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 hæreditatem relinquent. Qui defunctus non filios sed filias reliquerit, ad eas omnis hæreditas pertineat."(1) 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 is not (like *214] 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. 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.12 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 principal feud of his father's *215] 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 Britons, the Saxons, and even Stat. Wall. 12 Edw. I. LL. Canut. c. 68. Tit. 7, 1, 4. C. 70. 1 Feud. 8. (0) Litt. 25. Hale, H. C. L. 238. (P) Selden, de success. Ebr. c. 5. () Glanvil, l. 7, c. 3. 12 Daughters by different venters may inherit together as one heir to their common parent, 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 sams 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, 38. See also Watk. D. 159, n. (b.) Bro. Abr. Desc. pl. 20. 1 Roll. Abr. 627. Hale C. L. c. 11, post, p. 231. H. Chit. Desc. 78, 79.CHITTY. originally the feudists, divided the lands equally; some amoi g 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 further enforced by the inconveniences that attended the splitting of estates; namely, the division of 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(x) 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: *ex[*216 cept in Kent, where they gloried in the preservation of their antient 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 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;(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) In which disposition is preserved a strong trace 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 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 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, coheiresses 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 VOL. I-36 561 of the antient law of feuds, before the 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) *217] IV. A fourth rule, or canon of descents, is this; that the lineal 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 appre hend) their representatives in equal degree became themselves principals, *and shared the inheritance per capita, that is, share and share alike; *218] they being themselves 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 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 three 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. 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 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 pre 1 Feud. 1. Hale, H. C. L. 236, 237. Selden, de success. Ebr. c. 1. 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 Jour. Dom. Proc. May 25, 1781.— CHRISTIAN. [*219 tenders, 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 saine 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 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.1 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 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.(ƒ) 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 father, or (as the civil law would call it) had not been *foris-familiated, [*220 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.15 Mod. Un. Hist. xlii. 334. (0) L. 7, c. 3. (A) Hale, H. C. L. 217, 229. 14 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. Litt. 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 be tween the uncle and grand-uncle. It is representative when either of the parties claim 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, 379.-CHITTY. 15 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. 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." "In the original law of nature, representation must be unknown: those who are nearest in blood to a mar. 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 further 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 uncles' or cousins' 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, yet 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 named by the candidates, and the twenty-four 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 Eng lish 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 suc cession 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 of 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. Even in later times, and when the law was better understood, it was on the same ground that, upon the death of Heary 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 those private successions, and the now riveted 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, s. 2, p. 178. H. Chit. Desc. 98, n.-CHITTY. 16 The custom of gavelkind extends to collaterals; so that, if one brother die without Issue, all his other brothers shall succeed equally. Robins. on Gavelk. book I. ch. 6. But the custom of borough English does not extend to collaterals; and therefore, on the death of one brother, lands of that tenure shall not go to the youngest brother without special custom. Ibid.-CHITTY. A It should here be noticed, that though it is necessary that a person who would sue |