1 Inft. 11 b. Hift. c. 11. Eaftwood v. 614. $ 19. Lord Coke has obferved on this paffage that if the uncle does not enter, the father cannot inherit from him, because he must make himself heir to the perfon last seised, which the uncle was not, for the perfon last seised was the fon, to whom the father cannot make himself heir. § 20. Lord Hale fays, that by the law of Normandy the father was poftponed to the brother and fifter, 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 fucceeded equally with the brother. But by the English law the father cannot take from his fon by an immediate descent, but may take as heir to his brother, who was heir to his fon, by collateral descent. § 21. A father or mother may however be coufin to their own child, and in that relation may inherit from him, notwithstanding the relation of father or mother. § 22. A fon died feifed of lands in fee, without having any iffue, or brother or fifter, but leaving two coufins 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 fon. 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 cafe fhould fo happen, that the father or mother were coufin to the fon, and as fuch his heir, they might take notwithstanding. And that here, though the heir was alfo mother, this did not hinder her from taking in the capacity or relation of coufin. § 23. The fecond canon or rule of defcent is"That the male iffue fhall be admitted before the "female." Thus fons fhall be admitted before daughters; or, as Lord Hale expreffes it,-In descents the law prefers the worthieft of blood, therefore the son inherits, and excludes the daughter; the brother is preferred before the fifter, the uncle before the aunt. $ 24. This preference of males to females is evidently derived from the feudal law; but the English law does not extend to a total exclufion of females, it only postpones them to males: for though daughters are excluded by fons, yet they fucceed before any collateral relations. § 25. The third canon or rule of defcent is, "That << where there are two or more males, in equal de• gree, the eldest only fhall inherit, but the females "altogether." The doctrine of primogeniture is alfo of feudal origin; for although upon the first introduction of hereditary fucceffion in feuds, they defcended to all the fons, yet that course was changed, in confequence of a conftitution of the Emperor Frederick and this 2d Canon. Males preferred to Females. 3d Canon. The Eldeft Male fuc ceeds. Lib. 7. c. 3. Hift. c. 11. . iii. doctrine appears to have been first introduced into England by William the Norman, but was only applied to honorary and military fees, which could not be divided without great inconvenience. § 26. Thus it appears from Glanville that in the reign of Hen. 2. eftates held by military fervice de scended to the eldest fon only; and eftates held in focage were partible among all the fons.-Cum quis ergo hæreditatem habens moriatur, fi unicum filium hæredem habuerit, indistinctè verum eft quod filius ille patri fuo fuccedit in totum. Si plures reliqueret filios, tunc diftinguitur utrum ille fuerit miles, five per feodum militare tenens, aut Liber Sokemannus, quia fi miles fuerit, vel per militiam tenens, tunc fecundum jus regni Angliæ, primoge nitus filius patri fuccedit, in totum, ita quod nullus fra trum fuorum partem inde de jure petere poteft. Si vero fuerit Liber Sokemannus tunc quidem dividetur bæreditas inter omnes filios quotquot funt, per partes equales. § 27. Lord Hale fays that in Normandy lands were of two kinds, partible and not partible; the lands that were partible were valvafories burgages and fuch like, which were much of the nature of our focage lands; these defcended to all the fons, or to all the daughters. Lands not partible were fiefs and dignities; they defcended to the eldest son, and not to all the fons; but if there were no fons, then to all the daughters, and became partible. -§ 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 ftating the law of descents, 64 b. fays:-Si quis plures habet filios jus proprietatis femper defcendit ad primogenitum, eo quod ipfe inventus eft primo in rerum natura. § 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 f. 241. Littleton fays, where a man or woman feised of lands in fee or in tail hath no iffue but daughters, all the daughters fhall equally inherit, and make but one Tit. 19. f. 1. heir. S 30. The fourth canon or rule of defcent is, "That the lineal defcendants in infinitum of any per "fon deceased, shall represent their ancestor, that is, "fhall ftand in the fame place as the perfon himself "would have done, had he been living." 4th Canon. prefentation. Right of Re § 31. Hence it is (fays Lord Hale) that the fon Hift. c. 11. "or grandchild, whether fon or daughter, of the "eldeft fon, fucceeds before the younger fon; and "the fon or grandchild of the eldest brother, before "the youngest brother; and fo through all the degrees of fucceffion, by the right of representation, "the right of proximity is transferred from the root "to the branches, and gives them the fame prefer46 ence as the next and worthieft of blood." I Inft. 10 b. Hift. c. 11. Idem. $ 32. It follows from this rule that the nearest relation is not always the heir at law; as the next cousin jure reprefentationis, is preferred to the next coufin jure propinquitatis; and the taking by representation is called fucceffion per ftirpes, according to the roots; fince each branch inherits the fame fhare that their root or ftirps, whom they reprefent, would have taken. § 33. Thus Lord Hale fays-" This right tranf "ferred by reprefentation is infinite and unlimited in "the degrees of those that defcend from the repre"fented. For the fon, the grandfon, and the great"grandfon, and fo in infinitum, enjoy the fame privi lege of representation as those from whom they "derive their pedigree had, whether it be in descents "lineal or tranfverfal; and therefore the great"grandchild of the eldest brother, whether it be a "fon or a daughter, fhall be preferred before the younger brother, because, though the female be lefs "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 fhall have an equal fhare with the other "fix daughters, because they ftand in representation "and ftead of their mother, who could have but a "moiety." $ 35. The |