succeeded in the place of the ancient feodal investiture, whereby, while feuds were precarious, the vasal on the descent of lands was formerly admitted in the lord's court (as is still the practice in Scotland), and there received his seisin, in the nature of a renewal of his ancestor's grant, in the presence of the feodal peers; till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers), or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem. (r) 13 When therefore a person dies so seised, the inheritance first goes to

[210]

r Flet. 7. 6. c. 2. § 2.

Where any person acquires hereditaments by purchase, and such hereditaments are of a corporea! nature, he generally at the same time also acquires or receives the corporeal seisin or possession. Watk. Desc. 3. Where the deed of purchase, or instrument by which such hereditaments are conveyed to the ancestor, is founded upon feudal principles, it is always intended with actual livery of seisin, which is exactly similar to the investiture of the feudal law; and without which such instrument was in no instance sufficient to transfer an estate of freehold. Co. L. 48. a. post, p. 314. Where the instrument derives its essence from the statute of uses (27 Hen. VIII. c. 10.) the cestui que use is clothed with the actual possession of the lands by the operation of the act. And in case of a devise by will of lands to a man in fee, who dies after the devisor, the freehold or interest in law, is in the devisee before entry; and on his death, his heir may and will take by descent. Co. L. 111. a. 1 Show. 71. As to incorporeal hereditaments, and as to reversions and remainders, of which, when expectant on an estate of freehold, there can be no corporea! seisin, the property, whether vested in possession, or only in interest, or merely contingent, is fixed or settled in in the purchaser, as to the time of the purchase, so as to render them transmissible to his heirs. Watk. Desc. 9, 10. Whether however the hereditaments be of a corporeal or incorporeal nature, or in possession or expectancy, the purchaser, on the purchase being complet ed, and the property in them being transferred, becomes immediately the root or stock of descent, and the hereditaments become descendible to his heirs. Watk. D. 4. In the instance therefore of a purchase, the question is, whether such property was legally vested or fixed in the purchaser, so as that, had he lived, he might have had the actual possession or enjoyment of it: and he may in many instances transmit it to his heirs, though he never had an actual seisin of it himself, and even where he never had any kind of seisin whatever, for it is a rule that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent. 1 Co. 98. a. Moore, 140. Thus in the case of a fine levied, or recovery suffered, though the party die before execution, yet the execution afterwards shall have relation to the act of the ancestor, and the heir be in by descent. Shelley's case, 1 Co. 93. b. 106. b. Co. Litt. 361. b. 7 Co. 38. a. Burr. 2786. The execution of the writ consists in the delivery of seisin by the sheriff to the demandant; but it is now only returned, and never in fact executed. 5 T. R. 179, 180. And in the instance of an exchange, if both parties to the exchange die before either enters, the exchange is altogether void; but if either of the parties enters, and the other dies before entry, his heir may enter and will be in by descent. 1 Co. 98. a.

But where a person takes an estate by descent, be thereby acquires only a seisin in law of the estate descending, unless the estate were, on the death of the ancestor, held by any person under a lease for years (though otherwise if leased for an estate of freehold), for then the heir has not merely a seisin in law, but, by the possession of such lessee for years, acquires a seisin or possession in deed. Co. L. 15. a. 3 Atk. 469. Moore, 126. Case 272. Watk. 65. n. g. This seisin in law alone is not sufficient to make him an ancestor, but, in order to make himself the stock or root of descent, the fountain from which the hereditary blood of future claimants must be derived; and so enable him to turn the descent, and render the hereditary possessions descendible to his own heirs, it is requisite that such heir, who thus succeeds to the estate by descent, should gain an actual seisin or possession; or what is equivalent thereto according to the nature and quality of the estate descending. Watk. D. 36, 7. 57. Ratcliffe's case, 3 Co. 37.

This actual seisin may be acquired by entry into the lands descended, if of an estate in possession, which is the usual and direct mode of acquiring it; which may be made by the heir himself or by his guardian (if he is under age), or by his attorney, or even a stranger entering on his behalf. So also the heir may acquire an actual seisin by granting a lease for years or at will, and the entry of such his lessee under the lease, and the seisin in law cast upon him by the law, will be sufficient to enable him to grant such lease. Plowd. 87. 137. 142. 6 Com. Dig. Seisin (A. 2.) Bac. Ab. "Lease," I. 5. 2 Stra. 1086. [As to the subject of this note see further H. Chit. Desc. c. 4. s. 3. p. 48-62.] Chitty.

