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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."

consequence

If we next consider the time and occasion of introducing this which is a rule into our law, we shall find it to have been grounded upon of the feudal very substantial reasons. I think there is no doubt to be made law. 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.y18 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 lawa that hæreditus nunquam ascendit, which has remained an invariable maxim ever since. These circumstan

ces evidently show this rule to be of feodal original; and, taken in that light, there are some arguments in its favor, besides those which are drawn merely from the reason of the thing. [212] For if the feud of which the son died seized 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 the son, then only the descendants from the body of the feudatory himself could succeed, by the known maxim of the early feodal constitu

* 2 Feud., 50.

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.

(17) This observation will scarcely to arise, affords no apology for its presserve to vindicate the rule in question ent existence. from the charge of absurdity and injustice, in the sense in which that (18) By the Code Civil, however, charge is made. The rules of descent upon failure of lineal descendants of have obviously been framed with a re- the deceased owner, and of his brothers gard to the natural claims of relation- and sisters and their descendants, the ship, and whenever they deviate from inheritance is equally divided between that principle, without an adequate rea- the two ascending lines, the nearest in son, they may justly be described as in- degree in each line taking a moiety, consistent both with themselves and and, if more than one, per capita. (L. with natural justice." To explain 3, tit. 1, 746.) historically how the anomaly happened

II. Males preferred to females.

[213]

In what countries this rule prevailed,

tions; 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 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, adopted by Sir Edward Coke,d 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.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.

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 Romeh (such of them, I mean, as are at present extant), wherein brethren and sisters were allowed to succeed to equal portions of the inheritance."

b 1 Feud., 20.

c Descendit itaque jus, quasi ponderosum quid, cadens deorsum rectâ lineâ, et nunquam reascendit eá viâ quâ descendit.-L. 2, c. 29.

d 1 Inst., 11.

e Hal., H. C. L., 235.

f Numb., c. 27.

8 Petit., LL. Attic., 1. 6, t. 6.
b Inst., 3, 1, 6.

I

(19) However ingenious and satis- the father, lest the lord should have factory these reasons may appear, there been attended by an aged decrepit feuis little consistency in the application datory, the same principle would be of them; for if the father does not suc- still stronger to exclude the father's ceed to the estate, because it must be eldest brother from the inheritance, presumed that it has passed him in the who is now permitted to succeed to his

course of descent, the same reason nephew.-[CHRISTIAN.]
would prevent an elder brother from
taking an estate by descent from the (20) But we find that, by the Lex
younger. And if it does not pass to Voconia, De Hereditatibus mulierum,

* See ante, p. 208, n. *.

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 arises from feudal prinour British ancestors, the Welsh, appear to have given a pref- ciples. erence 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. 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 char- [214 | ter 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," 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.21*

iStat. Wall., 12 Edw. I.
* LL. Canut., c. 68.
Tit. 7, § 1 and 4.

it was decreed that no one should make a woman his heir (ne quis hæredem virginem neque mulierem faceret) (Cic., Verr., 1, 42), nor leave to any one by way of legacy more than to his heir or heirs. But this law is supposed to have referred principally to those who were rich, in order to prevent the extinction of opulent families. (Adam's Roman Antiq., 214.) And Dr. Adam says that

m C. 70.

■ 1 Feud., 8.

females were entirely excluded by the
Roman law from inheriting. (Ib.)—
[CHITTY.]

(21) Daughters by different venters
may inherit together as one heir to their
common parent, though half blood is an
impediment to the succession by de-
scent from one to the other. Thus,
Lord Hale says (History of the Com.

* See ante, p. 208, n. *.

III. Primogeniture or descent to

the eldest male; coparcenary of descent to all the females to gether

Among what na

tions right of prim geniture prevailed.

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 anciently 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 daugh215] ter had afterward the principal mansion, when the estate descended in coparcenary. 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, or (as they styled them) feuda individua, and, in consequence, descendible to the eldest son alone. This example was further 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.

Descent of
Bocage es-

the sons

Yet we find that socage estates frequently descended to all tates to all the sons equally, so lately as when Glanvilu wrote in the reign of Henry the Second; and it is mentioned in the Mirror,w as a part of our ancient constitution, that knight's fees should descend to the eldest son, and socage fees should be partible among the male children. However, in Henry the Third's

before the reign of

Henry III.,

Litt., § 5. Hale, H. C. L., 238.

P Selden, De Succ. Ebr., c. 5.

q C. 70.

r Glanvil, 1. 7, c. 3.

s 2 Feud., 55.

t Hale, H. C. L., 221.

u L. 7, c. 3.

w C. 1, § 3.

Law, c. 11), "All the daughters, do inherit together to the father.".
whether by the same or divers venters, [CHITTY.]

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W time, we find by Bracton, that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands; except in the Kent, where they gloried in the preservation of their ancient [216] gagavelkind tenure, of which a principal branch was the joint in- and subseS. heritance of all the sons ;y and except in some particular man- quently in ors and townships, where their local customs continued the de

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d scent sometimes to all, sometimes to the youngest son only, or

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in other more singular methods of succession.

Kent.

Descent to

all fe

As to the females, they are still left as they were by the an- Dent 's cient law; for they were all equally incapable of performing any males, 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

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the crown.

descend

e 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 primogen- except as to iture, 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 Dignities right of sole succession, though not of primogeniture, was also among fe established with respect to female dignities and titles of honor. males, 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 according to honor, may confer it on which of them he pleases." In which ure. 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 bencficium confirmare.”b

* L. 2, c. 30, 31, 34.
y Somner, Gavelk., 7.

(22) The king, in the case of coparceners of a title of honor, may direct which one of them and her issue shall bear it; and if the issue of that one become extinct, it will again be in abeyance, if there are descendants of more than one sister remaining. But upon the failure of the issue of all except one, the descendant of that one, being the sole heir, will have a right to claim and to assume the dignity. There are instances of a title, on account of a descent to females, being dormant, or in abeyance, for many centuries. (Harg., Co. Litt., 165.) Lord Coke says, there is a difference in an office of honor, which shall be executed by the hus

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band or deputy of the eldest. (Ib.)
Yet, when the office of great chamber-
lain had descended to two sisters, co-
heiresses of the Duke of Ancaster, one
of whom was married to Peter Burrell,
Esq., the judges gave it as their opinion
in the House of Lords, "that the office
belongs to both sisters; that the hus-
band of the eldest is not, of right, enti-
tled to execute it; and that both sisters
may execute it by deputy, to be ap-
proved of by them; such deputy not
being of a degree inferior to a knight,
and to be approved of by the king."
(Ib.; et Journ. Dom. Proc., May 25,
1781.)-[CHRISTIAN.] See, also, Parl.
Reg. for 1780, vol. iv., p. 258–297.

king's pleas

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