The History of the Common Law of England XI. byHale, Matthew
Touching the Course of Descents in
England
Among the many Preferences that the Laws of England have above others, I
shall single out Two particular Titles which are of Common Use, wherein their
Preference is very visible, and the due Consideration of their Excellence
therein, may give us a handsome Indication or Specimen of their Excellencies
above other Laws in other Parts or Titles of the same also.
Those Titles, or Capitula Legum, which I shall single out for this
Purpose, are these Two, viz. 1st, The hereditary Transmission of Lands from
Ancestor to Heir, and the Certainty thereof: and 2dly, The Manner of Trial by
Jury, which, as it stands at this Day settled in England, together with the
Circumstances and Appendixes thereof, is certainly the best Manner of Trial in
the World; and I shall herein give an Account of the successive Progress of
those Capitula Legis, and what Growth they have had in Succession of Time till
they arriv'd so that State and Perfection which they have now obtain'd.
First, Then, touching Descents and hereditary Transmissions: It seems by
the Laws of the Greeks and Romans, that the same Rule was held both in Relation
to Lands and Goods, where they were not otherwise disposed of by the Ancestor,
which the Romans therefore called Successio ab intestato; but the Customs of
particular Countries, and especially here in England, do put a great
Difference, and direct a several Method in the Transmission of Goods or
Chattels, and that of the Inheritances of Lands.
Now as to hereditary Transmissions or Successions, commonly called with
us Descents, I shall hold this Order in my Discourse, viz.
First, I shall give some short Account of the ancient Laws both of the
Jews, the Greeks, and the Romans, touching this Matter.
Secondly, I shall observe some Things wherein it may appear, how the
particular Customs or Municipal Laws of other Countries varied from those Laws,
and the Laws here formerly used.
Thirdly, I shall give some Account of the Rules and Laws of Descents or
hereditary Transmissions as they formerly stood, and as at this Day they stand
in England, with the successive Alterations, that Process of Time, and the
Wisdom of our Ancestors, and certain Customs grown up, tacitly, gradually, and
successively have made therein.
And First, touching the Laws of Succession, as well of Descent of
Inheritances of Lands, as also of Goods and Chattels, which among the Jews was
the same in both.
Mr Selden, in his Book De Successionibus apud Hebraeos, has given us an
excellent Account, as well out of the Holy Text as out of the Comments of the
Rabins, or Jewish Lawyers, touching the same, which you may see at large in the
5th, 6th, 7th, 12th and 13th Chapters of that Book; and which, for so much
thereof as concerns my present Purpose, I shall briefly comprise under the
Eight following Heads, viz.
First, That in the Descending Line, the Descent or Succession was to all
the Sons, only the eldest Son had a double Portion to any one of the rest, viz.
If there were three Sons, the Estate was to be divided into four Parts, of
which the eldest was to have two Fourth Parts, and the other two Sons were to
have one Fourth Part each.
Secondly, If the Son died in his Father's Life-time, then the Grandson,
and so in lnfinitum, succeeded in the Portion of his Father, as if his Father
had been in Possession of it, according to the Jus Representationis now in Use
here.
Thirdly, The Daughter did not succeed in the Inheritance of the Father
as long as there were Sons, or any Descendants from Sons in Being; but if any
of the Sons died in the Life-time of his Father having Daughters, but without
Sons, the Daughters succeeded in his Part as if he himself had been
Possessed.
Fourthly, And in Case the Father left only Daughters and no Sons, the
Daughters equally succeeded to their Father as in Copartnership, without any
Prelation or Preference of the eldest Daughter to two Parts, or a double
Portion.
Fifthly, But if the son had purchased an Inheritance and died without
Issue, leaving a Father and Brothers, the Inheritance of such Son so dying did
not descend to the Brothers, (unless in Case of the next Brother's taking to
Wife the Deceased's Widow to raise up Children to his deceased Brother) but in
such Case the Father inherited to such Son entirely.
Sixthly, But if the Father in that Case was dead, then it came to the
Brothers, as it were as Heirs to the Father, in the same Manner as if the
Father had been actually Possess'd thereof; and therefore the Father's other
Sons and their Descendants in Infinitum succeeded; but yet especially, and
without any double Portion to the eldest, because tho' in Truth the Brothers
succeeded as it were in Right of Representation from the Father, yet if the
Father died before the Son, the Descent was de Facto immediately from the
Brother deceased to the other Brothers, in which Case their Law gave not a
double Portion; and in Case the Father had no Sons or Descendants from them,
then it descended to all the Sisters.
Seventhly, If the Son died without Issue, and his Father or any
Descendants from him were extant, it went not to the Grandfather or his other
Descendants; but if the Father was dead without Issue, then it descended to the
Grandfather, and if he were dead, then it went to his Sons and their
Descendants, and for want of them, then to his Daughters or their Descendants,
as if the Grandfather himself had been actually possess'd and had died, and so
miutatis mutandis to the Proavus, Abavus, Atavus, &c. and their
Descendants.
Eighthly, But the Inheritance of the Son never resorted to the Mother,
or to any of her Ancestors, but both she and they were totally excluded from
the Succession.
The double Portion therefore that was Jus Primogeniturae, never took
Place but in that Person that was the Primogenitus, of him from whom the
inheritance immediately descended, or him that represented him; as if A. had
two Sons, B. and C. and B. the eldest had two Sons, D. and E. and then B. died,
whereas B. should have had a double Portion, viz. two Thirds in Case he had
survived his Father; but now this double Portion shall be equally divided
between D. and E. and D. shall not have two Thirds of the two Thirds that
descended from A. to them. Vide Selden, ut supra.
Thus much of the Laws or Rules touching Descents among the Jews.
Among the Graecians, the Laws of Descents in some Sort resemble those of
the Jews, and in some Things they differed. Vide Petit's Leges Attica, Cap. I.
Tit. 6. De Testamentis & Hereditario Jure, where the Text of their Law runs
thus, viz.
