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, (s) or (as they styled 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. (t) 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 (u) wrote, in the reign of Henry the Second; and it is mentioned in the mirror (w) as a part of our ancient 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 (r) that socage lands, in imitation of lands [216] in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands: except in Kent, where they gloried in the preservation of their ancient gavelkind tenure, of which a principal branch was a joint inheritance of all the sons; (y) 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 ancient 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 sub-division 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; (2) 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; (a) 20 In which disposition is preserved a strong trace of the ancient u l. 7. c. 3. s 2 Feud. 55. t Hale, H. C. L. 221. y Somner. Gavelk. 7. z Co. Litt. 165. x l. 2. c. 30. 31. a Co. Litt. 165. (20) The king, in the case of coparceners of a title of honour, 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 is 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 beneficium confirmare." (b) IV. A fourth rule, or canon of descents, is this: that the lineal [217] descendants, in infinitum, of any person deceased, 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. (c) 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 apiece. 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; (d) 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 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 of the brethren were dead leaving issue, then (I apprehend), their representatives in equal degree became themselves principals, and shared the in[218] heritance per capita, that is, share and share alike; they being them selves now the next in degree to the ancestor, in their own right, and not by right of representation. (e) So, if the next heirs of Titius 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 three parts, and distribute it per stirpes, thus: one third to the three children who represent one sister, another third to the two who repre bi Frud. 1. c Hale, H. C. L. 236, 237. e Nov. 110. c. S. Inst. 3. 1. 6. sue 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 honour, which shall be executed by the husband or deputy of the eldest. Ib. Yet when the office of great chamberlain 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 husband of the eldest is not of right entitled to execute it; and that both sisters may execute it by deputy, to be approved 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. See also Parl. Reg. for 1780, vol. iv. p. 258 to 297. Christian & Archbold. sent the second, and the remaining third to the one child who is the sole representative of her mother. 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 firstborn 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 itself, and depart from the preference which it constantly gives to the males and the first-born, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. And if a man hath two sons, A and B, and A dies leaving two sons, and then the [219] grandfather dies; now the eldest son of A shall succeed to the whole of his grandfather's estate; and if A had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B and his issue. But if a man hath only three daughters, C, D, and E; and C dies leaving two sons, D leaving two daughters, and E leaving a daughter and a son who is younger than his sister: here, when the grandfather dies, the eldest son of C shall succeed to one third, in exclusion of the younger; the two daughters of D to another third in partnership; and the son of E to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinitum." Yet this right does not appear to have been thoroughly established in the time of Henry the Second, when Glanvil wrote: and therefore in the title to the crown especially, we find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor : for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in (21) This right transferred by representation, is infinite and unlimited in the degrees of those that descend from the represented; for the son, the grandson, the great-grandson, and so all downwards in infinitum, enjoy the same privilege of representation as those, from whom they derive their pedigree, had. Hale, C. L. c. 11. And from hence it follows, that the nearest relation is not always the heir at law; as the next cousin, jure representationis, is preferred to the next cousin, jure propinquitatis. Co. L. 10. b. Proximity of blood, therefore, is twofold, either positive or representative. It is positive when the parties claim in their own individual right, as between the second and third son, or between the uncle and grand uncle. It is representative when either of the parties claims as being lineally descended from another, in which case he is entitled to the degree of proximity of his ancestor. Thus, the grandson of the elder son of any person proposed is entitled, before the second son of such person, though in common acceptation nearer by two degrees; and this principle of representative proximity is by the law of England so peremptory that a female may avail herself thereof to the total exclusion of a male claiming in his own right; for in descents in fee-simple, the daughter of the eldest son shall, as claiming by representation of her father, succeed in preference to the second, or younger son. See 3 Cru. Dig. 378, 9. (H. Chit. Desc. 84.] Chitty. him the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength to back his pretensions, and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased; which occasioned the disputes between the two houses of Mecklenburg Schwerin and Strelitz, in 1692. (f) Yet Glanvil, with us, even in the twelfth century, seems (g) to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his [220] father, or (as the civil law would call it) had not been foris-familiated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm: (h) but in the time of his son, king Henry the Third, we find the rule indisputably settled in the manner we have here laid it down, (i) and so it has continued ever since. And thus much for lineal descents.2 f Mod. Un. Hist. xlii. 334. gl. 7. c. 3. h Hale, H. C. L.. 217. 