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
