CHAPTER VII. THE ABSTRACT QUESTION OF HERALDIC SUCCESSION- THE abstract question of heraldic succession, as involved in a competition between the heir-male and the heir of line through a female, is attended with very considerable difficulty, which will probably not be cleared away until a pure and unqualified case presents itself for the decision of the Supreme Court. Although, no doubt, the subject is incidentally noticed by the principal writers on Heraldry, it is hardly possible to deduce any distinct and positive conclusions from their scattered and imperfect statements; which in some cases are so unintelligible and contradictory, that, instead of removing, they rather tend to increase the perplexities of the most patient inquirer. If, again, we turn to the practice of the Lyon Office, it will be found, from the most cursory examination, that in many instances armorial matriculations have long been made independently of any very strict or definite principles. We learn from Mr. Tait's Deposition,' that since his appointment to the office of Lyon-Depute some instances have occurred where applications have been made 1 See Chapter IV. p. 63. 322 MR. TAIT'S DEPOSITION. by persons stating themselves to be heirs-male of families, the senior branches of which had become extinct in the male line, and which claims have been decided on by the deponent; and one case (he adds) is now depending where competition has occurred respecting the right of bearing the arms of a particular family. Being interrogated, whether any record of the proceedings in such cases is made and preserved in the Office; (he) depones that there is not, so far as he knows; but when a case is disposed of by the arms being granted, the grant is entered in the register of arms, and the relationship of the party is generally entered shortly in the grant. Being (further) interrogated, according to what rules or ordinances cases respecting the grant of arms or competitions of claims between different parties are determined, and whether there is any record of proceedings or decisions in such matters; (he) depones, that he is not aware of any record of precedents in cases of this nature; that he has not, since his appointment, had occasion to decide in any formal or regular question of competition, but that the rules according to which he would form his opinion, and which he has observed in so far as he has been called upon to decide on claims presented, are those to be found in the Acts of the Scottish Parliament, 1592, cap. 125, and 1672, cap. 21, and the rules laid down by Sir George Mackenzie, Nisbet, and other writers on Heraldry." It unfortunately happens, however, as already stated, that it is by no means easy to extract any definite or inflexible rules from the works of our heraldic authorities respecting the subject under consideration, to FEUDAL PREFERENCE OF MALES. 323 which their occasional allusions are very far from clear and satisfactory; and we also look in vain to the pages of Stair and Erskine, or any other of our institutional writers, for the slightest indication of a distinct opinion on the mysterious question. It is universally acknowedged that the preference of males to females in heritable succession arose entirely from the peculiar spirit of the Feudal law, which differed in this and in other important respects from several of the earlier codes, more particularly those of Rome. Under the Feudal system, the property, or rather the possession of the soil, was bestowed for personal services in war, which women were incapable of performing, and accordingly, for a very long period, they were entirely excluded from succession. But this rigid principle gradually gave way under the general softening and improvement in manners, and very considerable changes were eventually effected, not only in the nature of military fiefs, but also by the introduction of other kinds of holdings; in consequence of which the "rights of women" ceased to be altogether overlooked long before the days of Mary Woolstancroft. The remains of their former condition, however, are still very apparent in the case of heritable succession, which does not open to them until after the failure of all the males in the same degree; while the privilege of primogeniture is only recognised among them to a limited extent. In consequence of these peculiarities, and in utter disregard of the various important changes which have occurred in our social system, many persons are too apt to be influenced by unfounded pre 324 PRIMITIVE RULES OF SUCCESSION. judices, and to adopt some of those notions and opinions. which were most legitimately entertained in an earlier age. Without venturing to call in question the universal maxim of lawyers, which pronounces the lord of the soil to be the "dignior persona" in comparison with his gentler helpmate, it may probably be asserted, without much fear of contradiction, that there is less room than formerly for the civil distinction of sexes in these enlightened times, which are so essentially different in their characteristics from the bygone days of feudalism. Fully admitting the propriety of preferring the son to the daughter in the representation of the family, and in the succession to the heraldic honours, as well as the more substantial rights, it is assuredly a very different proposition to maintain that, where there happens to be no direct male issue, a daughter and her descendants are to be unceremoniously postponed to a nephew or an uncle, and indeed to any male collateral, however remote. As we have already hinted, some ardent supporters of the preferable right of the heir-male appear to forget that the rules of succession observed under their favourite Feudal system, were for ages preceded by other rules of a very different character. If they will take the trouble to turn to the 27th chapter of the Book of Numbers, they will find that the general question of male and female succession was raised upwards of three thousand years ago, and decided, moreover, in favour of the heir of line! On that occasion, the parties were the daughters of Zelophehad, and the judge no other than Moses, the man who "learned in all the wisdom of the Egyptians." was CRAIG'S "JUS FEUDALE.' 325 "Our father," said the former, "died in the wilderness, and had no sons. Why should the name of our father be done away from among his family, because he hath no son? Give unto us therefore a possession among the brethren of our father." With reverence be it stated, the plea was fully sustained to the effect that, failing a man's son, "his inheritance shall pass unto his daughter;" failing a daughter, it shall go to his brethren, whom failing, to his father's brethren; and if his father should have no brethren, the inheritance shall fall to "his kinsman that is next to him of his family." The following passages relative to the subject in question occur in Sir Thomas Craig's celebrated treatise on the Feudal Law (Lib. 11. Dieg. 13, 14): "Naturalis enim equitas liberos ad successiones parentum vocat, licet aliquas restrictiones sive limitationes in jure Feudali et nostris moribus patiatur." "Haec ad verbum, in quo hoc notandum, ordinem successionis a Deo institutum, æquumque pronunciari, ut masculi in primo gradu fœminis præferantur, sic ut deficiente linea recta masculina, et non alias, fœminæ succederent, primoque gradui collateralium præponantur; collaterales vero, ut quisque gradu propior, sic ad successionem vocetur." "Uxorius tamen Imperator vitium antiquitatis corrigens, eos naturæ accusatores vocat, qui aliam conditionem succedendi in maribus, aliam in foeminis facerent, quasi natura peccasset, quod non omnes masculos generaverit, ut, unde postea generarentur, non esset." Sir Thomas then alludes to the demands of another |