229. i Bracton, l. 2. c. 30. § 2 (22) The following historical observations and legal deductions relating to the doctrine of representations are extracted from Dalrymple on Feuds : "The right of representation was more slowly introduced into the collateral than into the descending line. "In the original law of nature representation must be unknown; those who are nearest in blood to a man, will be conceived to be nearest connected with him. Afterwards, it is observed to be a hardship that children bred up in a suitable rank to that of their father, and with a prospect of succeeding to his rights, should be cut off at once from that rank, and that prospect. It comes to be observed as a farther hardship, that a woman who has married one seemingly her equal, should, by his untimely death, lose not only her husband, but see her children reduced to beggary. These considerations introduced the right of representation in the descending line: but the same considerations did not occur in the collateral line. The children of a brother or cousin have not the prospect of succeeding to their uncle's or cousin's estates, because, it is always to be supposed, every man is to have children of his own; it is therefore no hardship upon them to be removed by another uncle, or another cousin, from a succession which they could have no reasonable expectation of enjoying. "The steps by which the right of representation in private successions came into the collateral line in Great Britain, or even in any other country in Europe, are extremely difficult to be traced, and perhaps are not very certain when they are traced; therefore we must supply them by the progress of the same representation in public successions. "In these last successions it is plain that representation was originally unknown. From the histories of modern Europe, it appears that when succession was permitted amongst collaterals, the nearest of blood took to the exclusion of representation. "In the time of Edward I., though representation in the descending line was tolerably well established throughout Europe, yes the point was so doubtful in the collateral line, that upon the death of Margaret of Norway, and the dispute for her succession between her cousins Bruce and Baliol, not only the eighty Scotch commissioners nained by the candidates, and the twentyfour English named by king Edward were long doubtful, but all Europe was doubtful, which side ought to prevail. The precise question in the end put by the king to the commissioners was, whether the more remote by one degree in succession, coming from the elder sister, ought to exclude the nearer by a degree, coming from the second sister? And on the answer importing that representation should take place, judgment was given for Baliol. The Scotch writers of those days were positive this judgment was wrong; the English writers of the same period were as positive that it was right. These different opinions may be accounted for. In England at that time representation in collateral succession was beginning to take place, and this advance of their own nation the English made the measure of their opinion. The Scotch, on the other hand, at the same period, had not arrived at the same length this species of representation was unknown to them; and therefore they disapproved of the judgment. "Solemn as this decision was, yet even in England a century afterwards, the right of representation in this line was so far from being complete, that it was the same doubt that gave rise to the disputes between the houses of York and Lancaster, and involved the kingdom in civil war. — On the abdication of Richard the Second, the two persons claiming the right to the crown, were his two cousins, the duke of Lancaster, son of John Gaunt, who was fourth son to Edward the Third, and the earl of March, grandson to Lionel duke of Clarence, who was third son of the same prince. And the discussions related to the rights of these persons, and whether representation in collateral successions ought to prevail. V. A fifth rule is, that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser; " subject to the three preceding rules.25 23 Thus if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family. (k) The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except only that of descent. This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whose laws looked any farther than the person himself who died seised of the estate; but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy (1) agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles. When feuds first began to be hereditary, it was made a necessary qualifi k Co. Litt. 12. 1 Gr. Coustum. c. 25. "Even in later times, and when the law was better understood, it was on the same ground, that upon the death of Henry the Third of France, the League set up the cardinal of Bourbon as heir to the crown, in opposition to his nephew, the king of Navarre. This last prince was son of the elder branch to the cardinal: but the cardinal being one step nearer to the common stock, it was asserted that nearness of blood, and not representation, took place in collateral succession. "For many ages it has now been fixed in private successions that representation in the collateral line shall take place; and although of late in Europe there has scarce been any such dispute in public successions as to give room for either example to prevail, yet the example of these private successions, and the now rivetted notions of mankind in favour of representation, will probably prevent it from being ever made again the subject of dispute." See Dalrymple on Feuds, ch 5.8.2. p. 178. H. Chit. Desc. 98. n. (23) Collateral descent is that which takes place to persons who spring out of the side of the whole blood, as another branch thereof,-such as the grandfather's brother, father's brother, and so downward. 1 Inst. 10, 11. Therefore, if a man purchases land in fee-simple, and dies without issue; for default of the right line he who is next of kin in the collateral line of the whole blood, though never so remote, comes in by descent as heir to him. Litt. s. 2. 1 Vent. 415. 3 Rep. 40. [H. Chit. D. 84. 89.j (24) It should here be noticed, that though it is necessary that a person who would succeed must shew himself to be of the blood of the first purchaser; yet, where the persons who inherit, succeed, or derive title to the inheritance, by virtue of remote and intermediate descents from the purchaser, it will be sufficient if they are related by half blood only to the purchaser, or to such other remote and intermediate ancestors who were formerly and intermediately seised of the inheritance in the regular course of descent from the purchaser, provided, according to the rule which follows, they are the worthiest legal relatives of the whole blood to the person last seised.Rob. Inh. 45. For example see post, p. 228. Chitty. (25) In the deduction of a pedigree in the collateral line, it will be necessary to keep in mind the four preceding rules, as applicable as well to collateral, as to lineal, descent, which are,-1. Preference of males to females in equal degree-2. Primogeniture among the males-3. Coparcenary among the females-4. The right of representation. In reference to this rule, see note (30) to page 224. post. (26) To be of the blood of Geoffrey, is either to be immediately descended from him, or to be descended from the same couple of common ancestors. Two persons are consanguinei, or are of the blood (that is, whole blood) of each other, who are descended from the same two ancestors. The heir and ancestor must not only have two common ancestors with the original purchaser of the estate, but must have two common ancestors with each other; and therefore if the son purchases lands and dies without issue, and it descends to any heir on the part of the father, if the line of the father should afterwards become extinct, it cannot pass to the line of the mother.Hale's Hist. C. L. 246. 49 E. III. 12. And for the same reason, if it should descend to the line of any female, it can never afterwards, upon failure of that line, be transmitted to the line of any other female, for according to the next rule, viz. the sixth, the heir of the person last seised must be a collateral kinsman of the whole blood. Christian. |