| 
1. 2 Blacks. Com. 199.
2. Bracton, lib. 2. fo. 32, b. lib. 5. fo. 372. b. Co. Litt. 266 a
3. Co. Litt. 18. a. b.
4. Reeve's Treatise on The Law of Descents, Prec.
5. New York Revised Statutes, vol. i. 751. sec. 1, 2. Ibid. 753. sec. 17. Ibid. 754. sec. 19.
6. Reeve's Law of Descents, passim. Griffith's Law Register, No. 6. under the head of each state. Civil Code of Louisiana, No. 898. Stent v. McLeod, 2 McCord's Ch. Rep. 354. The allowance of a double portion to the males was the law in Massachusetts prior to the American revolution, and, in several of the other colonies, the English law of primogeniture prevailed. It prevailed in Rhode Island until the year 1770, and in New York, New Jersey, Maryland, and Virginia, until the Revolution. In Connecticut and Delaware, the eldest son had formerly a double portion. In Pennsylvania, by the law of 1682, the law of primogeniture, and of the preference of males, were abolished.
7. Numb. ch. 27. Deut. ch. 21. v. 17. Jones's Com. on Isaeus, 177. Hale's Hist. Com. Law, vol. ii. 76.
8. Gentoo Code, by Halhed, 24. Jones's Institutes of Hindu Law, Ch. 9. art. 117.
9. Jones's Com. on Isaeus, p. 178.
10. Jones's Prefatory Discourse to his translation of Isaeus. Sir William Jones says, that at Athens, the family and heritage were desolate, when the last occupier left no son by nature or adoption to perform holy rites at his tomb; and he suggests, that the preservation of names might have been one reason for the preference given to males in the Attic laws of succession.
11. Comm. on the Pleadings of Isaeus, p. 175. 176.
12. Sir Matthew Hale, (Hist, of the Common Law, vol. ii. 81.) says, that the twelve tables excluded females from inheriting. The broken and obscure text of the twelve tables is not explicit; Ast si intestato moritur cui suus heres nec extabit, agnatus proximus familiam habeto. (5th Table, ch. 2.) But the general current of authority is in favor of the equal admission of the children, whether male or female. Jones's Com. on lsceus. Pothier's Com. on the Fragments of the Twelve Tables, p. 102. prefixed to his Pandectae Justinianece, tom. i. Montesquieu's Esprit des Loix, liv. 27. ch. 1. The children, and the descendants who lived under the power of the father, were called sui haredes; the other nearest relations on the male side were called agnati, and they were always preferred to the cognati, or relations on the mother's side, in order to prevent the estate from passing into another family. It was immaterial, says Montesquieu, whether the sui haredes, or the agnati. were male or female.
13. Inst. lib. 3. tit. 4.
14. The chapter in the Spirit of Laws, b. 27. on the origin and revolutions of the Roman law of succession, developes that branch of their jurisprudence, as Mr. Butler has truly observed, with the greatest precision and perspicuity.
15. Touillier, Droit Civil Francais, tom. iv. 63.
16. Inst. 2. 19. 2. Dig. 29. 2. 11. Butler's note. 77. to lib. 3. Co. Litt. sec. 5. n. 3.
17. Mr. Butler runs an interesting parallel, with his usual erudition, between the Roman and the feudal jurisprudence, on the subject of the succession of the heir. Note 77 to lib. 3. Co. Litt. sec. 5. n. 3, 4, 5.
18. Code Civil, No. 745. 774. 793-802. See, also, Nouveau Style des Notaires de Paris, cited by Ch. J. Parker, in 5 Pickering, 74. as a practical exposition of the code in relation to successions. M. Touillier, (Droit Civil Francais, tom. iv. 62. note.) says, that the compilers of the French code upon successions have principally followed Pothier, and availed themselves greatly of his sage reflections. Touillier has written an entire volume upon the copious theme of the law of descent, and he has been greatly indebted, as he admits, to the treatise of M. Chabot, whom he speaks of in the highest terms, as a learned author, employed by the government to make a report upon the law of successions. The treatise of Le Brun, on successions, is also frequently cited; and the extraordinary extent of research, and minuteness, and accuracy of detail of the French lawyers, on this as well as on other subjects of property, cannot but excite, in the breast of every lover of the science of jurisprudence, the highest respect and admiration. They write like practical men, with remarkable simplicity, sound judgment, and pure morals, and with cultivated and elegant taste.
