652 



DESCENT. 



England, Uiat they are generally held, directly or in- 

 c'irectly, of the king, as superior lord. This is only 

 the theoretical remnant of the principle, that the pro- 

 lerty in the soil belongs originally to the sovereign ; 

 and the title is held by the subject in England upon 

 Certain conditions ; for the lunds of u traitor are for- 

 feited, which makes allegiance one of the conditions 

 .if the tenure. 



Though there are countries in which the sovereign 

 is Uie sole landed proprietor, while in others he is 

 the heir of the landed proprietors, whose estates are 

 ; <( onlingly for life, yet most countries provide for 

 the transmission or descent of property in lands to 

 the heirs of the proprietor ; one distinction in the 

 different laws being, that some codes, or the provi- 

 -iuns relating to some particular kinds of estate, do 

 not permit tin- occupant or proprietor, for the time 

 l)eing, to alter the disposition made by the law. 

 Thus, before the conquest, lands were devisable in 

 England, and the proprietor could appoint by will 

 who should inherit them after his death ; but it was 

 one part of the policy of the feudal law, which was 

 introduced into England after the conquest, to take 

 away this power, and make lands descend only ac- 

 cording to a prescribed rule. But expedients have 

 been resorten to in England to break entails, and 

 give the present proprietor the power of disposing of 

 the lands during his lifetime. These expedients are 

 denominated nji/if and a common recovery. In the 

 case of entailed estates, the successive possessors do 

 not in fact, come in as inheritors to the preceding 

 occupiers, bat in virtue of the grant or original consti- 

 tution of the estate ; and these grants make the law 

 for these particular species of estates. In Great Bri. 

 tain and the continent of Europe, a very large part 

 of the soil is held by this species of title. 



The rule determining to whom an estate belongs, 

 on the decease of the proprietor, is that of consangui- 

 nity, or relationship by blood, though with some ex- 

 ceptions, as in the case of the portion or the use of a 

 portion of a man's property, given, by the laws of 

 England, to his widow. The rules of descent, desig- 

 nating what relations shall inherit, and their respec- 

 tive shares, will be determined by the genius and 

 policy of the government and institutions. Hence the 

 practice of entailments in the feudal system. And 

 wherever the government is founded in family privi- 

 leges, or very intimately connected with them, as is 

 the case in all governments where the hereditarily 

 aristocraticai part of the community have a great 

 preponderance, the sustaining of families will very 

 probably be a characteristic feature in the code of 

 laws. Thus, in England, all the lands of the father, 

 unless otherwise directed by will, go to the eldest 

 son ; and accordingly all the eldest sons, who re- 

 ceive any benefit from this law of descent, are natu- 

 rally the supporters of aristocraticai privileges. It 

 has accordingly been predicted, that the provision 

 introduced into the French laws, since the first revo- 

 lution, for equalizing inheritances, and thus dividing 

 estates, and forming a numerous body of small pro- 

 prietors, will have a rapid and powerful influence in 

 giving a popular character to the government and 

 institutions of the country. Some remnant of this 

 family policy, which prevails so generally in Europe 

 appears in the early laws of the American colonies 

 and provinces, in the preference given to eldest 

 sons, by assigning them a double portion of the in- 

 heritance. This distinction probably resulted very 

 much from the mere force of habit and custom. Il 

 is, however, not improbable that a reverence for the 

 Levitical code might have led some of the colonies to 

 this distinction in favour of the first-torn. This is 

 an argument made use of in the pragmatic sanction 

 published by the Spanish king, March 29, 1830, an- 



nulling the rule of Uie Salic law, which excludes fe- 

 males from the succession. In this decree, an argu- 

 ment is cited from the petition of the cortes of 1789, 

 n favour of the right of the .eldest, whicli is vindicat- 

 d, 1. from the order of nature ; 2. from the Old 

 Testament ; 3. from usage ; from all which Uie pe- 

 ition infers, that " the advantage of being the fii>t- 

 xrn is a particular mark of the love of God." J5ut 

 he distinction in favour of the eldest son, which ex- 

 sted in the colonies now constituting Uie I niic.l 

 States of America, has been abolished since the es- 

 .ablishment of independence. A compendious notice 

 of the various laws of the several United States on 

 the subject of the descent of real estate, will be found 

 n the first volume of the American Jurist and Law 

 Magazine. These laws are founded upon the princi- 

 ple of equal distribution, both of real and personal 

 states, among heirs of the nearest surviving degree, 

 and the representatives of deceased heirs ot the same 

 degree ; the representatives of a deceased heir who, 

 when alive, was of the same degree with the nearest 

 that survive, being entitled collectively to the share 

 which would liave come to such deceased heir, had 

 tie been living. This general principle is adopted 

 from the English statutes of the twenty-second and 

 twenty-third of Charles II., relating to the distribu- 

 tion of personal property ; for the English law makes 

 a great distinction as to the descent of real and per- 

 sonal estate, whereas, in the United States, they de- 

 scend and are distributed upon the same general 

 principle, though there are some differences in the 

 particular provisions. But this right of taking by re- 

 presentation is very variously modified in the differ 

 ent states. 



To make the subject better understood, a word 

 ought to be said on the subject of affinity, or degrees 

 of consanguinity, which is very lucidly treated in 

 Blackstone's Commentaries. Kindred in blood are 

 divided into three general classes, viz. 1. descendants ; 

 2. ancestors; 3. collateral relatives, that is, those 

 who have descended from the same common ances- 

 tor. The civil law computes the degrees by count 

 ing the generations up to the common ancestor, as 

 father, grandfather, great-grandfather ; or mother, 

 grandmother, great^grandmother ; and from him 01 

 her down to the collateral relative, as brother, cou 

 sin, &c., making the degree of relationship the sum 

 of these two series of generations. Every person has 

 two sets of ancestors, the paternal and maternal, and 

 therefore two sets of collateral relatives. There is 

 also a distinction of collateral kindred, into those of 

 the whole blood, and those of the half blood. Our 

 limits will not allow us to state the various regula- 

 tions in England as to the rules of inheritance among 

 kindred of these different kinds ; they are thus gene- 

 rally noticed, merely for the purpose of intimating 

 some general diversities in the rules of descent. Thus 

 in England and France, it is a rule, that real estate 

 cannot ascend, that is, cannot go to father, grandfa- 

 ther, &c., on the decease of the son, grandson, &c., 

 for which the quaint reason is given by Bracton, that 

 the weight of the inheritance makes it descend. Not- 

 withstanding this supposed downward tendency of 

 an inheritance hi land, it is, in defect of descendants, 

 made by the American laws to ascend, as well as 

 to pass off collaterally ; and this is the rule respect- 

 ing personal estate, both in England and the United 

 States. Another distinction is made by the English 

 laws, between collateral relatives of the whole and 

 half blood, as the latter cannot inherit real estate ; 

 but in respect to personal estate in England, and 

 both personal and real estate in the United States, no 

 distinction of this sort is made. Another diversity in 

 the laws of inheritance relates to the distinction of 

 male and female heirs. The Jewish law preferred 





