DESCENT. 
Jail; dying feifed, unlefs fuch heirs happen to be daugh¬ 
ters, and there is afterwards a fon or another daughter, 
for which cafes the datute makes a fpecial provifion. 
Both thefe a« 5 ts are extended to Scotland by 1 6'Gco. III. 
c. 52. The principle, on which it has been adjudged 
that the children of an alien may be heirs as between 
them'felves, though not, to their father, feems to reach 
the cafe of children born after their father’s attainder. 
1 Inji. S. 
The fecond general rule or canon is, that the male idue 
fliall be admitted before the female. Thus fons fit all be 
admitted before daughters ; or, as our law expreffes it, 
the worthieft of blood fliall be preferred. Hal. H. C. L. 
235. As if one hath two fons and two daughters, and 
dies; fird the elded fon, and (in cafe of his death with¬ 
out iffue) then the younged fon fha'il be admitted to the 
fucceffion, in preference to both the daughters. The 
reafon of this, as well as of the preceding rule, mufl be 
deduced from feodal principles ; for, by the genuine and 
original policy of that conffitution, no female could ever 
fucceed to a proper feud, inafmuch as females were inca¬ 
pable of performing thofe military fervices, for the fake 
of which that fyflem was edablifhed. But our law does 
not extend to a total exclulion of females, as the falic law 
and others, where feuds were mod dridtly retained ; it 
only podpones them to males ; for, though daughters are 
excluded by fons, yet they lucceed before any collateral 
relations. 
The third rule, or canon of defeent, is, that where 
there are two or more males in equal degree, the elded 
fon diall inherit, but the females all together. As if a 
man hath two fons and two daughters, and dies, his elded 
fon fhall alone lucceed to his edate, in exclulion of the 
fccond fon and both the daughters; but, if both the 
fons die, without idue, before the father, the daughters 
fhall both inherit the edate, as coparceners. Litt. 5. This 
rule is alfo of feudal origin, and arole from thence on the 
edablidiment of that conditution in England by William 
the Conqueror. Yet, we find, that focage edates fre¬ 
quently delcended to all the fonsequally, fo lately as when 
Glanvil wrote, in the reign of Henry 11 . and it is mentioned 
in the Mirror, c. 1. as a part of our ancient conditution, 
that knights’ fees diould defeend to the elded fon, and 
focage fees diould be partible among male children. 
However, in Henry III.’s time, we find by Bratton, 1 . 2. 
c. 30. that focage lands, in imitation of lands in chivalry, 
had almod entirely fallen into the right of fucceflion by 
primogeniture, as the law now dands, except in Kent, 
where they gloried in the prefervation of their ancient 
gavel-kind tenure, of which a principal branch was the 
joint inheritance of all the fons; and, except in fome par¬ 
ticular manors and townfhips, where their local cudoms 
continued the defeent, fometimes to all, fometimes to the 
younged fon only, or in other more fingular methods of 
l'uccellion. 
As to the females, they are dill left as they were by 
the ancient law', for they were all equally incapable of 
performing any perfonal fervice ; and therefore, one main 
reafon for preferring the elded ceafing, fuch preference 
would have been injurious to the red : and the other 
principal purpofe, the prevention of the too minute fub- 
divifion of edates, was left to be confidered, and pro¬ 
vided for, by the lords, who had the difpofal of thefe 
female heireffes in marriage. However, the fucceffion by 
primogeniture, even amongfemales, took place as to the 
inheritance of the crown, wherein the neceifity of a foie 
and determinate fuccefiion is as great in the one lex as in 
the other, ilnjl.165. And the right of foie fuccefiion, 
though not of primogeniture, was alfo edablifhed with 
repett to female dignities and titles of honour: for, if a 
man holds an earldom to him and the heirs of his body, 
and dies, leaving oniy daughters, the elded fhall not of 
courfe be countefs, but the dignity is in iufpenfe or 
abeyance, till the king fhall declare his plealure ; for he, 
V01,. V. No. 311. 
being the fountain of honour, may confer it on which of 
them he pleafes. 
