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the first (9), the eldest son had the capital fee or principal feud of his father's possessions, and no other pre-eminence; and *as the eldest daughter had afterwards the principal [ *215 ] mansion, when the estate descended in coparcenary (r). The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among the males only. This is certainly the most obvious and natural way; and has the appearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary in order to preserve their dignity) to make them impartible (s) (20), or (as they stiled them) feuda individua, and in consequence descendible to the eldest son alone. This example was farther enforced by the inconveniences that attended the splitting of estates; namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments (t). These reasons occasioned an almost total change in the method of feodal inheritances abroad; so that the eldest male began universally to succeed to the whole of the lands in all military tenures : and in this condition the feodal constitution was established in England by William the conqueror(21).
Yet we find, that socage estates frequently descended to Exceptions to all the sons equally, so lately as when Glanvil (u) wrote in the reign of Henry the second ; and it is mentioned in the Mirror (w), as a part of our ancient constitution, that knights' fees should descend to the eldest son, and socage fees should be partible among the male children. However, in Henry the third's time, we find by Bracton (x), that socage lands,
() C. 70.
(u) L. 7, c. 3.
(20) See ante, pp. 48, 190, with the notes thereto.
(21) See ante, chapter 6, pp. 84, 85, and the notes thereto.
Cases in which
succession and primogeniture
in imitation of lands in chivalry, had almost entirely fallen
into the right of succession by primogeniture, as the law [ * 216 ] now stands : *except in Kent, where they gloried in the pre
servation of their ancient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons (y); and except in some particular manors and townships, where their local customs continued the descent, sometimes to all, sometimes to the youngest son only (22), or in other more singular methods of succession.
As to the females, they are still left as they were by the the right of sole
ancient law: for they were all equally incapable of performamongst females ing any personal service; and therefore one main reason of
preferring the eldest ceasing, such preference would have been injurious to the rest: and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown (2); wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. For, if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters; the eldest shall not of course be countess, but the dignity is in suspence or abeyance till the king shall declare his pleasure (23); for he, being the fountain of honour, may confer it on which of them he pleases (a). In which disposition is preserved a strong trace of the ancient law of feuds, before their descent by primogeniture even among the males was established ; namely, that the lord might bestow them on which of the sons he thought proper—"progressum est ut “ad filios deveniret, in quem scilicet dominus hoc vellet bene' ficium confirmare” (b).
IV. A fourth rule, or canon of descents, is this: that the descendants, in
IV. The lineal
(y) Somner, Gavelk. 7.
(a) Co. Litt. 165.
(22) See ante, chapter 6, p. 83, and the note thereto.
(23) See ante, note to p. 190.
fore the younger son,
lineal descendants, in infinitum, of any person deceased infinitum, repre*shall represent their ancestor: that is, shall stand in the tor. same place as the person himself would have done, had he [ * 217 ] been living (24). Thus, the child, grandchild, or great-grandchild, either The child,
or male or female, of the eldest son, succeeds before the great-grandyounger son, and so in infinitum (c). And these represen- est son takes betatives shall neither take more or less, but just so much as their principals would have done. As, if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles, the father of the two sisters, dies, without other issue : these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have six, and her six nieces, the daughters of Margaret, one a piece.
This taking by representation is called succession in each branch takstirpes, according to the roots; since all the branches in- share that the herit the same share that their root, whom they represent, present would would have done. And in this manner also was the Jewish succession directed (d); but the Roman somewhat differed from it. In the descending line, the right of representation continued in infinitum, and the inheritance still descended in stirpes : as, if one of three daughters died, leaving ten children, and then the father died; the two surviving daughters had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting (as, if the deceased left one brother, and two nephews, the sons of another brother), the succession was still guided by the roots: but, if both the brethren were dead leaving issue, then, I apprehend, their representatives in equal degree became themselves principals, *and shared the inheritance [ *218 ]
(c) Hale, H. C. L. 236, 237.
person they re
have had ;
(24) This right of representation tenures. (Clements v. Scudamore, 2 equally takes place in descents of ga- Lord Raym. 1024, 1026 ; S. C. 1 P. velkind and borough english land, Wms. 65; Blackburn v. Graves, 1 and copyholds in the nature of those Mod. 102.)
which is a neces
the first-born among males.
per capita, that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation (e). So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third ; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces : whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus : one third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother.
This mode of representation is a necessary consequence of the preference of the double preference given by our law, first to the male ko males, and to issue, and next to the first-born among the males, to both
which the Roman law is a stranger. For, if all the children of three sisters were in England to claim per capita, in their own right as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the first-born, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of
the deceased. As, if a man hath two sons, A. and B., and [ * 219 ] A. dies leaving two *sons, and then the grandfather dies;
now the eldest son of A. shall succeed to the whole of his grandfather's estate: and if A. had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B. and his issue. But, if a man hath
(e) Nov. 110, c. 3 ; Inst. 3, 1. 6.
which this rule
only three daughters, C., D., and E.; and C. dies leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son who is younger than his sister : here, when the grandfather dies, the eldest son of C. shall succeed to one third, in exclusion of the younger ; the two daughters of D. to another third in partnership; and the son of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinitum.
Yet this right does not appear to have been thoroughly of the time at established in the time of Henry the second, when Glanvil appears to have wrote: and therefore, in the title to the crown especially, we ly settled. find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased : which occasioned the disputes between the two houses of Mecklenburg Schwerin and Strelitz, in 1692 (f). Yet Glanvil, with us, even in the twelfth century, seems (9) to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father, (or as the civil law would call it) had not been *foris-familiated, in his life- [ *220 ] time. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm (h): but in the time of his son, king Henry the third, we find the rule indisputably settled in the manner we have here laid it down (i), and so it has continued ever since. And thus much for lineal descents.
V. A fifth rule is, that on failure of lineal descendants, y. On failure of (f) Mod. Un. Hist. xlii. 334. (h) 2 Hale, H. C. L. 93, 109, 120. (9) L. 7, c. 3.
(i) Bracton, l. 2, c. 30, s. 2.