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The History of the Common Law of England
by Hale, 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.


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