(15) See examples of this, page 228. post.

,

his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son; and John purchases lands, and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey: to whom the land shall never ascend, but shall rather escheat to the lord. (s) 14

14

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. [211] The right of property, which is gained 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.

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.

t Seld. de success. Ebrator.c. 12.

s Litt. § 3.
Ff. 38. 15. 1. Nov. 118. 127.
u Inst. 3. 3.1.
w Craig. de jur feud. l. 2. t. 13. § 15. Locke on gov. part 1. § 90.

(14) That is, the father shall not take the estate as heir to his son in that capacity; yet as a father or mother may be cousin to his or her child, he or she may inherit to him as such, notwithstanding the relation of parent. Eastwood v. Viuke, 2 P. Wms. 613. So if a son purchase lands and dies without issue, his uncle shall have the land as heir, and not the father, though the father is nearer of blood, Litt. s. 3. ; but if in this case the uncle acquires actual seisin and dies without issue, while the father is alive, the latter may then by this circuity, have the land as heir to the uncle, though not as heir to the son, for that he cometh to the land by collateral descent, and not by lineal ascent. Craig. de Jur. Feud. 234. Wright's Ten. 182. n. (Z). So under a limitation to "the next of blood of A." the father would on the death of the son without issue, take, in exclusion both of the brothers and uncle of A. who would have first succeeded under the usual course of descent, as heirs of A.; for a father is nearer in proximity of blood than a brother or an uncle, Litt. s. 3. Co. L. 10. b. 11. a. 3 Rep. 40. b. 1 Vent. 414. Hale C. L. S23.; and this is the reason why the father is preferred, in the administration of the goods of the son, before any other elation, except his wife and children. (See H. Chit. Desc. 68, 9.] Chitt

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, (x) that successions feudi tolis 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 haereditas 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 [212] 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 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 constitutions; (b) which was founded as well upon the personal merit of the vasal, 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 vasal 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 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, (c) adopted by sir Edward Coke, (d) which regulates the descent of lands according to the laws of gravitation. 15

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 [213] 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;

y Domat. p. 2. l. 2. t. 2. Montesq. Esp. E. l. 3.1 c. 35.
bi Feud. 20.

a l. 7. c. 1.

x 2 Feud. 50. 2 LL. Hen. 1. c. 70. c Descendit itaque jus, quasi ponderosum quid cadens deorsum recta linea, et nunquam reascendit. l. 2. c. 22. d 1 Inst. 11.

e Hal. H C. L. 235.

(15) Mr. Christian justly observes, that "however ingenious and satisfactory these reasons may appear, there is little consistency in the application of them; for if the father does not sueceed to the estate, because it must be presumed that it has passed him in the course of dercent, the same reason would prevent an elder brother from taking an estate by descent from the younger. And if it does not pass to the father, lest the lord should have been attended by an aged decrepit feudatory, the same principle would be still stronger to exclude the father's eldest brother from the inheritance, who is now permitted to succeed to his nephew."

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, (f) 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 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 filiae haereditatem relin"quent. Qui defunctus non filios sed filias reliquerit, ad eas omnis "haereditas pertineat." (l) 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 [214] 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, (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.

18

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 ;13 but the females all together.19

f Numb. c. 27.

i Stat. Wall. 12 Edw. I.

g Petit. LL. Attic. 1. 6. t. 6. k LL: Canut. c. 63. m c. 70.

h Inst. 3. 1. 6.
I til. 7. § 1 & 4.

n 1 Feud. 8.

(16) And this rule is so absolute, that under it a son, though born of a subsequent marriage, is always preferred to the daughters by a preceding marriage. Rob. Inh. 38. [H. Chit. D. 71.] (17) But we find that by the Lex Voconia, De Hereditatibus mulierum, it was decreed that no one should make a woman his heir (ne quis hæredem virginein 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. Adams' Roman Antiq. 214. And Dr. Adams says, that females were entirely excluded by the Roman law from inheriting. Id. ib. [H. Chit. Desc. 70.] Chitty. (18) It is a favourite notion of some political economists that the law of primogeniture is a great obstacle in the way of national improvement. Their arguments, independent of those which are intended to shew its injustice, are briefly these. In the first place, as the prosperity of a people is to be estimated by the amount of their property, and their advancement by the increased production from that property, it follows that a system which appropriates larger por

(19) Daughters by different venters may inberit together as one heir to their common parents VOL. I.

