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

Having laid down the rules of descent in the old feudal law, in regard to the sons of the last possessor, it will be proper next to mention how far it admitted representation, or collateral succession; for at first both were excluded. If a man had two sons, one of which died before him, leaving a son, the grandson could not succeed to his grandfather, but the uncle was sole heir. This was grounded partly on the presumption that the uncle was of more mature age, and better qualified to do the service; but this could not be the only reason, for the rule was general, and held where the grandson was of full age and capacity. We must have recourse, therefore, to a farther cause, which was also the same that, in those old times, prevented collateral descents; for if a man had two sons, by the old law, the estate was divided between them. If one of these died without issue, the brother did not succeed to the share of the deceased, but it reverted, as an escheat, to the lord. The reason of both these was, that he that claims by descent, must claim through the last possessor, and derive his right from him; and that right arose from the supposition of his being educated in the fealty of the lord, that is, by the last possessor who had sworn fealty. Therefore the grandson, being educated under the patria potestas of his father, who, dying before the grandfather, had never taken the oath of fealty, was excluded the succession, as not trained up by a real tenant; but the uncle was admitted to claim from the grandfather, the tenant under whom he was bred[195].

This rule was of some advantage to the feudal system at that time, as it frequently prevented the too great crumbling of fiefs, when almost all of them were divisible. For the same reason a brother could not succeed to a brother, even in a paternal fief, because he was not educated by the last possessor that had done fealty: and though this seems very unreasonable, as he had been bred in the fealty of the lord, namely by the father, yet this rule continued for ages, being greatly for the advantage of the king and the great lords, in regard to their escheats; as every failure of a lineal descent occasioned them to happen. Neither was it thought severe in those early ages by the tenants. As all benefices were originally for life, it was a great advantage to have them made descendible even under these strict limitations[196].

At length the necessity of Charlemagne’s grandsons, who had parted the empire, and were in eternal broils, extorted from them, in France, a grant of the grandson’s succeeding in his father’s share, by way of representation, in imitation of the civil law, and also of brothers succeeding to brothers in a paternal fief, but not in a new one. And about an hundred and fifty years the like necessity of the emperor Conrad, who was embroiled with the Pope, procured the same law for Germany and Italy[197].

The extension of the right of collateral succession beyond brothers grew up by degrees, not from any positive law. It was first extended to uncles and cousin-germans, provided it was a fief descended from the grandfather; afterwards to any the next cousin, to the seventh degree, descended from the first purchaser; and at last to any, however remote, who could prove their descent from the first purchaser. This was the rule in ancient inheritances; but with respect to new ones, lately acquired, there grew up a practice of granting them as ancient ones; feudum novum, ut antiquum, datum. Here the fief, though really new, was, by means of this grant, supposed to proceed from some indefinitely remote ancestor, at any distance; and therefore any one, who could prove himself descended from a common ancestor of the last possessor, was admissible, and he that was nearest by the rules of succession was preferred. In this case, therefore, the old rule of requiring a proof, that the person claiming as heir was a descendant of the body of any ancestor of the last possessor, would be absurd, as defeating the tenure of investiture. Any ancestor pro re nata might be supposed the first purchaser, to support the intention of the donor, in his directing it to be considered as an ancient fief, although in fact modern. So in this case, if the fief was masculine, any male relation, descended from male blood entirely, was inheritable, even up to Adam, I mean, if he could prove his descent; but females, and their descendants were excluded[198].

If it was descendible to females, either by the particular terms of the grant, or by the general law of the country, then, as it was supposed to descend from any lineal ancestor pro re nata, that ancestor might be a female, and the descendants of females, and they themselves might be admissible. The rule then was, to establish in this case of a fictitious descent, the same regulations as in the case of a real one. But here the root from whence the right of descent was to spring, was inverted; for as there was no real ancestor, an original purchaser, the person last seized, that is possessed of the fee, was the person to be considered. As in the old and common case of inheritances descending, the reckoning was downwards from the first acquirer; in case of collaterals, when they were admitted, you begin to reckon lineally upwards, and at every step enquire for collaterals descended from that lineal ancestor you are upon at the time[199].

