Critance of the crown (d), 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 (e) in which disposition is preserved a strong trace of the ancient 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 (f).]

:

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 (g); 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

(d) Co. Litt. 165 a. (e) Ibid.

(f) 1 Feud. 1.

(g) Hale's Hist. C. L. c. 11.

[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 the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed(h).] 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

(h) Selden de Succ. Ebr. c. 1.

[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 Hen. II., 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 (i). Yet Glanville with us, even in the twelfth century, seems (k) 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, (i) Mod. Un. Hist. xlii. 334. (k) Glanv. 1. 7, c. 3.

Chowever, 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(); but in the time of his son, King Henry III., we find the rule indisputably settled in the manner we have here laid it down (m).] And thus much for descents to the issue of the purchaser.

V. A fifth rule is, that on failure of the issue of the purchaser, the inheritance shall descend to the nearest lineal ancestor then living in the preferable line; supposing no issue of a nearer ancestor in that line to exist.

Under this rule we are to remark, that,

1. After the issue, the next descent is to the lineal ancestry.

This principle is but very recently adopted into our law (n), which, in failure of descendants of the deceased, would admit the descendants of his lineal ancestor (that is, his own collateral heirs,) under colour of a fiction formerly explained (o); but always excluded the lineal ancestor himself; so that the land would rather escheat to the lord (p) than ascend to a father or a grandfather; to illustrate which, the inheritance of an estate is compared by an ancient writer, to the descent of a falling body. Descendit jus (says Bracton) quasi ponderosum quid, cadens deorsum rectâ lineâ; et nunquam reascendit eû viú quá descendit (q). This resulted, like many other of our institutions, from the doctrines of feudal tenure (r). [For it was an express rule of the feudal law (s), that successionis feudi talis est natura quod ascendentes non succedunt, and we find the same principle recognized in the old law of France (t). [Our Hen. I.

(1) Hale's Hist. C. L. c. 11. (m) Bract. lib. 2, c. 30, s. 2.

(n) It was however the rule among the Anglo Saxons. Leges. Henr. 1, c. 70; vide 2 Hallam's Middle Ages, 467.

(0) See Rule I.

(p) Litt. s. 3.

(q) Bract. lib. ii. c. 29.

(r) Co. Litt. 11 a. As remarked

by a very distinguished commentator on Blackstone, the words cá vić quá descendit are a necessary qualification. For the inheritance might ascend indirectly, as from the son to the uncle. -Coleridge's Blackstone, vol. ii. p. 212 (n).

(s) 2 Feud. 50.

(1) Domat, part 2, lib. 2; Montes. Esp. lib. 31, c. 33.

Cindeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line(u); but this soon fell again into disuse, for so early as Glanville's time (who wrote under Henry II.) we find it laid down as an established law, that hæreditas nunquam ascendit (x), which from that time remained an invariable maxim. These circumstances evidently show this ancient peculiarity of our law to be of feudal original, and taken in that light, there were some arguments in its favour. For if the feud of which the son died seised was really feodum antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent, before it could have come to the son, unless it were feodum maternum, or one descended from his mother, and then the father would be excluded by the feudal maxim already considered, as he did not derive his blood from the purchaser. And if it were feodum novum, or one newly acquired by the son, the father would still be excluded by the same maxim, which was founded indeed not only upon the personal merit of the vassal which might be transmitted to his children, but also upon this consideration of military policy, that the decrepit grandsire of a vigorous vassal would be but indifferently qualified to succeed him in his feudal services. Nay, even if this feodum novum were held by the son ut feodum antiquum, such feud must in all respects have descended as if it had been really an ancient feud, and therefore could not go to the father, because if it had been an ancient feud, the father must have been dead before it could have come to the son. Thus, whether the feud were strictly novum or strictly antiquum, or whether it was novum held ut antiquum, in none of these cases the father could possibly succeed. Such at least have been alleged, (and apparently with truth,) as the reasons of the rule which excluded the ascending line (y). The reasoning,

(u) Ll. Hen. 1, c. 70. (x) Glan. lib. 7, c. L.

(y) See Co. Litt. by Harg. 11 a, n. (1).