Omnes legitimi Filii Haereditatem Paternam ex aequo inter se
Haeriscunto, si quis intestatus moritur relictis Filiabus qui eas in Uxores
ducunt haeredes sunto, si nullae supersint, hi ab intestato haereditatem
cernunto: Et primo quidem Fratres defuncti Germani, & legitimi Fratrum
Filii haereditatem simil adeunto; si nulli Fratres aut Fratrum Filii supersint,
iis geniti eadem Lege haereditatem cernunto: Masculi autem iis geniti etiam si
remotiori cognationis sint Gradu, praeferuntor, si nulli supersint, Paterni
proximi, ad sobrinorum usque Filios, Materni defuncti propinqui simili Lege
Haereditatem adeunto; si e neutra cognatione supersint intra definitum Gradum
proximus cognatus Paternus, addito Notho Nothave; superstite Legitima Filia
Nothus Haereditatem Patris ne adito.
This Law is very obscure, but the Sense thereof seems to be briefly
this, viz. That all the Sons equally shall inherit to the Father; but if he
have no Sons, then the Husbands of the Daughters; and if he have no Children,
then his Brothers and their Children; and if none, than his next Kindred on the
Part of his Father, preferring the Males before the Females; and if none of the
Father's Line, ad Sobrinorum usque Filios, then to descend to the Mother's
Line. Vide Petit's Gloss thereon.
Among the Romans it appears, that the Laws of Successions or Descents
did successively vary, for the Laws of the Twelve Tables did exclude the
Females from Inheriting, and had many other Streightnesses and Hardships which
were successively remedied: First, by the Emperor Claudius, and after him by
Adrian, in his Senatus Consultus Tertullianus, and after him hy Justinian in
his Third Institutes, Tit. De Haereditatibus quae ab intestato deseruntur, and
the two ensuing Titles. And again, all this was further explained and settled
by the Novel Constitutions of the said Justinian, stiled the Authenticae
Novellae, cap. 18. De Haereditatibus ab intestato venientibus & agnatorum
Jiure sublato. Therefore omitting the large Inquiry into the Successive Changes
of the Roman Law in this particular, I shall only set down how, according to
that Constitution, the Roman Law stands settled therein.
Descents or Successions from any Person are of Three Kinds, viz. 1st, In
the Descending Line. 2dly, The Ascending Line. 3dly, The Collateral Line; and
this latter is either in Agnatos a Parte Patris, or in Cognatos a Parte
Matris.
1. ln the Descending Line, These Rules are by the Roman Law directed,
viz.
1. The Descending Line, (whether Male or Female, whether immediate or
remote) takes Place, and prevents the Descent or Succession Ascending or
Collateral in infinitum.
2. The remote Descents of the Descending Line succeed in Stirpem, i.e.
in that Right which his Parent should have had.
3. This Descent or Succession is equal in all the Daughters, all the
Sons, and all the Sons and Daughters, without preferring the Male before the
Female; so that if the common Ancestor had three Sons and three Daughters, each
of them had a sixth Part; and if one of them had died in the Life of the
Father, having three Sons and three Daughters, the sixth Part that belonged to
that Party should have been divided equally between his or her six Children,
and so in in finitum in the Descending Line.
2. In the Ascending Line, there are these two Rules, viz.
1. If the Son dies without Issue, or any descending from him, having a
Father and a Mother living, both of them shall equally succeed to the Son, and
prevent all others in the Collateral Line, except Brothers and Sisters, and if
only a Father, or only a Mother, he or she shall succeed alone.
2. But if the Deceased leaves a Father and a Mother, with a Brother and
a Sister, ex utrisque Parentibus conjuncti, they all Four shall equally succeed
to the Son by equal Parts without Preference of the Males.
3. In the Collateral Line, (i.e. where the Person dies without Father or
Mother, Son or Daughter, or any descending from them in the Right Line) the
Rules are these, viz.
1. The Brothers and Sisters, ex utrisque Parentibius conjuncti, and the
immediate Children of them, shall exceed equally without Preference of either
Sex, and the Children from them shall succeed in stirpes; as if there be a
Brother and Sister, and the Sister dies in the Life of the Descendant leaving
one or more Children, all such Children shall succeed in the Moiety that should
have come to their deceased Mother, had she survived.
2. But if there be no Brothers or Sisters, ex utrisque Parentibus
conjuncti, nor any of their immediate Children, then the Brothers and Sisters
of the half Blood and their immediate Children shall succeed in Stirpes to the
Deceased, without any Prerogative to the Male.
3. But if there be no Brothers or Sisters of the wbole or half Blood,
nor any of their immediate Children (for the Grandchildren are not provided for
by the Law) then the next Kindred are called to the Inheritance.
(But by the Author's Leave, I think the Grandchildren are impliedly
provided for, as they succeed their Father or Mother Jure
representationis.)
4. And if the next Kindred be in an equal Degree, whether on the Part of
the Father as Agnati, or on the Part of the Mother as Cognati, then they are
equally called to the Inheritance, and succeeded in Capita, and not in
Stirpes.
Thus far of the settled Laws of the Jews, Greeks, and Romans, but the
Particular or Municipal Laws and Customs of almost every Country derogate from
those Laws, and direct Successions in a much different Way. For Instance.
By the Customs of Lombardy, according to which the Rules of the Feuds,
both in their Descents and in other Things, are much directed; their Descents
are in a much different Manner, viz.
Leges Feiudarum, Lib. I. Tit. I. If a Feud be granted to one Brother who
dies without Issue, it descends not to his other Brother unless it be specially
provided for in the first Infeudation: If the Donee dies, having Issue Sons and
Daughters, it descends only to the Sons; whereas by the Roman Law it descends
to both: The Brother succeeds not to the Brother unless specially provided for,
& Ibid. Tit. 50. The Ascendants succeed not, but only the Descendants,
neither does a Daughter succeed nisi ex Pacto, vel nisi sit Feodum Faemineum If
we come nearer Home to the Laws of Normandy, Lands there are of Two Kinds, viz.
Partible, and not Partible; the Lands that are partible, are Valvasories,
Burgages, and such like, which are much of the Nature of our Socage Lands;
these descend to all the Sons, or to all the Daughters: Lands not partible, are
Fiefs and Dignities, they descend to the eldest Son, and not to all the Sons;
but if there be no Sons, then to all the Daughters, and become partible.
The Rules and Directions of their Descents are as follow, viz.
1. For want of Sons or Nephews, it descends to the Daughters; if there
be no Sons or Descendants from them, it goes to Brothers, and for want of
Brothers, to Sisters, (observing as before the Difference between Lands
partible and not partible) and accordingly the Descent runs to the Posterity of
Brothers to the seventh Degree; and if there be no Brothers nor Sisters, nor
any Descendants from them within the Seventh Degree, it descends to the Father,
and if the Father be dead, then to the Uncles and Aunts and their Posterity,
(as above is said in the Case of Brothers and Sisters) and if there be none,
then to the Grandfather.