A man purchases feudum novum, ut antiquum, and dies without heirs of his body. This feud is, by the constitution of it, presumed to have descended from some of his ancestors. To find out who is that ancestor, it was likely to have descended from, you must look at the law of descents: the father, in the first place, is supposed the person. His children, that is, the brothers or sisters, or their descendants, in the first place; if none of them, the grandfather by the father is supposed the person; then the grandfather’s descendants. The uncles and aunts by the father, and their descendants, succeed in the second place. If none of them, then the great grandfather’s by the grandfather and father descendants, the great uncles and aunts, and their posterity; and if there are none of them, you still go a step higher in the male line, till you can trace it no farther. But now you begin to invert the rule of tracing up in the male ancestors, and so downwards, and trace up to the female ancestor of the males, as supposing the estate descended from her, or her ancestors. For instance, I have supposed the descendants of the male line have failed in the great grandfather. His wife, therefore, the great grandmother, is supposed the first purchaser; for, upon account of the probability of the inheritance coming through males, I trace up to her through the father and grandfather; her heirs, therefore, shall succeed, first, lineal, then collateral, in the same manner as if the estate had descended from a remote ancestor of her’s. If none such can be found, we descend another step, namely, to the grandmother by the father, and suppose the estate to have come from her line; and then heirs, first lineal, then collateral, succeed according to their several ranks. If none of these, so that there is no kindred on the side of the father, the presumption is, that this supposed antient feud came from the mother’s family, and therefore the heirs of her male ancestors are to be traced up, and discovered in the same manner; and whenever they fail, the heir of the most remote female ancestor, all through males; and failing them, the heir of the next most remote, and so on, until the blood of the mother is spent; and then the estate, for want of heirs, reverts to the lord, of whom it is holden.

Such is the rule of descents of new purchases granted as if they had been ancient inheritances; but this rule was, on the Continent, and anciently in England, confined to such grants, and them only, wherein this clause appeared in the investiture. But in the reign of Stephen, his necessity of gaining adherents, and the same necessity of his competitor Henry the Second, occasioned so many grants of this kind to be made, some originally, and others on the surrender of old ones, that it hath since become the common law of England, that purchases, that is, new acquisitions, are descendible to any relation, however remote[200].

It will be necessary to say something as to feminine feuds, which are a deviation from the strict principles of the ancient law, which excluded them and their descendants entirely. They first arose from the woman’s being the principal consideration of the grant; as when a lord gave lands in marriage with his daughter, sister, niece, kinswoman, or any other female: here the lands being partly given in consideration of the female blood, it was reasonable they and their descendants should be inheritable. But this was still an exception to the general law, and confined to those grants wherein it was mentioned, until the number of those grants, at length prevailed to have this order of succession considered as the general law, and the succession of males remote, in exclusion of a nearer female (as in case of tail male) considered as an exception. The monarchy of France, however, and of many of the principalities of Germany, have retained the antient feudal law, in absolutely excluding females and their descendants.

The descent of imperial crowns to females, was of a much later date, than that of lower fiefs: for here a manly capacity was looked upon as indispensibly requisite. The first step was admitting a male representative for them, a husband or a son. This began in Spain. Pelagius, who was of the blood royal, having gathered a few of the Spanish fugitives together, after the Moorish conquest, founded a pretty monarchy in the mountains of Asturias. His son Favila dying without issue, the crown was given to his daughter’s husband, and this continued the rule for many ages, where males failed. But where the son of such female heir was of sufficient age to mount the throne, he of course excluded both mother and father. At length, in the thirteenth century, Europe, for the first time, saw a woman solely invested with royalty, Joan the first of Naples; for Henry the first of England’s project in favour of his daughter Maud, as we have said before, had miscarried. Margaret of Denmark, Sweden and Norway, Joan the second of Sicily, and Isabella of Castile, followed in the next century. In the following century came Mary and Elizabeth in England, and many since in all parts of Europe; so that at present the monarchies of Europe are descendible to females in general, if we except France, and several but not all of the principalities of the empire. Bohemia and Hungary have received a queen in the person of the present empress in this present century, but so inveterate are old customs and opinions, that when her faithful Hungarians resolved to assist her to the last extremity, it was by saying, moriamur pro rege nostro Maria Teresa, not pro regina[201].