(as we have seen) was in effect already traced from the purchaser; and though it was otherwise in cases where the last owner had become entitled by descent to an estate in possession, no sufficient reason could at the present day be shown (whatever may formerly have existed) in favour of such a distinction. Indeed the maxim of seisina facit stipitem was attended with material inconvenience; for it was sometimes difficult to determine what would amount to a seisin sufficient to constitute a stipes; and highly unsatisfactory besides, that the right to the succession should in any case depend on so unimportant a circumstance as the omission of the owner, to make entry before his death, on the land he had acquired by inheritance (h). II. A second general rule or canon is, that inheritances shall in the first place lineally descend to the issue of the purchaser, in infinitum. The principle of placing the lineal descendants first in succession to their ancestor is, under all systems of descent, invariably adopted, and may be said to be of universal obligation or propriety; for even if it be held that the laws by which property is transmitted from one man to another, are in every case of an arbitrary nature, and juris positivi only (a doctrine which there is great difficulty in admitting as regards the succession of relatives), yet at least, in the choice of rules, it may happen that there are some much more consonant than others to the common feelings of mankind and the natural sense of propriety; and such principles as these seem universally to suggest 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 offspring, as those to whom they have given being, and for whom they are therefore bound to provide.] (h) See First Real Prop. Rep. p. 15. III. We may lay it down as a third rule, that the children of the purchaser are preferred to their own issue; and, among such children, males to females, and an elder male to a younger; but females (where there are several) take together. This involves three principles: first, that the descent is to the children rather than their descendants; secondly, that the male children are admitted before the female; thirdly, that among the male, primogeniture is the rule, though not among the female. 1. The children (as being nearer in blood to the purchaser) are of course preferred to their own descendants; that is, if any child of the purchaser, living at his decease, has issue also living at the same period, the estate will descend to the child (who is more nearly related to the purchaser), and not to the grandchild or other descendants, who are more remote. 2. But, secondly, among the children of the purchaser, males take before females, [or (as our male law-givers have somewhat unceremoniously expressed it) the worthiest of blood shall be preferred (h).] [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 (i), and also among the states of Greece, or at least among the Athenians (k), but was totally unknown to the laws of Rome (1) (such of them, at least, as are now extant), wherein brethren and sisters are allowed to succeed to equal portions of the inheritance. Without entering into the comparative merit of the Roman and the other constitutions in this (h) Hale's Hist. Com. Law, c. 11. (i) Numbers, chap. xxvii. VOL. I. B B (k) Petit, LL Attic. lib. 6, tit. 6. (1) Inst. iii. 1, 6. 66 [particular, or examining into the greater dignity of blood in the male or female sex, it is sufficient to observe that our present preference of males to females seems to have arisen entirely from the feudal law. For though our British ancestors (the Welsh) appear to have given a preference to males (m), 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(n) But the feudal 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 (o)." 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 I., it is not (like many Norman innovations) given up, but rather enforced (p). The true reason of preferring the males must be deduced from feudal principles, for by the genuine and original policy of that constitution no female could ever succeed to a proper feud (q), 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 the total exclusion of the 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 where there is no son: our law, like that of the Saxon feudists before mentioned, thus steering a middle course between the actual rejection of females and the putting them on a footing with males.] (m) Stat. Wall. 12 Edw. 1. (p) C. 70. 3. Primogeniture is established among the male children of the purchaser, but not among the female. [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 (r). 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(s), in the same manner as with us, by the laws of King Henry I.(t), the eldest son had the capital fee or principal 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 (u). 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 (x), 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 (r) Litt. s. 5; Hale's Hist. C. L. c. 11. (s) Selden de Succ. Ebr, c. 5. (t) C. 70. (u) Glanv. 1. 7, c. 3. [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 (y). These reasons occasioned an almost total change in the method of feudal 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 feudal 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 Glanville (z) wrote, in the reign of Hen. II.; and it is mentioned in the Mirror (a), 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 Hen. III.'s time we find by Bracton (b) 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 Kent, where they gloried in the preservation of their ancient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons (c), and, except in some particular manors and townships, where their local customs continued the descent, 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 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 primo geniture, even among females, took place as to the inhe (y) Hale's Hist. C. L. c. 11. (*) Glanv. 1. 7, c. 3. (a) Mirror, c. i. s. 3. (b) Bract. lib. 2, c. 30, 31. (c) Somner, Gavelkind, 7. |