So that according to their Law, the Father is postponed to the Brother
and Sister, and their Issues, but is preferred before the Uncle: Tho' according
to the Jewish Law, the Father is preferred before the Brother; by the Roman
Law, he succeeds together equally with the Brother; but by the English Law, the
Father cannot take from his Son by an immediate Descent, but may take as Heir
to his Brother, who was Heir to his Son by Collateral Descent.
2. If Lands descended from the Part of the Father, they could never
resort by a Descent to the Line of the Mother; but in Case of Purchases by the
Son who died without Issue, for want of Heirs of the Part of the Father, it
descended to the Heirs of the Part of the Mother according to the Law of
England.
3. The Son of the eldest Son dying in the Life of the Father, is
preferred before a younger Son surviving his Father as the Law stands here now
settled, tho' it had some Interruption, 4 Johannis.
4. On Equality of Degrees in Collateral Descents, the Male Line is
preferred before the Female.
5. Altho' by the Civil Law, Fratres ex utroque Parente conjuncti
Praeferuntur Fratribus consanguineis tantum vel uterinis; yet it should seem by
the Contumier of Normandy, Fratres consanguineis ei ex eodem Patre sed diversa
Matre, shall take by Descent together with the Brothers, ex utroque conjuncti,
upon the Death of any such Brothers. But Quere hereof, for this seems a
Mistake; for, as I take it, the half Blood hinders the Descent between Brothers
and Sisters by their Laws as well as ours.
6. Leprosy was amongst them an Impediment of Succession, but then it
seems it ought to be first solemnly adjudged so by the Sentence of the
Church.
Upon all this, and much more that might be observed upon the Customs of
several Countries, it appears, That the Rules of Successions, or hereditary
Transmissions, have been various in several Countries according to their
various Laws, Customs, and Usages.
And now, after this brief Survey of the Laws and Customs of other
Countries, I come to the Laws and Usages of England in relation to Descents,
and the Growth that those Customs successively have had, and whereunto they are
now arrived.
First, Touching hereditary Successions: It seems, that according to the
ancient British Laws, the eldest Son inherited their Earldoms and Baronies; for
they had great Dignities and Jurisdictions annex'd to them, and were in Nature
of Principalities, but that their ordinary Freeholds descended to all their
Sons; and this Custom they carried with them into Wales, whither they wvere
driven. This appears by Statutum Waltiae 12 E. I. and which runs thus, viz.
Aliter usitatum est in Wallia quam in Anglia quoad successionem
haereditatis; eo quod haereditas partibilis est inter haeredes Masculos, &
a tempore cujus non extiterit Memoria partibilis exitit. Dominus Rex non vult
quod consuetudo illa abrogetur: sed quod haereditates remaneant partibiles,
inter consimiles haeredes sicut esse Consueverunt; & fiat partitio illius
sicut fieri consuevit. Hoc excepto Bastardi non habeant de caetero haereditates
& etiam quod non habeant purpartes, cum legitimis nec sine legitimis.
Whereupon Three Things are observable, viz. 1st, That at this Time the
hereditary Succession of the eldest Son was then known to be the common and
usual Law in England. 2dly, That the Succession of all the Sons was the ancient
customary Law among the British in Wales, which by this Statute was continued
to them. 3dly, That before this Time, Bastards were admitted to inherit in
Wales as well as the Legitimate Children, which Custom is thereby abrogated;
and although we have but few Evidences touching the British Laws before their
Expulsion hence into Wales, yet this Usage in Wales seems sufficiently to
evidence this to have been the ancient British Law.
Secondly, As to the Times of the Saxons and Danes, their Laws collected
hy Brompton and Mr Lambard, speak not much concerning the Course of Descents;
yet it seems that commonly Descents of their ordinary Lands at least, except
Baronies and Royal Inheritances, descended also to all the Sons: For amongst
the Laws of King Canutus, in Mr Lambard is the Law, viz. No. 68. "Sive quis
incuria five Morte repentina fuerit intestato mortuus, Dominus tamen nullam
rerum suarum Partem (praeter eam quae jure debetur Hereoti nomine) sibi
assumito. Verum eas Judicio suo Uxori, Liberis & cognatione proximis juste
(pro suo cuique jure) distributio." Upon which Law, we may observe these five
things, viz.
1st. That the Wife had a Share, as well of the Lands for her Dower, as
of the Goods.
2dly, That in reference to hereditary Successions, there then seem'd to
be little Difference between Lands and Goods, for this Law makes no
Distinction.
3dly, That there was a Kind of settled Right of Succession, with
Reference to Proximity and Remoteness of Blood, or Kin, Et cognatione proximis
pro suo cuique jure.
4thly, That in Reference to Children, they all seem'd to succeed alike,
without any Distinction between Males and Females.
5thly, That yet the Ancestor might dispose of by his Will as well Lands
as Goods, which Usage seems to have obtained here unto the Time of Hen. 2 as
will appear hereafter. Vide Glanville.
Thirdly, It seems that, until the Conquest, the Descent of Lands was at
least to all the Sons alike, and for ought appears to all the Daughters also,
and that there was no Difference in the hereditary Transmission of Lands and
Goods, at least in Reference to the Children: This appears by the Laws of King
Edward the Confessor, confirm'd by King William I and recited in Mr Lambard,
Folio 167. as also by Mr Selden in his Notes upon Eadmerus, viz. Lege 36 Tit.
De Intestatorum Bonis; Pag. 184. "Si quis Intestatus obierit, Liberi ejus
Haereditatem aequaliter divident."
But this equal Division of Inheritances among all the Children was found
to be very inconvenient: For,
1st, It weakened the Strength of the Kingdom, for by frequent parcelling
and subdividing of Inheritances, in Process of Time they became so divided and
crumbled, that there were few Persons of able Estates left to undergo publick
Charges and Offices.
2dly, It did by Degrees bring the Inhabitants to a low Kind of Country
living, and Families were broken; and the younger Sons, which had they not had
those little Parcels of Land to apply themselves to, would have betaken
themselves to Trades, or to Civil or Military, or Ecclesiastical Employments,
neglecting those Opportunities, wholly apply'd themselves to those small
Divisions of Lands, whereby they neglected the Opportunities of greater
Advantage of enriching themselves and the Kingdom.
