[daughters Margaret and Charlotte shall both inherit the estate as coparceners (1). This right of primogeniture in males seems antiently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance (y); in the same manner as with us, by the laws of King Henry the first, the eldest son had the capital fee or principal feud of his father's possessions, and no other pre-eminence (z); and as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary (a). 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 (b), 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 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 (c). 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 (x) Litt. s. 5; Hale's Hist. C. L. As to coparceners, vide sup. c. 11. p. 351. (y) Selden de Succ. Ebr. c. 5. (2) Leg. Hen. 1, c. 70. (c) Hale's Hist. C. L. c. 11. [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 wrote, in the reign of Henry the second (d); and it is mentioned in the Mirrour (e), as a part of our antient constitution, that knight's 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 (f), 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 antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons (g),-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 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 (h); 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 (d) Glanv. 1. 7, c. 3. (g) Somner, Gavelkind, 7. [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 (i): in which disposition is preserved a strong trace of the antient law of feuds, before their descent by primogeniture even among the males was established; viz. that the lord might bestow them on which of the sons he thought proper; "progressum est ut ad filios deveniret, in quem scilicet dominus vellet beneficium confirmare (k)."] The last rule supposed all the children of the purchaser to be living at his decease; but in the case of the death of any of them, then IV. A fourth Rule is, that the issue of the children of the purchaser represent or take the place of their parents in infinitum; the children of the same parent being always subject (among each other) to the same law of inheritance as contained in the third Rule. [Thus the child, grandchild, or great-grandchild, either male or female, of the eldest son, succeeds before the younger son, and so in infinitum (1); 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 land 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 a-piece. This taking by representation is called succession per stirpes, according to the roots; since all the branches inherit (i) Co. Litt. 165 a. (k) 1 Feud. 1. (1) Hale's Hist, C. L. c. 11. [the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed (m).] In our law, indeed, it [is a necessary consequence of the double preference given, first, to the male issue, and next to the first-born among the males. 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, by the first rule, it gives to the males and the first-born, in the descent to issue. 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. As 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 (m) Selden de Succ. Ebr. c. 1. [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 Glanville 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 in times comparatively modern, we find that proximity of blood took place of representative primogeniture, in the lower Saxony; that is, the younger surviving brother was 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 (n). Yet Glanville with us, even in the twelfth century, seems (o) 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 forisfamiliated in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing the right of representation, did all in his power to abolish it throughout the realm (p); but in the time of his son, King Henry the third, we find the rule indisputably settled in () Mod. Un. Hist. xlii. 334. (0) Glanv. 1. 7, c. 3. (p) Hale's Hist. C. L. c. 11. |