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.o 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 [215] 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. 5. 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, 6 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 w c. 1. § 3. 8 2 Feud. 55. t Hale. H. C, L. 221. L. 7. c. 3. x l. 2. c. 30, 31. *-* Quoted, 3 Fla. 175; 52 Am. Dec. 374. chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands: [216] except in Kent, where they gloried in the preservation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons; and except in some particular manors and townships, where their local customs continued the descent, sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession. As to the females, they are still left as they were by the antient law: for they were all equally incapable of performing 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 ;* 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 suspense or abeyance till the king shall declare his pleasure; for he, being the fountain of honour, may confer it on which of them he pleases. In which disposition is preserved a strong trace of the antient 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-“progressun est, ut ad y Somner. Gavelk. 7. z Co. Litt. 165. a Ibid. filios deveniret, in quem scilicet dominus hoc vellet beneficium confirmare." IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in infinitum, of any person deceased [217] shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.? Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum. ¶ And these representatives shall take neither more nor 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. d This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done.†† And in this manner also was the Jewish succession directed; 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 b 1 Feud 1. c Hale. H. C. L. 236, 237. d Selden, de succ. Ebr. c. 1. **Quoted, 44 Ind. 373; 114 Ill. 605. 1-** Quoted, 29 Ala. 79. 1-1 Quoted, 6 Rand. 412, 413. # Cited, 40 Vt. 358. 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, [218] and shared the inheritance 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. So, if the next heirs of Titus 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 thrée 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.t е This mode of representation is a necessary consequence of the double preference given by our law, first to the male 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 e Nov. 110, c. 3. Inst. 3. 1. 6. ++-* Quoted, 6 Rand. 413. *Criticised, 6 Rand. 405, tt-t Quoted, 44 Ind. 373. - Quoted, 6 Rand. 436; 2 Jones Eq. 93, Criticised, 2 Jones Eq. 85; 6 Rand. 392, |