And therefore King William I having by his Accession to the Crown gotten
into his Hands the Possessions and Demesns of the Crown, and also very many and
great Possessions of those that oppos'd him, or adhered to Harold, disposed of
those Lands or great Part of them to his Countrymen, and others that adhered to
him, and reserved certain honorary Tenures, either by Baronage, or in
Knights-Service or Grand Serjeancy, for the Defence of the Kingdom, and
possibly also, even at the Desire of many of the Owners, changed their former
Tenures into Knights-Service, which Introduction of new Tenures was
nevertheless not done without Consent of Parliament; as appears by the
additional Laws before mentioned, that King William made by Advice of
Parliament, mentioned by Mr Selden in his Notes on Eadmerus, Page 191, amongst
which this was one, viz.
Statuimus etiam & firmiter praecipimus ut omnes Comites Barones
Milites & Servientes & universi liberi Homines totius Regni nostri
habeant & teneant se semper in Armis & in Equis ut decet & oportet,
& quod sint semper prompti & bene parati ad Servitium suum integrum
nobis explendendum & peragendum, cum semper opus fuerit secundum quod nobis
de Feodis debent & tenentur Tenementis suis de Jure facere & sicut
illis statuimus per Commune Concilium totius Regni nostri, Et illis dedimus
& concessimus in Feodo Jure haereditario.
Whereby it appears, that there were two Kinds of Military Provisions;
one that was set upon all Freeholds by common Consent of Parliament, and which
was usually called Assisa Armorum; and another that was Conventional and by
Tenure, upon the Infeudation of the Tenant, and which was usually called
Knights Service, and sometimes Royal, sometimes Foreign Service, and sometimes
Servitium Loricae.
And hence it came to pass, that not only by the Customs of Normandy, but
also according to the Customs of other Countries, those honorary Fees, or
Infeudations, became descendible to the Eldest, and not to all the Males. And
hence also it is, that in Kent, where the Custom of all the Males taking by
Descent generally prevails, and that pretend a Concession of all their Customs
by the Conqueror, to obtain a Submission to his Government, according to that
Romantick Story of their Moving Wood: But even in Kent itself, those ancient
Tenements or Fees that are held anciently by Knights Service, are descendible
to the Eldest Son, as Mr Lambard has observed to my Hands in his Perambulation,
Page 533, 553. out of 9 H. 3. Fitz. Prescription 63. 26 H. 8.5. and the Statute
of 31 H. 8. cap. 3. And yet even in Kent, if Gavelkind Lands escheat, or come
to the Crown by Attainder or Dissolution of Monasteries, and be granted to be
held by Knights Service, or Per Baroniam, the Customary Descent is not changed,
neither can it be but by Act of Parliament, for it is a Custom fix'd to the
Land.
But those honorary infeudations made in ancient Times, especially
shortly after the conquest, did silently and suddenly assume the Rule of
Descents to the Eldest, and accordingly held it; and so altho' possibly there
were no Acts of Parliament of those Elder Times, at least none that are now
known of, for altering the ancient Course of Descents from all the Sons to the
Eldest, yet the Use of the Neighbouring Country might introduce the same Usage
here as to those honorary Possessions.
And because those honorary Infeudations were many, and scattered almost
through all the Kingdom, in a little Time they introduced a Parity in the
Succession of Lands of other Tenures, as Socages, Valvasories, &c. So that
without Question, by little and little, almost generally in all Counties of
England (except Kent, who were most tenacious of their old Customs in which
they gloried, and some particular Feuds and Places where a contrary Usage
prevailed) the generality of Descents or Successions, by little and little, as
well of Socage Lands as Knights Service, went to the eldest Son, according to
the Declaration of King Edw. I in the Statute of Wales above mentioned, as will
more fully appear by what follows.
In the Time of Hen. I as we find by his 70th Law, it seems that the
whole Land did not Descend to the eldest Son, but begun to look a little that
Way, viz. Primum Patris Feudum, Primogenitus Filius habeat. And as to
Collateral Descents, that Law determines thus: "Si quis sine. Liberis
decesserit Pater aut Mater ejus in haereditatem succedat vel Frater vel Soror
si Pater & Mater desint, si nec hos, habeat Soror Patris vel Matris, &
deinceps in Quintum Geniculum; qui cum propinquiores in parentela sint
haereditario jure succedant; & dum Virilis sexus extiterit & haereditas
ab inde sit, Foeminea non haereditetur."
By this Law it seems to appear;
1. The eldest Son, tho' he had Jus Primogeniturae, the principal Fee of
his Father's Land, yet he had not all the Land.
2. That for want of Children, the Father or Mother inherited before the
Brother or Sister.
3. That for want of Children, and Father, Mother, Brother, and Sister,
the Land descended to the Uncles and Aunts to the fifth Generation.
4. That in Successions Collateral, Proximity of Blood was preferred.
5. That the Male was preferred before the Female, i.e. The Father's Line
was preferred before the Mother's, unless the Land descended from the Mother,
and then the Mother's Line was preferred.
How this Law was observed in the interval between Hen. I. and Hen. 2. we
can give no Account of; but the next Period that we come to is, the Time of
Hen. 2. wherein Glanville gives us an Account how the Law stood at that Time:
Vide Glanville, Lib. 7. Wherein, notwithstanding it will appear, that there was
some Uncertainty and Unsettledness in the Business of Descents or Hereditary
Successions, tho' it was much better polished then formerly, the Rules then of
Succession were either in Reference to Goods, or Lands. 1st, As to Goods, one
Third Part thereof went to the Wife, another Third Part went to the Children,
and the other Third was left to the Disposition of the Testator; but if he had
no Wife, then a Moiety went to the Children, and the other Moiety was at the
Deceased's Disposal. And the like Rule if he had left a Wife, but no Children.
Glanv. lib. 7. cap. 5. & Vide lib. 2. cap. 29.
But as to the Succession of Lands, the Rules are these.
First, If the Lands were Knights Service, they generally went to the
eldest Son; and in case of no Sons, then to all the Daughters; and in case of
no Children, then to the eldest Brother.
