Chapter 4: Fourth way of acquiring property: Succession

Succession is either:

In a rude period, a man rarely had the full property of his goods during his lifetime.

In all nations, the dead person's relatives succeeded long before testaments were invented.

The claim of the heir of blood is always thought the preferable one.

The succession in the earliest times were more founded on the connection of goods than of persons 4

Among the Romans, the wife was considered as a daughter.

Among the Romans, a son could not succeed to the mother when she died because she was considered as a daughter of the family.

But in times of more refinement under the emperors, the mother could succeed to the son, and the son to the mother1

Three classes of men may succeed:

  • Those in an upper line may succeed to those in a lower.
  • Those in a lower to those in an upper line, or those of the same line to one another.
  • Collateral succession at first extended only to the nearest in blood3
  • When a brother died and another succeeded, it was in consequence of their connection with the father, who is the common stock.
  • But the right of descendants is stronger than either of these, because the son’s claim on the father is stronger than that of the father on the son.
  • The principles of succession in moveables are founded on the community of goods which took place anciently in families.
  • The different state of families in our country makes a big difference between our6 law and Roman law.

    When the husband dies, the goods are supposed to be divided into three equal parts.

    A forisfamiliated son is not in the same condition with an emancipated son among the Romans.

  • Grandchildren do not succeed in place of their deceased father, as among the Romans.
  • However, the English law admits of representation.
  • Indivisible Inheritance

    Indivisible inheritance was introduced by the feudal law.

    The chieftains were the sole administrators of justice in their own territories, through their influence.

  • As late as 1745, this power remained in the Highlands of Scotland
  • These lords had no other way to dispose of their lands.
  • The clergy's benefices were on this foundation.

  • As benefices were for life, the property of them naturally came to be extended to the son of the deceased tenant.
  • When any chieftain died and left his son a minor, the king appointed a leader to the vassals during the minority, and appropriated the profits and emoluments arising from the lands to his own use.
  • Allodial estates were free from all such services.
  • It must have been a very difficult to secure property, especially if it was small, in those early times.

  • The consequences of dividing the kingdom of France were sufficiently experienced.
  • However, on account of the opposition from the rest of the sons, it was long before the right of primogeniture or the indivisibility of estates could be introduced.
  • But as the circumstances necessarily required it, estates were at last made indivisible.
  • This legal preference must be given for some quality that is altogether indisputable.
  • In the beginnings of society age itself is very much respected.
  • To this day, among the Tartars, the king is not succeeded by his son, but by that one of the royal family who is oldest.
  • When primogeniture was introduced, it would naturally occasion succession by representation because:

  • Bruce and Balliol disputed on this account.
  • Initially, the difficulty of introducing this created a new species of succession.
  • This had one inconvenience:
  • The brothers naturally thought that they were nearer to the father than any grandson.
  • This last circumstance afterwards gave rise to lineal succession.
  • When this difficulty is gotten over, there is little dispute about collateral succession.
  • In feudal lordships, women could not succeed, as she was incapable of military services.
  • There are two kinds of fiefs:
    1. Masculine
      • France is an example of this.
        • No woman can succeed.
    2. Feminine
      • England is an example of this.
  • There are some niceties whimsical enough in the Scotch law with regard to succession of collaterals.

  • By the English law, the old brother excludes the whole blood from one half of the estate by conquest, in other countries the preference is not so great3
  • The right of primogeniture hinders agriculture1.

  • Primogeniture is also hurtful to the family.
  • However, it has one advantage in succession to a monarchy:
  • There are some other kinds of succession in other countries.


    Next: Chapter 4b