19. Van Leeuwen's Com. on the Roman Dutch Law, b. 3. ch. 10, 11, 12. Institutes of the Laws of Holland, by Vander Linden, translated by J. Henry, Esq. 1828. p. 150, 151. 158.
20. Bell's Com. on the Laws of Scotland, vol. i. 100, 101.
21. Bracton; lib. 2. fo. 69. a.
22. Tacitus de Mor. Ger. c. 20. Feud. lib. 1. tit. 8. Siquis igitur decesserit, filizs et filiabtas superstitibus, succedunt tantuni f lii aaqualiter. Hale's Hist. of the Common Law, vol. ii. 94, 95. 98. Sullivan on Feudal Law, sec. 14. Dalrymple's Essay on Feudal Property, 165. Wright on Tenures, 31. Mr. Spence, in his Inquiry into the Origin of the Laws and Political Institutions of Modern Europe, p. 393, 394. shows, by references to the laws of the barbarian nations of German origin, and particularly to the laws of the Thuringians, Ripuarians, and Salic Franks, that males excluded females from the succession. There were, however, exceptions to this general rule in some of the barbarian codes, and females were not universally excluded from partaking of the inheritance.
23. Feud. lib. 1. tit. 8. De Successione Feudi. Wright on Tenures, 174. 178. Dalrymple, p. 163-166. 2 Blocks. Cam. 215. Sullivan on Feudal Law, sec. 14. Mr. Reeve, in his History of the English Law, vol. i. 40, 41, says, that the right of primogeniture was quite feeble, even so low down as the reign of Hen. I., and it was not solidly fixed until the reign of Hen. II. But it was not even then fixed as to lauds held in free socage, according to Glanville, b. 7. ch. 3. provided the lands had been antiquitus divisa. Mr. Spence, in his Inquiry, p. 398. states, on the authority of Wilkins on the Anglo-Saxon laws, that the first notice we have of the English law of primogeniture. is in the laws of Hen. 1.
24. See Edinburgh Review, vol. xl. p. 360-375. which refers to the agricultural tours of Arthur Young, James P. Cobbett, and Mr. Birkbeck. Arthur Young had traveled over France before the French revolution, and he then made strong and striking objections to the minute division of little farms among all the children, in those provinces where feudal tenures did not abound. The consequence was, excessive population, beggary, and misery. (Young's Travels in France in 1787, and 1788, vol. ii. ch. 12.) He supposed, that more than one third of the kingdom was occupied by very small farms, cultivated by the owner. Mr. Southey, in his History of the Peninsular War, vol, i. 47, 48. (a work in which such a discussion seems rather out of place,) attributes the most beneficial results, both in a moral and political view, to the law of primogeniture. He goes to the extraordinary length of saying, that "the structure of social order rests upon that basis."
25. Wealth of Nations, vol. i, 382.
26. See N.A. Review, vol, xxvi. art. 8.
27. Statutes of Maryland of 1786 and 1802. See 6 Harr. & Johns. Rep. 156. 258. Statute of Connecticut. Griffith's Law Register, tit. Connecticut, No. 6. The question as to the policy of large or small farms, and of large or small capital to work them, in an economical point of view, does not belong to the present inquiry, nor does it fall within the range of my professional pursuits. But I became convinced, on reading the writings of Arthur Young, five and thirty years ago, that, in Europe, large farms, and convenient capital to manage them, were by far the most conducive to general improvement, independence, prosperity, and happiness.