Secondly, If the Lands were Socage, they descended to all the Sons to be
divided; Si feurit Soccagium & id antiquitus divisum; only the Chief House
was to be allotted to the Purparty of the Eldest, and a Compensation made to
the rest in lieu thereof: "Si vero non fuerit antiquitus divisum, tunc
Primogenitus secundum quorundam Consuetudinem totam Haereditatem obtinebit,
secundum autem quorundam Consuetudinem postnatus Filius Haeres est." Glanville,
lib. 7. cap. 3. So that altho' Custom directed the Descent variously, either to
the eldest or youngest, or to all the Sons, yet it seems that at this Time, Jus
Commune, or Common Right, spoke for the eldest Son to be Heir, no Custom
intervening to the contrary.
Thirdly, As the Son or Daughter, so their Children in infinitum, are
preferred in the Descent before the Collateral Line or Uncles.
Fourthly, But if a Man had two Sons, and the eldest Son died in the
Life-time of his Father, having Issue a Son or Daughter, and then the Father
dies. it was then controverted, whether the Sou or Nephew should succeed to the
Father, tho' the better Opiuion seems to be for the Nephew, Glanvil. lib. 7.
cap. 3.
Fifthly, A Bastard could not inherit, Ibid. cap. 13, or 17. And altho'
by the Canon or Civil Law, if A. have a Son born of B. before Marriage, and
after A. marries B. this Son shall be legitimate and heritable; yet according
to the Laws of England then, and ever since used, he was not heritable,
Glanvil. lib. 7. cap. 15.
Sixthly, In case the Purchaser died without Issue, the Land descended to
the Brothers; and for want of Brothers, to the
Sisters; and for want of them, to the Children of the Brothers or
Sisters; and for want of them, to the Uncles; and so onward
according to the Rules of Descents at this Day; and the Father or
Mother were not to inherit to the Son, but the Brothers or Uncles, and
their Children. Ibid. cap. 1. & 4.
And it seems, That in all Things else the Rules of Descents in reference
to the Colateral Line were much the same as now; as namely, That if Lands
descended of the Part of the Father, it should not resort to the Part of the
Mother, or e converso; but in the Case of Purchasers, for want of Heirs of the
Part of the Father, it resorted to the Line of the Mother, and the nearer and
more worthy of Blood were preferred: So that if there were any of the Part of
the Father, tho' never so far distant, it hindred the Descent to the Line of
the Mother, though much nearer.
But in those Times it seems there were two Impediments of Descents or
hereditary Successions which do not now obtain, viz.
First, Leprosy, if so adjudged by Sentence of the Church: This indeed I
find not in Glanville; but I find it pleaded and allowed in the Time of King
John, and thereupon the Land was adjudged from the Leprous Brother to the
Sister. Pasch. 4 Johannis.
Secondly, There was another Curiosity in Law, and it was wonderful to
see how much and how long it prevailed; for we find it in Use in Glanville, who
wrote Temp. Hen. 2. in Bracton Temp. Hen. 3. in Fleta Temp. Edw. I and in the
broken Year of 13 E. I. Fitzh. Avowry 235. Nemo potest esse Tenens &
Dominus, & Homagium repellit Perquisitum: And therefore if there had been
three Brothers, and the eldest Brother had enfeoffed the second, reserving
Homage, and had received Homage, and then the second had died without Issue,
the Land should have descended to the youngest Brother and not to the eldest
Brother, Qiuia Homagium repellit perquisitum, as 'tis here said, for he could
not pay Homage to himself. Vide for this, Bracton, Lib. 2. cap. 30. Glanvil.
Lib. 7. cap. I. Fleta, Lib. 6. cap. I.
But at this Day the Law is altered, and so it has been for ought I can
find ever since 13 E. I. Indeed, it is antiquated rather than altered, and the
Fancy upon which it was grounded has appear'd trivial; for if the eldest Son
enfeoff the second, reserving Homage, and that Homage paid, and then the second
Son dies without Issue, it will descend to the Eldest as Heir, and the
Seigniory is extinct. It might indeed have had some Color of Reason to have
examined, whether he might not have waved the Descent, in case his Services had
been more beneficial than the Land: But there could be little Reason from
thence to exclude him from the Succession. I shall mention no more of this
Impediment, nor of that of Leprosy, for that they both are vanished and
antiquated long since; and, as the Law now is, neither of these are any
Impediment of Descents.
And now passing over the Time of King John and Richard I because I find
nothing of Moment therein on this Head, unless the Usurpation of King John upon
his eldest Brother's Son, which he would fain have justified by introducing a
Law of prefering the younger Son before the Nephew descended from the elder
Brother: But this Pretention could no way justify his Usurpation, as has been
already shewn in the Time of Hen. 2.
Next, I come to the Time of Hen. 3 in whose Time the Tractate of Bracton
was written, and thereby in Lib. 2. cap. 30 & 31 and Lib. 5. cap. It
appears, That there is so little Variance as to Point of Descents between the
Law as it was taken when Bracton wrote, and the Law as afterwards taken in Edw.
I's Time, when Britton and Fleta wrote, that there is very little Difference
between them, as may easily appear by comparing Bracton ubi supra. & Fleta,
Lib. 5. cap. 9. Lib. 6. cap. 1, 2. that the latter seem to be only Transcripts
or Abstracts of the former. Wherefore I shall set down the Substance of what
both say, and thereby it will appear, that the Rules of Descents in Hen. 3. and
Edw. I's Time were very much one.
First, At this Time the Law seems to be unquestionably settled, that the
eldest Son was of Common Right Heir, not only in Cases of Knight Service Lands,
but also of Socage Lands, (unless there were a special Custom to the contrary,
as in Kent and some other Places) and so that Point of the Common Law was fully
settled.
Secondly, That all the Descendants in infinitum, from any Person that
had been Heir, if living, were inheritable Jure representationis; as, the
Descendants of the Son, of the Brother, of the Uncle, &c. And also,
Thirdly, That the eldest Son dying in the Life-time of the Father, his Son or
Issue was to have the Preference as Heir to the Father before the younger
Brother, and so the Doubt in Glanville's Time was settled, Glanvil. Lib. 7,
cap. 3. "Cum quis autem moriatur habens Filium postnatum, & ex primogenito
Filio praemortuo Nepotem, Magna quidem Juris dubitatio solet isse uter illorum
preferendus fit alii in illa Successioni, scilicet, utrum Filius aut
Nepos?"
Fourthly, The Father, or Grandfather, could not by Law inherit
immediately to the Son.
