The triple division has no necessary historical connection with the equal division among the children, irrespective of sex. The two things must therefore be considered separately. As regards the triple division, it is first of all interesting that the old lawyers could never agree whether the writ corresponding to it, de rationabili parte bonorum, lay at common law or by custom.1 In the next place it is certain that the limitation of the right to dispose of personalty by will is not Saxon law. In the Saxon period this right was unlimited. It is not impossible that in some parts of England, even in Saxon times, customs may have arisen by which movables were always willed in certain proportions to certain classes of persons. In this connection Somner quotes an interesting passage from Beda, Ecc. Hist. lib. 5, c. 12: "Omnem quam possederat substantiam in tres divisit portiones, e quibus unam conjugi, alteram filiis tradidit, tertiam sibi ipse retentans statim pauperibus distribuit." The Saxon version has in place of the words sibi ipse retentans, the words de him gelamp, "which belonged to him." Somner remarks on this passage: "The third part is there said to belong to himself, plainly insinuating that the other two as rightly apperteined to his wife and children, each of them a third. But withall observe that this is the act of an housekeeper in the Province or Region (as there called) of Northumberland, and such a testimony indeed it is as makes much (I confesse) for the antiquity of that custom [of a tripartite division] yet surviving and currant in those northern quarters of the Kingdome." If such customs existed in Saxon times, they might, in the end, have acquired the force of law, and have influenced the laws of intestate succession. But, if so, this must have come after the conquest. In London, at the time of Bracton, the right to dispose of personalty by will was unlimited, but later the custom of a tripartite division was introduced. The limitation of the right to dispose of personalty by will may then be rejected as not being AngloSaxon law. Of the chattels not granted by will, the wife

...

receives half, and the children half. The share of the wife corresponds to the half of the realty granted her as dower, and is undoubtedly derived from the legal dower of AngloSaxon law, which included half of the husband's property, real and personal. The remaining third of the chattels is the only portion which can properly be said to be inherited, and the children are the only persons who are legally heirs. This third part of the chattels is shared by the children irrespective of sex. This part of the passage suggests the inquiry whether it is not derived from some earlier law, by which the personalty was inherited by all the children, without precedence of sons before daughters, and, if it is derived from such a law, whether the law is to be found among the Saxons in England. Is it necessary to modify the previous statement of the order of succession, and to lay down different rules of inheritance for personalty and realty ?

In the laws of the continental Saxons, certain classes of personalty were subject to peculiar rules of succession. Things specially adapted to the use of the man, the best weapons, the best war-horse, with his equipments, etc., were set apart from the rest of the inheritance, and were called collectively the hergewäte. These fell to the nearest male of the paternal kindred. Things specially adapted to the use of women were called gerade, and were inherited by the nearest female of the maternal kin. No trace of the gerade is found in Anglo-Saxon law. The heriots paid by the heir. to the lord may have had, probably did have, their origin in the hergewäte, but of the hergewäte in its original form, as inherited by the nearest male of the male stem, there is no trace. Apart from these special rules, applying only to a small number of objects of little value, the law of the continental Saxons made no distinction between realty and personalty. The erve of the Saxon landrecht included both. It was only in the lehnrecht that the two classes of property were distinguished. At the period of the folk laws a distinction between movables and immovables in the laws of

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inheritance is found only in the Thuringian and in the Salic law. In the Thuringian law, land is inherited only by males of the male stem, while personalty falls first to the sons, then to the daughters. In the Salic law, sons precede daughters in succession to land; only women are excluded from succession to the terra Salica, but daughters share with sons in movables.1 This custom of the Salian Franks presents the only analogy in continental law to the Kentish custom of an equal division of chattels between the children, without regard to sex; and even here this seems to have been an innovation. It is impossible that it should have passed into Anglo-Saxon England from the Franks, while it might easily have come through Normandy into England, after the conquest. If then the Anglo-Saxon law of inheritance made a distinction between movables and immovables, the distinction must have originated with them, and as an innovation of the first importance would appear prominently in their laws; but in fact there is not the slightest evidence of such a distinction, and the silence of the laws in this respect is conclusive proof that the distinction did not exist.2

The preceding inquiry has been directed only to the establishment of the order of succession among the maegth. What classes of property were heritable, and what not, is a different question, the investigation of which does not fall within the purpose of this essay. Undoubtedly, all personalty which was not paid to the lord as heriot, or given to the wife as dower, if not disposed of by will, was inherited by the maegth. The relation of land to the laws of inheritance is discussed in another part of this volume.

