But this, as to such collaterals as were not lineal heirs of the first donee, was effected through the medium of a fiction completely and peculiarly feudal. When a person took by descent, his brothers, though in the collateral line of relationship to him, were in the direct course of lineal descent from the ancestor. In proportion as the descent from the ancestor was removed, the number of persons thus claiming collaterally from the last, and lineally from the first, taker, was proportionably multiplied. In the course of time, the first taking ancestor was forgot, and then, it was presumed, that all who could claim collaterally from the person last in the seisin of the fee, were of the blood of the original donee. On this ground, in latter times, when, upon the grant of a fief, it was intended, that, on failure of lineal heirs, the fief should diverge to the collateral line, it was granted, to be held with the incidents and properties, with which the donee would have had it, had it vested in him by descent, in a line of transmission from a distant and forgotten ancestor: and, among them, that of transmissibility to collaterals. - This general heirship of fiefs, in the male line, was introduced, in France, soon after the succession of the Capetian line, and in Italy and Germany, during the period, in which the empire was possessed by the house of Franconia, and the earlier emperors of the house of Suabia. A similar progress in the descent of lands, may be traced in the jurisprudence of our own country. The policy of most feudal countries, has shown some preference of the whole blood to the half blood, and a great unwillingness to admit females into the fief. In England, there has been a more rigid exclusion of half blood, and a less rigid exclusion of the female line, from the feudal succession, than is to be found in the law of almost any other country, governed by the feudal polity. To us also, it seems to be peculiar, to exclude the parent and all others in the ascending line, from the immediate succession to the fief. But, the most striking point of difference between the Roman and the feudal, course of succession, is, the prerogative allowed by the latter to primogeniture. To the eldest son, the Roman law showed no preference; wherever the feudal polity has been established, he has been allowed several important prerogatives. In England primogeniture obtained in military fiefs, as early as the reign of William the Conqueror, but with this qualification, that, where the father had several fiefs, the primum patris feudum, only belonged to the eldest son. In the reign of Henry the 2d, primogeniture prevailed absolutely in military fiefs, and in the reign of Henry the 3d, or soon afterwards, the same absolute right to the succession by primogeniture, obtained in socage lands. Thus, in all countries, where the feud has been established, a marked distinction in the order of succession, has, in direct opposition to every principle and practice of the Roman law, been shown to primogeniture. Usu, says Zoesius ad omnia feuda serpsit, ut vel ex asse majori cedant, vel major proecipuum aliquod in iis habeant. But, it is observable, that a total exclusion of the younger sons, is, perhaps, peculiar to England. In other countries, some portion of the fief, or some charge upon it, is in many cases, at least, secured by law, to the younger sons. In some places, this is secured to them for their lives only; in others, their descendants succeed to it. Still, the eldest son, in the eye of the law, represents the fee. In Spain, the patrimony is divided into fifteen shares. Three shares, that is, a fifth of the whole, are first subtracted; afterwards, four shares, or a third of the remaining twelve shares. This fifth and third, as they are called, are termed a majoratus, and are at the free disposition of the parents; the remaining shares are appropriated to the children. The majoratus, may be, and generally is, entailed upon the eldest son of the family, but a greater portion of the patrimony cannot be settled on him, without leave from the crown. The singular nature of this provision, has occasioned a particular mention of it by most feudal writers; it was therefore thought proper to notice it, in this place. Any further mention of the particular customs respecting primogeniture, appears unnecessary.

VI. 5. Another striking point of difference between the Roman and the feudal polity, with respect to real property, is the contrast between THE ABSOLUTE DOMINION OVER THE INHERITANCE, with which the Roman law invested the heir, and the numerous and intricate fetters, with which the feudal jurisprudence (of England particularly) has permitted it to be bound. The Roman law, (it has been already stated at some length,) permitted a person to appoint his heir, and invested him, on the testator's decease, with all his rights and obligations. Before Justinian introduced the benefit of the inventory, as the heir, by accepting the inheritance, subjected himself to all the testator's debts, the office was sometimes refused, as dangerous. This gave rise to the vulgar, the pupillar, and the quasi-pupillar substitution. The vulgar substitution was, where the testator appointed one to be his heir, and, if he refused, substituted another in his place. These conditional substitutions might be extended to any number of heirs. When they were made, the heirs instituted under them, were called, in succession, to accept or refuse, the inheritance. When once an heir accepted the inheritance, it vested in him, absolutely, and all the subsequent substitutions then entirely failed. The pupillar substitution was, where a father substituted an heir to his children, under his power of disposing of his own estate and theirs, in case the child refused to accept the inheritance, or died before the age of puberty. The quasi-pupillar substitution was, where the children past puberty, being unable, from some infirmity of mind or body, to make a testament for themselves, the father, in imitation of the pupillar substitution made a testament for them. In all these cases, it is evident the dominion over, and substance of, the inheritance were preserved entire and unqualified. In two instances, and in these only, the Roman law admitted an exception to their integrity. The first was, in the case of an usufruct; where a right was given to one person, to use and enjoy the profits of a thing belonging to another. The second was, the case of a fidei commissum, when the inheritance was disposed, in whole, or in part, to an heir, in trust, that he should dispose of it to another. But neither of these devises suspended the absolute vesting of the inheritance. An usufruct could not be extended beyond the life of the usufructuary. The fidei commissarius (the person beneficially interested in the inheritance), could compel from the hoeres fiduciarius (the trustee), a transfer of the inheritance immediately on the accruer of his right.