Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/99

 CH. IV.] granted. Female adultery was a sufficient cause; but male adultery not. In tenderness to the marriage state, a man, who struck his wife, or a woman her husband, was liable to a fine.

§ 73. In the beginning the county courts had jurisdiction of the testamentary matters; and real estate was at first treated as mere bona in the civil law. When a positive rule was made, all the estate was (apparently with some reference to the Mosaic Law) made subject to distribution; the widow had such part of the estate, as the court held just and equal; and the rest was divided among the children or other heirs, the eldest son having a double portion, and the daughters, where there were no sons, inheriting as coparceners, unless the court otherwise should determine. If the party died insolvent, his estate was distributed among all his creditors, there not being any preference of any debts by judgment or specialty.

The law of inheritance was thus, as we see, altered from that of England from the beginning; and yet, strangely enough, the General Court, in their answer in 1646, considered their canon of descent as parallel to the English law, and expounded it by the same terms, "the eldest son is preferred before the younger in the ancestor's inheritance," when in reality he had only a double portion, and the estate was partible among all the children. Their lands being by the charter held, as of the manor of East Greenwich, in live and common soccage, they attributed to it the gavelkind quality of