Although kinship was traced equally through females and through males, a marked distinction was made between the paternal and the maternal kin, and the rights and obligations of the former were much more extensive than those of

1 L. Sal. 59; Schroeder, I. p. 113.

2 No importance can be given to the use of the word yrse (literally pecus, pecunia) to designate inheritance. It is so used because originally only personalty was heritable at all. In the Anglo-Saxon period, it applies as well to land as to personalty, as in the expressions yrfe-boc, a charter, yrfe-land, hereditary land, &c. Cf. Grimm, Rechtsalt. p. 467.

the latter. Certain rights, as the guardianship of orphans,1 and the right to receive the healsfang, belonged only to the paternal kin. In the blood-feud, the rights and obligations of the paternal kin stood to those of the maternal kin in the ratio of two to one. Two-thirds of the wergeld were paid by the faedren maegth, one-third by the mêdren maegth. When an oath was to be taken by the kindred, two-thirds of the compurgators were taken from the paternal kin, one-third from the maternal kin.4 It follows, as a matter of course, that two-thirds of the wergeld were paid to the paternal kin, one-third to the maternal kin. Phillips infers from this that the male stem had a proportionate advantage in inheritance, but there is no evidence to support this view, I and it is opposed to the whole spirit of the Saxon family

law.

It does not appear from the sources whether the maegth was limited to any fixed number of degrees of kinship. Some limitation of kinship, within a fixed degree, is found in most of the German tribes, and Von Sydow, on the authority of a passage in the laws of Henry I. (70, § 20), assumes that the Anglo-Saxon maegth was, in like way, limited to five degrees of kinship. The worthlessness of this passage as evidence of Saxon law has already been alluded to. No argument can be derived from the prohibition of marriage. within the fourth degree, as this is purely church law, and we have direct evidence that the Saxons, in early times, allowed marriage even between cousins. As each grade of side-relationship was assigned a place on some joint of the arm or hand, the means of computation must have failed with

the seventh degree, and even before this the proof of common blood must, in most cases, have become practically impossible. The question is important chiefly in its bearing on the laws of inheritance. The estates of those dying without heirs fell to the king, or to the community, as the case might be. Was there any limit beyond which common blood ceased to

give title to the inheritance? In the absence of any evi- //

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dence, it may fairly be inferred that the limitation did not exist, and that, in any event, if common blood could have been proved in any degree, it would have given a title to the inheritance, if no nearer heirs existed.1

In the Anglo-Saxon, as in all early societies of German origin, the degree of security and of distinction which each member of the community enjoyed depended chiefly upon the number, wealth, and power of his kindred, and there was little temptation to any one to separate from the family. But if the tie of kinship created rights, it involved also obligations which might easily become burdensome. As civilization advanced, and individual members of the maegth became wealthy and powerful, or attained a higher position in society, a tendency appeared on the part of the rich to discard their poorer kin. Thus a freeman need not pay the wergeld with a slave, or with one who, for any cause, forfeited his freedom. In the latter case, the kindred lost the right to share in the wergeld if they did not free their kinsman within a year. Moreover, every tendency to weaken the tie of kinship was encouraged by the state, which had much to fear from the independence of powerful families, and whose peace was endangered by the continuance of the old system of private vengeance. King Edmund tried to break down the old system entirely, by permitting the maegth to abandon their kinsman, guilty of homicide, and to force him

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