69

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. (0)

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, (q) the eldest son had the capital fee or princi[215] pal 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. (r) The Greeks, the Romans, the

o Litt. §. Hale, H. C. L. 238.

p Selden. de succ. Ebr. c. 5.

r Glanvil, l. 7. c. 3.

g c. 70.

tions of property to some individuals than they can render productive, while others, from the scantiness of their share, have their energies but partially employed, is extremely defective; inasmuch as the means are inadequate to the capacity of production. For instance, an estate of ten thousand acres would return a greater annual produce if divided among ten farmers, than it would in the hands of a single proprietor, though he might employ an equal number of labourers and pursue the same mode of cultivation. And for this reason, that the superintendence (which is one of the ingredients of production) in the one case will be ten times more efficient than in the other; to which must be added all those incentives to vigilance which arise from a sense of ownership, and are unknown to him who has no interest in the soil upon which he is employed. The same reasoning applies to every other kind of productive property. As far as regards the morals of a people, it is contended that this arrangement of property engenders the baneful vices of luxury and dissipation on the one hand, and the discontent and delinquency which are the offspring of penury on the other; and that, with respect to their liberties, it elevates the favoured few so much above the level of their fellow-subjects, that they lose all sympathy with them, and involuntarily participate in the arbitrary feelings of those in power, or readily glide into combinations with them against popular rights. Let this question however be referred to the arbitrament of experience, and the law of primogeniture in the restricted operation to which it has been reduced since the abrogation of the feudal system will remain. If this law were so absolute and imperative that none could escape from its control, the arguments above stated would have tenfold weight; but the fact is, that in nearly all the cases to which those arguments refer, it is by the exercise of the right of disposing of property as he who has acquired it pleases, and not by the law of primogeniture, that such large portions vest from generation to generation in single individuals. And till the legislature enacts that no man shall bestow the frui's of his industry and good fortune on whom, and with what limitations he chooses, so much of the system complained of must continue. It would not be difficult to shew that the evils which would flow in result, from such a breach in the present barrier of private property, would be most pernicious to the well-being of the state. The law of primogeniture operates only upon intestate estates, a very small portion of the whole wealth which is enjoyed from one generation to another, and without acceding to the correctness of the reasoning above cited, it may be adm tted that if this law were ameliorated, so as to entitle the eldest born to such superior portion as in the average would be given to him had the distribution been directed by the intestate, it wou'd be an improvement; or the rule which governed a departed lawyer and statesman (sir Samuel Romilly) not less dietinguished by his domestic virtues than he was eminent for his public station, might well be adopted; if any change were contemplated. Having seven children, he divided his possessions into eight parts, and giving two of those parts to the eldest son, left one to each of the rest of his children. See further discussions on the law of descents and the right of primogeniture and forfeiture for crimes in an elegant treatise, entitled "Considerations on the Law of Forfeiture," &c. usually attributed to the Hon. C. Yorke, and 2 Wooddes. V. S. 252. Chitty.

though half blood is an impediment to the succession by descent from one to the other. Thus lord Hale says, (Com. L. c. 11.) “ all the daughters, whether by the same or divers venters, do inherit together to the father." Therefore, if A. marries B. who dies leaving issue a daughter, and A. afterwards has issue one or more daughters by C. his second wife, and dies; all these daughters shall take his estate in equal shares among them in coparcenary, being equally his children. So Robinson says, all the daughters by different wives succeed to the inheritance of which their father was either seised in his own right, or to which their father would have been heir had he survived the person last seised. And the daughters by several husbands succeed, in the same manner, to the inheritance of their mother. Rob. Inh. 37, 8. See also Watk. D. 159. n. b) Bro. Ab. Desc. pl. 20. 1 Rol. Ab. 627. Hale C. L. c. 11. post, p. 231. H. Chit. Desc. 18, As to the nature of the estate in coparcenary, see ante, p. 187.