General Rule of Law in the Wizard World & Sirius Estate

[Steve]

No: HPFGUIDX 132388

--- In HPforGrownups at yahoogroups.com, "a_svirn" <a_svirn at y...> wrote:
>  
> > bboyminn:
> <snip> On another issue, since in OLD English Common Law, 
> > inheritance by the eldest son (eldest male relative) was the 
> > default, it represents a strong enough legal precendent that 
> > Sirius would have inherited the Black Family Estate even though 
> > he was disowned and a prisoner at the time. 
> 
> a_svirn:
> 
> Now, this is simply wrong. The conception of freedom of disposition 
> by will IS part of Common Law. Unlike in the Civil Law were there 
> are indeed some restrictions that often make it impossible to 
> disinherit say, the eldest son. 
> 

bboyminn:

There is no denying that Will and Testiments, as well as patents and
entails, come into play, and that there are rights applied to people
other than the Eldest Male; these all certainly have substantial
history backing them up, but...

Under English Common Law all property descended to the eldest
surviving son,...
http://it.uwp.edu/lansdowne/als.html

Primogeniture - English common law system of inheritance whereby the
eldest son received everything.
http://fp.sedona.net/genealogy/past12.htm

Primogeniture—i.e., the right of succession of the eldest son—became
characteristic of the common law. 
http://www.gongfa.com/common%20lawbuliedianbaike.htm

Under the Irish system of tanistic succession (*as opposed to the
English system of pure primogeniture*),
http://hometown.aol.com/dolmenx/Page4.html

In the absence of a will or specification of land distribution, the
rules of primogeniture were invoked, giving the oldest son the rights
to all real property. Erickson explains that "**primogeniture was
applied more harshly in England**" than elsewhere in Europe...
http://www.umd.umich.edu/casl/hum/eng/classes/434/geweb/PROPERTY.htm

Under Common Law, real property descended to the oldest male heir --
except in Kent, where partible inheritance among male issue prevailed,
with the proviso that the youngest son inherited the household
("gavelkind"). ***Nowhere did land descend to any female if there
lived a male heir, /however remote the relationship/.*** How is it
that primogeniture is common sense everywhere in England except Kent?
http://www.spunk.org/library/writers/black/sp001650.html

I never denied the concept of Wills and Testiments, nor am I implying
that Primogeniture is the absolute one and only method of resolving
estates. I'm saying that the concept of Primogeniture is especially
strong and dominate in England, and is threaded through a substantial
portion of English history and culture. A statement which does not
deny the rest of English history and culture.

> > bboyminn:
> 
> >> 
> > On the issue of Draco, Narcissa's status and position in the
> > family means nothing, since males are given preference, it's the 
> > fact that Draco is the only (known) living male who still has 
> > Black blood flowing in his veins that makes Draco the next likely 
> > heir. 
> 
> a_svirn:
> 
> Well, I don't know about the Wizarding Law, but under Common Law no, 
> it does not. Common Law concerns only descendents. As you yourself 
> say it only descends, never ascends.   
> 

bboyminn:

True; in my discussion, I acknowledge that we don't know the details
of Wizard's law, but I speculated that strong historical legal
traditions especially those that were ingrain into historical culture
would likely carry over into the wizard world. 

As far as Draco having any right of inheritance, I refer you to the
last item in my link list above. 

"Nowhere did land descend to any female if there lived a male heir,
/however remote the relationship/."

Of course, that statement isn't absolute, it has a context. Women did
have some rights clearly defined in law and tradition, but
Primogeniture was an dominant social concept especially in England.

This brings us to the general historical concept of marriage. In
marriage, husband and wife become one, they become one in the husband.
In that sense, Narcissa in becoming one with her husband, has joined
the House of Malfoy. Because the female Black cousins have married
into other families, that diminished their rights as Blacks;
diminishes but doesn't erase. While Narcissa is now a Malfoy, it is
none the less true that Draco is the only known living male with Black
blood flowing in his veins. 

Further, your point about 'decendance' doesn't apply because that line
of decendancy has ended; there are no more decendants. Therefore, the
estate can only go sideways, to the cousins or to the only existing
blood male. 

And again, I emphasize that without a Will, Harry has no rights at
all. The only way Harry can get anything is if Sirius left a Will, and
 given who Sirius was and the difficult circumstances surrounding him,
that Will is sure to be contested and resolved in court.


> > bboyminn:
> > 
> > Later Common Law and modern law do not necessarily follow this
> > principle unless there are specific entailments attached to a 
> > will, land, title, etc... 
> 
> a_svirn:
> 
> Again you got it wrong. Entailments are NOT part of Common Law. They 
> are Civil Law.

bboyminn:

My continual references to 'OLD', 'traditional', and 'historical' were
intended to separate the historical precedent I was referring too from
modern law and tradition. Further all my research indicates the
'Common Law' was /general/ law, not just criminal law. The references
to Common Law that I read seemed to deal with all aspects of life, not
just criminal aspects. The fact that I find references to inheritance
law in the articles on Common Law implies to me that Common Law also
deals with civil matters.

You can pick all the nits you want, but you will not be able to pick
away the fact that Primogeniture is a long and STRONG thread that is
woven into the history of England, and I speculate, therefore woven
into the history of wizards.

Snarky as I may be, that's were I firmly stand.

Steve/bboyminn