356

FEMALE REPRESENTATION.

to discover some principle of universal application, altogether independent of titles and estates, and which would not necessarily be affected by the destination of the one or the entail of the other, it is obvious that anomalies would frequently occur, whether it be determined to give the preference to the heir-male or to the female heir of line. Although we originally entertained a pretty strong opinion in favour of the heir-male, we must candidly acknowledge an increasing tendency to the opposite conclusion, as has already been indicated in the course of the preceding observations. The representation of an ancient family is regularly transmitted from father to son for many generations, but at length, through failure of direct male issue, a female becomes the heiress of line, while a remote collateral succeeds to the position of heir-male. Is it contrary to reason and common sense to prefer the former in the succession to the principal heraldic honours? If she remains unmarried, she of course retains her paternal surname and arms, and represents the family. If, however, she should become "vestita viro," the adoption by her husband of her surname and arms ought to be an indispensable condition of the union, in order that both may be preserved in the persons of their descendants. Such a provision, as we shall afterwards have occasion to observe, is frequently introduced into entails and other deeds of settlement; but it is necessary to advert to those cases where the possession of an estate is not dependent upon any special condition, or where the heiress of line inherits the armoriál ensigns of her family

PRACTICE NOT UNIFORM.

357

unaccompanied by any substantial rights. Should her husband be a younger son, or should he belong to a widespread clan bearing an inconveniently common name, even where there is no estate in question, he will probably not hesitate to abandon his paternal arms and surname. If, on the other hand, he should happen to represent some family of distinction, his own surname and arms may be both retained and transmitted to his posterity along with those of his wife, in accordance with common heraldic practice. No doubt it would be easy to adduce an instance much less favourable to the claim of the heir of line. Instead of the heir-male being a remote collateral, he might, for example, be the paternal uncle of the heir of line; but in looking for a rule of universal application, we ought, of course, not to be influenced by the peculiar circumstances of certain special cases. As already indicated, however, by one of the learned Lords in his opinion on the case of Cuninghame, the practice in the matter in question has been far from uniform; and accordingly we are very much disposed to go along with his relative suggestion that "the chief armorial dignities should follow the more substantial rights and dignities of the family;" and that when the latter are enjoyed by the female heir of line, such heir should also be regarded as fairly entitled to claim the principal heraldic honours.

CHAPTER VIII.

THE SUCCESSION OF STRANGER HEIRS TO THE ARMORIAL HONOURS OF A FAMILY.

VARIOUS rules are laid down by heraldic writers regarding the use and marshalling of " Arms of Adoption." According to Sir John Ferne, "if the heir, a stranger, be of more noble blood and family than the adopter, he is then not obliged by the testament to disuse his own name and arms, but may quarter the arms of the disponer, if he pleases, after his own." Again, "if the heir be of inferior blood and dignity, he is obliged to leave his own name altogether, as also his proper arms, except he marshal them after the adopter or disponer's arms."1 In such cases, however, it does not appear that the actual practice is affected by the comparative nobility of blood, but depends entirely upon the conditions which regulate the succession. Accordingly, we learn from Sir George Mackenzie that, in the opinion of the most learned antiquaries and lawyers, "when a person leaves his estate to another, upon condition that he should bear the disponer's name and arms, he who is to succeed is not by condition obliged to lay aside his own name and arms, but may quarter his own arms with those of the disponer,

1 Glory of Generositie, p. 302.

INJUNCTION IN ENTAILS.

359

except the disponer do, in the institution, prohibit the bearing of any arms beside his own. And the heir, in marshalling his own and the disponer's arms, may use what order he pleases, by giving the first quarter either to his own or to the disponer's, except the contrary be expressed in the institution."1

The injunction to use a particular surname and designation, with the relative arms, although not necessarily confined to them, is generally to be found in deeds of entail; and it is held to be an effectual condition, if duly fenced by irritant and resolutive clauses. "Sometimes the offspring of vanity," says Professor Bell, "it may be intended to prevent the accumulation of several entailed estates in one person, and the sinking of the name and family of the entailer." Thus, a case is reported to have occurred towards the end of the seventeenth century, in which an entail of certain lands was made by a father to his three daughters successivé (on the narrative that "his estate of Stevenson had been very ancient in that name, albeit not great"), upon condition that, if the eldest did not marry one who should assume the name (and arms) of the family, the next should succeed. The eldest daughter having failed to do so, it was found that the next might serve herself heiress of entail, even although there was no irritant clause.3

The heir is sometimes required to bear the surname

1 Science of Heraldry, chap. xxiv. 2 Principles of the Law of Scotland, 4th edition, § 1725.

3 Stevenson v. Stevenson, 26th July 1677; Mor. Dict. 15,475. See

a somewhat similar provision, of a still more stringent character, in the marriage-contract of Hugh, fifth Earl of Eglinton, dated 1604.-Fraser's Memorials of the Montgomeries, i. 55.

360

EXCLUSIVE CONDITION.

and arms of the entailer exclusive of any other, but in practice it occasionally happens that this condition is not very strictly fulfilled. There can be no doubt, however, that if fenced by irritant and resolutive clauses, such condition will be effectual; and failure to comply with the injunction would render the heir in possession liable to challenge by the next person in the order of succession. In one of the earliest recorded entails-Craufurd of Auchinames, 16951--we find an example of the exclusive condition in question. The deed provides " that the said haill airs male and of tailzie and provision respectivé above written, alsweel male as female, who shall succeed in the foresaid lands and estate, be vertue of the tailzie and substitution above mentioned, shall be holden, astricted, and oblidged, and be the acceptation hereof binds and obliges them, to bear, use, and carrie the name and arms of Craufurd of Auchinames, and no other name or arms, in all time coming. ... Q'in if they failzie, the partie failzieor or contravenor, whether male or female, shall forfault, amitt, and tyne their right and succession of ye foresaid lands and estate." If the heir in possession, under such a condition, should succeed to another estate similarly entailed, he would probably require to make his election," as he could not consistently take both of the estates. The possibility of such a contingency is distinctly contemplated in the Craighall entail, 1718,2 which contains the following provision :"Likeas it is hereby provided, that in case any of my heirs of tailzie shall happen to succeed to such ane other 1 Register of Entails, vol. i. f. 173.

2 Ibid. vol. v. f. 248.