« EdellinenJatka »
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 this rule into our law, we shall find it to have been grounded 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, that successionis feudi talis est natura, quod ascendentes non succedunt; and therefore the same maxim obtains also in the French law to this day. Our Henry the first indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line: 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 law, that hæreditas nunquam ascendit; which has remained an invariable maxim ever since. These circumstances evidently shew this rule to be of feodal original; and, taken in that light, there are some arguments in it's favor, 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 succeed 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
x 2 Feud. 50.
y Domat. p. 2. 1. 2. t. 2. Montesqu. Esp. L. l. 31. c. 33.
the son, then only the descendants from the body of the feudatory himself could succeed, by the known maxim of the early feodal constitutions; which was founded as well upon the personal merit of the vassal, which might be transmitted to his children but could not ascend to his progenitors, as also upon this consideration of military policy, that the decrepit 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 antiquum, or with all the qualities annexed of a feud descended from his ancestors, such feud must in all respects have descended as if it had been really an antient feud; and therefore could not go to the father, because if it had been an antient 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, adopted by sir Edward Coke, which regulates the descent of lands according to the laws of gravitation.* II. A second general rule or canon is, that the male issue shall be admitted before the female.†
 Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred. As if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death withb 1 Feud. 20.
c Descendit itaque jus, quasi pondorosum quid cadens deorsum recta linea, et nunquam reascendit. l. 2. c. 29.
d 1 Inst. 11.
e Hal. H. C. L. 235.
Cited 1 Brev. 267.
+-+ Quoted, 7 Wend. 335; 6 Rand. 360, 411; 14 Ga, 580.
out issue) then Gilbert, shall be admitted to the succession in preference to both the daughters.
This preference of males to females is entirely agreeable to the law of succession among the Jews,' and also among the states of Greece, or at least among the Athenians; but was totally unknown to the laws of Rome (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,1 yet our subsequent Danish predecessors seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance. 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 female sex. "Pater aut mater, defuncti, filio non filiæ hæreditatem relinquent. . . . . Qui defunctus non filios sed filias reliquerit, ad eas omnis hæreditas pertineat." 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 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. The true reason of preferring the
f Numb. c. 27.
g Petit. LL. Attic. l. 6. t. 6
h Inst. 3. 1. 6.
1 Stat. Wall. 12 Edw. I.
k LL. Canut. c. 68.
1 tit. 7. 1 & 4.
9 Ninth edition omits,
9 Ninth edition inserts, "(who succeeded them)."
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," 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 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."
This right of primogeniture in males seems antiently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance; P in the same manner as with us, by the laws of king Henry the first, 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 mansion, when the estate descended in coparcenary. The Greeks, the
Romans, the Britons, the Saxons, and even originally
n 1 Feud. 8.
o Litt. 25. Hale. H. C. L. 238.
p. Selden. de succ. Ebr. c. 5.
q c. 70.
r Glanvil. l. 7. c. 3.
**Quoted, 7 Wend. 335; 6 Rand. 360, 411; 14 Ga. 581. Cited, 8 Rand. 379.
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, 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. 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.
Yet we find, that socage estates frequently descended to all the sons equally, so lately as when Glanvil" wrote, in the reign of Henry the second; and it is mentioned in the mirror as a part of our antient 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 that socage lands, in imitation of lands in
8 2 Feud. 55.
t Hale. H. C. L. 221. 1. 7. c. 3.
w c. 1. § 3.
X 1. 2. c. 30, 31.
**Quoted, 3 Fla. 175; 52 Am. Dec. 374.