[213]

II. A SECOND general rule or canon is, that the male issue fhall be admitted before the female.

THUS fons fhall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaifantly expreffed it, the worthiest of blood fhall be preferred. As if John Stiles hath two fons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; firft Matthew, and (in cafe of his death without iffue) then Gilbert, shall be admitted to the fucceffion in preference to both the daughters.

THIS preference of males to females is entirely agreeable to the law of fucceflion among the Jews', and also among the ftates of Greece, or at least among the Athenians; but was totally unknown to the laws of Rome, (fuch of them, I mean, as are at prefent extant) wherein brethren and fifters were allowed to fucceed to equal portions of the inheritance. I fhall not here enter into the comparative merit of the Ro man and the other conftitutions in this particular, nor examine into the greater dignity of blood in the male or female fex but fhall only obferve, that our prefent preference of males to females feems to have arifen entirely from the feodal

e Hal. H. C. L. 135.
f Numb. c. 27.

& Petit. LL. Attic. I. 6. t. 6.
h Inft. 3. 1.6.

wife, and fhe dies feifed of an eftate, which defcends to an
only child, if that child dies without iffue, the father will take
the estate by an immediate defcent, agreeably to the maxim,
que doit inheriter al pere, doit inheriter al fitz; yet in this case he
does not inherit as father, but as a collateral kinfman. See
fuch a cafe, 2 P. Wms. 613. The ftudent must be careful
to recollect that the rules of fucceffion to inteftate perfonal
property are very different from thefe rules of defcent of real
property and hereditaments. For if a child dies inteftate with-
out wife or iffae, his father will take the whole of his per-
fonal property; and if there be no father living, the mother
will have an equal fhare with the brothers and sisters.
page 516. poft.

See

law.

213 law. For though our British ancestors, the Welsh, appear to have given a preference to males', yet our Danish prede ceffors (who fucceeded them) feem to have made no diftinction 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 fex. "Pater aut mater,

"defuncti, filio non filiæ haereditatem relinquent.
"Qui defunctus non filios fed filias reliquerit, ad eas omnis hae-
"reditas pertineat." It is poffible therefore that this pre-
ference might be a branch of that imperfect system of feuds,
which obtained here before the conqueft; efpecially as it
fubfifts among the customs of gavelkind, and as, in the char-
ter or laws of king Henry the first, it is not (like many Nor-
man innovations) given up, but rather enforced ". 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 fucceed to a proper feud",
inafmuch as they were incapable of performing those military
services, for the fake of which that fyftem was established.
But our law does not extend to a total exclufion of females,
as the Salic law, and others, where feuds were moft ftrictly
retained: it only poftpones them to males; for, though
daughters are excluded by fons, yet they fucceed before any
collateral relations: our law, like that of the Saxon feudifts
before-mentioned, thus steering a middle course, between the
abfolute rejection of females, and the putting them on a foot-
ing with males.

III. A THIRD rule, or canon of defcent, is this; that where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.

As if a man hath two fons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his

[214]

eldeft fon fhall alone fucceed to his eftate, in exclufion of Gilbert the second son and both the daughters; but, if both the fons die without iffue before the father, the daughters Margaret and Charlottc fhall both inherit the estate as coparceners o.

THIS right of primogeniture in males feems antiently to have only obtained among the Jews, in whofe conftitution the eldest fon had a double portion of the inheritance P; in the fame manner as with us, by the laws of king Henry the first, the eldest fon had the capital fee or principal feud [215] of his father's poffeffions, and no other pre-eminence; and

as the eldest daughter had afterwards the principal manfion, when the estate defcended in coparcenary'. The Greeks, the Romans, the Britons, the Saxons, and even originally the feudifts, divided the lands equally; fome among all the children at large, fome 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 juftice. But when the emperors began to create honorary feuds, or titles of nobility, it was found neceffary (in order to preserve their dignity) to make them impartibles, or (as they ftiled them) fiuda individua, and in confequence defcendible to the eldest fon alone. This example was farther enforced by the inconveniencies that attended the fplitting of eftates; namely, the divifion of the military fervices, the multitude of infant tenants incapable of performing any duty, the confequential weakening of the ftrength of the kingdom, and the inducing younger fons to take up with the bufinefs and idlenefs of a country life, inftead of being ferviceable to themfelves and the public, by engaging in mercantile, in military, in civil, or in ecclefiaftical employments'. Thefe reafons occafioned an almost total change in the method of feodal inheritances abroad; fo that the eldest male began univerfally to fucceed to the

