The nature of this rule of inheritance considered. [ *211 ] Its propriety. This rule, so far as it is affirmative and relates to lineal 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 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 succession to estates are creatures of the civil polity, and juris positivi merely (13). The right of property, which is gain (t) Seld. de Success. Ebraeor. c. 12. (w) Craig. de jur. Feud. 1. 2, t. 13, Locke on Gov. part 1, s. 90. s. 15. attention the present writer has taken (13) But see ante, note (26) to chapter 1. ed 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. occasion of its introduction into 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 upon very substantial reasons. I think there is no doubt our law. 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 law (a), 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 its 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 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 ma (x) 2 Feud. 50. (y) Domat. p. 2, 1. 2, t. 2. Montesq. Esp. L. 1. 31, c. 33. (2) LL. Hen. I. c. 70. (a) L. 7. c. 1. [ *212 ] ternum, 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 descendants from the body of the feudatory himself could succeed, by the known maxim of the early feodal constitutions (b); 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 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 antiquum, or with all the qualities annexed to 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 (c), adopted by Sir Edward Coke (d), which regulates the descent of lands according to the laws of gravitation t. II. A second general rule or canon is, that the male issue II. The male shall be admitted before the female. *Thus sons shall be admitted before daughters; or, as our male lavgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred (e). 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 without issue) then Gilbert, shall be admitted to the succession, in preference to both the daughters. issue admitted male. This preference of males to females is entirely agreeable The reason of this preference. to the law of succession among the Jews (ƒ), 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 female sex. "Pater aut mater defuncti, filio non filiæ hæ"reditatem relinquent. .. Qui defunctus non filios sed filias reliquerit, ad eas omnis hæreditas pertineat.” (l). It is possible, therefore, that this preference might be a 66 (e) Hal. H. C. L. 235. (f) Numb. c. 27. (g) Petit. LL. Attic. 1. 6, t. 6. (h) Inst. 3. 1. 6. (i) Stat. Wall. 12 Edw. I. (k) LL. Canut. c. 68. (1) Tit. 7, s. 1 & 4. 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 tions) given up, but rather enforced (m). III. Of males, the eldest only shall inherit; Norman innova 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 only shall inherit; but the females all together. together. The origin of 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) (14). This right of primogeniture in males seems antiently to the right of pri- 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 mogeniture in males. (m) C. 70. (n) 1 Feud. 8. (0) Litt. s. 5. Hale, H. C. L. 238. (p) Selden, de succ. Ebr. c. 5. (14) See ante, section 3 of chapter 12, with the notes thereto. |