28. Litt. sec. 8. Co. Litt. 11. b. 2 Blacks. Com. 209. Goodtitlev. Newman, 3 Wits. Rep. 516. 1 Simon. & Stuart, 260.
29. Reeve's Hist. of the English Law, vol. ii. 318
30. Shelley's case, l Co. 98. a. b. by Coke, who argued for the defendant, in whose favor judgment was rendered.
31. Potter v. Potter, 1 Vesey's Rep. 437.
32. Co. Litt. 15. a.
33. Litt. sec. 8. Co. Litt. 15. a. Goodtitle v. Newman, 3 Wils. Rep. 516. Doe v. Keen, 7 Term Rep. 386.
34. Co. Litt. 15. a. Doe v. Hutton, 3 Bos. & Pull. 643. 655. Ratcliffe's case, 3 Co. 41. b. 42. a. Kellow v. Rowden, 3 Mod. Rep. 253,
35. Co. Litt. 15, a.
36. Co. Litt. 15. a. Ibid. 191. b. Stringer v. New, 9,Mod. Rep. 363.
37. Jackson v. Hendricks, 3 Johns. Cas. 214. Bates v. Schroeder, 13 Johns. Rep. 260. Jackson v. Hilton, 16 Ibid. 96.
38. Vol. i. 751. sec. 1. Ibid. 754. sec. 27.
39. Reeve on Descents, p. 377-379. Cook v. Hammond, 4 Mason's Rep. 467. Hillhouse v. Chester, 3 Day's Rep. 166. Gardner v. Collins, 2 Peters' U. S. Rep. 59. Tucker's Blacks. Com. vol. ii. appendix, note B. The doctrine of the common law was fully, ably, and learnedly discussed by counsel, in the three last cases above mentioned.
40. 2 Peters' U. S. Rep. 625. Griffith's Law Register, tit. N. C. No. 6. Reeve on Descents, p. 377. The English real property commissioners, in their first report to Parliament, in May, 1829, objected to the rule that seizina facit stipitem, and they recommended an alteration of the rule, so far as that the inheritance should pass to the heir of the person last seized of, or entitled to the estate or interest, to be taken by inheritance.
41. 3 Wils. Rep. 516.
42. Basset v. Basset. 3 Atk. Rep. 203.
43. N.Y. Revised Statutes, vol. i. 754. sec. 18. Griffith's Law Register, under the head of those states, No. 6.
44. N.Y. Revised Statutes, vol. i. 751. sec. 3, 4. Griffith's Law Register, passim.
45. See vol. ii. 342. of this week.
46. The distinctive character of succession per stirpes, and per capita, and the grounds on which they severally rest, is exceedingly well explained by Vinnius, in his commentary upon the Institutes, lib. 3. tit I n.6.
47. 2 Woodd. Lec. 115.
48. Inst. 3. 1. 6. Novel, 118. 2 Blacks; Com. 217.
49. The rule only applies, in New Hampshire and Vermont, when the intestate, dying without issue, had been married, or was of lawful age.
50. N.Y. Revised Statutes, vol. i. 751. sec. 5. Ibid. 753. sec. 12.
51. Griffith's Law Register. Reeve's Treatise on the Law of Descents. Statutes of the several States, published by John Anthon, Esq. as an appendix, or third volume to Sheppard's Touchstone. N.Y. Revised Statutes. These are the works which I have mainly consulted for the law of descents in the several states; and I have stated the diversities among the states, not without some apprehension that I may, in certain cases, be misled, from the want of more full and precise information, as to matters of fact on particular points.
52. Wright on Tenures, 179-185. Sir William Blackstone, (Com. vol. ii. 211, 212) has followed implicitly the reasoning of Sir Martin Wright; and he charges Sir Edward Coke with having adopted the quaint reason of Bracton, who "regulates," as he says, "the descent of lands according to the laws of gravitation." This reflection on the good sense and taste of Coke and Bracton, appears to me to be utterly unmerited and groundless. Bracton, after speaking of the descent of the fee to the lineal and collateral heirs, adds, descendit itaquce Jus quasi ponderosum quid cadens deornun recta linea vel transversali, et nunguam reasce it ea via qua descendit. A latere tamen ascendit alicui propter defectum haeredum inferius provenientium.-(Bracton, lib. 2. ch. 29. sec. 1.) Lord Coke, (Co. Litt. 11. a.) after quoting the maxim in Littleton, that inheritances may lineally descend, but not ascend, barely cites the passage in Bracton, to prove that lineal ascent, in the right line, is prohibited, and not in the collateral. He also refers to Ratcliffe's case, (3 Co. 40.) where some reasons are assigned for excluding the lineal ascent, and the law of gravity is not one of them. The words of Glanville, (lib. 7. c. 1.) are to the same effect; haereditas naturaliter descendit, nunquam naturalitur ascendit. This is clearly the course and dictate of nature. It is alluded to in one of the Epistles of St. Paul, (2 Cor. 12. 14.) and it was frequently and pathetically inculcated in the classical as well as in the juridical compositions of the ancients.-(Taylor's Elements of the Civil Law, 540-542.) The ascent to parents is up stream, and against the natural order of succession. Bracton admits the ascent in collateral cases, which shows that he did not consider descent "regulated" by any dark conceit. The "laws of gravitation" were unknown when Bracton wrote. He merely alluded to the descent of falling bodies, by way of illustration, and it was a beautiful and impressive allusion, worthy of the polished taste of Bracton, and the grave learning of Coke.
