ſentatives in equal degree became themſelves principals, and ſhared the inheritance per capita, that is, ſhare and ſhare alike; they being themſelves now the next in degree to the anceſtor, in their own right, and not by right of repreſentation[1]. So, if the next heirs of Titius be ſix nieces, three by one ſiſter, two by another, and one by a third; his inheritance by the Roman law was divided into ſix parts, and one given to each of the nieces: whereas the law of England in this caſe would ſtill divide it only into three parts, and diſtribute it per ſtirpes, thus; one third to the three children who repreſent one ſiſter, another third to the two who repreſent the ſecond, and the remaining third to the one child who is the ſole repreſentative of her mother.
This mode of repreſentation is a neceſſary conſequence of the double preference given by our law, firſt to the male iſſue, and next to the firſtborn among the males, to both which the Roman law is a ſtranger. For if all the children of three ſiſters were in England to claim per capita, in their own rights as next of kin to the anceſtor, without any reſpect to the ſtocks from whence they ſprung, and thoſe children were partly male and partly female; then the eldeſt male among them would exclude not only his own brethren and ſiſters, but all the iſſue of the other two daughters; or elſe the law in this inſtance muſt be inconſiſtent with itſelf, and depart from the preference which it conſtantly gives to the males, and the firſtborn, among perſons in equal degree. Whereas, by dividing the inheritance according to the roots or ſtirpes, the rule of deſcent is kept uniform and ſteady: the iſſue of the eldeſt ſon excludes all other pretenders, as the ſon himſelf (if living) would have done; but the iſſue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the ſame: and among theſe ſeveral iſſues, or repreſentatives of the reſpective roots, the ſame preference to males and the ſame right of primogeniture obtain, as would have obtained at the firſt among the roots themſelves, the ſons or daughters of the deceaſed. As if a man hath
- ↑ Nov. 118. c. 3. Inſt. 3. 1. 6.