Fifthly, Leprosy, Though it were an Exception to a Plaintiff, because he
ought not to converse in the Courts of Law, as Bracton, Lib. 5. cap. 20 yet we
no where find it to be an Impediment of a Descent.
So that upon the whole Matter, for any Thing I can observe in them, the
Rules of Descents then stood settled in all Points as they are at this Day,
except some few Matters (which yet soon after settled as they now stand)
viz.
First, That Impediment or Hindrance of a Descent from him that did
Homage to him that received it, seems to have heen yet in Use, at least till 13
E. I. and in Fleta's Time, for he puts the Case and admits it.
Secondly, Whereas both Bracton and Fleta agree, that half Blood to him
that is a Purchaser is an Impediment of a Descent from the Common Ancestor,
half Blood is no Impediment. As for Instance; A. has Issue B. a Son and C. a
Daughter by one Venter, and D. a Son by another Venter: If B. purchases in Fee
and dies without Issue, it shall descend to the Sister, and not to the Brother
of the half Blood; but if the Land had descended from A. to B. and he had
entred and died without Issue, it was a Doubt in Bracton and Britton's Time,
whether it should go to the younger Son, or to the Daughter? But the Law is
since settled, that in both Cases it descends to the Daughter, Et. seisina
facit Stipitem & Primum Gradum. Et Possessio Fratris de Feodo simplici
facit Sororem esse haeredem.
Thus upon the whole it seems, That abating those small and
inconsiderable Variances, the States and Rules of Descents as they stood in the
Time of Hen. 3, or at least in the Time of Edw. I were reduced to their full
Complement and Perfection, and vary nothing considerably from what they are at
this Day, and have continued ever since that Time.
I shall therefore set down the State and Rule of Descents in Fee-Simple
as it stands at this Day, without meddling with Particular Limitations of
Entails of Estates, which vary the Course of Descents in some Cases from the
Common Rules of Descents of hereditary Successions; and herein we shall see
what the Law has been and continued touching the same ever since Bracton's
Time, who wrote in the Time of Hen. 3. now above 400 Years since, and by that
we shall see what Alterations the Succession of Time has made therein.
And now to give a short Scheme of the Rules of Descents, or hereditary
Successions, of the Lands of Subjects as the Law stands at this Day, and has
stood for above four hundred Years past, viz.
All possible hereditary Successions may be distinguished into these 3
Kinds, viz, either,
1st, In the Descending Line, as from Father to Son or Daughter, Nephew
or Niece, i.e. Grandson or Grandaughter. Or,
2dly, ln the Collateral Line, as from Brother to Brother or Sister, and
so to Brother and Sisters Children. Or,
3dly, In an Ascending Line, either direct, as from Son to Father or
Grandfather, (which is not admitted by the Law of England) or in the
transversal Line, as to the Uncle or Aunt, Great-Uncle or Great-Aunt, &c.
And because this Line is again divided into the Line of the Father, or the Line
of the Mother, this transverse ascending Succession is either in the Line of
the Father, Grandfather, &c. on the Blood of the Father; or in the Line of
the Mother, Grandmother, &c. on the Blood of the Mother: The former are
called Agnati, the latter Cognati: I shall therefore set down a Scheme of
Pedigrees as high as Great-Grandfather and Great-Grandmothers Grandsires, and
as low as Great-Grandchild; which nevertheless will be applicable to more
remote Successions with a little Variation, and will explain the whole Nature
of Descents or hereditary Successions.
This Pedigree, with its Application, will give a plain Account of all
Hereditary Successions under their several Cases and Limitations, as will
appear by the following Rules, taking our Mark or Epocha from the FATHER and
MOTHER.
But first, I shall premise certain general Rules, which will direct us
much in the Course of Descents as they stand here in England: (Viz.)
First. In Descents, the Law prefers the Worthiest of Blood: As,
1st, In all Descents immediate, the Male is preferred before the Female,
whether in Successions Descending, Ascending, or Collateral: Therefore in
Descents, the Son inherits and excludes the Daughter, the Brother is preferred
before the Sister, the Uncle before the Aunt.
2dly, In all Descents immediate, the Descendants from Males are to be
preferred before the Descendants from Females: And hence it is, That the
Daughter of the eldest Son is preferred in Descents from the Father before the
Son of the younger Son; and the Daughter of the eldest Brother, or Uncle, is
preferred before the Son of the younger; and the Uncle, nay, the Great-Uncle,
i.e. the Grandfather's Brother, shall inherit before the Uncle of the Mothers
Side.
Secondly, In Descents, the next of Blood is preferred before the more
remote, tho' equally or more worthy. And hence it is,
1st, The Sister of the whole Blood is preferred in Descents before the
Brother of the half Blood, because she is more strictly joined to the Brother
of the whole Blood (viz. by Father and by Mother) than the half Brother, though
otherwise he is the more worthy.
2dly, Because the Son or Daughter being nearer than the Brother, and the
Brother or Sister than the Uncle, the Son or Daughter shall inherit before the
Brother or Sister, and they before the Uncle.
3dly, That yet the Father or Grandfather, or Mother or Grandmother, in a
direct ascending Line, shall never succeed immediately the Son or Grandchild;
but the Father's Brother (or Sisters) shall be preferred before the Father
himself; and the Grandfather's Brother (or Sisters) before the Grandfather: And
yet upon a strict Account, the Father is nearer of Blood to the Son than the
Uncle, yea than the Brother; for the Brother is therefore of the Blood of the
Brother, because both derive from the same Parent, the Common Fountain of both
their Blood. And therefore the Father at this Day is preferred in the
Administration of the Goods before the Son's Brother of the whole Blood, and a
Remainder limited Proximo de Sanguine of the Son shall vest in the Father
before it shall vest in the Uncle. Vide Littleton, Lib. I. fol. 8, 10.
Thirdly, That all the Descendants from such a Person as by the Laws of
England might have been Heir to another, hold the same Right by Representation
as that Common Root f rom whence they are derived; and therefore,
1st, They are in Law in the same Right of Worthiness and Proximity of
Blood, as their Root that might have been Heir was, in case he had been living:
And hence it is, that the Son or Grandchild, whether Son or Daughter of the
eldest Son, succeeds before the younger Son; and the Son or Grandchild of the
eldest Brother, before the youngest Brother; and so through all the Degrees of
Succession, by the Right of Representation, the Right of Proximity is
transferred from the Root to the Branches, and gives them the same Preference
as the next and worthiest of Blood.