53. Litt. sec. 3.
54. Eastwood v. Vincke, 2 P. Wins. 613.
55. Jones' Com. on, is Isaeus 181.
56. Novel 118. ch. 2.
57. Taylor's Elements of the Civil Law, 542.
58. Inst. 3. 3. 2. Code, 6.25. 9. We have a striking allusion to this sentiment of nature, in the address of the provisional government at Paris to the French nation, on the 6th April, 1814, when the Imperial scepter was falling from the hands of Napoleon. They exhorted the nation to restore the ancient monarchy, and look for the return of peace and the pacific arts, so that the French youth might no longer be cut off by arms, before they had strength to bear them, and the order of nature no longer be interrupted; and that parents might hope to die before their children.
59. Sec. 746, 747, 748. 751.
60. Droit civil Francais, tom. 4. sec. 124. 126. note.
61. L'Esprit des Loix, liv. 26. ch. 6.
62. Principles of Philosophy, b. 3. part 1. ch. 4.
63. Grotius De Jure, B.& P. b. 2. c. 7. sec. 5. 11. Puff, Droit des Gens, par Barb. 4. 11. 13.
64. N.Y. Revised Statutes, vol. i. 752. sec. 6.
65. I have assumed, on the authority of Mr. Griffith's Law Register, tit. Pennsylvania, No. 6. that the mother, under the Pennsylvania statute, takes, eventually, a fee; but I have not perceived that provision in the statute published by Mr. Anthon, nor in Ch. J. Reeve's elucidations of the Pennsylvania law of descents.
66. Lord Ch. J. Holt, in Blackborough v.. Davis, 1 P. Wms. 52. says, that this was according to the construction of the Jewish doctors upon the 27th chapter of Numbers, and it is so stated in Selden de Successionibus apud Hebraeos, ch. 12.
67. Jones's Iseeus, Pref. Discourse. His Commentary on Isaeus, p. 183. etc. Novel 118. ch. 2.
68. Vander Linden's Institutes of the Laws of Holland, by J. Henry, Esq. p. 159.
69. N.Y. Revised Statutes, vol. i. 752. sec. 7, 8, 9, 10.
70. See Vol. ii. 340, 341. of this present work.
71. 2 Blacks. Com. 223-231.
72. Gardner v. Collins, 2 Peters' U. S. Rep. 58. 3 Mason's Rep. 398. S. C.
73. N.Y. Revised Statutes, vol. i. 753. sec. 15.
74. In Seville v. Whedbee, 1 Badg.& Dev. Rep. 160. it was decided, that a paternal half brother was entitled as heir to his half brother, to an estate which descended to that deceased brother, ex parte materna. The case is brief and imperfect, but it is to be inferred that he would have equally succeeded, even if a remoter heir, on the part of the mother, had appeared.
75. In Maryland the whole and half blood take equally ancestral estates; but if the intestate acquired the estate by purchase, in contradistinction to title by descent, brothers and sisters of the whole blood have the preference. This is by the statute of 1786. Hall v. Jacobs, 4 Harr. & Johns. 245. Maxwell v. Seney, 5 ibid 23
76. N.Y. Revised Statutes, vol. i. 752, 753. sec. 10, 11, 12. 15. The words in the laws of the several states regulating the descent of ancestral inheritances, require that the heir should be of the blood of the ancestor. This would, in the ordinary sense of the words, admit the half blood, for they are still of the blood. But the statute of Pennsylvania has been understood to exclude the half blood in that case, and this construction arises from the wording of the statute, and Ch. J. Reeve says it is peculiar to Pennsylvania.-Reeve's Law of Descents, 382.) The N.Y. Revised Statutes have adopted the same rule; and in that solitary instance excluded the half blood, as not being of the blood of the ancestor. The 15th section referred to, is not susceptible of any other construction. The learned author of the treatise of descents was mistaken, in supposing, when he wrote, that the law of Pennsylvania was peculiar. The law of New York, of 1786, then in force, had the same peculiarity, and it has been continued. So, also, in cases to which the rules of the statute do not extend, the canons of inheritance at common law still apply, and in these two respects the exclusion of the half blood continues to exist in the law of New York.