The fourth rule, or canon of defeent, is, that the li¬ 
neal defendants, in infinitum, of any perfon deceafed, 
fliall reprefent their ancedor ; that is, fliall dand in the 
fame place as the perfon himfelf would have done, had 
he been living. Thus the child, grandchild, or great 
grandchild, (either male or female,) of an elded fon, 
fucceeds before a younger fon, and fo in infinitum. And 
thefe reprefentatives fliall take neither more nor lefs, 
but jud fo much as their principals would have done. As, 
if there be two fiders, and one dies, leaving fix daugh¬ 
ters ; and then the father of the two fiders dies, without 
other iffue : thefe fix daughters fliall take among them 
exaftly as much as their mother would have done, had 
die been living ; that is, a moiety of the lands in co-par¬ 
cenary : fo that, upon partition made, if the land be di¬ 
vided into twelve parts, the furviving fider fliall have 
fix parts, and her fix nieces, one part each. This taking 
by reprefentation, is called fuccefiion inJlirpes, according 
to the roots ; fince all the branches inherit the fame fhare 
that their root, whom they reprefent, would have done. So 
if the next heirs of a man be fix nieces, three by one lif¬ 
ter, two by another, and one by a third ; his inheritance, by 
the laws of England, is divided only into three parts, and 
didributed per Jlirpes, thus: one third to the three elder 
children, who reprefent one fider, another third to the 
two who reprefent the fecond, and the remaining third 
to the one child who is the foie reprefentative of her 
mother. 
This mode of reprefentation is a neceffary confequence 
of the double preference given by our law, fird to the 
male iffue, and next to the fird born among the males. 
For if all the children of three fiders were to claim per 
capita, in their own right, as next of kin to the ancedor, 
without any refpeft to the docks from whence they 
fprung, and thofe children were partly male, and partly 
female, then the elded male among them would exclude 
not only his own brethren and lifters, but all the idue of 
the other two daughters, or elfe the law, in this indance, 
mud be inconfident with itfelf, and depart from the pre¬ 
ference which it condantly gives to the males, and the 
fird born, among perfons in equal degree. Whereas, 
by dividing the inheritance according to the roots, or 
Jlirpes, the rule of defeent is kept uniform and deady; 
the ifiue of the elded fon excludes all other pretenders, 
as the fon himfelf (if living) would have done ; but the 
ifiue of two daughters divide the inheritance between 
them, provided their mothers (if living) would have 
done the fame : and among thefe leveral iffues, or re¬ 
prefentatives of the refpeclive roots, the fame preference 
to males, and the fame right of primogeniture, obtain, 
as would have obtained at the fird among the roots them- 
felves, the fons or daughters of the deceafed. As, 1. If 
a man hath two fons, A. and B. and A. dies, leaving 
two fons, and then the grandfather dies ; now the eldeft 
fon of A. fhall fucceed to the whole of his grandfather’s 
edate : and if A. had left only two daughters, they 
fhould have fucceeded alfo to equal moieties of the 
whole, in exclufion of B. and his iffue. But, 2. If a man 
hath only three daughters, C. D. and E; and C. dies, 
leaving two fons; D. leaving two daughters; and E. 
leaving a daughter and a fon, who is younger than his 
fider: here, when the grandfather dies, the eldeft fon 
of C. fliall fucceed to one third, in exclufion of the 
younger ; and the two daughters of D. to another third 
in partnerfhip; and the Ion of E. to the remaining third, 
in exclufion of his elded fider. And the fame right of 
reprefentation, guided and redrained by the fame rules 
of defeent, prevails downwards in infinitum. How far the 
two preceding, and other cafes here laid down, may be 
explained by the following fcheme, the reader mud de¬ 
termine. It may perhaps afford a hint for ftatements in 
more complicated cafes of defeent; and for regular ta- 
