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1 Inft. 11 b.
$ 19. Lord Coke has observed on this passage that if the uncle does not enter, the father cannot inherit from him, because he must make himself heir to the person last seised, which the uncle was not, for the person last feised was the fon, to whom the father cannot make himself heir.
Hift. c. 11.
§ 20. Lord Hale says, that by the law of Normandy the father was postponed to the brother and sister, and their issues, but was preferred before the uncle. According to the Jewish law, the father was preferred before the brother; by the Roman law he succeeded equally with the brother. But by the English law the father cannot take from his son by an immediate descent, but may take as heir to his brother, who was heir to his son, by collateral descent.
§ 21. A father or mother may however be cousin to their own child, and in that relation may inherit from him, notwithstanding the relation of father or mother.
22. A fon died seised of lands in fee, without having any issue, or brother or sister, but leaving two cousins his heirs at law, one of whom was his own mother. And the question was, whether the mother could take as heir to her own son.
It was determined by the Master of the Rolls, that though a father or mother could not, as father or mother, inherit immediately after the fon, yet if the case should so happen, that the father or mother were cousine to the fon, and as fuch his heir, they might take notwithstanding. And that here, though the heir was also mother, this did not hinder her from taking in the capacity or relation of cousin.
$ 23. The second cañon or rule of descent is - 24 Canon.
Males prefer" That the male issue thall be admitted before the red to be
males. « female.”
Thus fons shall be admitted before daughters; or, as Lord Hale expresses it,- In descents the law prefers the worthiest of blood, th refore the son inherits, and excludes the daughter; the brother is preferred before the fifter, the uncle before the aunt.
$ 24. This pre-rence of males to females is evidently derived from the feudal law; but the English law does not extend to a total exclusion of females, it only postpones them to males : for though daughters are excluded by fons, yet they succeed before any collateral relations,
§ 25. The third canon or rule of descent is, “That 3d Canon.
The Eldest ç where there are two or more males, in equal de Male fuc.
gree, the eldest only shall inherit, but the females ceeds. altogether."
The doctrine of primogeniture is also of feudal origin; for although upon the first introduction of hereditary succession in feuds, they descended to all the fons, yet that course was changed, in consequence of a constitution of the Emperor Frederick, and this
doctrine appears to have been first introduced into England by William the Norman, but was only applied to honorary and military fees, which could got be divided without great inconvenience.
Lib. 7. 6. 3.
$ 26. Thus it appears from Glanville that in the reign of Hen. 2. estates held by military service de. scended to the eldest son only; and estates held in socage were partible among all the fons.—Cum quis ergo hareditatem habens moriatur, fi unicum filium bæredem babuerit, indistinctè verum eft quod
filius ille patri fuo fuccedit in totum. Si plures reliqueret filios, tunc diftinguitur utrun ille fuerit miles, five per feodum militare tenens, aut Liber Sokemannus, quia si miles fuerit, vel per militiam tenens, tunc secundum jus regni Angliæ, primogenitus filius patri fuccedit, in totum, ita quod nullus fra. trum suorum partem inde de jure petere poteft. Si vero fuerit Liber Sokemannus tunc quidem dividetur bæreditas inter omnes filios quotquot sunt, per partes
Hift. c. 11.
$ 27. Lord Hale says that in Normandy lands were of two kinds, partible and not partible; the lands that were partible were valvasories burgages and such like, which were much of the nature of our focage lands; these descended to all the sons, or to all the daughters. Lands not partible were fiefs and dignities; they descended to the eldest son, and not to all the sons ; but if there were no fons, then to all the daughters, and became partible.
S 28. The
$ 28. The right of primogeniture appears however to have been fully established in the reign of Hen. 3. in focage lands, as well as in those held by a military tenure. For Bracton, in stating the law of descents, 64 b. says :—Si quis plures habet filios jus proprietatis semper descendit ad primogenitum, eo quod ipse inventus eft primo in rerum natura.
S 29. As to the females, being all equally incapable of performing any military service, there could be no reason for preferring the eldest. And therefore 1. 241. Littleton says, where a man or woman seised of lands in fee or in tail hath no issue but daughters, all the daughters shall equally inherit, and make but one Tit. 19. f. 1. heir.
S 30. The fourth canon or rule of descent is, 4th Canon, . or That the lineal descendants in infinitum of any per- presentation.
Right of Re“ fon deceased, shall represent their ancestor, that is, “ shall stand in the same place as the person himself “ would have done, had he been living."
$ 31. “ Hence it is (says Lord Hale) that the son Hift. c. II.
or grandchild, whether son or daughter, of the “ eldest son, succeeds before the younger son; and “ the son or grandchild of the eldest brother, before “ the youngest brother ; and so through all the de
grees of succession, by the right of representation, " the right of proximity is transferred from the root “ to the branches, and gives them the same prefer 4 ence as the next and worthiest of blood.”
1 Inst. 10 b.
S 32. It follows from this rule 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 ; and the taking by representation is called succession per stirpes, according to the roots ; since each branch inherits the same share that their root or ftirps, whom they represent, would have taken.
Hist. C. 11.
S 33. Thus Lord Hale says—“ This right trans“ ferred by representation is infinite and unlimited in " the degrees of those that descend from the repre. “ fented. For the son, the grandson, and the great
grandson, and so in infinitum, enjoy the same privi
lege of representation as those from whom they “ derive their pedigree had, whether it be in descents “ lineal or transversal; and therefore the great“ grandchild of the eldest brother, whether it be a “ fon or a daughter, shall be preferred before the
younger brother, because, though the female be less “ worthy than the male, yet she stands in right of “ representation of the eldest brother, who was more “ worthy than the younger,”
S 34. So, “ if a man have two daughters, and “ the eldest dies in the life of the father, leaving fix
daughters, and then the father dies, the youngest
daughter shall have an equal share with the other “ fix daughters, because they stand in representation “ and stead of their mother, who could have but a “ moiety."
$ 35. The