extra portion to the eldest, under certain circumstances, and no attention was paid to the daughters, according to the usual and barbarous policy of the Asiatics. The institutions of the Arabs also excluded females from the right of succession; but Mahomed abolished this law, and ordained that females should have a determined part of what their parents and kinsmen left, allowing a double portion to the males. The law of succession at Athens, resembled, in some respects, that of the Jews, but the male issue took equally, and were preferred to females; and if there were no sons, then the estate went to the husbands of the daughters. Nothing can be conceived more cruel, says Sir William Jones, than the state of vassalage in which women were kept by the polished Athenians. The husband who took the estate from the wife, might bequeath the wife herself, like part of his estate, to any man whom he chose for his successor. At Rome the law of succession underwent frequent vicissitudes. The law of the twelve tables admitted equally male and female children to the succession." The middle jurisprudence under the

C

a Gentoo Code, by Halhed, 24. Jones's Institutes of Hindu Law, ch. 9. art. 117.

b Jones's Com. on Isæus, p. 178.

c Jones's Prefatory Discourse to his translation of Isœus. 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.

d Comm. on the Pleadings of Isæus, p. 175, 176.

e 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 favour of the equal admission of the children, whether male or female.

a

prætors departed from this simplicity, and fettered the inheritance of females. The Voconian law declared women incapable of inheriting; but, in the time of Cicero, the prætors extended or restrained the Viconian law at pleasure. It was gradually relaxed under the Emperors Claudius, and Marcus Antoninus, until, at last, the Emperor Justinian, in his 118th novel, destroyed all preference among the males, and all distinction between the sexes in respect to the law of descent, and admitted males and females to an equality in the right of succession, and pre ferred lineal descendants to collateral relations. The regulations of the novel bore a striking, though not an entirely exact resemblance, to the first rule of inheritance prevailing in our American law.

The rule in this country, with the exceptions which have been stated, admits the lineal descendants to an equal portion of the inheritance, if they all stand in equal degree to the common ancestor. The law of Justinian adhered strictly to the doctrine of representation, and gave to the grandchildren, and other remoter descendants, though all the claimants were standing in equal degrees, the portion only that their parent would have taken, if living. This

Jones's Com. on Isaus. Pothier's Com. on the Fragments of the Twelve Tables, p. 102. prefixed to his Pandecta Justinianeœ, 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 hæredes; 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 hæredes, or the agnati, were male or female.

a Inst. lib. 3. tit. 4.

b 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.

was adhering, in all cases, to the doctrine of representation per stirpes and the states of North and South Carolina have followed, in this respect, the rule of the civil law. Thus, if A. dies leaving three grandchildren, two of them by B., a son, who is dead, and one of them by C., a daughter, who is dead, these three grandchildren, standing all in equal degree of consanguinity to the ancestor, would take equally under the above rule. But, by the novel of Justinian, they would take only their father's share, and, consequently, one grandchild would take half the estate, and the other two grandchildren the other half.

The Roman law had some singular provisions on the subject of descent, which have insinuated themselves into the law of successions of the continental nations of Europe. The term heir, in the civil law, applied equally to him who took by will, and by descent. It held, by a strange fiction in the law, that the heir was the same person as the ancestor, eadem persona cum defuncto. The estate, instead of being changed by the descent, was deemed to continue in the heir, who succeeded to the person, and place, and estate of the ancestor, and to all his rights and obligations. The heir is, therefore, under the civil law, said to represent the moral person of the intestate." His substitution to the ancestor was a kind of continual succession, similar to that which we apply to a corporation. The creditor could come upon the heir, not only to the extent of the assets, but to all the other property of the heir. To relieve himself from the oppression of the charge of responsibility for all the debts of the ancestor, whether he had or had not assets, the heir was not bound to assume the place of heir if he had not intermeddled with the estate, and the prætor allowed him a certain time to deliberate whether he would accept or renounce the inheritance.b

a Touillier, Droit Civil Français, tom. iv. 63.

There was no

b Inst. 2. 19. 2. Dig. 29. 2. 11. Butler's note, 77. to lib. 3. Co. Litt. sec. 5. n. 3.

fixed and invariable justice in the civil law, relative to the heir, until Justinian allowed him to protect himself from responsibility beyond the assets descended, by giving him the benefit of an inventory. As some compensation for these onerous duties thrown upon the heir, the ancestor could not disinherit him as to one fourth of the estate, and that part of it was called the falcidian portion.a

The French law of descent has followed the novel of Justinian, and the obligations, and the privileges of the heir, are the same as in the Roman law. The law of equal partition is of revolutionary growth, and it has been in operation in France near forty years. If the heir accepts the succession purely and simply, he assumes all the obligations of the ancestor, but if he accepts under the benefit of an inventory, he is chargeable only with the ancestral debts to the extent of the assets." The law of Holland

a 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.

b 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 Français, 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. Chabol, 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.

is equally borrowed from the civil law, in respect to the equality of descent among the descendants, and in respect to the character and duties, the privileges and obligations of the heir. The equal partition which prevailed in the Roman law among all the children, prevails also in the law of Scotland in the succession of moveables, but the feudal policy of primogeniture has been introduced as to land. The heir is the exclusive successor to the land, and the other nearest of kin the exclusive successors to the moveables. A great privilege is, however, conferred upon the heir at law of an intestate estate, of allowing him to throw the heritable estate into a common stock with the moverbles, and to demand, as one of the next of kin, his share, on an equal partition of the joint real and moveable es1 tate with his brothers and sisters. This is termed his right to collate the succession. In Spain, lands are equally distributed among the children of the deceased proprietor, excepting the cases in which they are fettered by an entail. As this is uniformly the case with the possessions of the grandees, and as the lands of the clergy are unalienable, the law of equal partition is comparatively of very little

consequence.

The preference of males to females, and the right of primogeniture among the males, 19 the established and an cient rule of descent in the English common law. The right of primogeniture was derived from the martial policy of the feudal system, after it had attained its solidity and maturity. It is supposed to have been unknown, or not in use, among the ancient Germans, or the Anglo-Saxons, prior to the Norman conquest. They admitted all the sons equally to the inheritance; but the weight of authority is,

a 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.

b Bell's Com. on the Laws of Scotland, vol. i. 100, 101.