We are to reflect, in the firſt place, that all rules of ſucceſſion to eſtates are creatures of the civil polity, and juris poſitivi merely. The right of property, which is gained by occupancy, extends naturally no farther than the life of the preſent poſſeſſor; after which the land by the law of nature would again become common, and liable to be ſeiſed by the next occupant: but ſociety, to prevent the miſchiefs that might enſue from a doctrine ſo productive of contention, has eſtabliſhed conveyances, wills, and ſucceſſions; whereby the property originally gained by poſſeſſion is continued, and tranſmitted from one man to another, according to the rules which each ſtate has reſpectively thought proper to preſcribe. There is certainly therefore no injuſtice done to individuals, whatever be the path of deſcent marked out by the municipal law.
If we next conſider the time and occaſion of introducing this rule into our law, we ſhall find it to have been grounded upon very ſubſtantial reaſons. I think there is no doubt to be made, but that it was introduced at the ſame time with, and in conſequence of, the feodal tenures. For it was an expreſs rule of the feodal law[1], that ſucceſſionis feudi talis eſt natura, quod aſcendentes non ſuccedunt; and therefore the ſame maxim obtains alſo in the French law to this day[2]. Our Henry the firſt indeed, among other reſtorations of the old Saxon laws, reſtored the right of ſucceſſion in the aſcending line[3]: but this ſoon fell again into diſuſe; for ſo early as Glanvil's time, who wrote under Henry the ſecond, we find it laid down as eſtabliſhed law[4], that haereditas nunquam aſcendit; which has remained an invariable maxim ever ſince. Theſe circumſtances evidently ſhew this rule to be of feodal original; and, taken in that light, there are ſome arguments in it's favour, beſides thoſe which are drawn merely from the reaſon of the thing. For if the feud, of which the ſon died
