasons may appear, there is

issue admitted before the female.

II. A second general rule or canon is, that the male issue 11. The male shall be admitted before the female.

*Thus sons shall be admitted before daughters; or, as our Sons before male lawgivers have somewhat uncomplaisantly expressed daughters,

. it, the worthiest of blood shall be preferred (e). “As if John [ * 213 ] Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession, in preference to both the daughters. This preference of males to females is entirely agreeable The reason of

this preference. to the law of succession among the Jews (f), and also among the states of Greece, or at least among the Athenians (g); but was totally unknown to the laws of Rome (h), (such of them I mean as are at present extant,) wherein brethren and sisters were allowed to succeed to equal portions of the inheritance. I shall not here enter into the comparative merit of the Roman and the other constitutions in this particular, nor examine into the greater dignity of blood in the male or female sex: but shall only observe, that our present preference of males to females seems to have arisen entirely from the feodal law. For though our British ancestors, the Welsh, appear to have given a preference to males (i), yet our Danish predecessors (who succeeded them) seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance (k). But the feodal law of the Saxons on the continent (which was probably brought over hither, and first altered by the law of king Canute) gives an evident preference of the male to the

(e) 2 Hal. H. C. L. 76, 78.
(f) Numb. c. 27.
(9) Petit. LL. Attic. 1. 6, t. 6.
(h) Inst. 3. 1. 6.

(i) Stat. Wall. 12 Edw. I.

(k) LL. Canut. c. 68. [2 Hale's C. L. 96, 99.]

little consistency in the application of been attended by an aged decrepid them; for if the father does not suc- feudatory, the same principle would ceed to the estate, because it must be be still stronger to exclude the fapresumed that it has passed him in the ther's eldest brother from the inhecourse of descent, the same reason ritance, who is now permitted to sucwould prevent an elder brother from ceed to his nephew. [See, now, the taking an estate by descent from the statute cited ante, in note to p. 200. younger.

And if it does not pass to --Ed.] the father, lest the lord should have

female sex.

Pater aut mater defuncti, filio non filiæ reditatem relinquent. .. Qui defunctus non filios sed

filias reliquerit, ad eas omnis hæreditas pertineat(1). It is possible, therefore, that this preference might be a branch of that imperfect system of feuds, which obtained

here before the conquest : especially as it subsists among [ * 214 ] the customs of gavelkind, and as, in the charter or laws of

king Henry the first, it is not like many Norman innovations) given up, but rather enforced (m). The true reason of preferring the males must be deduced from feodal principles : for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud (n); inasmuch as they were incapable of performing those military services, for the sake of which that system was established. But our law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained: it only postpones them to males; for, though daughters are excluded by sons, yet they succeed before any collateral relations; our law, like that of the Saxon feudists before mentioned, thus steering a middle course, between the absolute rejection of females, and the putting them on a footing with males.

III. A third rule or canon of descent is this: that where

there are two or more males, in equal degree, the eldest but females, all together, only shall inherit; but the females all together.

As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew, his eldest son, shall alone succeed to his estate, in exclusion of Gilbert, the second son, and both the daughters; but, if both the sons die without issue before the father, the daughters Margaret and Charlotte shall both inherit the

estate as coparceners (0) (19). The origin of This right of primogeniture in males seems anciently to the rinkture pri- have only obtained among the Jews, in whose constitution

in males.

the eldest son had a double portion of the inheritance (p); in the same manner as with us, by the laws of king Henry

III. Of males, the eldest only shall inherit;

(1) Tit. 7, s. 1 & 4,
(m) C. 70.
(n) i Feud. 8.

(0) Litt. s. 5; Hale, H. C. L. 238. (P) Selden, de succ. Ebr. c. 5.

(19) See ante, the note to p. 187.

« EdellinenJatka »