77. In Den v. Jones & Searing, 3 Halsted, 340. the half blood of the person dying seized was held entitled to inherit an ancestral estate, because he was of the blood of the ancestor.
78. In Bevan v. Taylor, 7 Serg. & Rawle, 397. the court went upon the ground that if there was no brother, or sister, or father, the estate acquired from the father went to the relations on the part of the father, in exclusion of the relations on the part of the mother, because they were not of the, blood of the ancestor, from whom the estate came.
79. I wish to be understood to speak on the subject of these minuter regulations with a degree of distrust. The rules concerning collateral succession in the several states are quite complex, and they are exceedingly various and different from each other in their minuter shades. The sources of information on this subject, to which I alluded in a former note, though very respectable, are still, in some respects, considerably deficient and obscure, and there is a want of information of the judicial decisions in the state courts on these points, The laws on this as on many other subjects, are not constant, but exposed to the restless love of change, which seems to be inherent in American policy, both as to constitutions and laws. Thus, for instance, the law of descents in New York has undergone a thorough alteration in and by the Revised Statutes; and the views of the law of New York, in Mr. Griffith's Register, and in Ch. J.. Reeve's Treatise on Descents, have now become obsolete and useless. May it not be so in some other states? For these reasons, I do not feel entire confidence in the accuracy of all the details concerning the local laws of succession, in the ascending and collateral lines, though I hope that the inaccuracies that may occur will not be very many, or very material.
80. Inst. 3. 3. 5. Novel, 118. ch. 3.
81. The English real property commissioners, in their report to Parliament, in May, 1829, proposed several material alterations in the common law canons of inheritance. (1.) They proposed to abolish the rule, that the inheritance should not ascend, and to let in the lineal ancestors in default of descendants, and next after the lineal descending line. They proposed that the father should take before brothers and sisters, and the grandfather before uncles and aunts, for preference was to be given, in the ascending line, to proximity of blood to the person last seized or entitled; and the preference of the male line over the female line, without regard to proximity of blood, was to be preserved. (2.) That the rule excluding the half blood should be abolished, and the whole blood and the half blood should stand upon equal footing as to inheritance, except that amongst kindred, claiming through on and the same ancestor of the first purchaser, preference shall be given to the whole blood of the first purchaser; but when that blood fails, the inheritance to pass as if the person last seized or entitled had been the purchaser.
82. N.Y. Revised Statutes, vol. i. 752. sec. 10.
83. Blackborough v. Davis, 1 P. Wms. 41. Woodroff v. Wickworth, Prec. in Chan. 527.
84. N.Y. Revised Statutes, vol. i. 752. sec. 10. Ibid. 753. Sec. 13.
85. Ibid. sec. 10, 11, 12.
86. Civil Code of Louisiana, art. 901-904. The law of succession in Louisiana, is taken from the Code Napoleon, art. 746, 747.
87. N. Y: Revised Statutes, vol. i. 753. sec. 16.
88. 2 Blacks. Com. ch. 14.
89. Hale's Hist. of the Common Law, vol. ii. 74.
90. Supra, p. 385.
91. N.Y. Revised Statutes, vol. i. 754. sec. 18. and Griffith's Register, h. t. and the statute laws of the several states.
92. Statute 9 and 10 William III. c. 16. Doe v. Clarke, 2 H. Blacks. Rep. 399.
93. 2 Blacks. Com. 206. 224. 504.
94. Vol. ii. 175. of the present work.
95. Vol. i. 753. sec. 14. Ibid. 754. sec. 19.
96. Cooley v. Dewey, 4 Pick. Rep. 93.
97. Vol. ii. 173. note.
98. Heath v. White, 6 Conn. Rep. 228. This decision is not relished in the case of Cooley v. Dewey, 4 Pick. Rep. 493. because it extends the word children, in the statute of distributions, beyond its settled meaning in the English statute, and in those American statutes which are a transcript of that part of it.