2dly, This Right transferred by Representation is infinite and unlimited
in the Degrees of those that descend from the Represented; for Filius the Son,
the Nepos the Grandson, the Abnepos the Great-Grandson, and so in infinitum
enjoy the same Privilege of Representation as those from whom they derive their
Pedigree lhave, whether it be in Descents Lineal, or Transversal; and theref
ore the Great-Grandchild of the eldest Brother, whether it be Son or Daughter.
shall be preferred before the younger Brother, because tho' the Female be less
worthy than the Male, yet she stands in Right of Representation of the eldest
Brother, who was more worthy than the younger. And upon this Account it is,
3dly, That if a Man have two Daughters, and the eldest dies in the Life
of the Father, leaving six Daughters, and then the Father dies; the youngest
Daughter shall have an equal Share with the other six Daughters, because they
stand in Representation and Stead of their Mother, who could have had but a
Moiety.
Fourthly, That hy the Law of England, without a special Custom to the
contrary, the eldest Son, or Brother, or Uncle, excludes the younger; and the
Males in an equal Degree do not all inherit: But all the Daughters, whether by
the same or divers Venters, do inherit together to the Father, and all the
Sisters by the same Venter do inherit to the Brother.
Fifthly, That the last Seisin in any Ancestor, makes him, as it were the
Root of the Descent equally to many Intents as if he had been a Purchaser; and
therefore he that cannot, according to the Rules of Descents, derive his
Succession from him that was left actually seised, tho' he might have derived
it from some precedent Ancestor, shall not inherit. And hence it is, That where
Lands descend to the eldest Son from the Father, and the Son enters and dies
without Issue, his Sister of the whole Blood shall inherit as Heir to the
Brother, and not the younger Son of the half Blood, because he cannot be Heir
to the Brother of the half Blood: But if the eldest Son had survived the Father
and died before Entry, the youngest Son should inherit as Heir to the Father,
and not the Sister, because he is Heir to the Father that was last actually
seised. And hence it is, That tho' the Uncle is preferred before the Father in
Descents to the Son; yet if the Uncle enter after the Death of the Son, and die
without Issue, the Father shall inherit to the Uncle, quia Seisina facit
Stipitem.
Sixthly, That whosoever derives a Title to any Land, must be of the
Blood to him that first purchased it: And this is the Reason why, if the Son
purchase Lands and dies without Issue, it shall descend to the Heirs of the
Part of the Father; and if he has none, then to the Heirs on the Part of the
Mother; because, tho' the Son has both the Blood of the Father and of the
Mother in him, yet he is of the whole Blood of the Mother, and the
Consanguinity of the Mother are Consanguinei Cognati of the Son.
And of the other Side, if the Father had purchased Lands, and it had
descended to the Son, and the Son had died without Issue, and without any Heir
of the Part of the Father, it should never have descended in the Line of the
Mother, but escheated: For tho' the Consanguinei of the Mother were the
Consanguinei of the Son, yet they were not of Consanguinity to the Father, who
was the Purchaser; but if there had been none of the Blood of the Grandfather,
yet it might have resorted to the Line of the Grandmother, because her
Consanguinei were as well of the Blood of the Father, as the Mother's
Consanguinity is of the Blood of the Son: And consequently also, if the
Grandfather had purchased Lands, and they had descended to the Father, and from
him to the Son; if the Son had entred and died without Issue, his Father's
Brothers or Sisters, or their Descendants, or, for want of them, his
Great-Grandfather's Brothers or Sisters, or their Descendants, or, for want of
them, any of the Consanguinity of the Great-Grandfather, or Brothers or Sisters
of the Great-Grandmother, or their Descendants, might have inherited, for the
Consanguinity of the Great-Grandmother was the Consanguinity of the
Grandfather; but none of the Line of the Mother, or Grandmother, viz. the
Grandfather's Wife, should have inherited, for that they were not of the Blood
of the first Purchaser. And the same Rule e converso holds in Purchases in the
Line of the Mother or Grandmother, they shall always keep in the same Line that
the first Purchaser settled them in.
But it is not necessary, That he that inherits be always Heir to the
Purchaser; it is sufficient if he be of his Blood, and Heir to him that was
last seised. The Father purchases Lands which descended to the Son, who dies
without Issue, they shall never descend to the Heir of the Part of the Son's
Mother; but if the Son's Grandmother has a Brother, and the Son's
Great-Grandmother hath a Brother, and there are no other Kindred, they shall
descend to the Grandmother's Brother; and yet if the Father had died without
Issue, his Grandmother's Brother should have been preferred before his Mother's
Brother, because the former was Heir of the Part of his Father tho' a Female,
and the latter was only Heir of the Part of his Mother; but where the Son is
once seized and dies without Issue, his Grandmother's Brother is to him Heir of
the Part of his Father, and being nearer than his Great Grandmother's Brother,
is preferred in the Descent.
But Note, This is always intended so long as the Line of Descent is not
broken; for if the Son alien those Lands, and then repurchase them again in
Fee, now the Rules of Descents are to be observ'd as if he were the original
Purchaser, and as if it had been in the Line of the Father or Mother.
Seventhly, In all Successions, as well in the Line Descending,
Transversal, or Ascending, the Line that is first derived from a Male Root has
always the Preference.
Instances whereof in the Line Descending, &c. viz.
A. has Issue two Sons B. and C. B. has Issue a Son and a Daughter D. and
E. D. the Son has Issue a Daughter F. and E. the Daughter has Issue a Son G.
Neither C. nor any of his Descendants, shall inherit so long as there are any
Descendants from D. and E. and neither E. the Daughter, nor any of her
Descendants, shall inherit so long as there are any Descendants from D. the
Son, whether they be Male or Female.
So in Descents Collateral, as Brothers and Sisters, the same Instances
apply'd thereto, evidence the same Conclusions.
But in Successions in the Line Ascending, there must be a fuller
Explication; because it is darker and more obscure, I shall therefore set forth
the whole Method of Transversal Ascending Descents under the Eight ensuing
Rules, viz.