Litt. 5. Hale. H. C. L. 238. » Seiden, de fucc. Ebr. c. 5.

૧. ;.

r Glanvil. . 7. c. 3.
$ 2 Feud. 55.

Hale. H. C. L. 221,

whole

whole of the lands in all military tenures: and in this condition the feodal conftitution was established in England by William the conqueror.

W

X

YET we find, that focage eftates frequently defcended to all the fons equally, fo lately as when Glanvil" wrote, in the reign of Henry the fecond; and it is mentioned in the mirror as a part of our antient conftitution, that knights' fees fhould defcend to the eldest fon, and focage fees fhould be partible among the male children. However in Henry the third's time we find by Bracton * that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of fucceffion by primogeniture, as the law now ftands: [216] except in Kent, where they gloried in the preservation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the fons; and except in fome particular manors and townships, where their local customs continued the defcent, fometimes to all, fometimes to the youngest fon only, or in other more fingular methods of fucceffion.

As to the females, they are ftill 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 ceafing, fuch preference would have been injurious to the reft: and the other principal purpose, the prevention of the too minute fubdivifion of eftates, was left to be confidered and provided for by the lords, who had the difpofal of these female heireffes in marriage. However, the fucceffion by primogeniture, even among females, took place as to the inheritance of the crown 2; wherein the neceflity of a fole and determinate fucceffion is as great in the one sex as the other. And the right of fole fucceffion, though not of primogeniture, was alfo eftablished with refpect 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

" 1.7. c. 3.

wc. 1. $3.

* 12. c. 30, 31.

y Somner. Gavelk. 7.

2 Co. Litt. 165.

daughters;

BOOK II. daughters; the eldest fhall not of course be countefs, but the dignity is in fufpence or abeyance till the king fhall declare his pleasure; for he, being the fountain of honour, may confer it on which of them he pleafes (8). In which difpofition is preserved a strong trace of the antient law of feuds, before their defcent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the fons he thought proper-" progreffum eft, ut "ad filios deveniret, in quem fcilicet dominus hoc vellet benefi « cium confirmare"."

IV. A FOURTH rule, or canon of defcents, is this; that the lineal defcendants, in infinitum, of any perfon deceased [217] fhall represent their ancestor; that is, fhall ftand in the fame place as the perfon himself would have done, had he been living.

(8) The king in the case of coparceners of a title of honour, may direct which one of them and her iffue fhall bear it; and if the iffue of that one become extinct, it will again be in abeyance, if there are defcendants of more than one fifter remaining. But upon the failure of the iffue of all, except one, the defcendant of that one being the fole heir, will have a right to claim, and to affume the dignity.

There are inftances of a title, on account of a descent to females, being dormant, or in abeyance, for many centuries. Harg. Co. Litt. 165.

Lord Coke fays, there is a difference in an office of honour, which fhall be executed by the hufband or deputy of the eldeft. Ib. Yet when the office of great chamberlain had defcended to two fifters coheireffes of the duke of Ancaster, one of whom was married to Peter Burrell, efq. the judges gave it as their opinion in the houfe of lords, "that the office belongs to both fifters; that the "husband of the eldest is not of right intitled to execute it; and "that both fifters may execute it by deputy, to be approved of "by them; fuch deputy not being of a degree inferior to a knight, "and to be approved of by the king." Ib. et Journ. Dom. Proce May 25, 1781.

THUS