99. Civil Code of Louisiana, art. 912-917.
100. Inst. 3. 3. 7 Ibid. 3. 4. 3. Code, 6. 57. 6. Nov. 18. 5. 5. Gibbon's Hist. Vol. viii. 67, 68.
101. Damat, vol. i. tit. Successions, part 2. sec. 12. Ibid. b. 1. tit. 1. sec. 3. Ibid. b. 2. tit. 2. sec. 11. Pothier, Traité des Successions, art. 3. sec. 3. This was not, however, the universal rule, for in some of the provinces of France they followed the wore indulgent provision of the Roman law. Repertoire de Jurisprudence, par Merlin, tit. Bastard.
102. Code Napoleon, art. 756, 757, 758. 765.
103. Touillier's Droit Civil Francais, tom. 4. sec. 248-270. He gives a detail of some of those controverted points.
104. Institutes of the Laws of Holland, by Vander Linden, translated by Henry, p. 165. Commentaries of Van Leeuwen, p. 34. 287. edit. Lond. 1820. It is stated by Van Leeuwen, that, anciently, illegitimate children were reputed, in Holland and Germany, to be so disgraced as to be excluded from all honorable office, and even to be incompetent witnesses against persons of legitimate birth. Heineccius wrote a dissertation entitled, De Levis Notce Macula, and he has treated the subject with his usual exuberance of learning. He agrees with Thomasius, in opposition to Gothofredus, that natural children were not branded, at Rome, even with light disgrace, nee levi nota insigniti; but he admits that the rule is different in Germany. They are excluded from the inheritance, and bear the mark of disgracesemper levi nola adspersi fuisse videntur. Heineccins then enters into an eulogium on this branch of Germanic jurisprudence, and, with the zeal of a patriot, undertakes to show, even from Tacitus downwards, that no nation surpassed the Germans in the value which they set upon the virtue of chastity. Heineccii Opera, tom. 2. Exercitatio 7. sec. 32. 54.
105. See the remarks of Ch. J. Parker, in 4 Pick. Rep. 95. Lord Ch. B. Gilbert places the exclusion of bastards from the feudal succession, on high and lofty principles of honor and morality. "The lords would not be served by any persons that had that stain on their legitimation, nor suffer such immoralities in their several clans." Gilbert on Tenures, 17.
106. Vol. i. 754. sec. 23, 24, 25, 26. Ibid. vol. ii. 97. sec. 76, 77, 78, 79.
107. N.Y. Revised Statutes, vol. i. 737. sec. 127.
108. Wyth v. Blackman, 1 Vesey's Rep. 196. Royle v. Hamilton, 4 Vesey's Rep. 437.
109. 3 Blacks. Com.. 430. Co. Litt. 209. a.
110. N.Y. Revised Statutes, vol. ii. 452. sec. 32, 33, 34, 35.
111. N.Y. Revised Statutes, vol. i. 749. sec. 4.
112. Harg. & Butler's Co. Litt. 208. b. note 106. Howel v. Price, 1 P. Wms. 291. and the learned note of Mr. Cox. 3 Johns. Ch. Rep. 257. 9 Serg. & Rawle, 73.
113. Stephenson v. Heathcote, 1 Eden, 38. Lord Inchiquin v. French, 1 Cox's Cas. 1. Webb v. Jones, ibid. 245. Bootle v. Blundell, 1 Merivale, 193. Livingston v. Newkirk, 3 Johns. Ch. Rep. 312.
114. Cumberland v. Cumberland, 3 Johns. Ch. Rep. 229.
115. It is not easy to perceive the necessity or policy of thus interfering with, and reversing the rule of equity as to mortgage debts, which had been known and settled for ages; and especially as the Revised Statutes, as to all other debts, retain and enforce the rule that the personal estate is the primary fund. The symmetry of the law, on this point, is thus destroyed; and a reason suggested by the revisers, in their report of the bill, was, that the existing "rule of law was unknown to the generality of our citizens."
116. 3 Mass. Rep. 527. 536. 4 Ibid. 358.
117. Gibson. Ch. J.. 13 Serg. & Rawle, 14.