First, If the Son purchases Lands in Fee-Simple, and dies without Issue,
those of the Male Line ascending, usque infinitum shall be preferred in the
Descent, according to their Proximity of Degree to the Son; and therefore the
Father's Brothers and Sisters and their Descendants shall be preferred before
the Brothers, of the Grandfather and their Descendants; and if the Father had
no Brothers nor Sisters, the Grandfather's Brothers and their Descendants, and
for want of Brothers, his Sisters and their Descendants, shall be preferr'd
before the Brothers of the Great Grandfather: For altho' by the Law of England
the Father or Grandfather cannot immediately inherit to the Son, yet the
Direction of the Descent to the Collateral Ascending Line, is as much as if the
Father or Grandfather had been by Law inheritable; and therefore as in Case the
Father had been inheritable, and should have inherited to the Son before the
Grandfather, and the Grandfather, before the Great-Grandfather, and
consequently if the Father had inherited and died without Issue, his eldest
Brother and his Descendants should have inherited before the younger Brother
and his Descendants; and if he had no Brothers but Sisters, the Sisters and
their Descendants should have inherited before his Uncles or the Grandfather's
Brothers and their Descendants. So though the Law of England excludes the
Father from inheriting, yet it substitutes and directs the Descent as it should
have been, had the Father inherited, viz. It lets in those first that are in
the next Degree to him.
Secondly, The second Rule is this: That the Line of the Part of the
Mother shall never inherit as long as there are any, tho' never so remote, of
the Line of the Part of the Father; and therefore, tho' the Mother has a
Brother, yet if the Atavus or Atavia Patris (i. e. the
Great-Great-Great-Grandfather, or Great-Great-Great-Grandmother of the Father)
has a Brother or a Sister, he or she shall be preferred, and exclude the
Mother's Bother, though he is much nearer.
Thirdly, But yet further. The Male Line of the Part of the Father
ascending, shall in AEternum exclude the Female Line of the Part of the Father
ascending; and therefore in the Case proposed of the Son's purchasing Lands and
dying without Issue, the Sister of the Father's Grandfather, or of his
Great-Grandfather, and so in infinitum shall be preferred before the Father's
Mother's Brother, tho' the Father's Mother's Brother be a Male, and the
Father's Grandfather or Great-Grandfather's Sister be a Female, and more
remote, because she is of the Male Line, which is more worthy than the Female
Line, though the Female Line, be also of the Blood of the Father.
Fourthly, But as in the Male Line ascending, the more near is preferred
before the more remote; so in the Female Line descending, so it be of the Blood
of the Father, it is preferred before the more remote. The Son, therefore
purchasing Lands, and dying without Issue, and the Father, Grandfather, and
Great-Grandfather, and so upward, all the Male Line being dead without any
Brother or Sister, or any descending from them; but the Father's Mother has a
Sister or Brother, and also the Father's Grandmother has a Brother, and
likewise the Father's GreatGrandmother has a Brother: Tho' it is true, that all
these are of the Blood of the Father; and tho' the very remotest of them, shall
exclude the Son's Mother's Brother; and tho' it be also true, that the
Great-Grandmother's Blood has passed through more Males of the Father's Blood
than the Blood of the Grandmother or Mother of the Father; yet in this Case,
the Father's Mother's Sister shall be preferred before the Father's
Grandmother's Brother, or the Great Grandmother's Brother, because they are all
in the Female Line, viz. Cognati (and not Agnati), and the Father's Mother's
Sister is the nearest, and therefore shall have the Preference as well as in
the Male Line ascending, the Father's Brother or his Sister shall he preferred
before the Grandfather's Brother.
Fifthly, But yet in the last Case, where the Son purchases Lands and
dies without Issue, and without any Heir on the Part of the Grandfather, the
Lands shall descend to the Grandmother's Brother or Sister, as Heir on the Part
of his Father; yet if the Father had purchased this Land and died, and it
descended to his Son who died without Issue, the Lands should not have
descended to the Father's Mother's Brother or Sister, for the Reasons before
given in the Third Rule: But for want of Brothers or Sisters of the
Grandfather, Great-Grandfather, and so upwards in the Male ascending Line, it
should descend to the Father's Grandmother's Brother or Sister which is his
Heir of the Part of his Father, who should be preferred before the Father's
Mother's Brother, who is in Truth the Heir of the Part of the Mother of the
Purchaser, tho' the next Heir of the Part of the Father of him that last died
seized; and therefore, as if the Father that was the Purchaser had died without
Issue, the Heirs of the Part of the Father, whether of the Male or Female Line,
should have been preferred before the Heirs of the Part of the Mother; so the
Son, who stands now in the Place of the Father, and inherits to him primarily,
in his Father's Line, dying without Issue, the same Devolution and hereditary
Succession should have been as if his Father had immediately died without
Issue, which should have been to his Grandmother's Brother, as Heir of the Part
of the Father, though by the Female Line, and not to his Mother's Brother, who
was only Heir of the Part of his Mother, and who is not to take till the
Father's Line both Male and Female be spent.
Sixthly, If the Son purchases Lands and died without Issue, and it
descends to any Heir of the Part of the Father, and then if the Line of the
Father (after Entry and Possession) fail, it shall never return to the Line of
the Mother; tho' in the first Instance, or first Descent from the Son, it might
have descended to the Heir of the Part of the Mother; for now by this Descent
and Seisin it is lodged in the Father's Line, to whom the Heir of the Part of
the Mother can never derive a Title as Heir, but it shall rather escheat: But
if the Heir of the Part of the Father had not entred, and then that Line had
failed, it might have descended to the Heir of the Part of the Mother as Heir
to the Son, to whom immediately, for want of Heirs of the Part of the Father,
it might have descended.
Seventhly, And upon the same Reason, if it had once descended to the
Heir of the Part of the Father of the Grandfather's Line, and that Heir had
entred, it should never descend to the Heir of the Part of the Father of the
Grandmother's Line, because the Line of the Grandmother was not of the Blood or
Consanguinity of the Line of the Grandfather's Side.
Eighthly, If for Default of Heirs of the Purchaser of the Part of the
Father, the Lands descend to the Line of the Mother, the Heirs of the Mother of
the Part of her Father's Side, shall be preferred in the Succession before her
Heirs of the Part of her Mother's Side, because they are the more worthy.
And thus the Law stands in Point of Descents or Hereditary Successions
in England at this Day, and has so stood and continued for above four Hundred
Years past, as by what has before been said, may easily appear. And Note, The
most Part of the Eight Rules and Differences above specified and explained, may
be collected out of the Resolutions in the Case of Clare versus Brook, &c.
in Plowden's Commentaries, Folio 444.
