Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

The rules of descent in the old feudal law in regard to the sons of the last possessor—Representation and collateral succession—Feminine feuds.

It is now time to see how inheritances descended by the feudal law, where, in the original grant, there were no particular directions to guide the descent; for in such case the maxim of the feudal law holds, Tenor investituræ est inspiciendus; or, as the common law expresses it, Conventio vincit legem. The first rule then was, that descendants of the first acquirer, and none others, were admitted. The reason was, that his personal ability to do the duties of the fief was the motive of the grant, together with the obligation his fealty laid him under to educate his offspring to the lord’s obedience, and to qualify him for his service in war. It was observed, therefore, it should go to the first purchaser’s collateral relations, whom he had no power to bind by his acts, and over whose education he had no influence. I mean where it was not particularly otherwise expressed; for then the collaterals succeeded, as the merit of their blood was part of the consideration; not so properly in the right of heirs, as by way of remainder, under the lord’s original grant[189].

The next thing to be enquired is, since the descendants alone inherited, whether all, or which only of them inherited. And here the females and their descendants, unless they were specially named, were totally excluded, not merely for their personal incapacity, but lest they should carry the fief to strangers, or enemies; and therefore, where they were admitted, they were obliged to marry with the consent of the lord. The third rule is, that, unless it was otherwise stipulated, all the sons succeeded equally to the father. This was the antient feudal law, and the law of England in the Saxon times, the relicks of which remain in the gavel kind of Kent, and remained in the last century in many, if they do not still in some of the principalities of the empire. In France, during the first, and a good part of the second race, we see the kingdom divided among the sons. There are not wanting instances of the same among the English Saxons; and the Spaniards continued the practice now and then even in later ages. But the frequent wars, occasioned by these partitions, at length abolished them, and made kingdoms to be considered as indivisible inheritances. In imitation of the sovereignty, the same alteration was introduced into the great seignories, which made, at this time the principal strength of the kingdom, and which, now the crown was become indivisible, would, if liable to partition, become so inconsiderable in power, as to be at the mercy of the king[190].

The inconveniencies attending the lower military tenancies which still continuing divisible, were crumbled into very small portions, and, of course, must have fallen into indigent hands, were such, that these also, for the most part, became descendible to a sole heir. But this, however, was not effected but by degrees; for in the reign of Henry the First, though a single knight’s fee was not divisible, yet when a man died seized of more than one, they were distributed among his sons as far as they went; but in his grandson’s reign the general law was settled in favour of a single heir, in the same manner as it has stood ever since[191].

But it remains to be enquired which of the sons, in case of an indivisible inheritance, should be this sole heir. In the antient and unsettled times, the law made no particular provision; but, as the lord was the head of the military society, and bound to protect it, it was left to his option to fix upon the properest person to do the duties: and an instance of the exertion of this power we have in England so late as the reign of Henry the Second, who gave the entire military lands of Geoffry de Mandeville to his son by a second ventre, to the exclusion of the eldest by a former wife, for this reason, eo quod melior esset miles. A trace of this still remains in the case of a peerage, descendible to heirs general, that is, male or female, falling to daughters. Here the fief being indivisible, the king may appoint the peerage to which he pleases, and until he doth so, it is not indeed extinguished, but lieth dormant, being what is called in abeyance, or the custody of the law. But at length this uncertainty was removed, and the eldest son being generally the best qualified, and consequently almost always chosen, obtained the right, by degrees, in exclusion of his brethren, or the choice of the lord[192].

But it will be inquired with respect to kingdoms, who had no superior to make the choice, how was it to be determined after they became indivisible, which of the sons was to succeed, seeing the absolute right of primogeniture was not yet established in the opinions of men. I answer, the usual practice was for the king himself, before his death, to appoint the successor; generally with the consent and approbation of his states, and sometimes merely by his own act, which was almost universally allowed, and obeyed by the people. But if no such disposition had been made, the states assembled, and chose the person themselves; and these appointments generally falling on the eldest son, paved the way for lineal hereditary succession, though the case was not always so.

In France, Hugh Capet, to go no higher, in order to prevent competition, caused his son Robert to be crowned, and sworn allegiance to in his lifetime; but Robert neglecting the same precaution, Henry his younger son was chosen in preference of the elder, who was obliged to content himself with the dutchy of Burgundy. And if Henry was an usurper, so were all the succeeding kings of France for three hundred years, till that family of Burgundy failed. Henry followed his grandfather Capet’s example, and so did his successors for about an hundred years, and then, the notion of the lineal succession of the eldest son being fully established, the custom of crowning the son in the father’s life, was laid aside, as unnecessary.

In England the practice was antiently the same. William the Conqueror, though he set up a claim under Edward the Confessor’s will, yet as that never appeared, a formal election by which he was chosen, extorted indeed by dread of his power, but apparently free, was his title. When pressed to declare a successor, he only signified his wish that William might succeed, but declared he would leave the people of England as free as he had found them. William accordingly was elected in prejudice of his elder brother Robert, and upon his death, occasioned by an accident, Robert was again excluded, and Henry the First, the third brother, chosen. Henry was willing to have the course of descent secured in his offspring; and for this purpose proceeded in the method that had been so successful in France, namely, by causing his son Henry to be crowned, and sworn to. But this latter dying childless in the lifetime of his father, king Henry caused his daughter Maud to be acknowledged successor, and the oath of eventual allegiance to her to be taken by his people. However, this project did not succeed. No nation of Europe had yet seen a crown on the head of a female; and Spain was the only country that had ever had a king who claimed in a female right. The majority, therefore, upon Henry’s death, looked upon their oath as inconsistent with the nature of monarchy, and void, and in consequence chose Stephen, who was the son of Maud’s aunt, and grandson of the Conqueror, whose whole male issue was now spent. There was, however, a large party in the kingdom who paid a greater veneration to the obligation of their oath, and adhered to Maud. Hence was this reign a continued scene of civil war, until all sides, being wearied out, by mutual consent, ratified by the states of the kingdom, Stephen was allowed king for life, and Maud’s personal pretensions, as a woman, being set aside, her son, Henry the Second, was declared, and sworn to, as eventual successor[193].

Henry the Second followed the example of his grandfather, and had his eldest son Henry crowned; but that ungrateful prince conspiring and rebelling against him at his death, which likewise happened in the lifetime of his father, the old king fearing the like consequences, refused to crown his next son Richard; who conscious of his own ungrateful conduct, and suspecting that this refusal proceeded from partiality to John, the youngest and favourite son, stirred up those commotions and rebellions which broke his father’s heart. Richard was the next heir, and did succeed, but not merely in the right of next heir; for he assumed no title but that of duke of Normandy, until he was elected and crowned. The title of John was notoriously by election, and his son Henry the Third was the first who was introduced to his subjects by the words, Behold your king, or words equivalent. Those few who adhered to his father, immediately swore to him; but the majority, who were disaffected, did not submit but upon terms, the restoration of the charters.

From that day the lineal succession has been established, and the crown is vested in the successor upon the death of his ancestor, and the maxim prevailed of the king’s never dying; whereas before, the crown was in abeyance, till coronation, and the date of the king’s reign was taken, not as now, from the death of the former monarch, but from the day that the succeeding one was crowned. Henceforth coronation became a mere ceremony, though the form of an election is still continued in it. I have been more particular in this detail, in tracing the origin of the hereditary descent of the crown, to shew how false in fact, as well as in reason, the notion is of its being founded either on divine right, or on any law of man coeval with the monarchy[194].