The British Commonwealth; or a Commentary on the Institutions and Principles of British Government, 169; Practical Treatise on the Right and Cost of Redeeming Property Mortgaged to Benefit Build- ing Societies, and Freehold Land Societies, 170; Statutes 1854 (17 & 18 Vict.),, containing all the Public General Acts of the Session, 170; Treatise on the Law of Wills, &c., 171; Medical Juris- prudence, 171; The New Practice of the High Court of Chancery, relative to the Conduct of Suits, 171; The New Common Law Procedure under the 1 THE LAW MAGAZINE; OR, QUARTERLY REVIEW OF JURISPRUDENCE. No. CVI. TH ART. I.-THE THEORY OF SUCCESSION HE various modes and proportions in which the Civil Law has been taken up into the English system; the opposition which it has had to overcome, and the changes which it has suffered during the contest, before its perfect reason could become palatable to English prejudices, would make a subject for an article as interesting as it is strange. Our present task, however, is not so extensive or so ambitious; but the perusal of a work (reviewed not long since in this Magazine) of a character striking, as well from the learning, which it exhibits, as the originality and independence of the views which it propounds,1 has put it into our head to make a few observations respecting the English theory of Succession ab intestato. There is a peculiarity in the English Law, connected with this form of Succession, which in no way belongs to the Civil Law, notwithstanding that we owe to the latter most of our rules of distribution of personal estate. The principle of English Law containing this peculiarity may be thus stated: all personal estate, on the death of its 1 Ecclesiastical Jurisdiction; a Sketch of its Origin and Early Progress, with particular reference to the Succession to Personal Property. By Edwin Edwards. 1853. VOL. LIII. NO. CVI. B devolves to and becomes vested in the ordinary of the' diocese or province in which it is situate, and has for a time no other legal owner. There is no direct and immediate succession to those persons who will ultimately participate in it as distributees. T T " to The legal estate continues with the ordinary until he has parted with it to his deputy or grantee, the administrator. In the homely language of the English Law, the goods of the intestate come to the ordinary to be disposed of,1 and so literally was this principle carried out in former times, before the Stamp Act of 1815, that when the ordinary had granted administration of an intestate's goods under a certain sum, which turned out afterwards to be too low an estimate, those goods which had been discovered in excess came to the ordinary to be disposed of also, and the administrator, whose deputed authority did not reach to these latter, was compelled to procure from the ordinary a further or more complete mandatum, which should comprehend the additional estate. The ordinary on these occasions revoked the administration which he had first granted, and substituted a new one, under an amount proportionably increased. In framing the formula, which we have defined, the English Law has rejected the Roman principle of succession to the intestate's next of kin; but it has substituted a form by which, while that succession has been intercepted, an apportionment of the estate, in great part identical with that of Rome, has been secured to the next of kin. Thus, though there is no succession, there is distribution, and the next of kin, though not heirs, are distributees. " The Roman succession, as we have said, was direct and immediate. In the early ages, and before the growth of the Prætor's equity, the hæredes sui,3 or unemancipated children of an intes 1 These are the words of the 13 Edw. 1. T 2 This practice was repealed by the Act of Parliament referred to in the text. 3 Instit. lib. 3, tit. 1, § 1. By the law of the Twelve Tables, "hæreditates ad suos hæredes pertinent." Dig. lib. 28, tit. 2, § 11: "In suis hæredibus evidentiùs apparet continuationem dominii eo rem perducere, ut nulla videatur hæreditas fuisse, quasi olim, hi domini essent, quia etiam vivo patre quodammodo domini existimantur." Dig. lib. 38, tit. 16, § 14: “In suis hæredibus aditio non est necessaria, quia statim ipso jure hæredes existunt.?? tate, and their descendants, succeeded at once, upon the death of their parent, to his property; and it would seem by the Lex Duodecim Tabularum, that they took possession of the deceased's estate of their own unborrowed authority. In after times the prætor, ex bono et æquo, extended this limited succession to emancipated children, and to the next of kin in a more remote degree;1 but in so doing he introduced a form petendæ possessionis, which stamped upon the applicant the right to take possession of the intestate's goods or inheritance. Apart from this ceremony, the heirs succeeded to the property on a similar principle to that by which a landed estate devolves to an English heir, and the death of the former possessor made his property their own, if they were willing to accept the inheritance. Compared with this simple and straightforward method, the English system is artificial and roundabout as employing a spiritual medium, where plain men might think that no mediator was required. - Bi واد (( 1 Before the Norman Conquest it is clear that the Roman principle of succession obtained in this country-it matters not whether by direct adoption or by the operation of independent reasoning. It therefore becomes an interesting question how the English principle originated; and here the work of Mr. Edwards becomes an invaluable guide in tracing the events which led to such result. From that work we learn that this system, like other great bases of English Law, owed its exciting cause to Norman oppression. The events were startling which led to the realization of the present idea, and we are indebted to Mr. Edwards for a deeply interesting narrative of them, vitalized by sound critique. to mens sal bicicd bis 1 Instit. lib. 3, tit. 1, 3, 10. rent quos con et ne facile in possessionem bonorum defuncti mit eo 2 Instit. lib. 3, s. 4, tit. 10: "Ne actiones creditorum differentur, sed habeterentur, sibi consulerent, ideo petendæ bonorum possessioni certum tempus præfinivit. Liberis itaque et parentibus tam naturalibus quam adoptivis impetenda bonorum possessione anni spatium, cæteris autem agnatis vel cognatis centum dierum dedit." * * "Bonorum possessionem ita, recte definiemus jus persequendi et retinendi patrimonii sive rei quæ cujusque cum moritur, fuit." The testatio amplectendæ hæreditatis was done before a magistrate, "apud quem de voluntate nostra publice testemur." * Amongst many other injustices with which the continent was rife, and from which England had been free, the Norman barons and adventurers imported into this country the very lucrative right of appropriating the effects of such of their tenants as died intestate. This right was founded upon the assumption that the intestacy being a felony (mirabile dictu), had made the property of all such persons bona vacantia. This convenient doctrine ousted the heirs of personalty from all right of succession. From that time the next of kin of an intestate ceased to be his heirs, and they have never been reinstated as such. So glaring an infraction of natural equity, and so direct a contradiction of the Imperial Law, roused the active sympathies of the church, with whose members it is only fair to state, that (at that period at least) both the former were equal favouritesWith the practical energy which so worthily distinguished the church in her mediæval condition, she agitated long and obstinately until the suppressed aditio hæreditatis was at length restored. But it was restored to be vested in her; each ordinarius loci became, and still is, the hæres of all intestates dying within his jurisdiction; and this, a little reflection will tell us, was well and wisely done. The restoration of that right to the heirs themselves would have been an ineffectual mockery; the weakness which provoked the first aggression would have been equally powerless against a second, and they must have again succumbed to the rapacity of their feudal superiors. But, as the strength of the church had been required to vindicate their interests, so would it equally be required to maintain them. She, therefore, obtained the right for herself, and exercised it by her own grantees, whom she nominated out of the body of heirs; and they now, by the borrowed authority of the church, confronted their avaricious masters with courage and security. We thus see that the ancient bishop, who was the workman in these events, was no deaf-and-dumb deity; but, on the contrary, was a real deus ex cathedrá, though not ex machiná, to the despairing hæres, The church never claimed this as a beneficial right; but as |